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Submission to the National Inquiry into Children in Immigration Detention from

Council of Social Service of NSW (NCOSS)

May 2002

Council of Social Service of NSW (NCOSS), 66 Albion Street, Surry Hills, 2010
ph: 02 9211 2599, fax: 9281 1968, email: info@ncoss.org.au

1. Background

2. The policy of mandatory detention

3. Conditions in the detention centres

4. Services for children and young people residing in the community after detention

1. Background

1.1 About NCOSS

The Council of Social Service of NSW (NCOSS) is an independent non-government organisation and is the peak body for the social and community services sector in NSW. NCOSS works with its members on behalf of disadvantaged people and communities towards achieving social justice in New South Wales. It was established in 1935 and is part of a national network of Councils of Social Service which operate in each State and Territory and at Commonwealth level.

NCOSS membership is composed of community organisations and interested individuals. Through current membership forums, NCOSS represents more than 7,000 community organisations and over 85,000 consumers and individuals. Member organisations are diverse, including unfunded self-help groups, children's services, emergency relief agencies, chronic illness organisations, local Indigenous community organisations, church groups, and a range of population-specific consumer advocacy agencies.

1.2 About this submission

This submission deals with children in detention and on their release into the community. While NCOSS is extremely concerned at current approaches to refugees and humanitarian settlement more broadly, these are not within the scope of this inquiry and will not be addressed in this submission.

This submission is based on discussions with a number of community organisations and a small number of individuals who have experienced detention in the Woomera Detention Centre.

Most of the organisations contacted by NCOSS were prepared to discuss issues for this submission on a confidential basis only. Concerns were expressed about loss of Commonwealth funding for the organisation, reduced capacity to effectively advocate with the Commonwealth Government, and loss of visiting rights at the detention centres. Individuals asked not to be named. As a result, many of the comments made in this submission are not formally attributed to organisations or individuals.

While this situation affects the nature of the submission, NCOSS is extremely concerned at that fear of retribution of various forms is preventing Australians from finding out what is happening in detention centres. It is also profoundly affecting the capacity of community organisations to perform their traditional role of advocating for disadvantaged individuals and communities.

2. The policy of mandatory detention

This section relates to terms of reference 1 and 2

2.1 Breach of human rights

NCOSS considers it manifestly obvious that mandatory detention of children is in breach of Australia's human rights obligations. These are not obligations which have been imposed by external bodies, but exist as a result of Australia voluntarily becoming a signatory to international treaties. These obligations apply to all people within Australia's jurisdiction without regard to their immigration status.

These breaches include:

It has also been suggested that Australia may also be breaching other human rights obligations:

2.2 Alternatives to mandatory detention

NCOSS strongly supports an alternative approach to mandatory detention which would consist of a short period of detention, and for those who pass basic threshold tests in relation to public health, public safety, public security and identification, placement in the community during processing of their claim for refugee status.

NCOSS emphasises that even the shorter detention period should not be under the present detention arrangements. Conditions within the detention centres are wholly unsatisfactory, as discussed below, and the location of detention centres in remote areas is not acceptable.

There are a number of models for this alternative approach to mandatory detention. These include the proposal contained in the Human Rights and Equal Opportunities Commission report, Those who've come across the seas: detention of unauthorised arrivals; the Conference of Leaders of Religious Institutes (NSW) document, Policy proposal for adjustments to Australia's asylum seeking process; the Justice for Asylum Seekers document, Transitional Processing and Reception Model; the model based on the Charter of Minimum Requirements for Legislation Relating to the Detention of Asylum Seekers which was endorsed by the Australian Council of Churches and 16 other community and statutory organisations [3]; the Independent Education Union document, Refugee and Asylum Seeker Policy in Australia. [4]

NCOSS notes that Australia is the only Western nation which has a policy of mandatory detention of asylum seekers pending resolution of refugee status. [5]

3. Conditions in the detention centres

This section relates to terms of reference 3 and 5.

3.1 Sources of information

There is limited information available on the conditions in which detainees are held.

There have been a small number of official visits to the centres. The media has been a primary source of the reports of these visits. The reports are very strongly worded in their criticism, including comments that the facilities are 'subhuman' and that 'some asylum seekers were cooped up in filthy cells with overflowing toilets'. [6]

Independent organisations seeking to inspect conditions at the detention centres are commonly refused access. NCOSS was part of a delegation which sought to inspect the education facilities at Villawood Detention Centre on April 26, 2002. The delegation, convened by the NSW Teachers Federation, had contacted the Minister for Immigration and Multicultural Affairs, Phillip Ruddock, a month beforehand but received no formal response to their letter and was refused access when they attended at Villawood at the date and time advised.

People visiting individual detainees at the centres have provided some reports. The visitors to the centres generally have access only to a limited area. NCOSS has found that visitors to the centres are often prepared to speak on a confidential basis only, or not at all, out of concern that their future access to the detention centres would be jeopardized.

There are few reports from detainees or former detainees. Former detainees whose claim for asylum was successful, are provided with temporary visas only. As these visas require renewal, there is a strong disincentive for former detainees to speak publicly about their experience. One detainee who provided information on the experience in the detention centres was Dr Aamer Sultan, who co-authored an article on the mental health of detainees. [7] Dr Sultan had been refused asylum prior to writing the article.

Freedom of Information laws are of minimal assistance in obtaining information on conditions in the detention centres. While these laws would provide access to information about the correctional system in NSW, the Commonwealth Government has contracted out the management of the detention centres and, as a result, key information on the conditions in the detention centre is held by a private company rather than the Commonwealth Government. Access to information about management and performance of Australian Correctional Management held by the Commonwealth Government is also constrained by claims of 'commercial in confidence'.

The limited sources of information available on conditions in the detention centres itself raises serious concerns about those conditions.

3.2 Conditions in the detention centres

Former detainees, now resident in NSW, spoke to NCOSS about conditions in Woomera Detention Centre during the time they were resident there. The detainees' names and the time they were in detention has been kept confidential, at their request.

The following is a summary of the information provided by the former detainees.

Education

Initially, no classes were available for the children, so the other residents organised classes and taught them themselves. Later, there was a teacher, but classes were not structured and age-appropriate.

There were young people and adults who wanted to learn English, but there was no teacher. Some detainees who knew English, taught others what they knew. While the managers knew that this was happening, they did not provide books and they did not help.

Play

The children didn't play. There were no green areas, just rocks, and they did not have toys.

The children were sometimes taken on excursions, but their parents did not come with them. Because their parents were left behind, the children were scared about the excursions.

There was a single room with a video. Adults and children used the room at the same time, so there was conflict about what video was shown. There was not a separate time for children to watch cartoons or other children's shows.

Food

There was only one type of food, so there was no choice about what to eat. Many people would leave their food behind because they did not like it.

The food was sometimes dirty and smelly. Despite reporting to Australian Correctional Management (ACM) that food was bad, the problem continued.

It was not possible to ask for only part of the meal, such as salad. Everyone was required to take the standard meal. If there was any discussion or argument, the ACM staff would take the detainee's number. This was scary.

If a child was sick and wanted to eat in their own room, they needed to get special authorisation. This was provided only when the person was very sick. If a child or adult did not attend the mess for a meal, then they did not get fed.

If anyone turned up late for a meal, they did not get fed. This was the case even if people were still sitting at the table and eating inside the mess.

People were confident that the food was halal, as they had asked for and seen the certification.

Health care

There were few drugs available. Whenever anyone reported feeling ill, they were told to drink more water. There were no antibiotics or Panadol available from the nurses.

The nurses decided which detainees saw a doctor. While many were very kind, some were not.

Obtaining dental care was very difficult. There was often two or three weeks' wait for a dentist to visit the detention centre. People were sometimes screaming with pain from their teeth. When this happened, they were given Panadiene Forte, but this was not enough.

Lots of people had depression. Some of these people went mad.

Some people left the detention centre with diabetes, even though they had not been sick beforehand

Culture and religion

Initially, the management did not understand about religion, but later tried to provide religious material to encourage people to cooperate.

Initially, there were problems with breaking the fast after Ramadan. At the end of the day in Ramadan, ACM would do a headcount. People had been without food and drink all day, and were forced to wait for up to two hours before they could eat or drink.

Security practices

A higher security area existed within the detention centre. Initially, there was no communication between the people in this area and those in the main part of the detention centre. Later, letters were allowed to pass between these areas and people from the main area were occasionally allowed to visit the higher security area.

When the higher security area was built, the detainees were told that it was for bad people and that these people would be deported or go to prison. People were very afraid of going there.

When ACM took people to the higher security area, they would come at night and wake the person up to take them away. This really scared the people.

People were always demonstrating and asking for freedom. On one occasion, ACM sent a message that the demonstrators would be taken to the higher security area that night. The detainees were so frightened that they slept outside that night, even though it was very cold.

ACM would do headcounts at night. People would be woken up with lights in their faces, which was very frightening.

The centre management sent two men to prison. The other detainees did not think the two men had done anything wrong, and saw it as a way of frightening the others. Some detainees heard that the guards had beaten the detainees who went to jail.

A consistent theme in the comments of the detainees was the way that they were spoken to by the ACM staff, which they hated: "The way they talk to you, your dignity is broken", "They let people feel they are a beggar."

3.3 Improving conditions in the detention centres

In recommending improvements to the conditions in detention centres, NCOSS is placed in a quandary. On the one hand, NCOSS is appalled at the conditions of the detention centres and can only advocate in the strongest terms for the release of both adults and children detained there. On the other hand, given the apparent strength of Commonwealth Government commitment to the policy of mandatory detention, NCOSS is keen to see any improvement that is possible in the quality of life of the detainees. It is of enormous concern to NCOSS that children and young people who are asylum seekers may be in detention for years, with a consequentially huge impact on their long term education, development, and physical and mental health.

In principle, NCOSS would like to see children and young people in detention provided with the same services available to children and young people in the broader community. Given the nature of the environment, there are questions about whether some of these services would be effective.

(i) Child protection

In NSW, there is at present no Memorandum of Understanding (MOU) between the Commonwealth and the State in relation to child protection services and the Villawood Detention Centre. The NSW Department of Community Services (DoCS), which is the agency charged with implementing the Children and Young Persons (Care and Protection) Act (1998) has no jurisdiction in relation to the detention centres, and, in the absence of a MOU, is able to pursue child protection reports only at the discretion of the DIMA.

NCOSS notes that the Minister for Immigration and Multicultural Affairs stated on 27 February 2000 that negotiation of protocols with state authorities involved with immigration detention was a priority for the Department. [8]

NCOSS understands that DoCS has received notifications of children at risk in the detention centre and has gained permission from DIMA to conduct investigations. NCOSS also understands that there have been significant delays in DIMA responses to DoCS recommendations. As DoCS has no jurisdiction in this area, it has no power to enforce these recommendations, as would be the case elsewhere in NSW.

NCOSS is extremely concerned about the delays in resolving the MOU as it contributes to an extremely unsatisfactory system of investigation and response to child protection notifications. The MOU would also a provide a mechanism to require detention centre staff to provide notifications of children at risk, as is currently the case for a vast array of professionals and staff engaged in the human services industry elsewhere in NSW.

Even with the resolution of relationships between State and Commonwealth, implementing child protection arrangements in relation to children in detention raises major ethical difficulties. There are powerful arguments that the environment of a detention centre is innately abusive to children. As a result, child protection authorities seeking to protect children from the abuse of the detention centre are left with the choice of removing children from an abusive environment and from their parents, or leaving them with their parents in an abusive environment.

The obvious response would be to transfer the entire family of parents and children to the community. This would require not merely the extension of the current child protection regime to the detention centre, but a shift in Commonwealth policy and practice. NCOSS is well aware of the past practice of DIMA and the Minister for Immigration of refusing such requests.

(ii) Education

NCOSS strongly advocates for children and young people in detention to be supported to attend early childhood services, primary and secondary school, and TAFE classes. This would require appropriate, specialist staff in pre-schools, schools and TAFEs. NCOSS emphasises the importance of early childhood services in preparing children for attending primary school, and in promoting their development at what is recognised at a key period in childhood.

NCOSS notes that following its inspection of detention centres, the Joint Standing Committee on Foreign Defence and Trade recommended that DIMA negotiate with State and Territory governments and non-government schools to enable children in detention centres to access nearby schools. [9]

NCOSS notes that the NSW Government is supportive of this approach for school and TAFE students. In a letter to the NSW Teachers Federation, the Director General of Education and Training, Ken Boston AO, indicated that the NSW Department of Education and Training would provide appropriate ESL and counselling resources to public schools which welcomed these children, and that the Department supported the inclusion of the children and young people in Villawood into NSW public schools and colleges. [10] Ken Boston stated that he had advised the Department of Immigration and Multicultural Affairs of these positions.

NCOSS also notes that the Villawood Detention Centre is located across the street from the Chester Hill Public School which provides specialist English language classes.

(iii) Health

The mental health of children in detention was described in an article by Dr Aaman Sultan, a medical practitioner and detainee at Villawood Detention Centre, and Kevin Sultan, a psychologist who provided treatment to detainees at Villawood. They reported:

A wide range of psychological disturbances are commonly observed among children in the detention centre, including separation anxiety, disruptive conduct, nocturnal enuresis, sleep disturbances, nightmares and night terrors, sleepwalking, and impaired cognitive development. At the most severe end of the spectrum, a number of children have displayed profound symptoms of psychological distress, including mutism, stereotypic behaviours, and refusal to eat or drink. Children of parents who reach the tertiary depressive stage appear to be particularly vulnerable to developing a range of psychological disorders. [11]

NCOSS understands the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) does not provide services within the detention centres as they do not consider that it would be effective or appropriate.

NCOSS is at a loss to make recommendations which would ameliorate the mental health condition of children and young people in detention.

In relation to the general health of detainees, NCOSS can only reiterate the importance of speedy access to appropriate health services. The reports received by NCOSS about conditions at Woomera Detention Centre indicated that this was not the case, and that oral health was particularly poorly served.

(iv) Other services

In principle, NCOSS would seek to have asylum seekers able to access the full range of services available to people living in the community. This would include services such as family support services, women's health, specialist family counsellors, disability support services, and others. As discussed above, given the nature of the environment, there are questions about whether some of these services would be able to be effective.

4. Services for children and young people residing in the community after detention

This section relates to terms of reference 3 and 6.

The Commonwealth Government response to the needs of refugees and other humanitarian entrants settling in Australia is contained in the Integrated Humanitarian Settlement Strategy (IHSS). Many of the services in this strategy are not available to holders of a Temporary Protection Visa (TPV), which is the visa provided to successful asylum seekers who have been subject to mandatory detention.

TPV holders are entitled to a health assessment, Medicare card, torture and trauma counselling, the right to work, and employment assistance which is limited to the 'touch screen' job-matching service. TPV holders are eligible for Special Benefits, Rent Assistance, Maternity and Family Allowance, and the Family Tax Payment. [12]

Unlike TPV holders, refugees and humanitarian entrants who have a '200-class visa', are entitled to free tuition under the Adult Migrant English Program and the Advanced English for Migrants Program. They have full access to all employment assistance programs. They are eligible for settlement services including orientation, accommodation, household formation, and for assistance from Migrant Resource Services.

Unlike TPV holders, the '200-class' visa holders are also eligible for the full range of social security benefits and they are eligible for the Higher Education Contribution Scheme (HECS) for tertiary education.

Both TPV and '200-class' visa holders are entitled to access the full range of State funded human services. NCOSS notes that the ineligibility of TPV holders to the case management services of Migrant Resource Centres means that many TPV holders may not be aware of the services which are available to them.

NCOSS also notes that a number of agencies are delivering services to TPV holders on a voluntary basis, however there is a manifestly inadequate network of services for refugees with TPV.

NCOSS
May 2002

1. C. Sidoti, Refugee policy: is there a way out of this mess?, speech to Racial Respect Seminar, Canberra, 21 February 2002

2. C. Sidoti, Refugee policy: is there a way out of this mess?

3. C. Sidoti, Refugee policy: is there a way out of this mess?

4. Independent Education Union, Refugee and asylum seeker policy in Australia, 2002

5. Independent Education Union, Refugee and asylum seeker policy in Australia

6. US Committee for Refugees, Sea Change: Australia's new approach to asylum seekers, 2002 p23

7. A. Sultan, and K. O'Sullivan, 'Psychological disturbances in asylum seekers held in long term detention: a participant observer account', Medical Journal of Australia Vol 175:593-595, 2001

8. Report of Inquiry into Immigration Detention procedures, Statement by the Minister for Immigration and Multicultural Affairs, Immigration Detention Procedures, 27 February 2000 at <http://minister.immi.gov.au/detention/inquiry_response.htm>

9. Parliament of the Commonwealth of Australia, Joint standing committee on foreign defence and trade, Reports on visits to Immigration Detention Centres, Canberra, June 2001

10. Letter from Ken Boston AO, Managing Director of TAFE NSW and Director General of Education and Training, to Barry Johnson, General Secretary, NSW Teachers Federation, 24 April 2002

11. A. Sultan, and K. O'Sullivan, 'Psychological disturbances in asylum seekers held in long term detention: a participant observer account'

12. Independent Education Union, Refugee and asylum seeker policy in Australia

Last Updated 9 January 2003.