HREOC Website: National Inquiry into Children in Immigration Detention
Transcript of Hearing - MELBOURNE
Thursday 30 May 2002
Please note: This is an edited transcript
Commissioners:
- Dr S. OZDOWSKI, Commissioner
- Dr T. THOMAS, Assistant Commissioner
- Dr R. SULLIVAN, Assistant Commissioner
Assisting:
- Mr J. HUNYOR, Counsel Assisting
- Ms V. LESNIE, Counsel Assisting
COMMISSIONER OZDOWSKI: Welcome to everyone. I would like to formally open this public hearing, the first of a series of hearings to be conducted around Australia. My name is Sev Ozdowski and I am the Human Rights Commissioner of Australia, and I have with me two Assistant Commissioners; to my right Professor Trang Thomas who is Professor of Psychology at the Royal Melbourne Institute of Technology, and to my left Dr Robin Sullivan who is Queensland Commissioner for Children. I also have two counsel assisting. To my right is Mr Jonathan Hunyor, and to my left Ms Vanessa Lesnie, both of whom work at the Commission.
Before the hearing commences, I would like to remind you about the rulings I made about confidentiality and privacy. I would like to ask witnesses to not mention names of individuals for two reasons; the first reason is that a number of adverse comments could be made and the people may not be able to defend their good reputation; and the second reason is it that it is important to protect the privacy of individuals, especially individuals who are in the process of refugee determination.
In particular this concerns children. I would ask the media to adhere to these rules, and film the proceedings as they wish, but in case a witness desires that his privacy is protected, that the media will respect it. Now, I would like to welcome our first witness, Mr Grant Mitchell. Thank you very much for putting forward your submission. As I understand, you are representing today the Asylum Seekers Project of the Hotham Mission, and you will be talking on behalf of that project. Mr Mitchell, could I ask you to make an oath or affirmation now.
GRANT MITCHELL, sworn [2.07pm]
COMMISSIONER OZDOWSKI: Thank you, Mr Mitchell. Now, can I ask you to state your name for the record, your address and the organisation you represent?
MR MITCHELL: Grant Mitchell from [address removed].
COMMISSIONER OZDOWSKI: Thank you. Now, I would like to ask you to make an opening statement. We read your submission and the purpose of this hearing as to cross-examine the evidence which you provided to us.
MR MITCHELL: Thank you, Commissioner. I am the Project Co-ordinator for the Asylum Seeker Project at Hotham Mission. We are working with asylum seekers in the community, and we are a housing and community support agency for asylum seekers on Bridging Visa E and also that includes a number of asylum seekers released from detention under that category.
COMMISSIONER OZDOWSKI: Now, could you say something about the level of contact you had with refugees and in particular with children, and could you say something about your knowledge of the detention system. Is it limited only to Melbourne detention or is it more widespread?
MR MITCHELL: Our project, we work with 40 children and young people so in other words a number of people between the ages of - young people from 16 to 24 and children up to the age of 16. So approximately nine of those children have previously been in detention. The remainder are asylum seekers that have been living lawfully in the community on bridging visas. So the majority of our work has been through providing assistance in the community, housing and support for asylum seekers already in the community, but recently we have started, through people that have been released on various different grounds, like an early release program.
So, in other words, people that have perhaps breached their bridging visa requirements perhaps worked when they have not had work rights, and then have been detained. And if they have been released on a bridging visa on a bond or assurance of support, we have been providing support for that group. That includes some children that, for example, if the father has been detained and then the children have been remaining in the community. And then also we have been working with people who, for psychological reasons, we have been able to either negotiate or be a part of the process for them to be released into our care under a community care plan.
COMMISSIONER OZDOWSKI: Mr Mitchell, what we are trying to establish through this inquiry is to find out whether Australia is meeting its obligations under a number of international instruments, in particular under the Convention of the Rights of the Child. Could I ask you about conditions in detention centres? And I would like to ask you to address the issues like schooling, health, food, psychological wellbeing, as best as you could.
MR MITCHELL: Well, Hotham Mission is mainly involved in supporting people when they are released into the community. So, in other words, people that have been in detention. I am not really in the best position to answer what is happening in detention centres in Australia.
COMMISSIONER OZDOWSKI: That is good. Now, could you tell me about the impact of detention on children?
MR MITCHELL: Well, perhaps to put it in the context in terms of Hotham's work with children and adults released from detention. I worked previously in a detention centre in Sweden. I was working there for a year and a half until January 2000. And so I was trained and working with the Immigration Department in Sweden, working specifically as a case-worker, so providing support for people who were in detention. And in Sweden, even though the children are only detained for a maximum of six days, there were - there was a lot of work involved in assisting the transition from people arriving with no documentation into release into the community.
So that work in Sweden, I think, really was preparatory in terms of how Hotham has approached this as well; how it is possible to create or be a part of a balanced detention reception regime.
COMMISSIONER OZDOWSKI: Could I ask you to describe maybe what happened in Sweden during that six days to a child, and maybe if you could mention both an unaccompanied child and a child as a part of a family.
MR MITCHELL: Yes, okay. Well, in terms of if there is a family that arrives in Sweden with no documentation, there is a mandatory detention policy in Sweden, so all people who arrive without documentation are detained. However, detention is only for that initial period of identity, health and security checks. So the reality for, say, a single mother with young children would be that she would be signed in and myself as a case-worker would have to be present during that signing.
And the first thing would be to inform that family through an interpreter what their rights are and to inform them very clearly the Immigration process; that they are allowed to have legal counsel, and then to explain to them why they are being detained and for what period. So in Sweden there is a time limitation. So when you first arrive, there is a maximum two-week detention period, and that is for identity, health and security checks. If that has not been - if that cannot be done within that two-week period, it can be extended for a further two months.
COMMISSIONER OZDOWSKI: Who can extend? Who has got the authority to extend it?
MR MITCHELL: There is a board within the Immigration Department that make that decision and then if the asylum seeker does not agree with that decision, it can be appealed to the local court. So there is an internal system and an external system of review, and
COMMISSIONER OZDOWSKI: And if there is an unaccompanied minor, would that minor be given some representation or some
MR MITCHELL: Yes.
COMMISSIONER OZDOWSKI: guardian assigned?
MR MITCHELL: Well, fortunately, the detention centres in Sweden are very centrally located to - they tend to be in refugee centres, as they are called, so that next to the detention centre is a group home for unaccompanied minors, which is next to a health centre which is next to community accommodation, and then the Immigration Department offices. So in terms of an unaccompanied minor, that person is literally signed in and signed out. So that is the extent of mandatory detention for unaccompanied minors, and for single mothers people would tend to be cleared almost immediately, and that would be in collaboration with the Federal Police, the Swedish Federal Police.
And then, for example, if there is no way of establishing identity, it would be a sworn affidavit. And health checks in Sweden in any case are always done in the first week. So there was almost no reason why - and the practice was actually around three days. Families would come in and be released within three days.
COMMISSIONER OZDOWSKI: And what was the next step, after one week, assuming they were released, what was happening with them?
MR MITCHELL: Well, for an unaccompanied minor, they would be released into a group home where - it has recently changed, but when I was working there, the Immigration Department was still responsible for the care for that minor. It has since been handed over to Child Protection. But essentially there was a case-worker again working with that person to ensure that they have access to school, to health, to social services and long-term they tried to move them away from that group home into community based living, again supervised as they are minors, but if it is a family unit then they are almost straight away, as well, released, as I said, but that is into accommodation type living close to - it is almost like a closed centre - I mean an open centre.
COMMISSIONER OZDOWSKI: But were they able to leave that centre and return? Were they free in their movements?
MR MITCHELL: Yes. It is completely free. All asylum seekers, bar those held in detention for that initial period, are free to live in - they can choose to live with family, relatives if they have them, or they can live in fixed accommodation which is just like flats or units.
COMMISSIONER OZDOWSKI: And how long did it take to process the claims for refugees status?
MR MITCHELL: Well, it varies. I think the thing in Sweden that expedites the determination process is a number of things; one is that the decisions for humanitarian reasons, as opposed to Australia which are at the end of the - after initial Immigration Department and Refugee Tribunal decision in Australia, then the Minister looks at humanitarian grounds. In Sweden, right from the beginning, when they are assessing refugee grounds, they are also looking are there other grounds for protection, such as the Convention against Torture or extreme medical or other humanitarian reasons.
So that certainly reduces a lot of the time limits, and also the Tribunal equivalent in Sweden is a multi-member tribunal, and there is always legal counsel from the first day through to that Tribunal decision. So there tends to be less need to access the court system as in my observation is the case here in Australia.
COMMISSIONER OZDOWSKI: The Australian authorities are concerned that if we would have similar system and the claim is unsuccessful, that people would be not available for removal. Do you have any information about whether the people have been absconding in case the decision were negative?
MR MITCHELL: Well, based on both my experience in Sweden and working at Hotham Mission with asylum seekers in the community, I do not - the research I have been doing myself, I have an interest in absconding as an issue - in Sweden I was working in a refugee camp, I was working in detention with people who were about - I was actually having to give the final decision to asylum seekers, and they have extremely high compliance rates. Up to 80 per cent of asylum seekers in Sweden voluntarily repatriate on final decisions. It is
COMMISSIONER OZDOWSKI: 80 per cent?
MR MITCHELL: Yes. I mean, it is a remarkable figure. What is remarkable about it, I think, is how they have looked at the asylum seeker process in its entirety in terms of regardless of how people arrive, there are only two outcomes for asylum seekers, weather they will be allowed to settle or have to return. So a lot of preparatory work is done. So as a case-worker, for example, I was required to prepare people for all outcomes from the beginning. And what was found in Sweden was that when people feel they have had a fair and expeditious hearing, feel that they have been able to have access to legal counsel and are prepared and also given some incentives, they are more likely to comply, particularly if they are empowered in that process and their anxiety levels are reduced.
And that has been a similar experience at Hotham Mission. We have been working now with - and the submission that I sent in looked at a specific time frame, around 120 asylum seekers, and in that period the number that have voluntarily repatriated and the number that have settled and the number that have not received decisions yet indicate that none of our clients have absconded. And these are clients right at the end. They are all at the Minister, and they literally are living in the community with no rights or entitlements, but are not absconding. So I feel that it is an exaggerated risk.
COMMISSIONER OZDOWSKI: I had similar opinions during my recent to the United States, where American officials told me that when you give people a fair process in which they can participate and understand, they are much more willing to accept at the end the outcome, even if the outcome is negative to them. I would like to change for a moment the line of questioning, so perhaps I will allow my Assistant Commissioners if they have got any questions relating to the Swedish model?
ASST COMMISSIONER SULLIVAN: I have just got two. One is what are the incentives? You mentioned incentives.
MR MITCHELL: On return?
ASST COMMISSIONER SULLIVAN: Yes.
MR MITCHELL: Well, right from the first day an asylum seeker arrives in Sweden, they are informed of the reality of their situation, and that includes return. And as the relationship with the case-worker proceeds, a lot of things are explored. One is, in Sweden they call it motivational counselling, but it is essentially a way of preparing and exploring with an asylum seeker the reality that they may have to go back. So the incentives include allowing time for a third country to be explored. Some asylum seekers do have third country options. Allowing for some funds for resettlement. They may have lost all their savings or they may need to resettle in another part of the country, so for domestic travel and also, which is problematic with asylum seekers, but important, is exploring how some follow-up can occur.
So in other words, they feel they are not just being forced back to a dangerous situation. But my job, for example, as a case-worker was to provide information to that asylum seeker to show them that conditions are not as dangerous as they may perceive it to be. And that requires building some trust with the asylum seeker, but also working constructively with them. And that - it is more in depth than that, but that is a rough kind of
ASST COMMISSIONER SULLIVAN: My second question is the recent change you alluded to, which is taking the care and responsibility of the child from the Department of Immigration to the Child Protection Agency.
MR MITCHELL: In Sweden? Yes.
ASST COMMISSIONER SULLIVAN: Yes. Do you know the rationale behind the change?
MR MITCHELL: Yes, there was - there have been some problems in Sweden with unaccompanied minors, in that the Swedish Immigration Department - I mean, there is a history of the role of Immigration moving in Sweden moving from the police to the Immigration Department, and more recently the move has been towards bringing social services more involved in the immigration process. So there has been, since the early nineties when the police were primarily responsible for a lot of immigration, the move has been towards - similar to the Department of Human Services in Australia.
Part of that was because there has not been a real - enough ongoing case management of unaccompanied minors in Sweden, which meant that a number of young people - and because the laws in Sweden state that no-one - they are not obliged to accompany them at all times, people were coming and picking them up and they were - some of them were not being able to be found for a short period of time. So the social services have now decided they have to work in collaboration with the Immigration Department. But I am not a hundred per cent up to speed with what is happening in Sweden now.
ASST COMMISSIONER SULLIVAN: Is that the equivalent of being, say, a child in care in our terms?
MR MITCHELL: Yes, it would be - I actually have not come across exactly a similar circumstance here. I guess it would be - it is certainly not similar to the Juvenile Justice System, where there is more of a parole nature. The unaccompanied minors could literally come and go and live quite freely, and that was the thing that I think that social services felt needed to be monitored more, for their own safety, not that they are going to be at risk to abscond or anything.
ASST COMMISSIONER SULLIVAN: Thanks for that.
COMMISSIONER OZDOWSKI: Would you know the number of unaccompanied minors in Sweden per year?
MR MITCHELL: No, I do not, I am sorry.
COMMISSIONER OZDOWSKI: Thank you.
ASST COMMISSIONER THOMAS: Can you give us a bit more detail about the assessment and the review process of these asylum seekers in Sweden?
MR MITCHELL: In Sweden. Well, the assessment in terms of identity, health and security checks - is that what you mean?
ASST COMMISSIONER THOMAS: Mm.
MR MITCHELL: And then the determination process. It is complex because in Sweden you may be detained because you have arrived by boat, in which case it may be the Customs officials which are primarily responsible for your detention. So a lot of review and decision on that person goes through that means. If it is - if they arrive at the airport, then it goes through the Federal Police. It is quite a complex process; if someone is picked up for working illegally, then it could be the local counties office. And so in that regard those agencies work in collaboration with the asylum unit in terms of establishing identity and with, as I said before, the Federal Police for security issues.
And they work in collaboration. It is difficult because there are a number of agencies involved. It was difficult for us at the detention centre, because we had to know under what - or who detained them. But it was still a rather quick process. There was a lot of - and as I said before, particularly people that can be screened out fairly quickly in terms of security, people who perhaps have disabilities, the elderly, people with severe torture and trauma - so in that - and because there was such an established reception system and there was a lot of case-work management with that, people were quite able to move into that process quite quickly.
The determination process in Sweden is I believe also, it tends to be - I think because people are, right from the beginning, informed of the entire process, and are able to have legal counsel and there is always more than one person hearing their case, in most cases it is three Tribunal members or three Immigration officers, and it is also the Immigration decision in Sweden is very transparent. You can actually - you cannot get information about the case, but you can certainly follow the line of decision making and access the country information used and really look and analyse that, so it can be used in a review process.
The transparency in the determination process I feel means that there is less need to access the court systems, and also the asylum seeker feels they have had a fairer hearing.
ASST COMMISSIONER THOMAS: And are you confident that if we use the same model in Australia, it will work?
MR MITCHELL: I think it should be explored at least. I mean, Australia and Sweden is very different. I think the detention system in Australia, I really do not see the need for mandatory detention to be non-reviewable, and for it to be as arbitrary as it seems to be. I think there is certainly the ability and there is certainly the capacity for Australia to balance our detention reception systems, but part of that requires asylum seekers already in the community who - actually up to 80 per cent of asylum seekers are living lawfully in the community.
That is not a very well-known statistic, but the fact is that they are often left with very little resources, particularly people on first arrival and towards the end of their case. So my argument would be how do we have a uniform system for all asylum seekers? Obviously that includes children living in the community, asylum seeker children with no access to Medicare, income support or basic rights and entitlements, and asylum seekers in detention who - a costly system which is not necessarily a balanced one.
ASST COMMISSIONER SULLIVAN: Is the fact that we have Federal and State jurisdictions complicate the Swedish model, if we were to use it here?
MR MITCHELL: Sweden has some complications, I think. But it is not as pronounced in terms of funding, what is Commonwealth funded and what is State funded. That is problematic here for all asylum seeker issues, and I think asylum seekers in the community face that issue as well. So people moving from detention to the community, there are a lot of question marks, who is responsible, and particularly education, health and so on.
COMMISSIONER OZDOWSKI: Did you present you suggestions regarding Swedish model to the Department of Immigration or other authorities here?
MR MITCHELL: To the Minister's office and to the Minister himself, yes, I have.
COMMISSIONER OZDOWSKI: And what was the view of the Minister's office?
MR MITCHELL: Well, the Minister was very interested in the Swedish approach to what they call group homes, which is where it is only used in a very limited context in Sweden, but if you have a family that have been refused and there has been an assessment made that perhaps the father or the family may abscond into the community, a decision may be made that the father is detained at that point and the family live outside of the detention centre in a group home. The Minister was interested in that and asked for more information, which I gave him and his Chief of Staff.
He subsequently visited Sweden and the detention centre where I used to work, and came to the conclusion that, yes, it is - it certainly is a system that is fair. However, his view was that it was too generous and was attracting more asylum seekers to Sweden. But he has since implemented, as you probably know, the Woomera trial, the release trial, which is very loosely based on the Swedish group home system, because of course there are no guards surrounding women and children in Sweden in that context.
[2.32pm]
COMMISSIONER OZDOWSKI: I have got a number of other questions to you but they relate to other issues so perhaps we will finish the submission dealing with the Swedish model and we will move to the next submission. Could I ask Mr Marc Purcell and people who accompany him to enter the witness stand?
MR PURCELL: Could I ask, Dr Ozdowski, if we could just have a projector brought up, please; it might be helpful for the
COMMISSIONER OZDOWSKI: Yes, please do it. If I could ask you to take an oath or affirmation to start with.
MARC PURCELL, sworn [2.33pm]
COMMISSIONER OZDOWSKI: And could I ask you, Mr Purcell, to introduce yourself for the purposes of the record. I see, we are having some other - could you please administer the oath or affirmation to the other witness.
SARINA GRECO, sworn [2.33pm]
COMMISSIONER OZDOWSKI: And could I ask now the witnesses who joined the table to introduce themselves, to provide their address and to mention the capacity of their appearing here for the record.
MR PURCELL: Marc Purcell. I work as a co-convenor for Justice for Asylum Seekers Alliance. We are a member, as to the Catholic Commission for Justice, Development and Peace and I am Executive Officer at [address removed].
COMMISSIONER OZDOWSKI: Thank you, Mr Purcell. And could I ask you to do the same?
MS GRECO: Yes, SARINA Greco. I am the manager of the Ecumenical Migration Centre which is the Brotherhood of St Laurence, [address removed] and I am here today as one of the co-convenors of Justice for Asylum Seekers.
COMMISSIONER OZDOWSKI: Thank you very much, Ms Greco. Somebody would like to perhaps you to make an opening statement.
MR PURCELL: Okay. Thank you for allowing us to make this presentation today to what is a very important inquiry and the Human Rights and Equal Opportunity Commission is to be commended for investigating what is a very difficult issue of both policy, practice and ethics in Australia. The Justice for Asylum Seekers Alliance is a network - or an alliance of 25 non-government organisations based in Victoria, ranging from church organisations, aid agencies to community ethnic associations.
It was founded in 1999 to tackle some of the misconceptions around the then asylum seeker debate. More recently we have moved into policy development and looking at how the system might be reformed so it might better be able to respect the human rights of children. We approach the situation of detention of children from a human rights perspective, that currently children are being detained, mandatorily detained as a matter of first resort, thus violating the Convention of rights to the child, article 37.
Secondly, children are being punished by virtue of the nature of their illegal arrival in Australia, thus violating the convention of rights - thus violating the Convention relating to the status of refugees which the Menzies Government signed in 1954. And thirdly, we are violating the rights of children under the international covenant on civil and political rights because children are detained for a prolonged period without judicial administrative review and thus it is arbitrary. We wanted to talk about some of the features of our reform system.
We come from a position that in fact there are many thousands of asylum seekers already living in the community. If you arrive in Australia by plane and you have a visa and you then claim asylum you are allowed by and large to remain living within the community. In fact, the Australian Government, the Department of Immigration, supports a program through the Australian Red Cross, the Asylum Seeker Assistance Scheme, which provides a living allowance for people claiming asylum for much of the period that their claim process is going through.
So we see that it is problematic that one group of people, children, are being detained, incarcerated by virtue of their means of arrival without papers and are kept in detention for a prolonged period, when another group going through exactly the same process are living in the community. And we want to look at some ways that we can facilitate the transfer of children into the community.
COMMISSIONER OZDOWSKI: Can I stop you here for a moment?
MR PURCELL: Sure.
COMMISSIONER OZDOWSKI: And it is a question which I wanted to ask Mr Mitchell before, but you may wish to answer it. You are dealing with two groups of kids coming from more or less the same kind of circumstances overseas
MR PURCELL: Mm.
COMMISSIONER OZDOWSKI: but being given two different treatments here in Australia?
MR PURCELL: That is right.
COMMISSIONER OZDOWSKI: What I am interested is the impact on children who went through the detention system. Do you see any differences between these two groups of kids in your daily dealings with them?
MR PURCELL: I think I have to speak to the submission that my own organisation [Catholic Commission for Justice, Development and Peace] put in, not as JAS, because JAS is - our submission today is primarily concerned about how things might be done differently, but in answering your question, yes, clearly children are psychologically damaged by experiencing periods of detention.
COMMISSIONER OZDOWSKI: How do you know about it, what do you observe different?
MR PURCELL: For my own organisation we interviewed recently children - young people that had been in detention for long periods of time. They had witnessed adults self-harming and were clearly upset and traumatised by that. They were having flashbacks and were requiring ongoing counselling.
MR MITCHELL: And if I could respond as well, Dr Ozdowski.
COMMISSIONER OZDOWSKI: Please, please.
MR MITCHELL: I think working - I worked with asylum seekers in the community in Sweden - in detention in Sweden and asylum seeker children that have come out of detention in Australia and living in the community, and what needs to be really realised is the impact of the asylum seeker experience regardless of the location in terms of the impact of uncertainty, passivity, the impact of what the family is going through, how that impacts on the child. But the severity of including prolonged detention on that process really does create profound and long-term damage to children.
I have observed that myself in terms of what we have - I mean children in Sweden that have been detained for short periods manifested a variety of symptoms in terms of not eating, nightmares, depression in small children, just for that small amount of time. And certainly in the prolonged detention period in Australia in an isolated environment it would only exacerbate that.
COMMISSIONER OZDOWSKI: So what you are saying that they possibly experience some trauma at home, then during the time they were trying to reach Australia and then we are in a way adding to the impact through the process of detention? Is it
MR MITCHELL: Yes, it is being unnecessarily exacerbated.
MS GRECO: I would just add that from our work with families who have been released from detention there is another factor that I would add in and that is children having to cope with parents - how parents are handling the detention experience and so that is an additional factor.
COMMISSIONER OZDOWSKI: So you are saying the process of detention is having a negative impact not only on children but on the whole family?
MS GRECO: Yes.
COMMISSIONER OZDOWSKI: Because family may disintegrate, it is impacting in addition on children?
MS GRECO: And our observation is children who have delayed development, who have very poor socialisation skills, who don't play with toys and who are very fearful of contact with adults, that is our observation from our case work.
COMMISSIONER OZDOWSKI: And how many cases are you talking about, how broad is your experience?
MS GRECO: The centre does a small number of case work contacts a week. I would say our experience in the last six months would be four families.
COMMISSIONER OZDOWSKI: Thank you.
MR PURCELL: And just to add a specific case that was recorded by Justice for Asylum Seekers, but it has been included in the CCJDP submission, of a young 11 year old girl that was held in Woomera in 2000. She was involved in a situation where ACM - Australasian Correctional Management guards came into a closed security section of the detention centre during a protest action by the detainees; the girl was with her father, the ACM guards were wielding sticks with the apparent intention of beating the prisoners - that is the word used there - and she became uncontrollably upset.
Subsequently, she spent a further period in detention but since then she has been suffering anxiety attacks and nightmares and wetting herself. So we believe that this case is also subject to some litigation currently in Australia. We can provide further details but it is in the CCJDP submission.
COMMISSIONER OZDOWSKI: Yes, I would prefer to receive further details but on a confidential basis.
MR PURCELL: Sure.
COMMISSIONER OZDOWSKI: I return to your opening statement. I have taken you a bit away from it.
MR PURCELL: Perhaps turning to the positive, we have tried to combine and look at many of the ideas over the past decade's experience and work of organisations such as the Human Rights and Equal Opportunity Commission, the Refugee Council of Australia and overseas examples in receiving asylum seekers and processing them. And we have come up, based on this pool of knowledge, with a system which is really a package of ideas that we can - we believe would help either taken singly or in its entirety, that would substantially improve the humane treatment of children in immigration detention and immigration claims system in general.
I will just mention some of the features and then we would like to put on an overhead, just sort of show how the system works as a whole. But clearly, detention, one, should only be used for a limited time for identity, health and security checks upon arrival.
COMMISSIONER OZDOWSKI: What do you mean limited time? Would you put a period?
MR PURCELL: I don't think we need to put an exact period on it but we could look at other international examples such as Sweden, where it is six
MR MITCHELL: Two weeks initially, then two months.
MR PURCELL: Or New Zealand I think have a 28 day period, so I think there is plenty of international examples that Australia could be informed by. Detention can also be used for a person being returned to their country - prior to their return. And if a person is considered to be a high risk - a security risk to the community, and there is a very high risk of that person absconding, then a use of detention is appropriate. So we do not say that we want detention abolished. We think that it is a useful mechanism but it needs to be time limited so arbitrary detention doesn't occur and that it is managed to get people that are not a security risk out of detention, out of that environment.
Secondly, we want a monitored release regime based on risk assessment, and Grant will be able to talk a bit about that, and moving people into the community, into a variety of accommodation, depending on financial resources and the availability of housing. But essentially, open hostels such as were used - the safe havens at Puckapunyal for the Kosovars where freedom of movement was implicit - there was interaction with the community - is a good recent example of how people can be housed, services can be provided.
But for children, families in particular, church welfare agencies are already supporting them - many of those other asylum seekers that we spoke about before and they are living in the community, and welfare organisations are absolutely prepared to be able to be expanding that to families and children in particular in providing accommodation and services. Case management is a critical issue and having a case managed service provider operating within and without of detention centres. Again, Grant and SARINA will talk a bit about that.
And we also - I am referring to page 6 of our submission which has just got some of the features. We are also particularly concerned that there is one body that is charged with returning people when their claims are unsuccessful. It could be possibly a body like the International Organisation of Migration, but there are some standards put around those returns so people aren't being drugged, put on planes and then dropped off wherever.
COMMISSIONER OZDOWSKI: Do you have evidence to support that people are being drugged before they are put on planes?
MR PURCELL: I think we have some newspaper reports from that from the year 2000-2001.
COMMISSIONER OZDOWSKI: But you don't know about any cases from your own experience or from records made?
MR PURCELL: Not from my personal experience, no. I might hand over to Grant now to show the overhead and talk a little bit about the model.
MR MITCHELL: A lot of this is - I mean the Refugee Council and also HREOC was involved from '94 I think in putting together a kind of a transitional look at detention.
COMMISSIONER OZDOWSKI: That is correct, yes.
MR MITCHELL: Yes. And we have looked at, and I guess built upon, the Swedish experience, have just tried to expand that. I am convinced that what is missing in the detention system in Australia is the gap that exists between security, so currently ACM, and the Department of Immigration. There is a gap there, particularly in the isolated centres. So there is very little ongoing contact with detainees and we are arguing that a case worker system is implemented. It may be similar to what occurs in Sweden or it may be similar to the Red Cross - is current work with the Asylum Seeker Assistance Scheme which is with asylum seekers in the community.
And the point being is that that - for that initial period of processing that there can be a comprehensive assessment made of people to reassure bureaucratic decision-makers and reassure the wider community and make an individual case by case assessment so that people can then be moved into various - I mean for some people that may mean remaining in detention if they are found to be a high security risk. For others it may mean if they are security cleared they could be released on their own undertaking or released with relatives in the community, and the open hostel section of that program, as Marc was saying, similar to that kind of Kosovo freedom of movement; however, with certain supervision requirements and compliance requirements.
That is a vital issue if you look at say a family unit, say a father and - father, mother and children. If we are looking for - if people are going to need to be identity, health and security checked that will take some time and what we are saying is that ideally those people would be released perhaps in a community agency or on their own undertaking. But the reality is, of course, it can take some time for that to happen. We are arguing that an assessment panel, which is a decision-making overseeing body that is independent and between security and the Department of Immigration, can make some decisions based on an assessment where a person should be placed or transferred to, or to review the amount of time that they spend in each of those different programs.
So, for example, a family who is not Immigration cleared and cannot be released into the community may be released into an open hostel type situation. And what that means is that children are quickly removed from the detention environment - the closed detention environment. So it may well be a curfew system, it may be some way that there is some monitoring to reassure government and wider community, but to allow the children to be released into the community. It is certainly what happens in Sweden.
You are looking at a structured program which has very - both implicit and explicit supervision requirements, so in other words, people released into the community have a case worker, they - any kind of monthly assistance, any living assistance, any support is linked to them monthly - regularly going to visit their case worker. That is an implicit kind of way of monitoring or tracking people. The explicit is the role of immigration onshore protection and compliance in having a more proactive role for people released into the community that they are responsible for the implementation decisions.
So in other words, making people available on a negative decision. The Immigration Department generally knows what the final decision is going to be prior to the asylum seeker, so they can literally make a decision in discussion with the assessment panel whether a person needs to be put back in detention because the Immigration Department will know prior to the asylum seeker.
COMMISSIONER OZDOWSKI: Did your group make any cost comparisons, how much it would cost to do your way and how much does it cost to do it as we do it now?
MR MITCHELL: It is being costed at the moment. [sentence removed]
MR PURCELL: You might want to remove that from the record because I don't know whether they want their name listed.
MR MITCHELL: Sorry.
COMMISSIONER OZDOWSKI: That is fine. We had better move this sentence from the record.
MR PURCELL: But just on costing, we are undertaking costing but in the first instance some broad comments can made. It costs $120 a day to detain somebody on average, whereas for the 2691 people that were supported by the government-funded Asylum Seeker Assistance Scheme last year, it cost around - less than $200 a week to support a person in the community. So it is that ratio clearly of having people in the community, it is about four to one or something; it is much, much cheaper.
COMMISSIONER OZDOWSKI: Could do some savings.
MR PURCELL: Red Cross supported 2691 people on 89 per cent of the Centrelink benefit last year but that program ran at 11 million dollars as compared to - I don't know how much it costs to run the detention centre program each year for 3000 or 4000 asylum seekers that are detained, it may be one hundred and fifty million, so it is big savings.
COMMISSIONER OZDOWSKI: Thank you.
MR MITCHELL: Just in terms of - I mean we have really looked at the issue of absconding and we have tried to explore that in its international context and I know there has been a lot of discussion recently about what is happening in England. If anything, the rate of people supposedly absconding in - not being returned in England identifies the gap that exists there for comprehensive case management and for their very, very ineffective return system. We have been looking at how this model can be very outcomes based, preparing people for settlement and return, preparing people to more easily integrate into the community and to more effectively and humanely facilitate return.
And part of that is reassuring the asylum seeker and part of that is reassuring the wider community and that is why we have looked at how to have a risk assessment that is comprehensive and that addresses all of those issues and we have divided that into three things: the risk to abscond, the risk to self and health, and also community risks around security and so on. And that is - I know it looks like it is - and the argument could be, well, that will just - if that needs to take place before people can be released that will just prolong their time in detention.
We are arguing, for example, that health and security checks which currently take place after an asylum seeker has been granted refuge status and immigration detention, be brought back to when they first arrive. So in other words, what is happening at the end of
COMMISSIONER OZDOWSKI: I understood that some time ago, possibly around March last year, all three processes were matched together.
MR MITCHELL: No, well
COMMISSIONER OZDOWSKI: It is not your understanding that that is the case?
MR MITCHELL: My understanding and those that we have been working with have - it is at the end - prior to - I mean part of the reason that some asylum seekers are remaining for longer periods than necessary in detention, after being found to be a refugee, is due to security clearance which can take a very long time and has been much longer post September 11. We are arguing that that could occur right from arrival and that the case worker facilitates some of that process, so there is someone in the middle ensuring that there is a comprehensive health and mental health assessment and that also there has been some work done on - kind of an assessment on the risk to abscond which is always difficult.
There is always a margin that people may abscond into the community, but given that people will have adequate identity, health and security checks the wider community should not be unduly concerned, given that there has been that assessment that has taken place. So we have been trying to look at also how the starting point to detention, which I can say in Swedish terms is - the starting point is to make this assessment for the wider community's well-being and also to expedite the process. It is not that detention is used as a deterrence; there is no evidence.
We have been doing a lot of research and trying to find if there is any evidence that detention deters, and it doesn't, because it can't be compared to the experiences of people in the home country and those issues that have pushed them and forced them to arrive the way they do.
COMMISSIONER OZDOWSKI: How would you explain in this case that there was no boat arriving for last, I think, five months; it is what Minister Ruddock is saying?
MR MITCHELL: Well, one thing I can say, I think there is a difference between push backs to detention. Mandatory detention has stayed the same for 10 years in Australia and, if anything, the number has increased. The only thing that really has changed the number of arrivals has been the push backs.
MR PURCELL: Military
MR MITCHELL: Yes. So detention in itself as - I mean if that is going to continue that is one thing, but mandatory detention - unreviewable mandatory detention in itself does not deter, and it hasn't.
COMMISSIONER OZDOWSKI: Do you have some more evidence to support what you are saying? Do you have some analysis prepared - well, some other examples?
MR PURCELL: Put it this way. We have spoken with the Immigration Detention Advisory Group and asked them what evidence they had that detention deterred and they said they had no evidence and that they hadn't had any evidence provided by the Department of Immigration. So maybe there is some evidence sitting around in a filing cabinet somewhere in DIMIA but it hasn't seen the light of day yet.
MR MITCHELL: And we haven't been able to find any international evidence that detention deters.
COMMISSIONER OZDOWSKI: So what you would say that the claim by the Department that boats stopped coming it is because of the tough detention policy doesn't have any validity to it?
MR PURCELL: That is right, it is part of the military interdiction of our coastlines that has caused people to stop coming in this instance. Just a point on absconding as well. It is also another area where there is really no - very little evidence to show that people abscond. One piece of evidence that we have from DIMIA shows that between 1996 to 1998 nobody on bridging visas - asylum seekers on bridging visas released into the community absconded. There was 100 per cent compliance.
COMMISSIONER OZDOWSKI: There was a statement I think to the Senate about two or three months ago by Senator McKiernan who returned from a trip to the United States and if I remember correctly he was saying that there were about 800,000 people on the run in US and - perhaps I will stop here. I am not sure exactly what implication he was drawing out of it.
MR PURCELL: Could I say that those international comparisons are not very helpful for the Australian situation, as you would be aware, the American economy has a large illegal migrant labour force, which is unofficially tolerated, particularly in California. In Australia, as I said, the figures from DIMIA showed that for people in the community there is a high compliance rate. 100 per cent in one instance for Bridging Visas. But there are two types of compliance that we are interested in, in this model. One is implicit incompliance. And the other is explicit. As we have said, there are thousands of asylum seekers living in the community already, and the Department of Immigration has no problem with their compliance. It is able to monitor them.
Now, how is that so? Well, either there is explicit compliance. There is a reporting requirement to DIMIA. And we support that. And we say that this is part of the system of releasing people from detention, that you can expand that. But secondly, Australia has a wealth of experience with compliance in its criminal justice system, on parole systems, for example, and bail officers - bail hostels. So we have the resources and the knowledge in Australia, if we look at our local examples. Implicit compliance is that (a), asylum seekers have a vested interest to becoming legal citizens in Australia, so they want to see the process through.
So the people that are living in the community remain in the community because they want to go through the processes to get a good outcome. As Grant has pointed out, the Department of Immigration are always going to know before that person if they are unsuccessful ultimately. And that would be the time, at the level of Ministerial appeal, or High Court, to remove that person, or the father, back into detention if it is a family. Other forms of implicit compliance are that if people are released on Bridging Visas they are generally destitute. They don't have any rights to Medicare, so they are reliant on agencies like Grant's for their livelihood, otherwise what are they going to do? Starve.
Secondly, if they are on programs such as the Asylum Seeker Assistance Scheme they are supported by the Australian Red Cross, and they get some benefits. So again, they report in to Australian Red Cross, which is another form of implicit compliance. So really, there is an existing system already for asylum seekers in the community that prevents absconding and supports them. And it is there already. We just need to examine how it could be - it probably can be enhanced, but it is there. It is operating.
COMMISSIONER OZDOWSKI: Thank you. Do you have any further presentation or
MR PURCELL: Do you want to talk a little bit about just how the
MR MITCHELL: It is quite complex. I think what Mark was saying that - I mean, one reason why, and I will speak from Hotham Mission's experience. We have been involved in some negotiations with the Immigration Department and Department of Human Services about unaccompanied minors. And one case in particular being released into our care. So we were putting together a community care plan. The challenge with that, as Marc said, if people are able to be released on a Bridging Visa E, of course it will tend to be deemed in the child's best interest to be in an environment where they are going to have access to medical and other basic living assistance.
That is why, very implicit in this is the requirement for work rights, Medicare, living assistance for all asylum seekers. There was a rule - the Immigration Department in September last year introduced a rule in the Asylum Seeker Assistance Scheme program agreement that any asylum seeker released from detention on a Bridging Visa would not be entitled to the Asylum Seeker Assistance Scheme program. So that has excluded some children as well, children that have been released, that could be accessing that system - that program. There are issues like that that I think need to be addressed, and they need to be bridged in order for us to realistically look at how people can be released into the community.
Community agencies like Hotham, while we are like a model of how I believe it could be, it is terribly under-resourced and doing a whole lot of work which is essentially Commonwealth responsibility. We have also outlined, and it goes into quite some depth and maybe we don't have to go into it, but just how a community release program would work, and how there would have to be a lot of co-operation between Commonwealth and community groups, and between Immigration Department and agencies and
MR PURCELL: State government.
MR MITCHELL: State government as well. So, in terms of Hotham Mission's work in working with this group of people there is an incredible amount of goodwill in the community to support asylum seekers released in this category, given that they are also released with no rights and entitlements. And I certainly feel that implementing a structure like this, with adequate Commonwealth funding, would certainly be able to benefit all asylum seeker children that are in detention, and all asylum seekers in Australia, really.
COMMISSIONER OZDOWSKI: Yes. Thank you. I think we are slowly starting to run out of time. As a matter of fact we ran out of time allocated. But I would like to ask my Assistant Commissioners to put questions to you if they have got any.
ASST COMMISSIONER THOMAS: I am all right.
ASST COMMISSIONER SULLIVAN: I think I am right too thanks.
COMMISSIONER OZDOWSKI: What about counsels assisting? Any questions? So, could you please make the final statement, if you choose so?
MR PURCELL: Currently we are looking not at just the costing, but also how the State governments can expand their existing programs for unaccompanied minors who are granted TPVs to unaccompanied minors that might be released on Bridging Visa Es. That is, that their status determination process is not complete and we are undertaking those discussions with the State government. But I think the State governments have a very important role to play as well. But, just to point out that many of these concerns about, we don't have an ID card in Australia, are really irrelevant. Because many asylum seekers, thousands, have been living in the community, being processed by the Department, and the Department feels comfortable with that.
So if the processing can be speeded up for people that arrive in an unauthorised manner, and particularly for children and their families, those identity, health and security checks can be done, then I think a lot of this situation of children's development being damaged in detention centres can be quickly solved. Thank you.
COMMISSIONER OZDOWSKI: Thank you very much to Justice for Asylum Seekers Coalition. And I would like to acknowledge your submission. It was certainly a very well done submission, worth reading. Over 60 pages if I remember correctly. However, we will be working on the report for the next few months. If there is any evidence you would like to put forward, please send it to us.
MR PURCELL: Thank you.
THE WITNESSES WITHDREW [3.08pm]
COMMISSIONER OZDOWSKI: So now I ask for a - we will take a break for 15 minutes.
SHORT ADJOURNMENT [3.08pm]
RESUMED [3.25pm]
COMMISSIONER OZDOWSKI: Could I ask you for your attention. The hearing is back in session, and I would like to invite Mr David Manne from Refugee and Immigration Legal Centre to come to the table. Mr Manne, could I ask you to take an oath or an affirmation please?
MR MANNE: Yes, an oath.
DAVID MANNE, sworn [3.25pm]
COMMISSIONER OZDOWSKI: Could I ask you to state your name, address and capacity you are in here, so we could have it for the record?
MR MANNE: Certainly. My name is David Manne, and I am in - I am here in the capacity of Co-ordinator of the Refugee and Immigration Legal Centre, which is located at [address removed].
COMMISSIONER OZDOWSKI: Thank you very much. And now I would like to ask you to make an opening statement. In this statement, in particular I would like to ask you to state your credentials. I would like to know for the record how you were involved with refugees and children in particular. As you know, this inquiry is focussing on Australia's international obligations being undertaken to protect certain rights of refugees. And the responsibility of this inquiry is to assess whether Australia is doing it. So if you could focus on that issue. We are also interested in long term impact of detention of children. If you have any expertise in this area you are also invited to address us on that.
MR MANNE: Certainly. Well, I would like to begin by thanking the Commission for the opportunity for the Refugee and Immigration Legal Centre to give evidence at this hearing. My professional qualifications are as a lawyer and registered migration agent. And, just very briefly, I thought it worthwhile to outline the Refugee and Immigration Legal Centre's, if you like, history and what we do. The Refugee and Immigration Legal Centre is a community legal centre and we specialise in all aspects of refugee and immigration law, policy and practice.
We are also a contractor under the Department of Immigration and Multicultural and Indigenous Affairs Immigration Advice and Application Assistance Scheme. Otherwise I will be referring to that as the IAAAS Scheme. And we visit a number of immigration detention centres throughout Australia. Have done for quite some amount of years. That includes the Maribyrnong Detention Centre, and RILC, and as it was formally known, the Refugee Advice and Casework Service has been also visiting the Port Hedland Detention Centre. And also the Curtin Detention Centre. We have substantial casework experience in acting for asylum seekers who are detained in immigration detention, including unaccompanied minors and children with their families. And
COMMISSIONER OZDOWSKI: You visited some of the centres yourself?
MR MANNE: Yes. Yes, indeed. I have indeed visited Maribyrnong Detention Centre, Villawood, Curtin and Port Hedland, personally.
COMMISSIONER OZDOWSKI: So you have first-hand knowledge?
MR MANNE: I do indeed.
COMMISSIONER OZDOWSKI: Thank you.
MR MANNE: Yes. As do others within the organisation, over the quite - quite some period. Substantially our role in terms of visiting the detention centres has been to provide legal representation and advice. Just by way of a very brief opening, given our direct experience as an organisation in advising and representing unaccompanied child minors, and also children with their families in detention, the main focus of our submissions, what we would like to primarily focus on, is legal aspects and implications from a practical rather than a theoretical viewpoint.
Clearly, there are many other aspects and issues that are relevant to this inquiry including health, developmental, psychological and welfare issues. These are clearly critical. They are also things that RILC has direct experience in, in terms of seeing the impact on a number of our clients. However, they are not within our direct, if you like, knowledge and experience as experts in that area, so we thought it best to leave that to others. I would just like to also begin by commenting that RILC has strongly opposed the mandatory non-reviewable detention policy and practice in Australia for many years.
We have argued that Australia's current laws, practices, and the like in relation to mandatory detention offend against numerous human rights law principles and guidelines to which Australia is a party, and have provided that information to the Commission on a number of occasions, including making individual complaints in relation to some of our clients. Why I mention that is that, put simply, whilst the detaining of children is perhaps the worst outcome or consequence of the mandatory detention system, we would in no - by no means want to be suggesting today that it is only children whose rights are, if you like, denied by being mandatorily detained in Australia.
However, in our experience, certainly the detention of children in Australia is perhaps the most disturbing and acute aspect of a system which requires urgent reform. In short, our submission is that the current arrangements for detention of children in Australia fall conspicuously and depressingly short of meeting our international obligations to act in the best interests of the child, which is clearly the guiding principle on this issue. The relevant rights set out in international laws and guidelines recognise the distinct vulnerability, and the need for protection and care of children. The current arrangements for detention of children in Australia in many respects do not meet those basic requirements. In our submissions we are focussed primarily to date on unaccompanied minors, and in particular, certain aspects of the legal system which applies to them in detention.
And I understand that the Commission is aware of those, the summary or outline of our submission, so I don't propose to go through them in any detail now, but would be happy to answer questions.
ASST COMMISSIONER THOMAS: I just have a question. Your Centre
MR MANNE: Yes.
ASST COMMISSIONER THOMAS: Are you funded by - apart from your contract with DIMIA, do you have any other financial funding support from somewhere?
MR MANNE: Yes, we do. We also - part of our funding is provided through a contract with the Department of Immigration.
ASST COMMISSIONER THOMAS: Yes.
MR MANNE: The IAAAS contract. However, our organisation is also funded by way of certain grants by philanthropic organisations. And we also run special courses for those who want to become registered migration agents, so we play quite a significant role in terms of educating and assisting people to become migration agents, as well as doing other legal education, for which a fee is charged.
ASST COMMISSIONER THOMAS: Thank you.
MR MANNE: I should also note that in terms of our casework and advice, that the funding, as always, is limited, through the Department of Immigration. And we do a considerable amount of what you would otherwise call pro bono work. And that includes pro bono assistance to those in detention. Including children.
COMMISSIONER OZDOWSKI: The Minister of Immigration is a guardian to children who are in immigration. And I would just say at the same time he is also the Chief Commonwealth Officer responsible for control of our borders. Could you tell me how this guardianship role, in practice, does work?
MR MANNE: Yes.
COMMISSIONER OZDOWSKI: Does it really serve interests or children in detention?
MR MANNE: Well, I guess the nutshell of our argument is that if the Minister for Immigration is the legal guardian of children in detention - unaccompanied children in detention, it in essence poses what we would call an untenable and unworkable situation. Where there is a conspicuous conflict of interest. And that conflict of interest can be summarised by saying that there is, on the one hand, the interests of the State. And on the other hand, the interests of the individual. And in this case it happens to be an individual who is also under the age of 18.
I guess in terms of the - so, there is necessarily built into the system an inherent conflict of interest, we would say, which is untenable, is unresolvable. And which unfortunately, in practical terms, has the consequence of many undesirable results for the particular individual involved, the child. Would the Commission like me to expand a bit on that? Some of those undesirable
COMMISSIONER OZDOWSKI: Yes, yes. Yes, I would like to.
MR MANNE: Yes.
COMMISSIONER OZDOWSKI: Especially I would be interested to what extent the guardian is fulfilling its role in providing representation for children. And I would be also interested if you have any views on alternative arrangements.
MR MANNE: Yes. Well, in practical terms, from our experience and from our knowledge of the experience of others, in practical terms what happens, for instance, if we are talking about an unaccompanied minor, for instance, in remote detention is that clearly, the Minister is not able to be present as the legal guardian on site. And so what happens is that there is effectively a delegation to another Departmental officer, an officer of the Immigration Department on site. Our experience is that, in effect, the delegation is a direct delegation, whereby an officer of the Department of Immigration is appointed to, in effect, be the guardian of the child on site.
I would also say that in a more informal sense that there is a further delegation, but an informal delegation to officers of the Australian - or officers of ACM. Who would perform certain functions in relation to the care of the child in detention. Some of the - I guess I would prefer to speak mainly from the perspective of the legal adviser. Some of the outcomes of this practice are, in our experience, completely unacceptable and untenable. One of them is this. That if we are to go and prepare a protection visa application or an unaccompanied minor, that unaccompanied minor not only has to provide instructions to that legal adviser in confidence about their claims for refugee status, but in addition has to sign a statutory declaration that the contents are true and correct, etcetera. One of the practical problems that is faced by advisers is that in doing so there is no person who has a truly independent role accompanying the child, being there to assist with the preparation of the application. I can perhaps be even more particular and throw up a scenario. For instance, if I, as adviser, am faced with a situation with a client where some of the evidence that has been given to me, or some of the instructions that have been given to me, appear to be somewhat problematic, or indeed, just to require me to sit back for a second and reflect.
Well, this is - and give some advice on the legal implications of that, of what is being said. For instance, whether that - that child might be starting to get into the realms of having a third country that they might be able to go to, or something else that might affect their claims quite seriously. At present there is absolutely no-one with an independent - with a true independence who accompanies the child, and for whom their legal adviser can discuss these matters. It is highly unconventional in law for this to occur. And means that, at the end of the day, quite simply, sitting in the one room is an interpreter, a legal adviser, and a child, on what are, you know, quite - put simply, what are life and death matters that are being given instructions on.
ASST COMMISSIONER SULLIVAN: Where would you source these independent friends from? What would be the best source?
MR MANNE: That is an area where it is - that is an area where I am not an expert. It is not my expertise, that - to, sort of, I guess pontificate on who are the best guardians. But I am certainly aware of the fact that in other countries there are other arrangements that are made. One idea could simply be that the particular State - State or Territory that is involved, could provide a guardian through their child welfare agency. And, in that regard, I guess the simple point to be made is that there are plenty of people in State or Territories throughout Australia who have expertise in this sort of thing.
It may be that it could be that a religious leader, or leader from a particular community, which is obviously relevant to the child could be appointed. And I guess there are various other alternatives. Non-governmental agencies have had, I know, a great deal of experience in terms of dealing with and making arrangements for - and making arrangements for guardianship outside of detention. And, in my view, there is absolutely no reason why that couldn't be done. It would be a different situation if we were faced in Australia with the fact that no-one was interested or had expertise in these matters. But the fact is, we do. And it is clear and compelling that it needs to happen.
COMMISSIONER OZDOWSKI: Now, do you know of situations, or a situation, where these existing arrangements for guardianship resulted in, let us put it this way, not fully considered outcomes, or negative outcomes?
MR MANNE: I guess it is almost a - I get the drift of your question. It is almost an unanswerable question at the end of the day, because of the depressing reality that we don't have - we don't have a model to compare with, if you like. We don't have the model where I could say, well, in one case there was an independent legal guardian, and that facilitated me being able to give advice which resulted in X outcome. What I could say is that there is a very real and present danger of a negative outcome where there could have been a positive one, in these circumstances.
And it is simply because, in not having that independent person it is not possible to fully get instructions and fully provide advice. Particularly if the unaccompanied minor is someone - is a child who doesn't fully comprehend the consequences of what is happening, or what they are actually saying. I should also note in this area it is particularly important - it is important in all areas of law for independent guardians to be appointed in our view. Particularly important in this case where you are talking about a lot of other issues being in play at the same time. Different cultural issues. Different issues that might impact on the child, given torture and trauma experiences, etcetera.
It takes a long time to build up trust with a client, whether adult or child. And in this case, we would also see the important of an independent person facilitating that sort of open or free flow of information. Which incidentally, can I just make one other point, I would see as a benefit for the Department of Immigration themselves in making a proper, correct assessment of a claim. Surely that is what we are all in the business of doing. Not sending people back when we shouldn't be.
MS LESNIE: Yes. It is my
COMMISSIONER OZDOWSKI: Now when - okay.
MS LESNIE: Yes. It is my understanding that legal assistance is not provided to asylum seekers unless it is specifically requested. In the case of unaccompanied minors, in your experience, who has made that request? And are there any examples you know of where unaccompanied minors - lawyers have not been requested on their behalf.
MR MANNE: I know - happily I know of no circumstance where an unaccompanied minor has not been provided with legal advice and assistance under the IAAAS scheme. So, to that extent, no. I know of no circumstance. I also - I am not aware of the precise process in which people have been given legal advice or - sorry. Given the availability of legal assistance or advice. But my understanding is that the Department of Immigration for - especially for those who arrive without authorisation are documented by boat, that it is standard practice to actually provide people with legal advice once they arrive. I should, however, say that there - we are aware of instances where legal advice has not been provided in what I would call - what I would call promptly. There have been some irregularities in the process, but I should say that I am not aware of any unaccompanied minor, or any child who has not been provided with legal advice and assistance. The question of how quickly it has been done is another question altogether.
MS LESNIE: Can you given an example of an instance where you considered it not to be prompt - to be prompt?
MR MANNE: I would prefer to take that question on notice.
MS LESNIE: Okay.
ASST COMMISSIONER THOMAS: I assume you have represented children many times.
MR MANNE: Yes.
ASST COMMISSIONER THOMAS: So if a case is rejected, and the appeal goes through to the Tribunal and up to the Federal Court
MR MANNE: Yes, yes.
ASST COMMISSIONER THOMAS: do you usually follow through the case, representing it every level?
MR MANNE: The Refugee and Immigration Legal Centre does, as a matter of practice, follow through to the Tribunal level, and we provide full representation at the Tribunal. We don't - our centre does not provide representation at the Federal Court for any clients. But we do, at the Federal Court level, if any client, and especially minors, are interested in getting advice in relation to Federal Court appeals, we certainly facilitate that. But we don't go on the record in relation to those.
We take the view at our centre that an unaccompanied minor who, for instance, has been rejected the Refugee Review Tribunal, ought to avail themselves of legal advice in relation to a Federal Court appeal. Or indeed, we also provide advise as to whether they ought to make a request to the Minister under section 417 of the Act to seek humanitarian intervention.
ASST COMMISSIONER THOMAS: And who pays for all of these, you know, the cost of all of these appeals, in terms of legal advice? Do you provide them free of charge or
MR MANNE: We don't charge for any of the legal work we do. Part - some of it is funded through the IAAAS scheme, and some of it is provided pro bono, since it is purely pro bono advice. And I am not aware of any circumstance where an unaccompanied minor who has appealed beyond the services that we provide, to the Federal Court, that they have been charged for that work. There are, happily, a small but very energetic and excellent group of barristers who are prepared to step in and assert people's rights properly, so - and it is done for free.
[3.45pm]
ASST COMMISSIONER SULLIVAN: Have you had occasion to ask other adults involved in the process to use more child-friendly language/manner/approach to the issues you are dealing with?
MR MANNE: Sorry, can I
ASST COMMISSIONER SULLIVAN: Yes. I guess it is the issue of child-friendly processes, and I guess through your representing children, you would be aware of what I am talking about in terms of language and process.
MR MANNE: Yes.
ASST COMMISSIONER SULLIVAN: Are there elements of the current process that you would say are not child-friendly in those terms?
MR MANNE: Yes, there are.
ASST COMMISSIONER SULLIVAN: Could you give some examples?
MR MANNE: Yes. Our - I guess our organisation has, at times, been very concerned about the way in which the determination process is operated at both the departmental and RRT level in terms of the approach to children. I should say that it is uneven, it is inconsistent, and that is a result quite simply in my view of first and foremost not having proper guidelines for the assessment of the claims of children.
For example, we are aware of the situation where there is - in a departmental interview for the assessment of claims, there is a standard preamble that is generally read out by a departmental delegate who is delegated - has a delegated power from the Minister to assess the claim. In that standard preamble generally there is a time at which the applicant is warned that - with words to this effect: "You should be award that under Australian law, that if you tell a lie, that that could involve a penalty of 10 years imprisonment."
We are aware of circumstances where unaccompanied minors have indeed been told that with no further explanation as to the laws in Australia. I have taken the opportunity to go and speak to a criminal lawyer with more expertise in these matters about this and I might just make a suggestion on that situation which was told to me by a very senior criminal lawyer in Victoria, and that is that he said that if this was done properly and was technically correct, perhaps a better explanation would be this, that: Under Australian laws, there are sanctions for telling false or misleading information when you sign a statutory declaration and that could attract criminal law sanctions, but firstly it would require that the Department think it is a lie what you said, then it would involve the Department investigating whether it was a lie, then it would involve thirdly proving it is a lie, then it would involve negating arguments to the effect that there was no requisite intention to tell the law, and finally would involve a jury needing to be satisfied beyond reasonable doubt that a child of the age of 14 should be found guilty of telling a lie under statutory declaration.
Now, beyond that, it might be better to tell the unaccompanied minor also that it is extremely unlikely, even if guilt was proven, that it would attract a penalty of imprisonment, let alone 10 years. Regrettably, there have been situations that we are aware of where none of that has occurred, but in fact all that has occurred has been to tell the child if they tell a lie, they could be imprisoned for 10 years.
ASST COMMISSIONER SULLIVAN: And is the written documentation they get of a similar high tone?
MR MANNE: Documentation such as?
ASST COMMISSIONER SULLIVAN: Well, I am not aware of what documentation a child might be given
MR MANNE: Sure, yes.
ASST COMMISSIONER SULLIVAN: but I notice for example in your contract you are to give regular updates to the children and young people about what is going on, and I wasn't sure whether that is given verbally or in writing, and I am trying to get a sense of whether the child will clearly understand
MR MANNE: I understand.
ASST COMMISSIONER SULLIVAN: either orally or in written form what is going on.
MR MANNE: Yes. Well, in terms of updates, I guess the normal requirements are to provide for both the Department indeed and for the adviser to provide up updates in relation to the claims. One of the concerns in relation to the system, and again this relates to not having an independent legal guardian, is that quite a few of the updates - or all updates need to be given basically - or occur between the adviser and the client. It is not possible to have an independent person, again for the reasons that I have already suggested.
I should, however, say that there is another aspect to all of this which happens on a more informal level, and that is the Departmental delegate who is effectively the guardian in detention, in our experience generally - and I would say they are - I could only think that they are in a very difficult position, but quite often do do as much as they can to actually facilitate progress, and that sometimes includes making a phone call on behalf of the unaccompanied minor.
The real problem, however, and the dilemma that is faced given the systemic nature of the problem, is that neither the Departmental delegate nor the adviser can feel properly comfortable in discussing certain aspects of progress of things that are confidential to the claim, things like, for instance, look, you know, the Department have a concern about the consistency of your claims, we need to discuss this quite frankly and openly. Those sorts of things there are massive constraints on, which mean that at the end of the day again you are stuck on a phone as an adviser in Melbourne speaking to an unaccompanied minor who is by himself in a room, getting instruction or giving progress through an interpreter who is generally in another state of Australia linked up.
It again is a highly undesirable situation and where I - you know, I wouldn't want to be pointing fingers at Departmental delegates who are stuck in that situation because it is a situation that is inherent in the system itself and I should say that our experience is that on occasions Departmental delegates go as far as they can, but continue to be embarrassed by the inherent conflict of interest themselves.
ASST COMMISSIONER SULLIVAN: My final question is are those Departmental delegates given any formal training in this process?
MR MANNE: My understanding is there is some form of formal training, but I am not aware of the details of it, yes, in specific terms and I - yes.
ASST COMMISSIONER SULLIVAN: Thank you.
COMMISSIONER OZDOWSKI: Could I ask you about two things. First thing is about your access to client, how easy is it to access your clients in detention.
MR MANNE: Yes, well, access to detention in Victoria is - to the Maribyrnong Detention Centre is - we do not generally experience any problems in relation to access to clients in detention in Maribyrnong. We experience considerable problems in terms of access to our clients who are at Port Hedland or Curtin Detention Centre because of the tyranny of distance, if I could call it that, which means that - I guess without - I am not at liberty unfortunately to discuss the contract between the Department of Immigration and our organisation, but to say that it would be out of the question for us to be flying up with any regularity to Curtin or Port Hedland because our centre would have to close down within a few weeks given the costs involved.
So in terms of access, our access is generally by phone and by fax, and our access, I have to say, is pretty good. Our experience is that the Department of Immigration in both of those detention centres does all that it can to facilitate access and I have had situations where I have needed to speak to a client, an unaccompanied minor, very quickly, and that has been facilitated, you know, within a matter of 10 or 15 minutes. So I don't believe, certainly for our organisation, that access is restricted in any way other than through again a highly undesirable system whereby people are detained in remote areas of Australia, and it is particularly undesirable when regard is had to the fact that if there is n independent guardian, and the legal adviser is really the one pursuing the rights of the child, that there can be very little contact face to face.
I should also add to that that my experience of getting instructions from a child face to face as opposed to the phone are vastly different experiences. The quality of instructions face to face is vastly superior to getting them over the phone.
COMMISSIONER OZDOWSKI: In terms of exchange of faxes between your client and you, you didn't experience any difficulties?
MR MANNE: We have - no, we generally don't experience any difficulties. I couldn't say that we do. What I could say and what our organisation has raised as a concern a number of times is that in our view it is entirely inappropriate for facsimile communications between client and adviser, whether a child or an adult, to be coming through the same place, that is the Department of Immigration fax line, and being passed by the Department of Immigration to the client. In our view, we would strongly advocate that there be an independent body set up in detention, a communications centre with an entirely - run by entirely independent people to handle that situation, given the sensitive nature of information that is passing between client and adviser.
I will give you one example of why that may be particularly important. If, as is becoming, you know, conspicuously apparent, there are serious situations going on in detention such as self-harm issues, such as potential breach of people's human rights or violations of their rights, the situation where the only way they can communicate by fax is by giving the Department of Immigration a copy of the complaint and then it being put on the fax machine, is not likely to allow people full and free access to communicate with the outside world.
COMMISSIONER OZDOWSKI: What about interpreters? Possibly you need to use them for most of communication; how easy is it for you to access them?
MR MANNE: Again for almost all of the communications with our clients, we do use interpreters. Access to interpreters is readily available. I have only had one instance where I couldn't get a relevant interpreter on line for about an hour. Generally you can get them straight away.
COMMISSIONER OZDOWSKI: And you are organising them?
MR MANNE: Yes, we do.
COMMISSIONER OZDOWSKI: What happens if a client tries to contact you from a detention centre; who organises an interpreter?
MR MANNE: With unaccompanied minors, generally that is facilitated by the Departmental delegate who is responsible for their care in detention at the detention centre. Generally they would set up an interview by calling you themselves. The situation, of course, with those clients who are not unaccompanied minors is entirely different and very ad hoc. Most of the time, if they want to call, they would firstly need to have a phone card; quite a few of them do, quite a few of them don't. If they have a phone card, then they would need to generally find someone in the detention centre who does speak some English and also their language and to call you.
Otherwise, what we try and do is to ask them to call our direct line; we always give them our direct line and they can call that and say their name and then we try and call them back. But it is different for unaccompanied minors in our experience.
COMMISSIONER OZDOWSKI: Was your office ever contacted by detainees on Cocos Island?
MR MANNE: Yes.
COMMISSIONER OZDOWSKI: There was one occasion or
MR MANNE: Yes, it was yesterday.
COMMISSIONER OZDOWSKI: Well, must be a very lucky occurrence, because when I visited it some time ago there was only one telephone there for all the people involved, including Immigration, ACM and so on.
MR MANNE: My investigations yesterday in response to the contact were exactly that, there is one telephone.
COMMISSIONER OZDOWSKI: Thank you. Just last questions because we are slowly running out of time
MR MANNE: Can I clarify something on the record there, that why I paused in relation to Cocos Islands is that the contact was actually not made from Cocos Islands, it was actually made from Christmas Island.
COMMISSIONER OZDOWSKI: Christmas. On behalf of somebody on Cocos?
MR MANNE: In relation to some who - I haven't clarified yet because I haven't spoken to these people, I have made a request to, but my understanding is they may well have been at Cocos Island at some point, some of them. I don't have the full story yet so I couldn't be certain as to what it is. Yes.
COMMISSIONER OZDOWSKI: Yes, thank you. Now, coming back to guardianship; when they are released from detention because of one or another kind of a visa, they, as I understand, go into state guardianship. Do you have any experience with it, how it works?
MR MANNE: Yes, we do, we have considerable experience. At present we are actually acting for quite a number of unaccompanied minors who have been released on temporary protection visas to Victoria, and effectively they go into the care of the Department of Human Services directly, and we have had some considerable experience in that in terms of providing legal advice and assistance with the preparation of further protection visa applications. I guess our experience
COMMISSIONER OZDOWSKI: So you would be acting in this situation for a state government possibly?
MR MANNE: Yes, in effect.
COMMISSIONER OZDOWSKI: Yes, a state government will be paying your bills, so to say.
MR MANNE: Yes, without going into details, yes.
COMMISSIONER OZDOWSKI: Yes. How does it work?
MR MANNE: Well, our experience at the moment is that it works by way of the unaccompanied minor would be released to the State of Victoria. The Department of Human Services would make arrangements for their accommodation and care, and I think that those arrangements would vary to some extent depending on how old the actual child is. But in a general sense they would make arrangements for their housing, schooling and other care issues.
Most of our clients are actually attending schools in their local area and seem to be going very well, and as part of that there has been a recognition that as part of, I guess, the guardianship responsibilities, that they ought to also have legal advice and assistance and that is where we come in. Effectively, what has been happening, it has been an excellent - a really excellent development actually I have to say, and I think - from my understanding, the State of Victoria has taken the lead in this, that they are provided full legal representation in relation to their immigration matters, we are providing ongoing representation, so it is not just one-off in the sense of we prepare an application and that is it.
So effectively they have legal representation on an ongoing nature in relation to their further application for protection. Given that they are on a three-year visa, that is quite a substantial undertaking. Just in nuts and bolts terms, officers at the Department of Human Services assist in making appointments for clients, they actually bring them along to each session, so they go and pick them up and bring them to our office, and stay - remain there and then take them to where they need to go, and also assist with various forms of communication for arrangements and also assist with providing interpreters where necessary.
COMMISSIONER OZDOWSKI: Any problems with them changing address without notifying the authorities?
MR MANNE: Yes, there have been some issues in relation to that, but again given the network in terms of the Department of Human Services, ourselves and other agencies effectively all chipping in
COMMISSIONER OZDOWSKI: So it was possible to locate them?
MR MANNE: Yes, they have not been unresolvable at all, yes. I guess I mean once - I guess there has been a bit of interstate travel at times and tracking people down, but generally it has been fine.
COMMISSIONER OZDOWSKI: Thank you. Any - further? Could I in this case ask you to make a concluding statement if you wish?
MR MANNE: I guess there are just - actually in terms of the concluding statement, I think that my introduction probably dealt with our conclusions in relation to the issue. One thing that wasn't raised today, but which I would like to raise in conclusion, is that at the moment we are faced with a situation of children in detention which needs urgent reform at its roots. The policy at the moment means that the presumption is detention and the exception is release. This is perhaps in practice - not in policy and law - but in practice there has been some recent change.
I do note that there has been more of a practical tendency to release unaccompanied minors in recent times from detention and there are very few, if any, remaining in detention now, but nevertheless, what remains in Australia is a system which not only mandatorily detains adults, but children. It is absolutely and abundantly clear in International Law and policy that detention should only be used as a last resort for children. Our experience in this country is that is not the case, the presumption has been to detain. The difficulty of actually getting unaccompanied minors - children released from detention tell us that the presumption certainly is detention with some exceptions, that we have had some reasonable progress recently.
But I should say one other thing; our experience in terms of the release of children from detention shows that there are no reasons whatsoever why it cannot be facilitated. In our experience, we have not noted any circumstance where it has not been in the best interests of the child to be released, and we are working very closely with agencies with expertise in terms of care and welfare of children once released, including Hotham Mission.
COMMISSIONER OZDOWSKI: The Minister is often saying that he cannot release children because it is in the best interests of children to stay with their parents, and the parents have got to stay in detention.
MR MANNE: Yes. Yes, well, one of the fundamental issues in relation to the best interest of the child is also not being exposed to an environment which could cause them harm. I don't need to speak or to lecture you on the problems that we face in detention at the moment, but clearly there is a culture of where self-harm has become a norm in detention, where there have clearly been lots of other problems, problems which are caused again in our view by the system that we have.
The best interests of the child, whether with a family or unaccompanied, in our view cannot be to remain in an environment as problematic as that. And indeed, our other view would be that in relation to - and I would like to provide the Commission with some further written materials on this, but if the presumption was that children ought not be, as a presumption detained, surely the principles of family unity would require that if a child is not to be detained because it is harmful, then also families of those children ought to be released with those children. That would be our basic position.
I should say that we are happy, if it would assist the Commission, to provide some case studies of extremely serious situations where children have been accompanied by adults have - including a young girl, were put into an environment in detention with a number of other males, adult males, a situation in which it is absolutely clear from the medical advice and assessments that have been obtained, that it has caused that young girl severe and ongoing psychological and medical trauma.
COMMISSIONER OZDOWSKI: Well, thank you very much, Mr Manne, for your contributions, both oral and written, and if you could provide us with the studies, we would very gladly accept it.
MR MANNE: We will be pleased to do so. Thank you very much to the Commission. Thank you, sir.
THE WITNESS WITHDREW [4.06pm]
COMMISSIONER OZDOWSKI: Now, I would like to ask Mrs Barbara Rogalla to come forward. Welcome. I would like to ask you to make an oath or affirmation.
BARBARA ROGALLA, affirmed [4.07pm]
COMMISSIONER OZDOWSKI: Thank you. Can I ask you now to - please, sit down. Can I ask you now to give you name, your address and capacity in which you are here for the record.
MS ROGALLA: My name is Barbara Rogalla. I live at number [address removed], and I am here because - to give evidence in relation to the submission that the detention of children is in breach of the Convention Against Torture. In my
COMMISSIONER OZDOWSKI: Thank you very much for your submission, and what I would like to ask you to do now is to make an opening statement, and in this opening statement I in particular would encourage you to give your expertise you have in the matter.
MS ROGALLA: Okay. I have been employed at the Woomera Immigration Detention Centre for a total of three months during the year 2000. Since then I have been involved in refugee issues from a human rights point of view. I have published several papers, I have read quite extensively up on various human rights issues and - yes, I guess
COMMISSIONER OZDOWSKI: What were you doing during the three months at the detention centre? As I understand, you were working as a nurse there.
MS ROGALLA: That is correct. During - people there were employed on six-week contracts. During my first contract I conducted general nursing and during my second contract I conducted psychiatric nursing with a little bit of general nursing as well.
COMMISSIONER OZDOWSKI: And you have got qualifications in both?
MS ROGALLA: Yes, I have.
COMMISSIONER OZDOWSKI: And could you say something about the level of contact you had with children while in Woomera?
MS ROGALLA: I saw children as well as adults in the normal day to day work, depending on - like, we were running clinics and people would front up to the clinics. Children would come up with their parents often to get their medications, and I would often see children - not necessarily if I was attending to them, but just by walking through the camp or when they were with their parents.
COMMISSIONER OZDOWSKI: Could you now tell us about your experiences of it and, in particular, about what kind of conditions children were in and also about the impact of detention on children.
MS ROGALLA: Based on my own observations
COMMISSIONER OZDOWSKI: Could I ask - excuse me - could I ask maybe to use the microphone because apparently we are not recording very well, so if you could speak more to the microphone please.
MS ROGALLA: Is this better?
COMMISSIONER OZDOWSKI: The gallery can't hear it. Okay. Okay, so you need to speak a bit louder.
MS ROGALLA: Okay, I will do that. And your question is what are my
COMMISSIONER OZDOWSKI: I asked you - yes, about - that you tell us what did you experience when you worked there from the point of view of welfare of children, and particularly, I would like to know more about conditions children were in over there, possibly especially from the point of view of medical services because it is where you were, but I would also like to know about psychological effects of detention on children.
MS ROGALLA: Okay. My main observation is that the children are very, very much - very subdued, almost - they were almost at a state of emotional numbness. I found that just by walking through the camp, I often found that they would not even make a noise when they were playing and they just appeared very retarded, like developmentally retarded.
COMMISSIONER OZDOWSKI: You are talking about what ages of children; young or older, till 18?
MS ROGALLA: I am talking approximately up to about five years old.
COMMISSIONER OZDOWSKI: Okay.
MS ROGALLA: From toddler to about five years old, and I am think about one child in particular who used to be a really loving child and I was told at the term of my second contract that he had resorted to throwing stones at the guards. I have not actually observed any act of aggression by children myself, but I have heard about it.
COMMISSIONER OZDOWSKI: And how old was that child?
MS ROGALLA: About two or three years old at that time.
COMMISSIONER OZDOWSKI: And throwing stones at that age?
MS ROGALLA: Yes. Yes. It was - and there seemed - there were stories about children just engaging in these irrational acts of aggression at times. As I said, I have not observed any of this myself. What I have observed, a lot of it, sort of, it seemed to be more, sort of, in the way of, sort of, punitively interacting with detainees. For instance, there was a lot of pressure on the medical staff to basically - like, we were called medical even though we were registered nurses, because we came from the medical department.
I often got the impression that we were basically being used to, sort of, act as an extension of the detention policies rather than providing a medical, sort of, care. If I can just give some examples that I have written down so I won't forget.
COMMISSIONER OZDOWSKI: Yes, please do.
MS ROGALLA: I am thinking of - there was one woman, for instance. She was asking if the child could perhaps have some soup to eat rather than - the child was five years old. Could the child perhaps have some soup because the child does not like the food that is being provided there. Now, with requests like these, the parents would be sent to the medical centre. We were instructed not to allow the child to have such - the soup unless there was a particular medical reason that would have prevented the child from eating other food.
I have heard of - there was one time when a woman was asking me for some shoes, and the big charity truck had arrived. And everybody was in such a big hurry that the sandals that she got for her nine year old, or ten year old daughter did not fit. So then she came to the medical department because she had blisters on her feet. And then I said, well, you know - and then she said - I said, "Okay, let's see if we can get you some more sandals." And so we put in a second request. The second time around the mother was somewhere else. A guard came. Took the child. She picked her own size. And these sandals did not fit again. Second time around, the woman could not then get another pair of shoes or sandals because she was told she has already had two pairs. I mean, it was just this constant, sort of, going on like this.
COMMISSIONER OZDOWSKI: So you are saying the shoes were not available on the needs basis, yes.
MS ROGALLA: That is right. Yes, they just didn't fit.
COMMISSIONER OZDOWSKI: They had to be prescribed by you almost. Or how - how
MS ROGALLA: They were issued by welfare.
COMMISSIONER OZDOWSKI: Thank you.
MS ROGALLA: But sometimes, if medical put in a good word or something, quite often people could then get in to get the thing. I was actually more involved in - I was also involved in allegations of child abuse during the year 2000. I am not sure that I should - should I repeat - I mean, the whole thing has already been investigated. I am not sure that I should talk about this.
COMMISSIONER OZDOWSKI: You are talking about - yes. There was an allegation of sexual abuse.
MS ROGALLA: Yes.
COMMISSIONER OZDOWSKI: I think it was in Woomera. It was investigated by
MS ROGALLA: That is - yes. We will leave it out.
COMMISSIONER OZDOWSKI: special team. No, we have got that evidence and we have got the report.
MS ROGALLA: Yes, thanks. I - yes. Thanks. We will leave that one out. The other thing that I also observed, that there were people unqualified to provide health care. When I arrived in January I was told not to do any psychiatric nursing duties, because there was a counsellor who was doing the assessment of - for the high risk assessments, for self-harm. I found out later that this woman did not have any formal qualifications at all. Prior to her work she was working as a chef at the Eldo Hotel at Woomera. Later on she was promoted to Manager of Welfare Services, or Human Services. I forget now. It was in the Woomera Detention Centre. Quite often the parents would come. They would complain that the children were sick and children would, sort of, be moving from one lot of antibiotics to the next, because they had constantly this, sort of, niggling, sort of, infections, there.
And as soon as one lot of antibiotics finished, one to two weeks later the parents would be back with another - or the children, rather, would be back with another infection. The sort of infections were just the niggly sore throats. There was one Campylobacter, which is a bowel infection that occurs as the result of overcrowding.
COMMISSIONER OZDOWSKI: Was the use of antibiotics justified in the situations?
MS ROGALLA: Yes. We had very strict - well, the doctors would always prescribe the antibiotics. According to whatever the medical protocols were.
COMMISSIONER OZDOWSKI: I don't know - do you have any other questions relating to medical centre?
ASST COMMISSIONER SULLIVAN: I just have - have
ASST COMMISSIONER THOMAS: Yes.
ASST COMMISSIONER SULLIVAN: Sorry. Do you have a question?
ASST COMMISSIONER THOMAS: So in your observation you think one can - these things which - the trauma the children experience, how much is due to the detention centre itself, and how much is about their
MS ROGALLA: Sorry, I
ASST COMMISSIONER THOMAS: How much is about, in your observation
MS ROGALLA: Yes.
ASST COMMISSIONER THOMAS: Do you think one can tell the - is the - one can distinguish the trauma the children suffer because of the detention centre. And also, because of the traumatic experience before coming to Australia.
MS ROGALLA: It is very difficult to answer that question because there was no systematic way to assess how much damage had already been done to the children as a result of the refugee experience. We conducted medical assessments. It was by a three page document that had to be filled in. For instance, there was - none of us were experts in child development issues, although there were some midwives there. The children did not normally have access to a paediatrician who would do the normal milestones, and what have you. And also, there was no systematic assessment to identify any victims or survivors of trauma and torture. So it is really hard to say how much of it was caused by the detention or by their prior experience.
ASST COMMISSIONER THOMAS: Thank you.
ASST COMMISSIONER SULLIVAN: Would you like to comment on the level and nature of medication that you observed there? Particularly the medication of children. But maybe more generally, the level and nature of medication of adults as well.
MS ROGALLA: Okay. Yes, there seemed - for the children it was mainly the antibiotics and often we would then try to hold off the antibiotics, unless there were very clear signs of say, a throat infection, which was one of the frequently occurring infections. And we would try and, sort of, patch it up with Panadol or something like that for a few days. So that there was a fair bit of Panadol that was given out to the children. And a lot of adults - adults were on anti-depressant medication, some of them. Some would take it, some would not. And, as far as the general, sort of, lot of medication goes, the normal sort of medications that you would normally get in the community.
COMMISSIONER OZDOWSKI: Could I ask you to use microphone, because I see people from - at the back do not hear what you are saying. Yes, I know it is difficult but if you could talk a bit more to it. Yes.
MS ROGALLA: Okay.
COMMISSIONER OZDOWSKI: Thank you.
ASST COMMISSIONER SULLIVAN: In terms of the anti-depressants, what was the procedure for receiving those?
MS ROGALLA: The person would have a - would be assessed by the nurse. And then, if the nurse felt that medical intervention was warranted, the person would then be referred to the doctor. And - however, I can think of one case where a child was referred to a psychiatrist, and as far as I know, that that child never received the psychiatric consultation that was requested by the GP.
ASST COMMISSIONER SULLIVAN: And were the results of these made available to the parents? When there were, in fact, specialists called in, were the parents made aware of what the outcomes of that were?
MS ROGALLA: It was normal practice for the parents to accompany the children to the medical centre. I have not been in a situation where a child had specialist treatment at the Woomera Detention Centre. But I imagine the parent would have been with the child at that time.
COMMISSIONER OZDOWSKI: You are possibly quite an experienced person in terms of medical health. How do standards of medical services in Woomera - in Woomera Detention Centre, compare with services in Australian towns, a regional town? For example, yes, where you had better or maybe the same access to medical service. Is that in Woomera Detention Centre or in Woomera town?
MS ROGALLA: Well, I guess the main difference is that normally, if people feel unwell, they decide to go to the doctor themselves. At the detention centre, they would have to see nurses and we would then refer the person to the doctor. There was also
COMMISSIONER OZDOWSKI: So you were filtering access to doctors?
MS ROGALLA: Yes. Yes, that is correct.
COMMISSIONER OZDOWSKI: What were the criteria used to filter the people?
MS ROGALLA: There were no, sort of, objective criteria, if you like. It was based on a clinical assessment and clinical diagnosis. And if the nurse then believed that the person should see a doctor, then we would do the referral. And the doctor - the person may need to wait for a few days before he or she could see the doctor. Would you like me to fill you in on the amount of time that the doctor spent?
COMMISSIONER OZDOWSKI: Yes. Yes, please. Please provide us with the detail.
MS ROGALLA: Okay. The medical clinic was staffed by nurses for 24 hours a day, over several shifts. There was a doctor, sometimes there were two doctors, and they worked part-time. They worked from about 10 o'clock until 2 o'clock on weekdays, approximately. And the doctors were also accessible by telephone, for - either for a consultation, and also, if the need arose we could then ask for an ambulance to transport the person to the hospital, depending on what the level of urgency was. What - one thing that I did observe was there seemed to be - there was coercion via Australasian Correctional Management on - for doctors to withhold a medical test.
This - there is one test, an IVP. It is - it cost about $250. And it is a diagnostic test for renal and bladder illnesses. And for some reason, men who come from the Middle East are very prone to this. I don't know the reason for it. But by the time people get - by the time people survive the trip on the boat, quite often they arrive in a state of dehydration. Which would then compound any pre-existing renal disease. Possibly bring it on. And so the doctors would order these tests, and quite often the signs were recurrent urinary tract infections. Sometimes the doctor would then order the test. And we had two doctors working at the detention centre at the time, and they were told not to order the test unless they first checked with the Manager - Manager of Health Services, who was located in Sydney, who was a registered nurse.
COMMISSIONER OZDOWSKI: So the doctor's expertise was second-guessed by the nurse.
MS ROGALLA: Sorry?
COMMISSIONER OZDOWSKI: So the doctor's medical expertise was second-guessed by the nurse.
MS ROGALLA: You could put it that way. Yes. It was basically a matter of rationalising why the - yes. Why the person needed the test. And one doctor said to me, she said, "Look," she said, "I just would like to treat the people exactly the same as I am treating any other patients in Australia."
ASST COMMISSIONER SULLIVAN: What happens to those medical records when they left Woomera? When the people left Woomera?
MS ROGALLA: People would usually get some sort of a brief summary, if they were on medications. What - it would be about one page, which would basically list the medication. DIMIA owns all the records, and I don't know what happened to them afterwards.
COMMISSIONER OZDOWSKI: Yes.
ASST COMMISSIONER THOMAS: Apart from the unqualified counsellor that you mentioned before, your time there, did you observe any psychological service? There has been any qualified psychologist? Otherwise, how is the mental health service provided?
MS ROGALLA: There was - there once - perhaps if I start off by telling you the sort of routine provision of mental health services. I was on my second contract.
ASST COMMISSIONER THOMAS: Yes.
MS ROGALLA: I was scheduled, if you like, to conduct those services. And what my duties involved was to interview and to do clinical assessment on people who were at risk of harming themselves. There were regular meetings being held, which - where people would be - where we would discuss the level of intervention that people required. The HRAT, which stands for High Risk Assessment Team, it was - there were three people on this particular team. And then, we would discuss whether the level of observations would continue or not. Actually, I will get back to the policy in a moment. But - and also, what I would do is to ensure that people received their psychiatric medications, or perhaps see if they did not take them. And my job was also to - yes, basically assess whether the medications were doing the things they were supposed to be doing. If not, refer people back to the doctor.
I have - the problem that I have with the policy that was - the HRAT, the policy that was operating, is that it is basically a policy that is designed for prison services. It is fundamentally designed to - for the purpose of observation. And it is of very little therapeutic value. However, I have found out since that the policy has been changed slightly, but in - may I actually - may I say something that was relayed to me this morning, when I was preparing for this, by way of personal communication from another registered psychiatric nurse who has worked at the Woomera Detention Centre in the last few months.
And what she was saying is - because the question I was asking here is, now that there was so much emphasis on a comprehensive assessment of the person who is at high risk, do the people actually get the proper assessment? What is the medical care like? And she told me that there was a lot of pressure exerted on nurses to - on - sorry. On the - to take people off - the HRAT off the observation. Because the observations were very difficult to perform sometimes, when people mingle in the compound. And one of the ways that that would often ensure was that if, for instance, it was known that a nurse would argue that the person required further observation and therefore, to stay under that observation policy, often the nurse would not be participating in the meeting.
She told me of one time when there was a man who had a previous psychiatric history. She had seen him. She knew this detainee. He had had several suicide attempts. He had one big scar where he attempted to cut his throat. He had also drank shampoo. He had been engaged in the mass protest where people were digging their graves. Once, he positioned himself on the fence, sort of, in the Jesus Christ cross-type position. Now, when the nurse saw him again, he had just returned from a Court case at the Federal Court. He was very depressed. He was very agitated to her.
She then engaged him and attempted to do a clinical assessment, only to find that she was reprimanded by the nurse in charge. And - because she was told that she was only there to do the HRAT people, that is, the people who were already on this particular policy. She then had - she then stopped conducting her assessment, and sometime later that day the man engaged in a hanging attempt. And she told me that she felt absolutely terrible for not having continued with her assessment. And these are some of the sort of pressures that the staff continuously work under, where the policies are there, but there are various mechanisms that actually stop the practices from being implemented.
COMMISSIONER OZDOWSKI: Sometimes people are put into isolation cells because of various reasons. Did you have access to people in isolation cells when they needed medical attention?
MS ROGALLA: Yes. I was also conducting psychiatric assessments on people who were in isolation cells. There used to be an isolation - there used to be two isolation cells at the back of the administration, like - as part of the administration building, at the back - at the back there, at the Woomera Detention Centre. And it was a real, sort of, typical prison cell. There was no - there was no window in - there was on light bulb. No. Hang on. The light bulb was in the corridor. It was not in the cell. There was just a mattress on the concrete floor and they had - there were these - just a gate with great big iron bars.
And people would be put into those isolation cells, regardless of whether they were at risk of self-harming or whether they were what were called trouble-makers who had - who were put in there for security reasons. I recall one time when I was conducting such an assessment. I went into this area and there was a guard. He was sitting, like I mean, there was absolutely no way the people could have gotten out of their cell. There was a guard sitting outside, dressed in full riot gear. He had the armoured clothing on, and the riot shield was standing there. The helmet was there, and he had his baton.
And when - at the time when I arrived the person - the man was sleeping. And he didn't talk to him. He just sort of got the baton and sort of run it along the bars, to make a noise. The man woke then up, and he just sort of went like that with his baton. Just beckoned him to get up. And I then conducted the - well, when I say conducted the assessment through that gate. And in terms of - the same thing also applied in the Sierra compound, which has now been re-named Oscar, with the big palisade fences and sometimes - there was one time when they said that no woman was allowed in. I found out later that after the Woomera break-out in the year 2000, they actually had detainee women and children in there, but they would not let female staff in because it was considered too dangerous.
And the man that I then had to do my assessment, he was brought to the, sort of, there was like an area, like a double lock area, that you often get in the security situations. And was just talking with him, with two guards being present. And quite often, the assessment actually, it was more a - basically a matter of, sort of, when people were severely at risk they would - they would just wear a canvas gown. A very stiff sort of uncomfortable type of gown. And then, by the time somebody had slept in one of those cells for about two or three nights, especially in June/July when I was there, with the psych work, by that time - you know, but by the time somebody spends two or three cold nights on a mattress on a canvas floor, by that time, people were basically begging to get out of there. And they then pretty much forget any notion of wanting to harm themselves. They then promise not to harm themselves. And what it seems like to me is that what was happening here is that it is this sort of Kafka-esque type logic, where the policy operates to prevent pain and suffering, or self-harm, or a death in custody, whatever, by actually introducing further pain and suffering, which is just the idiocy of this logic.
COMMISSIONER OZDOWSKI: Could you tell me what was the longest period of time you are aware of a person being in one of these isolation cells.
MS ROGALLA: I am thinking of one man. He was put there for security reasons.
COMMISSIONER OZDOWSKI: He was violent, or
MS ROGALLA: No.
COMMISSIONER OZDOWSKI: No?
MS ROGALLA: He - it was - I am not - he was considered an informer, and there was - there were fears held for his safety. And as a precautionary measure he was then also put on the suicide watch. And I think he would have spent six days, possibly eight days there.
COMMISSIONER OZDOWSKI: Perhaps last, or second last question, because we are already over time. Could you mention something about availability of dental care?
MS ROGALLA: Yes. I am not - if I may something else - say something else first. That the two cells that I have just described, they have since closed down. They were closed down in about June or July 2000.
COMMISSIONER OZDOWSKI: Yes.
MS ROGALLA: They are no longer in - exist. They have since been converted to a sewing area. I am not sure what is happening there in terms of isolation cells right now. So I should make that clear. Okay. Dental care. Dental care was very difficult to access. At the Woomera Detention Centre dental care meant extraction only. No other form of treatment. No prophylaxis. No fillings or anything. And people were streamlined. Again, sort of, we had to decide very much on the basis of urgency. So if some - depending on how often somebody came in, depending on how severe the pain was, we would then somehow prioritise the access to the dentist. And there was one registered nurse who took the people to the Woomera Hospital when the dentist was conducting his surgery there. It was the dentist who came in from the Roxby Downs or from Port Augusta. I forget now. And people would - yes. People were then offered the extraction or nothing. What would often happen is that people would initially consent to the extraction, and then, as they went in, they would - quite often they would take one look at the dentist and they would say, "No, no, no. You are not pulling my teeth out." And it actually complicated the matter from our point of view because that person had then taken a spot - dare I use the word "queue" here.
He had then taken the spot that perhaps then could have been used for somebody else who would have consented to have his tooth pulled out. And if I can just - and then, sort of, it actually then delayed the access to the dentist. But if I can just add one more thing here. I have observed possibly three cases where people, who initially would have needed a filling for their teeth, and it was neglected to the point where they finished up with big infections in their gum. And then, there was one man, his number had actually come up, if you like, to see the dentist. At the time, however, because he had the infection, he could not see the dentist because the dentist would not have treated it whilst the gum infection was there.
COMMISSIONER OZDOWSKI: And the same impacted on children. If young people had problems with their teeth, the extraction was the only medicine available?
MS ROGALLA: I have not seen - I have not been in a situation where dental care was required for a child. I do know that there were no regular dental check-ups being held. And there was one dentist who said that he would not treat children at all. Again, I am not sure how that would have panned out in practice had there been a child who had a dental problem.
COMMISSIONER OZDOWSKI: If you had enough money and wanted to pay for a filling or other dental treatment, could you arrange for it out of your - or your own money?
MS ROGALLA: These discussions were being held in around - yes. June or July 2000, when there was the plan to use the disused first aid station and to convert it to another mental - to another medical centre. And the plan then was also to have a regular dental surgery check-up and set up there. I don't know if that was ever implemented. But people with money would then be given the opportunity to get fillings if they - if they wanted to pay for it. That was the plan.
COMMISSIONER OZDOWSKI: Ms Rogalla, I don't have more questions. I don't know whether anybody on our team - yes. There is one question over here.
MR HUNYOR: Just perhaps by way of conclusion, are you able to - you have described a variety of medical and health services that were available in the detention centre. Overall, your assessment in terms of their availability and their adequacy for children, are you able to give the Commission your assessment of what you saw during the time you were there, of the adequacy of those services for children?
MS ROGALLA: Look
MR HUNYOR: And the ways in which they were not adequate, if you form that view.
MS ROGALLA: Yes. Sure. I mean, the one line answer to your question is that the services were very poor. There were no - the only regular sort of assessment that we used for children was to do the weight and growth charts. As I said before, there was no paediatrician in attendance. The midwives would often attend to the babies when their mothers were in detention and I am not sure what they were doing - what sort of things they were doing there and the parents would often come and complain to us and say look, our children are not getting the care; our children are continually getting sicker and sicker and sicker and the medicines that you are giving to the children are just not working.
COMMISSIONER OZDOWSKI: Mrs Rogalla, any final point?
MS ROGALLA: I guess it is just a Santa Claus wish list. I really wish that the government would stop the policy of mandatory detention and just ensure an environment where children could develop and grow normally as any other children would.
COMMISSIONER OZDOWSKI: Thank you very much for your evidence.
MS ROGALLA: Thank you.
THE WITNESS WITHDREW [4.38PM]
COMMISSIONER OZDOWSKI: I would like to ask Mr Julian Burnside to come to the witness stand.
MR BURNSIDE: I would if I can invite three other members of our team.
COMMISSIONER OZDOWSKI: Please do so.
MR BURNSIDE: It is still a small proportion of our - Mr John Manetta, Jacki Dillon and Cathy Hydon, h-y-d-o-n.
COMMISSIONER OZDOWSKI: Well, welcome to all team and I would like to ask all of you to make an oath or affirmation now.
JOHN MANETTA, sworn [4.39pm]
JULIAN BURNSIDE, sworn [4.39pm]
JACKI DILLON, affirmed [4.39pm]
CATHARINE HYDON, affirmed [4.39pm]
COMMISSIONER OZDOWSKI: Thank you very much. Now could I ask all of you to give your names and addresses and the organisation you represent, if any, for the record.
MR MANETTA: My name is John Manetta. My address is [address removed]. I am a barrister.
MR BURNSIDE: My name is Julian Burnside. My address is [address removed] and I am a barrister.
MS DILLON: My name is Jacki Dillon. My address is [address removed] and I am a registered nurse.
MS HYDON: My name is Catharine Hydon and I am at number [address removed] and I am a kindergarten teacher.
COMMISSIONER OZDOWSKI: Thank you very much. Before I will ask you to make an opening statement, just as a way of explanation, we are investigating whether Australia is meeting its international human rights obligations and especially in regard to the Convention on the Rights of the Child. Australia ratified the document some time ago. The document is quite specific about how we should treat children in Australia, all children, not only children born here, and we are trying to establish whether Australia is doing so.
We are also interested in the issue of impact of detention on children and we are interested in any evidence especially about long term psychological impact of detention, so could I ask Mr Burnside just to give an opening statement.
MR BURNSIDE: Yes. I should preface my observations by saying that we are representing a large group of people who have together put together the submission which you have received.
COMMISSIONER OZDOWSKI: Thank you very much. Over 200 pages, yes, it was.
MR BURNSIDE: Yes, well I am sorry for burdening you with it but the group got fairly enthusiastic.
COMMISSIONER OZDOWSKI: We do thank you very much. It was a very, very useful submission.
MR BURNSIDE: And the enthusiasm, you will see by the preface, was gradually qualified with a degree of despair because the position uncovered by our research is profoundly depressing. Now I needn't remind the Commission of the obligations which we have undertaken in the convention on the rights of the child and the ICCPR. All of them speak, one way or another, of an obligation to treat people humanely and in particular to recognise the particular vulnerability of children.
It is interesting to identify the premises from which the government's policy seems to spring and the first premise is that people who come here without an invitation are illegal and it is particularly poignant to think that the government's own submission to this Commission is found on their website in a subdirectory named "illegals".
[4.43pm]
So their attitude to these people is quite fundamental to their approach, and it is interesting that their submission says that one justification for the detention of children is that it is not in the interests of the child to be separated from the parents. And since the assumption is that the parents must be detained, therefore the assumption is that the children must be detained. Now, we want to draw attention to just a few of the facts, the primary facts which appear to us to be entirely incompatible with the obligation which Australia has undertaken and the effects of those facts, as they are observed on the children who are in detention.
We have throughout the submission a large number of accounts which illustrate the problems. For example, the fact that all personal belongings are confiscated when people arrive in a detention centre; the fact that children do not have toys to play with, they do not have adequate provision for play of any sort. And what are the effects of this? They miss all of their principal milestones of childhood development. They tend to lose weight, they tend to lose mental condition and they tend to lose interest in being alive.
It is not difficult to link the circumstances in which they are held with the consequences as observed repeatedly in all of the detention centres around Australia, and frankly we should have thought that commonsense dictated that the same link would be drawn. There are many aspects of detention which are damaging to people generally and children in particular. The prison-like environment is probably chief among them, and that has several aspects. One is the physical conditions. The physical conditions in the detention centres, even at their best, are very bad.
In the desert camps where about 80 per cent of people are held, of course they are surrounded by high metal palisade fences topped by razor wire, and it is depressing to think that when the new Port Augusta facility is ready, it will not only have razor wire, it will have electrified fences, which in the jargon of the Department are referred to as energised fences; but electric fences they are. And it is difficult to overstate the psychological consequences for children to know that they are being held behind razor wire and electrified fences.
Some of the more extreme consequences, but widespread consequences, include cases of not only young children but also of teenage children being incontinent as a result of what they experience inside the detention centres. There are frequent reports of children who have terrible trouble sleeping, night terrors, wakefulness, restlessness, and during the day they are listless and depressed and generally show a lack of interest in what is going on around them. All of these things seem quite plainly predictable consequences of being kept in conditions such as they are required to face.
Now it is interesting to reflect on whether any of those consequences can be attributed to the trauma from which they are escaping with their families, and no doubt the circumstances which caused them to flee will create great trauma. But if that premise is accepted, then it is all the more powerfully necessary to avoid exacerbating the trauma. To take people you assume to be traumatised and lock them up in a cage in the desert seems to us to have absolutely no conceivable justification at all. It will inevitably increase the harm which they have already suffered.
And of course if you assume that they are escaping trauma, then our rights under the Refugees' Convention are engaged and it is entirely incompatible with those rights that we treat them in a way which is guaranteed to increase the harm that they have already suffered. I wanted to mention by way of introductory observation one other thing; in the course of our examination of the issues, we quickly confirmed something each of us had separately encountered, and that is that it is difficult to get direct information about a lot of this, and it is difficulty for two reasons, and they can both be grouped under what we will call the climate of fear.
Those people who have worked with ACM or with the Department fear that they will be punished if they tell things that they have observed inside detention camps. And they fear that because they have obligations of confidence in their contracts. It is unfortunate that they think that, because there is a doctrine in Australian law that an observation of confidence will not prevail over an invitation to expose an iniquity. Now, what constitutes an iniquity is not defined with any precision, although we would say with some confidence that everything revealed in this submission does constitute an iniquity.
Nevertheless, a lot of people who are under contract to ACM or the Department fear the consequences of speaking out. Second, and perhaps more importantly, those people who are in detention centres or who have been in detention centres and are now in the community on bridging visas or temporary protection visas fear that their case will be treated with special harshness if they reveal anything which they have experienced. Now, it is difficult to know whether or not that fear is well-founded, but it is almost universal that they fear that the Department will treat them harshly if they speak out.
COMMISSIONER OZDOWSKI: How do you know about that?
MR BURNSIDE: Because they say so. And I think if you speak to practitioners in the area, legal practitioners especially, they will say it is a dangerous thing to speak out publicly because if you are applying for a bridging visa your prospects are reduced; if you are on a temporary protection visa, you need to get it renewed after three years and your prospects may be harmed; and, worst of all, if you are applying to the Minister for an exercise of discretion under section 417 you truly take your life in your hands if you do anything that risks embarrassing the Department.
And unfortunately the greater the truth, the greater the risk. Now, as I say, we do not know whether the theory is well-founded, but it is absolutely universal and it has the consequence that a lot of people fear to speak out. Perhaps I should allow my colleagues from the other sections of the submission to make their opening observations.
MS DILLON: I co-ordinated the health chapter of the submission, and I would like to start by supporting what Julian has been speaking about, and I am sure what Barbara Rogalla touched on as well is the climate of fear and the lack of transparency in terms of medical care inside the detention centres. There have been a number of instances where specialist paediatric attention has been required for children in Immigration detention centres, and achieving that independent medical review or getting access to independent medical review has been an uphill battle with the Department and with ACM.
So the right of parents and the right of children to seek medical opinion, to seek external outside medical assessment, has been denied them. And that is an issue of grave concern to us. The other issue relating more specifically to the mandatory reporting of physical and sexual abuse of children is every health professional educator, professional person working with children in the community in the rest of Australia is required by law to mandatorily report any suspected cases of sexual abuse.
The climate of fear and the confidentiality agreements between Australasian Correctional Management and their staff actually put that - there is a large conflict of interest there. ACM employs teachers and nurses and psychologists and other service providers inside the detention centres, and these are people who ordinarily in the Australian community would be subject to those mandatory reporting laws. However, I think we have found over the time that there has been numbers of cases of physical and sexual abuse inside detention centres that have not been reported, or there has been a delay in the reporting.
COMMISSIONER OZDOWSKI: How can we test this evidence? Can you give maybe, on a confidential basis, us a bit more information so we could somehow corroborate what you are saying?
MS DILLON: Yes, I would be able to follow up on that.
COMMISSIONER OZDOWSKI: Thank you.
MS DILLON: Actually I will pass to Catharine now.
MS HYDON: I co-ordinated the education chapter for the submission. We gathered people from the early childhood field, the primary and secondary field, and overwhelmingly we found education to be erratic. That has been found by other submissions already done in the past. We have not found there to be any great improvement in that over recent times. Early childhood education is virtually non-existent from what we can gather. There are some pre-schools provided, but again very erratic. And of course the provision of actually staffing those centres is extremely difficult to have consistency there.
Primary school education is a little bit better, but again erratic. And as for secondary education, it is fairly non-existent.
COMMISSIONER OZDOWSKI: And primary, does it compare with education available to Aussie kids?
MS HYDON: We found that to be not the case; that children who received two hours of education within a detention setting was not the same as they would be provided with in the community, even in a rural setting, that would be nowhere near that. And particularly also we found that education for children in their first-language and in relation to their religious beliefs was virtually non-existent. And we also found that as you undermine parents' sense of wellbeing, children's ability to be educated is undermined similarly.
So children - the outcomes for children in the long-term are seriously undermined by their present standard.
COMMISSIONER OZDOWSKI: So considering that a substantial percentage of these children is being released into the Australian community on one or other kind of a visa, and one could assume that many of them will settle here, what kind of impact it would have on the long-term settlement prospects here?
MS HYDON: My personal experience, having worked with several children who have come out of detention in the early childhood field, their capacity to settle back into early childhood settings in the community is difficult, partly because of their parents' circumstances, inability to find housing, etcetera. But also having no experience of any educational setting within a detention setting, and then being asked to settle into an education setting within the community is extremely difficult, and particularly if you have had limited education or no education prior to coming to Australia and then to have nothing while you are in detention, and then be expected to go into an educational setting within the community is extremely difficult.
And of course that requires additional assistance within the community, people to actually undertake that care.
COMMISSIONER OZDOWSKI: In your knowledge, does it apply to all centres or there are some centres which do provide better education and some with provide less
MS HYDON: Some places have more children than others, and those places have - seem to have a better approach to education. The Maribyrnong Detention Centre here has extremely limited educational facilities. Some children do manage to get out and actually go to access facilities within the community, but again that is accompanied by a guard, unlike any other child who would go to school or early childhood or secondary school within the community. So some places are better than others.
COMMISSIONER OZDOWSKI: And do you know of any formal education provided to kids over 12 in any of the detention centres?
MS HYDON: We found this to be erratic and very difficult to find out. So the evidence that we got from some teachers who had been in there, in detention, and had undertaken that was mostly with primary schools, so I would say from our findings we found that children over 12 were barely educated, particularly again in relation to their first language, and maintaining that very important part of their cultural life.
ASST COMMISSIONER SULLIVAN: Can I come back to some of the education questions. You have probably heard the Minister's comments about provision of education and how difficult he sees it. Is it any more difficult than providing for non English speaking background children in the community?
MS HYDON: No, and certainly all of the people who were in our - who contributed to this chapter in the submission felt that this is exactly what happened within the educational community within Australia, or more broadly that we were currently dealing with children who came from many different cultural backgrounds with many different experiences of education, who came as refugees, legitimate refugees, into educational facilities within the community and were well catered for. And there are early childhood professionals, primary school professionals and secondary who are well able to cope with those different needs.
ASST COMMISSIONER SULLIVAN: The second question I have got relates to the adolescents. There is a theory that adolescent children in the centres are not interested in education because they have a sense of alienation, of hopelessness, and education is linked to the future and they do not see themselves as having a future. Are there educational means of overcoming that possible attitude?
MS HYDON: I believe there is, and certainly some of the people who contributed to this submission have had experience working in newly arrived educational settings within Melbourne particularly, and they were dealing with children, or young people who had no experience or limited experience of education and were feeling in that sort of - you know, had those sort of feelings about the future, but there are ways of doing it, and I think education can be a source to assist children to look to a better future.
I would like to say that a lot of the things that we found as far as the education that is part of this submission really depended on the mental health of children. So that education really could not take place unless we looked to some of those things being maintained and supported, but that education could contribute to a general sense of well-being for children in any level.
ASST COMMISSIONER SULLIVAN: There is obviously significant research about early childhood and the impact of brain development in some people say the first three or the first six years of life. Would you like to comment on the impact on that development from an educational point of view rather than a health point of view?
MS HYDON: It might be good to get a health point of view as well.
ASST COMMISSIONER SULLIVAN: As well, yes. Integrated approach.
MS HYDON: From an educational point of view, our experience, my experience particularly, working with the children at the Safe Haven who are Kosovar refugees who came over here for a short period of time, we found that those children were severely traumatised by their experience before coming to Australia for that time, and that without a play-based setting or an educational setting, obviously an educational setting in early childhood depends very fundamentally on the ability to play, without that they would have been extremely, I think, adversely affected by their continuing experience here, and our findings would say the same thing, and I think all the research, as you suggest, points to that; that a general lack of self-worth and even their language capacity, if someone does not actually maintain that and contribute to that, is seriously undermined in the first three years, if that is not undertaken and cared for.
And long-term, those children, if they are not given a very supportive educational environment, their long-term prospects for educational outcomes is extremely undermined for the future.
ASST COMMISSIONER SULLIVAN: I suppose in the public's mind the best example are the Romanian orphans, where there were the two groups of orphans compared and contrasted in terms of the support they got. Have you any evidence that some of the children resulting from this process are as significantly at risk as some of those Romanian orphans were?
MS HYDON: I think the evidence that we have managed to gather - and again I think that Julian's point was that we found it very difficult to gather specific evidence - but some of the children in the families that I have worked with personally, who have been released from detention, I would say there are significant issues of attachment to parents and capacity to engage with other children within an educational setting, an inability to do that. And they take a significantly long time to settle into an educational environment. And some children do not ever, and there are significant behavioural issues as well, which again have to be addressed in the future.
ASST COMMISSIONER SULLIVAN: Have you seen any evidence of surrogate attachment to officials at the detention centre?
MS HYDON: Again our experience - and we were talking to some workers who were in there - would say that children inappropriately attach to someone who just comes in the door, you know, anybody, a worker for example, who is willing to engage with them, particularly children in early childhood, you know, under the age of four. If anyone is willing to talk to them and being part of it, then children attach to whoever that is. So that happens a little bit I think.
ASST COMMISSIONER SULLIVAN: And the impact on the family of this?
MS HYDON: I think for the most part, the evidence that we have managed to gather is that parents are at risk of being disengaged from their children as well, so that if they are dehumanised their capacity to parent, which of course are the first educators, is undermined. So their capacity to probably participate in that sort of thing is probably reduced.
ASST COMMISSIONER SULLIVAN: My final question relates to children with disabilities. Have you had any evidence of how they are dealt with in - well, first of all if there are any, and secondly whether they are differentially
MS HYDON: I think the health group has got something to say about that, but from an educational point of view, within the community as a whole, there are significant educational facilities available for children who have additional needs, and there is some funding available, etcetera, etcetera. I work for an organisation whose primary job is to fund children with additional needs and to support them. That is, as far as we can tell, non-existent in a detention setting. Would you like to comment on that?
MS DILLON: Yes, I think the issue of disability in detention is something that has gone largely neglected. We have a concern that the more identifiable physical disabilities are the ones that have been drawn to, you know, been brought to the attention of detention centre staff and health care professionals, yet there is a whole range of disabilities that are not so easy to detect and that are not so easy to pick up on. And our question for the Commission in terms of finding evidence for this is what - actually what assessments take place as soon as children arrive in the country, in terms of assessing them for developmental disabilities or intellectual disabilities that may not appear in the beginning.
Because children are traumatised and they will not speak, or because they start to regress physically and in their health, it is a common phenomenon with young children who are reaching milestones in their development, they are learning to be toilet trained for example, or learning to do things on their own more, become more independent, the impact of trauma or dramatic changes in their life will make that child regress back to what they were at the stage they were at 18 months ago, and we have seen that a lot with children in detention. And not just the younger children; some of the older children as well, as Julian mentioned.
So in terms - and in terms of disability, the access that children have to meet their physical needs, that is, special aids to help them eat food, special equipment that they might need, not just wheelchairs but other things to assist them in getting about the detention centre or attending school, education for disabled children in detention centres, I am not even certain that there is any, but we do know that there are about - I think at the moment there are around between 16 to 20 disabled children in detention centres in Australia that have been identified as disabled children.
ASST COMMISSIONER SULLIVAN: This is physically or intellectually impaired?
MS DILLON: Well, this is physically impaired. These are mainly children, like I said, with those identifiable disabilities like cerebral palsy and other ones. The harder to detect disabilities, developmental disabilities, which can result from trauma, largely go undetected and we have a concern that there may be a lot of children out there in need of specialised attention, and they are just - that is not being identified.
MR BURNSIDE: Can I cut in on one point? I thought it was a very interesting discussion with Catharine and there was one point I wanted to pick up on, and that is the effect of hopelessness on educational development. I guess when the Commission visits a detention centre, it is a special event and, in a sense, the visit itself makes this abnormal. Those of us who go to them regularly, just as ordinary people, very quickly notice the prevailing atmosphere of hopelessness. It is all pervasive, and I think in part, probably in large part, as a result of being - of the fact that they are there indefinitely; they simply have no idea of when they will ever be released. And the sense of hopelessness amongst everyone is quite plain. I cannot imagine the children escape it.
And the other thing that bears on it, I think, is the effect on children of the sudden disappearance of other people to whom they have formed attachments. People get visas and suddenly disappear; people do not get visas and get deported, they suddenly disappear. It is quite difficult finding out where people went and so it must be very difficult for the parents to explain to the child what has happened to the person they were playing with yesterday.
Now, to live in a place where you have no sense of hope and people around you suddenly disappear must be extraordinarily debilitating, and it is one of those features that I suspect is not prominent because it does not stand up and hit you. But it is very important I suspect for their educational development.
COMMISSIONER OZDOWSKI: Could we ask now for the last opening statement.
MR MANGTTA: I do not have anything to add.
COMMISSIONER OZDOWSKI: Okay. So anyway we can continue that discussion. Mr Burnside, one of the things which in a way is interesting, you were saying that the detention creates long-term problems for children. Just to ask you as a lawyer, is there any likelihood that in some time in the future Australia will be taken to court and asked to pay compensation?
MR BURNSIDE: You mean to a domestic court?
COMMISSIONER OZDOWSKI: To domestic court.
MR BURNSIDE: I would say there is a pretty high chance of that.
COMMISSIONER OZDOWSKI: What is the time span? When do you think it may start happening?
MR BURNSIDE: Well, that depends, and that raises a very interesting question about the climate of fear, because there are any number of people, who all of us know, who have got good claims for personal injuries as a result of their experiences in detention centres, but they do not want to be a plaintiff because to do so means trouble when their TPV is due for renewal, or if they are on a bridging visa, well then obvious difficulties with their substantive visa, and so on and on. It takes a very brave person to be prepared to sue the government for obvious injuries unless there is nothing left for them. But I think it will not be long.
COMMISSIONER OZDOWSKI: Thank you.
MS LESNIE: I was wondering if I could ask you a little bit about the availability of judicial review for the legality of detention. You may have seen in the Department submission they do state that there is - children in detention can legally challenge their detention in a court of law, and I was wondering if you could explain to us how that might occur.
MR BURNSIDE: I was hoping they could explain it, because we are not aware of how it can be done. There is, as you are probably aware, a sort of oblique challenge to the legality of the detention system generally, not specifically in relation to children, and that is in the case of the Woomera escapees. And the defence in that case - the Woomera escapees from last October and Easter - and the defence in that case is that the condition from which they escaped was not within the scope of lawful Immigration detention and so they did not escape Immigration detention.
Now, that challenge is predicated on the fact that conditions are so harsh as to be punitive and therefore beyond what is reasonably necessary for the administrative purposes which the government submission identified. It is an interesting thing that the Act does not distinguish between the detention of children on the one hand and adults on the other, and in the Woomera escapees case quite recently, the government - the Solicitor-General came to Adelaide Magistrates' Court to argue that a defence based on the harshness of conditions was constitutional nonsense and could not possibly provide a defence. So it escapes me how they suggest that a child in detention can challenge the legality of detention.
[5.12pm]
COMMISSIONER OZDOWSKI: Yes.
MR HUNYOR: Sorry, could I follow up? The basis to the unconstitutionality is the punitive nature of the detention, but the Minister for Immigration has maintained that the object of detention is deterrence but not punishment and do you have any views as to this distinction that is drawn between detention as a deterrence and detention as a punishment?
MR BURNSIDE: I think it is a false distinction - I think it is a false distinction. Punishing a person - or treating a person harshly in order to deter someone else from behaving in a particular way strikes me as peculiarly immoral and if the person who you are hurting is an innocent person, and by definition they all are, then I can think of no rational justification or excuse for treating them that way.
ASST COMMISSIONER THOMAS: You have already established that the detention centre is clearly a bad environment, but if we release these people out into the community and without various rights, like in the medical care, work rights and if the relationship with the sponsors break down, as we have heard there are several cases, then the people quickly become homeless and without work rights they have no support, unless some charity organises this and picks them up.
So one side we have the risk of the detention centres. The other side we have the risk of them being vulnerable, going out in the community without infrastructure, support existing there for them.
MR BURNSIDE: I think that is a really good question because it depends on the assumptions that you make. I think it would be unconscionable to take asylum seekers and simply put them in the community with no support. That would be quite ridiculous. I think that the humane solution after an initial period of detention for screening, health checks, security checks, if you then release them into detention - sorry, into the community, you would have to provide them with some sort of social support by way of a regular payment which would enable them to live in decent surroundings.
I don't understand why they are prevented from working. There is no rational policy explanation for that. These are people with - and I am talking about asylum seekers - these are people with great enterprise, a great will to survive and to make a better life; why not let them work? That is the way people contribute to society. But whether or not you let them work, you have to allow them to live decently, and even if you gave them $300 a head per week, that is still much less expensive for the community than detention which runs at $120 a day. So I frankly don't understand why it would be necessary to abandon them to their fate. You can quite inexpensively support them in the community with dignity.
I am sure that the social infrastructure that exists at the moment would be adequate to cope with the special needs of traumatised people and people from various ethnic backgrounds, and I think the government's only remaining argument is, well, they will disappear and they won't turn up to be deported if their claim for asylum fails. The simple answer to that, I think, is that bail systems work in the criminal justice area, there is no evidence to suggest that something equivalent to bail wouldn't work in the area of refugees.
In fact, you can probably improve the chances of it working by the very fact that you give them a regular government payment. They have got to go to the CES office or the Department's office every week or every fortnight to collect the cheque that keeps them going.
COMMISSIONER OZDOWSKI: The government is also using the argument of the deterrents, that we need to be harsh in order to deter others to come in. Did you come across any evidence that it does work that way and the government would point, well, in the last five months we didn't get any boats so it is working.
MR BURNSIDE: No. Because they are all being sent to Nauru and Manus Island. I know this is outside the scope of the inquiry, but there are 500 children on Nauru at the moment.
COMMISSIONER OZDOWSKI: Yes, I know. Do you have any information about the treatment over there?
MR BURNSIDE: Yes, I do; yes, I do.
COMMISSIONER OZDOWSKI: Could I ask you to say what you know about the treatment in Manus and Nauru?
MR BURNSIDE: Manus Island, I don't know anything directly, but I have been receiving faxes from some of the people who arrived on Nauru from the Tampa and we know that they are strictly confined within the wire of the topside camp or the stateside camp. We know that people who go out of the wire are punished by being put in solitary confinement in the Nauru Jail. We know that they have inadequate food and inadequate water.
A recent letter I received said that they have only one water tank for 500 people and that that is only - it only has a single tank-full of water put in it each day, it is never full. They do not have enough water for the toilets, which are flush toilets, and for washing or cooking or cleaning their clothes. They simply do not have enough water for those things. They wash themselves when it rains, although the person who wrote to me observed that when Phillip Ruddock visited, the water store was full.
COMMISSIONER OZDOWSKI: So one could assume from what you have said that the conditions of children over there would be much worse than the condition of children in Australian detention centres?
MR BURNSIDE: I would say they are probably equivalent, maybe worse in some respects and better in other respects. They are not surrounded by razor wire, they are surrounded by a simple fence, and I - it is very interesting to see the psychological effect of very tall palisade fences and razor wire. It is quite a chilling thing, although it is maybe no more effective than the fence at Nauru. So they don't have that. They are kept in accommodation which is probably not as good, tents rather than demountable huts. And they, also interesting, are clearly detained in breach of the Nauruan Constitution because the Nauruan Constitution has a prohibition on detention without trial.
MS DILLON: Can I just make a comment on Julian's last point. When the Department of Immigration was challenged on the constitutionality of detaining people on Manus Island and Nauru, they responded by stating that people on Manus Island and Nauru were not detained, they were simply confined by conditions of their visa which stated that they must not step outside the boundaries of the detention facility, and
MR BURNSIDE: Which is entertaining
MS DILLON: they denied that that was arbitrary detention.
MR BURNSIDE: Yes. And yet the visa applications were not signed by them, they were signed on their behalf by a member of the Nauruan Immigration Department. They had no say whatever about the terms of their visa. And interestingly, if they didn't like the terms of their visa, then presumably they would be allowed to leave the country, but they are neither allowed to leave the country nor allowed a normal visa. They are, in fact, being detained and all the rest, I am afraid, is hypocrisy.
Can I mention another thing. It is very easy to talk about whether detention is deterrent or punitive or whether it is necessary for security. It is easy to lose sight of the fact that detention is just a polite word for imprisonment, and imprisonment is, in almost all circumstances, to be understood as a punishment. There are some limited circumstances where it can be permissible to detain a person for administrative reasons, but detention becomes punishment very quickly and it is really hard to - I know these are matters of legal argument, but as a matter of common sense, it is very easy to lose sight of the fact that what we are doing is imprisoning people and that it is, on any view of the world, a punishment. Is it right to punish people in order to deter others?
COMMISSIONER OZDOWSKI: In evidence we heard that some of the detainees are of the view that prisons are easier for them to live in than the detention centres. Did you meet the same kind of opinion? And I am very careful with that argument because the last thing I would like to do is to have my Commission advocating here for prisons.
MR BURNSIDE: Yes. Yes. I have only limited experience of the Australian prison system. The modern prisons like Port Phillip
COMMISSIONER OZDOWSKI: Port Phillip, yes, I have been there.
MR BURNSIDE: in Melbourne is much, much better in its conditions than, for example, Woomera or Port Hedland or Curtin. Much better.
MS HYDON: And you would also say for juvenile prison in Melbourne, that is the experience I have
COMMISSIONER OZDOWSKI: Yes, I have seen them as well.
MS HYDON: The educational facilities in those places are
COMMISSIONER OZDOWSKI: Are excellent.
MS HYDON: excellent, you know, and you can continue your education to a great level if you would like to do that within a - and some of it is compulsory for children to continue their education while they are in juvenile settings.
COMMISSIONER OZDOWSKI: So one could say that comparable standards in modern prisons of Victoria are providing better conditions for Australian prisoners than for detainees, yes, in the present detention centres.
ASST COMMISSIONER SULLIVAN: Could I keep the analogy for a minute and get away from the physical plant and look at the rights of young people in youth detention centres compared with the rights of children and young people in these centres. Would someone like to comment on that? I guess the rights that children have - and I don't know what you call them in Victoria, is it youth remand centres or something like that?
MS HYDON: Juvenile justice facilities.
ASST COMMISSIONER SULLIVAN: We call them juvenile detention centres. But the rights that a person under 18 has in those centres vis-a-vis the rights that a child or young person has in one of the centres where we have been talking about this afternoon.
MR BURNSIDE: Can I make an obvious point on that. I think the main right which juveniles have in the orthodox prison system is a right to have the court determine whether or not they should stay there. And, of course, imprisonment in the justice system, imprisonment is regarded as a measure of last resort and especially with juveniles, and it will always be the careful consideration of a judge or a magistrate that results in a person going into a prison. It is the starkest contrast with the present system of automatic arbitrary indefinite detention.
There is another comparison which is probably interesting; in other states, Western Australia and I think the Northern Territory, they recently introduced a system of mandatory sentencing in certain juvenile offences; you know, three strikes and you are in. It is interesting that that created a furore to think that a child might be sent to - or might be incarcerated for 12 months without the judge having any say in it, but here routinely we are incarcerating people indefinitely without a judge being able to say, no, no, that shouldn't happen. I think the right to have a court determine whether your circumstances dictate imprisonment is probably the main distinguishing feature.
MR MANETTA: In fact, the phrase, mandatory detention, is euphemistic because what it is, is arbitrary detention to use the sort of language that the Commission would be familiar with from the ICCPR.
COMMISSIONER OZDOWSKI: How would you define arbitrary? And, in a way, what I am trying to find out is what kind of a length of time could be used as a necessary or fair time within the mandatory detention period, and different countries do define it differently. How would you look from the International Law point of view at the issue?
MR MANETTA: I think, with respect, that is to focus on the wrong question, how long you have to be in detention before the detention becomes arbitrary.
COMMISSIONER OZDOWSKI: With the other measures.
MR MANETTA: Ones - there are measures I am aware of; you know, one could say six weeks, for example, for security or health checks and those sort of things. But the real question - the real point is this: if you have a regime that provides for the mandatory detention of asylum seekers without regard to their circumstances, the sorts of circumstances that, as Julian said earlier, are very familiar to the criminal justice system in the bail context; that is to say, if you detain people without regard to the apparent strength of their claim for protection without regard to their existing connections to the community, and many asylum seekers have those connections already, without regard in summary to the risk that they may disappear, then that is arbitrary detention because it is detention without regard to the circumstances of the particular case.
It is not a complicated equation, it is arbitrary.
COMMISSIONER OZDOWSKI: That is very useful, thank you.
MR BURNSIDE: And made the more arbitrary because it applies not to people who have committed offences but to just one group of people who arrive in the country in a particular way. It is - I mean it is a truism now to observe that people who do break the law by overstaying their visas are very rarely put into detention. A minuscule percentage of them.
ASST COMMISSIONER THOMAS: There are many asylum seekers at the moment living in the community without ever being put in detention and yet in another way we have some who have been, you know, 18 months and I mean why is it those people stay there for so long?
MR BURNSIDE: Yes, can I just go back. Though you said there are many asylum seekers who have never been in detention I am not so sure about that, unless of course they came with visas. Yes.
ASST COMMISSIONER THOMAS: With papers, with visas.
MR BURNSIDE: Although I suspect that that is not so easy for them. They may come on student visas and then claim asylum. Why do they stay so long? They stay a long time because the process is often slow and it is made slower if they are rejected at each stage along the way.
Now one of the Minister's defences of the length of detention is that, well, these people challenge the system and they keep challenging all the way through to the Courts. It is really hard to understand why an exercise of your lawful rights should justify substantial times in detention. And, frankly speaking for myself, in case I embarrass the others the processes in the Refugee Review Tribunal leave a great deal to be desired. Their decision making is not of a high order and it is not surprising that a lot of people feel genuinely aggrieved by the decisions of the Tribunal and try as best they can to challenge those decisions in the Court.
The avenues that the Court review are limited enough and the sense of grievance is very great for people who have got strong claims for asylum but who get knocked off in the Tribunal and then try their chances in Court. All of that leads to them being inside for a long time. Why do the other processes take a long time? Because checking their claims will be slower in proportion to the civil strife in the countries they are fleeing from.
If you want to check a person's story, and you ring the local office in Kabul, it may take a little time before you get some answers. If you need to make enquiries of countries that are in great turmoil, well, then of course it will take a long time. So, in one sense the stronger their likely claim to asylum, the slower will be the process that recognises it.
COMMISSIONER OZDOWSKI: Would you see some deliberate policy decisions which do contribute to the slowing of the process down, or are you aware of decisions made by the government department which impact on processing. Just before I came to my functions the average time of processing was around eight months then it went to about three and a half months and we are back almost to eight months - a bit under it.
And, in a way, I am just wondering earlier as the explanation for shortening of the time of processing I was told that simply all three processes were put together, done at the same time. Consequently, the outcomes were coming much faster. Now, after 11 September, I am told that the security checks are much longer. Do you know of any other policy decision which contribute to extension or the length of the process?
MR BURNSIDE: I am afraid, I don't. But if I were to investigate it I would look for a correlation between the processing times and the country of origin and I would guess that countries that have now been characterised as the axis of evil probably are associated with the longest processing times for reasons that are self-evident.
MR MANETTA: Can I say, in answer to that question, I have been informed - I am not in a position to say it first hand, but I have been informed that there was a period shortly after 11 September, during the war in Afghanistan that followed that when processing of Afghan nationals in Woomera was suspended.
COMMISSIONER OZDOWSKI: Yes. I heard of it, yes.
MR BURNSIDE: Since we are talking about children, I rather doubt that there are very many child terrorists arriving by boat and I can say with real confidence I think, that the 18 month old child in Maribyrnong, who was born there, is unlikely to be a terrorist.
COMMISSIONER OZDOWSKI: A final question to you, Captain, if I could - you were talking about the conditions and the detention impact and so on and then you were talking about education, how inadequate it is there. My question is really from the point of view of your experience could you provide adequate education in the detention system?
MS HYDON: Ideally, adequate education would be provided within the community. Our group really felt strongly that one of the biggest barriers to education was detention itself and the location of the detention centres in isolated areas. So, the first preference would be to access educational facilities for very young children up all the way through to secondary, within the community, which are already being - are already in existence.
The models that we have talked about in this submission draw from those experiences and could be provided within a detention setting, drawing from experts within the field and with adequate resources and facilities and educators who are using the first language for example and a range of languages for children. It could be done and I think we can draw from - personally I can draw from the experience of the Safe Havens. We - I was involved in the play centres for the children in early childhood and they work extremely well and it was a collaborative process with parents, that parents were involved in the establishment of that educational facility.
They were constantly consulted, obviously using translators to be able to talk about what educational things they wanted for their children, particularly given the fact that they were going back and some of these children will enter into the community's - Australian community's educational facilities, but some of them will end up going back to their country of origin and wanting to take up education within that setting. So we need to speak to parents about that. But I think it can be done. The trouble with the situation at the moment is that it is so isolated that no-one wants to go there and it is - no educator wants to go there and not drawing from the experiences in major cities, which is where the best education is provided, I think, for the children in these circumstances.
COMMISSIONER OZDOWSKI: I don't have any other questions. What about the other members of the panel? Would you like to make some contributing remarks?
MR BURNSIDE: I think we have probably said everything we need to say and it would be self-evident if we tried to sum up.
COMMISSIONER OZDOWSKI: So, thank you very much to your team and your submissions. If there would have been an award for submissions, you certainly would have got one. Thank you very much.
THE WITNESSES WITHDREW [5.36pm]
ADJOURNED UNTIL FRIDAY, 31 MAY 2002
Last Updated 9 January 2003.