HREOC Website: National Inquiry into Children in Immigration Detention

Transcript of Hearing - MELBOURNE

Friday 31 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

RESUMED [11.06am]

COMMISSIONER OZDOWSKI: We would like formally to open this Public Hearing in Melbourne on 31 May. My name is Sev Ozdowski and I am the Human Rights Commissioner. I am assisted by two Assistant Commissioners - to my right is Dr Trang Thomas who is also Professor of Psychology at Royal Melbourne Institute of Technology and to my left is Mrs Robin Sullivan, who is the Queensland Children's Commissioner. Also at the table are two counsels assisting.

I have issued directions concerning the privacy and concerning confidentiality issues and basically I would like everyone present to adhere to them. In short, I am asking witnesses that they would not mention individuals in their evidence. The reason for it is that if any adverse comments are made, the person mentioned would not have an opportunity here to defend himself or herself and it would be patently unfair. Also it is our responsibility to protect the privacy of individuals, especially individuals who are under the age of 18 and who are in the process of making their own claims.

I also would like to ask media present here to respect the privacy of witnesses and if you would like to take photographs of them to gain their permission to do so.

The purpose of the public hearings is to test evidence which is before us and to ensure that all the facts which are before the Inquiry are facts which are correct facts. Our first witness today is Ms Lyn Bender and Ms Bender is a psychologist who worked in Woomera for some time. Could I ask you, Ms Bender, to take an oath or affirmation.

LYN BENDER, affirmed [11.09am]

COMMISSIONER OZDOWSKI: Thank you. Could I ask you now to state for the record your name, address and the capacity in which you are appearing here today?

MS BENDER: My name is Lyn Bender. I am a psychologist and I am appearing today to convey my experiences when I was a psychologist employed by ACM at Woomera Detention Centre this year.

COMMISSIONER OZDOWSKI: Thank you very much. Now, I would like to ask you to make an opening statement and perhaps it will be good for the record if you could say how long you worked in Woomera and how much experience you had with children while you were in Woomera. The Inquiry is focussing on Australia meeting its international obligations relating to children, especially under the Convention on the Rights of the Child. We are, in particular, looking at conditions in the detention centre and whether the conditions meet international obligations. We are also trying to assess long term impact of detention on children. Thank you?

MS BENDER: I was employed as a psychologist by Australian Correction Management from 6 March this year until 16 April, for six weeks. It was a six week contract and I was at Woomera for those six weeks.

COMMISSIONER OZDOWSKI: Can I ask you were you offered an extension of your contract?

MS BENDER: No, I was not. I was actually asked to leave two days early.

COMMISSIONER OZDOWSKI: Could you perhaps describe your experiences over there, as they refer to children?

MS BENDER: The children - I didn't see the children formally as often as I saw the adults because children don't necessarily accept that kind of help, but I would speak to the children in the compound. I visited the children in the school. I spent time with some of the children who attempted suicide.

COMMISSIONER OZDOWSKI: How many children attempted suicide you met with?

MS BENDER: Four children.

COMMISSIONER OZDOWSKI: What were their ages?

MS BENDER: Two were around 12 or 13. One was 12. One was 13. It is hard to be absolutely sure about their ages because they tend to write their ages at the first of January of the year they are born in.

COMMISSIONER OZDOWSKI: Could I ask you to describe the circumstances of each individual case?

MS BENDER: Okay. One - they were all males. One was with an unaccompanied minor who had been very compliant until that point and talked about being happy to go to school and he smiled a lot. I interpreted that as trying to manage an environment that was difficult, by being compliant. I don't necessarily think he was happy but apparently compliant initially and he became increasingly depressed as I saw it. This was reported to me by one of the teachers. He stopped smiling. He stopped talking and then he just refused to go to school. He had drunk shampoo and was brought to the medical centre by an adult who knew him, who himself - this particular adult had tried suicide many times. The child

COMMISSIONER OZDOWSKI: Was the child influenced by the adult or following his pattern?

MS BENDER: The self harming was so prevalent and so pervasive that no child would have avoided seeing adults self harming. I don't infer in particular this adult had influenced the child to self harm. In fact he had intervened and brought him for attention and that

COMMISSIONER OZDOWSKI: But it was a culture of self harming, which was impacting on children?

MS BENDER: There was very visible self harm, constant talk of it. The children for example when I arrived would have seen people in graves - when I first arrived there were people in dug graves with children seeing this. Some of the children - it was their parents or people they knew. They knew why the parents were doing this. The knew that the parents were talking about possibly dying. They were on a hunger strike. There was visible self harming on the razor wire. People were taken to the medical centre at regular intervals having slashed. People taken to hospital. There were attempted hangings that these children would have seen.

COMMISSIONER OZDOWSKI: What were the other three cases circumstances?

MS BENDER: Two little boys who were very close friends. One was brought to the medical centre. When I arrived he had attempted to hang himself and I spent quite a lot of time with him and his family and as I was doing that another little boy who was his best friend had been brought in who had also attempted to hang himself.

COMMISSIONER OZDOWSKI: And did they hurt themselves in the attempt?

MS BENDER: They were foiled. With hanging, you either do it - it either happens or you are usually okay. It is kind of - there is no way between it. But they had - they were looked at carefully and checked out for neck injury and so forth.

COMMISSIONER OZDOWSKI: And the last case?

MS BENDER: Another child of 13 who attempted to hang himself and his family at that point was quite disintegrated. His mother was in an almost immobile depression. She had been hospitalised. His sister who I saw in my room that day just sat there tearing up paper from - hand towel paper and saying, "I am dead don't touch me", which was highly disturbed behaviour. His older sister had a child and her partner was self harming regularly and this - the father wasn't self harming but the father was in total - was totally overwhelmed and this young boy was extremely depressed and despairing.

COMMISSIONER OZDOWSKI: And the four children which were brought to you. You spent some time with them and you spoke with them?

MS BENDER: Yes, I did. With interpreters.

COMMISSIONER OZDOWSKI: Did you ask them why they attempted this kind of behaviour?

MS BENDER: Yes. They said very clearly it was quite consistent that they hated the environment which they were in. They were tired of the fences, the razor wire, the sounds of breaking glass, people drinking shampoo they said, fires - there are had been fires that some of them had witnessed and they wanted to leave. They felt badly treated in Woomera. The 13 year old said what he most wanted was to go to an Australian school with Australian children when I asked him what would make him want to live. They were all very clear they didn't want to die but they couldn't tolerate the environment and one little boy actually said, "I cannot tolerate this any more".

COMMISSIONER OZDOWSKI: Would you know how long they were detained at Woomera?

MS BENDER: On an average the one that had been there the shortest time was around 11 months, the others had been a year and over and year.

COMMISSIONER OZDOWSKI: So a substantial period of time?

MS BENDER: Yes, a substantial period of time in their lives.

COMMISSIONER OZDOWSKI: So it would be substantial portion of their lives?

MS BENDER: Absolutely, and their experience.

COMMISSIONER OZDOWSKI: You mentioned a moment ago about family disintegration. Could you say something about whether the children have their families and what role their families played in it?

MS BENDER: Okay. One - the oldest child had his family there - his whole family there, but they were at the last - they were at a far stage of rejection. They were from a sect that was persecuted. They spoke to me of being persecuted in their country. They were being told this was not recognised as requiring refugee status. They were very afraid of return. They were - felt highly discriminated by in their country and they were receiving a repeat of that in the detention centre.

COMMISSIONER OZDOWSKI: But in terms of the child, were they able to provide support for him? If in an Australian family that a 13 year old child attempted suicide the family would do everything possible for the child?

MS BENDER: They were distraught about it, but they were so emotionally - the mother for example had nothing to give her children emotionally. She wouldn't speak to them. She wouldn't speak to anyone. She just lay in bed and cried all the time. So they were aware visibly of her disintegration and it was very distressing. The father of this particular child, under duress, stayed in the observation room with him for several days. This was extremely difficult for him because he found it - he was very worried about his other child - his 10 year old daughter who was with the older sister, who was already under duress herself.

So in the sense that they felt for them, they were concerned, but they couldn't create an environment that would be supportive and alternative. They couldn't distract their children. They couldn't offer them hope. They couldn't give them any kinds of activities that made the children feel that life had some future and some hope. They were not - there was school, but it was very minimal and the parents were really excluded from the school process. They couldn't do a simple thing like take their children to school.

COMMISSIONER OZDOWSKI: What about the other children. One of them was unaccompanied, as I understood?

MS BENDER: Yes.

COMMISSIONER OZDOWSKI: What about the other two children? Did they have families there?

MS BENDER: One child, who had attempted to hang himself, had his mother and four siblings. His father was in Sydney. His father had a visa. They were - he was particularly longing to be reunited with his father and particularly - found it particularly difficult that he couldn't be with his father.

COMMISSIONER OZDOWSKI: Do I understand you correctly, the mother with four children was in Woomera?

MS BENDER: Yes.

COMMISSIONER OZDOWSKI: And the father was Sydney possibly on a TPV?

MS BENDER: Yes, he had had it for a while and they had come out attempting to join him. They were a vulnerable family and the mother was very attached to her children, that was very clear, but very overwhelmed with dealing with the whole environment and particularly as at the point at which this child attempted suicide it had gone to the Minister - a letter to the Minister requesting refugee status. They had had points - they had been refused at every point until then.

COMMISSIONER OZDOWSKI: And after attempted suicide they were granted the TPVs, or what?

MS BENDER: This family, to my knowledge, is still in Woomera.

COMMISSIONER OZDOWSKI: Still in Woomera?

MS BENDER: Yes. The other child - he was granted a visa. It had been in the pipeline, I believe, already.

COMMISSIONER OZDOWSKI: And the last child's family who attempted suicide, what were the circumstances?

MS BENDER: The unaccompanied minor?

COMMISSIONER OZDOWSKI: No, no. That was two families. One unaccompanied minor and there was the fourth case?

MS BENDER: That child has received a visa and is in the community. He actually rang me on my mobile when he was out asking about his friend in Woomera, thinking I was still there and asking if his friend was okay. He was very worried about his friend and I couldn't give him any reassurances.

COMMISSIONER OZDOWSKI: Could you tell me what the procedure, if a child attempts suicide in Woomera, what the formal procedure - how do you get involved with what is happening, basically from the moment the child attempts suicide, until ?

MS BENDER: Well, while on the surface there are clear procedures the actual process is really chaotic. There is a system for all suicide notifications and it doesn't actually differentiate between adult and children. The treatment is much the same. At the time I was there, for the last week I was actually the only psychologist there and there was a huge rate of self harming and normally you would be much more pro-active.

You would seek out these children and you would spend regularly time - as soon as you realised they were at risk and there was no doubt in my mind they could all be at risk because of the environment. But, in fact, you had very little time to do any of that and you more or less in the parlance, picked them up at the bottom of the cliff. You couldn't intervene before and you couldn't even follow up because you would be swept into another case that was before you. In fact you didn't necessarily even get to talk all the people who had made suicide attempts.

COMMISSIONER OZDOWSKI: So when a child who was brought to you, you spoke to a child?

MS BENDER: Yes.

COMMISSIONER OZDOWSKI: You possibly filled in a report and then possibly that was it?

MS BENDER: There was an incident report, they were put on observation. Everyone - there was a high risk assessment team - HRAT was the acronym, for observing anyone who was suicidal. When they had just made an attempt they were put on closer watch. It might be two minute observation and they would be put in the observation cell. If they felt they could be watched adequately in the compound it would be 15 minutes. Now, the observation was done by officers.

There was a regulation that they were meant to see a psychologist daily but that would be impossible and in fact when I tried to do that kind of intervention generally it was so brief as to be actually harmful because it meant you really just went around and said, "Are you suicidal?", they said, "Yes", and got very angry because you weren't going to spend any time with them.

COMMISSIONER OZDOWSKI: Some people are claiming that they are not real suicide attempts because they are unsuccessful usually and that it is simply a way of negotiating a deal or visa outcome in the detention centre. What is your view about it?

MS BENDER: The dynamic of suicide is always an attempt for people to understand how someone is feeling and there is a level of ambivalence about life and a level of ambivalence about death. As people get more desperate the ambivalence moves closer and closer to a death acceptance and a life rejection and I watched these children move into a closer and closer preoccupation with death as the only other solution. It was desperate, they were risking their lives. I believe they were well aware they were taking a risk. Many of the times that these were foiled it was simply because the environment was so close that there were so many people wandering around and so many people aware of risk factors that I felt it was sheer good luck sometimes that suicides were foiled.

COMMISSIONER OZDOWSKI: As a psychologist, did you witness similar occurrences in open society?

MS BENDER: I have done a lot of work with suicide - I have never - I have worked in a prison for a short while. The intensity and the prevalence is outside all my experience. It is not a normal environment in that sense. It is perhaps in a locked psychiatric ward you might have a group of people that are as highly suicidal as that but they would be getting far better treatment, far more intense treatment, they would be monitored more closely, and more carefully and so it was like an environment where, really, everyone I spoke to spoke about death. I don't actually recall someone not mentioning death.

In my practice I would be considering these people at risk. I would want to intervene. I would want to see them regularly. I would be looking to all other means to engage them in life and to give them hope. In this environment that was impossible. You couldn't actually do it.

COMMISSIONER OZDOWSKI: So with the allegations made in the context of the lip sewing incidents in January this year that perhaps there were parents involved with it, if not doing it, at least encouraging children, do you know of any evidence that this self harming behaviour is encouraged by parents?

MS BENDER: I don't have any evidence of that. I have accounts given to me of parents of their fear of their children's self harming behaviour. With the last little boy I was speaking of, the 13 year old, I was told that I had to have his father present when I interviewed him, even though I had an interpreter and I thought that would be sufficient. His father couldn't tolerate hearing about suicidal ideation without breaking into tears, he found it so extraordinarily painful and he was so worried. So, in my view, I didn't encounter that at all. I encountered the opposite - of parents being distraught at their children's harming.

COMMISSIONER OZDOWSKI: Asking, from your professional point of view, what could be done so this behaviour doesn't occur? Is it possible to assist these children in close involvement of detention or basically as long as they are in detention they cannot be helped?

MS BENDER: If they are in detention they are constantly being re-injured and re-experiencing an abusive environment that makes them increasingly despairing and the situation became worse and worse for them rather than better and anything that was done was like a tiny bandaid and they were well aware of that. They wanted normality. They wanted to be in a normal environment.

MR HUNYOR: Sorry - Ms Bender, do you think that that would be the same almost irrespective of the level of care that was available within that environment?

MS BENDER: The level of care could only bandaid. It certainly required a greater level of care that might have kept them going a bit longer, but it would not have decreased their trauma or their depression because the environment was re-exposing them all the time.

COMMISSIONER OZDOWSKI: It is possibly the question I had for you. I will ask now my Assistant Commissioners to ask you questions. Thanks.

ASST COMMISSIONER SULLIVAN: Could I talk about the assessment process when people come into the centre. Did you have - were you involved in that initial assessment?

MS BENDER: No. It was intended to be when the officers threw their hands up they would yell out for a psych basically. So, they would manage it. They had their own style of management and they felt they could manage behaviour. That was what they saw it all as - behaviour, but if it got out of hand and the person was really distraught and distressed and they couldn't restrain them and stop the crying and the wailing they would call for a psychologist.

ASST COMMISSIONER SULLIVAN: So, did you get access to those initial assessment documents as a basis for your further treatment?

MS BENDER: I could look at the files, yes, I could access the files. The files were pretty minimal. They were very factual. They were medical. They stated if there had been suicide attempts. They stated any symptoms which often were, in my view, somatization, which is stress symptoms that go to the body. There was very little about the environment. I started writing a few things like that in my reports.

ASST COMMISSIONER SULLIVAN: So, again in exit, did people take those records with them?

MS BENDER: They can, yes, they are entitled to them, I believe.

ASST COMMISSIONER SULLIVAN: Well, I will ask the question another way. Were they issued with them, or did they have to request them?

MS BENDER: I am not sure. I know when people got their visas all their files were put in a box and I am not sure what happened to them. I really don't know. I was not given a formal orientation about the processes. I found them out as I went along basically.

ASST COMMISSIONER SULLIVAN: And did you see any evidence of differential treatment of children and adults?

MS BENDER: Not appropriate differential treatment. That for example when they expected riots prior to Easter, a week before that we were briefed by the officers and it was all about evacuation and it was all about protecting the records and packing up the medical centre and when I said, "Well if you are expecting riots wouldn't it be a good idea to negotiate with people and to bring in negotiators", I was told, "There is no point in that". And then they went on to talk about what might happen.

There might be fires, there might be rocks thrown and so forth and the nurses had to get into this kind of riot gear - jungle greens we nicknamed them - and I said, "Well, why don't you remove the children if you think there are going to be riots?", and they said, "The children - we cannot separate the children from their families", and they also said, "But the children are just as bad as the adults, they have been taught to throw rocks, they are the worst of all". So, in my view, that was so utterly shocking. I was so shocked by that. I left the meeting at that point because I thought I would explode.

ASST COMMISSIONER THOMAS: I would like to move on now to the effectiveness of your communication with them - the children of your clients in there about the use of interpreters. Do you think that they can be trusted, in this environment?

MS BENDER: I have developed a strong relationship with the interpreters and I trusted them. There were certainly one or two that were more sensitive than others and I felt really in touch because working psychologically with interpreters is quite complicated and you have to know your interpreter. Sometimes your interpreter wants to soften the blow of your question and add their own, so I would often check out with interpreters what they had actually said if I had any doubts.

I felt the interpreters were very empathic to the clients that they actually were moved and distressed by the clients' stories. And I had to debrief them quite often. I tried to. I think there is a complexity in working with interpreters but on the other hand because there were cross-cultural issues I would be able to ask the interpreter, "Is this the right way to ask this kind of question - this is what I am trying to understand. Could you ask the person to say it again"? Or I would use metaphor and I would watch the response of the clients and it would be pretty clear to me they had heard what I had said - when they heard what I said and when I had got through to them and it is much slower working with interpreters but in some ways that was okay too. I also used the interpreter service and many of the children could speak a little English, so there was some fall back on that.

[11.35am]

ASST COMMISSIONER THOMAS: Now this is a different question.

MS BENDER: Yes.

ASST COMMISSIONER THOMAS: How did you get this job, were you recruited, did they advertise and you applied?

MS BENDER: There was an ad in the paper asking for expressions of interest. Because my area is harm prevention and trauma and I had heard about the harm I thought they must really want to do something about the harm at these centres so I sent in my CV and within a week I was rung and asked whether I could go next week. No further interview was done. They went purely on my CV and my response to the criteria and when I applied it said, "Detention Centres" it didn't say which ones but they asked me to go to Woomera.

ASST COMMISSIONER THOMAS: Were you asked sort of not to disclose any information that you collect at the centres at any time? No special clauses in the contract?

MS BENDER: There was a fairly standard confidentiality clause not to remove any intellectual property as well was part of that, which I signed before I went.

MS LESNIE: You mentioned before the use of isolation rooms to - in response to the father of one of the children, could you comment on how often isolation rooms were used, the purposes for which they were used and in your view the appropriateness of that use.

MS BENDER: Well, isolation rooms were meant to be for people who were so suicidal their safety couldn't be guaranteed in the compound even if they were watched every 15 minutes. And I might add that watching every 15 minutes was not always possible. People could wander around, there was maybe one or two officers for the whole compound so they couldn't really guarantee that watch.

The observation rooms were used when people were screaming, yelling, saying they wanted to kill themselves, had just made a serious attempt and they are used in other prison settings. I have seen them used where they are devoid of any materials that could be used to self harm. Or they are meant to be. These rooms actually weren't that well designed in that sense.

COMMISSIONER OZDOWSKI: Were children put into the observation room?

MS BENDER: This child was put in. This was the week I left and I actually protested strongly about having no options for this child. This child was put in - I had had a day off. The psychiatric nurse had put the child in the observation room the night before because he had attempted to hang himself with his father because the child couldn't be put alone, the father found it very difficult to be there.

When I arrived there was still no other option for this child and I actually - it was - I secured his release. For this I had to spend a lot of time with him and get a contract from him that he wouldn't harm himself and he agreed that he wouldn't if he could go to school on Monday, but by - that was on the Saturday, by Saturday night he was again threatening harm and he was brought back into that room.

MS LESNIE: In your view, is that an appropriate way to respond to that action?

MS BENDER: It exacerbates depression because it is so devoid of stimulus and isolating and because this particular child was exhibiting almost claustrophic about being locked into the detention centre - locking him into a smaller room was even more counterproductive. There were times when I had to use it because if I did use the option of sending him back into the detention environment - the compound where they were highly at risk, it was a catch 22 or a devil and a deep blue sea kind of choice - frying pan or fire and in the end I sometimes had to accept restriction.

I also was not allowed to make the decision on my own, I had to make it in concert with the detention officer and a nurse and they were very keen to lock people in the observation rooms because it felt safe to them that they were not going to risk the liability of someone suiciding but the way I work with suicide is to try and increase the safety through the person feeling more hopeful and there was very little I can do other than at sometimes it did give them a quiet space but it had no stimulus, it had harsh concrete walls that some people banged themselves against, it had a glass window that had been smashed in the past and the glass had been used in attempted self harm. Someone had managed to try to hang themselves within one of those rooms, so they really weren't well designed, even for that purpose.

MS LESNIE: You also described - a use of physical restraint in your submission.

MS BENDER: Yes.

MS LESNIE: Do you want to talk a little bit about when that was used and, once again, the appropriateness.

MS BENDER: When people were screaming and distraught and sometimes flailing around with this despair which when people are extremely distressed they may throw their bodies around, especially as language was limited, so these people when they became distressed that body language became even more important. There were times when I would intervene. People wouldn't have called me, but I would hear wailing and I would enter an observation room and I would insist that the officers allowed me to talk to the person and I would call for an interpreter and many times in that kind of process you could calm the person.

I would stoke them because the physical - the signs of physical distress were enormous and the officers would then stand back if I insisted but they didn't necessarily call me and they handled all this distress if the person - I have seen people brought to the centre and falling - not moving and so being dragged along and if the officers found that really difficult there might be three of them trying to move one person. Then they would sometimes call for me if I was around.

COMMISSIONER OZDOWSKI: Can I ask you - were you stressed, or traumatised, because of your experience in Woomera?

MS BENDER: I found it extraordinarily distressing and I found myself developing certain defence mechanisms to manage my stay there and it is not uncommon for workers to mirror the trauma symptoms and their clients but it was so all pervasive that there was really nowhere to go apart from a couple of colleagues and the interpreters I would - the interpreters and I would talk a lot about - it was a kind of informal debriefing. I think that kept the sanity for me.

COMMISSIONER OZDOWSKI: What about the other staff - the officer or ACM staff?

MS BENDER: Yes.

COMMISSIONER OZDOWSKI: Were they showing signs of stress as well?

MS BENDER: Yes. Some were very compassionate towards the detainees and tried to help them and understood them and actually knew how to manage them reasonably well in the sense that if they got a bad result they knew just to sit and listen to them and talk to them. Others seemed to be quite sadistic and others had poor skills and they were finding it hard to understand and getting angry and I saw that as distress.

There was one incident where I was in the mess which is the dining room and I was staying late. I did a lot of unpaid overtime and it was the changeover of staff and I had gone to get a cup of coffee and the staff started milling around and it was actually in my brief to debrief staff. I was never really asked to do that and I thought, well, I will just chat to them and see how they are feeling and the staff started to build up and a conversation ensued about the detention centre and many of them were getting extremely irate and saying to me that the kinds of things about - "Well, these people brought their children, what kind of people are they?" Others are a bit more open. I raised it that they were - did they get debriefing and they said, "What is that?"

I then thought I had better leave because they were getting very angry and I felt a little bit threatened and I was rung by the Health Manager half an hour later I think and told that I was going to be disciplined for disrupting the morale of the officers and for - I had seemed to show more empathy for the detainees than for the officers - I was accused of that.

So I actually had a formal encounter - I think it was with the detention manager and another witness. There are several detention managers, this doesn't identify that person. They, in fairness, listened to what I said, but I really had to - I felt under pressure to say, "No, I never criticised anything here", and to kind of understate my concerns because I felt at risk of being asked to leave and I didn't want to leave I wanted to try and do something for the people.

COMMISSIONER OZDOWSKI: Ms Bender, we have run out of time. If there are any final remarks you would like to make please do it now?

MS BENDER: Yes. Well, it has been said that the parents should have taken more care of the children in this environment. I just want to stress that there was no way the parents could shield the children from the sights and sounds of self harming. Parents said to me a three year old was sitting in the corner trying to drink shampoo imitating that behaviour. The parents themselves were so distraught that they couldn't convey safety to the children. The only mitigating factor was I do believe the children felt quite attached to their parents, mostly.

Then the other levels of harm were very small children, who were some of them born in the detention centre, their cognitive development I believe would be severely impaired. They couldn't crawl anywhere very safe, they had no access to materials, they had no vision of people going about daily normal business, problem solving and dealing with difficulties in a constructive way. The pervasive problem solving mode was self harm, distress. They would hear wailing, they would hear breaking glass. Children approached me and pleaded with me to do something. I was very difficult.

COMMISSIONER OZDOWSKI: Thank you very much, Ms Bender, for making submissions to this enquiry.

MS BENDER: Thank you for the opportunity.

COMMISSIONER OZDOWSKI: And now I would like to invite Mr John Tobin to come forward.

MS BENDER: Can I remain?

COMMISSIONER OZDOWSKI: Yes please. It is an open hearing.

THE WITNESS WITHDREW [11.46am]

COMMISSIONER OZDOWSKI: Good morning, Mr Tobin. Could I ask you to make an oath or affirmation.

DR TOBIN: An oath, sir.

JOHN TOBIN, sworn [11.47am]

COMMISSIONER OZDOWSKI: Thank you. Could I ask now - could I ask you to state your name, address and capacity in which you are appearing here today, for the record.

MR TOBIN: My name is John Tobin, I am a senior fellow the Faculty of Law at the University of Melbourne, Parkville, Victoria. My capacity here is my expertise in relation to the International Laws that govern the treatment of children detained in Australia's detention centres.

COMMISSIONER OZDOWSKI: Could I ask you to make an opening statement.

MR TOBIN: Certainly. I would first like to draw attention to an issue perhaps that I haven't addressed in my submission but it needs to be addressed by the Inquiry and that is the treatment of children, not just in Australia's detention centres, but also as part of a Pacific solution. One of the issues that has been brought to my attention in the paper this morning is that while the numbers in detention in Australia is dwindling, the numbers in Nauru and Manus Island have increased substantially.

It would be fraught to think that this absolves Australia of its responsibility in relation to those children and I draw attention to the articles by the International Law Commission on the responsibility of States in relation to wrongful acts under International Law. In particular articles 16 and 17, which basically to summarise say that if a state provides aid or assistance to another State in the commission of an internationally wrongful act that state will be also liable for those actions, ie that Australia assists Nauru, Papua New Guinea, or any other nation for that matter in detaining children in a manner which is contrary to international law then Australia also is liable for those actions.

Article 17 also adds that if the direction and control exercised by a State over another State also amounts to a wrongful act then also that State will be liable as well. So, I draw attention to the Commission to actually both those articles. I understand that the scope of this Inquiry is confined to detention in Australia and the detention of children in Australia's detention centres but I think it is important to note that Australia may still be responsible for the detention of children outside its territory.

COMMISSIONER OZDOWSKI: Mr Tobin, do you have a view about our jurisdiction - the Commission's jurisdictions regarding Nauru and Manus?

MR TOBIN: I do. I think that you have jurisdiction to evaluate Australia's compliance with obligations under international law. That flows through obviously the Convention on the Rights of the Child, but to the broader considerations which would extend to, in my view, an examination at least as to whether in fact there has been a violation of our obligations under international law by arranging the Pacific solution.

It is an issue that hasn't come to large in the press or in fact in many of the submissions but I think it requires some attention as well. Having said that, the scope of the Inquiry is so large in any event that perhaps the findings that are found in relation to Australia and its detention centres may well apply also equally to those other centres in other parts of the world.

COMMISSIONER OZDOWSKI: But, you looked carefully at the Human Rights Commission Act and its jurisdiction and you are of the view that we have got powers to inquire over them?

MR TOBIN: I haven't looked carefully at the actual jurisdiction of the Commission as this issue came to me this morning when I was discussing the matter with a colleague and I felt that it was something that should be drawn to the Commission's attention and I am happy to provide further submissions in relation to that matter. I think it is just something that needs to be raised as well because of the tendency for the government to be shifting responsibility from Australia onto other States and in doing so create the impression that in fact we are not violating obligations here.

COMMISSIONER OZDOWSKI: I would welcome your further submission on that point.

MR TOBIN: Certainly, I will address that as soon as possible. Having said that, I would also, I suppose like from my evidence this morning to focus on the issue of whether in fact the treatment of the young people in detention is, in fact, a violation of the prohibition against torture and other forms of inhuman and degrading treatment.

I realise there are many other aspects on which I could comment but I think it merits special attention given the status of that right. I am happy to provide an address in detail as to whether I think that is in fact the case, that is, that is a violation or that is not a violation but I am also happy to take directions and questions from the Commission itself.

COMMISSIONER OZDOWSKI: One of the issues which we are grasping is the issue of arbitrariness of detention under CCPR. How would you define arbitrariness?

MR TOBIN: Arbitrary is a term that has been considered by both the Human Rights Committee and also the European Court of Human Rights. Essentially, arbitrary is more than against the law. It requires considerations as to the justness, appropriateness, and reasonableness of a response. In a case in which Australia was actually taken before the Human Rights Committee, applicant A v Australia, the issue of reasonableness was considered there as being an element of arbitrary.

So you will note, obviously, under the prohibition against arbitrary and unlawful detention there are two elements; unlawful which pertains to lawfulness not just under domestic law I should stress, but also under international law. So, if Australia is to say its detention is lawful it is not sufficient to say it is lawful under domestic law but also must be lawful under international law.

I think that, in itself, raises an issue because I think if we go to Article 37 of the Convention on the Rights of the Child, detention must be a measure of last resort and for the shortest appropriate period of time. I would question whether the government has satisfied that obligation there. However, moving into the next question of being arbitrary. As I have said, that requires an assessment as to whether in fact it is just and reasonable in the circumstances.

COMMISSIONER OZDOWSKI: Would you put any time limits on arbitrary?

MR TOBIN: I think that that would be a factor you would consider as part of the process of evaluating whether in fact it has been complied with. Certainly in the case of applicant A that was a relevant consideration. The Committee held there that in fact detention per se is not a violation of international law and I think that is a correct view.

When it becomes an issue is where the detention is not subject to review - to determine whether in fact it is necessary in all the circumstances of the case. So if we take for example of detention of refugee children, I think there is a prima facie issue as to whether detention under any circumstances is in fact warranted and certainly the view of both the Committee on the Rights of the Child and the United Nations Commissioner for Refugees is that detention should never take place.

Having said that there are circumstances where detention is allowed and that is in the first instance to obviously verify identity and to allow for the details of an applicant to be taken. Those procedures are set out in the UNHCR Guidelines on the detention of refugees. Moving beyond that I think therefore that the issue then becomes how could a State justify that in fact any detention of a child is in fact necessary.

It would have to be able to argue that detention is necessary to protect the national interests of a state. Now, obviously in this situation here the State would be arguing that it is essential that we detain refugee children because if we don't there will be an influx of unauthorised refugees and that will then be a violation of Australia's rights to control the entry and exit of aliens into its borders.

COMMISSIONER OZDOWSKI: In your professional considered opinion is Australia breaching any of the articles of the Convention of the Rights of the Child?

MR TOBIN: I don't think is the question is, "Is it breaching any articles", I think it is, "Which, and how". I think there is no doubt that we are violating numerous articles under the Convention on the Rights of the Child, let alone the other instruments to which we are a party. For example the Covenants covering civil and political rights, the Covenant concerning economic, social and cultural rights and I could go on.

Specifically, the concern I have is the issue of detention in itself. There is presumption, as I said, against unlawful and arbitrary detention and in the circumstances Australia's detention in my professional view is neither lawful nor is it non-arbitrary. In other words it is not reasonable or in proportion in the circumstances.

I am not saying anything new there. As I said, Applicant A v Australia, at the Human Rights Committee has already held that situation to be a violation of Australia's obligations, with respect to adults. I think the onus is even greater with respect to children and I don't think we satisfy that onus.

I think the next question then becomes if detention is unlawful what other violations are taking place. I could go through the list several violations with respect to health, education but I think it is important to start with the prohibition against torture and other forms of cruel and inhuman degrading treatment.

The reason being is that that it is considered to be a norm of jus sogens ie it is a super norm, a norm from which no derogation is permitted. The significance of that is that there is no circumstances where a State can say the situation is so grave for national security that we must be able to take steps to in fact take acts which amount to a violation of that prohibition. The Committee for the Rights of the Child has said that, the Human Rights Committee has said that. With respect to the special rapporteur on torture, he has also identified that there are no circumstances where we can derogate. There are no circumstances which justify any behaviour or practice which amounts to a violation of that prohibition.

The next question then becomes, "Well, has Australia in fact violated that prohibition?", which requires an assessment of what the actual standards require. Now there are two approaches in respect to this issue. The first is to adopt the approach taken by the Human Rights Committee and they have said that there is no need to draw such distinctions between the nature of treatment provided but that it depends on the nature and severity of the conduct and treatment and the consequences for the individual.

That is not particularly satisfactory. Although I should point out that the Committee has said with respect to issues of solitary confinement, which has been raised by my previous colleague, that in itself may amount to a violation of the prohibition against torture and other forms of ill treatment. Having said that, the European Court of Human Rights I think is more helpful in providing us with some guidance as to whether in fact the harm of which we have just heard does in fact amount to a violation of the prohibition.

The issue of torture is one which obviously raises the ire of anyone in any lawful and civilised society. It is a very, very high threshold. The European Court of Human Rights has held that it requires deliberate, and severe, suffering being inflicted upon an individual. Not necessarily by the State, by a member of the society in which the State has jurisdiction.

The question therefore becomes, "Does the evidence we have just heard amount to deliberate and serious harm such as to amount to torture?" I had originally said in my submission that I didn't think that that might have been the case. I am tempted to now revise that view in the light of what I have heard in the last half an hour. By creating a culture of despair, oppression, as Ms Bender refers to, a pernicious and abusiveness environment, there are arguments at the very least to suggest that the Commission should consider whether in fact the level of harm does amount to a form of torture.

Having said that, I should also add that even though a special stigma attaches to this norm, the Human Rights Committee has said, and as has the special rapporteur, that the level of harm required is less for children than is for adults. So, in other words, that which otherwise be considered not torture for an adult may become torture for a child because of their vulnerability and their age.

In any event, if it is decided, and I think it is arguable that it doesn't amount to torture there are still other limbs from which I think Australia is in violation. The first being the idea that the treatment amounts to inhuman and degrading treatment. Now, in relation to that test and I can quote from the European Court of Human Rights, it has been said that:

Treatment which arouses feelings of fear, anguish or inferiority capable of humiliating or breaking the resistance of a person will amount to degrading treatment.

That is Ireland v United Kingdom (1978) Vol 2, European Human Rights Reports, 25: so treatment which arouses feelings of fear, anguish, or inferiority. In my professional view - the whole arrangement by which refugees, both adults and children, are detained is to arouse feelings of fear, that is to deter them from coming. Anguish, that is not to be able to tell them when their procedures will be determined and what will be happening. Inferiority in the way they are treated, obviously what we have heard in the last half an hour, there is no doubt that these people - both adults and children, are humiliated and more importantly, breaking the resistance of this group of people.

Clearly, the procedures in place are such that we have incidents of self harm, violence being witnessed by young people, all which suggest that on the facts there is strong evidence to suggest that in fact it certainly amounts to degrading treatment. Also, it has been pointed out by the special rapporteur on the torture that in terms of addressing this issue a lack of appropriate attention to the medical, emotional, educational and rehabilitative needs of detained children can, in itself, amount to treatment which is cruel and inhuman.

And I think once again if we were to examine the medical, emotional, educational and rehabilitation needs of children it would seem they have not been met. As I have said, the evidence on which I base it is the submission of Lyn Bender and my reading of some of the submissions yesterday afternoon. The Commission will have to form its own view on that issue, but there is no doubt there are issues there which suggest that the conditions of detention are such as to amount to a form of inhuman or degrading treatment.

I also say the special rapporteur has made an important point which is relevant to us here also, in that indeterminate detention, especially in institutions that severely restricts their freedom of movement, (that is detention of refugees in Australia) can, in itself, amount to cruel or inhuman treatment. In other words it doesn't matter how they are treated. The government can provide all the facilities in the world and it still can amount to a violation of this incredibly important prohibition.

I think this is important, given in recent times when we have seen the government taking steps to spruce up, for want of a better term, places like Woomera. Detention in itself can amount to a violation of prohibition in cases where it causes mental anxiety to those who are exposed to that treatment.

Sorry to summarise in a very brief period of time, a number of issues.

COMMISSIONER OZDOWSKI: Mr Tobin, you did very well. But before asking my Commissioners and counsels assisting, to ask you questions I would like to raise one more issue with you which deals more with domestic law. Yesterday it was mentioned that there is a possibility that there could be an area of civil liability involved when people in detention get harmed they may occur liability to the government. What would be your view about that?

MR TOBIN: My view is that I wouldn't proclaim to be an expert on civil liability of the government but my personal, professional, view is that having spoken with some colleagues, there is scope to take an action against the government. Certainly the Minister for Immigration - I believe, or certainly has responsibility with respect to those young people, especially those that are unaccompanied in detention.

COMMISSIONER OZDOWSKI: I see.

MR TOBIN: Absolutely. And in normal circumstances, regarding failure to uphold to their responsibilities guardians are brought before the Courts and dealt with appropriately. Obviously in this instance here the guardian is a Minister of the Government and holds power, therefore that issue is much more difficult to pursue, but there is no doubt in my mind that in the future there will be claims being made not just by unaccompanied children, but also by members both adults and children who have been detained in these centres alleging that they haven't been treated in a way which is required under Australia's domestic law.

I am surprised that the Minister hasn't taken steps to rectify that in terms of providing better conditions of detention but there is no doubt that there will be lawyers out there looking to take claims if possible to in fact hold the government responsible for its treatment. And I think there is a good basis on which to take those claims.

COMMISSIONER OZDOWSKI: Yes, thank you.

ASST COMMISSIONER SULLIVAN: You asked my question.

COMMISSIONER OZDOWSKI: Sorry.

MR HUNYOR: I do have a question for you, Mr Tobin. Have you had an opportunity to consider the extent to which detention under the current circumstances may be unlawful as a matter of Australian law as being unconstitutional by virtue of being punitive, particularly the decision of the High Court in ..... ?

MR TOBIN: I think that there is scope once again for someone to take a claim before Australia's domestic courts to try and make that claim. Unfortunately we don't have a Bill of Rights in Australia and I think this whole Inquiry demonstrates where or how volatile or vulnerable all Australians are to the acts of government if they chose to violate rights. In response to your question there is scope to take that claim. It would require a fairly liberal interpretation of the Constitution and obviously an overturning or an expansion of that original decision to which you referred.

I would hope that that does take place in the near future and at the end of the day it remains to see whether the Court would, in fact, adopt that approach. In light of what happened with the Tampa case I cannot see our Courts taking steps to expand protection to people who are placed in these situations. I would hope that might occur, but I don't think at the moment we have a bench which would actually take those steps.

On that basis I should just perhaps draw a further point which I would like to make is that in relation to two claims that the government will no doubt make; (a) that this whole process is effective, and there is great argument to be made at the moment that detention of refugees and also shipping off as part of the Pacific solution, is in fact an effective response to unauthorised arrivals. Effectiveness is no defence under international law if there is a violation of the prohibition against torture and other forms of inhuman and degrading treatment. It does not matter if it works.

The second point I think it is important to stress is the government will also argue that this process both detention of refugees and also the solution, Pacific solution is something which is welcomed by the majority of Australians. Once again, it does not matter, and it is not relevant, that a process is popular. The European Court of Human Rights has said that the lack of public outrage or the fact that an active - activity or action is tolerated by society does not, of itself, provide a defence for that action.

And with that in mind it is important to draw I suppose the Commission's attention to a comment made by Chief Justice Chaskalson of the South African Constitutional Court in a case called State v Makwanyane. That case involved the death penalty and the Chief Justice clearly addressed the issue of whether, in fact, the Court should be deciding issues on the basis of public opinion. It said, "No". And it said so on the basis "That it is only if there is a willingness to protect the worst and weakest amongst us that all of us can be secure of our right to be protected."

And I think that is an important point to make as well. Because at the moment we are getting much media to the effect that (a) it is effective and people like the system. Both those considerations are irrelevant when it comes to the Commission's assessment as to whether or not there has been a violation of international law.

MS LESNIE: Could I add one question to that. We have heard in some of the evidence that although the conditions in the detention centres may not be ideal, it is not because of maliciousness by the centre management, it is just that there is a lack of resources. Can you comment on how much - how relevant intention to harm is in all of this?

MR TOBIN: It is a very good point to raise and I am glad you have done so because on that specific issue the European Court of Human Rights has said that intention is irrelevant in determining whether there has been a violation of prohibition with respect to inhuman and degrading treatment. That is the first comment. So intention has no effect. The fact that government does not intend to harm these people has no impact on assessing whether in your view there has been a violation of this prohibition.

The second point has also been addressed by the Human Rights Committee and it has said that the conditions of detention are so important that issues of resources do not become relevant. In other words, if we are going to deprive people of their liberty, a right which we all regard as being sacrosanct we must provide them with appropriate conditions in which we do so. And its general comment on detention it has said that resources are not relevant for that consideration.

[12.05pm]

COMMISSIONER OZDOWSKI: Well, Dr Tobin, thank you very much. If you wish, you can make a concluding statement.

MR TOBIN: I think I have covered all the issues in rapid time in an attempt to try and speed up your program. As I said, I am more than happy to provide further submissions, in particular in that aspect which I will address with my colleagues. I have already spoken about that potential and I hope that my evidence is of some use.

COMMISSIONER OZDOWSKI: So thank you very much.

THE WITNESS WITHDREW [12.06pm]

COMMISSIONER OZDOWSKI: Now I would like to welcome Dr Jill Sewell and ask you to approach the table.

JILL SEWELL, affirmed [12.07pm]

COMMISSIONER OZDOWSKI: Now I would like you to give your name, address and the capacity in which you appear today for the record.

DR SEWELL: My name is Dr Jill Sewell. [address removed] I am here in my capacity representing the Alliance of Health Professional concerned about the health of asylum seekers and their children in detention. I am with that group in - previously in the capacity of President of the Paediatrics and Child Health Division of the Royal Australasian College of Physicians. I relinquished that position about three weeks ago after a four year term, and I am now Deputy President of the College. I am also Deputy Director of the Centre for Community Child Health at the Royal Children's Hospital in Victoria and have clinical expertise in the area of developmental and behavioural pediatrics.

COMMISSIONER OZDOWSKI: Dr Sewell, thank you very much. Could I say thank you very much for the submission provided by Alliance of Professionals concerned about the Health of Asylum Seekers and their children. It was a very useful submission and certainly is has shown that a whole range of people worked on it and that you really put in plenty of overtime. Now I would like to invite you to make an opening statement.

DR SEWELL: I would like to particularly emphasise the developmental needs of children, particularly in what we know of the increasing research evidence about the importance of early brain development, and there is a whole range of issues related to that that I can speak to. The other areas of concern have been addressed by the previous speaker in relationship to a violation or breaches of the United Nations Convention of the rights of a child, and I also have concerns about the standards of health care in the sense of how those standards are set and with what advice, and then how they are actually implemented and by whom. Those, I think, are the really important things that I would like to speak to.

COMMISSIONER OZDOWSKI: Sure, please.

DR SEWELL: There is increasing evidence that brain development in young children is related not only to the genetics of what they were born with, but to environmental aspects of their experience and that brain development is not just to do with mood or happiness or sadness in the future, but also the actual structure and function of the brain. And so although I think, as professionals interested in children and as ordinary human beings interested in children, we have always known what our grandmothers told us that if children are loved and secure then they do well with their development, there is now very good scientific evidence that that is the case and that children who undergo extremely stressful early childhoods are at risk of abnormal brain development.

That early experience is related to attachment and the general environment and culture

COMMISSIONER OZDOWSKI: And this condition, it is likely to last whole life or

DR SEWELL: Well it is difficult to be absolutely predictive about that because of the resilience of children's development also, so it depends - there is a lot of evidence to say that it depends on the multiplicity of risk factors and then of course to the longevity of risk factors as well, so we talk about the balance between risk and resilience and there are both sort of internal and external factors with both of those. But there is very good epidemiological evidence over a number of years that if you have more than about four or five or six of the substantive risk factors that we could speak about, that the long term risk is multiplied greater in a sort of logarithmic fashion.

Most average children can deal with one or two or three risk factors. Once you get beyond that it starts to make a really significant different to their development and it depends at what stage of development so the younger the children, the more at risk they are. The longer the time of stress and risk, the more at risk they are and I have particular concerns about young children and their long term educational outcome. There is quite a lot of discussion and standard setting about school education, if you like, and it is provided particularly for primary school children, not very well for adolescents and I think that is really significant, but I am also very interested in the provision of what I would call pre-school education which doesn't have to be absolutely formal but it is in the context of a proper developmental environment for children and being with people who understand about children's development.

That is a really critical stage for language development, for the development of what we call self-regulation, for the learning of control of children's normally aggressive impulses and for the containment of anxiety and the prevention of development of anxiety so I think that - it is easy to talk about attachment in early infancy and the importance of that, it is easy to talk about the importance of primary and secondary school education but I want to emphasise the important of those two to three to four year old developmental needs of children and how that sets children up for future personality development, future academic attainment, educational attainment, self-regulation and all the implications for that later on in adolescence and in early adulthood.

COMMISSIONER OZDOWSKI: So for example if you take a kid who is say four or five years old and who is spending say one year in detention facility, as it is say in Woomera, would it have a long term impact on that child's life?

DR SEWELL: I think it certainly has the potential to impact long term; a very grave potential for several reasons. One is that most children who will arrive in Woomera have always been - who have already, by definition, been through an extremely stressful period of time maybe for their entire life, it will vary from child to child but they must have been through an extremely stressful period of time. Then they are in an area - in a country which has the capacity to give them an extremely valuable pre-school experience and yet we place them in detention and in circumstances which are detailed in our submission and which you will have heard from other people which provide, I think, a highly at risk environment for over 20 to 25 per cent of their life. If you talk about a child in there between the ages of four and five, it is 20 per cent of their life.

If those children are then released into the community there is a range of risk factors to those children who do not necessarily have the capacity immediately to uptake all of the health, educational, welfare, recreational opportunities that are available to children in Australia normally so there is a potential future risk as well. So I think there are grave potential risks.

COMMISSIONER OZDOWSKI: The risk in what areas: education, health?

DR SEWELL: Yes. Well let me talk about developmental risks first of all.

COMMISSIONER OZDOWSKI: Okay.

DR SEWELL: I think that period of time, the four to five year old child, where language development is galloping ahead if it is going well and self-regulation is developing and by self-regulation I mean the capacity of children to learn to attend, to concentrate, to contain some of their aggressive impulses which I said before are normal in children but we gradually learn to contain them over time. There is very good research evidence that if children - that children at age of four who are demonstrating quite significant problems of aggression and poor self-regulation are very difficult to manage and treat and are at very high risk of educational failure and continued behavioural disturbance with potential during adolescence for delinquency, I will just use that as a general term, I think you probably know what I mean about what I would call conduct disorders and risk taking behaviour in adolescence.

It is the most longstanding behavioural disturbance that we see if children are already in that circumstance, and I think many of these children who are witnessing a great deal of stress and violence within detention centres and whose parents may have minimal capacity to parent in a secure sort of way because of their own experiences that they have had leading up to coming to Australia and to their own experiences in detention. I am not trying to undermine the parent's capacities there, but they are under extreme stress themselves and less capable of their most capable parenting because of what they are experiencing, then those children are at risk.

That is one group of children that risk developing aggression and poor self-containment and the other group of children who are at risk are developing insecurity and anxiety and real - and that sort of stress in relationship to the experiences that they have both prior to and during detention.

COMMISSIONER OZDOWSKI: So basically what you are saying is that we are hurting these kids for life?

DR SEWELL: Yes, I believe that.

COMMISSIONER OZDOWSKI: That is highly likely, yes, that considering a substantial proportion of them will be allowed to stay in Australia, that they

DR SEWELL: Yes. I mean I think that is the ironic thing in a way that at least a significant percentage of children will become citizens of Australia and that instead of at the first opportunity trying to rehabilitate, if you like, these children who have been through dreadful experiences up until now, we are actually loading them with more risk which we will have to deal with in our community.

COMMISSIONER OZDOWSKI: And pay for it.

DR SEWELL: Okay. Yes. You can argue, quite apart from health or human rights, we are going to have to pay from a resource point of view. We already have enough difficulties with up to 20 per cent of primary school age children who are failing our education system and having developmental and behavioural problems in our normal community. Somewhere between 15 and 20 per cent of primary school children are at risk of educational or behavioural difficulty. And now we are sort of adding to that load with a group that we have a particular duty of care for because we placed them in detention, and now we are responsible for them; we as a - Government Department aside, but we as a community are responsible for them because we have placed them in detention. We cannot put that responsibility anywhere else but upon the community as a whole.

COMMISSIONER OZDOWSKI: Could you say something about family, because there are a number of children who came with families, either both parents or one parent in detention centres. How, in your opinion, would family function in the detention situation?

DR SEWELL: I have not visited any detention centres myself, but I have both spoken to people and read a number of submissions of people who have seen what is - the physical facilities that are available. And it seems to me they are not what I would call family-friendly facilities. One of the things - sometimes it is the little things, I think, that shock you the most, and one of the things that I am really distressed about is what I have heard, that families with two-year old, 18-month, two-year-old children have meal times at three times a day, and that if a two-year-old wants a biscuit or an apple at a different time of the day then the families cannot necessarily access snack-type food, and the child must wait till whatever time mess time is. I think that is just a small example that really demonstrates to me that this is not a family-friendly facility. I think that, you know, families must have access to kitchen facilities to adequately care for, particularly young toddlers.

As I understand it, and I guess it would vary from facility to facility, but the actual physical space is not adequate, and particularly, there is plenty of evidence, I think, that the play space is really inappropriate for children and doesn't allow them the opportunities for vigorous outdoor-type activity, and indoor activity, too, which is essential for normal development.

ASST COMMISSIONER SULLIVAN: Can I just ask a question there. Your earlier comments focussed on brain development and cognitive outcome; what about the physical outcomes of lack of stimulation?

DR SEWELL: Well, again, that can have potentially long-term effects. Children need to be able to move around. They need to be able to explore their environment. They need to - I heard somebody speaking before about problem-solving, learning about problem-solving; they do that through their physical environment. I mean, what is play to children is learning and work to you and I. And to do that they need an appropriate environment to explore.

In terms of what I would call gross motor skills, as children up and running, using their legs, they need space, they need equipment, they need to be able to do something else than have a sterile space. They need large spaces and they need to be able to do different things than just walking around or running around; climbing, jumping, bicycling. The usual sorts of things that we would think would be normal in our environment. Not all children need all of those activities, but they need access to space for those activities.

And then there are the fine motor skills, use of hands, and you need toys. You don't need expensive toys. You just need articles, domestic articles, domestic toys of a simple nature in order for children to fully explore their environment.

ASST COMMISSIONER SULLIVAN: And visual and speech development?

DR SEWELL: Visual development is dependent on both, if you like, near activities and far activities. And it is really important to be related to doing things and not just looking at things. It is also related to, in very early life children learn to fix on faces as they develop their attachment to their care-givers, and so that is an important part of early visual development.

Language development starts from the beginning. It comes way before children actually say words. These children will be in an environment where they are hearing multiple languages, and that is fine in a resilient-type environment. To have exposure to multiple languages is actually, I think, a good developmental thing. But in an environment where children are exposed to multiple risks, then hearing a number of languages may well be more difficult for them to develop one language in particular.

I don't want to make too much of a statement about that. I think it is far more important that children learn language in an affectionate, trusting, caring environment. That is the really significant thing for them.

COMMISSIONER OZDOWSKI: Dr Sewell, one issue your submission mentioned is that there is a clear link between detention and mental ill health. Could you elaborate on that issue?

DR SEWELL: Well, part of what I have said is already related to that, that children who develop severe aggressive disorders or severe anxiety disorders will be defined as - will be defined as having mental ill health. But I think the particular concern is that children exposed to a great deal of stress, particularly if there is a relative lack of attachment because their parents are involved with that stress, are at risk for what the psychiatrists call post traumatic stress disorder, which is a well-recognised entity in adults, and has more recently been recognised as an entity in children. And that can have very quite severe long-term implications.

We know that children who have been exposed to, you know, one-off major stressors continue to have anxiety and flash-backs and those sorts of things many years later. I think we are talking about something a little bit different here with continual stress, with periods of more extreme stress in between or day-after-day or once a week or twice a week, whatever it is, and at a time - you know, these are quite young children who are trying - that will incorporated, as I said before, into their brain development, and I think it gives them at great risk for long-term mental health problems.

The adolescents who are involved in the stress sometimes become personally involved in the sort of stressful issues like being involved in physical violence or self-harm, and that is clearly of great concern, specially to those adolescent children who are not having access to education and other appropriate developmental outcomes or life courses which they should be doing at their stage of life.

COMMISSIONER OZDOWSKI: Some times going to Australian prisons I see mothers with children, very small children, living jointly in prisons. So basically your assessment would relate also to their circumstances.

DR SEWELL: I think that is a very complex situation. I don't think children should be in prisons at all, but I do think young babies should be with their parents, and usually in the sort of situation you are talking about it is with their mothers.

COMMISSIONER OZDOWSKI: The Minister of Immigration says quite often these kids need to be in detention because it is in the best interests of children is to stay with his or her parents.

DR SEWELL: Well, this is where, if you look at the Convention on the Rights of the Child, and the Minister will argue, and I believe has argued, that because they are complying with the Convention that says children should stay with their families and everything is all right, but I don't think we are complying with a number of the other conventions, and I believe children should be with their families, but I don't think they should be in detention except under unavoidable circumstances.

Now, women who are in prison for having intentionally broken the law I think are in a different situation than asylum-seekers to Australia. And even those children who are with their parents who have intentionally broken the law in Australia, the conditions of imprisonment in terms of what is available to the children is highly significant, and that is where, I think, we lack those appropriate - if the children must be in detention then it seems to me that they are not in an appropriate physical environment and cultural environmental to maximise their developmental life chances. And if we put people into prison we should take responsibility for that, particularly children who have done no harm themselves.

COMMISSIONER OZDOWSKI: Thank you.

ASST COMMISSIONER THOMAS: A question; could you please enlighten us about the reliability of using wrist x-rays to determine the age of a child, how accurate you think that is.

DR SEWELL: Wrist x-rays are used quite regularly as a way of assessing chronological age up until the age when the growing ends of the bones - which is what - it is really looking at the growing ends of the long bones in the arm and the various - there are a lot of small bones in the wrist. So you look at the growth centres.

Up until skeletal maturity occurs it is quite an accurate measure of chronological age. But I think that it is - the way we use it in clinical care is to compare that with other measures of age. What we know about birthdates. And it is usually done in a context of either a growth delay or a growth abnormality, of whether there is too much growth or too little growth. And so it is a comparison, if you like, with other measurements.

If it is used in an isolated way to say: Is the birthdate of this child accurate, then it is helpful, but not absolute. There has been some argument that, in other jurisdictions, that dental age has been used as a way of determining when a child becomes an adult, if you like, and I think that is even less - that is certainly far less accurate than bone age which is defined by an x-ray of the wrist. So bone age as defined by an x-ray of the wrist is a reasonably accurate way of measuring age, although certainly not to the day.

ASST COMMISSIONER THOMAS: But can you tell the difference between a child who is, say, 16, and another of 18.

DR SEWELL: That is when it becomes extremely difficult, because once skeletal maturity has occurred then it no longer separates those ages out. And that will be different in different children. You would have to look at the whole range of adolescent development, physical adolescent development, and know a lot about their background, when their puberty started, how long it had been going, what was their health during their puberty, because if you are malnourished your adolescence, your final puberty is likely to be delayed. So I think it is much - it is much less accurate at that sort of age; quite accurate in younger children.

ASST COMMISSIONER SULLIVAN: I just have a question about the relationship between doctors and the management of detention centres, and I am not sure that you can comment on this. But there would be professional and ethical obligations that doctors have in those circumstances. And if I can use one example, a doctor may deem it appropriate that a particular test be undertaken. This test may well be quite expensive, and theoretically I guess the management could say, no, that test is too expensive. I am putting perhaps a hypothetical, perhaps another case. Would you like to comment on that broad area of the link between professional ethics and management decisions?

DR SEWELL: I think that comes at several levels. I said it in my opening statement, that I have some concerns about how standards of health care have been set in the first place. As I understand it, they have been set by the Department of Immigration without particular - it is not a Department of Health responsibility, it is a Department of Immigration responsibility. Then it has to be implemented by Australian Correctional Management.

As the previous president of the Paediatrics and Child Health Division, I have written to the Minister on several occasions and he has given me all the - we have been given all of the standards of care information, but it still doesn't satisfy me that the actual implementation is right, and I am still not satisfied about the way the standards have been set, because I really don't believe there has been enough input, particularly for children by those with expertise in child health. So that is one level.

Then at the clinical level, with the example that you have given, I think that those sorts of decisions are clinical decisions, and I think if there is any query about the clinical decision it should be decided in clinical discussion with other clinicians and not as a management decision that something is too expensive. If it is in the best interests of the children to have that health care, that health condition adequately sorted out, and I would sooner get a second opinion from other experienced and expert health professionals about whether that test is required or not, rather than having a management decision based, say, purely on cost.

I think the other issue to do with the actual health care as I understand it, is that the way the health clinics are run is really unclear about at what level of care is being set. The doctors have said that sometimes people who they think should be transferred to hospital for particular care have not been transferred to hospital. So there is a number of issues to do with that.

And then the other issue is to do with the business about signing confidentiality agreements and I think that, particularly where children are involved, where in the context of certainly my State of Victoria, we have an absolute requirement to report if we are concerned about child abuse, I would find it an extraordinarily difficult conflict of interest if I had to sign a confidentiality agreement on the one hand, with one arm of Government, and have another arm of Government that says I could be prosecuted if I don't report what I think may be child abuse. So I think there is a lot of potential for conflict of interest.

MS LESNIE: Has that situation ever arisen to your knowledge in detention centres, and if so, do you know how it was resolved?

DR SEWELL: Well, as I understand it, health professionals have wanted to report abuse. Those who have signed confidentiality agreements have felt impaired in their ability to do so. Sometimes they have discussed that with management and management has said either yes or no, and sometimes they have ignored their confidentiality agreements and gone ahead and reported. Some people who for whatever reason have not signed confidentiality - have not got around to signing their confidentiality agreements will - have reported. So I think there has been a number of different ways of the outcome of that.

But as I understand it from receiving the sort of work that went into our submission, that doctors have been concerned about not just reports about child abuse, but concerns about very specific health issues, where they have not been able to get the care that they think should be provided.

MS LESNIE: Who would they normally address that concern to?

DR SEWELL: You mean in this particular setting?

MS LESNIE: Well, I mean, there is, as you say there are some mandatory reporting requirements, where there is abuse or there is some .....

DR SEWELL: Yes.

MS LESNIE: Then there is a clear sort of path to which to take your complaint. But you said that some doctors are generally concerned about the health care in the detention facilities and would like to make a comment to, but feel constrained from making those comments. Who would they make those comments to if they waived that constraint?

DR SEWELL: Well, they might make it to a number of organisations or settings. If they, say, work in a hospital and they have gone to one of the detention centres for a period of time, they might want to make those comments back to their superiors in their hospital setting. That would be one. General practitioners might like - I mean, we have divisions of general practice that is sort of an over-arching organisation that look after groups of general practitioners in a regional area, a geographical are if you like.

They might want to report to their divisions. They might like to report to their colleges which are responsible for their initial training and their continuing professional development. There is a range of ways. They might like to report to other professional associations like special societies to do with particular - like the Cardiac Society or the Gastroenterological Society. There is a range of ways of reporting those, that you would like to be able to discuss those sorts of concerns with. But in the initial sense there is a hierarchy, too, of, if you like, a referral hierarchy, so if a general practitioner had a concern which he or she didn't have the skills to address himself, then they would normally refer to someone, like me as a consultant paediatrician, or somebody else in that referral hierarchy as well.

MS LESNIE: And they feel that they can't do that because of these confidentiality provisions.

DR SEWELL: That is right.

MS LESNIE: Are there any ethical obligations in, sort of, the Hippocratic oath ..... that would actually, that does actually requires doctors to sort of take cases further, like you have suggested?

DR SEWELL: Yes, I mean, our first duty of care is to our patient and we don't care whether our patients are in prison because they have committed a crime, are in detention when they haven't committed a crime, we don't care who or what they are. Our first duty of care is to our patients, and really that should override all other considerations.

Could I just say something else in relationship to this, too? There has been a bit of media attention about these confidentiality agreements and at one stage the Department of Immigration, I am not sure who within it, but sort of made the statement that if we didn't get doctors to sign confidentiality agreements we would need them to sign an agreement they wouldn't divulge the names of people involved. Saying that is basically an insult to the medical profession, because our other duty of care is confidentiality. I don't have to sign a confidentiality agreement about not releasing a patient's - disclosing a patient's identity. I don't do that unless I have got specific permission from a patient to do so under specific circumstances. So it would be an insult for me to be asked to sign that sort of confidentiality agreement. But I don't think I should be asked to sign a general confidentiality agreement because of that duty of care overall.

COMMISSIONER OZDOWSKI: Dr Sewell, thank you very much. Any concluding remarks? You have covered the field very well so

MR HUNYOR: Sorry, Dr Sewell, could I just ask one thing as a request more than a question.

DR SEWELL: Yes.

MR HUNYOR: I understand from your introduction that the Professional Alliance for the Health of Asylum Seekers and their Children, on whose behalf you are speaking today, effectively represents, I think you said, professionals working in the health field, organisations representing

DR SEWELL: Yes.

MR HUNYOR: including all the medical colleges of Australia.

DR SEWELL: Yes.

MR HUNYOR: Could you provide to the Commission at some time a list of the organisations effectively on behalf of whom this submission is made?

DR SEWELL: So particularly you want the list of the specialist colleges, part of committee of presidents of medical colleges.

MR HUNYOR: And any other organisations on whose behalf

DR SEWELL: Yes, that can certainly be done, yes.

COMMISSIONER OZDOWSKI: Thank you very much and again, thank you to the alliance for their submission. It was very helpful. Before we will break up, I would like to announce that the afternoon session will be chaired by Dr Robin Sullivan. So now we have a break until 2 o'clock. Thank you.

THE WITNESS WITHDREW [12.38pm]

SHORT ADJOURNMENT [12.38pm]

RESUMED [2.00pm]

ASST COMMISSIONER SULLIVAN: Welcome to the open session for this afternoon. I am Robin Sullivan, actually assisting the Commission but the Commissioner, Dr Sev Ozdowski, on my left, has to leave during this session so he has asked if I would chair it. He is leaving to catch a plane, not because of anything you may say, but we do have some other people helping us as well this afternoon and we have Dr Trang Thomas, a Professor of Psychology at Royal Melbourne Institute of Technology, who is assisting Dr Ozdowski in this particular Inquiry and also two counsel staff of the Commission who are also at the front table.

So can I welcome - and I hope I have got all of the correct names, Associate Professor Scott Phillips, Ms Beverley Snell, Mr Andrew Renzaho and Dr Cate Burns. We would like you to give your name, address and the capacity in which you appear here today for the record, if you wouldn't mind, and we will also ask you to make an oath or affirmation after you have given us that information so shall we start from left or right? Left? Okay.

ASSOC PROF PHILLIPS: Associate Professor Scott Phillips, RMIT University.

ASST COMMISSIONER SULLIVAN: Thank you. And you are here in what capacity today?

PROF PHILLIPS: As a concerned citizen.

ASST COMMISSIONER SULLIVAN: That is fine. We just need to - because people come in different capacities. Thank you.

MR RENZAHO: I am Andre Renzaho. I am a researcher at the Centre for Culture Ethnicity and Health

ASST COMMISSIONER SULLIVAN: And could you give us your address, Mr Renzaho?

MR RENZAHO: [address removed]

MS SNELL: I am Beverley Snell. I am from the Centre for International Health of the McFarlane Burnet Institute. I am here on behalf of that Institute and we are based in Fairfield in Melbourne.

ASST COMMISSIONER SULLIVAN: Could you give me the postal address in case we need to get in touch with you?

MS SNELL: [address removed]

ASST COMMISSIONER SULLIVAN: Thank you. You can tell I am not from Melbourne.

DR BURNS: My name is Cate Burns. I am a lecturer in public health and nutrition at Deakin University and I am here representing the School of Health Sciences.

ASST COMMISSIONER SULLIVAN: Good, thank you. And your address is?

DR SNELL: [address removed]

PROF PHILLIPS: I should also give you my address, I beg your pardon, as Head of Department, Justice and Youth Studies [address removed].

SCOTT PHILLIPS, sworn [2.02pm]

ANDRE RENZAHO, sworn [2.02pm]

BEVERLEY SNELL, affirmed [2.03pm]

CATE BURNS, sworn [2.03pm]

ASST COMMISSIONER SULLIVAN: Thank you for that. One of our functions this afternoon is to test the quality of the evidence provided in your submission but we thought that you might like to make an opening statement, each or collectively, to set the scene for how we go in our discussions this afternoon, so would you like to start?

PROF PHILLIPS: I would be very happy to. I suppose in starting we would make just four points. Firstly, that the - and what we have tried to say in our submission is that the evidence based picture of the detention centre experience which has emerged from the research base suggests that there is an urgent need for the government to reconsider the current policy away from a detention regime, which is producing such significant instances of trauma and developmental difficulty for young children and their families and towards a community based reception regime and community based processing regime, which we believe is much more family and child friendly.

A second point is that in any future reconfiguration of the policy in this area, we believe that it is important to keep children and their families, be they parents or guardians, together, and that this we regard as the soundest basis for the development of children and in fact it is a principle associated with ensuring the best interests of the child that is enshrined in the preamble to the United Nations convention on the rights of the child.

The third point that we would make is that whilst we don't agree with the policy of children being in detention at all, whilst children are in detention, we would emphasise that there are certain standards that must be complied with if we as a nation are to fulfil our obligation to act in ways which always are in the best interests of the child and we can go to discussion of the sorts of standards we have in mind there, especially with regard to cross-cultural competence later in this discussion.

I guess the fourth point we would make is that the whole issue of the uncertainty of the outcome and indeed the process which detainees find themselves in is, the evidence suggests, a major cause of the anxieties and traumas that children and their adult guardians, parents, are experiencing and so there is therefore, in our view, a need for looking at improving the processes so that there is complete transparency, including constant updates about the progress of each detainee's application for refugee status here in Australia.

ASST COMMISSIONER SULLIVAN: Just for the record, could you give me an idea of your personal experience of detention centres and or people detained therein?

PROF PHILLIPS: I have indicated - or we have indicated in the submission that our experience is based on, if you will, a triangulation approach where we have inspected research based records of first hand accounts of people who have had experience of detention centres and or worked in detention centres. We have had confirmation of people's experience of detention through interviews with people and some of us have visited, myself included, detention centres. I myself have visited mainly one detention centre here in Victoria on some occasions and I go with a group of people who visit that detention centre at least once a week and who have also, in their own community based work, visited other detention centres in Australia.

ASST COMMISSIONER SULLIVAN: Is that to the visitors' area only that you have visited Maribyrnong?

PROF PHILLIPS: Yes, yes. The only section that we are allowed to go to is the visitors' centre which, as you may know, is just a tiny enclosed concrete space where the only view of the outside world is the sky above. There is no view of trees or grass or whatever.

ASST COMMISSIONER SULLIVAN: Thank you for that. Perhaps we can move on and then come back to some of those suggested areas of inquiry.

MR RENZAHO: Yes, I think we have a common statement, all the points, that way kept going one, two, three, four. We thought maybe during discussion each individual would input some specific points later in the submission.

ASST COMMISSIONER SULLIVAN: So the four is a significant number. Would you like to start then going through those and we may interject as we see fit if we want further clarification.

PROF PHILLIPS: All right then. Look, what we have tried to do at the beginning of the submission is to characterise the detention experience and we have tried to do that in an evidence based way and to specify what we see and what the research shows to be the characteristic features of the detention experience. We are not claiming that there is one common feature that people experience but there are resemblances across the detention centres that we have accounts of or we have visited which indicate that these are the range of features, characteristic features, of the experience of children and their adult parents.

What comes through is that both children and adults are directly or in some cases children are indirectly exposed to intimidating, physical and inhuman environments and treatment which is having either a direct impact on the children, in the cases where children are contained in solitary confinement for extended periods, or else

COMMISSIONER OZDOWSKI: Do you know particular instances of it? Do you have evidence to support that statement?

PROF PHILLIPS: I have certainly read and have included in this account statements by people that are gleaned from the published record of people who have been - young children who have been subjected to physical mistreatment. For example, in the submission under the psychological impact of detention, I refer to the mother of a boy who was held in solitary confinement without access to toilet facilities and she recounts how her son himself described the experience and you remember I have indicated that there but I have also, in visiting the migration detention centre in Maribyrnong, spoken with people who have indicated to me the names of people who were kept in detention for extended - solitary confinement, rather, for extended periods. These were adults but the picture emerges of one in which people are being detained for excessive periods of time in solitary confinement, including children, in ways which manifest the results in terms of bed wetting, general sense of trauma, a sense of significant psychological injury as a result of that experience.

Now I mean what I think becomes clear is that people have been - sorry, children have also been subjected to psychological damage through seeing the ability of their parents to parent them in the way they expect as children significantly diminished and there are accounts again in the written record and which have been related to us by people with whom we have spoken in detention which suggests that this is a significant problem.

ASST COMMISSIONER SULLIVAN: Have you had conversations about parenting concerns during your visits to Maribyrnong?

PROF PHILLIPS: Yes, yes. I have spoken with people who - well for example in one case recently, a man who was giving all sorts of very clear signs of being extremely depressed, physical symptoms of extreme depression and anxiety, about his wife and two children who had been separated from him because of the fact that their health, physical and mental, deteriorated to such a point where they needed to be hospitalised and he himself was deeply concerned, although this was told to us confidentially, that he had had a report that one of his children had, whilst in hospital, because she was so depressed, had in fact attempted to hang herself. I mean, you know, this was reported to us by someone who was a distressed father and he himself feels utterly powerless about how to best help his wife or children and feels significantly constrained in terms of how he can provide for the welfare of his children.

ASST COMMISSIONER SULLIVAN: So he wasn't aware of any resources available to him inside the centre that could assist him?

PROF PHILLIPS: Not as it came to us, anyway, no. He indicates really that he feels quite constrained by the centre in which he finds himself. The issues of nu

Site navigation

Human Rights navigation

Transcript of Hearing - MELBOURNE

Friday 31 May 2002

Please note: This is an edited transcript