HREOC Website: National Inquiry into Children in Immigration Detention

Transcript of Hearing - SYDNEY

Wednesday 4 December 2002

Please note: This is an edited transcript.

Commissioners:

Dr S. OZDOWSKI, Commissioner

Dr T. THOMAS, Assistant Commissioner

Ms P. MOORE, Executive Officer

DR OZDOWSKI: I declare the Wednesday session of the public hearings for DIMIA and ACM being a part of the National Inquiry into Children in Immigration Detention open. Could I ask Counsel Assisting to finalise the issues which were not finished yesterday and attend to the issue of education.

MR WIGNEY: Yes, just to let everyone know where we're going today. We'll finish off dealing with the topic of unaccompanied minors and I just want to briefly recap one aspect of that and then move on to the other point that we wish to explore in relation to it and that relates largely to bridging visas. Then I'll move on to education and I think I should indicate that what is proposed at the moment is to call some - an ACM witness first and ask some questions in relation to education then and then we'll move on to the topic of disabilities later this afternoon. Now, just dealing, again, with the issue of unaccompanied minors, now I was directing questions to Ms Godwin yesterday afternoon who, understandably, is not here today. Should I direct the questions to Ms McPaul or ---

MS McPAUL: Well, in the first instance, if I can't answer it we'll work out ---

MR WIGNEY: We'll work it out, of course. If I could just perhaps recap, in a slightly summary form, what I rather bumbled through yesterday afternoon in relation to the role of the guardian, that is the Minister and his delegates, in both the screening process and the refugee status determination process. If I can perhaps just do it in this summary way and suggest what we understand to be the position as to what the guardian or his delegates do not do in that process in the ordinary course. Firstly, the guardian or his delegate - that is the Minister or his delegate, in the most cases, the DIMIA Manager or the Deputy Manager, do not, as we understand it, provide any advice or assistance during the period of separation detention or the screening process in relation to possible protection visa claims.

MR WALKER: Probably, the best way of describing it is as Ms Godwin mentioned yesterday. The interview when people first arrive is a basic information gathering process of name, place of origin, how they came to be in Australia, and any reasons why they are unable to return. It's fairly basic so it isn't actually a refugee claim process per se. That comes later, after the formal lodging of a protection visa application and, in that process, they are provided with - or invited to take up the offer of assistance from a - an advice provider in that context.

MR WIGNEY: I understand that but the point is that, during that screening process where, you would agree, one can either be screened in or screened out, that is raise, prima facie, a claim which may attract Australia's protection obligations, or screened out, that is not raise such a claim - during that screening process, there is no person in the position of the guardian, assisting or advising the accompanied minor. That's right, isn't it?

MR WALKER: No.

MR WIGNEY: Do you agree with that?

MR WALKER: That's correct.

MR WIGNEY: And I think also was the position agreed yesterday that, in the ordinary course, there's not even usually some neutral person or neutral adult to assist the minor in that process. There's no certainly no policy suggesting that that ought to be the position.

MS McPAUL: As I understand it, Ms Godwin indicated yesterday that, for some children - I think she used the words "of tender age" - there would be the possibility for another person to be present when that child was being interviewed by any of the officers at that early stage, as well as later on.

MR WIGNEY: Well, that may occur in some cases but there's no policy or directive or instruction to the effect that that ought occur in all cases.

MS McPAUL: I think that's correct.

DR OZDOWSKI: Counsel, could I ask just one question?

MR WIGNEY: Of course.

DR OZDOWSKI: What are the implications of being screened out? What is the difference between being screened in and being screened out?

MR WALKER: The difference is, basically, that the person is making no claims for protection in Australia. Therefore they can be returned.

DR OZDOWSKI: So if somebody in this first interview, if I understand correctly, doesn't make a claim for asylum in Australia the person can be returned straight away?

MR WALKER: If they don't say anything that appears to relate to difficulties of why they can't go back - for example, if you're asked, "Why have you come to Australia and are there any reasons why you cannot return from the country where you came," and the answer was a simple no, then, yes, they would be removed. If they give circumstances saying that they have difficulties with particular individuals or fear harm and so forth, then they would be screened in. There is no assessment actually made of the veracity of those claims, purely and simply that there is something there that needs to be examined further.

DR OZDOWSKI: If they were screened out and they are awaiting removal from Australia, would they be kept in separation detention for that time?

MS McPAUL: That's my understanding.

DR OZDOWSKI: Yes, they will? Now, okay. The people who use the right description of their situation and who are screened in, what happens to them next?

MR WALKER: The next step in the process is that they are offered advice from an IAAAS provider to prepare a protection visa application.

DR OZDOWSKI: So that advice is not available to people who were screened out?

MR WALKER: No, the offer isn't made to those people. However, there have been instances where those individuals have subsequently, through communications with staff in the Centre, elaborated on their earlier interviews and, in those circumstances, if they have raised something that expresses a concern, then they have been offered assistance of an IAAAS provider and subsequently made visa applications.

DR OZDOWSKI: So it appears to me quite a matter of flexibility in the process that, even if you are screened out and if you talk to a guard or talk to a DIMIA officer, you may be, again, given access to ---

MR WALKER: Generally, it's communication to the DIMIA Manager or DIMIA staff at the Centre but ---

DR OZDOWSKI: And you would be given a consultant's advice on how to make an application and so on?

MR WALKER: If there's something there that the person has subsequently said, that they have grave concerns for returning to their place of origin, the offer would be made ---

DR OZDOWSKI: From ---

MR WALKER: --- for assistance and it's then a matter between the individual and the assistance provider of how that application is framed.

DR OZDOWSKI: From my understanding, from talking to detainees, I was told that if somebody is screened out, there is no ability to access government support. However, the person may employ a private lawyer or voluntary lawyer.

MR WALKER: Any of the detainees can employ a private lawyer or obtain advice assistance elsewhere. They are not compelled to use the IAAAS provider. However, if they chose not to use an IAAAS provider, that's at their own expense or with their own arrangements.

DR OZDOWSKI: So you are saying that, even in some circumstances for people who are screened out, there could be an IAAAS provider provided at the government expense?

MR WALKER: If they were initially screened out but if it's subsequently brought to our notice that somebody who is initially screened out did have claims and concerns about their return to their country of origin, yes, they would effectively then be screened in.

DR OZDOWSKI: Would you be able to indicate the proportion of people who are screened out, or a number, and later provided that IAAAS adviser?

MR WALKER: I'd have to take that one on notice, Commissioner. I don't have that information with me.

DR OZDOWSKI: Okay. Thank you very much.

MR WIGNEY: Just summarising, if I can, the position in relation to the refugee status determination process, and you've just touched on that in discussion with the Commissioner, but the position really is, isn't it, that there is no one performing the active role as a guardian - that is, either the guardian or his delegate, the Deputy Manager, or Manager of the facility - there's no one performing roles as a guardian in that refugee status determination process. That is, guiding or assisting or even just supporting a minor through that process.

MR WALKER: There isn't - the centre Managers and Deputy Managers, to my understanding, don't participate in the determination process. The way that the guardianship responsibilities are discharged is through the provision of the independent advice provider. As I think I said yesterday, there is probably a limit on what a parent would be able to do for a child making refugee claims as well, given their limited knowledge, if any knowledge, of the protection visa process and our statutory framework and decision making processes.

MR WIGNEY: Well, just to pick up your point there, isn't it the situation, and I'm afraid we'll just have to talk in generalities, but in the case of a child with a parent, the parent, as the legal guardian, is able to give instructions and make decisions on behalf of the child; for example, give the IAAAS lawyer instructions. Now, that can't occur in the situation of an unaccompanied minor because they have no one to provide that function.

MR WALKER: That's true to an extent, but what instructions would they give? For example, in some cases a parent could give instructions to their child to rely on their claims, and the - a child of 15 or 16 may well have their individual claims that they could put forward. So in that sense it could disadvantage a person.

MR WIGNEY: You see, lawyers act on instructions. They don't make decisions for clients. They act on instructions. There is no one assisting a minor to give instructions to their lawyer during this process, is there?

MR WALKER: Well, I think I just really have to come back to the point that these issues have in fact been raised in the case before the Federal Court where the Federal Court judge did not find that there was any issue of failure to discharge the guardianship responsibilities by use of the IAAAS provider.

MR WIGNEY: Perhaps if we just extend beyond, I suppose, the primary decision point in the refugee status determination period, there then of course is the availability of review proceedings and indeed ultimately judicial review proceedings. The situation is, isn't it, that there is no one performing an effective role or exercising effective powers as a guardian in respect of unaccompanied minors during that process? That is, making decisions as to whether there ought be a review, making decisions as to whether there ought be judicial review or assisting a minor in that process.

MR WALKER: Well, as I come back to the Federal Court case, and I think there may well have been a couple of others if they haven't been heard or finally determined, that indicate that minors are being assisted and are being provided with advice.

MR WIGNEY: Ms Godwin referred to a Full Court decision yesterday. There's reference in I think the DIMIA submissions to a decision by French J in X v The Minister. Is that the decision you're referring to or are you referring to something else? Jaffari. I think it's also referred to as X. In any event, we --- ?

MR WALKER: Odhiambo. Full Federal Court decision, according to the note here, of 20 June 2002.

MR WIGNEY: Well, in any event we can examine that decision. There's little point in exploring that any further.

MS GREAVES: The IAAAS provider has provided for the merits review stage as well, so ---

MR WIGNEY: Yes, but again, the lawyer can't make decisions. It's not the lawyer who decides whether the child ought seek review or ---

MS GREAVES: But he can provide advice and does provide advice.

MR WIGNEY: He can provide advice, but he can't make a decision. There's no guardian or person in a position of a guardian to make decisions on behalf of a minor or to assist a minor to make such decisions.

MS GREAVES: Well, as the Court says, they think we - our guardianship responsibilities - the Minister's guardianship responsibilities are satisfactorily met.

MR WIGNEY: What about, without labouring the point, the position is the same in relation to making decisions in relation to bridging visa applications. That's right, isn't it? It's really the same point?

MR WALKER: I think there's still a threshold issue of whether or not they are in fact eligible to make the application. As I said I think a couple of times yesterday and possibly the day before, one of the threshold issues is that they have to be an eligible non-citizen, and there are a series of factors that have to be satisfied. That doesn't require the individual, be they an adult or a child, to pro-actively seek to meet those conditions. They are in fact matters that we operate in a pro-active sense in many respects to go through that process and reach levels of satisfaction.

MR WIGNEY: Well that really is the issue of substance that I want to come to in a moment in relation to who, if anyone, does take a pro-active stance in relation to bridging visas, so I'll just come back to that in a moment, but I think just to summarise the position that we arrived at yesterday afternoon, it was agreed by the Department, I think, that neither the Minister nor his delegates at this stage have qualifications or training in the care of children or the expertise in the guardianship of children as recommended in, amongst other places, the UNHCR guidelines. That's right, isn't it?

MS McPAUL: Sorry, we were slightly distracted, but ---

MR WALKER: I think we certainly stand by and don't contradict anything that Ms Godwin and our colleagues here said yesterday in relation to that, but, no, our staff aren't teachers, aren't doctors, aren't nurses, but they are experienced officers of the Department.

MR WIGNEY: Okay. Well, if I can just now pick up on Mr Walker's point about eligibility criteria for bridging visas, and we've touched on this in other contexts, but I think as Mr Walker pointed out yesterday, in terms of the eligibility criteria in sub-regulation 7 of Regulation 2.20, that is more specifically applicable to the case of unaccompanied minors because I think as Mr Walker pointed out yesterday, such eligibility criteria can't apply to the family or parents of a child because they're over 18. And so I want to focus now on that particular sub-regulation. But perhaps the most direct way to deal with it is to examine what I understand to be the position at least since September of this year when MSI, Migration Series Instruction 357 was issued. Have you got a copy of that before you?

MS GREAVES: No, I was just trying to get one, in fact.

MR WIGNEY: Perhaps I'll give you a moment to turn it up. Mr Walker has recharged his batteries, it seems.

MR WALKER: Recharged batteries. I can also confirm that MSI 234 is still current and I think it was paragraph 1.3 that you quoted yesterday is as you quoted it.

MR WIGNEY: Thank you. I think - I'm reminded that I think you were given hard copies of the MSI yesterday in ---

MS GREAVES: It's all right. I've got it with me.

MR WIGNEY: Yes. Now, as I understand the position now, the relevant paragraph - and this is an instruction that deals specifically to unaccompanied minors. That's right, isn't it? Procedures for unaccompanied wards in immigration detention facilities?

MS GREAVES: That's correct.

MR WIGNEY: And as I understand the position to be, there was no equivalent instruction prior to this instruction which was issued on 2 September this year; right?

MS GREAVES: That's correct.

MR WIGNEY: Now, I just wanted to take you to paragraph 13.4.3 and you'll see that the relevant subheading at 13.3 is Periodic Assessment of Unaccompanied Wards Eligibility for a Bridging Visa. 13.4.3 provides:

Where an unaccompanied ward satisfies regulation 2.20(7)(a) and (b) and has made an application for a protection visa, the DIMIA Manager or Deputy Manager must initiate contact with the relevant State/Territory child welfare authority to have the child assessed under regulation 2.20(7)(d).

Now, in general terms, the regulation 2.20.7(a) and (b), in general terms, apply where a person has applied for a protection visa, or is at a various stage in that process; is that right?

MR WALKER: That is correct.

MR WIGNEY: Right.

MR WALKER: It is rather convoluted, but it deals with dates and that is the general

MR WIGNEY: Yes. So if the effect of this instruction in the MSI 357 is that if an unaccompanied ward makes an application for a protection visa, that imposes, as we understand it, immediately an obligation on the DIMIA Manager or Deputy Manager to contact a relevant state or territory child welfare authority to have the child assessed as to whether he or she - well, as to whether release from detention is in the best interests of that minor; is that right?

MS GREAVES: That is correct.

MR WIGNEY: Now, that came into being in September this year, and what I want to explore with you is what the position was prior to the issue of that instruction in September this year; you understand?

MS GREAVES: Yes, I do understand.

MR WIGNEY: Now, I suppose to try and put it as directly as possible, I will put it in these terms; the Commission has neither seen nor heard any evidence or seen any documents that have been produced to it which suggests that DIMIA Managers or Deputy Managers acted in this way - that is, approaching state or welfare authorities to have a child assessed in relation to paragraph (d) of that sub-regulation - when they made protection visa applications in detention facilities?

MS GREAVES: Yes, that is probably correct.

MR WIGNEY: So in the past, if a child made a protection visa application, or raised protection obligations, nothing would be done directly to engage a state welfare authority to advise the Department as to whether it was in the best interests or otherwise that that child remain in detention.

MS GREAVES: As Ms Godwin said yesterday, in some states there was a practice of automatically providing information to state child welfare authorities of unaccompanied minors when the arrived.

DR OZDOWSKI: In which state?

MS GREAVES: It differed from place to place. I think it applied in Western Australia for - I don't know the exact periods - but we were trying to get to a position where it was applicable everywhere, but I haven't got the exact times when that might have occurred.

MR WIGNEY: I see. Now, that was a notification that there was a minor ---

MS GREAVES: An unaccompanied minor.

MR WIGNEY: An unaccompanied minor in the detention facility.

MS GREAVES: And ---

MR WIGNEY: But there was no provision of information or no request for the Department to consider the question of whether it remained or was in the interests of the child to be in detention.

MS GREAVES: I think that that would have been done on a case-by-case basis at that stage.

MR WIGNEY: Well, what do you mean by that?

MS GREAVES: Well, if the particular unaccompanied minor was one of - and there were particular circumstances relating to an unaccompanied - a particular unaccompanied minor whom we thought that that might be the case, then we would - we would have moved to raise that issue. But of course, the other thing is that at that time the state child welfare authorities also had a delegation, and they were able to raise with us at any stage whether they thought that there was a need to address the interests of the child in some way.

MR WIGNEY: But you would agree it is hardly likely that they are going to take it upon themselves to - particularly if they are not provided with any real information about the minor - to assess such a criteria unless they are specifically asked to.

MS GREAVES: I would accept that.

MR WIGNEY: And can I just perhaps ---

MS GREAVES: But as Ms Godwin also said yesterday, in a number of areas we are attempting to improve our procedures over time, and we have a process of continuous improvement and this reflects one of them.

MR WIGNEY: That is quite right, and to give credit where credit is due I think the Commission would accept the provision in this series instruction is an appropriate provision, but it would seem to be that - at least in the past, that is prior to September - there was simply no way - no practical way in which an unaccompanied minor could apply for a protection - I am sorry, for a bridging visa, because state authorities were simply not engaged by anyone to assess their best interests.

MS GREAVES: I don't think it follows that they couldn't apply for a bridging visa - they could apply.

MR WIGNEY: Well, they could, they could, but it is unlikely that they will meet the eligibility criteria, because the state authorities haven't been asked to assess their position and provide a certificate.

MS GREAVES: In order to make the application - Doug, you might come in on this - but in order to make the application they don't have to have got the certificate ahead of time.

MR WIGNEY: Well, can I suggest to you that if they hadn't addressed the eligibility criteria at the time they made the application the application would be ineligible; I think Mr Walker is nodding.

MR WALKER: That is correct. There is certainly nothing precluding them from expressing a desire to apply, but the actual formal application could not actually be made until the preconditions of being an eligible non-citizen have been satisfied.

MR WIGNEY: And there was no - there is now, but at the time, prior to September, there was no practical way that that could be engaged, that process could be engaged; that is right, isn't it?

MR WALKER: There may not have been a written instruction. I would dispute that there wasn't any practical way for that process to be engaged. I don't have the details in recent times of where people have or haven't expressed a wish and what has occurred; my colleagues probably do. But I am aware of aspects several years ago where in fact people have expressed a desire and examinations have taken place. Similarly, I am aware of some circumstances in the past where we have had concerns about the condition of people and actively taken steps for assessments to be undertaken.

MR WIGNEY: I will pick up on that last point in a moment - actually, I will pick up on it now. One example of the Department so acting was the - to put it broadly - the unaccompanied minors in the Woomera Detention Facility who were put into alternate detention facilities at the beginning of this year. And what occurred is that some - in some cases, after almost a year in detention, the Department of Immigration then specifically requested state authorities to address the issue of whether it was in the best interests of these minors to remain in the detention, immigration detention.

MS McPAUL: Well, my understanding is that those children remain in immigration detention, they are not granted a bridging visa.

MR WIGNEY: Well, that may be right, but what occurred - and I can take you to some documents, if you need to - but it wasn't until the Family and Youth Services raised specific and urgent concerns about these children that the Department raised the question and asked people to ask the state authorities to assess whether or not it was in the best interests of these children to remain in detention. Prior to that time, the state authorities had never been asked to assess the position.

MS McPAUL: That's not necessarily my understanding. I believe that FAYS had been consulted in the management of some of those children prior to that time and I ---

MR WIGNEY: I'm not asking about the management of the children. I'm asking them when they were asked to assess whether it was - in the terms of the regulation - whether or not it was in the best interests of the child to be in immigration detention, and my suggestion to you is that that didn't take place until the beginning of this year in most cases, if not all.

MS McPAUL: Look, I'd need to check the details of the individual children, but that's not necessarily my understanding.

MR WIGNEY: I'll come back to that because I think I can take you to some specific documents. But let me give you, perhaps, another example of how the system operated before September of this year. Can you just go to the first of the folders that you were given yesterday of documents.

MS McPAUL: Sorry, which ---

MR WIGNEY: I wanted to take you to page 172 of that bundle which I hope is an affidavit of - I won't name the deponent nor, of course, the name of the proceedings, but is that the first page of an affidavit?

MS McPAUL: It is.

MR WIGNEY: I want to take you to paragraph - it's an affidavit sworn by a person who then at that time, as of March of this year, occupied a position in the Port Hedland Immigration Reception and Processing Centre. Now, it deals with a particular applicant who was a child and - are you at all familiar with this case?

MS McPAUL: I'm just looking for the child's name.

MR WIGNEY: I think you'll - on the front page you'll see the name of the appellant.

MS McPAUL: I'm not personally aware of the specifics of the case.

MR WIGNEY: In any event, if you go over to paragraph 11, you'll see that it says:

The appellant applied for a protection visa and associated bridging visa E on 6 July 2000.

Now, just to clarify one point, is it now and was it the situation that when a child applied for a protection visa, that that automatically also was an application for a bridging visa?

MR WALKER: It normally is the case if they are an eligible non-citizen, but as I mentioned before, there's obviously that threshold issue to get through with unauthorised arrivals.

MR WIGNEY: Then the next sentence is:

His bridging visa E was determined on 7 July -

that is, the next day -

because he did not satisfy the requirements of schedule 1 of the Migration Regulations.

I'm sorry, my reading is getting progressively worse.

His bridging visa E was determined as invalid on 7 July 2000 because he did not satisfy the requirements of schedule 1 of the Migration Regulations.

Now, what it would appear occurred there was the bridging visa application was ineligible, or invalid, because there was no certificate from a state welfare body to the effect that this person ---

MR WALKER: Not only the state welfare body. There are other requirements there such as satisfaction of the Minister in relation to arrangements in the community for the care of the individual .....

MR WIGNEY: Well, it's hardly likely whether in the space of a day - because the bridging visa application was dealt with the next day - it's hardly likely that there would have been enough time for a state welfare authority to be contacted to be asked to certify whether or not the release from detention of that person was in the best interests of the non-citizen. That's right, isn't it?

MR WALKER: That might be the case, but the fact is that an application was attempted to be made that was invalid at that time.

MR WIGNEY: But it's invalid because there was no system in place whereby state authorities were contacted to even turn their mind to whether it was in the best interests of the child or not to remain in detention. So as a practical matter, bridging visas could never be granted in these circumstances.

MR WALKER: Well, they could never be granted until that certification was provided and also the Minister was satisfied in relation to arrangements had been made between the non citizen and an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, for the care and welfare of the non citizen, and those arrangements were in the best interests of the non citizen.

MR WIGNEY: It could never be issued unless and until the department finally decided, for whatever reason, that they might approach the state welfare bodies to even raise the issue with them. That's the situation, isn't it?

MR WALKER: There's nothing stopping the state welfare authorities exercising their own responsibilities and powers under state legislation.

MR WIGNEY: Well, that might be right as a legal matter, but it's an absurdity to suggest that these state bodies are just, off their own bat, perhaps in the absence of any information whatsoever, they're going to start issuing certificates about the best interests or otherwise of children. That's just absurd to suggest it, isn't it?

MR BROMWICH: Well, I object to that form of questioning. My friend hasn't put all the circumstances and it's unfair to these witnesses to be trying to deal with what amounts to little more than conjecture and hypothesis.

DR OZDOWSKI: Well, I disagree with you. I found the suggestion that state authorities should act without any prior knowledge also a bit - in a way - out of the realm of reality.

MR BROMWICH: That's being assumed rather than known. It may or may not be right. But the fact is that the witnesses here don't know this particular case and ---

MR WIGNEY: Well, I'm asking generalities now as you're aware.

MR BROMWICH: Well, in generalities, I don't think I or my colleagues could speak to what is in the minds of state authorities and how they exercise their responsibilities under their own state legislation for child welfare. It's a matter for them.

DR OZDOWSKI: Can I ask you did you have another provision which would ensure that state authorities are automatically advised about arrival of every unaccompanied minor into the detention centre?

MS McPAUL: I thought I'd indicated earlier, Commissioner, that we were moving, over the course of last year, to try and put that in place. And I think in Western Australia it started early last year. But before that I don't think so.

DR OZDOWSKI: So before it, it didn't exist?

MS McPAUL: I can't say definitively that there wasn't some instruction before that. It wasn't a matter of practice.

DR OZDOWSKI: Thank you.

MR WIGNEY: Well, let's try and address it this way then. This morning we've been exploring what the guardian - that is, the Minister and/or his delegate or delegates - did in assisting or advising minors through these various processes. Would it not be the position that if a guardian - that is, the Minister or his delegates - was to act in the best interest of the child, they would automatically engage the state authorities to address this very issue - that is, whether it's in the interests or otherwise of the unaccompanied minor to remain in a detention facility?

MR WALKER: I think there's a range of factors that - and this is talking in a general sense, not to the specifics of a case - but there are a range of factors that need to be considered in relation to particular children and how they're treated in these circumstances. There may well be no need for an assessment to be made - that's on the basis of professional judgments that have, and advice that the department has received - to actually seek out the assistance of the child welfare authorities in every circumstance.

Now, there's the MSI obviously that says that if there's an indication that somebody wishes to apply for a bridging visa, then the manager is to bring that to attention and arrangements to be made for that assessment. But ---

MR WIGNEY: We know that and we accept that that is now an appropriate arrangement and an appropriate instruction. What I'm exploring is what happened before that and the point is, is it not, that the Minister is the guardian and his delegates, that is the DIMIA Manager and Deputy Manager did absolutely nothing to initiate contact on behalf of the guardian - I'm sorry, on behalf of the child that they are guardian of to contact the State or Territory Welfare Authorities to have the child assessed against Regulation 2.20(7)(d)_ as is now the case.

MR WALKER: I don't think that we'd accept that that was the case in every circumstance. By the same token it may not have occurred in every situation but then again there may have been situations and circumstances where State Authorities were approached.

MS GREAVES: And I can certainly point to - recollect one last year where we did do precisely that with an unaccompanied minor of tender years where the State Authorities were contacted and the child was eventually released on a bridging visa.

MR WIGNEY: I'm sorry, how long had the child been in detention before that was actioned?

MS GREAVES: Two to three months I think it was.

MS McPAUL: The total period of detention was in the order of two to three months so there was action being taken quite early on in that particular case.

MR WIGNEY: Well, some may debate whether two to three months of a child being in detention is an early intervention but in any ---

MS GREAVES: Could I just say that in that case the issue was trying to find an appropriate care placement for the individual child.

MR WIGNEY: Can I ask you to take this question on notice. Can you please seek to advise the Commission of any occasion prior to September of this year when this Migration Series Instruction came into being where either the Minister or a DIMIA Manager of a Deputy Manager or indeed anyone on their behalf contacted the relevant State Welfare bodies to assess the child against Regulation 2.20(7)(d) immediately or within a short space of time of the protection visa application being lodged? Can you take that question on notice, please?

MS McPAUL: We can take that question on notice.

MR WALKER: Can I just ask - and I have no difficulty with taking on notice but do you want us to go back to 1994?

MR WIGNEY: No, sorry, I should say ---

MR WALKER: Yes, it's ---

MR WIGNEY: Quite so, from 1999 onwards ---

MR WALKER: Thank you.

MR WIGNEY: --- I think is really the relevant period that we've largely been addressing in the course of the Inquiry.

MR BROMWICH: I just might indicate that ahead of anyone actually checking it may well be that that could be a protracted task because the need to go to perhaps individual records might involve quite an extensive exercise. I don't know but that's quite possible because this sort of information might well sit on the individual files, including individual files in different parts of the country.

MR WIGNEY: I suspect one may only need go to those cases where bridging visas were granted and I suspect ---

MS GREAVES: No, no, that's not what you've just asked. You would have to go to all ---

MR BROMWICH: You're going to have to go every file for every unaccompanied minor to find out whether there was a referral or not. That's the scope of the question on notice.

DR OZDOWSKI: Do you have any other way of answering that question with less work?

MR BROMWICH: Well, the answer to that is I don't think anyone knows without making enquiries but I'm just foreshadowing that in terms of the question, Commissioner, you asked on the first day that such questions be answered by tomorrow. I foreshadow that's quite impossible.

DR OZDOWSKI: I agree with it it's unrealistic and we will address this issue in the last session.

MR WIGNEY: I wasn't suggesting that it had to be done in some unreasonable period of time.

MR BROMWICH: It was only in terms of what was said on Monday.

MR WIGNEY: Let me ask you this. How many ---

MS McPAUL: Sorry, Mr Wigney, can I just check - you're just only asking as well in relation to unaccompanied wards of the Minister?

MR WIGNEY: Yes.

MS McPAUL: Yes.

MR WIGNEY: Where the Minister or one of the Deputy Managers or indeed any officer from the Department intervened at an early stage to engage the State Authorities in relation to that eligibility criteria.

MS McPAUL: In relation to - for a bridging visa.

MR WIGNEY: Yes. Can I ask you this? How many unaccompanied child minors do you think would know about the existence of sub-regulation 7 in Regulation 2.20 of the Migration Regulations?

MS McPAUL: It would be highly unlikely that any unauthorised arrival coming to Australia would be aware of the specific provisions of a Migration Regulation.

MR WIGNEY: So without anyone acting in the position of a guardian or anyone indeed to give them advice about that they are hardly likely to be themselves seeking to engage the state authorities, are they?

MS McPAUL: Except, of course, that at that point they would have an IAAAS adviser if they had made a protection claim or raised issues that we would consider - for a protection claim. They would have an IAAAS adviser who would be aware of the provisions of the Migration Act.

MR WIGNEY: Can I just deal with one more matter. I think I asked earlier whether there was any Migration Series Instruction specifically dealing with this matter prior to MSI 357 in September this year and I think Ms Greaves answered ---

MS GREAVES: Not dealing with unaccompanied minors in general. I'm just wondering whether there might not have been an MSI on bridging visas.

MR WIGNEY: There was.

MR WALKER: I think there are MSIs on bridging visas but nothing specifically on unaccompanied minors.

MR WIGNEY: No, but I was actually going to - I think it's in your bundle - take you to something which suggests that that very provision in - this perhaps demonstrates my - the fact that I don't know about every single MSI in existence but it does seem that there was a provision similar to 13.4.3 in MSI 357 in existence before September. It's in your bundle of documents at page 70, MSI 131. And that's the commencement of the MSI. And at page 80 of the bundle you will see paragraph 7.4.1, which seems to be in similar terms to 13.4.3.

So indeed this procedure should have been engaged before September of this year. In fact, it seems to be slightly more extensive in that it suggests - it's in slightly different terms. Well, perhaps I could read it onto the record.

Where an unaccompanied minor satisfies Regulation 2.27(a) and (b), officers must initiate contact with the relevant State/Territory Child Welfare Authority to have the child assessed.

Now, it doesn't there specifically refer to assessed against the criteria in paragraph (d) as the case now in 13.4.3. It refers then to:

At this time health and public interest checks should also be initiated. The Child Welfare Authority should be briefed on the child's present circumstances. Where possible information should be made available to the Child Welfare Authority concerning: the child's background;

the child's present circumstances, including various details;

the presence and details of any offers to provide care in the community.

So whilst it doesn't specifically ask - require the Child Welfare Authority to address the criteria in sub-paragraph (d) it does specifically require prompt contact with the Child Welfare Authorities. I think, however, if you go to paragraph 7.4 sub-regulation 2.2(7), a

Child under 18 in a child welfare authority has certified that release from detention is in the best interests of the non-citizen.

That - the existence of that would tend to suggest that that is what is supposed to be addressed in 7.4.1. Would you agree with that?

MS GREAVES: Yes. And we've taken on notice the question - to response of a question of about how that has been complied with in the past.

MR WIGNEY: So if that practice wasn't followed prior to September of this year, then this particular instruction wasn't being complied with?

MS McPAUL: I think it also needs to be put in the context, as I think Ms Godwin illustrated yesterday, that the primary - or the obligation for the Department in relation to unauthorised arrivals is to place them in detention in the first instance, and a bridging visa is an option, but we still have the overarching obligation to make the individuals available for processing and removal, should that be the case.

MR WIGNEY: You accept that the - the Department accepts that there really is an obligation upon the Department to ensure that the child - child detainees are in detention for the shortest possible time. Do you accept that as a general proposition?

MR WALKER: Yes. That would be a general proposition.

MR WIGNEY: Now, is it the situation that - well, let me ask it this way. Did the Department, before and after September when this MSI was issued, continually - sorry, let me start again. Did the Department, before or after September of this year when MSI 357 was issued, continue to monitor the best interests of the child so as to, at an appropriate stage, engage the child welfare authorities to assess whether it was in the best interests of the child to remain in immigration detention?

MS McPAUL: Are you asking us whether we believe that we've maintained a duty of care to those children? I think the answer is yes.

MR WIGNEY: Well, I asked you a more specific question about duty of care.

MS McPAUL: Whether we had to take an action to ---

MR WIGNEY: Whether you continually monitored the situation as to the best interests of the child and engaged welfare authorities in the context of a bridging visa to assess

MS GREAVES: We've already taken on notice the question about engaging state authorities. What we - as we said yesterday, with unaccompanied minors, our primary aim in those early stages is to get their applications for protection processed as quickly as possible to ensure that they are released from detention on a visa - a protection visa, or removed.

MR WIGNEY: One would expect - I'm sorry.

MR WALKER: If I could just clarify it. Certainly, just going back to the point of - our desire is, in particular with children, that they be in detention for the shortest possible time. That's also our goal in relation to any person who is in immigration detention, but we are working within the framework of, as Ms Greaves said, processing visa applications and, where people meet visa criteria, and in particular protection visa criteria, that they are released as soon as possible. However, that doesn't get round the situation that, essentially, where they don't have an entitlement to remain in Australia, there are difficulties with grants of bridging visas.

One of the important criteria to be satisfied for a bridging visa is that the person gives an undertaking in terms satisfactory to the Minister that, at the conclusion of any outstanding application, be it visa application or judicial review application, that they will - they give an undertaking that they will leave the country within 28 days. So there are those important factors that have to be taken into account as well.

MR WIGNEY: Are you aware of any case, any single case, where all other eligibility criteria for a bridging visa have been met, other than the satisfaction of the Minister in terms of that undertaking?

MR WALKER: Personally, I don't. I can't comment. It's not within my - the area of my personal knowledge.

MR WIGNEY: Well, I mean, it's hardly likely, is it, that an applicant who meets all the other criteria and is sitting in immigration detention seeking a bridging visa is not going to give such an undertaking. Is that a realistic situation?

MR WALKER: Well, it gets back to the point, again, that, with the - the purpose of immigration detention, as Ms Godwin mentioned, that the people are available for processing and, should they be unsuccessful, they are available for removal. The difficulties that often arise is that people, having invested a great deal of effort to come to Australia, may not accept the end result that they have no entitlement to remain. But the law requires those people to be removed as soon as practicable. One of those important factors is that they are available for removal.

MR WIGNEY: Of course, one of the things that a guardian may be expected to do on behalf of a child is to give undertakings such as that that you've referred to. Would you agree with that?

MR WALKER: Yes. A guardian could give those undertakings.

MR WIGNEY: Well, the Minister can hardly give an undertaking as the guardian when he's the person that has to be satisfied. The position just doesn't work, does it?

MR WALKER: The thing is that I think it's an issue of - as we mentioned yesterday, the delegations are quite separate and the decision making processes are quite separate.

MR WIGNEY: I mean, isn't this one of the reasons why the recommendations made by the UNHCR in relation to guardianship of unaccompanied minors is a sensible recommendation, that is, that a guardian who is entirely independent of, in this case, the Minister or the Department, ought be appointed to represent children in these circumstances?

MR WALKER: I'm afraid I don't know why the UNHCR made those recommendations. It's a matter for the UNHCR.

MR WIGNEY: Do you think that it's a sensible recommendation, as a senior officer of the Department?

MR WALKER: I don't think it's appropriate for me to say whatever my personal view of these things are.

MR WIGNEY: Well, just wrapping up on this topic, without going around and around in circles, I mean, the point is this, isn't it, that one would expect that, as a delegate, the Minister or his - I'm sorry - one would expect that, as a guardian, the Minister or his delegates, if a child is in detention for a long period, or his or her mental health is deteriorating, if they were to look after the child's best interests, they would take a most pro-active approach in relation to contacting state authorities to assess the best interests of the child for the purposes of a bridging visa. Would you agree with that?

MS GREAVES: Well, that's what the current MSI reflects.

MR WIGNEY: Can I suggest to you that from what the Commission has seen and heard, at best the position taken by the Department has been a re-active rather than a pro-active stance in that context. What do you say to that?

MS McPAUL: I'm not sure that we do accept that, Mr Wigney. I think we've agreed to take on notice to provide you with some information which will clarify the Department's position in relation to that.

DR OZDOWSKI: Did you finish with this subject?

MR WIGNEY: Yes.

DR OZDOWSKI: Yes. I've got one more question in a way here, if you've finished with it.

MR WIGNEY: Yes, please. It's appropriate. I'm just ---

DR OZDOWSKI: Just checking the papers. Yes. I would like to return to the statement by the Department. You basically agreed that immigration officers working in detention centres do not have particular experience of education, health and so on, but you asserted that they are experienced officers of the Department and, consequently, they can meet the responsibilities of working in detention centres. I don't see that connection, because for me it's difficult to understand how work in Sydney, Canberra or any other offices of DIMIA equips a person to work in Woomera, Curtin, or somewhere else. Could you perhaps elaborate a bit more what skills people do acquire in the offices which are relevant to running, basically, a prison type of arrangement.

MR BROMWICH: Commissioner, before we go to that, even the UNHCR document doesn't contemplate that the guardian will have those skills.

DR OZDOWSKI: It has got nothing to do with guardians, I am going to the experience people have got going to the centre which is of relevance to function properly in the centre.

MR WALKER: I think it is important to focus, Commissioner, on the fact that DIMIA does have officers in the Department who liaise with others who do have experience. Our service provider does have experienced people running the operations of those centres, and my colleagues can probably elaborate further, but it is not wholly and solely DIMIA officers who are administering everything that happens within the detention centre. Also, I think that we would not say that detention centres are prisons. The - certainly, there are constraints on the individuals going outside the perimeters of the centres, and there are other elements within the centre, but the objective is, and I think our administration is that we make it as normal a community environment as we possibly can within the constraints within which we work. My colleagues probably could say more on that.

MS McPAUL: Yes, I mean, I think the important thing here is to recognise that immigration detention is administrative in nature and quite separate from anything that would be found in a correctional environment.

MS GREAVES: And that is why we have families together, we don't - there are a number of ways in which this is different from a correctional setting.

DR OZDOWSKI: But still, I can't work it out how, say, an officer coming from an office in Canberra or from overseas posting being put into, say, one of the detention centres, Woomera or Port Hedland, is able to monitor supply of services. How that office experience adds to the officer being able to monitor health, supply of schooling, supply of care and so on.

MS McPAUL: I think these are points that we touched, perhaps, on the first day, Commissioner, where we explored the framework in which the monitoring of the detention services contract occurred. And I think that we pointed out on that day that while our staff at the centres were engaged in on-site monitoring, day to day, that that was only one component of a much more comprehensive contract monitoring program that the Department conducts.

DR OZDOWSKI: Perhaps I could ask it in a different way. Do you have any former or current DIMIA officers who worked in migration centre suffering of mental stress or being on mental stress leave as a result of the work in detention centres?

MS McPAUL: Look, I would need to check the specifics of every officer, but there may be some in that circumstance.

DR OZDOWSKI: There may be some proportion, would you know?

MS McPAUL: Look, I would really need to check; I am not aware of the personal circumstances of every present or former employee that has worked in a detention centre environment.

DR OZDOWSKI: Thank you.

MR WIGNEY: There is just one further thing that I was going to deal with very briefly, in relation to UAMs and then we will move onto education, and I am afraid it is to put you on notice of another question at the risk of imposing intolerable burdens on the Department, but it really goes hand-in-glove with the other question that you have taken on notice. As Mr Walker has pointed out, the criteria in sub-regulation 7 of regulation 2.20 - well, the criteria (e) or paragraph (e) composes a further criteria; that is that the Minister must be satisfied in general terms that certain arrangements are in the best interests of the non-citizen. So that is after a receiving a certificate from the state authority that detention is not in the best interests of the child, the Minister then must be satisfied that alternate arrangements that are put in place are in the best interests of the non-citizen, in general terms. I wanted to ask you to take this question on notice; whether there are any cases that you are aware of where a state authority has certified that it is in the best interests of the child to be released, but the Minister has not been satisfied of the arrangements in accordance with paragraph (e).

MS McPAUL: Okay. So with the same parameters of the earlier question being since 1999 ---

MR WIGNEY: 1999, yes.

MS McPAUL: ---wards in relation to IGOC specifically?

MR WIGNEY: Yes.

MS McPAUL: Again, that may take some time to compile.

MR WIGNEY: Obviously, if you ascertain in due course that it imposes intolerable burdens on the Department, you obviously need do no more than notify the Commission of that.

MS McPAUL: Yes.

MS GREAVES: Could I just add that in normal circumstances, because the state authorities would have the delegation in relation to those children once they were released from detention, the state authorities would have a role in providing, helping to provide, arrangements for the care of those children.

MR WALKER: I think that the practical measure is that generally, in relation to the state authority's certification, normally that the processes of the two criteria would come together in a sense of something that the state authorities were comfortable with being appropriate for the child would satisfy the Minister. That is the way it works, but certainly ---

MR WIGNEY: I suppose the point is that it is hardly likely that there are going to be many cases where the state authority certifies it is in the best interests of a child to be released from detention, but then doesn't put into place some form of arrangement.

MR WALKER: That is right.

MS GREAVES: But they could have difficulty finding those arrangements, and it may delay the ---

MR WALKER: And some time - the reason - this is just going behind the reason for the regulation being structured in the way that it is - is that in the past, and this is pre-1999, the circumstances we are talking of, but there were circumstances where individuals in the community would come forward and offer to care for children. Obviously some of the factors there are that we would work closely with state authorities of whether they believed that the individual offering that assistance was appropriate, so that is just a bit of the background of why it is separated in the way that it is.

MR WIGNEY: Well, that is all that I had in relation to UAMs.

DR OZDOWSKI: Okay.

MR WIGNEY: I don't know whether ACM have much to say about that, I expect not.

DR OZDOWSKI: Yes. Just I would like to return to my question before, just to, you know, where - say if you are taking too many questions on notice - is there any other officer here who is not at the witness stand who could answer to that question about mental stress of the officers or former officers of DIMIA. I thought maybe Mr Frencham could answer that question?

MS GREAVES: Mr Frencham, of course, wouldn't know across the board for all of the detention centres; I thought your question was a general one, whether there was any officers ---

DR OZDOWSKI: It was a general one, yes.

MS GREAVES: Yes.

DR OZDOWSKI: So if you would know possibly for Woomera only.

MS GREAVES: He might not necessarily know that either.

DR OZDOWSKI: Not necessarily, okay.

MS GREAVES: I think we should take that one on notice.

MR WALKER: I think, Commissioner, that it is something that is certainly - our personnel people would know the circumstances, the rest of us would not know circumstances related to why people have - are ill or so forth.

DR OZDOWSKI: Okay, thank you. Now, counsellor ---

MR BROMWICH: There was just one matter I wanted to raise that flowed out of some of that questioning, Commissioner. If I could just take you to page 174 in this volume. Earlier, you were taken to an affidavit and asked some questions in relation to the position of a guardianship and related matters in relation to the minor referred to in that affidavit.

MS McPAUL: Yes, we were.

MR BROMWICH: Look at paragraphs 14 and 15 on page 174. I will just read into the record what is stated there:

Since his arrival in the Centre the appellant has preferred to reside in the single men's blocks with other African detainees. He has stressed to ACM and DIMIA staff that he considers himself a man, not a boy, and does not want to reside in the family blocks with women and children.

The appellant has also advised ACM and DIMIA staff that he does not wish to be appointed a specific mentor, but rather be guided and protected by the entire African resident community. This group mentoring has been observed by ACM and DIMIA staff to be active on a daily basis.

So that is part of the context of the questions you were being asked earlier.

DR OZDOWSKI: Yes, I know of this particular case, indeed. Thank you.

MR BROMWICH: Well, it's just to put the other questions in context, Commissioner.

DR OZDOWSKI: Thank you. Mr Rushton?

MR RUSHTON: No. No questions.

DR OZDOWSKI: Yes, I think we can start questioning before the break or ---

MR WIGNEY: I'm happy to continue.

DR OZDOWSKI: Yes. So let's continue.

MR WIGNEY: Sorry, as a practical matter, as I indicated, the suggestion that we have is that the ACM witness who, I understand, can give some relevant evidence in relation to education is here and perhaps it might be more appropriate if we start, on this occasion, with the ACM witness rather than with the Department witness.

DR OZDOWSKI: Yes.

MR WIGNEY: Now, as a practical matter, that's Ms Lumley.

DR OZDOWSKI: So you will excuse DIMIA from the witness stand at the moment and will ask the ACM witness to come forward.

MR RUSHTON: I can indicate, Commissioner, that Ms Lumley was employed as an education officer at Woomera in April of 2001 and, in January 2002, she was promoted to the position of Education Co-ordinator at Woomera where she remained until, I think, the end of June 2002. So she can at least cover that period of time.

DR OZDOWSKI: Thank you. Could I ask that oath or affirmation ---

SARAH LUMLEY, sworn [10.18am]

DR OZDOWSKI: Mr Rushton, anything you would like to add to - the information you provided as to background of the witness?

MR RUSHTON: Not at this point, no.

MR WIGNEY: I suppose, for the record, Ms Lumley, you should give your name and present occupation, please?

MS LUMLEY: Sarah Lumley, and my present occupation - I'm a contractor with ACM and I'm currently working as an executive assistant in head office.

MR WIGNEY: And how long have you been employed with ACM?

MS LUMLEY: Since April 2001.

MR WIGNEY: Now, I think Mr Rushton just indicated your particular involvement with Woomera and, in particular, education at Woomera. Could you just perhaps repeat that for the record, please? When were you employed at Woomera and what were your duties and responsibilities when there?

MS LUMLEY: I was employed as a teacher at the end of April 2001 at Woomera and in January of this year I was appointed as the Education Co-ordinator and I finished that contract at the end of June this year, so a total of 14 months.

MR WIGNEY: Now, I suppose just as a formal matter, what were your qualifications relevant to teaching when you took up employment as a teacher at Woomera?

MS LUMLEY: I've got a BA degree from the University of Southhampton and then I've got a post graduate certificate in education from Cambridge University and I'm also currently studying a masters in education with Charles Sturt University. I'm registered in New South Wales. I'm registered in South Australia and I'm a qualified teacher in Britain.

MR WIGNEY: And before taking up your position at Woomera, what was your broad experience in terms of teaching?

MS LUMLEY: I taught for three and half years in England in a primary school - I'm a primary school teacher - and I spent a year working in Mozambique as a teacher at an international school.

MR WIGNEY: Sorry, just exploring that, in Mozambique, at the international school, were your pupils largely expatriates or were they ---

MS LUMLEY: They were largely expatriates. There was - in a class of 22, I had 19 different nationalities.

MR WIGNEY: I suppose the point being - and please understand I'm not being at all critical in this respect ---

MS LUMLEY: No, that's fine.

MR WIGNEY: --- but when you took up teaching at Woomera, you would agree, I suppose, that it was a rather different teaching experience than anything you had had prior to that?

MS LUMLEY: It was but I guess there's a similarity in that I was teaching children from overseas that either had no English or had English as second language and that was very similar to my experience in Mozambique.

MR WIGNEY: Right. Now, I want to come, in slightly more concrete details, relevantly to you with what was taking place at Woomera but, in general terms, were you aware of what were the - what was the situation in relation to education at any of the other detention facilities that ACM operated during that time?

MS LUMLEY: No. No.

MR WIGNEY: I'll come back to that in due course. Can I just - perhaps again being somewhat mundane, just go through a few of the ACM documents relevant to education that I expect you would be familiar with and I suppose the starting point, really, is the immigration detention standards. Were you aware of those standards when you commenced?

MS LUMLEY: Yes. Yes.

MR WIGNEY: And the situation is, I think - and please correct me if I'm wrong - but there are two - well, there are two places where there are specific provisions in relation to education. Do you have a copy of those with you, the immigration detention standards?

MS LUMLEY: Do I - I'm not personally carrying them right now.

MR WIGNEY: Sorry, I'll just have a copy given to you. Now, the first specific provision that deals with education, I think, is paragraph 4.4 which is under the subheading, Social Interaction and it provides:

All detainees have access to education, recreation and leisure programs and facilities which provide them the opportunity to utilise their time in detention in a constructive and beneficial manner.

MR RUSHTON: I don't think the witness has got them in front of her.

MR WIGNEY: Oh, I'm sorry.

Sorry, I was just taking you - I think it's to page 3 of that document, paragraph 4.4.

MS LUMLEY: Oh, yes.

MR WIGNEY: Now that particular paragraph of the standards deals with access to education generally. It's not specifically referable to children. Is that right?

MS LUMLEY: That's right.

MR WIGNEY: Now, in terms of your experiences at Woomera, did you mainly focus on children or did you also provide education services to adults?

MS LUMLEY: I guess my primary focus was children but I also provided English for adults.

MR WIGNEY: Well, for our purposes in this Inquiry, our primary focus is on children as well and that's a general provision and I think, also, to be fair, 4.5 and 4.6 provide relevantly that: Detainees are encouraged to participate in the programs and that the programs are to be regularly evaluated.

MS LUMLEY: That's right.

MR WIGNEY: And then, nextly, if one goes over to paragraph 9.4, there are some specific paragraphs with - in relation to children and specifically, paragraph 9.4.1 provides that "social and educational programs appropriate to the child's age and abilities are available to all children in detention". Now, that's a provision that deals specifically with children. Is that right?

MS LUMLEY: That's right.

MR WIGNEY: And I think I said education is referred to in two places in this document. In fact it's in three places. If one then goes over to paragraph 14, there's a definitional provision and there the term, education programs, is defined and it's defined as meaning:

pre-school and school curriculum-based programs, focusing on English as a second language and taking into account variable lengths of stay in detention of students, in line as far as possible, with local education authority standards, provided by qualified teachers either within the detention facility, or with local schools if appropriate and within requirements for continued detention.

Now, just in general terms, is that what you understood to be the standards that ACM had to comply with?

MS LUMLEY: Yes, and we had our own educational policy as well.

MR WIGNEY: Right.

MS LUMLEY: So I also had to comply with that.

MR WIGNEY: Now, I suppose it would be fair to say, wouldn't it, that the standards in this - the immigration detention standards were fairly broad in general; they didn't provide specifically, for example, how many hours of education ought be provided, how many as a minimum of those sorts of things.

MS LUMLEY: That's right. Very general.

MR WIGNEY: And you've referred to ACM's own policies and I just want to explore that with you to make sure that we have all of those that are relevant. The one that we have - I think you've now been given an entire folder. I think if you go to page 1 of that folder, there's an extract and I can provide you the front pages of the document if needs be, of policy number 1.1 in the ACM manual, and I think - all that simply does is set out the definition of education programs that appears in the immigration detention standards.

MS LUMLEY: Pretty much, yes.

MR WIGNEY: Now, the other policy that I've been able to locate, I must say, is a policy, 13.1, which is at page 167 of the bundle. Now that is procedure number 13.01. Now it, on its face, I think, deals specifically with Port Hedland - the Port Hedland facility and it, I think, is the procedure that puts in place policy 13.1, a copy of which I have here and I'll show you in a moment, which is the broader policy that applies to each of the facilities; is that ---

MS LUMLEY: There's a broad policy that would apply to each - to, like, the general one for all of the centres, and then each centre might possibly make that more centre-specific.

MR WIGNEY: Yes.

MS LUMLEY: So I would be more familiar with the Woomera one although I don't think it was too different to their general one, than I would be with the Port Hedland one.

MR WIGNEY: Can I just show you a document - I'm afraid I've dug it out of my own material so I don't have copies, but - is that the - that's policy 13.1, I think.

MS LUMLEY: Yes.

MR WIGNEY: That's the general policy that applies to all of the facilities.

MS LUMLEY: Yes.

MR WIGNEY: And was the Woomera policy broadly in line with that policy?

MS LUMLEY: Broadly in line, yes, I'd say it probably was.

MR WIGNEY: And I think you'll agree that it's pretty much along the same lines as the policy or the procedure that we have in this bundle that specifically relates to Port Hedland; it doesn't seem to ---

MS LUMLEY: Yes.

MR WIGNEY: --- differ in any particular respects.

MS LUMLEY: Yes, it is.

MR WIGNEY: Can I just ask you just a few general questions about that, if you wouldn't mind. On page 3 of the document, there's some more detailed provisions in relation to the education programs and provides that the Programs Manager - this is at page 169 of the bundle, "The Programs Manager shall develop and present or facilitate education programs for interested detainees in the following programs". Can I just ask you this question: was the Programs Manager in charge of, not just education, but also other social and recreation programs; is that right?

MS LUMLEY: In Woomera, the Programs Manager was in charge of education, recreation, social welfare and interpreting services.

MR WIGNEY: Right. And you were in due course ---

MS LUMLEY: In due course.

MR WIGNEY: --- the Programs Manager.

MS LUMLEY: I was the education supervisor, I guess.

MR WIGNEY: Now, there is then set out a series of dot points which set out or put some flesh on the bones of the types of programs to be offered. I just wanted to direct your attention to the last dot point which provides general pre-school and primary school classes and to just ask you this question: there doesn't appear to be any specific reference to the provision of secondary school classes; are you able to assist as to why that is so?

MS LUMLEY: In the policy, it says, "External post-secondary education". In my experience, we weren't able to access external - not - sorry, that's post-secondary. No, it doesn't mention it but we did do secondary education, so it certainly wasn't that we left it out.

MR WIGNEY: Right. Are you aware of any reason why it wasn't in the policy or is that ---

MS LUMLEY: No.

MR WIGNEY: --- beyond your purview ?

MS LUMLEY: No. No, I knew not why it was not in there.

MR WIGNEY: Now, the only other particular provision in this paragraph in this procedure that I wanted to direct your attention to was really the second last paragraph on the page which provides, in general terms, for the provision of some formal recognition or certificate or letter of participation to be provided in relation to those detainees that participate in these programs. The Commission hasn't seen any evidence, or heard any evidence of such certificates or letter of recognition being issued; is that your experience or can you assist us in that regard?

MS LUMLEY: If you don't know when the detainees are going to be released, you're not able to provide a certificate of completion, because you don't know that they're about to be completing their education at the centre.

MR WIGNEY: But did DIMIA provide you with any information about those matters?

MS LUMLEY: They're not able to provide us with the information prior to the release of detainees, so we didn't know that they'd be going. So we didn't know they'd be finishing.

MR WIGNEY: But what about children or detainees, but we'll focus on children for the moment, who remained in detention for some time who completed, for example, a particular program or a particular element of the course over time; were they issued as an interim matter with certificates or letters or ---

MS LUMLEY: They're not issued with certificates. We don't run certified courses because we're not able to run a certified course. So in terms of a public school has their Department of Education set of exams, we're actually not able to run those types of qualifications. What we do do, which I think is more valuable, is we provide a report to parents on the child's progress and I actually would deem that far more valuable in terms of the individual's progress than a certificate.

MR WIGNEY: But in terms of a detainee for example being able to in due course show someone any evidence of the fact that they've participated in programs or achieved any particular level, there was nothing of that sort issued?

MS LUMLEY: In terms of assessment, no, because we don't have access to those types of testing arrangements.

MR WIGNEY: But what about just completing even, for example, the basic level of an English course, or something like that.

MS LUMLEY: They're - it's difficult to actually - we don't have - you can't buy, off the shelf, an - you can buy English course books where we could say, "This child has finished this type of book", but that would not be of value to anybody. When they go out in the community that would be of no value to a teacher on the ground really. Of better value would be our report that we'd actually detail their educational progress. You can't buy off the shelf exams and certified courses and run them anywhere, because you have to be certified as an organisation to do some kind of course or exams.

MR WIGNEY: What about, just to use one example, the sorts of courses that were offered by relevantly the South Australian government, English as a Second Language courses to, for example, asylum seekers who have been granted protection visas and have then ---

MS LUMLEY: Yes, like the AMES courses, yes, IELTS, yes.

MR WIGNEY: Well, weren't there fairly structured courses ---

MS LUMLEY: We're not allowed to have access to those; you have be a registered IELTS trainer, a registered IELTS organisation or AMES or anything else, so we don't have access to those programs, and we certainly explored all of those avenues because, you know, we were as keen to get them running on a certified recognised course as anyone else, but liaison with those organisations drew a blank, quite frankly.

MR WIGNEY: You referred to some acronyms which you might need to assist us with.

MS LUMLEY: IELTS is an International English Language - I'm not sure what the "T", Testing System or whatever and that's a very structured International English Language System that a lot of organisations use. So that would be a well known one. There might be a couple of other ones as well. ISTLPR is another one and that's another English International Second Language.

MR WIGNEY: Right.

MS LUMLEY: Or something or other.

MR WIGNEY: Now, I think you said you needed to be, what, registered with them to get access to the courses.

MS LUMLEY: You need to be - you need to be registered by them as a registered trainer and you need to be a registered - like an organisation for them, so we would have had to have gained registration as an IELTS facility or whatever and that's actually quite a lengthy process and not something you can do overnight. So it was certainly something we looked at but it wasn't really something that was going to be particularly easy to do.

MR WIGNEY: All right. Are you aware of - and please tell us if you're not in a position to answer this, but are you aware of whether ACM Central Office had attempted to gain registration or certification with that body?

MS LUMLEY: I wasn't aware, no.

MR WIGNEY: Are you aware of whether the Department of Immigration ever did anything to liaise with those organisations or attempt to obtain that registration?

MS LUMLEY: No, I'm not aware of that.

MR WIGNEY: Can I just take you to a couple of other pages in the bundle. Again, I appreciate that you're specifically linked with Woomera and you may not be able to answer some of these questions so please just tell us if that's the situation. But if you go to page 3 of the bundle there is a document that is headed ACM Quality Improvement Plan and can I ask you firstly whether this is a document that you're familiar with or whether you had ever seen it before?

MS LUMLEY: Yes, I have.

MR WIGNEY: Can you tell us what it is?

MS LUMLEY: It's an action plan for improvement.

MR WIGNEY: Right.

MS LUMLEY: So we'd identify areas that required improvement and put it into an action plan with dates, target dates, with people responsible to action those things and - and, yes, it's a quality system.

MR WIGNEY: And how often were these improvement plans produced?

MS LUMLEY: I'm not sure as to the date of this one. What's that, July? I - this one was done by me and I'd certainly done - I think I'd done one before that, not on a regular basis but it could be an ongoing thing. It depends how long the dates are on them but, no, not on a - not on a regular basis unless required specifically or unless on this occasion we felt that there were some areas that really needed improvement, so we - we put this into place.

MR WIGNEY: I just wanted to direct your attention to one passage in that. Did you say you recognise this is a document you've created?

MS LUMLEY: Yes.

MR WIGNEY: Good. If you could go to page 4 of the bundle there's a passage that I wanted to ask you about. It's item number 4 under the box Required Improvement. And the date is 5 November 2001. And you've got:

Outline curriculum for school-aged children to be set out based on ESL ---

That's English as a second language.

--- guidelines.

MS LUMLEY: Yes.

MR WIGNEY:

This to cover the following groupings.

And then you've got some age groupings. Now, firstly may we take it from this that prior to 5 November there had been no outcome - outline of curriculum based on the ESL guidelines, at least at Woomera?

MS LUMLEY: I guess I need to make this clear. In South Australia there's a new curriculum, the new SACSA Framework, and at that time there was no ESL section on it and there is now. The Victorian curriculum has comprehensive ESL guidelines but we were in South Australia. Given the fact that they are ESL students you can't just follow an ordinary curriculum because you can't ask a child to do the life cycle of a frog if they can't read English, for instance.

MR WIGNEY: Yes.

MS LUMLEY: So you need a specialist type of curriculum. There is no ESL curriculum, it doesn't exist. What there are are curriculum documents that have ESL provisions. At that time the South Australian curriculum did not have that and it wasn't developed. The Victorian one was quite comprehensive and we were looking to maybe implement some of the guidelines, I guess. There's no set curriculum but guidelines from the Victorian curriculum in the fact that there wasn't really anything else to use.

MR WIGNEY: I just want to explore a couple of things about that. Can I just firstly make it abundantly clear that in asking these questions I'm not intending in any way to be critical of you certainly personally but we're just trying to explore what may or may not have been deficiencies in the - the education system in these facilities at the relevant time. But it would seem from the documents that are being produced to the Commission that from those documents we've not really seen any evidence of any curriculum for school-aged children based on ESL guidelines or any other guidelines. Are you able to comment on ---

MS LUMLEY: Yes, I am. When - when the children come in - I guess in 2001 it was a very different picture to what it is today. When the - when I started there was a huge transitory population so the children are often in and out within - between six weeks and three months. In that time your focus is teaching them English and teaching them, I guess, socialisation in terms of knowing how to come to the classroom, how to behave in a classroom setting. Now, it just doesn't exist that there's some kind of curriculum for that kind of thing but there are lots of ESL programs and that's what we used.

So there's a number of different primary, secondary school programs you can buy and we use those. In that transitory population it is not appropriate to be trying to use, for instance, the South Australian curriculum. It's just impossible to use that kind of document with children that have no English at all. So we were doing ESL for a good number of months while I was there. And then later on in the year it became quite clear for the first time that some of the children were actually going to be there a lot longer than three months.

And because it was then clear that these children were going to be staying longer, they've obviously developed some English skills by then, that we really needed to look at setting up the curriculum and ESL type curriculum and doing conceptual development for these children. And that wasn't such a priority before and it changed, the priorities changed. So when this document came into being it was evident that children were there for a longer period of time and it was evident that then our education focus actually had to change from an ESL like focus to something more conceptual and that's what we were - that's where this came from.

MR WIGNEY: Accepting, of course, the difficulties and complexities in providing an appropriate curriculum to this population in the detention centres and accepting, of course, the inappropriateness of simply adopting holus-bolus some curriculum, what I suppose I'm exploring is whether ACM or indeed even ACM at Woomera ever reduced into writing a specific set of guidelines for the curricula at that

MS LUMLEY: No, they didn't.

MR WIGNEY: --- at any of the facilities.

MS LUMLEY: No.

MR WIGNEY: Was it the situation that in terms of the teaching staff, there was a fairly high turnover?

MS LUMLEY: There was initially when I was there and then - I guess initially - some people go to a detention environment to teach and they find possibly that that's not the environment for them and they are not necessarily suited to that environment, as with anywhere. So when I was first there there was a bit of a turnover but from about September last year people - we got people that wanted to work and stay there. I was there for 14 months and the current - the teachers that are currently there most of them have done at least a year now.

So I think it's fair to say that, yes, at the time there was a fairly high turnover but now there's much more stability in Woomera with those teachers and that's a very good thing.

MR WIGNEY: Of course, that being obviously a very important factor to ensure the provision of adequate educational services, it is a very different ---

MS LUMLEY: Well, to ensure continuity, it certainly helps, yes.

MR WIGNEY: And hard to build up a relationship with children if there is constant high turnover, and again, I am not being critical.

MS LUMLEY: Hard to build up a relationship with children when you don't know how many you are getting in and how many are going out in one week.

MR WIGNEY: Yes.

MS LUMLEY: Very difficult to build up a relationship then. But much easier now; you know, ironically, when they are there for much longer, yes, there are some very strong relationships now between the teachers and the children.

MR WIGNEY: The reason I asked you about staffing issues at this stage is this; that if the facility, the education - I withdraw that. If there are no documents setting out any form of curriculum that ought be the basis for education services in any one facility, it makes it particularly hard for - if there is a transitory teaching population, to

MS LUMLEY: It does, but when people - when people left, they often left fairly comprehensive notes. As a professional teacher you are not going to leave knowing that someone else is coming in, and you are just going to leave them in the lurch. You know, generally, professionals don't do that. And the teachers would leave some fairly comprehensive notes and guidelines and then one of us would be able to pass it on to anybody new. So we did do that and we did run people through what we were doing. Although there wasn't a formal guideline, informally we certainly tried to help each other as much as we - as much as we could.

MR WIGNEY: And is it the situation that still, to this day, no document setting out the guidelines ---

MS LUMLEY: There isn't.

MR WIGNEY: Or any rough sort of curricula that ought be provided in the ---

MS LUMLEY: If we had set out guidelines this time last year, they would be completely irrelevant now. So it would be something - it is a dynamic process; these children are there a lot longer now, they have got different needs now, and now it is actually much easier - and they are doing this now - to use the South Australian curriculum because there is a level of English now that enables us to be able to use curriculum documents. What we are not able to do, even if we use curriculum documents - we are not able to do exams because we don't have access to exams.

MR WIGNEY: I was going to take you to some documents in relation to Port Hedland, but that would be a fairly futile exercise, I take it?

MS LUMLEY: It would, because I haven't got a clue what they do at Port Hedland.

MR WIGNEY: Well, I won't do it. Can I approach it perhaps in this way; is this a fair summary of the position, at least in the years 19 - or at least in the years that you were specifically at Woomera - that it was largely left up to the ACM managers or the education managers in each of the facilities to formulate some sort of a curriculum or deal with the education programs at that particular facility?

MS LUMLEY: I think that is a fair comment, and I think, you know, in fairness, ACM have got professional teachers on board to do that, and that is why they get professionals.

MR WIGNEY: But there is no central co-ordination from ACM head office as to a central curricula, or a central set of guidelines ---

MS LUMLEY: Not that I am aware of, no.

MR WIGNEY: Can I just ask you some questions in relation to hours; I don't know if that - what time were you ---

DR OZDOWSKI: Perhaps I have got two more questions - I don't know if you would like to change topic - maybe to ---

MR WIGNEY: I was moving onto a slightly different topic in the context of education.

DR OZDOWSKI: So maybe let's do it after a break. Now, two questions; I am not fully convinced that it was impossible to give certificates because I saw people who left detention centres, for example, with their medical records. And you are also saying that there were quite detailed notes prepared on different students. Wasn't it possible, in a way, to give them on the day of their departure, and I know it would be at short notice, or at least to follow it up with a letter so they could have some assessment?

MS LUMLEY: Medical got 24 hours notice of people's departure, only medical. So medical were able to get their records together. From the time when I was Education Coordinator, we did do progress reports on the children, and we put a copy in their file and we gave a copy to the parents, and our idea with that, to the parents, that if we gave a copy to the parents that maybe the parents would take that to the school that their child is going to, and maybe that would be some help to the parents. We have no idea where these people go when they leave; I don't know if they end up - where they end up, so it is we are not able to follow through or send anything through because we don't know where they are. ACM are not privy to that information.

DR OZDOWSKI: Did you provide the Department of Immigration with individual records?

MS LUMLEY: Yes, the file - their file with their, you know, if they had a, you know, case management, or the file - like, with the education report on it because it would be all in there, all of that goes straight to the Department of Immigration.

DR OZDOWSKI: The Department. Do you know whether the Department was forwarding further to the children's ---

MS LUMLEY: I am not aware, I really don't know what they did. But what - we did try to give something to the parents

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Transcript of Hearing - SYDNEY

Wednesday 4 December 2002

Please note: This is an edited transcript.

Commissioners: