HREOC Website: National Inquiry into Children in Immigration Detention

Transcript of Hearing - MELBOURNE

Thursday 30 May 2002

Please note: This is an edited transcript

Commissioners:

Dr S. OZDOWSKI, Commissioner
Dr T. THOMAS, Assistant Commissioner
Dr R. SULLIVAN, Assistant Commissioner

Assisting:

Mr J. HUNYOR, Counsel Assisting
Ms V. LESNIE, Counsel Assisting

COMMISSIONER OZDOWSKI: Welcome to everyone. I would like to formally open this public hearing, the first of a series of hearings to be conducted around Australia. My name is Sev Ozdowski and I am the Human Rights Commissioner of Australia, and I have with me two Assistant Commissioners; to my right Professor Trang Thomas who is Professor of Psychology at the Royal Melbourne Institute of Technology, and to my left Dr Robin Sullivan who is Queensland Commissioner for Children. I also have two counsel assisting. To my right is Mr Jonathan Hunyor, and to my left Ms Vanessa Lesnie, both of whom work at the Commission.

Before the hearing commences, I would like to remind you about the rulings I made about confidentiality and privacy. I would like to ask witnesses to not mention names of individuals for two reasons; the first reason is that a number of adverse comments could be made and the people may not be able to defend their good reputation; and the second reason is it that it is important to protect the privacy of individuals, especially individuals who are in the process of refugee determination.

In particular this concerns children. I would ask the media to adhere to these rules, and film the proceedings as they wish, but in case a witness desires that his privacy is protected, that the media will respect it. Now, I would like to welcome our first witness, Mr Grant Mitchell. Thank you very much for putting forward your submission. As I understand, you are representing today the Asylum Seekers Project of the Hotham Mission, and you will be talking on behalf of that project. Mr Mitchell, could I ask you to make an oath or affirmation now.

GRANT MITCHELL, sworn [2.07pm]

COMMISSIONER OZDOWSKI: Thank you, Mr Mitchell. Now, can I ask you to state your name for the record, your address and the organisation you represent?

MR MITCHELL: Grant Mitchell from [address removed].

COMMISSIONER OZDOWSKI: Thank you. Now, I would like to ask you to make an opening statement. We read your submission and the purpose of this hearing as to cross-examine the evidence which you provided to us.

MR MITCHELL: Thank you, Commissioner. I am the Project Co-ordinator for the Asylum Seeker Project at Hotham Mission. We are working with asylum seekers in the community, and we are a housing and community support agency for asylum seekers on Bridging Visa E and also that includes a number of asylum seekers released from detention under that category.

COMMISSIONER OZDOWSKI: Now, could you say something about the level of contact you had with refugees and in particular with children, and could you say something about your knowledge of the detention system. Is it limited only to Melbourne detention or is it more widespread?

MR MITCHELL: Our project, we work with 40 children and young people so in other words a number of people between the ages of - young people from 16 to 24 and children up to the age of 16. So approximately nine of those children have previously been in detention. The remainder are asylum seekers that have been living lawfully in the community on bridging visas. So the majority of our work has been through providing assistance in the community, housing and support for asylum seekers already in the community, but recently we have started, through people that have been released on various different grounds, like an early release program.

So, in other words, people that have perhaps breached their bridging visa requirements perhaps worked when they have not had work rights, and then have been detained. And if they have been released on a bridging visa on a bond or assurance of support, we have been providing support for that group. That includes some children that, for example, if the father has been detained and then the children have been remaining in the community. And then also we have been working with people who, for psychological reasons, we have been able to either negotiate or be a part of the process for them to be released into our care under a community care plan.

COMMISSIONER OZDOWSKI: Mr Mitchell, what we are trying to establish through this inquiry is to find out whether Australia is meeting its obligations under a number of international instruments, in particular under the Convention of the Rights of the Child. Could I ask you about conditions in detention centres? And I would like to ask you to address the issues like schooling, health, food, psychological wellbeing, as best as you could.

MR MITCHELL: Well, Hotham Mission is mainly involved in supporting people when they are released into the community. So, in other words, people that have been in detention. I am not really in the best position to answer what is happening in detention centres in Australia.

COMMISSIONER OZDOWSKI: That is good. Now, could you tell me about the impact of detention on children?

MR MITCHELL: Well, perhaps to put it in the context in terms of Hotham's work with children and adults released from detention. I worked previously in a detention centre in Sweden. I was working there for a year and a half until January 2000. And so I was trained and working with the Immigration Department in Sweden, working specifically as a case-worker, so providing support for people who were in detention. And in Sweden, even though the children are only detained for a maximum of six days, there were - there was a lot of work involved in assisting the transition from people arriving with no documentation into release into the community.

So that work in Sweden, I think, really was preparatory in terms of how Hotham has approached this as well; how it is possible to create or be a part of a balanced detention reception regime.

COMMISSIONER OZDOWSKI: Could I ask you to describe maybe what happened in Sweden during that six days to a child, and maybe if you could mention both an unaccompanied child and a child as a part of a family.

MR MITCHELL: Yes, okay. Well, in terms of if there is a family that arrives in Sweden with no documentation, there is a mandatory detention policy in Sweden, so all people who arrive without documentation are detained. However, detention is only for that initial period of identity, health and security checks. So the reality for, say, a single mother with young children would be that she would be signed in and myself as a case-worker would have to be present during that signing.

And the first thing would be to inform that family through an interpreter what their rights are and to inform them very clearly the Immigration process; that they are allowed to have legal counsel, and then to explain to them why they are being detained and for what period. So in Sweden there is a time limitation. So when you first arrive, there is a maximum two-week detention period, and that is for identity, health and security checks. If that has not been - if that cannot be done within that two-week period, it can be extended for a further two months.

COMMISSIONER OZDOWSKI: Who can extend? Who has got the authority to extend it?

MR MITCHELL: There is a board within the Immigration Department that make that decision and then if the asylum seeker does not agree with that decision, it can be appealed to the local court. So there is an internal system and an external system of review, and

COMMISSIONER OZDOWSKI: And if there is an unaccompanied minor, would that minor be given some representation or some

MR MITCHELL: Yes.

COMMISSIONER OZDOWSKI: guardian assigned?

MR MITCHELL: Well, fortunately, the detention centres in Sweden are very centrally located to - they tend to be in refugee centres, as they are called, so that next to the detention centre is a group home for unaccompanied minors, which is next to a health centre which is next to community accommodation, and then the Immigration Department offices. So in terms of an unaccompanied minor, that person is literally signed in and signed out. So that is the extent of mandatory detention for unaccompanied minors, and for single mothers people would tend to be cleared almost immediately, and that would be in collaboration with the Federal Police, the Swedish Federal Police.

And then, for example, if there is no way of establishing identity, it would be a sworn affidavit. And health checks in Sweden in any case are always done in the first week. So there was almost no reason why - and the practice was actually around three days. Families would come in and be released within three days.

COMMISSIONER OZDOWSKI: And what was the next step, after one week, assuming they were released, what was happening with them?

MR MITCHELL: Well, for an unaccompanied minor, they would be released into a group home where - it has recently changed, but when I was working there, the Immigration Department was still responsible for the care for that minor. It has since been handed over to Child Protection. But essentially there was a case-worker again working with that person to ensure that they have access to school, to health, to social services and long-term they tried to move them away from that group home into community based living, again supervised as they are minors, but if it is a family unit then they are almost straight away, as well, released, as I said, but that is into accommodation type living close to - it is almost like a closed centre - I mean an open centre.

COMMISSIONER OZDOWSKI: But were they able to leave that centre and return? Were they free in their movements?

MR MITCHELL: Yes. It is completely free. All asylum seekers, bar those held in detention for that initial period, are free to live in - they can choose to live with family, relatives if they have them, or they can live in fixed accommodation which is just like flats or units.

COMMISSIONER OZDOWSKI: And how long did it take to process the claims for refugees status?

MR MITCHELL: Well, it varies. I think the thing in Sweden that expedites the determination process is a number of things; one is that the decisions for humanitarian reasons, as opposed to Australia which are at the end of the - after initial Immigration Department and Refugee Tribunal decision in Australia, then the Minister looks at humanitarian grounds. In Sweden, right from the beginning, when they are assessing refugee grounds, they are also looking are there other grounds for protection, such as the Convention against Torture or extreme medical or other humanitarian reasons.

So that certainly reduces a lot of the time limits, and also the Tribunal equivalent in Sweden is a multi-member tribunal, and there is always legal counsel from the first day through to that Tribunal decision. So there tends to be less need to access the court system as in my observation is the case here in Australia.

COMMISSIONER OZDOWSKI: The Australian authorities are concerned that if we would have similar system and the claim is unsuccessful, that people would be not available for removal. Do you have any information about whether the people have been absconding in case the decision were negative?

MR MITCHELL: Well, based on both my experience in Sweden and working at Hotham Mission with asylum seekers in the community, I do not - the research I have been doing myself, I have an interest in absconding as an issue - in Sweden I was working in a refugee camp, I was working in detention with people who were about - I was actually having to give the final decision to asylum seekers, and they have extremely high compliance rates. Up to 80 per cent of asylum seekers in Sweden voluntarily repatriate on final decisions. It is

COMMISSIONER OZDOWSKI: 80 per cent?

MR MITCHELL: Yes. I mean, it is a remarkable figure. What is remarkable about it, I think, is how they have looked at the asylum seeker process in its entirety in terms of regardless of how people arrive, there are only two outcomes for asylum seekers, wether they will be allowed to settle or have to return. So a lot of preparatory work is done. So as a case-worker, for example, I was required to prepare people for all outcomes from the beginning. And what was found in Sweden was that when people feel they have had a fair and expeditious hearing, feel that they have been able to have access to legal counsel and are prepared and also given some incentives, they are more likely to comply, particularly if they are empowered in that process and their anxiety levels are reduced.

And that has been a similar experience at Hotham Mission. We have been working now with - and the submission that I sent in looked at a specific time frame, around 120 asylum seekers, and in that period the number that have voluntarily repatriated and the number that have settled and the number that have not received decisions yet indicate that none of our clients have absconded. And these are clients right at the end. They are all at the Minister, and they literally are living in the community with no rights or entitlements, but are not absconding. So I feel that it is an exaggerated risk.

COMMISSIONER OZDOWSKI: I had similar opinions during my recent to the United States, where American officials told me that when you give people a fair process in which they can participate and understand, they are much more willing to accept at the end the outcome, even if the outcome is negative to them. I would like to change for a moment the line of questioning, so perhaps I will allow my Assistant Commissioners if they have got any questions relating to the Swedish model?

ASST COMMISSIONER SULLIVAN: I have just got two. One is what are the incentives? You mentioned incentives.

MR MITCHELL: On return?

ASST COMMISSIONER SULLIVAN: Yes.

MR MITCHELL: Well, right from the first day an asylum seeker arrives in Sweden, they are informed of the reality of their situation, and that includes return. And as the relationship with the case-worker proceeds, a lot of things are explored. One is, in Sweden they call it motivational counselling, but it is essentially a way of preparing and exploring with an asylum seeker the reality that they may have to go back. So the incentives include allowing time for a third country to be explored. Some asylum seekers do have third country options. Allowing for some funds for resettlement. They may have lost all their savings or they may need to resettle in another part of the country, so for domestic travel and also, which is problematic with asylum seekers, but important, is exploring how some follow-up can occur.

So in other words, they feel they are not just being forced back to a dangerous situation. But my job, for example, as a case-worker was to provide information to that asylum seeker to show them that conditions are not as dangerous as they may perceive it to be. And that requires building some trust with the asylum seeker, but also working constructively with them. And that - it is more in depth than that, but that is a rough kind of

ASST COMMISSIONER SULLIVAN: My second question is the recent change you alluded to, which is taking the care and responsibility of the child from the Department of Immigration to the Child Protection Agency.

MR MITCHELL: In Sweden? Yes.

ASST COMMISSIONER SULLIVAN: Yes. Do you know the rationale behind the change?

MR MITCHELL: Yes, there was - there have been some problems in Sweden with unaccompanied minors, in that the Swedish Immigration Department - I mean, there is a history of the role of Immigration moving in Sweden moving from the police to the Immigration Department, and more recently the move has been towards bringing social services more involved in the immigration process. So there has been, since the early nineties when the police were primarily responsible for a lot of immigration, the move has been towards - similar to the Department of Human Services in Australia.

Part of that was because there has not been a real - enough ongoing case management of unaccompanied minors in Sweden, which meant that a number of young people - and because the laws in Sweden state that no-one - they are not obliged to accompany them at all times, people were coming and picking them up and they were - some of them were not being able to be found for a short period of time. So the social services have now decided they have to work in collaboration with the Immigration Department. But I am not a hundred per cent up to speed with what is happening in Sweden now.

ASST COMMISSIONER SULLIVAN: Is that the equivalent of being, say, a child in care in our terms?

MR MITCHELL: Yes, it would be - I actually have not come across exactly a similar circumstance here. I guess it would be - it is certainly not similar to the Juvenile Justice System, where there is more of a parole nature. The unaccompanied minors could literally come and go and live quite freely, and that was the thing that I think that social services felt needed to be monitored more, for their own safety, not that they are going to be at risk to abscond or anything.

ASST COMMISSIONER SULLIVAN: Thanks for that.

COMMISSIONER OZDOWSKI: Would you know the number of unaccompanied minors in Sweden per year?

MR MITCHELL: No, I do not, I am sorry.

COMMISSIONER OZDOWSKI: Thank you.

ASST COMMISSIONER THOMAS: Can you give us a bit more detail about the assessment and the review process of these asylum seekers in Sweden?

MR MITCHELL: In Sweden. Well, the assessment in terms of identity, health and security checks - is that what you mean?

ASST COMMISSIONER THOMAS: Mm.

MR MITCHELL: And then the determination process. It is complex because in Sweden you may be detained because you have arrived by boat, in which case it may be the Customs officials which are primarily responsible for your detention. So a lot of review and decision on that person goes through that means. If it is - if they arrive at the airport, then it goes through the Federal Police. It is quite a complex process; if someone is picked up for working illegally, then it could be the local counties office. And so in that regard those agencies work in collaboration with the asylum unit in terms of establishing identity and with, as I said before, the Federal Police for security issues.

And they work in collaboration. It is difficult because there are a number of agencies involved. It was difficult for us at the detention centre, because we had to know under what - or who detained them. But it was still a rather quick process. There was a lot of - and as I said before, particularly people that can be screened out fairly quickly in terms of security, people who perhaps have disabilities, the elderly, people with severe torture and trauma - so in that - and because there was such an established reception system and there was a lot of case-work management with that, people were quite able to move into that process quite quickly.

The determination process in Sweden is I believe also, it tends to be - I think because people are, right from the beginning, informed of the entire process, and are able to have legal counsel and there is always more than one person hearing their case, in most cases it is three Tribunal members or three Immigration officers, and it is also the Immigration decision in Sweden is very transparent. You can actually - you cannot get information about the case, but you can certainly follow the line of decision making and access the country information used and really look and analyse that, so it can be used in a review process.

The transparency in the determination process I feel means that there is less need to access the court systems, and also the asylum seeker feels they have had a fairer hearing.

ASST COMMISSIONER THOMAS: And are you confident that if we use the same model in Australia, it will work?

MR MITCHELL: I think it should be explored at least. I mean, Australia and Sweden is very different. I think the detention system in Australia, I really do not see the need for mandatory detention to be non-reviewable, and for it to be as arbitrary as it seems to be. I think there is certainly the ability and there is certainly the capacity for Australia to balance our detention reception systems, but part of that requires asylum seekers already in the community who - actually up to 80 per cent of asylum seekers are living lawfully in the community.

That is not a very well-known statistic, but the fact is that they are often left with very little resources, particularly people on first arrival and towards the end of their case. So my argument would be how do we have a uniform system for all asylum seekers? Obviously that includes children living in the community, asylum seeker children with no access to Medicare, income support or basic rights and entitlements, and asylum seekers in detention who - a costly system which is not necessarily a balanced one.

ASST COMMISSIONER SULLIVAN: Is the fact that we have Federal and State jurisdictions complicate the Swedish model, if we were to use it here?

MR MITCHELL: Sweden has some complications, I think. But it is not as pronounced in terms of funding, what is Commonwealth funded and what is State funded. That is problematic here for all asylum seeker issues, and I think asylum seekers in the community face that issue as well. So people moving from detention to the community, there are a lot of question marks, who is responsible, and particularly education, health and so on.

COMMISSIONER OZDOWSKI: Did you present you suggestions regarding Swedish model to the Department of Immigration or other authorities here?

MR MITCHELL: To the Minister's office and to the Minister himself, yes, I have.

COMMISSIONER OZDOWSKI: And what was the view of the Minister's office?

MR MITCHELL: Well, the Minister was very interested in the Swedish approach to what they call group homes, which is where it is only used in a very limited context in Sweden, but if you have a family that have been refused and there has been an assessment made that perhaps the father or the family may abscond into the community, a decision may be made that the father is detained at that point and the family live outside of the detention centre in a group home. The Minister was interested in that and asked for more information, which I gave him and his Chief of Staff.

He subsequently visited Sweden and the detention centre where I used to work, and came to the conclusion that, yes, it is - it certainly is a system that is fair. However, his view was that it was too generous and was attracting more asylum seekers to Sweden. But he has since implemented, as you probably know, the Woomera trial, the release trial, which is very loosely based on the Swedish group home system, because of course there are no guards surrounding women and children in Sweden in that context.

[2.32pm]

COMMISSIONER OZDOWSKI: I have got a number of other questions to you but they relate to other issues so perhaps we will finish the submission dealing with the Swedish model and we will move to the next submission. Could I ask Mr Marc Purcell and people who accompany him to enter the witness stand?

MR PURCELL: Could I ask, Dr Ozdowski, if we could just have a projector brought up, please; it might be helpful for the

COMMISSIONER OZDOWSKI: Yes, please do it. If I could ask you to take an oath or affirmation to start with.

MARC PURCELL, sworn [2.33pm]

COMMISSIONER OZDOWSKI: And could I ask you, Mr Purcell, to introduce yourself for the purposes of the record. I see, we are having some other - could you please administer the oath or affirmation to the other witness.

SARINA GRECO, sworn [2.33pm]

COMMISSIONER OZDOWSKI: And could I ask now the witnesses who joined the table to introduce themselves, to provide their address and to mention the capacity of their appearing here for the record.

MR PURCELL: Marc Purcell. I work as a co-convenor for Justice for Asylum Seekers Alliance. We are a member, as to the Catholic Commission for Justice, Development and Peace and I am Executive Officer at [address removed].

COMMISSIONER OZDOWSKI: Thank you, Mr Purcell. And could I ask you to do the same?

MS GRECO: Yes, SARINA Greco. I am the manager of the Ecumenical Migration Centre which is the Brotherhood of St Laurence, [address removed] and I am here today as one of the co-convenors of Justice for Asylum Seekers.

COMMISSIONER OZDOWSKI: Thank you very much, Ms Greco. Somebody would like to perhaps you to make an opening statement.

MR PURCELL: Okay. Thank you for allowing us to make this presentation today to what is a very important inquiry and the Human Rights and Equal Opportunity Commission is to be commended for investigating what is a very difficult issue of both policy, practice and ethics in Australia. The Justice for Asylum Seekers Alliance is a network - or an alliance of 25 non-government organisations based in Victoria, ranging from church organisations, aid agencies to community ethnic associations.

It was founded in 1999 to tackle some of the misconceptions around the then asylum seeker debate. More recently we have moved into policy development and looking at how the system might be reformed so it might better be able to respect the human rights of children. We approach the situation of detention of children from a human rights perspective, that currently children are being detained, mandatorily detained as a matter of first resort, thus violating the Convention of rights to the child, article 37.

Secondly, children are being punished by virtue of the nature of their illegal arrival in Australia, thus violating the convention of rights - thus violating the Convention relating to the status of refugees which the Menzies Government signed in 1954. And thirdly, we are violating the rights of children under the international covenant on civil and political rights because children are detained for a prolonged period without judicial administrative review and thus it is arbitrary. We wanted to talk about some of the features of our reform system.

We come from a position that in fact there are many thousands of asylum seekers already living in the community. If you arrive in Australia by plane and you have a visa and you then claim asylum you are allowed by and large to remain living within the community. In fact, the Australian Government, the Department of Immigration, supports a program through the Australian Red Cross, the Asylum Seeker Assistance Scheme, which provides a living allowance for people claiming asylum for much of the period that their claim process is going through.

So we see that it is problematic that one group of people, children, are being detained, incarcerated by virtue of their means of arrival without papers and are kept in detention for a prolonged period, when another group going through exactly the same process are living in the community. And we want to look at some ways that we can facilitate the transfer of children into the community.

COMMISSIONER OZDOWSKI: Can I stop you here for a moment?

MR PURCELL: Sure.

COMMISSIONER OZDOWSKI: And it is a question which I wanted to ask Mr Mitchell before, but you may wish to answer it. You are dealing with two groups of kids coming from more or less the same kind of circumstances overseas

MR PURCELL: Mm.

COMMISSIONER OZDOWSKI: but being given two different treatments here in Australia?

MR PURCELL: That is right.

COMMISSIONER OZDOWSKI: What I am interested is the impact on children who went through the detention system. Do you see any differences between these two groups of kids in your daily dealings with them?

MR PURCELL: I think I have to speak to the submission that my own organisation [Catholic Commission for Justice, Development and Peace] put in, not as JAS, because JAS is - our submission today is primarily concerned about how things might be done differently, but in answering your question, yes, clearly children are psychologically damaged by experiencing periods of detention.

COMMISSIONER OZDOWSKI: How do you know about it, what do you observe different?

MR PURCELL: For my own organisation we interviewed recently children - young people that had been in detention for long periods of time. They had witnessed adults self-harming and were clearly upset and traumatised by that. They were having flashbacks and were requiring ongoing counselling.

MR MITCHELL: And if I could respond as well, Dr Ozdowski.

COMMISSIONER OZDOWSKI: Please, please.

MR MITCHELL: I think working - I worked with asylum seekers in the community in Sweden - in detention in Sweden and asylum seeker children that have come out of detention in Australia and living in the community, and what needs to be really realised is the impact of the asylum seeker experience regardless of the location in terms of the impact of uncertainty, passivity, the impact of what the family is going through, how that impacts on the child. But the severity of including prolonged detention on that process really does create profound and long-term damage to children.

I have observed that myself in terms of what we have - I mean children in Sweden that have been detained for short periods manifested a variety of symptoms in terms of not eating, nightmares, depression in small children, just for that small amount of time. And certainly in the prolonged detention period in Australia in an isolated environment it would only exacerbate that.

COMMISSIONER OZDOWSKI: So what you are saying that they possibly experience some trauma at home, then during the time they were trying to reach Australia and then we are in a way adding to the impact through the process of detention? Is it

MR MITCHELL: Yes, it is being unnecessarily exacerbated.

MS GRECO: I would just add that from our work with families who have been released from detention there is another factor that I would add in and that is children having to cope with parents - how parents are handling the detention experience and so that is an additional factor.

COMMISSIONER OZDOWSKI: So you are saying the process of detention is having a negative impact not only on children but on the whole family?

MS GRECO: Yes.

COMMISSIONER OZDOWSKI: Because family may disintegrate, it is impacting in addition on children?

MS GRECO: And our observation is children who have delayed development, who have very poor socialisation skills, who don't play with toys and who are very fearful of contact with adults, that is our observation from our case work.

COMMISSIONER OZDOWSKI: And how many cases are you talking about, how broad is your experience?

MS GRECO: The centre does a small number of case work contacts a week. I would say our experience in the last six months would be four families.

COMMISSIONER OZDOWSKI: Thank you.

MR PURCELL: And just to add a specific case that was recorded by Justice for Asylum Seekers, but it has been included in the CCJDP submission, of a young 11 year old girl that was held in Woomera in 2000. She was involved in a situation where ACM - Australasian Correctional Management guards came into a closed security section of the detention centre during a protest action by the detainees; the girl was with her father, the ACM guards were wielding sticks with the apparent intention of beating the prisoners - that is the word used there - and she became uncontrollably upset.

Subsequently, she spent a further period in detention but since then she has been suffering anxiety attacks and nightmares and wetting herself. So we believe that this case is also subject to some litigation currently in Australia. We can provide further details but it is in the CCJDP submission.

COMMISSIONER OZDOWSKI: Yes, I would prefer to receive further details but on a confidential basis.

MR PURCELL: Sure.

COMMISSIONER OZDOWSKI: I return to your opening statement. I have taken you a bit away from it.

MR PURCELL: Perhaps turning to the positive, we have tried to combine and look at many of the ideas over the past decade's experience and work of organisations such as the Human Rights and Equal Opportunity Commission, the Refugee Council of Australia and overseas examples in receiving asylum seekers and processing them. And we have come up, based on this pool of knowledge, with a system which is really a package of ideas that we can - we believe would help either taken singly or in its entirety, that would substantially improve the humane treatment of children in immigration detention and immigration claims system in general.

I will just mention some of the features and then we would like to put on an overhead, just sort of show how the system works as a whole. But clearly, detention, one, should only be used for a limited time for identity, health and security checks upon arrival.

COMMISSIONER OZDOWSKI: What do you mean limited time? Would you put a period?

MR PURCELL: I don't think we need to put an exact period on it but we could look at other international examples such as Sweden, where it is six

MR MITCHELL: Two weeks initially, then two months.

MR PURCELL: Or New Zealand I think have a 28 day period, so I think there is plenty of international examples that Australia could be informed by. Detention can also be used for a person being returned to their country - prior to their return. And if a person is considered to be a high risk - a security risk to the community, and there is a very high risk of that person absconding, then a use of detention is appropriate. So we do not say that we want detention abolished. We think that it is a useful mechanism but it needs to be time limited so arbitrary detention doesn't occur and that it is managed to get people that are not a security risk out of detention, out of that environment.

Secondly, we want a monitored release regime based on risk assessment, and Grant will be able to talk a bit about that, and moving people into the community, into a variety of accommodation, depending on financial resources and the availability of housing. But essentially, open hostels such as were used - the safe havens at Puckapunyal for the Kosovars where freedom of movement was implicit - there was interaction with the community - is a good recent example of how people can be housed, services can be provided.

But for children, families in particular, church welfare agencies are already supporting them - many of those other asylum seekers that we spoke about before and they are living in the community, and welfare organisations are absolutely prepared to be able to be expanding that to families and children in particular in providing accommodation and services. Case management is a critical issue and having a case managed service provider operating within and without of detention centres. Again, Grant and SARINA will talk a bit about that.

And we also - I am referring to page 6 of our submission which has just got some of the features. We are also particularly concerned that there is one body that is charged with returning people when their claims are unsuccessful. It could be possibly a body like the International Organisation of Migration, but there are some standards put around those returns so people aren't being drugged, put on planes and then dropped off wherever.

COMMISSIONER OZDOWSKI: Do you have evidence to support that people are being drugged before they are put on planes?

MR PURCELL: I think we have some newspaper reports from that from the year 2000-2001.

COMMISSIONER OZDOWSKI: But you don't know about any cases from your own experience or from records made?

MR PURCELL: Not from my personal experience, no. I might hand over to Grant now to show the overhead and talk a little bit about the model.

MR MITCHELL: A lot of this is - I mean the Refugee Council and also HREOC was involved from '94 I think in putting together a kind of a transitional look at detention.

COMMISSIONER OZDOWSKI: That is correct, yes.

MR MITCHELL: Yes. And we have looked at, and I guess built upon, the Swedish experience, have just tried to expand that. I am convinced that what is missing in the detention system in Australia is the gap that exists between security, so currently ACM, and the Department of Immigration. There is a gap there, particularly in the isolated centres. So there is very little ongoing contact with detainees and we are arguing that a case worker system is implemented. It may be similar to what occurs in Sweden or it may be similar to the Red Cross - is current work with the Asylum Seeker Assistance Scheme which is with asylum seekers in the community.

And the point being is that that - for that initial period of processing that there can be a comprehensive assessment made of people to reassure bureaucratic decision-makers and reassure the wider community and make an individual case by case assessment so that people can then be moved into various - I mean for some people that may mean remaining in detention if they are found to be a high security risk. For others it may mean if they are security cleared they could be released on their own undertaking or released with relatives in the community, and the open hostel section of that program, as Marc was saying, similar to that kind of Kosovo freedom of movement; however, with certain supervision requirements and compliance requirements.

That is a vital issue if you look at say a family unit, say a father and - father, mother and children. If we are looking for - if people are going to need to be identity, health and security checked that will take some time and what we are saying is that ideally those people would be released perhaps in a community agency or on their own undertaking. But the reality is, of course, it can take some time for that to happen. We are arguing that an assessment panel, which is a decision-making overseeing body that is independent and between security and the Department of Immigration, can make some decisions based on an assessment where a person should be placed or transferred to, or to review the amount of time that they spend in each of those different programs.

So, for example, a family who is not Immigration cleared and cannot be released into the community may be released into an open hostel type situation. And what that means is that children are quickly removed from the detention environment - the closed detention environment. So it may well be a curfew system, it may be some way that there is some monitoring to reassure government and wider community, but to allow the children to be released into the community. It is certainly what happens in Sweden.

You are looking at a structured program which has very - both implicit and explicit supervision requirements, so in other words, people released into the community have a case worker, they - any kind of monthly assistance, any living assistance, any support is linked to them monthly - regularly going to visit their case worker. That is an implicit kind of way of monitoring or tracking people. The explicit is the role of immigration onshore protection and compliance in having a more proactive role for people released into the community that they are responsible for the implementation decisions.

So in other words, making people available on a negative decision. The Immigration Department generally knows what the final decision is going to be prior to the asylum seeker, so they can literally make a decision in discussion with the assessment panel whether a person needs to be put back in detention because the Immigration Department will know prior to the asylum seeker.

COMMISSIONER OZDOWSKI: Did your group make any cost comparisons, how much it would cost to do your way and how much does it cost to do it as we do it now?

MR MITCHELL: It is being costed at the moment. [sentence removed]

MR PURCELL: You might want to remove that from the record because I don't know whether they want their name listed.

MR MITCHELL: Sorry.

COMMISSIONER OZDOWSKI: That is fine. We had better move this sentence from the record.

MR PURCELL: But just on costing, we are undertaking costing but in the first instance some broad comments can made. It costs $120 a day to detain somebody on average, whereas for the 2691 people that were supported by the government-funded Asylum Seeker Assistance Scheme last year, it cost around - less than $200 a week to support a person in the community. So it is that ratio clearly of having people in the community, it is about four to one or something; it is much, much cheaper.

COMMISSIONER OZDOWSKI: Could do some savings.

MR PURCELL: Red Cross supported 2691 people on 89 per cent of the Centrelink benefit last year but that program ran at 11 million dollars as compared to - I don't know how much it costs to run the detention centre program each year for 3000 or 4000 asylum seekers that are detained, it may be one hundred and fifty million, so it is big savings.

COMMISSIONER OZDOWSKI: Thank you.

MR MITCHELL: Just in terms of - I mean we have really looked at the issue of absconding and we have tried to explore that in its international context and I know there has been a lot of discussion recently about what is happening in England. If anything, the rate of people supposedly absconding in - not being returned in England identifies the gap that exists there for comprehensive case management and for their very, very ineffective return system. We have been looking at how this model can be very outcomes based, preparing people for settlement and return, preparing people to more easily integrate into the community and to more effectively and humanely facilitate return.

And part of that is reassuring the asylum seeker and part of that is reassuring the wider community and that is why we have looked at how to have a risk assessment that is comprehensive and that addresses all of those issues and we have divided that into three things: the risk to abscond, the risk to self and health, and also community risks around security and so on. And that is - I know it looks like it is - and the argument could be, well, that will just - if that needs to take place before people can be released that will just prolong their time in detention.

We are arguing, for example, that health and security checks which currently take place after an asylum seeker has been granted refuge status and immigration detention, be brought back to when they first arrive. So in other words, what is happening at the end of

COMMISSIONER OZDOWSKI: I understood that some time ago, possibly around March last year, all three processes were matched together.

MR MITCHELL: No, well

COMMISSIONER OZDOWSKI: It is not your understanding that that is the case?

MR MITCHELL: My understanding and those that we have been working with have - it is at the end - prior to - I mean part of the reason that some asylum seekers are remaining for longer periods than necessary in detention, after being found to be a refugee, is due to security clearance which can take a very long time and has been much longer post September 11. We are arguing that that could occur right from arrival and that the case worker facilitates some of that process, so there is someone in the middle ensuring that there is a comprehensive health and mental health assessment and that also there has been some work done on - kind of an assessment on the risk to abscond which is always difficult.

There is always a margin that people may abscond into the community, but given that people will have adequate identity, health and security checks the wider community should not be unduly concerned, given that there has been that assessment that has taken place. So we have been trying to look at also how the starting point to detention, which I can say in Swedish terms is - the starting point is to make this assessment for the wider community's well-being and also to expedite the process. It is not that detention is used as a deterrence; there is no evidence.

We have been doing a lot of research and trying to find if there is any evidence that detention deters, and it doesn't, because it can't be compared to the experiences of people in the home country and those issues that have pushed them and forced them to arrive the way they do.

COMMISSIONER OZDOWSKI: How would you explain in this case that there was no boat arriving for last, I think, five months; it is what Minister Ruddock is saying?

MR MITCHELL: Well, one thing I can say, I think there is a difference between push backs to detention. Mandatory detention has stayed the same for 10 years in Australia and, if anything, the number has increased. The only thing that really has changed the number of arrivals has been the push backs.

MR PURCELL: Military

MR MITCHELL: Yes. So detention in itself as - I mean if that is going to continue that is one thing, but mandatory detention - unreviewable mandatory detention in itself does not deter, and it hasn't.

COMMISSIONER OZDOWSKI: Do you have some more evidence to support what you are saying? Do you have some analysis prepared - well, some other examples?

MR PURCELL: Put it this way. We have spoken with the Immigration Detention Advisory Group and asked them what evidence they had that detention deterred and they said they had no evidence and that they hadn't had any evidence provided by the Department of Immigration. So maybe there is some evidence sitting around in a filing cabinet somewhere in DIMIA but it hasn't seen the light of day yet.

MR MITCHELL: And we haven't been able to find any international evidence that detention deters.

COMMISSIONER OZDOWSKI: So what you would say that the claim by the Department that boats stopped coming it is because of the tough detention policy doesn't have any validity to it?

MR PURCELL: That is right, it is part of the military interdiction of our coastlines that has caused people to stop coming in this instance. Just a point on absconding as well. It is also another area where there is really no - very little evidence to show that people abscond. One piece of evidence that we have from DIMIA shows that between 1996 to 1998 nobody on bridging visas - asylum seekers on bridging visas released into the community absconded. There was 100 per cent compliance.

COMMISSIONER OZDOWSKI: There was a statement I think to the Senate about two or three months ago by Senator McKiernan who returned from a trip to the United States and if I remember correctly he was saying that there were about 800,000 people on the run in US and - perhaps I will stop here. I am not sure exactly what implication he was drawing out of it.

MR PURCELL: Could I say that those international comparisons are not very helpful for the Australian situation, as you would be aware, the American economy has a large illegal migrant labour force, which is unofficially tolerated, particularly in California. In Australia, as I said, the figures from DIMIA showed that for people in the community there is a high compliance rate. 100 per cent in one instance for Bridging Visas. But there are two types of compliance that we are interested in, in this model. One is implicit incompliance. And the other is explicit. As we have said, there are thousands of asylum seekers living in the community already, and the Department of Immigration has no problem with their compliance. It is able to monitor them.

Now, how is that so? Well, either there is explicit compliance. There is a reporting requirement to DIMIA. And we support that. And we say that this is part of the system of releasing people from detention, that you can expand that. But secondly, Australia has a wealth of experience with compliance in its criminal justice system, on parole systems, for example, and bail officers - bail hostels. So we have the resources and the knowledge in Australia, if we look at our local examples. Implicit compliance is that (a), asylum seekers have a vested interest to becoming legal citizens in Australia, so they want to see the process through.

So the people that are living in the community remain in the community because they want to go through the processes to get a good outcome. As Grant has pointed out, the Department of Immigration are always going to know before that person if they are unsuccessful ultimately. And that would be the time, at the level of Ministerial appeal, or High Court, to remove that person, or the father, back into detention if it is a family. Other forms of implicit compliance are that if people are released on Bridging Visas they are generally destitute. They don't have any rights to Medicare, so they are reliant on agencies like Grant's for their livelihood, otherwise what are they going to do? Starve.

Secondly, if they are on programs such as the Asylum Seeker Assistance Scheme they are supported by the Australian Red Cross, and they get some benefits. So again, they report in to Australian Red Cross, which is another form of implicit compliance. So really, there is an existing system already for asylum seekers in the community that prevents absconding and supports them. And it is there already. We just need to examine how it could be - it probably can be enhanced, but it is there. It is operating.

COMMISSIONER OZDOWSKI: Thank you. Do you have any further presentation or

MR PURCELL: Do you want to talk a little bit about just how the

MR MITCHELL: It is quite complex. I think what Mark was saying that - I mean, one reason why, and I will speak from Hotham Mission's experience. We have been involved in some negotiations with the Immigration Department and Department of Human Services about unaccompanied minors. And one case in particular being released into our care. So we were putting together a community care plan. The challenge with that, as Marc said, if people are able to be released on a Bridging Visa E, of course it will tend to be deemed in the child's best interest to be in an environment where they are going to have access to medical and other basic living assistance.

That is why, very implicit in this is the requirement for work rights, Medicare, living assistance for all asylum seekers. There was a rule - the Immigration Department in September last year introduced a rule in the Asylum Seeker Assistance Scheme program agreement that any asylum seeker released from detention on a Bridging Visa would not be entitled to the Asylum Seeker Assistance Scheme program. So that has excluded some children as well, children that have been released, that could be accessing that system - that program. There are issues like that that I think need to be addressed, and they need to be bridged in order for us to realistically look at how people can be released into the community.

Community agencies like Hotham, while we are like a model of how I believe it could be, it is terribly under-resourced and doing a whole lot of work which is essentially Commonwealth responsibility. We have also outlined, and it goes into quite some depth and maybe we don't have to go into it, but just how a community release program would work, and how there would have to be a lot of co-operation between Commonwealth and community groups, and between Immigration Department and agencies and

MR PURCELL: State government.

MR MITCHELL: State government as well. So, in terms of Hotham Mission's work in working with this group of people there is an incredible amount of goodwill in the community to support asylum seekers released in this category, given that they are also released with no rights and entitlements. And I certainly feel that implementing a structure like this, with adequate Commonwealth funding, would certainly be able to benefit all asylum seeker children that are in detention, and all asylum seekers in Australia, really.

COMMISSIONER OZDOWSKI: Yes. Thank you. I think we are slowly starting to run out of time. As a matter of fact we ran out of time allocated. But I would like to ask my Assistant Commissioners to put questions to you if they have got any.

ASST COMMISSIONER THOMAS: I am all right.

ASST COMMISSIONER SULLIVAN: I think I am right too thanks.

COMMISSIONER OZDOWSKI: What about counsels assisting? Any questions? So, could you please make the final statement, if you choose so?

MR PURCELL: Currently we are looking not at just the costing, but also how the State governments can expand their existing programs for unaccompanied minors who are granted TPVs to unaccompanied minors that might be released on Bridging Visa Es. That is, that their status determination process is not complete and we are undertaking those discussions with the State government. But I think the State governments have a very important role to play as well. But, just to point out that many of these concerns about, we don't have an ID card in Australia, are really irrelevant. Because many asylum seekers, thousands, have been living in the community, being processed by the Department, and the Department feels comfortable with that.

So if the processing can be speeded up for people that arrive in an unauthorised manner, and particularly for children and their families, those identity, health and security checks can be done, then I think a lot of this situation of children's development being damaged in detention centres can be quickly solved. Thank you.

COMMISSIONER OZDOWSKI: Thank you very much to Justice for Asylum Seekers Coalition. And I would like to acknowledge your submission. It was certainly a very well done submission, worth reading. Over 60 pages if I remember correctly. However, we will be working on the report for the next few months. If there is any evidence you would like to put forward, please send it to us.

MR PURCELL: Thank you.

THE WITNESSES WITHDREW [3.08pm]

COMMISSIONER OZDOWSKI: So now I ask for a - we will take a break for 15 minutes.

SHORT ADJOURNMENT [3.08pm]

RESUMED [3.25pm]

COMMISSIONER OZDOWSKI: Could I ask you for your attention. The hearing is back in session, and I would like to invite Mr David Manne from Refugee and Immigration Legal Centre to come to the table. Mr Manne, could I ask you to take an oath or an affirmation please?

MR MANNE: Yes, an oath.

DAVID MANNE, sworn [3.25pm]

COMMISSIONER OZDOWSKI: Could I ask you to state your name, address and capacity you are in here, so we could have it for the record?

MR MANNE: Certainly. My name is David Manne, and I am in - I am here in the capacity of Co-ordinator of the Refugee and Immigration Legal Centre, which is located at [address removed].

COMMISSIONER OZDOWSKI: Thank you very much. And now I would like to ask you to make an opening statement. In this statement, in particular I would like to ask you to state your credentials. I would like to know for the record how you were involved with refugees and children in particular. As you know, this inquiry is focussing on Australia's international obligations being undertaken to protect certain rights of refugees. And the responsibility of this inquiry is to assess whether Australia is doing it. So if you could focus on that issue. We are also interested in long term impact of detention of children. If you have any expertise in this area you are also invited to address us on that.

MR MANNE: Certainly. Well, I would like to begin by thanking the Commission for the opportunity for the Refugee and Immigration Legal Centre to give evidence at this hearing. My professional qualifications are as a lawyer and registered migration agent. And, just very briefly, I thought it worthwhile to outline the Refugee and Immigration Legal Centre's, if you like, history and what we do. The Refugee and Immigration Legal Centre is a community legal centre and we specialise in all aspects of refugee and immigration law, policy and practice.

We are also a contractor under the Department of Immigration and Multicultural and Indigenous Affairs Immigration Advice and Application Assistance Scheme. Otherwise I will be referring to that as the IAAAS Scheme. And we visit a number of immigration detention centres throughout Australia. Have done for quite some amount of years. That includes the Maribyrnong Detention Centre, and RILC, and as it was formally known, the Refugee Advice and Casework Service has been also visiting the Port Hedland Detention Centre. And also the Curtin Detention Centre. We have substantial casework experience in acting for asylum seekers who are detained in immigration detention, including unaccompanied minors and children with their families. And

COMMISSIONER OZDOWSKI: You visited some of the centres yourself?

MR MANNE: Yes. Yes, indeed. I have indeed visited Maribyrnong Detention Centre, Villawood, Curtin and Port Hedland, personally.

COMMISSIONER OZDOWSKI: So you have first-hand knowledge?

MR MANNE: I do indeed.

COMMISSIONER OZDOWSKI: Thank you.

MR MANNE: Yes. As do others within the organisation, over the quite - quite some period. Substantially our role in terms of visiting the detention centres has been to provide legal representation and advice. Just by way of a very brief opening, given our direct experience as an organisation in advising and representing unaccompanied child minors, and also children with their families in detention, the main focus of our submissions, what we would like to primarily focus on, is legal aspects and implications from a practical rather than a theoretical viewpoint.

Clearly, there are many other aspects and issues that are relevant to this inquiry including health, developmental, psychological and welfare issues. These are clearly critical. They are also things that RILC has direct experience in, in terms of seeing the impact on a number of our clients. However, they are not within our direct, if you like, knowledge and experience as experts in that area, so we thought it best to leave that to others. I would just like to also begin by commenting that RILC has strongly opposed the mandatory non-reviewable detention policy and practice in Australia for many years.

We have argued that Australia's current laws, practices, and the like in relation to mandatory detention offend against numerous human rights law principles and guidelines to which Australia is a party, and have provided that information to the Commission on a number of occasions, including making individual complaints in relation to some of our clients. Why I mention that is that, put simply, whilst the detaining of children is perhaps the worst outcome or consequence of the mandatory detention system, we would in no - by no means want to be suggesting today that it is only children whose rights are, if you like, denied by being mandatorily detained in Australia.

However, in our experience, certainly the detention of children in Australia is perhaps the most disturbing and acute aspect of a system which requires urgent reform. In short, our submission is that the current arrangements for detention of children in Australia fall conspicuously and depressingly short of meeting our international obligations to act in the best interests of the child, which is clearly the guiding principle on this issue. The relevant rights set out in international laws and guidelines recognise the distinct vulnerability, and the need for protection and care of children. The current arrangements for detention of children in Australia in many respects do not meet those basic requirements. In our submissions we are focussed primarily to date on unaccompanied minors, and in particular, certain aspects of the legal system which applies to them in detention.

And I understand that the Commission is aware of those, the summary or outline of our submission, so I don't propose to go through them in any detail now, but would be happy to answer questions.

ASST COMMISSIONER THOMAS: I just have a question. Your Centre

MR MANNE: Yes.

ASST COMMISSIONER THOMAS: Are you funded by - apart from your contract with DIMIA, do you have any other financial funding support from somewhere?

MR MANNE: Yes, we do. We also - part of our funding is provided through a contract with the Department of Immigration.

ASST COMMISSIONER THOMAS: Yes.

MR MANNE: The IAAAS contract. However, our organisation is also funded by way of certain grants by philanthropic organisations. And we also run special courses for those who want to become registered migration agents, so we play quite a significant role in terms of educating and assisting people to become migration agents, as well as doing other legal education, for which a fee is charged.

ASST COMMISSIONER THOMAS: Thank you.

MR MANNE: I should also note that in terms of our casework and advice, that the funding, as always, is limited, through the Department of Immigration. And we do a considerable amount of what you would otherwise call pro bono work. And that includes pro bono assistance to those in detention. Including children.

COMMISSIONER OZDOWSKI: The Minister of Immigration is a guardian to children who are in immigration. And I would just say at the same time he is also the Chief Commonwealth Officer responsible for control of our borders. Could you tell me how this guardianship role, in practice, does work?

MR MANNE: Yes.

COMMISSIONER OZDOWSKI: Does it really serve interests or children in detention?

MR MANNE: Well, I guess the nutshell of our argument is that if the Minister for Immigration is the legal guardian of children in detention - unaccompanied children in detention, it in essence poses what we would call an untenable and unworkable situation. Where there is a conspicuous conflict of interest. And that conflict of interest can be summarised by saying that there is, on the one hand, the interests of the State. And on the other hand, the interests of the individual. And in this case it happens to be an individual who is also under the age of 18.

I guess in terms of the - so, there is necessarily built into the system an inherent conflict of interest, we would say, which is untenable, is unresolvable. And which unfortunately, in practical terms, has the consequence of many undesirable results for the particular individual involved, the child. Would the Commission like me to expand a bit on that? Some of those undesirable

COMMISSIONER OZDOWSKI: Yes, yes. Yes, I would like to.

MR MANNE: Yes.

COMMISSIONER OZDOWSKI: Especially I would be interested to what extent the guardian is fulfilling its role in providing representation for children. And I would be also interested if you have any views on alternative arrangements.

MR MANNE: Yes. Well, in practical terms, from our experience and from our knowledge of the experience of others, in practical terms what happens, for instance, if we are talking about an unaccompanied minor, for instance, in remote detention is that clearly, the Minister is not able to be present as the legal guardian on site. And so what happens is that there is effectively a delegation to another Departmental officer, an officer of the Immigration Department on site. Our experience is that, in effect, the delegation is a direct delegation, whereby an officer of the Department of Immigration is appointed to, in effect, be the guardian of the child on site.

I would also say that in a more informal sense that there is a further delegation, but an informal delegation to officers of the Australian - or officers of ACM. Who would perform certain functions in relation to the care of the child in detention. Some of the - I guess I would prefer to speak mainly from the perspective of the legal adviser. Some of the outcomes of this practice are, in our experience, completely unacceptable and untenable. One of them is this. That if we are to go and prepare a protection visa application or an unaccompanied minor, that unaccompanied minor not only has to provide instructions to that legal adviser in confidence about their claims for refugee status, but in addition has to sign a statutory declaration that the contents are true and correct, etcetera. One of the practical problems that is faced by advisers is that in doing so there is no person who has a truly independent role accompanying the child, being there to assist with the preparation of the application. I can perhaps be even more particular and throw up a scenario. For instance, if I, as adviser, am faced with a situation with a client where some of the evidence that has been given to me, or some of the instructions that have been given to me, appear to be somewhat problematic, or indeed, just to require me to sit back for a second and reflect.

Well, this is - and give some advice on the legal implications of that, of what is being said. For instance, whether that - that child might be starting to get into the realms of having a third country that they might be able to go to, or something else that might affect their claims quite seriously. At present there is absolutely no-one with an independent - with a true independence who accompanies the child, and for whom their legal adviser can discuss these matters. It is highly unconventional in law for this to occur. And means that, at the end of the day, quite simply, sitting in the one room is an interpreter, a legal adviser, and a child, on what are, you know, quite - put simply, what are life and death matters that are being given instructions on.

ASST COMMISSIONER SULLIVAN: Where would you source these independent friends from? What would be the best source?

MR MANNE: That is an area where it is - that is an area where I am not an expert. It is not my expertise, that - to, sort of, I guess pontificate on who are the best guardians. But I am certainly aware of the fact that in other countries there are other arrangements that are made. One idea could simply be that the particular State - State or Territory that is involved, could provide a guardian through their child welfare agency. And, in that regard, I guess the simple point to be made is that there are plenty of people in State or Territories throughout Australia who have expertise in this sort of thing.

It may be that it could be that a religious leader, or leader from a particular community, which is obviously relevant to the child could be appointed. And I guess there are various other alternatives. Non-governmental agencies have had, I know, a great deal of experience in terms of dealing with and making arrangements for - and making arrangements for guardianship outside of detention. And, in my view, there is absolutely no reason why that couldn't be done. It would be a different situation if we were faced in Australia with the fact that no-one was interested or had expertise in these matters. But the fact is, we do. And it is clear and compelling that it needs to happen.

COMMISSIONER OZDOWSKI: Now, do you know of situations, or a situation, where these existing arrangements for guardianship resulted in, let us put it this way, not fully considered outcomes, or negative outcomes?

MR MANNE: I guess it is almost a - I get the drift of your question. It is almost an unanswerable question at the end of the day, because of the depressing reality that we don't have - we don't have a model to compare with, if you like. We don't have the model where I could say, well, in one case there was an independent legal guardian, and that facilitated me being able to give advice which resulted in X outcome. What I could say is that there is a very real and present danger of a negative outcome where there could have been a positive one, in these circumstances.

And it is simply because, in not having that independent person it is not possible to fully get instructions and fully provide advice. Particularly if the unaccompanied minor is someone - is a child who doesn't fully comprehend the consequences of what is happening, or what they are actually saying. I should also note in this area it is particularly important - it is important in all areas of law for independent guardians to be appointed in our view. Particularly important in this case where you are talking about a lot of other issues being in play at the same time. Different cultural issues. Different issues that might impact on the child, given torture and trauma experiences, etcetera.

It takes a long time to build up trust with a client, whether adult or child. And in this case, we would also see the important of an independent person facilitating that sort of open or free flow of information. Which incidentally, can I just make one other point, I would see as a benefit for the Department of Immigration themselves in making a proper, correct assessment of a claim. Surely that is what we are all in the business of doing. Not sending people back when we shouldn't be.

MS LESNIE: Yes. It is my

COMMISSIONER OZDOWSKI: Now when - okay.

MS LESNIE: Yes. It is my understanding that legal assistance is not provided to asylum seekers unless it is specifically requested. In the case of unaccompanied minors, in your experience, who has made that request? And are there any examples you know of where unaccompanied minors - lawyers have not been requested on their behalf.

MR MANNE: I know - happily I know of no circumstance where an unaccompanied minor has not been provided with legal advice and assistance under the IAAAS scheme. So, to that extent, no. I know of no circumstance. I also - I am not aware of the precise process in which people have been given legal advice or - sorry. Given the availability of legal assistance or advice. But my understanding is that the Department of Immigration for - especially for those who arrive without authorisation are documented by boat, that it is standard practice to actually provide people with legal advice once they arrive. I should, however, say that there - we are aware of instances where legal advice has not been provided in what I would call - what I would call promptly. There have been some irregularities in the process, but I should say that I am not aware of any unaccompanied minor, or any child who has not been provided with legal advice and assistance. The question of how quickly it has been done is another question altogether.

MS LESNIE: Can you given an example of an instance where you considered it not to be prompt - to be prompt?

MR MANNE: I would prefer to take that question on notice.

MS LESNIE: Okay.

ASST COMMISSIONER THOMAS: I assume you have represented children many times.

MR MANNE: Yes.

ASST COMMISSIONER THOMAS: So if a case is rejected, and the appeal goes through to the Tribunal and up to the Federal Court

MR MANNE: Yes, yes.

ASST COMMISSIONER THOMAS: do you usually follow through the case, representing it every level?

MR MANNE: The Refugee and Immigration Legal Centre does, as a matter of practice, follow through to the Tribunal level, and we provide full representation at the Tribunal. We don't - our centre does not provide representation at the Federal Court for any clients. But we do, at the Federal Court level, if any client, and especially minors, are interested in getting advice in relation to Federal Court appeals, we certainly facilitate that. But we don't go on the record in relation to those.

We take the view at our centre that an unaccompanied minor who, for instance, has been rejected the Refugee Review Tribunal, ought to avail themselves of legal advice in relation to a Federal Court appeal. Or indeed, we also provide advise as to whether they ought to make a request to the Minister under section 417 of the Act to seek humanitarian intervention.

ASST COMMISSIONER THOMAS: And who pays for all of these, you know, the cost of all of these appeals, in terms of legal advice? Do you provide them free of charge or

MR MANNE: We don't charge for any of the legal work we do. Part - some of it is funded through the IAAAS scheme, and some of it is provided pro bono, since it is purely pro bono advice. And I am not aware of any circumstance where an unaccompanied minor who has appealed beyond the services that we provide, to the Federal Court, that they have been charged for that work. There are, happily, a small but very energetic and excellent group of barristers who are prepared to step in and assert people's rights properly, so - and it is done for free.

[3.45pm]

ASST COMMISSIONER SULLIVAN: Have you had occasion to ask other adults involved in the process to use more child-friendly language/manner/approach to the issues you are dealing with?

MR MANNE: Sorry, can I

ASST COMMISSIONER SULLIVAN: Yes. I guess it is the issue of child-friendly processes, and I guess through your representing children, you would be aware of what I am talking about in terms of language and process.

MR MANNE: Yes.

ASST COMMISSIONER SULLIVAN: Are there elements of the current process that you would say are not child-friendly in those terms?

MR MANNE: Yes, there are.

ASST COMMISSIONER SULLIVAN: Could you give some examples?

MR MANNE: Yes. Our - I guess our organisation has, at times, been very concerned about the way in which the determination process is operated at both the departmental and RRT level in terms of the approach to children. I should say that it is uneven, it is inconsistent, and that is a result quite simply in my view of first and foremost not having proper guidelines for the assessment of the claims of children.

For example, we are aware of the situation where there is - in a departmental interview for the assessment of claims, there is a standard preamble that is generally read out by a departmental delegate who is delegated - has a delegated power from the Minister to assess the claim. In that standard preamble generally there is a time at which the applicant is warned that - with words to this effect: "You should be award that under Australian law, that if you tell a lie, that that could involve a penalty of 10 years imprisonment."

We are aware of circumstances where unaccompanied minors have indeed been told that with no further explanation as to the laws in Australia. I have taken the opportunity to go and speak to a criminal lawyer with more expertise in these matters about this and I might just make a suggestion on that situation which was told to me by a very senior criminal lawyer in Victoria, and that is that he said that if this was done properly and was technically correct, perhaps a better explanation would be this, that: Under Australian laws, there are sanctions for telling false or misleading information when you sign a statutory declaration and that could attract criminal law sanctions, but firstly it would require that the Department think it is a lie what you said, then it would involve the Department investigating whether it was a lie, then it would involve thirdly proving it is a lie, then it would involve negating arguments to the effect that there was no requisite intention to tell the law, and finally would involve a jury needing to be satisfied beyond reasonable doubt that a child of the age of 14 should be found guilty of telling a lie under statutory declaration.

Now, beyond that, it might be better to tell the unaccompanied minor also that it is extremely unlikely, even if guilt was proven, that it would attract a penalty of imprisonment, let alone 10 years. Regrettably, there have been situations that we are aware of where none of that has occurred, but in fact all that has occurred has been to tell the child if they tell a lie, they could be imprisoned for 10 years.

ASST COMMISSIONER SULLIVAN: And is the written documentation they get of a similar high tone?

MR MANNE: Documentation such as?

ASST COMMISSIONER SULLIVAN: Well, I am not aware of what documentation a child might be given

MR MANNE: Sure, yes.

ASST COMMISSIONER SULLIVAN: but I notice for example in your contract you are to give regular updates to the children and young people about what is going on, and I wasn't sure whether that is given verbally or in writing, and I am trying to get a sense of whether the child will clearly understand

MR MANNE: I understand.

ASST COMMISSIONER SULLIVAN: either orally or in written form what is going on.

MR MANNE: Yes. Well, in terms of updates, I guess the normal requirements are to provide for both the Department indeed and for the adviser to provide up updates in relation to the claims. One of the concerns in relation to the system, and again this relates to not having an independent legal guardian, is that quite a few of the updates - or all updates need to be given basically - or occur between the adviser and the client. It is not possible to have an independent person, again for the reasons that I have already suggested.

I should, however, say that there is another aspect to all of this which happens on a more informal level, and that is the Departmental delegate who is effectively the guardian in detention, in our experience generally - and I would say they are - I could only think that they are in a very difficult position, but quite often do do as much as they can to actually facilitate progress, and that sometimes includes making a phone call on behalf of the unaccompanied minor.

The real problem, however, and the dilemma that is faced given the systemic nature of the problem, is that neither the Departmental delegate nor the adviser can feel properly comfortable in discussing certain aspects of progress of things that are confidential to the claim, things like, for instance, look, you know, the Department have a concern about the consistency of your claims, we need to discuss this quite frankly and openly. Those sorts of things there are massive constraints on, which mean that at the end of the day again you are stuck on a phone as an adviser in Melbourne speaking to an unaccompanied minor who is by himself in a room, getting instruction or giving progress through an interpreter who is generally in another state of Australia linked up.

It again is a highly undesirable situation and where I - you know, I wouldn't want to be pointing fingers at Departmental delegates who are stuck in that situation because it is a situation that is inherent in the system itself and I should say that our experience is that on occasions Departmental delegates go as far as they can, but continue to be embarrassed by the inherent conflict of interest themselves.

ASST COMMISSIONER SULLIVAN: My final question is are those Departmental delegates given any formal training in this process?

MR MANNE: My understanding is there is some form of formal training, but I am not aware of the details of it, yes, in specific terms and I - yes.

ASST COMMISSIONER SULLIVAN: Thank you.

COMMISSIONER OZDOWSKI: Could I ask you about two things. First thing is about your access to client, how easy is it to access your clients in detention.

MR MANNE: Yes, well, access to detention in Victoria is - to the Maribyrnong Detention Centre is - we do not generally experience any problems in relation to access to clients in detention in Maribyrnong. We experience considerable problems in terms of access to our clients who are at Port Hedland or Curtin Detention Centre because of the tyranny of distance, if I could call it that, which means that - I guess without - I am not at liberty unfortunately to discuss the contract between the Department of Immigration and our organisation, but to say that it would be out of the question for us to be flying up with any regularity to Curtin or Port Hedland because our centre would have to close down within a few weeks given the costs involved.

So in terms of access, our access is generally by phone and by fax, and our access, I have to say, is pretty good. Our experience is that the Department of Immigration in both of those detention centres does all that it can to facilitate access and I have had situations where I have needed to speak to a client, an unaccompanied minor, very quickly, and that has been facilitated, you know, within a matter of 10 or 15 minutes. So I don't believe, certainly for our organisation, that access is restricted in any way other than through again a highly undesirable system whereby people are detained in remote areas of Australia, and it is particularly undesirable when regard is had to the fact that if there is n independent guardian, and the legal adviser is really the one pursuing the rights of the child, that there can be very little contact face to face.

I should also add to that that my experience of getting instructions from a child face to face as opposed to the phone are vastly different experiences. The quality of instructions face to face is vastly superior to getting them over the phone.

COMMISSIONER OZDOWSKI: In terms of exchange of faxes between your client and you, you didn't experience any difficulties?

MR MANNE: We have - no, we generally don't experience any difficulties. I couldn't say that we do. What I could say and what our organisation has raised as a concern a number of times is that in our view it is entirely inappropriate for facsimile communications between client and adviser, whether a child or an adult, to be coming through the same place, that is the Department of Immigration fax line, and being passed by the Department of Immigration to the client. In our view, we would strongly advocate that there be an independent body set up in detention, a communications centre with an entirely - run by entirely independent people to handle that situation, given the sensitive nature of information that is passing between client and adviser.

I will give you one example of why that may be particularly important. If, as is becoming, you know, conspicuously apparent, there are serious situations going on in detention such as self-harm issues, such as potential breach of people's human rights or violations of their rights, the situation where the only way they can communicate by fax is by giving the Department of Immigration a copy of the complaint and then it being put on the fax machine, is not likely to allow people full and free access to communicate with the outside world.

COMMISSIONER OZDOWSKI: What about interpreters? Possibly you need to use them for most of communication; how easy is it for you to access them?

MR MANNE: Again for almost all of the communications with our clients, we do use interpreters. Access to interpreters is readily available. I have only had one instance where I couldn't get a relevant interpreter on line for about an hour. Generally you can get them straight away.

COMMISSIONER OZDOWSKI: And you are organising them?

MR MANNE: Yes, we do.

COMMISSIONER OZDOWSKI: What happens if a client tries to contact you from a detention centre; who organises an interpreter?

MR MANNE: With unaccompanied minors, generally that is facilitated by the Departmental delegate who is responsible for their care in detention at the detention centre. Generally they would set up an interview by calling you themselves. The situation, of course, with those clients who are not unaccompanied minors is entirely different and very ad hoc. Most of the time, if they want to call, they would firstly need to have a phone card; quite a few of them do, quite a few of them don't. If they have a phone card, then they would need to generally find someone in the detention centre who does speak some English and also their language and to call you.

Otherwise, what we try and do is to ask them to call our direct line; we always give them our direct line and they can call that and say their name and then we try and call them back. But it is different for unaccompanied minors in our experience.

COMMISSIONER OZDOWSKI: Was your office ever contacted by detainees on Cocos Island?

MR MANNE: Yes.

COMMISSIONER OZDOWSKI: There was one occasion or

MR MANNE: Yes, it was yesterday.

COMMISSIONER OZDOWSKI: Well, must be a very lucky occurrence, because when I visited it some time ago there was only one telephone there for all the people involved, including Immigration, ACM and so on.

MR MANNE: My investigations yesterday in response to the contact were exactly that, there is one telephone.

COMMISSIONER OZDOWSKI: Thank you. Just last questions because we are slowly running out of time

MR MANNE: Can I clarify something on the record there, that why I paused in relation to Cocos Islands is that the contact was actually not made from Cocos Islands, it was actually made from Christmas Island.

COMMISSIONER OZDOWSKI: Christmas. On behalf of somebody on Cocos?

MR MANNE: In relation to some who - I haven't clarified yet because I haven't spoken to these people, I have made a request to, but my understanding is they may well have been at Cocos Island at some point, some of them. I don't have the full story yet so I couldn't be certain as to what it is. Yes.

COMMISSIONER OZDOWSKI: Yes, thank you. Now, coming back to guardianship; when they are released from detention because of one or another kind of a visa, they, as I understand, go into state guardianship. Do you have any experience with it, how it works?

MR MANNE: Yes, we do, we have considerable experience. At present we are actually acting for quite a number of unaccompanied minors who have been released on temporary protection visas to Victoria, and effectively they go into the care of the Department of Human Services directly, and we have had some considerable experience in that in terms of providing legal advice and assistance with the preparation of further protection visa applications. I guess our experience

COMMISSIONER OZDOWSKI: So you would be acting in this situation for a state government possibly?

MR MANNE: Yes, in effect.

COMMISSIONER OZDOWSKI: Yes, a state government will be paying your bills, so to say.

MR MANNE: Yes, without going into details, yes.

COMMISSIONER OZDOWSKI: Yes. How does it work?

MR MANNE: Well, our experience at the moment is that it works by way of the unaccompanied minor would be released to the State of Victoria. The Department of Human Services would make arrangements for their accommodation and care, and I think that those arrangements would vary to some extent depending on how old the actual child is. But in a general sense they would make arrangements for their housing, schooling and other care issues.

Most of our clients are actually attending schools in their local area and seem to be going very well, and as part of that there has been a recognition that as part of, I guess, the guardianship responsibilities, that they ought to also have legal advice and assistance and that is where we come in. Effectively, what has been happening, it has been an excellent - a really excellent development actually I have to say, and I think - from my understanding, the State of Victoria has taken the lead in this, that they are provided full legal representation in relation to their immigration matters, we are providing ongoing representation, so it is not just one-off in the sense of we prepare an application and that is it.

So effectively they have legal representation on an ongoing nature in relation to their further application for protection. Given that they are on a three-year visa, that is quite a substantial undertaking. Just in nuts and bolts terms, officers at the Department of Human Services assist in making appointments for clients, they actually bring them along to each session, so they go and pick them up and bring them to our office, and stay - remain there and then take them to where they need to go, and also assist with various forms of communication for arrangements and also assist with providing interpreters where necessary.

COMMISSIONER OZDOWSKI: Any problems with them changing address without notifying the authorities?

MR MANNE: Yes, there have been some issues in relation to that, but again given the network in terms of the Department of Human Services, ourselves and other agencies effectively all chipping in

COMMISSIONER OZDOWSKI: So it was possible to locate them?

MR MANNE: Yes, they have not been unresolvable at all, yes. I guess I mean once - I guess there has been a bit of interstate travel at times and tracking people down, but generally it has been fine.

COMMISSIONER OZDOWSKI: Thank you. Any - further? Could I in this case ask you to make a concluding statement if you wish?

MR MANNE: I guess there are just - actually in terms of the concluding statement, I think that my introduction probably dealt with our conclusions in relation to the issue. One thing that wasn't raised today, but which I would like to raise in conclusion, is that at the moment we are faced with a situation of children in detention which needs urgent reform at its roots. The policy at the moment means that the presumption is detention and the exception is release. This is perhaps in practice - not in policy and law - but in practice there has been some recent change.

I do note that there has been more of a practical tendency to release unaccompanied minors in recent times from detention and there are very few, if any, remaining in detention now, but nevertheless, what remains in Australia is a system which not only mandatorily detains adults, but children. It is absolutely and abundantly clear in International Law and policy that detention should only be used as a last resort for children. Our experience in this country is that is not the case, the presumption has been to detain. The difficulty of actually getting unaccompanied minors - children released from detention tell us that the presumption certainly is detention with some exceptions, that we have had some reasonable progress recently.

But I should say one other thing; our experience in terms of the release of children from detention shows that there are no reasons whatsoever why it cannot be facilitated. In our experience, we have not noted any circumstance where it has not been in the best interests of the child to be released, and we are working very closely with agencies with expertise in terms of care and welfare of children once released, including Hotham Mission.

COMMISSIONER OZDOWSKI: The Minister is often saying that he cannot release children because it is in the best interests of children to stay with their parents, and the parents have got to stay in detention.

MR MANNE: Yes. Yes, well, one of the fundamental issues in relation to the best interest of the child is also not being exposed to an environment which could cause them harm. I don't need to speak or to lecture you on the problems that we face in detention at the moment, but clearly there is a culture of where self-harm has become a norm in detention, where there have clearly been lots of other problems, problems which are caused again in our view by the system that we have.

The best interests of the child, whether with a family or unaccompanied, in our view cannot be to remain in an environment as problematic as that. And indeed, our other view would be that in relation to - and I would like to provide the Commission with some further written materials on this, but if the presumption was that children ought not be, as a presumption detained, surely the principles of family unity would require that if a child is not to be detained because it is harmful, then also families of those children ought to be released with those children. That would be our basic position.

I should say that we are happy, if it would assist the Commission, to provide some case studies of extremely serious situations where children have been accompanied by adults have - including a young girl, were put into an environment in detention with a number of other males, adult males, a situation in which it is absolutely clear from the medical advice and assessments that have been obtained, that it has caused that young girl severe and ongoing psychological and medical trauma.

COMMISSIONER OZDOWSKI: Well, thank you very much, Mr Manne, for your contributions, both oral and written, and if you could provide us with the studies, we would very gladly accept it.

MR MANNE: We will be pleased to do so. Thank you very much to the Commission. Thank you, sir.

THE WITNESS WITHDREW [4.06pm]

COMMISSIONER OZDOWSKI: Now, I would like to ask Mrs Barbara Rogalla to come forward. Welcome. I would like to ask you to make an oath or affirmation.

BARBARA ROGALLA, affirmed [4.07pm]

COMMISSIONER OZDOWSKI: Thank you. Can I ask you now to - please, sit down. Can I ask you now to give you name, your address and capacity in which you are here for the record.

MS ROGALLA: My name is Barbara Rogalla. I live at number [address removed], and I am here because - to give evidence in relation to the submission that the detention of children is in breach of the Convention Against Torture. In my

COMMISSIONER OZDOWSKI: Thank you very much for your submission, and what I would like to ask you to do now is to make an opening statement, and in this opening statement I in particular would encourage you to give your expertise you have in the matter.

MS ROGALLA: Okay. I have been employed at the Woomera Immigration Detention Centre for a total of three months during the year 2000. Since then I have been involved in refugee issues from a human rights point of view. I have published several papers, I have read quite extensively up on various human rights issues and - yes, I guess

COMMISSIONER OZDOWSKI: What were you doing during the three months at the detention centre? As I understand, you were working as a nurse there.

MS ROGALLA: That is correct. During - people there were employed on six-week contracts. During my first contract I conducted general nursing and during my second contract I conducted psychiatric nursing with a little bit of general nursing as well.

COMMISSIONER OZDOWSKI: And you have got qualifications in both?

MS ROGALLA: Yes, I have.

COMMISSIONER OZDOWSKI: And could you say something about the level of contact you had with children while in Woomera?

MS ROGALLA: I saw children as well as adults in the normal day to day work, depending on - like, we were running clinics and people would front up to the clinics. Children would come up with their parents often to get their medications, and I would often see children - not necessarily if I was attending to them, but just by walking through the camp or when they were with their parents.

COMMISSIONER OZDOWSKI: Could you now tell us about your experiences of it and, in particular, about what kind of conditions children were in and also about the impact of detention on children.

MS ROGALLA: Based on my own observations

COMMISSIONER OZDOWSKI: Could I ask - excuse me - could I ask maybe to use the microphone because apparently we are not recording very well, so if you could speak more to the microphone please.

MS ROGALLA: Is this better?

COMMISSIONER OZDOWSKI: The gallery can't hear it. Okay. Okay, so you need to speak a bit louder.

MS ROGALLA: Okay, I will do that. And your question is what are my

COMMISSIONER OZDOWSKI: I asked you - yes, about - that you tell us what did you experience when you worked there from the point of view of welfare of children, and particularly, I would like to know more about conditions children were in over there, possibly especially from the point of view of medical services because it is where you were, but I would also like to know about psychological effects of detention on children.

MS ROGALLA: Okay. My main observation is that the children are very, very much - very subdued, almost - they were almost at a state of emotional numbness. I found that just by walking through the camp, I often found that they would not even make a noise when they were playing and they just appeared very retarded, like developmentally retarded.

COMMISSIONER OZDOWSKI: You are talking about what ages of children; young or older, till 18?

MS ROGALLA: I am talking approximately up to about five years old.

COMMISSIONER OZDOWSKI: Okay.

MS ROGALLA: From toddler to about five years old, and I am think about one child in particular who used to be a really loving child and I was told at the term of my second contract that he had resorted to throwing stones at the guards. I have not actually observed any act of aggression by children myself, but I have heard about it.

COMMISSIONER OZDOWSKI: And how old was that child?

MS ROGALLA: About two or three years old at that time.

COMMISSIONER OZDOWSKI:

Site navigation

Human Rights navigation

Transcript of Hearing - MELBOURNE

Thursday 30 May 2002

Please note: This is an edited transcript