In late November 2001, the Human Rights and
Equal Opportunity Commission announced that it would conduct an inquiry into
children in immigration detention. It
put out a call for submissions.
The announcement came shortly after the November
federal election, campaigning for which focused strongly on issues relating to
asylum seekers and the importance of “protecting our borders”. The issues had moved to occupy a place in
the national consciousness like never before.
When HREOC announced its inquiry, we decided
that we would make a submission. We
thought it might be useful to find out who else was making a submission, and to
look at pooling resources and expertise, to compile the most useful and
comprehensive submission we could. And
so we started to ask around. And the
response was overwhelming. Within ten
days, we had 40 people meeting at a private home in suburban Melbourne; four
weeks later 70. People from all walks
of life came together because they shared a concern about the issue of children
in immigration detention. And still the group continued to grow.
This
submission is a product of the concern and the expertise and the energy of this
diverse group of people: teachers, nurses, doctors, psychologists, actors,
lawyers, social workers, physiotherapists, psychiatrists, writers, students,
and counsellors who gave generously of their time, working with a sense of
urgency; conducting literature searches; reading volumes of reports and papers
and legislation and legal cases; researching experiences of other jurisdictions
around the world; and interviewing as many people as possible with both first
and second hand experience of immigration detention in Australia.
This
submission deals with the issues raised by the immigration detention of children
from different, but inter-related, perspectives, which reflect the wide-ranging
expertise and experience of its contributors.
We have a chapter that deals with the health issues faced by children in
detention; one that deals with the mental health effects of detention on
children; one that examines the educational needs of children in detention; and
finally, one that examines the legal issues raised by the practices and
policies of our current system of detaining children.
The
focus of this submission is children
in immigration detention. That is the
focus of the HREOC inquiry. But by
focusing on children, the contributors do not, for a moment, accept that the
age of eighteen forms some magical line beyond which people are expected to
have constitutions strong enough to withstand and bear anything they might ever
experience. While children are more
developmentally and psychologically at risk than adults, these are, in our
view, matters of degree. If the focus
of this submission is taken to imply that the plight of adults should be
ignored because they are adults, and that the effects of detention upon them
are therefore irrelevant, we will have been badly misinterpreted. We have also, throughout this submission,
understood the place of children within families and communities, and the
importance of such contexts in their development; the importance to a child,
for example, of the health and well-being of the child’s primary care-giver,
the quality of the child’s relationship with that person, and with the child’s
immediate and extended family, and community.
As
we now complete our submission, and make it available to both HREOC and the
public at large, we say without hesitation that the work we have done only
deepens the concerns with which we started, and our sense that things must
change, and that they must change as a matter of urgency. It is to our great
sadness and frustration that we need to make the case we are making. It is to
our great sadness and frustration that children are being detained as they are,
and that there is not already an overwhelming consensus in the community and
inside our governments that this must be remedied tomorrow, if not later today.
But that is how things stand as we complete this submission. It is our hope
that in the not-too-distant future this submission, and the issues with which
it deals, will be of historical record and interest only, not day-to-day
urgency: in other words, that we, as a community, will have found our
conscience and our reason.
Finally, to all those who have contributed to
this submission, who have worked tirelessly to tell the story of children in
detention, to document their hurt and their harm, and to plead for their
freedom, our gratitude and our admiration to you. Together, we have managed to tell a story, to shine a light on
much that has been hidden away; and, hopefully, ultimately, to help realities
and facts and evidence make a difference.
Dana Krause and Jonathan Liberman
Melbourne, May 2002
The United Nations Convention on the
Rights of the Child (“the Convention”) is the most widely ratified
international human rights convention.
That this should be so is hardly surprising. For there are no people as vulnerable, and as in need of
protection, support and care, as children.
Universally, the importance of childhood and adolescent experiences in
determining later life experiences is understood.
Hence, the Convention outlines a wide
range of rights of children which must be respected by nation states:
children's survival and development; their health; their education; their
privacy; their right to play and recreation; their protection from violence,
abuse, maltreatment and exploitation; their right to "a standard of living
adequate for the child's physical, mental, spiritual, moral and social
development"; and many others.
Respect for these rights is necessary if children are to develop into
healthy, stable, functioning adults. The Convention specifically extends these
rights to children who are seeking, or have been granted, refugee status.
The Convention provides that no child
shall be arbitrarily deprived of his or her liberty. Detention or imprisonment
of children “shall be used only as a measure of last resort and for the
shortest appropriate period of time”. Every child who is deprived of liberty
“shall be treated with humanity and respect for the inherent dignity of the
human person and in a manner which takes into account the needs of persons of
his or her age”.
Australia
is one of over 180 states to have ratified the Convention. The Convention entered into force in
Australia in January 1990. Yet still,
children are mandatorily detained in immigration detention centres in Australia,
for long periods of time, and in unconscionably damaging conditions.
This
submission consists of four stand-alone, yet inter-related, chapters, that
outline and explore a number of the issues raised by the detention of
children. The first three chapters deal
with the effects upon children of detention. The fourth chapter deals with the
legal implications of the issues raised by the first three.[1]
The
first chapter explores issues of health; the second explores mental health
issues; and the third education issues.
None of these categories is separable from the others, and the reader
will observe the inevitable overlaps: for the overall development of children
is determined by the entirety of the physical, emotional and social conditions
in which they and their families live, and the extent to which these conditions
facilitate or impede their development.
A child does not grow up in separate pockets of reality. Everything in a
child’s life is interconnected. A child cannot receive an adequate education if
he or she is sick or fearful or isolated or depressed. A child cannot thrive
developmentally if adequate education is not provided, or if he or she has
nowhere to play, or nowhere safe and private to sleep. A child cannot enjoy full physical health if
he or she feels emotionally unsafe or is living in a harsh, oppressive world.
These
chapters tell a disturbing story. They tell a story of children whose
development is damaged, if not destroyed, by detention in prison-like
environments during crucial years of their lives. They tell a story that is
unique to Australia, for no other country mandatorily detains children as a
matter of course in the way that Australia does. The message that emerges from this submission is clear: the
detention of children is fundamentally and inherently inconsistent with their
physical and emotional needs; and those who detain children inflict great harm
upon them. After all, detention is the very antithesis of freedom, and healthy
development cannot occur without freedom. And however the detention of children
is couched or distorted or hidden, those who detain children in the way that
Australia does do so to their great shame.
It
must be noted that the task of researching and compiling this submission has
been significantly hampered by the culture of silence that clothes immigration
detention in Australia. Detainees and former detainees fear the consequences of
speaking out; that their ultimate outcomes may be adversely affected. Those who
work inside the detention centres are subject to confidentiality agreements.
And many of those who try to visit and assist detainees fear their access will
be terminated if they reveal publicly what they know. The system as a whole is
one of secrecy, and the mindset that underlies it is one of punishment. Values
like openness and compassion are entirely absent, and the reality of what
happens in immigration detention is kept as far from view as possible.
Health
The
health chapter acknowledges that the notion of children’s health must be
understood in its broadest sense. The term encompasses physical, emotional and
social health, all of which are inter-related. Against this definition, the
chapter finds that arbitrary and prolonged detention of children, as occurs in
Australia, is entirely incompatible with children’s health, development and
wellbeing, and constitutes a systematic abuse of their most basic rights.
The
chapter notes the importance of children’s relationships with their parents and
family members, their social environment, their social networks, their culture,
their religion, their language, and the spirit of the community in which they
live, to their overall health, development and wellbeing; and the way in which
detention robs them of the benefits of each of these.
The
chapter highlights the impact of the physical conditions in which children live
in detention. It notes the detrimental impact of razor wire, high steel
fencing, high brick walls, locked doors and metal detectors on the fears and
anxieties of children.
The
chapter notes the importance of nutrition and diet to children’s health, and
finds substantial evidence that children’s nutritional needs are not being met
in detention. It also identifies problems in relation to ante-natal care,
maternal health during pregnancy, and care at and after the time of delivery.
The
chapter highlights problems with respect to the delivery of health care in
detention centres. The standards that apply to those who operate Australian
detention centres are brief and vague in so far as they relate to children’s
health, raising serious questions of public accountability. Further, health
care is funded by the centres’ operators, creating obvious conflicts of
interest, as the withholding of medical services is a means of reducing
operating costs. There are difficulties in accessing health care in detention,
and issues relating to lack of privacy where care is provided. These
difficulties are even more pronounced in the case of unaccompanied children,
whose health is less likely to be adequately monitored, and whose health
problems are therefore less likely to be identified. In addition, difficulties
arise with respect to issues of consent to medical consultation and treatment
for such children.
The
chapter also gives consideration to the need for interventions to identify and
address developmental disabilities, and to the needs of children who have been
released into the community after being detained.
Mental
Health
The
mental health chapter commences with a context-setting description of the
developmental needs of children. For children and adolescents to grow into
healthy, stable and functioning adults, their mental health needs must be met
at all stages of development. As the
child passes through these stages, the way in which the various developmental
challenges are resolved will determine the identity of the adult that child
becomes. The successful development of
the capacity to trust, of physical and emotional autonomy, self-esteem,
conscience, the capacity to reason, sexual and social development, and overall
adult maturity, all depend on the physical and emotional conditions in which
the child lives.
The
chapter explains the effects of severe stress and trauma upon children
generally. It describes how trauma impacts on children of all ages. Anxiety, fear, feelings of helplessness, and
the symptoms of post-traumatic stress disorder, last long beyond the traumatic
experiences themselves. Children who
have lived through trauma suffer difficulties with grief, emptiness, apathy,
despair, anger, guilt, shame and depression; and their capacity to form relationships,
and their moral development, are impaired.
The
chapter then looks at children in detention. It notes that traumatic
consequences are influenced by pre-detention, detention and post-detention
factors. Children who find themselves in immigration detention in Australia
have already lived through profound dislocation, and separation from family,
community and homeland. Many have come from places in which they have also
experienced war, hardship, dispossession, and the death or disappearance of
close family and community members.
They could scarcely be more vulnerable.
The
chapter notes that children's experience of detention is of existing in a
prison-like environment. The existence
is monotonous and dehumanising.
Children encounter only a very limited range of stimulatory
experiences. They live in environments
where people are often referred to by number, where the areas for play are
limited, where ordinary pleasurable communal activities are limited, and where
community structure is lacking. Day to
day events and rituals are often controlled in petty and demeaning ways.
For
children who are in detention with their parents, the effects of detention upon
them are profoundly influenced by the effects upon their parents. Children's well-being is intimately
connected with the psychological states of their parents and other
care-givers. The distress,
powerlessness and helplessness that parents experience in detention, both
through their own direct experiences and their inability to provide for, or protect,
their children as they would hope, contribute to deep feelings of humiliation
and demoralisation. Ordinary family
life is utterly impossible, and what may once have been a stable family unit
disintegrates, with each of its members suffering the effects.
Unaccompanied
minors in detention are perhaps even more vulnerable than their accompanied
counterparts. The cumulative effect of
loss of parents and family, and existing in detention without parental support
and nurture, in a violent and harsh environment, will almost certainly result
in depression and long-term psychological damage.
The
story here is thus of children forever scarred by their experiences in
detention.
The
chapter also notes the importance of children's post-detention experiences, and
those of their families, to their long-term mental health. These include access to assistance to enable
recovery from their traumatic experiences both prior to and during detention,
and to social supports, and the circumstances in which decisions are to be made
as to the child's long-term immigration status.
Education
The
education chapter notes that, despite numerous reports recommending that
children in detention should be provided with comprehensive education that is
consistent, relevant and culturally appropriate, education in detention centres
is erratic, fails to consistently reach children, and is not designed to be
culturally or linguistically sensitive, nor sensitive to individual needs.
The
chapter notes the importance of cultural and linguistic support to children, as
recognised under both the Convention on the Rights of the Child, and the
International Covenant on Civil and Political Rights. Children who are unable
to express themselves fluently may be cut off from the security of family background
and the support of family members. A child’s loss of his or her first language,
culture and family values can have serious consequences, including: loss of
feelings of self worth; loss of motivation for learning; the breakdown of
family relationships, leading to loss of intimacy with family members; and loss
of socialisation within their family culture.
The
chapter notes the key principles underlying the provision of education in
Australia. The psychological and physical effects of detention make it
virtually impossible to provide education in accordance with these principles
as long as detention is continued.
The
chapter notes that many children in immigration detention have experienced a
significant degree of emotional trauma, stress, grief and loss. Educational
programs therefore need to be designed to address often overwhelming mental
health issues which impact on children’s ability and willingness to participate
in formal education processes.
The
chapter notes that parents are generally the primary agents for their
children’s education, and that it is doubtful that, given the conditions and
effects of detention, essential parental support can ever be activated.
The
chapter notes the various needs of children in early childhood programs (including
safe and supportive environments), and in primary and secondary education. It
lists the intrinsic barriers to education found in Australian immigration
detention centres. These include: isolation in remote areas and a harsh, hot,
overcrowded and intimidating physical environment; which includes razor-wire
fencing, security check points and room searches. The overall prison-like
nature of the environment - in which children and their parents are
dehumanized, assigned numbers, forced to comply with regular musters and
head-counts, and to listen to blaring address systems - is hardly conducive to
learning. The communal living conditions inhibit privacy and undermine parents’
authority and their critical role in education.
The
chapter finds that detention and the genuine meeting of children’s educational
needs are essentially incompatible. All of the conditions that promote a
child’s education are lacking or compromised in the detention centre
environment. The chapter goes on to suggest interim measures that should be
adopted as long as detention is continued. In the event, this serves to further
demonstrate the essential incompatibility between detention and genuine
education. In the case of early childhood education, for example, the basic
requirements of flexibility, recognition of children as part of a family unit,
the empowerment of families, activities based on sound educational principles
(such as providing children with a sense of familiarity and security), respect
for linguistic rights, and well-qualified staff, cannot be adequately met as
long as children are held in detention.
Legal
The final chapter explores the major legal implications of the issues highlighted in the earlier chapters. Not surprisingly, it concludes that Australia's policy of mandatorily detaining children, and the circumstances in which this is carried out in practice, appear to breach a number of international laws and standards. These include those dealing with deprivation of liberty; rights to a standard of living adequate to mental, physical, spiritual, moral and social development; privacy; health care, nutrition and hygiene; cruel, inhuman and degrading punishment; and the making of provision for children with disabilities.
Further,
this chapter concludes that state child welfare legislation, which, on its
face, ought to intervene to protect children in the very circumstances in which
children in immigration detention find themselves, is rarely invoked in
practice. The chapter notes that the
rights of both adult and juvenile prisoners and those suspected of criminal
offences are better protected through legislation than are those of children in
immigration detention. It notes that the day to day operation of immigration
detention centres is based in highly discretionary administrative powers
conferred on the Minister of Immigration and delegated to detention centre
operators. Further, the contractual relationships between the Commonwealth and
the private contractor that operates detention centres fails basic tests of transparency.
The
chapter questions whether there is any legislative basis for certain practices
which occur in detention, such as separation detention. It notes that the conduct of the
Commonwealth Government in relation to children in immigration detention
appears to be in breach of the common law duties of care it owes to these
children. The chapter then notes the
possibility that the detention of children may have reached a point where it
has, both through length of detention and conditions of detention, become
punitive, such that it is no longer authorised by the Commonwealth
Constitution.
Finally,
the chapter outlines practices in Sweden, New Zealand and Canada. In none of
these countries are asylum seekers mandatorily detained, and in each, special
legislative provision is made for the treatment of children. The conclusion
which emerges from this comparative analysis is that the system that operates
in Australia is both arbitrary and unnecessary.
Thus,
the story concludes with the mental health, health and educational concerns
about the detention of children finding strong legal counterparts. The shame of current practice echoes in
legal unacceptability.
The
authors of this submission commenced their work in the expectation that they
would research the issues, examine and document the evidence, and make
recommendations about what should be done in the future. But the completion of
the first two stages of that task has made the third implausible. There are no
sensible recommendations that can be made other than the single, fundamental
one: that children must not be held in immigration detention, save for the time
strictly necessary for the conduct of health and identity checks.
Page
by page, the submission demonstrates why and how the detention of children is
inherently incompatible with their health and developmental needs. Page by
page, the urgency of acting can be felt. For every single day that the present
situation is allowed to continue, the damage deepens.
To
those who read this submission, we ask one thing. There is a risk that the
suffering and the unacceptability conveyed by this submission might dull the
senses of the reader. It would be difficult to read this submission without
such a self-protective dulling. But this is what we ask of you, the reader.
Every time you turn a new page, or start a new section, please remind yourself,
as best you are able, of this: These are
children we are talking about.
[1] At the conclusion of the submission there
is an Appendix which contains reports of interviews conducted with individuals
who have experience of immigration detention in Australia.