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Submission to the National Inquiry into Children in Immigration Detention from

People with Disabilities (NSW) Inc

February 2002

For further information contact:
Damian Griffis
Senior Policy Officer - Systemic Advocacy
People with Disabilities (NSW) Inc
PO Box 666
STRAWBERRY HILLS NSW 2012
Telephone: (02) 9319 6622
Facsimile: (02) 9318 1372
Email: damiang@pwd.org.au

Contents

1. About People with Disabilities (NSW) Inc.

2. Executive Summary

3. Conclusions and Recommendations

4. Terms of Reference

5. Introduction and General Observations

6. Immigration Detention Standards

6.1 Facilities
 6.2 Accessibility
 6.3 Privacy & Dignity
 6.4 Recreation
 6.5 Education
 6.6 Safety & Security
 6.7 Staff Training
 6.8 Solitary confinement/Punishment/Use of Force
 6.9 Medical/Care Needs
 6.10 Access to Complaint Mechanisms
 6.11 Staff Mentality

7. Convention on the Rights of the Child

8. Convention Relating to the Status of Refugees

8.1 Article 12
8.2.1 Article 16 (Point 1)
8.2.2 Article 16 (Point 2)
8.3 Article 22
8.4 Article 31
8.5 Article 32
8.6 Article 34

9. Declaration on the Rights of the Disabled

9.1 Article 6
9.2 Article 8
9.3 Article 11

10. Disability Discrimination Act

11. Commonwealth Disability Strategy

12. References

1. About People with Disabilities (NSW) Inc.

Our Identity

People with Disabilities (NSW) Inc (PWD) is a state peak disability rights and advocacy organisation. Its primary membership is made up of people with disability and organisations primarily constituted by people with disability. PWD also has a large associate membership of other individuals and organisations committed to the disability rights movement. PWD was founded in 1981, the International Year of Disabled Persons, to provide people with disability with a voice of our own. PWD has a cross-disability focus - we represent the interests of people with all kinds of disability. PWD is a non-profit, non-government organisation.

Our vision

Our vision is of a socially just, accessible and inclusive community, in which the human rights, citizenship, contribution and potential of people with disability are respected and celebrated. This vision underpins everything that we do.

Our mission

Our mission is to be the leading NSW disability peak organisation of and for all people with disability advocating in highly effective ways for the realisation of our vision of a socially just, accessible and inclusive community.

Our Core Values

We believe that people with disability, irrespective of the nature, origin, and degree of our disability:

Our Principles

In realising our vision, mission and core values, we are guided by the following principles:

Our Activities

PWD provides or undertakes the following activities:

2. Executive Summary

PWD as the peak disability advocacy organisation in New South Wales has lodged this submission to highlight the concerns this organisation has as to the treatment of children with disability in immigration detention centres. Throughout the researching for this submission PWD has noted the increasingly political overtone to much discussion about immigration detention centres. PWD hopes to highlight through this submission the need to remove the political and often emotional arguments and instead focus on the situation with children with disability as individuals.

This submission will highlight a number of international human rights treaties and conventions that the Commonwealth is a signatory. These include the Convention on the Rights of the Child, the Convention on the Status of Refugees and the Declaration on the Rights of the Disabled. Furthermore this submission will address Commonwealth anti-discrimination legislation and the Commonwealth Disability Strategy.

Furthermore, this submission has closely analysed the implementation of the Department of Immigration and Multicultural Affairs' (DIMA) own Immigration Detention Standards (IDS). As a general observation the IDS pay scant regard to the needs of people with disability and PWD believes our detailed analysis of the standards highlights this fact.

PWD has observed during the formulation of this submission that one of the fundamental problems likely to face this inquiry is the lack of concrete evidence relating to the mistreatment of children with disability. This is due to several factors including confidentiality agreements signed by staff working at immigration detention centres (IDC's). Indeed PWD has spoken with former staff of IDC's, whom have raised a number of very serious concerns and incidences that suggest that a 'correctional' mentality is prominent, which is naturally to the detriment in some cases of vulnerable children with disability. The contacts that PWD has made in this regard have not been able to disclose their personal details because of the confidentiality agreements and because they fear reprisals for providing such information publicly. PWD is gravely concerned about this restrictive policy of the Department of Immigration and Multicultural affairs (DIMA) in its administration of IDC's. This, we are concerned will be a serious inhibitor to the inquiry as it has been in the formulation of this submission.

PWD supports the Human Rights and Equal Opportunities Commissions (HREOC), comments in relation to the functioning of IDC's and we also strongly support HREOC's assertion that there needs to be amendments to the Disability Discrimination Act (1992) to remove the 'Migration' exemption in Section 52.

PWD offers this submission to emphasise the importance of international conventions as a fundamental compliance mechanism in the ongoing struggle for human rights for people with disability. The Commonwealth government has not only an obligation but also a central role to play in the equalisation of opportunity for people with disability in our society. The labelling of persons as 'illegals' or 'aliens' not only creates an environment of difference between peoples in Australia but also impacts on the well being of all children in immigration detention environments who are often powerless to self advocate. It is essential that the same rules of compliance that we expect and some times demand from other nations around the world be upheld by our Commonwealth government of the day. Without this accountability the rights of children with disability cannot be assured. This we believe presents another example of the need for Australia to have a bill of rights.

3. Conclusions and Recommendations

As a result of the analysis undertaken by PWD in the composition of this submission the following recommendations have been drawn.

The Department of Immigration and Multicultural Affairs (DIMA) needs to undertake an overhaul of its Immigration Detention Standards (IDS). The new Standards need to include several new directives including: The assurance that facilities be adapted to enable people with disability, accessibility. (Recommendation 1.0)

PWD concludes that the DIMA in it's administration of IDC's is in violation of the Convention on the Rights of the Child, the Convention on the Status of Refugees and the Declaration on the Rights of the Disabled.

PWD affirms that Commonwealth compliance to international conventions will go some way to improving the circumstance for people in IDC's. The current legal structure does not support compliance with international conventions. As it currently stands international conventions are only scheduled to the Human Rights and Equal Opportunity Commission Act (1986) and are not enforceable in the Commonwealth jurisdiction. This is a fundamental problem in relation to human rights in Australia. Currently the Commonwealth is unable to be held accountable in relation to the administration on IDC's. Indeed accountability is self administered by the DIMA. The same DIMA whom requires of its staff working in IDC's to sign confidentiality agreements. (Recommendation 2.0)

PWD strongly recommends the following amendments to Commonwealth legislation:

In conclusion, PWD has observed the very serious violations of international conventions by the Commonwealth, and a basic reluctance to allow assessment of its operations. It is in this environment that children with disability are being detained in IDC's. PWD as a peak disability advocacy organisation has observed the very serious lack of access to IDC for advocates and other professionals which seriously undermines the welfare of children with disability whose ability to access complaint mechanisms is seriously diminished.

4. National Inquiry into Children in Immigration Detention
Terms of Reference

This submission will focus upon the following Terms of Reference from the perspective of children with disability in immigration detention. Please note the highlighted part of the terms of reference are relevant to the content of this submission.

1. The provisions made by Australia to implement its international human rights obligations regarding child asylum seekers, including unaccompanied minors.

3. The adequacy and effectiveness of the policies, agreements, laws, rules and practices governing children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention, with particular reference to:

4. The impact of detention on the well being and healthy development of children, including their long-term development.

5. The additional measure and safeguards which may be required in detention facilities to protect the human rights and best interests of all detained children.

5. Comments and General Observations

For the purposes of this submission, a child is 'every human being below the age of eighteen years' as specified in Article 1 of the United Nations Convention on the Rights of the Child.[1]

For the purposes of this submission a child with a disability is defined as any human being under the age of eighteen years who has

(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.

As defined in the Disability Discrimination Act (1992) (the DDA).

During the formulation of this submission PWD has made a number of observations that we believe are important in understanding the nature of the problem facing detainees in immigration detention centres in Australia. Observations that are also important in relation to immigration in general. Whilst our submission relates specifically to the situation for children with disability in immigration detention, we also hold a general concern for the welfare of all detainees currently in immigration detention centres throughout Australia.

PWD has observed the difficulty in finding solid evidence in relation to the treatment of children with disability in immigration detention. One of the fundamental problems we faced in writing this submission is the difficulty in accessing information, even at the most basic statistical level. This only adds to our concern for the welfare of not only child detainees with disability but also all detainees currently in immigration detention centres. This lack of transparency suggests to PWD that there is a significant amount of covert activity being undertaken within the confines of immigration detention centres and also a serious lack of accountability present within the system.

Much of the evidence relating to mistreatment or issues surrounding the provisions of facilities for children with disability is anecdotal. Where PWD in its research for this submission has obtained first hand evidence of conditions in IDC's, we have not been able to identify the informant because of the informants confidentiality agreements and the informants fear of reprisals. PWD is both morally and ethically obligated to protect the identity of such individuals.

Furthermore there is limited scope for an advocacy organisation like ours to be able to physically visit immigration detention centres, particularly in remote parts of the country. This is a further fundamental problem that inhibits the ability of advocacy organisations like ours to provide even the most basic advocacy supports.

PWD has also observed the desperately inadequate access detainees have to appropriate complaint mechanisms, particularly in relation to the enforcement of complaints investigated under the Human Rights and Equal Opportunity Commission Act (1986).

PWD comments, with growing alarm the politicisation of an issue that fundamentally involves the lives of thousands of our fellow human beings. The use of terms such as 'illegals' and 'aliens' and 'queue jumpers' PWD believes has enabled the major parties to conduct a campaign of misinformation.

PWD further comments that it has detected racial overtones to a number of public comments made by prominent public figures. Whilst it is difficult to assert that these comments are explicitly linked to race, some prominent people have presented the public with a debate on immigration that is severely biased in his presentation of the facts.

During the writing of this submission it has become evident that the media plays a central role in information dissemination for the public. As the primary source of information we at PWD believe the media has a moral and ethical responsibility to report issues pertaining to immigration detention. It is with interest that we observe the plethora of surveys being conducted by media outlets asking the public their opinions of immigration detention. This we believe is a unique position for the media because they appear to be reacting to public opinion as opposed to providing the appropriate level of reportage on the predicament for detainees in detention. This is a serious double standard for a media that is so often keen to formulate public opinion, yet in this instance it appears to be impotent in its reportage and suddenly devoid of opinion. Of course this cannot be applied to all media outlets and forums however it appears to be evident particularly among the 'popular' commercial media.

Furthermore PWD is concerned about the very limited and highly secretive nature of access to immigration detention centres. It is clear that only through greater access to advocates, greater access to legal representation and greater access to the media and a more transparent administration of immigration detention centres can the plight of detainees be properly understood.

Finally we at PWD believe, if there is to be a 'debate' on immigration in this country then we must ensure that asylum seekers and immigration detainees have their side of the story presented. And that we have a 'debate' that includes an informed public as opposed to a directive from the major parties that defines the 'debate' and only includes participants of a like mind.

6. Immigration Detention Standards

The Department of Immigration and Multicultural Affairs (DIMA) has a set of standards that relate to the 'quality of care and quality of life in immigration detention facilities.[2] The Department states that 'these standards must be met in all circumstances except where it is demonstrated that the security and good order of the detention facility would otherwise be compromised. [3]

The application of the Immigration Detention Standards (IDS) cannot be categorically ascertained due to several factors. Firstly the high level of secrecy surrounding IDC's. Secondly because of confidentiality agreements signed by IDC staff. Thirdly the inability of a peak disability organisation like PWD to access IDC's. The level of secrecy and serious lack of discernible information seriously compromises not only the lives of all detainees within IDC's but brings into question very seriously the modus operandi of IDC's. It is in this highly restrictive environment that PWD offers its analysis of the DIMA Immigration Detention Standards.

6.1 Facilities

PWD is seriously concerned about the provision of facilities for children with disability in immigration detention. Some children with disability may require other facilities than that provided to children who do not have a disability. In some instances these facilities will need to be specific to their type of disability. PWD is concerned that Immigration Detention Centres (IDC's) apply a uniform approach to the building of facilities and that the needs of detainees with disability are simply not considered.

As the photographs taken by staff from the Human Rights and Equal Opportunity Commission show the facilities at Woomera Immigration Detention Centre do not consider the needs of children with disability. This is particularly evident when considering the needs of children who require the use of a wheelchair for example. [4]

6.2 Accessibility

As the photographs posted on the HREOC website taken at Woomera Immigration Detention Centre show accessibility to the buildings would be impossible for children with mobility difficulties. [5] The buildings are demountable with stairs leading to a door, which would make it impossible for a child in a wheelchair for example to negotiate independently. Furthermore PWD notes that in some detention centres particularly those in remote areas that the ground surface is very dusty and uneven. This would also contribute significantly to the lack of accessibility to children with disability.

6.3 Privacy and Dignity

PWD observes that DIMA's own immigration detention standards do not take provision for the needs of children who may require support with personal care because of the nature of their disability. PWD observes that there is no provision for ensuring that children in such situations be supported by staff who are trained in providing such support to children with disability.

PWD observes that the detention environment by definition deprives individuals of their dignity. PWD asserts that children with disability are acutely aware of their lack of dignity in such an environment. This is manifested by the lack of facilities catering for their needs and the inaccessibility of some buildings. PWD observes that the combination of persons from many different cultural backgrounds may also contribute because of different cultural understandings of disability. PWD is gravely concerned for the general well being of children with disability; children who are already devalued by society at large, and that are subjected to an environment that denies them the opportunity to grow and develop as individuals.

6.4 Recreation

PWD is concerned about the accessibility of recreational activities for children with disability. PWD asserts that all children with disability be able to access recreational activities of their choice. Furthermore, PWD is concerned about the nature of recreational activities. PWD is concerned that much of the talk around detainee access to recreation has centred on sporting activities. For example it is often remarked by DIMA officials that detainees have access to sporting facilities such as basketball rings and soccer balls etc. This however may not be appropriate for some children with disability.

An essential part of recreation is choice. PWD observes that the ability of children with disability to choose recreational activities is seriously diminished. Children with disability must be able to access other recreational activities such as arts and crafts for example.

Recreational, cultural activity and stimulation is particularly important for children in the detention setting.[6]

Furthermore PWD is concerned about the relationships between children with disability and other children in detention. PWD is concerned that the social dynamics that may be present in a detention environment, whereupon children with disability may not be accepted into their peer groups. PWD is unclear as to how these dynamics are identified by DIMA staff and what work is undertaken to foster relations between children with disability and those children in detention who do not have a disability.

6.5 Education

PWD as a peak disability advocacy organisation is acutely aware that access to education does not apply universally to all children in mainstream Australian society, let alone in a detention environment. Children with disability may require specialist support from teachers and teaching aids that will enable them to learn. PWD is gravely concerned that such supports are not being provided to children with disability. Furthermore, PWD is concerned as to the tokenistic nature of education, with children spending as little as 8 hours per week studying.

HREOC officers also observed that despite ACM's efforts to provide schooling opportunities for the children, this is confined to those aged twelve and under, and it is not comparable in any way to the education received by Australian twelve year olds. There are a number of children over 12 years of age that virtually receive no schooling at all. All children are taught in the one classroom. Education is provided for a total of only two hours a day, four days a week.7

6.6 Safety and Security

PWD is concerned about the safety of vulnerable children with disability. PWD asserts that DIMA need to show how they create an environment for children with disabilities where they feel secure; when the environment is extremely tense. PWD has observed the continuing escalation of violence in IDC's throughout Australia which obviously impacts on feelings of security substantially.

PWD is concerned that children with disability are especially vulnerable to acts of violence and sexual exploitation. PWD is concerned that IDC's create a self-perpetuating environment of violence where the ability of all children and especially children with disability to defend and protect themselves is seriously diminished.

Furthermore, PWD finds it inconceivable that a child with a disability could feel safe and secure with the use of water cannon to quell protests and the spectre of deportation an everyday reality. PWD is also concerned about the levels of exposure to violence; children with disability are experiencing, which may in some circumstances simply be a continuation of a violent environment that the child has sought to flee from.

6.7 Staff Training

PWD asserts that DIMA needs to show what training is provided to IDC staff that enables them to recognise and deal with the symptoms of depression and psychiatric disorders. Furthermore DIMA needs to show who provides such training, ie. is the training provided by an accredited training organisation that specialises in the recognition of depression and psychiatric disorders in individuals who have experienced displacement and serious trauma?

It is essential that all officers dealing with detainees have some training in recognising possible mental illness and responding appropriately. There is a need for procedures to be in place for obtaining medical or psychiatric assessment when necessary, including after hours. [8]

PWD asserts that DIMA show how they 'deal' with a child who has depression and psychiatric disorder and how staff minimise the potential for detainees to self-harm. PWD is concerned that this may involve the physical and/or chemical restraint of a child. PWD is particularly concerned about this issue in view of the recent events at Woomera IDC that has seen the non-renewal of contracts of two long term psychologists as reported in the Sydney Morning Herald on January 23 2002. [9]

PWD asserts that DIMA as part of their 'minimum set of competencies' [10] required of all staff ensure that staff be aware of the needs of detainees with disability. Including the needs of detainees with sensory disability, physical disability, intellectual disability, and the needs of people with a mental illness and those people who have contracted an infectious disease.

PWD asserts that DIMA include as part of the 'required knowledge base' [11] of all staff, an awareness that they are working in an environment where people will often be distressed and likely to be suffering from some form of mental illness. Furthermore PWD asserts that DIMA staff should appreciate the anxiety and stress detainees may experience and how this can manifest itself in behaviours that may be indicative of the desperation of detainees.

6.8 Solitary Confinement/Punishment/Use of Force

PWD asserts that DIMA show what is meant by 'taking action' [12] to manage behaviour and what are the implications for children with disability. If the detention centre goes into 'shut down' during an extended period of unrest, are children with disability still able to access the supports they need.

PWD asserts that DIMA should show what constitutes 'prolonged solitary confinement'. [13] PWD would like DIMA to show the inquiry whether children with disability are placed in solitary confinement. PWD asserts that it is possible that a child who may have a mental illness may exhibit behaviours that according to detention standards may cause them to be solitary confined.

PWD would like DIMA to show what alternatives there are to solitary confinement. Furthermore, PWD would like DIMA to show how it recognises in children the manifestation of mental illness when it may be that behaviours are more a result of a mental illness, where a punishment consequence is an inappropriate way of supporting and/or rehabilitating a child.

PWD would like DIMA to show if the use of 'reasonable force' [14] applies to children with disability. Also DIMA needs to show exactly what weaponry has been approved by DIMA and whether any of this weaponry is used on children.

Departmental and APS staff have been aware of allegations that APS officers have assaulted child detainees and have not conducted any inquiries into these allegations.[15]

PWD's experience with other institutional settings has taught us that often people with mental illness are the first to be physically and chemically restrained, with the restraint being used as a control mechanism as opposed to an effective form of treatment.

6.9 Medical/Care Needs

PWD asserts that DIMA needs to show whether they have bathing and showering facilities that are accessible to people with disabilities and that detainees with disabilities have the same level of privacy afforded to other detainees.

PWD asserts that the care needs of children with disability need to be determined by qualified medical personnel who have experience dealing with children who may have experienced trauma. Furthermore, medical personnel need to be qualified in assessing the care needs of children with disability across all disability types.

PWD is seriously concerned about the processes used to determine the nature of a child's disability. If for example a naval ship intercepts a child and transfers the child to a Pacific Island or Christmas Island holding camp, at what point are the care needs of the child assessed?

PWD is seriously concerned about how an intellectual disability is determined for example, in a child from a Non-English speaking background. If the child is assessed using the 'IQ' method of determining intellectual ability is this test undertaken in the child's native tongue in the presence of an interpreter, with the support of parents, or with someone who can advocate on the child's behalf? PWD is seriously concerned as to whether such an assessment is even undertaken.

PWD is also seriously concerned about the assessment of children as to whether they have mental illness, given that most child detainees will have undertaken a traumatic and hazardous journey. PWD notes that not all mental illness will manifest immediately, particularly with incidences of post traumatic stress disorder. PWD asserts that the assessment of care needs must be ongoing, this also applies to children who may have contracted an infectious disease or are suffering from a degenerative condition. PWD observes that it is virtually impossible to offer individual support in some IDC's where there are as many as 700 detainees and only two physologists.[16]

PWD is concerned that children with disability, particularly those children who have a mental illness that are referred to specialist institutions or to community hospitals away from family. PWD asserts that their family members must be able to visit children who are removed from detention centres and placed in other institutional settings.

PWD concludes that the regular monitoring of the care needs of children with disability is not being met, particularly in relation to the mental health needs of children in detention.

6.10 Access to Complaint Mechanisms

PWD asserts that the opportunity to comment or complain about conditions of detention to DIMA on any matter should be accessible to children with disability. Where a child with disability has a disability that restricts them from complaining in a written form for example that they be provided with an alternative means of lodging a complaint. This may involve the support of an advocate in writing the complaint or availing the child of the opportunity to present a complaint orally, in a taped recording for example. Also, PWD asserts that the material advising of the right to complain to the Ombudsman is available in an accessible format for people with disability.

6.11 Staff Mentality

During the course of the research for this submission PWD has been in contact with a former staff person. [words deleted] This former staff member cannot be identified because of a confidentiality agreement [word deleted] entered into with the former employer. Also the informant is very wary of potential reprisals for speaking out.

The former employee sighted several examples of treatment that indicated very strongly the prominence of a 'correctional' mentality. The former employee noted that staff are rotated on a '6 week basis' with some staff rotated from prisons and other correctional facilities. This strongly suggest to PWD that some IDC staff would have very limited experience working with people from a Non-English Speaking Background, those that have suffered torture and/or trauma and children in general.

The former employee also sighted other examples that suggested a serious conflict between staff from a correctional background and those staff who come from a background in social work. PWD believes that these conflicts are seriously undermining the welfare of all detainees and is having a seriously detrimental effect on children with disability. Unfortunately PWD does not have the resources to investigate such workplace dynamics further, but we at PWD believe that this is a very serious issue that warrants further investigation.

Whilst APS officers receive some training to promote understanding of the stress experienced by asylum seekers who are detained, the reliance on 'fly-in' staff who do not receive adequate training has contributed to an atmosphere of punitive control at the Port Hedland immigraiotn detention centre. [17]

7. Convention on the Rights of the Child

Australia as a signatory to the Convention on the Rights of the Child has a number of obligations that are relevant to the Commonwealth government's administration of immigration detention centres. During the research for this submission and according to the observations of the HREOC PWD is in agreeance with HREOC that the Commonwealth government of Australia is in violation of the Convention.

Article 3 of the Convention discusses the fact that public and private authorities must act in the best interests of the child. Clearly detention is not in the best interests of the child. Children with disability require an environment that is free from stress and anxiety and is conducive to learning and development. Furthermore children in immigration detention are facing conditions that will invariably result in the detrition of their mental health, it is hard to imagine any child in detention will end their experience of detention in a improved state, having been subjected to a detention environment that under any circumstance could be conceivably considered to be in the best interests of a child with a disability.

Furthermore, PWD believes that the DIMA as administrator of IDC's is violating this Article in relation to children with disability by providing an environment that is clearly unsafe; as indicated by the prominence of violence perpetrated by detainees and DIMA authorities. DIMA also violates this Article by ignoring the health needs, particularly the mental health needs of child detainees. This is evidenced by the serious under resourcing of mental health practitioners. Furthermore, DIMA is in violation of this Article by neglecting the need for staff to be appropriately trained in the needs of disabled children.

The DIMA obligations under the Convention include the provision of an environment that ensures the survival and development of the child in detention. PWD believes that the survival and development of a child with a disability cannot be assured in an environment that is highly strained with the manifestation of a mental illness in a child a distinct possibility. Furthermore PWD believes that the development of a child with a disability is sabotaged by the provision of facilities that are not completely accessible. This includes physical accessibility to facilities, but also the accessibility of education for example to children with disability.

As outlined in Article 19 that relates to freedom from violence and exploitation, PWD believes that the needs of children with disabilities in relation to personal safety are not being met by DIMA. The media has reported several cases of child sexual abuse within the detention environment; this raises serious concerns about the vulnerability of children with disability. PWD asserts that children with disability should be educated in understanding what is appropriate sexual practice.

Article 23 discusses dignity. PWD believes that IDC's completely strip individuals of their dignity, this is particularly pronounced for children with disability. In many instances detainees have fled oppression with little or no possessions and undertaken an extremely hazardous passage to Australia only to be detained for seeking asylum, in an environment that effectively treats them as criminals. For children with disabilities who are devalued by society because of their disability their lack of dignity is felt acutely, with detention only adding weight to their own sense of being devalued.

Furthermore as outlined in Article 23, PWD believes that the DIMA does not recognise the rights of disabled children to access special care. This is especially prevalent when considering the mental health needs of children, as evidenced by the reduction of psychologists at the Woomera Detention Centre and the lack of specialist mental health practitioners who have experience working with children who have and are suffering trauma. DIMA is also failing to recognise the rights of children with disability, by providing inadequate supports to children with physical and sensory disabilities. DIMA must provide greater accessibility to children with disabilities in all facets of the detention environment ie. education and recreational programs. DIMA must also provide direct support to children with disabilities when it is shown that the parents of that child can no longer provide effectively.

Article 24 discusses health. PWD believes that DIMA does not ensure that children with disabilities in detention enjoy the highest attainable standard of health and access to facilities for the treatment of illness and rehabilitation. PWD believes that this particularly relates to children with mental illness and their access to appropriate supports and treatment. PWD believes that rehabilitation and mentally ill children is negligible in an environment that is so highly charged. IDC's are detrimental to the rehabilitation of children with a mental illness. Furthermore, PWD is concerned about the ongoing accessibility for children with disability to treatments and rehabilitation for children with degenerative conditions and those children who have contracted and infectious disease.

PWD asserts that IDC's are a devoid of spirituality due to the prominence of violence and tension. PWD asserts that to assure some sort of spirituality all children with disability must be free to worship and access a venue for their worship, whatever denomination. The facilities themselves must reflect the true nature of their religion.

PWD believes that the DIMA violates Article 37 (b) of the Convention by detaining children with disability for a period of time that is not the shortest appropriate period of time. The processing of visa applications takes an inordinate amount of time, far beyond international conventions, far slower that processing other Western nations. Indeed it is suggestible that this is a deliberate policy of the DIMA designed to create precedents that will discourage further asylum seekers from attempting to enter Australia.

PWD believes that children with disabilities who are detained in IDC's are deprived of their liberty, because they are heavily restricted in their movements, because they are confined to a detention environment, because their ability to make choices is seriously diminished, because they are effectively stateless and because it is extremely difficult for a child with a disability to access even the most basic human rights such as legal representation, this results in the lose of human dignity for all children with disabilities in detention.

8. Convention relating to the Status of Refugees

PWD has identified the United Nations Convention relating to the Status of Refugees as a Convention that Australia is in violation of. PWD notes with concern that some refugees that are being detained in Pacific Island states that are not signatories to the Convention.

Nauru is not a signatory to the 1951 Convention on the Status of Refugees and has not expertise in processing applications for asylum. Other Pacific countries cited as possible locations for detention camps, such as Palau (16,000 people) and Kiribati (70,000 people), have also not signed the Convention.

While Papua New Guinea has signed the 1951 Refugee Convention, it has placed on it significant reservations, and does not accept Convention obligations covering: Wage-earning employment (Article 17); Housing (Article 21); Public education (Article 22); Freedom of Information (Article 26); Refugees unlawfully in the country of refuge (Article 31); Explusion (Article 32); and Naturalisation (Article 34).[18]

PWD has identified the following articles of the Convention as being in contention;

8.1 Article 12 - Personal status

1. The personal status of a refugee shall be governed by the law of the country of his [19] domicile or, if he has no domicile, by the law of the country of his residence.

PWD believes that the personal status of a refugee in Australia according to this Convention would mean that they are eligible for coverage under Federal anti-discrimination legislation, specifically the Disability Discrimination Act (1992). This is because the status of a refugee is governed by the law of his domicile or by the law of the country of his residence. However it would also apply that a refugee is subject to the Migration Act (1958) for example, which specifies that an individual can be denied entry into Australia because they have a disability. However we at PWD contend that the Disability Discrimination Act (1992) is also applicable for an individual who has sought asylum and has arrived in Australia but has not been denied access because of their disability because they have avoided expulsion by seeking asylum directly to Australia as opposed to be denied access by seeking residence by the standard procedure. PWD contends that the grounds for discrimination covered under the Commonwealth Disability Discrimination Act (1992) apply to all detainees within IDC's who have a disability.

8.2.1 Article 16 - Access to courts

1. A refugee shall have free access to the courts of law on the territory of all Contracting States.

PWD believes that access to the courts to be available to children with disability who are in detention. It should be that access to the courts considers the needs of children with disability who are from a Non-English Speaking background. PWD submits that access to the courts of law in Australia can only be assured by providing child detainees with disability information about their rights that is in a format that enables them to understand their rights.

PWD believes that access to immigration review mechanisms be able free of charge. PWD notes with concern the requirement of appellants to pay a large fee to the Migration Review Tribunal for the hearing of their appeal; this is in violation of this article that requires free access to courts of law, which we at PWD take to mean all possible review mechanisms.

8.2.2 Article 16

2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi.

PWD believes that all children with disability in detention should have access to specialised legal assistance. This would involve the acquisition of legal assistance that specialises in law relating to children, criminal law and anti-discrimination law, and specifically disability discrimination law. PWD asserts that this access to legal assistance be provided free of charge as if provided to any member of the public who is seeking legal assistance in a matter where they are not in a position where they can pay for such service.

8.3 Article 22 - Public education

1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

PWD notes that for the DIMA to comply with this article of the Convention, the Department would need to insure that all children within the detention environment can access elementary education, in the same way that is afforded citizens of Australia. Therefore it is a requirement of DIMA to provide elementary education to children with disability in detention. This will involve the DIMA providing specialist support to children with disability.

8.4 Article 31 - Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

PWD observes that the DIMA is in violation of this Convention particularly in relation to detainees from Afghanistan and other nations that are currently involved in conflict. PWD notes that children with disability who are seeking asylum in Australia from oppressive regimes are in fact coming directly from a territory where their life or freedom was threatened and that they are in a particularly vulnerable position. PWD believes that DIMA should acknowledge that children with disabilities are especially vulnerable and that the likelihood of their life or freedom being threatened is often heightened because of their level of vulnerability. PWD also believes that the DIMA acknowledge that in some instances the very reason that families seek asylum is in the hope that not only will they be able to flee oppression but also to enable their child or children with a disability a better opportunity to live a fulfilling life.

8.5 Article 32 - Expulsion

1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

PWD detects that few expulsions of refugees relate to grounds of national security or public order; this is particularly evident in relation to children with disability. PWD notes that many expulsions of refugees relate to the status of an individual and whether they are indeed a refugee. PWD notes that in some instances children with disabilities and their families are not being considered as refugees, yet we at PWD are at a loss as to how these people can otherwise be categorised. PWD is gravely concerned as to the grounds of national security and public order are defined with particular concern relating to the prominence of Afghan refugees being expelled. PWD believes that Afghan refugees are being expelled because of their nationality as opposed to any evidence pertaining to national security or public order. This prejudicial treatment is having an seriously adverse effect on Afghan children with disability who are seeking to flee their own countries lack of national security and public order only to be told upon arrival in Australia that they themselves are a risk to Australia's national security and public order.

8.6 Article 34 - Naturalisation

The Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings.PWD believes that for the DIMA to comply with this Article of the Convention the Department will need to seriously overhaul its procedures. There is significant evidence that outlines the extraordinary amounts of time detainees are waiting to have even the most basic assessments as to their status. For children with disability and their families this is and will continue to have an ongoing seriously destabilising effect. The DIMA needs to acknowledge that the excessive amounts of time that detainees are awaiting for the processing of their applications is contributing very significantly to the tense and stressful environments that detainees find themselves in. PWD wants the acknowledgment of the DIMA that these time frames for processing has an especially detrimental and stressful effect on the lives of children with disabilities.

9. Declaration on the Rights of the Disabled

PWD would like the DIMA to acknowledge the United Nations Declaration on the Rights of the Disabled as a minimum standard in their administration on IDC's. PWD has specifically identified a number of concerns that are best alleviated by the enforcement of the Declaration.

9.1

6. Disabled persons have the right to medical, psychological and functional treatment, including prosthetic and orthetic appliances, to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counselling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration.

PWD observes that under this Declaration DIMA has an obligation to ensure that children with physical disabilities have access to prosthetic and orthetic appliances. This includes not only access for wheelchairs for example but facilities that ensure that buildings are more accessible. For example grab rails to assist access.

DIMA also has an obligation to provide children with disabilities with appropriate resources to enable them to rehabilitate. We at PWD believe this is a moot point, particularly in relation to children with a mental illness. PWD feels that the possibilities of a child with a mental illness rehabilitating or having their situation improve even minutely are a virtual impossibility in such an environment. For effective support and care a child with a mental illness cannot reside in IDC and receive treatment and authorities cannot possibly expect a child's condition to improve.

9.2

8. Disabled persons are entitled to have their special needs taken into consideration at all stages of economic and social planning.

PWD has outlined throughout this submission a number of areas where the DIMA is deficient in its administration of IDC's and detainees with a disability. It is evident that the DIMA does not consider the needs of people with disability. It is an integral part of any organisations planning that it be inclusive and supports the needs of all groups within our community. It is clearly a case of the needs of children with disability is simply not considered in this environment as evidenced by the details within this submission.

9.3

11. Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. If judicial proceedings are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.

PWD contends that DIMA is not providing the appropriate legal advice to children with disability who are in detention. Under any number of United Nations Conventions and Declarations the right to access legal advice is paramount, it is clear that DIMA is neglecting it's obligations at even the most basic level. PWD is seeking the acknowledgment of DIMA that children with disability have very specific needs that require the specialist advocacy of experts in legal matters for children and disability discrimination.

10. Disability Discrimination Act (DDA)

PWD supports HREOC's position that amendments should be made to the DDA in the area of Migration. Currently any acts done in relation to the administration of the Migration Act (1958) are not subject to the DDA. PWD asserts that this seriously undermines the human rights of children with disability in immigration detention centres.

The alternative available to detainees with disability relates to lodging a complaint under the Human Rights and Equal Opportunity Commission Act (1986) (the HREOCA) which has a number of UN Conventions scheduled to the Act, such as those identified in this submission. However, this piece of legislation does not enable enforceability with the most that a complainant can expect is that their complaint be tabled in parliament. This also seriously undermines the human rights of child detainees with disability, by restricting their complaint to a political environment. Children with disability who have been treated in a discriminatory way whilst in immigration detention and therefore subject to the Migration Act (1958), cannot seek redress in Australian courts. The only redress available to a child with disability who has been treated discriminatorily is to have their complaint tabled in Parliament. PWD asserts that this therefore places the plight of children with disability in a political forum. Children with disability in immigration detention centres are in the unique situation of being beyond the scope of Commonwealth law, which is a discriminatory treatment in itself. PWD wholeheartedly supports HREOC's recommendation that an amendment to the DDA be made that removes the provision of Section 52 of the DDA that enables the application of the Migration Act (1958) override the DDA.

PWD believes that the DIMA is discriminating against people with disability in its application of the Migration Act (1958), whereupon people with disability can be refused migration to Australia. PWD believes that the reasons for such provisions is essentially undertaken on a 'cost benefit' analysis. The defence used by DIMA is that the cost to the Commonwealth is supporting a person with a disability may be too much for the Commonwealth to bare. PWD believes that this is fundamentally discriminatory in that it treats people with disability less favourably and is an inflexible and prejudicial assessment.

Significantly the Migration Act (1958) exemption under the DDA makes it impossible for associates of children with disability to lodge a complaint under the DDA. This further restricts the ability of children with disability to lodge complaints because it may be that their 'associate' may be the most likely to lodge a complaint.

PWD notes with concern that the DIMA has not lodged an action plan under the DDA with HREOC. The lodgement of action plans under the DDA are not compulsory, but they are an important way for the public to know those government agencies and those organisations that are serious about disability discrimination. PWD views the fact that DIMA has not lodged an action plan with HREOC (as of February 1 2002) as a disappointment and a further indication of the detriment that occurs as result of the Section 52 of the DDA exemption. PWD believes that amending the DDA to remove the Section 52 exemption would perhaps improve the likelihood of the DIMA lodging an action plan under the DDA.

PWD notes that an amendment to the DDA removing Section 52, would enable people with disability in immigration detention to potentially lodge complaints in a number of different areas. PWD believes that this at least make the DIMA accountable. PWD is concerned that without the amendment the situation for people with disability in immigration detention will remain a political one.

Finally PWD believes that Section 31 of the DDA that states

31 Disability Standards

(1) The Minister may formulate standards, to be known as disability standards, in relation to:
(d) the provision of public transportation services and facilities by:
(i) the Commonwealth; and
(e) the administration of Commonwealth laws and programs in respect of persons with a disability.

PWD believes that an important way of ensuring the human rights of children with disability in immigration detention would be by the development of Disability Standards under the DDA. These standards need to relate to the provision of the facilities in immigration detention centres and furthermore in the administration of Commonwealth laws and programs and their application for people with disability. For this to occur PWD notes that an amendment of the DDA is required as observed by HREOC.

11. Commonwealth Disability Strategy

The Commonwealth Disability Strategy (CDS) is a Federal government initiative that is meant to ensure the equalisation of opportunity and access to the Commonwealth Sector for people with disability. It is an initiative that has the potential to have a positive impact on the lives of people with disability with regard access to a number of Commonwealth departments. However PWD believes it is clearly evident that this positive approach does not apply to the DIMA in their administration of immigration detention centres on Australia.

For DIMA they are able to invoke the provisions of the Migration Act (1958) which appear to override any obligations under the CDS. It is of great concern that a Commonwealth Department that has one of the most direct involvements with people with disability would choose to disregard their own Commonwealth's government's initiatives. Unfortunately the Commonwealth's own correspondence regarding CDS does not specify this discrimination between Australians and those in immigration detention and we at PWD would suggest that this distinction be made for the benefit of persons who may not have citizenship. Furthermore the CDS would be well advised to note that accessibility does not apply to people with disability in immigration detention. Our submission has highlighted a number of areas where it is clear that notions of accessibility and opportunity so widely espoused in the CDS are not applicable to persons with disability who are in detention. DIMA may be able to present an argument that they have met their obligations under the CDS, this may well be the case in relation to the operations of their offices for example or accessible websites, or in their employment initiatives for people with disabilities, however we at PWD are convinced that CDS principles simply do not apply to immigration detention centres.

12. References

Commonwealth Ombudsman, Investigations of complaints concerning the transfer of Immigration detainees to State prisons; Report of the Commonwealth Ombudsman, December 1995.

Department of Immigration and Multicultural Affairs, Immigration Detention Standards, http://www.immi.gov.au/illegals/det_standards.htm

Human Rights and Equal Opportunity Commission, Media Statement by President Alice Tay AM and Dr Sev Ozdowski, Human Rights Commissioner OAM, 6 February 2002, entitled Woomera Immigration Detention Centre, Report of Visit by HREOC officers.

Human Rights and Equal Opportunity Commission, Those who've come across the Seas, HREOC, Sydney 1998.

Oxfam Community Aid Abroad, Adrift in the Pacific; the implications of Australia's Pacific Refugee Solution, Oxfam Community Aid Abroad, February 2002.

Sydney Morning Herald, January 23 2002, Ruddock adviser quits in disgust.

1 Article 1 of the UN Convention on the Rights of the Child states 'For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained.'

2 Department of Immigration - Immigration Detention Standards, http://www.immi.gov.au/illegals/det_standards.htm

3 Department of Immigration - Immigration Detention Standards, http://www.immi.gov.au/illegals/det_standards.htm

4 Photos available on the Human Rights and Equal Opportunity Commission website at http://www.humanrights.gov.au/media_releases/2002/06_02.html

5 Photos available on the Human Rights and Equal Opportunity Commission website at http://www.humanrights.gov.au/media_releases/2002/06_02.html

6 Those who've come across the Seas; Human Rights and Equal Opportunity Commission inquiry into conditions of detention. Quote take from page 186 of the report. Report available online at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf

7 Quote taken from HREOC website as part of media statement dated 6 February 2002; Media Statement by President Professor Alice Tay AM and Dr Sev Ozdowski, Human Rights Commissioner OAM, Woomera Immigration Detention Centre, Report of visit by HREOC officers.

8 Quote taken from page 72 of the Investigations of complaints concerning the transfer of Immigration detainees to State prisons; Report of the Commonwealth Ombudsman, December 1995.

9 Information obtained from Sydney Morning Herald article on front page entitled Ruddock adviser quits in disgust, published on Wednesday January 23 2002

10 Immigration Detention Standard 6.1.1 published by DIMA; website address http://www.immi.gov.au/illegals/det_standards.htm

11 Immigration Detention Standard 6.1.2 published by DIMA; website address http://www.immi.gov.au/illegals/det_standards.htm

12 Immigration Detention Standard 7.2.3 published by DIMA; website address http://www.immi.gov.au/illegals/det_standards.htm

13 Immigration Detention Standard 7.8.3 published by DIMA; website address http://www.immi.gov.au/illegals/det_standards.htm

14 Immigration Detention Standard 7.9.1 published by DIMA; website address http://www.immi.gov.au/illegals/det_standards.htm

15 Quote taken from HREOC report entitled Those who've come across the seas, quote on page 123. Report can be obtained at website address http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf

16 Information obtained from Sydney Morning Herald article on front page entitled Ruddock adviser quits in disgust, published on Wednesday January 23 2002

17 Quote taken from HREOC report entitled Those who've come across the seas, quote on page 122. Report can be obtained at website address http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf

18 Quote taken from page 6 of Adrift in the Pacific; the implications of Australia's Pacific Refugee Solution, published by Oxfam Community Aid Abroad, February 2002.

19 The use of the word 'his' or 'he' is an exact duplication of the wording of the Convention relating to the Status of Refugees. PWD acknowledges that this language appears as gender specific and that this may cause offence, however for the purposes of this submission exact duplication of the wording of articles in the Convention has been retained and PWD obviously acknowledges that in this instance the use of the words 'his' or 'he' relate to all persons regardless of gender.

Last Updated 9 January 2003.