Commission Website: National Inquiry into Children in Immigration Detention
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Submission to the National
Inquiry into Children in Immigration Detention from
Catholic Welfare Australia
Welfare Australia
Principles
Reference to Human Rights and the Rights of Children
and Institutional Care
Family Unit Is Central To The Development of Children
Measures and Safeguards to Protect Child Asylum Seekers
Protection Visas And Support For Children Upon Their Release From Detention
Welfare Australia is a Commission of the Australian Catholic Bishops'
Conference and is the peak body that represents the social welfare apostolate
of the Catholic Church in Australia at a national level. It is a national
federation of Catholic social service organisations that operate in local
communities. Membership of Catholic Welfare Australia is drawn from the
Catholic social welfare organisations operating under the authority of
a diocesan bishop or a religious order and from Catholic lay associations.
Concern for the child,
even before birth, from the very first moment of conception and then throughout
the years of infancy and youth, is the primary and fundamental test of
the relationship of one human being to another. (Familiaris consortio
n26)
The above statement,
made by Pope John Paul II in his address to the General Assembly of the
United Nations on 2 October 1979 and repeated in the Apostolic Exhortation:
Familiaris consortio, provides the context and the rationale for
the following submission from Catholic Welfare Australia. During his address
to the United Nations in 1979 Pope John Paul II also emphasised the importance
of human rights as the basis for ensuring a better future for all the
children of the world. [1]
It is the view of
Catholic Welfare Australia that the present practice of placing children
in immigration detention centres fails to demonstrate due regard for their
human dignity. It is also to disregard the due care that must be taken
of those who are more vulnerable or dependent on others for care and protection.
There are a range
of human rights instruments that can be referred to as a means of challenging
the present use of mandatory detention of children but Catholic Welfare
Australia would like to emphasise that the obligation for any society
to care for children is primarily a moral one.
The Member Organisations
of Catholic Welfare Australia have been active in child welfare matters
for over 160 years. Each organisation has always taken a keen professional
interest in establishing models of care that facilitate the healthy growth
and development of children in all aspects of their development. Therefore,
Catholic Welfare Australia welcomes the opportunity to make a submission
to this National Inquiry Into Children in Immigration Detention.
In the light of its
particular commitment to child welfare matters, Catholic Welfare Australia
will focus in this brief submission on the following Terms of Reference:
4. The impact of
detention on the well-being and healthy development of children, including
their long-term development.
6. The additional
measures and safeguards which may be required to protect the human rights
and best interests of child asylum seekers and refugees residing in
the community after a period of detention.
Principles
Central to the mission
and ethos of Catholic Welfare Australia and its Member Organisations is
a concern to ensure that all members of society are treated in accord
with their human dignity. In this regard, primacy is given to ensuring
that the most vulnerable are afforded the highest degree of protection.
These values are
clearly enunciated in a range of church documents and result in a set
of guiding principles that inform the analysis of public policy. [2]
These can be listed as:
- the social nature
of human beings, created in the image of a loving God;
- the Gospel imperative
to love thy neighbour, especially those in need;
- the goal of social
arrangements is to enhance the human dignity of individuals;
- each person has
rights to share in and duties to contribute to the common good;
- each person must
have the necessary resources to fulfil their social responsibilities;
- the state must
act, within the limits of the principle of subsidiary, to enure that
all people have these resources i.e. adequate food, clothing, shelter,
education; and,
- justice must
be enacted in a spirit of love to create a society marked by genuine
solidarity.
In March 2002, the
Australian Catholic Bishops' Conference issued a statement on Refugees
and Asylum Seekers that also underpins the position adopted by Catholic
Welfare Australia in regard to the care that should be provided to children
who are seeking asylum. [3] The Bishops have stated that:
The Church's
pastoral care of asylum seekers convinces us that detention, beyond
the minimum time necessary for carrying out security and health checks,
identity checks, and the lodgement of applications for Protection Visas,
is deeply destructive of human dignity. This is particularly true of
children. After a minimum time these people should be released into
the community and be obliged to contact the immigration authorities
on a regular basis.
As a result of its
long time involvement in child welfare matters, Catholic Welfare Australia
is impelled to speak on behalf of the children presently being held in
immigration detention. The mere fact of their being in detention makes
it necessary for others to speak on their behalf. Those children in detention
centres who are unaccompanied minors have a special need for others to
intervene on their behalf.
Due to their dependent
status, children are often vulnerable and, in times of crisis, are in
need of special protection. This is especially the case for children who
have endured the challenges associated with the dislocation from their
country of origin. This vulnerability is even more evident when children
are subject to the traumas associated with seeking asylum in another country.
Catholic Welfare
Australia is aware of the complex issues associated with any migration
program and wishes to limit its comments on this submission primarily
to certain child welfare matters. Nevertheless, the principles of Catholic
Social Teaching that guide Catholic Welfare Australia also indicate that,
whether the focus is on children or adults, all governments are required
to respond compassionately to those seeking asylum. Any system of immigration
control that is dehumanising and degrading cannot be countenanced if the
dignity of all people is to be upheld.
Reference to Human Rights and the Rights of Children
In this brief submission,
Catholic Welfare Australia does not attempt to canvas all of the human
rights issues associated with the international refugee crisis. Nevertheless,
it must be stated at the outset that Catholic Welfare Australia holds
the view that asylum seekers have the right to seek the protection of
another country and that the policy of mandatory detention of asylum seekers
is in fact a violation of that right.
Rights are conferred
on individuals and these rights are not intended to accommodate public
policy. If a right is declared to be a right, especially if a particular
country has assented to uphold that right, then that right should not
be curtailed because it does not fit the nature of public policy at any
given time. If it is accepted that people are owed certain human rights,
because of their humanity, these rights should not be relativised according
to the nature of certain Government policies.
For Governments to
give proportional credence to a right is to misuse the term and amounts
to a lack of national integrity. Therefore, due to its ratification of
the United Nations Convention on the Rights of the Child, it is
the view of Catholic Welfare Australia that this country has a duty to
honour, in practice, its ratification of the Convention on the Rights
of the Child.
This submission is
also based on the premise that a civil society has primarily a moral obligation
to ensure that the necessary requirements to live a dignified life are
upheld. The immigration status of an individual has never been the basis
for determining that these moral obligations should be fulfilled. The
use of rights as 'trumps' is secondary to the moral obligation to care
for all members of society. Likewise, any efforts to minimise the obligations
of any human rights treaty, due to a narrow interpretation of the use
of such treaties domestically, diminishes the status of international
human rights law globally.
The policy of mandatory
detention results in the perception that there is something intrinsically
criminal about seeking asylum. People who arrive in Australia without
a visa are presently being confined in conditions that are punitive. The
location and the physical design of these detention centres reinforces
the notion that seeking asylum is a punishable offence. To pursue such
a policy of deterrence is highly questionable. To keep children incarcerated
in such circumstances is totally unacceptable.
and Institutional Care
Various investigations
into the care of children in this country have indicated that many forms
of institutional care were not conducive to the normal and healthy development
of children. [4] As far back as the 1940s, the Catholic
Welfare Bureau in Sydney was actively committed to reducing the number
of children who were being cared for in institutions.
Although theories
about how best to provide for children in need of care have altered from
time to time, it is now widely considered a matter of 'best practice'
that children should only be placed in institutional settings as a last
resort. This means that where it is not possible for a child's parents
or family to care for the child, a living situation is found which approximates
as normal a family environment as possible.
Children 'in care'
should be able to engage in routine educational and social opportunities
in the hope that the separation from their family of origin will not be
unduly destructive. It is also considered a matter of 'best practice'
that any child who may need to be placed 'in care' should be provided
with all the basic educational and social supports to enable them to develop
to their full potential. Ideally any child placed in substitute care should
be placed in a family environment. [5]
Therefore, the principle
of ensuring that the 'best interests of the child' are held paramount
is presently actualised in Australia's domestic policy by avoiding any
unnecessary separation of children from their parents. Even if it is necessary
to place children 'in care', the present reality in this country is that
no one would countenance the use of detention facilities that approximate
prison conditions.
One of the Member
Organisations of Catholic Welfare Australia has received verbal reports,
as a result of the voluntary work undertaken by its staff, which clearly
indicates that the atmosphere in at least one of the detention centres
is worse than gaol itself. [6] The reasons for this statement
are as follows. When people are sent to prison they usually have some
sense of the length of time they will be incarcerated for. There is no
such certainty in immigration detention. Children and adults held in detention
never know when they will be released or in some cases deported. Even
the most remote gaol in South Australia is at least attached to a large
town (i.e. Port Augusta) whereas the immigration detention centre at Woomera
is totally isolated. Besides the psychological trauma of being isolated
in such a harsh climate, this forced isolation also mitigates against
contact with the wider community.
Prisoners have the
right to legal assistance and access to lawyers is usually well facilitated
in gaols in Australia. Presently, at Woomera, lawyers are being asked
to sign a four page document which outlines the conditions of entry to
the immigration detention centre. The detention centre authorities can
determine what constitutes a breach of the above agreement. In gaol, most
prisoners have the opportunity to work, study and to retain some personal
items but this is not the case for those in immigration detention. In
gaol, some provision is made for a regular system of visitation. There
are many factors associated with the location of the immigration detention
centre and the system operating at Woomera that prevents some people from
visiting family members who may still be in detention.
Catholic Welfare
Australia is most concerned about the fact that children in immigration
detention centres are being housed in the same compound as adults.[7]
Therefore, it is not just the actual detention of children that may harm
their development but it is also their confinement within harsh and potentially
soul-destroying environments that needs to be addressed.
Given the professional
paradigm of limiting 'out of home' care, it is difficult to see how there
could be any justification for keeping children locked up in detention
centres. If a welfare organisation in Australia were to provide 'out of
home care' equivalent to that of the detention centres, then it is highly
probably that such an organisation would have to answer claims that it
failed to provide a proper 'standard of care'.
The negative consequences
of long-term institutional care and, more precisely, institutional care
that resembles prison has been well documented in the social sciences.
What is now emerging from the implementation of a detention/exclusion
policy in Australia is that children who seek asylum or children who are
with their parents who seek asylum are being treated in a dehumanising
fashion. The long-term consequences of mandatory detention for the children
involved cannot be measured empirically at this stage. It is possible
to postulate that even an emotionally resilient child may not have an
easy transition into adulthood as a consequence of their being incarcerated
during their formative years.
Family Unit Is Central To The Development Of Children
The Catholic Church
has traditionally seen the rights of children being safeguarded by the
protection offered by the state to the family as the foundational unity
within society. [8]
In this context,
Catholic Welfare Australia is concerned about the situation where a child
separated from a parent due to either party being placed in immigration
detention. It is acknowledged that some women and children are now being
housed outside the detention facility in Woomera. Whilst this has a lot
of merit, in that the children are not 'in detention', it is still less
than ideal in regards to the right of children to have access to both
parents. For the same reason, it is also a source of great concern that
some children who are being held in detention are separated from a parent
who may be residing in the community.
From the perspective
of Catholic Welfare Australia, any immigration policy that works against
the maintenance of the family unit cannot be seen as being in the 'best
interests' of the child.
The collective and
accrued experience of the Member Organisations of Catholic Welfare Australia
is that the emotional, educational, spiritual, and physical well-being
of children is contingent on the sense of security that they feel in their
family. To expose children in detention to such abnormal family dynamics
for long periods of time is to act in contravention of all the current
professional understandings in child development.
Catholic welfare
organisations in Australia have always placed a high priority on supporting
families. Consequently many of the Member Organisations of Catholic Welfare
Australia are involved in Commonwealth Government or State Government
sponsored programs. These programs have been designed to minimise the
breakdown of family life and to maximise the options for those who experience
irreconcilable differences in their relationships.
At every point in
these programs, where there are children involved, the 'best interests
of the child' are to be held paramount. It is totally appropriate that
the family law system in this country should ensure that all those who
provide any service within the system should uphold the 'best interest'
principle.
It is evident to
many of the Member Organisations of Catholic Welfare Australia, who work
in the area of child welfare and family law, that there is something fundamentally
flawed in a policy that results in some children not being offered the
protection of 'the best interest' principle. The perception is that children
in immigration detention are not regarded as needing the same degree of
care. Whereas, any child in detention, or any child who is separated from
a parent because of the policy of mandatory detention, would seem to have
a greater claim on the Government's protection.
Those responsible
for immigration policy need to address this disparity if Australia is
to have a collective sense of integrity. This can only be achieved by
ensuring that all children who are residing in Australia are to be offered
the same standard of care regardless of geographical location. The capacity
of the Convention on the Rights of the Child to effect any real
change in childrens' rights becomes highly tentative if a child's immigration
status becomes the primary condition for an actualisation of his or her
rights.
Measures and Safeguards to Protect Child Asylum Seekers
Catholic Welfare
Australia would also like to comment more specifically on the sixth Term
of Reference for this Inquiry as copied below:
6. The additional
measures and safeguards which may be required to protect the human rights
and best interests of child asylum seekers and refugees residing in
the community after a period of detention.
Since the 1970s,
many Church groups in Australia have provided a high degree of support
for those who arrived seeking protection as refugees. The immigration
policy at that time, especially in regard to the Vietnamese 'boat people',
meant that people seeking asylum were only held in detention for a short
time.
Ideally, all Governments
should be required to assist with the care and support of those seeking
asylum or those who are residing in the community as they await a determination
of their immigration status. In the absence of a more generous response
from any level of Government in Australia, Catholic Welfare Australia
is of the opinion that there is enough infra-structural support within
the Catholic welfare sector to provide some assistance in this regard.
This support would
take the form of broad-based counselling to assist people to determine
their needs and to refer them to the appropriate pastoral care mechanisms
within the wider Catholic or civic community. As in the past, many of
these support services would be provided through the range of Catholic
welfare networks that operate throughout Australia.
Protection Visas And Support For Children Upon Their Release From Detention
The issue of Temporary
Protection Visas is not directly listed in the Terms of Reference for
this Inquiry. However, Catholic Welfare Australia believes that a critique
of this type of visa falls within the ambit of the sixth Term of Reference.
Given the 'best practice' paradigm, which has been referred to in this
submission, the use of Temporary Protection Visas must be addressed.
As they are only
initially valid for three years, these Temporary Protection Visas produce
a great deal of insecurity. It is difficult to see how any child could
thrive educationally, socially, and emotionally with the knowledge that
after a relatively short time the grant of protection will be reviewed.
There is the ever-present possibility that the whole family may once again
be on the move. In a child's life, this may mean that schooling and social
networks are always tinged by a sense that that there is no permanency.
It is possible to
construct a scenario where a child who has been through all the traumas
associated with seeking asylum in Australia may just be establishing a
normal routine when the family is forced to move again. The long-term
consequences of such disruptions are not easily determined but it is difficult
to justify in regards to the 'best interest' principle. From the counselling
perspective, the possibility of assisting a child to regain some normal
patterns of development may be decreased by the insecurity associated
with the use of Temporary Protection Visas.
Many refugees who
come to Australia expend a lot of energy in learning English. It may be
particularly disruptive for a child who has begun mastering English language
skills to have this process interrupted.
The mere fact that
a child is aware that there is no real sense of permanency may negatively
impact on his or her total development. Catholic Welfare Australia also
suggests that the issue of the use of Temporary Protection Visas should
be challenged in the context of this National Inquiry Into Children in
Immigration Detention.
Catholic Welfare
Australia is appreciative of the opportunity to make a submission to this
National Inquiry into Children in Detention. As stated at the outset,
the main concern of Catholic Welfare Australia is in regard to the general
question of child welfare. Given this perspective, it is difficult to
find any basis for the maintenance of the mandatory detention of children.
The rights of all
children are being compromised by the placement of some children in immigration
detention. It is acknowledged that there are many complex issues associated
with any form of child welfare. It is beyond question that the placement
of children in immigration detention centres, especially for lengthy periods
of time, cannot be for the benefit of the children concerned. Neither
the children involved nor the wider community is served by the use of
mandatory detention.
The possible negative
consequences of being placed in detention are also compounded by the actual
atmosphere and environment of the detention centre. The recent media reports,
which depict serious unrest in some of the Australian immigration detention
centres, are another reason why children and their families should be
settled in the community as they await a determination of their status.
The mandatory detention
of those who arrive in Australia without valid documents is primarily
a punitive policy. Tragically this policy is exacting a toll on those
who are least able to assert their own rights.
Catholic Welfare
Australia is willing to participate in any discussions or meetings which
could assist in a process of designing a better option for all those involved.
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ENDNOTES
John Paul II, 1981, 'Familiaris consortio' Apostolic Exhortation on The
Role of the Christian Family in the Modern World. n26
2. Australian Catholic Social Welfare Commission, 1996,
Towards a Practical Theology of Welfare: Guiding Principles for Catholic
Social Service Agencies. Vol. 5 No.1 p 6.
3. Australian Catholic Bishops' Conference, 26 March 2002,
Refugees and Asylum Seekers
4. See The Report of the Commission of Inquiry into Abuse
of Children in Queensland Institutions. (The Forde Inquiry)
5. Australian Catholic Social Welfare Commission, 1997,
The Heart Of Our Nation: Towards a National Commitment to Caring for Children
and Young People. Discussion Paper No. 12 p 17. Canberra.
6. As reported by Mr Dale West the Director of Centacare
Adelaide.
8. Gudorf, C., 1994, cited in New Dictionary of Catholic
Social Thought. Dwyer, JA., (Ed.) see page 144.
Last
Updated 9 January 2003.
