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