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Submission to the National Inquiry into Children in Immigration Detention from
the Department of the Premier and Cabinet - Division of Multicultural Affairs - South Australia
INTRODUCTION
This submission provides information relevant to the treatment of children in detention for the Human Rights and Equal Opportunity Commission's national inquiry into the situation of children in immigration detention.
The submission covers a range of relevant issues, including international covenants on the rights of children, the emotional health and well-being of children in detention, educational and recreational opportunities of child detainees, unaccompanied humanitarian minors, alternatives to detention, as well as the post-detention needs of asylum seekers. The submission concludes with a number of recommendations for HREOC to consider.
At present (early May 2002), there are approximately 1000 unauthorised boat arrivals in immigration detention centres in Australia and approximately 1700 in off-shore processing centres (Nauru, Cocos Islands and elsewhere). In the Woomera Immigration Reception and Processing Centre in South Australia, there are 220 detainees, of whom 44 are children. An additional 17 women and children are in an alternative detention trial in the Woomera township (referred to in the Alternative Detention section).
ISSUES
International Covenants on Children in Immigration Detention
The United Nations High Commissioner for Refugees (UNHCR) Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999) indicate that the detention of asylum seekers is undesirable and - in many instances - contrary to the principles of international law. Specific guidelines on various matters are highlighted, including Guideline 2 (the general principle that asylum seekers should not be detained), Guideline 3 (the exceptional grounds for detention), and Guideline 6 (relating to the detention of persons under the age of 18 years). According to Guideline 6, children who are asylum seekers should "not be detained".
Although the UNHCR guidelines and international human rights conventions do not constitute domestic law, they should affect decision-making and are central to the functioning of a democratic society. In ratifying the United Nations Convention on the Rights of the Child, Australia has indicated its support for the rights of children and for children to have access to resources that provide them with the best possible developmental outcomes.
The Convention stipulates that:
- States take all measures appropriate to ensure that children are protected from all forms of discrimination or punishment (Article 2);
- The best interests of the child shall be a primary consideration (Article 3);
- Children should not be separated from their parents against their will (Article 9);
- Child asylum seekers are to be protected from violence (Articles 19 & 34) and given the opportunity for recovery from the effects of neglect, exploitation, abuse, torture and armed conflict (Article 39);
- All child asylum seekers, whether accompanied or not, should receive appropriate protection, assistance and education (Article 22);
- Child asylum seekers are to be provided with a standard of living adequate for their physical, mental, spiritual, moral and social development (Article 27);
- The detention of all child asylum seekers ought to be used only as a measure of last resort and for the shortest possible period (Article 37).
The conditions for children in immigration detention in Australia are not congruent with the rights stipulated in the UN Convention and the UNHCR Guidelines.
Emotional Health and Well Being of Children in Detention
Children in immigration detention are a vulnerable group in view of their ages, stages of development, health, well-being and social support needs.
Any children moving from one culture to another are likely to face adjustment problems, particularly if the new environment is different from their parents' own culture and country of origin. However, child asylum seekers are likely to face additional factors that compound their adjustment difficulties, including abuse, trauma or armed conflict that they may have witnessed and/or suffered themselves, inadequate living standards, and difficult circumstances that they may have encountered during their voyage to Australia.
The emotional health, as well as physical and intellectual development of children, require environments that are safe, nurturing and socially and intellectually stimulating, and conducive to advancing social and emotional development. Physical environments that restrict free movement, and contain limited opportunities for education and social interaction, are likely to have adverse impact on the emotional health and well-being of children and youth. Child asylum seekers in detention are expected to co-exist with adults who are strangers to them and many of whom have not been granted asylum and face removal from Australia. When child asylum seekers remain in detention centres for extended periods, these situations are exacerbated.
Recent events in the Woomera detention centre demonstrate that detention facilities are dangerous places for children. Since there is no separate accommodation for families, children of all ages have been exposed to adult violence and conflict within the centre, frequently witnessing powerlessness and despair, in some instances from their own parents.
Educational and Recreational Opportunities for Children
According to the UNHCR guidelines and the Convention on the Rights of the Child, all child asylum seekers have a right to the same educational opportunities as all other children in Australia.
At present, education services to children inside detention centres are the responsibility of the Australasian Correctional Management (ACM) with guidelines provided by the Commonwealth Department of Immigration, Multicultural and Indigenous Affairs (DIMIA). Education services, in terms of curriculum, formal instruction and other services to children inside detention centres are unlikely to constitute a comprehensive and formal schooling program that is equal to that provided to Australian children. In addition, vocational education and training specifically for senior secondary school-age children in detention have not been adequately addressed.
Formal communication between the SA Department of Education, Training and Employment, ACM and DIMIA could facilitate access to the State school system for children in detention and would help ensure that education services to children in detention centres are equal to those provided to other children in Australia, consistent with UN guidelines and the Convention on the Rights of the Child. Such discussions have recently commenced.
Unaccompanied Humanitarian Minors
As a result of intervention by the State's child protection officers, unaccompanied minors have been removed from the Woomera detention centre and placed into foster home care. This was undertaken following an agreement between SA welfare authorities and DIMIA in December 2001, based on the Federal-State child protection Memorandum of Understanding.
Another two Memoranda of Understanding - about the care for unaccompanied minors and alternative detention arrangements - are still to be finalised.
Emotional Health and Well-being of Families
Family care can be promoted through the development of appropriate primary health care education. An additional focus on the provision of support services, including interpreter services, is also needed to help detainees manage emotional problems, including stress, anger, grief and depression. In particular, such support services are of enormous importance in view of research that suggests refugees generally experience very high rates of emotional and psychological problems (Royal Australian and New Zealand College of Psychiatry, Statement #46).
A new Memorandum of Understanding is being sought by the SA Department of Human Services about the provision of health services in the Woomera Immmigration Reception and Processing Centre, in particular with respect to mental health, public health and communicable diseases.
In addition, improved health care for pregnant women requires heightened attention. Pregnancy monitoring and care, including culturally appropriate and sensitive care and food are of paramount importance.
Alternative Detention
An alternative detention trial, called the Residential Housing Project, has been in progress for several months. The trial involves the relocation of selected women and their children from the Woomera detention centre to the Woomera township - whilst their husbands remain in the detention centre. There are 17 persons (5 women and 10 children) participating in the trial at present, and the trial is yet to be evaluated.
Unaccompanied child asylum seekers removed from the Woomera detention centre have been placed in foster homes. Under the provisions of the Federal Migration Act, foster families' homes are deemed to be alternative places of detention, with guardians designated 'directed persons'. The Family and Youth Service (FAYS) of the SA Department of Human Services has responsibility for this group.
Federal-State discussions have commenced regarding schooling for child detainees. The Woomera Immigration Reception and Processing Centre's management (ACM) has requested consideration by SA authorities of a possible teaching trial involving junior primary school-aged detainees. Such a trial would enable child detainees to attend the Woomera Area School, and negotiations have been initiated regarding the cost of this activity to the State Department of Education, Training and Employment.
Transition to community life
A majority of asylum seekers are granted protection visas and, therefore, children and families need to be well-prepared for leaving detention facilities. In cases where parents and children have been apart, counselling is helpful in the re-unification of families and their transition into the community. In addition to family re-unification, post-detention life skills programs that focus on employment, schooling and education for children, accommodation and financial management are vital to the successful settlement of humanitarian immigrants to Australia.
RECOMMENDATIONS
The conditions for children in detention in Australia need to concur with the United Nations Convention on the Rights of the Child and the UNHCR guidelines. In this regard, it is recommended that:
- Consideration be given to children and their parents being placed in alternative, community based accommodation and environments that are safe and provide them with adequate educational and social interaction;
- Australian State, Territory and Federal authorities establish agreements to ensure the best interests of child asylum seekers are upheld in terms of the delivery of health and welfare services, and that schooling and developmental opportunities are available to all;
- Pregnant women be given access to high quality antenatal and perinatal care and services;
- Children and families be well-prepared for leaving detention facilities through adequate counselling and post-detention life skills support, which are essential to successful settlement.
