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Submission to the National
Inquiry into Children in Immigration Detention from
People with Disabilities
(NSW) Inc
February 2002
For further information
contact:
Damian Griffis
Senior Policy Officer - Systemic Advocacy
People with Disabilities (NSW) Inc
PO Box 666
STRAWBERRY HILLS NSW 2012
Telephone: (02) 9319 6622
Facsimile: (02) 9318 1372
Email: damiang@pwd.org.au
Contents
About People with Disabilities (NSW) Inc.
Executive Summary
Conclusions and Recommendations
Terms of Reference
Introduction and General Observations
Immigration Detention Standards
Facilities
6.8 Solitary confinement/Punishment/Use of Force
Convention on the Rights of the Child
Convention Relating to the Status of Refugees
8.1 Article 12
8.2.1 Article 16 (Point 1)
8.2.2 Article 16 (Point 2)
8.3 Article 22
8.4 Article 31
8.5 Article 32
8.6 Article 34
Declaration on the Rights of the Disabled
9.1 Article 6
9.2 Article 8
9.3 Article 11
Disability Discrimination Act
Commonwealth Disability Strategy
References
1.
About People with Disabilities (NSW) Inc.
Our Identity
People with Disabilities
(NSW) Inc (PWD) is a state peak disability rights and advocacy organisation.
Its primary membership is made up of people with disability and organisations
primarily constituted by people with disability. PWD also has a large
associate membership of other individuals and organisations committed
to the disability rights movement. PWD was founded in 1981, the International
Year of Disabled Persons, to provide people with disability with a voice
of our own. PWD has a cross-disability focus - we represent the interests
of people with all kinds of disability. PWD is a non-profit, non-government
organisation.
Our vision
Our vision is of
a socially just, accessible and inclusive community, in which the human
rights, citizenship, contribution and potential of people with disability
are respected and celebrated. This vision underpins everything that we
do.
Our mission
Our mission is to
be the leading NSW disability peak organisation of and for all people
with disability advocating in highly effective ways for the realisation
of our vision of a socially just, accessible and inclusive community.
Our Core Values
We believe that people
with disability, irrespective of the nature, origin, and degree of our
disability:
- Are entitled
to a decent standard of living, an adequate income, and to lead active
and satisfying lives.
- Are people first,
with human, legal, social and consumer rights that must be recognised
and respected?
- Are entitled
to the full enjoyment of our citizenship rights and responsibilities.
- Are entitled to
social support and adjustments as a right, and not as the result of
pity, charity, or the exercise of social control.
- Contribute substantially
to the intellectual, cultural, economic and social diversity and wellbeing
of our community.
- Possess many skills
and abilities, and have enormous potential for life-long growth and
development.
- Are entitled
to live in, and be a part of, the diversity of the community.
- Have the rights
to define the policies and programs that affect our lives.
- Ought to be empowered
to exercise our rights and responsibilities, without fear of retribution.
Our Principles
In realising our
vision, mission and core values, we are guided by the following principles:
- We are passionate,
innovative and fearless in the promotion and defence of the rights and
interests of people with disability.
- We are accessible
and responsive to our community, and inclusive of its diversity.
- We encourage,
empower and support the civic participation of people with disability.
- We are collaborative
and supportive in our relationships within the disability rights movement
as a whole.
- We are accountable
for our activities to our members, to people with disability generally,
and to the public.
- We always act
with honesty and integrity.
- We are resourceful
and efficient in the marshalling and management of the resources needed
to undertake our work.
Our Activities
PWD provides or undertakes
the following activities:
- Rights related
information, advice and referral services for people with disability
and their associates.
- Short-term individual
and group advocacy assistance to people with disability and their associates.
- Advocacy for
reform around systemic issues that adversely affect people with disability
and their associates.
- Representation
of the sector of interest constituted by people with disability and
their associates to government, industry, and the non-government sector.
- Coordination of
the sector of interest constituted by people with disability and their
associates.
- Disability rights
related research and development around issues of concern to people
with disability and their associates.
- Disability rights
related training and education for people with disability and their
associates, service providers, government and the public.
2.
Executive Summary
PWD as the peak disability
advocacy organisation in New South Wales has lodged this submission to
highlight the concerns this organisation has as to the treatment of children
with disability in immigration detention centres. Throughout the researching
for this submission PWD has noted the increasingly political overtone
to much discussion about immigration detention centres. PWD hopes to highlight
through this submission the need to remove the political and often emotional
arguments and instead focus on the situation with children with disability
as individuals.
This submission will
highlight a number of international human rights treaties and conventions
that the Commonwealth is a signatory. These include the Convention on
the Rights of the Child, the Convention on the Status of Refugees and
the Declaration on the Rights of the Disabled. Furthermore this submission
will address Commonwealth anti-discrimination legislation and the Commonwealth
Disability Strategy.
Furthermore, this
submission has closely analysed the implementation of the Department of
Immigration and Multicultural Affairs' (DIMA) own Immigration Detention
Standards (IDS). As a general observation the IDS pay scant regard to
the needs of people with disability and PWD believes our detailed analysis
of the standards highlights this fact.
PWD has observed
during the formulation of this submission that one of the fundamental
problems likely to face this inquiry is the lack of concrete evidence
relating to the mistreatment of children with disability. This is due
to several factors including confidentiality agreements signed by staff
working at immigration detention centres (IDC's). Indeed PWD has spoken
with former staff of IDC's, whom have raised a number of very serious
concerns and incidences that suggest that a 'correctional' mentality is
prominent, which is naturally to the detriment in some cases of vulnerable
children with disability. The contacts that PWD has made in this regard
have not been able to disclose their personal details because of the confidentiality
agreements and because they fear reprisals for providing such information
publicly. PWD is gravely concerned about this restrictive policy of the
Department of Immigration and Multicultural affairs (DIMA) in its administration
of IDC's. This, we are concerned will be a serious inhibitor to the inquiry
as it has been in the formulation of this submission.
PWD supports the
Human Rights and Equal Opportunities Commissions (HREOC), comments in
relation to the functioning of IDC's and we also strongly support HREOC's
assertion that there needs to be amendments to the Disability Discrimination
Act (1992) to remove the 'Migration' exemption in Section 52.
PWD offers this submission
to emphasise the importance of international conventions as a fundamental
compliance mechanism in the ongoing struggle for human rights for people
with disability. The Commonwealth government has not only an obligation
but also a central role to play in the equalisation of opportunity for
people with disability in our society. The labelling of persons as 'illegals'
or 'aliens' not only creates an environment of difference between peoples
in Australia but also impacts on the well being of all children in immigration
detention environments who are often powerless to self advocate. It is
essential that the same rules of compliance that we expect and some times
demand from other nations around the world be upheld by our Commonwealth
government of the day. Without this accountability the rights of children
with disability cannot be assured. This we believe presents another example
of the need for Australia to have a bill of rights.
3.
Conclusions and Recommendations
As a result of the
analysis undertaken by PWD in the composition of this submission the following
recommendations have been drawn.
The Department of
Immigration and Multicultural Affairs (DIMA) needs to undertake an overhaul
of its Immigration Detention Standards (IDS). The new Standards need to
include several new directives including:
The assurance that facilities be adapted to enable people with disability,
accessibility. (Recommendation 1.0)
- That the dignity
of people with disability be assured by treating individuals with respect.
(1.1)
- That recreational
facilities be accessible to children with disability and that children
with disability are free to pursue recreational activities of their
choosing. (1.2)
- That education
be provided to children with disability in accessible formats. (1.3)
- That the safety
and security of children with disability be assured especially in an
environment of high tension and violence. And that children with disability
be free from abuse and exploitation. (1.4)
- That all staff
working within the IDS environment be trained in understanding the needs
of children with disability across all disability types. Furthermore
that staff be trained in understanding the needs of children with mental
illness and that the environment in which they are detained may infact
manifest behaviours as opposed to treating children as 'troublemakers'.
(1.5)
- That all forms
of punishment including solitary confinement, the use of force, the
use of chemical and/or physical restrains for example be forbidden against
children. (1.6)
- That the medical
and care needs of all children in detention be monitored on an ongoing
basis and that an ongoing assessment as to the state of mental health
of all children in detention is undertaken. (1.7)
- That all children
in detention have access to external complaint mechanisms. To ensure
such accessibility the allocation of advocates is essential. (1.8)
- That an independent
audit of resources be undertaken to assess how many social work and
mental health staff are needed in each IDC to enable more effective
individual management of detainee needs. (1.9)
PWD concludes that
the DIMA in it's administration of IDC's is in violation of the Convention
on the Rights of the Child, the Convention on the Status of Refugees and
the Declaration on the Rights of the Disabled.
PWD affirms that
Commonwealth compliance to international conventions will go some way
to improving the circumstance for people in IDC's. The current legal structure
does not support compliance with international conventions. As it currently
stands international conventions are only scheduled to the Human Rights
and Equal Opportunity Commission Act (1986) and are not enforceable
in the Commonwealth jurisdiction. This is a fundamental problem in relation
to human rights in Australia. Currently the Commonwealth is unable to
be held accountable in relation to the administration on IDC's. Indeed
accountability is self administered by the DIMA. The same DIMA whom requires
of its staff working in IDC's to sign confidentiality agreements. (Recommendation
2.0)
PWD strongly recommends
the following amendments to Commonwealth legislation:
- That international
conventions scheduled to the Human Rights and Equal Opportunity Commission
Act (1986) (the HREOCA) be enforceable by enabling complainants
to seek conciliation or if unsuccessful remedy in the Federal Court
as is afforded to other Commonwealth anti-discrimination legislation.
(Recommendation 3.1)
- That the Disability
Discrimination Act
(1992) (the DDA) Section 52 exemption on 'Migration'be removed from the legislation. (3.2)
- That Australia
creates a bill of rights that utilises the principles of various international
conventions and ensures genuine access to all persons within Australia,
including 'non-citizens' access to the courts. (3.3)
In conclusion, PWD
has observed the very serious violations of international conventions
by the Commonwealth, and a basic reluctance to allow assessment of its
operations. It is in this environment that children with disability are
being detained in IDC's. PWD as a peak disability advocacy organisation
has observed the very serious lack of access to IDC for advocates and
other professionals which seriously undermines the welfare of children
with disability whose ability to access complaint mechanisms is seriously
diminished.
4.
National Inquiry into Children in Immigration Detention
Terms of Reference
This submission will
focus upon the following Terms of Reference from the perspective of children
with disability in immigration detention. Please note the highlighted
part of the terms of reference are relevant to the content of this submission.
1. The provisions
made by Australia to implement its international human rights obligations
regarding child asylum seekers, including unaccompanied minors.
3. The adequacy and
effectiveness of the policies, agreements, laws, rules and practices governing
children in immigration detention or child asylum seekers and refugees
residing in the community after a period of detention, with particular
reference to:
- The conditions
under which children are detained;
- Health, including
mental health, development and disability;
- Education;
- Culture;
- Guardianship issues;
and
- Security practices
in detention
4. The impact of
detention on the well being and healthy development of children, including
their long-term development.
5. The additional
measure and safeguards which may be required in detention facilities to
protect the human rights and best interests of all detained children.
5.
Comments and General Observations
For the purposes
of this submission, a child is 'every human being below the age of eighteen
years' as specified in Article 1 of the United Nations Convention on the
Rights of the Child.[1]
For the purposes
of this submission a child with a disability is defined as any human being
under the age of eighteen years who has
(a) total or
partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness;
or
(d) the presence in the body of organisms capable of causing disease
or illness; or
(e) the malfunction, malformation or disfigurement of a part of the
person's body; or
(f) a disorder or malfunction that results in the person learning differently
from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes,
perception of reality, emotions or judgment or that results in disturbed
behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
As defined in the
Disability Discrimination Act (1992) (the DDA).
During the formulation
of this submission PWD has made a number of observations that we believe
are important in understanding the nature of the problem facing detainees
in immigration detention centres in Australia. Observations that are also
important in relation to immigration in general. Whilst our submission
relates specifically to the situation for children with disability in
immigration detention, we also hold a general concern for the welfare
of all detainees currently in immigration detention centres throughout
Australia.
PWD has observed
the difficulty in finding solid evidence in relation to the treatment
of children with disability in immigration detention. One of the fundamental
problems we faced in writing this submission is the difficulty in accessing
information, even at the most basic statistical level. This only adds
to our concern for the welfare of not only child detainees with disability
but also all detainees currently in immigration detention centres. This
lack of transparency suggests to PWD that there is a significant amount
of covert activity being undertaken within the confines of immigration
detention centres and also a serious lack of accountability present within
the system.
Much of the evidence
relating to mistreatment or issues surrounding the provisions of facilities
for children with disability is anecdotal. Where PWD in its research for
this submission has obtained first hand evidence of conditions in IDC's,
we have not been able to identify the informant because of the informants
confidentiality agreements and the informants fear of reprisals. PWD is
both morally and ethically obligated to protect the identity of such individuals.
Furthermore there
is limited scope for an advocacy organisation like ours to be able to
physically visit immigration detention centres, particularly in remote
parts of the country. This is a further fundamental problem that inhibits
the ability of advocacy organisations like ours to provide even the most
basic advocacy supports.
PWD has also observed
the desperately inadequate access detainees have to appropriate complaint
mechanisms, particularly in relation to the enforcement of complaints
investigated under the Human Rights and Equal Opportunity Commission
Act (1986).
PWD comments, with
growing alarm the politicisation of an issue that fundamentally involves
the lives of thousands of our fellow human beings. The use of terms such
as 'illegals' and 'aliens' and 'queue jumpers' PWD believes has enabled
the major parties to conduct a campaign of misinformation.
PWD further comments
that it has detected racial overtones to a number of public comments made
by prominent public figures. Whilst it is difficult to assert that these
comments are explicitly linked to race, some prominent people have presented
the public with a debate on immigration that is severely biased in his
presentation of the facts.
During the writing
of this submission it has become evident that the media plays a central
role in information dissemination for the public. As the primary source
of information we at PWD believe the media has a moral and ethical responsibility
to report issues pertaining to immigration detention. It is with interest
that we observe the plethora of surveys being conducted by media outlets
asking the public their opinions of immigration detention. This we believe
is a unique position for the media because they appear to be reacting
to public opinion as opposed to providing the appropriate level of reportage
on the predicament for detainees in detention. This is a serious double
standard for a media that is so often keen to formulate public opinion,
yet in this instance it appears to be impotent in its reportage and suddenly
devoid of opinion. Of course this cannot be applied to all media outlets
and forums however it appears to be evident particularly among the 'popular'
commercial media.
Furthermore PWD is
concerned about the very limited and highly secretive nature of access
to immigration detention centres. It is clear that only through greater
access to advocates, greater access to legal representation and greater
access to the media and a more transparent administration of immigration
detention centres can the plight of detainees be properly understood.
Finally we at PWD
believe, if there is to be a 'debate' on immigration in this country then
we must ensure that asylum seekers and immigration detainees have their
side of the story presented. And that we have a 'debate' that includes
an informed public as opposed to a directive from the major parties that
defines the 'debate' and only includes participants of a like mind.
6. Immigration
Detention Standards
The Department of
Immigration and Multicultural Affairs (DIMA) has a set of standards that
relate to the 'quality of care and quality of life in immigration detention
facilities.[2] The Department states that 'these standards
must be met in all circumstances except where it is demonstrated that
the security and good order of the detention facility would otherwise
be compromised. [3]
The application of
the Immigration Detention Standards (IDS) cannot be categorically ascertained
due to several factors. Firstly the high level of secrecy surrounding
IDC's. Secondly because of confidentiality agreements signed by IDC staff.
Thirdly the inability of a peak disability organisation like PWD to access
IDC's. The level of secrecy and serious lack of discernible information
seriously compromises not only the lives of all detainees within IDC's
but brings into question very seriously the modus operandi of IDC's. It
is in this highly restrictive environment that PWD offers its analysis
of the DIMA Immigration Detention Standards.
Facilities
PWD is seriously
concerned about the provision of facilities for children with disability
in immigration detention. Some children with disability may require other
facilities than that provided to children who do not have a disability.
In some instances these facilities will need to be specific to their type
of disability. PWD is concerned that Immigration Detention Centres (IDC's)
apply a uniform approach to the building of facilities and that the needs
of detainees with disability are simply not considered.
As the photographs
taken by staff from the Human Rights and Equal Opportunity Commission
show the facilities at Woomera Immigration Detention Centre do not consider
the needs of children with disability. This is particularly evident when
considering the needs of children who require the use of a wheelchair
for example. [4]
Accessibility
As the photographs
posted on the HREOC website taken at Woomera Immigration Detention Centre
show accessibility to the buildings would be impossible for children with
mobility difficulties. [5] The buildings are demountable
with stairs leading to a door, which would make it impossible for a child
in a wheelchair for example to negotiate independently. Furthermore PWD
notes that in some detention centres particularly those in remote areas
that the ground surface is very dusty and uneven. This would also contribute
significantly to the lack of accessibility to children with disability.
Privacy and Dignity
PWD observes that
DIMA's own immigration detention standards do not take provision for the
needs of children who may require support with personal care because of
the nature of their disability. PWD observes that there is no provision
for ensuring that children in such situations be supported by staff who
are trained in providing such support to children with disability.
PWD observes that
the detention environment by definition deprives individuals of their
dignity. PWD asserts that children with disability are acutely aware of
their lack of dignity in such an environment. This is manifested by the
lack of facilities catering for their needs and the inaccessibility of
some buildings. PWD observes that the combination of persons from many
different cultural backgrounds may also contribute because of different
cultural understandings of disability. PWD is gravely concerned for the
general well being of children with disability; children who are already
devalued by society at large, and that are subjected to an environment
that denies them the opportunity to grow and develop as individuals.
Recreation
PWD is concerned
about the accessibility of recreational activities for children with disability.
PWD asserts that all children with disability be able to access recreational
activities of their choice. Furthermore, PWD is concerned about the nature
of recreational activities. PWD is concerned that much of the talk around
detainee access to recreation has centred on sporting activities. For
example it is often remarked by DIMA officials that detainees have access
to sporting facilities such as basketball rings and soccer balls etc.
This however may not be appropriate for some children with disability.
An essential part
of recreation is choice. PWD observes that the ability of children with
disability to choose recreational activities is seriously diminished.
Children with disability must be able to access other recreational activities
such as arts and crafts for example.
Recreational,
cultural activity and stimulation is particularly important for children
in the detention setting.[6]
Furthermore PWD is
concerned about the relationships between children with disability and
other children in detention. PWD is concerned that the social dynamics
that may be present in a detention environment, whereupon children with
disability may not be accepted into their peer groups. PWD is unclear
as to how these dynamics are identified by DIMA staff and what work is
undertaken to foster relations between children with disability and those
children in detention who do not have a disability.
Education
PWD as a peak disability
advocacy organisation is acutely aware that access to education does not
apply universally to all children in mainstream Australian society, let
alone in a detention environment. Children with disability may require
specialist support from teachers and teaching aids that will enable them
to learn. PWD is gravely concerned that such supports are not being provided
to children with disability. Furthermore, PWD is concerned as to the tokenistic
nature of education, with children spending as little as 8 hours per week
studying.
HREOC officers also
observed that despite ACM's efforts to provide schooling opportunities
for the children, this is confined to those aged twelve and under, and
it is not comparable in any way to the education received by Australian
twelve year olds. There are a number of children over 12 years of age
that virtually receive no schooling at all. All children are taught in
the one classroom. Education is provided for a total of only two hours
a day, four days a week.7
Safety and Security
PWD is concerned
about the safety of vulnerable children with disability. PWD asserts that
DIMA need to show how they create an environment for children with disabilities
where they feel secure; when the environment is extremely tense. PWD has
observed the continuing escalation of violence in IDC's throughout Australia
which obviously impacts on feelings of security substantially.
PWD is concerned
that children with disability are especially vulnerable to acts of violence
and sexual exploitation. PWD is concerned that IDC's create a self-perpetuating
environment of violence where the ability of all children and especially
children with disability to defend and protect themselves is seriously
diminished.
Furthermore, PWD
finds it inconceivable that a child with a disability could feel safe
and secure with the use of water cannon to quell protests and the spectre
of deportation an everyday reality. PWD is also concerned about the levels
of exposure to violence; children with disability are experiencing, which
may in some circumstances simply be a continuation of a violent environment
that the child has sought to flee from.
Staff Training
PWD asserts that
DIMA needs to show what training is provided to IDC staff that enables
them to recognise and deal with the symptoms of depression and psychiatric
disorders. Furthermore DIMA needs to show who provides such training,
ie. is the training provided by an accredited training organisation that
specialises in the recognition of depression and psychiatric disorders
in individuals who have experienced displacement and serious trauma?
It is essential
that all officers dealing with detainees have some training in recognising
possible mental illness and responding appropriately. There is a need
for procedures to be in place for obtaining medical or psychiatric assessment
when necessary, including after hours. [8]
PWD asserts that
DIMA show how they 'deal' with a child who has depression and psychiatric
disorder and how staff minimise the potential for detainees to self-harm.
PWD is concerned that this may involve the physical and/or chemical restraint
of a child. PWD is particularly concerned about this issue in view of
the recent events at Woomera IDC that has seen the non-renewal of contracts
of two long term psychologists as reported in the Sydney Morning Herald
on January 23 2002. [9]
PWD asserts that
DIMA as part of their 'minimum set of competencies' [10]
required of all staff ensure that staff be aware of the needs of detainees
with disability. Including the needs of detainees with sensory disability,
physical disability, intellectual disability, and the needs of people
with a mental illness and those people who have contracted an infectious
disease.
PWD asserts that
DIMA include as part of the 'required knowledge base' [11]
of all staff, an awareness that they are working in an environment where
people will often be distressed and likely to be suffering from some form
of mental illness. Furthermore PWD asserts that DIMA staff should appreciate
the anxiety and stress detainees may experience and how this can manifest
itself in behaviours that may be indicative of the desperation of detainees.
Solitary Confinement/Punishment/Use of Force
PWD asserts that
DIMA show what is meant by 'taking action' [12] to manage
behaviour and what are the implications for children with disability.
If the detention centre goes into 'shut down' during an extended period
of unrest, are children with disability still able to access the supports
they need.
PWD asserts that
DIMA should show what constitutes 'prolonged solitary confinement'. [13]
PWD would like DIMA to show the inquiry whether children with disability
are placed in solitary confinement. PWD asserts that it is possible that
a child who may have a mental illness may exhibit behaviours that according
to detention standards may cause them to be solitary confined.
PWD would like DIMA
to show what alternatives there are to solitary confinement. Furthermore,
PWD would like DIMA to show how it recognises in children the manifestation
of mental illness when it may be that behaviours are more a result of
a mental illness, where a punishment consequence is an inappropriate way
of supporting and/or rehabilitating a child.
PWD would like DIMA
to show if the use of 'reasonable force' [14] applies
to children with disability. Also DIMA needs to show exactly what weaponry
has been approved by DIMA and whether any of this weaponry is used on
children.
Departmental and
APS staff have been aware of allegations that APS officers have assaulted
child detainees and have not conducted any inquiries into these allegations.[15]
PWD's experience
with other institutional settings has taught us that often people with
mental illness are the first to be physically and chemically restrained,
with the restraint being used as a control mechanism as opposed to an
effective form of treatment.
Medical/Care Needs
PWD asserts that
DIMA needs to show whether they have bathing and showering facilities
that are accessible to people with disabilities and that detainees with
disabilities have the same level of privacy afforded to other detainees.
PWD asserts that
the care needs of children with disability need to be determined by qualified
medical personnel who have experience dealing with children who may have
experienced trauma. Furthermore, medical personnel need to be qualified
in assessing the care needs of children with disability across all disability
types.
PWD is seriously
concerned about the processes used to determine the nature of a child's
disability. If for example a naval ship intercepts a child and transfers
the child to a Pacific Island or Christmas Island holding camp, at what
point are the care needs of the child assessed?
PWD is seriously
concerned about how an intellectual disability is determined for example,
in a child from a Non-English speaking background. If the child is assessed
using the 'IQ' method of determining intellectual ability is this test
undertaken in the child's native tongue in the presence of an interpreter,
with the support of parents, or with someone who can advocate on the child's
behalf? PWD is seriously concerned as to whether such an assessment is
even undertaken.
PWD is also seriously
concerned about the assessment of children as to whether they have mental
illness, given that most child detainees will have undertaken a traumatic
and hazardous journey. PWD notes that not all mental illness will manifest
immediately, particularly with incidences of post traumatic stress disorder.
PWD asserts that the assessment of care needs must be ongoing, this also
applies to children who may have contracted an infectious disease or are
suffering from a degenerative condition. PWD observes that it is virtually
impossible to offer individual support in some IDC's where there are as
many as 700 detainees and only two physologists.[16]
PWD is concerned
that children with disability, particularly those children who have a
mental illness that are referred to specialist institutions or to community
hospitals away from family. PWD asserts that their family members must
be able to visit children who are removed from detention centres and placed
in other institutional settings.
PWD concludes that
the regular monitoring of the care needs of children with disability is
not being met, particularly in relation to the mental health needs of
children in detention.
Access to Complaint Mechanisms
PWD asserts that
the opportunity to comment or complain about conditions of detention to
DIMA on any matter should be accessible to children with disability. Where
a child with disability has a disability that restricts them from complaining
in a written form for example that they be provided with an alternative
means of lodging a complaint. This may involve the support of an advocate
in writing the complaint or availing the child of the opportunity to present
a complaint orally, in a taped recording for example. Also, PWD asserts
that the material advising of the right to complain to the Ombudsman is
available in an accessible format for people with disability.
Staff Mentality
During the course
of the research for this submission PWD has been in contact with a former
staff person. [words deleted] This former staff member cannot be identified
because of a confidentiality agreement [word deleted] entered into with
the former employer. Also the informant is very wary of potential reprisals
for speaking out.
The former employee
sighted several examples of treatment that indicated very strongly the
prominence of a 'correctional' mentality. The former employee noted that
staff are rotated on a '6 week basis' with some staff rotated from prisons
and other correctional facilities. This strongly suggest to PWD that some
IDC staff would have very limited experience working with people from
a Non-English Speaking Background, those that have suffered torture and/or
trauma and children in general.
The former employee
also sighted other examples that suggested a serious conflict between
staff from a correctional background and those staff who come from a background
in social work. PWD believes that these conflicts are seriously undermining
the welfare of all detainees and is having a seriously detrimental effect
on children with disability. Unfortunately PWD does not have the resources
to investigate such workplace dynamics further, but we at PWD believe
that this is a very serious issue that warrants further investigation.
Whilst APS officers
receive some training to promote understanding of the stress experienced
by asylum seekers who are detained, the reliance on 'fly-in' staff who
do not receive adequate training has contributed to an atmosphere of punitive
control at the Port Hedland immigraiotn detention centre. [17]
7.
Convention on the Rights of the Child
Australia as a signatory
to the Convention on the Rights of the Child has a number of obligations
that are relevant to the Commonwealth government's administration of immigration
detention centres. During the research for this submission and according
to the observations of the HREOC PWD is in agreeance with HREOC that the
Commonwealth government of Australia is in violation of the Convention.
Article 3 of the
Convention discusses the fact that public and private authorities must
act in the best interests of the child. Clearly detention is not in the
best interests of the child. Children with disability require an environment
that is free from stress and anxiety and is conducive to learning and
development. Furthermore children in immigration detention are facing
conditions that will invariably result in the detrition of their mental
health, it is hard to imagine any child in detention will end their experience
of detention in a improved state, having been subjected to a detention
environment that under any circumstance could be conceivably considered
to be in the best interests of a child with a disability.
Furthermore, PWD
believes that the DIMA as administrator of IDC's is violating this Article
in relation to children with disability by providing an environment that
is clearly unsafe; as indicated by the prominence of violence perpetrated
by detainees and DIMA authorities. DIMA also violates this Article by
ignoring the health needs, particularly the mental health needs of child
detainees. This is evidenced by the serious under resourcing of mental
health practitioners. Furthermore, DIMA is in violation of this Article
by neglecting the need for staff to be appropriately trained in the needs
of disabled children.
The DIMA obligations
under the Convention include the provision of an environment that ensures
the survival and development of the child in detention. PWD believes that
the survival and development of a child with a disability cannot be assured
in an environment that is highly strained with the manifestation of a
mental illness in a child a distinct possibility. Furthermore PWD believes
that the development of a child with a disability is sabotaged by the
provision of facilities that are not completely accessible. This includes
physical accessibility to facilities, but also the accessibility of education
for example to children with disability.
As outlined in Article
19 that relates to freedom from violence and exploitation, PWD believes
that the needs of children with disabilities in relation to personal safety
are not being met by DIMA. The media has reported several cases of child
sexual abuse within the detention environment; this raises serious concerns
about the vulnerability of children with disability. PWD asserts that
children with disability should be educated in understanding what is appropriate
sexual practice.
Article 23 discusses
dignity. PWD believes that IDC's completely strip individuals of their
dignity, this is particularly pronounced for children with disability.
In many instances detainees have fled oppression with little or no possessions
and undertaken an extremely hazardous passage to Australia only to be
detained for seeking asylum, in an environment that effectively treats
them as criminals. For children with disabilities who are devalued by
society because of their disability their lack of dignity is felt acutely,
with detention only adding weight to their own sense of being devalued.
Furthermore as outlined
in Article 23, PWD believes that the DIMA does not recognise the rights
of disabled children to access special care. This is especially prevalent
when considering the mental health needs of children, as evidenced by
the reduction of psychologists at the Woomera Detention Centre and the
lack of specialist mental health practitioners who have experience working
with children who have and are suffering trauma. DIMA is also failing
to recognise the rights of children with disability, by providing inadequate
supports to children with physical and sensory disabilities. DIMA must
provide greater accessibility to children with disabilities in all facets
of the detention environment ie. education and recreational programs.
DIMA must also provide direct support to children with disabilities when
it is shown that the parents of that child can no longer provide effectively.
Article 24 discusses
health. PWD believes that DIMA does not ensure that children with disabilities
in detention enjoy the highest attainable standard of health and access
to facilities for the treatment of illness and rehabilitation. PWD believes
that this particularly relates to children with mental illness and their
access to appropriate supports and treatment. PWD believes that rehabilitation
and mentally ill children is negligible in an environment that is so highly
charged. IDC's are detrimental to the rehabilitation of children with
a mental illness. Furthermore, PWD is concerned about the ongoing accessibility
for children with disability to treatments and rehabilitation for children
with degenerative conditions and those children who have contracted and
infectious disease.
PWD asserts that
IDC's are a devoid of spirituality due to the prominence of violence and
tension. PWD asserts that to assure some sort of spirituality all children
with disability must be free to worship and access a venue for their worship,
whatever denomination. The facilities themselves must reflect the true
nature of their religion.
PWD believes that
the DIMA violates Article 37 (b) of the Convention by detaining children
with disability for a period of time that is not the shortest appropriate
period of time. The processing of visa applications takes an inordinate
amount of time, far beyond international conventions, far slower that
processing other Western nations. Indeed it is suggestible that this is
a deliberate policy of the DIMA designed to create precedents that will
discourage further asylum seekers from attempting to enter Australia.
PWD believes that
children with disabilities who are detained in IDC's are deprived of their
liberty, because they are heavily restricted in their movements, because
they are confined to a detention environment, because their ability to
make choices is seriously diminished, because they are effectively stateless
and because it is extremely difficult for a child with a disability to
access even the most basic human rights such as legal representation,
this results in the lose of human dignity for all children with disabilities
in detention.
Convention relating to the Status of Refugees
PWD has identified
the United Nations Convention relating to the Status of Refugees as a
Convention that Australia is in violation of. PWD notes with concern that
some refugees that are being detained in Pacific Island states that are
not signatories to the Convention.
Nauru is not a
signatory to the 1951 Convention on the Status of Refugees and has not
expertise in processing applications for asylum. Other Pacific countries
cited as possible locations for detention camps, such as Palau (16,000
people) and Kiribati (70,000 people), have also not signed the Convention.
While Papua New
Guinea has signed the 1951 Refugee Convention, it has placed
on it significant reservations, and does not accept Convention obligations
covering: Wage-earning employment (Article 17); Housing (Article 21);
Public education (Article 22); Freedom of Information (Article 26);
Refugees unlawfully in the country of refuge (Article 31); Explusion
(Article 32); and Naturalisation (Article 34).[18]
PWD has identified
the following articles of the Convention as being in contention;
8.1 Article 12
- Personal status
1. The personal status
of a refugee shall be governed by the law of the country of his [19]
domicile or, if he has no domicile, by the law of the country of his residence.
PWD believes that
the personal status of a refugee in Australia according to this Convention
would mean that they are eligible for coverage under Federal anti-discrimination
legislation, specifically the Disability Discrimination Act (1992).
This is because the status of a refugee is governed by the law of his
domicile or by the law of the country of his residence. However it would
also apply that a refugee is subject to the Migration Act (1958)
for example, which specifies that an individual can be denied entry into
Australia because they have a disability. However we at PWD contend that
the Disability Discrimination Act (1992) is also applicable for
an individual who has sought asylum and has arrived in Australia but has
not been denied access because of their disability because they have avoided
expulsion by seeking asylum directly to Australia as opposed to be denied
access by seeking residence by the standard procedure. PWD contends that
the grounds for discrimination covered under the Commonwealth Disability
Discrimination Act (1992) apply to all detainees within IDC's who
have a disability.
8.2.1 Article
16 - Access to courts
1. A refugee shall
have free access to the courts of law on the territory of all Contracting
States.
PWD believes that
access to the courts to be available to children with disability who are
in detention. It should be that access to the courts considers the needs
of children with disability who are from a Non-English Speaking background.
PWD submits that access to the courts of law in Australia can only be
assured by providing child detainees with disability information about
their rights that is in a format that enables them to understand their
rights.
PWD believes that
access to immigration review mechanisms be able free of charge. PWD notes
with concern the requirement of appellants to pay a large fee to the Migration
Review Tribunal for the hearing of their appeal; this is in violation
of this article that requires free access to courts of law, which we at
PWD take to mean all possible review mechanisms.
8.2.2 Article
16
2. A refugee shall
enjoy in the Contracting State in which he has his habitual residence
the same treatment as a national in matters pertaining to access to the
courts, including legal assistance and exemption from cautio judicatum
solvi.
PWD believes that
all children with disability in detention should have access to specialised
legal assistance. This would involve the acquisition of legal assistance
that specialises in law relating to children, criminal law and anti-discrimination
law, and specifically disability discrimination law. PWD asserts that
this access to legal assistance be provided free of charge as if provided
to any member of the public who is seeking legal assistance in a matter
where they are not in a position where they can pay for such service.
8.3 Article 22
- Public education
1. The Contracting
States shall accord to refugees the same treatment as is accorded to nationals
with respect to elementary education.
PWD notes that for
the DIMA to comply with this article of the Convention, the Department
would need to insure that all children within the detention environment
can access elementary education, in the same way that is afforded citizens
of Australia. Therefore it is a requirement of DIMA to provide elementary
education to children with disability in detention. This will involve
the DIMA providing specialist support to children with disability.
8.4 Article 31
- Refugees unlawfully in the country of refuge
1. The Contracting
States shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their
life or freedom was threatened in the sense of article 1, enter or are
present in their territory without authorisation, provided they present
themselves without delay to the authorities and show good cause for their
illegal entry or presence.
PWD observes that
the DIMA is in violation of this Convention particularly in relation to
detainees from Afghanistan and other nations that are currently involved
in conflict. PWD notes that children with disability who are seeking asylum
in Australia from oppressive regimes are in fact coming directly from
a territory where their life or freedom was threatened and that they are
in a particularly vulnerable position. PWD believes that DIMA should acknowledge
that children with disabilities are especially vulnerable and that the
likelihood of their life or freedom being threatened is often heightened
because of their level of vulnerability. PWD also believes that the DIMA
acknowledge that in some instances the very reason that families seek
asylum is in the hope that not only will they be able to flee oppression
but also to enable their child or children with a disability a better
opportunity to live a fulfilling life.
8.5 Article 32
- Expulsion
1. The Contracting
States shall not expel a refugee lawfully in their territory save on grounds
of national security or public order.
PWD detects that
few expulsions of refugees relate to grounds of national security or public
order; this is particularly evident in relation to children with disability.
PWD notes that many expulsions of refugees relate to the status of an
individual and whether they are indeed a refugee. PWD notes that in some
instances children with disabilities and their families are not being
considered as refugees, yet we at PWD are at a loss as to how these people
can otherwise be categorised. PWD is gravely concerned as to the grounds
of national security and public order are defined with particular concern
relating to the prominence of Afghan refugees being expelled. PWD believes
that Afghan refugees are being expelled because of their nationality as
opposed to any evidence pertaining to national security or public order.
This prejudicial treatment is having an seriously adverse effect on Afghan
children with disability who are seeking to flee their own countries lack
of national security and public order only to be told upon arrival in
Australia that they themselves are a risk to Australia's national security
and public order.
8.6 Article 34
- Naturalisation
The Contracting States
shall as far as possible facilitate the assimilation and naturalisation
of refugees. They shall in particular make every effort to expedite naturalisation
proceedings and to reduce as far as possible the charges and costs of
such proceedings.PWD believes that for the DIMA to comply with this Article
of the Convention the Department will need to seriously overhaul its procedures.
There is significant evidence that outlines the extraordinary amounts
of time detainees are waiting to have even the most basic assessments
as to their status. For children with disability and their families this
is and will continue to have an ongoing seriously destabilising effect.
The DIMA needs to acknowledge that the excessive amounts of time that
detainees are awaiting for the processing of their applications is contributing
very significantly to the tense and stressful environments that detainees
find themselves in. PWD wants the acknowledgment of the DIMA that these
time frames for processing has an especially detrimental and stressful
effect on the lives of children with disabilities.
Declaration on the Rights of the Disabled
PWD would like the
DIMA to acknowledge the United Nations Declaration on the Rights of the
Disabled as a minimum standard in their administration on IDC's. PWD has
specifically identified a number of concerns that are best alleviated
by the enforcement of the Declaration.
9.1
6. Disabled persons
have the right to medical, psychological and functional treatment, including
prosthetic and orthetic appliances, to medical and social rehabilitation,
education, vocational training and rehabilitation, aid, counselling, placement
services and other services which will enable them to develop their capabilities
and skills to the maximum and will hasten the processes of their social
integration or reintegration.
PWD observes that
under this Declaration DIMA has an obligation to ensure that children
with physical disabilities have access to prosthetic and orthetic appliances.
This includes not only access for wheelchairs for example but facilities
that ensure that buildings are more accessible. For example grab rails
to assist access.
DIMA also has an
obligation to provide children with disabilities with appropriate resources
to enable them to rehabilitate. We at PWD believe this is a moot point,
particularly in relation to children with a mental illness. PWD feels
that the possibilities of a child with a mental illness rehabilitating
or having their situation improve even minutely are a virtual impossibility
in such an environment. For effective support and care a child with a
mental illness cannot reside in IDC and receive treatment and authorities
cannot possibly expect a child's condition to improve.
9.2
8. Disabled persons
are entitled to have their special needs taken into consideration at all
stages of economic and social planning.
PWD has outlined
throughout this submission a number of areas where the DIMA is deficient
in its administration of IDC's and detainees with a disability. It is
evident that the DIMA does not consider the needs of people with disability.
It is an integral part of any organisations planning that it be inclusive
and supports the needs of all groups within our community. It is clearly
a case of the needs of children with disability is simply not considered
in this environment as evidenced by the details within this submission.
9.3
11. Disabled persons
shall be able to avail themselves of qualified legal aid when such aid
proves indispensable for the protection of their persons and property.
If judicial proceedings are instituted against them, the legal procedure
applied shall take their physical and mental condition fully into account.
PWD contends that
DIMA is not providing the appropriate legal advice to children with disability
who are in detention. Under any number of United Nations Conventions and
Declarations the right to access legal advice is paramount, it is clear
that DIMA is neglecting it's obligations at even the most basic level.
PWD is seeking the acknowledgment of DIMA that children with disability
have very specific needs that require the specialist advocacy of experts
in legal matters for children and disability discrimination.
10.
Disability Discrimination Act (DDA)
PWD supports HREOC's
position that amendments should be made to the DDA in the area of Migration.
Currently any acts done in relation to the administration of the Migration
Act (1958) are not subject to the DDA. PWD asserts that this seriously
undermines the human rights of children with disability in immigration
detention centres.
The alternative available
to detainees with disability relates to lodging a complaint under the
Human Rights and Equal Opportunity Commission Act (1986) (the HREOCA)
which has a number of UN Conventions scheduled to the Act, such as those
identified in this submission. However, this piece of legislation does
not enable enforceability with the most that a complainant can expect
is that their complaint be tabled in parliament. This also seriously undermines
the human rights of child detainees with disability, by restricting their
complaint to a political environment. Children with disability who have
been treated in a discriminatory way whilst in immigration detention and
therefore subject to the Migration Act (1958), cannot seek redress
in Australian courts. The only redress available to a child with disability
who has been treated discriminatorily is to have their complaint tabled
in Parliament. PWD asserts that this therefore places the plight of children
with disability in a political forum. Children with disability in immigration
detention centres are in the unique situation of being beyond the scope
of Commonwealth law, which is a discriminatory treatment in itself. PWD
wholeheartedly supports HREOC's recommendation that an amendment to the
DDA be made that removes the provision of Section 52 of the DDA that enables
the application of the Migration Act (1958) override the DDA.
PWD believes that
the DIMA is discriminating against people with disability in its application
of the Migration Act (1958), whereupon people with disability can
be refused migration to Australia. PWD believes that the reasons for such
provisions is essentially undertaken on a 'cost benefit' analysis. The
defence used by DIMA is that the cost to the Commonwealth is supporting
a person with a disability may be too much for the Commonwealth to bare.
PWD believes that this is fundamentally discriminatory in that it treats
people with disability less favourably and is an inflexible and prejudicial
assessment.
Significantly the
Migration Act (1958) exemption under the DDA makes it impossible
for associates of children with disability to lodge a complaint under
the DDA. This further restricts the ability of children with disability
to lodge complaints because it may be that their 'associate' may be the
most likely to lodge a complaint.
PWD notes with concern
that the DIMA has not lodged an action plan under the DDA with HREOC.
The lodgement of action plans under the DDA are not compulsory, but they
are an important way for the public to know those government agencies
and those organisations that are serious about disability discrimination.
PWD views the fact that DIMA has not lodged an action plan with HREOC
(as of February 1 2002) as a disappointment and a further indication of
the detriment that occurs as result of the Section 52 of the DDA exemption.
PWD believes that amending the DDA to remove the Section 52 exemption
would perhaps improve the likelihood of the DIMA lodging an action plan
under the DDA.
PWD notes that an
amendment to the DDA removing Section 52, would enable people with disability
in immigration detention to potentially lodge complaints in a number of
different areas. PWD believes that this at least make the DIMA accountable.
PWD is concerned that without the amendment the situation for people with
disability in immigration detention will remain a political one.
Finally PWD believes
that Section 31 of the DDA that states
31 Disability
Standards
(1) The Minister
may formulate standards, to be known as disability standards, in relation
to:
(d) the provision of public transportation services and facilities by:
(i) the Commonwealth; and
(e) the administration of Commonwealth laws and programs in respect
of persons with a disability.
PWD believes that
an important way of ensuring the human rights of children with disability
in immigration detention would be by the development of Disability Standards
under the DDA. These standards need to relate to the provision of the
facilities in immigration detention centres and furthermore in the administration
of Commonwealth laws and programs and their application for people with
disability. For this to occur PWD notes that an amendment of the DDA is
required as observed by HREOC.
11. Commonwealth
Disability Strategy
The Commonwealth
Disability Strategy (CDS) is a Federal government initiative that is meant
to ensure the equalisation of opportunity and access to the Commonwealth
Sector for people with disability. It is an initiative that has the potential
to have a positive impact on the lives of people with disability with
regard access to a number of Commonwealth departments. However PWD believes
it is clearly evident that this positive approach does not apply to the
DIMA in their administration of immigration detention centres on Australia.
For DIMA they are
able to invoke the provisions of the Migration Act (1958) which
appear to override any obligations under the CDS. It is of great concern
that a Commonwealth Department that has one of the most direct involvements
with people with disability would choose to disregard their own Commonwealth's
government's initiatives. Unfortunately the Commonwealth's own correspondence
regarding CDS does not specify this discrimination between Australians
and those in immigration detention and we at PWD would suggest that this
distinction be made for the benefit of persons who may not have citizenship.
Furthermore the CDS would be well advised to note that accessibility does
not apply to people with disability in immigration detention. Our submission
has highlighted a number of areas where it is clear that notions of accessibility
and opportunity so widely espoused in the CDS are not applicable to persons
with disability who are in detention. DIMA may be able to present an argument
that they have met their obligations under the CDS, this may well be the
case in relation to the operations of their offices for example or accessible
websites, or in their employment initiatives for people with disabilities,
however we at PWD are convinced that CDS principles simply do not apply
to immigration detention centres.
12.
References
Commonwealth Ombudsman,
Investigations of complaints concerning the transfer of Immigration
detainees to State prisons; Report of the Commonwealth Ombudsman,
December 1995.
Department of Immigration
and Multicultural Affairs, Immigration Detention Standards, http://www.immi.gov.au/illegals/det_standards.htm
Human Rights and
Equal Opportunity Commission, Media Statement by President Alice Tay
AM and Dr Sev Ozdowski, Human Rights Commissioner OAM, 6 February 2002,
entitled Woomera Immigration Detention Centre, Report of Visit by HREOC
officers.
Human Rights and
Equal Opportunity Commission, Those who've come across the Seas,
HREOC, Sydney 1998.
Oxfam Community Aid
Abroad, Adrift in the Pacific; the implications of Australia's Pacific
Refugee Solution, Oxfam Community Aid Abroad, February 2002.
Sydney Morning Herald,
January 23 2002, Ruddock adviser quits in disgust.
Article 1 of the UN Convention on the Rights of the Child states 'For
the purposes of the present Convention, a child means every human being
below the age of eighteen years unless under the law applicable to the
child, majority is attained.'
Department of Immigration - Immigration Detention Standards, http://www.immi.gov.au/illegals/det_standards.htm
of Immigration - Immigration Detention Standards, http://www.immi.gov.au/illegals/det_standards.htm
available on the Human Rights and Equal Opportunity Commission website
at http://www.humanrights.gov.au/media_releases/2002/06_02.html
available on the Human Rights and Equal Opportunity Commission website
at http://www.humanrights.gov.au/media_releases/2002/06_02.html
who've come across the Seas; Human Rights and Equal Opportunity Commission
inquiry into conditions of detention. Quote take from page 186 of the
report. Report available online at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf
Quote taken from HREOC website as part of media statement dated 6 February
2002; Media Statement by President Professor Alice Tay AM and Dr Sev Ozdowski,
Human Rights Commissioner OAM, Woomera Immigration Detention Centre, Report
of visit by HREOC officers.
taken from page 72 of the Investigations of complaints concerning the
transfer of Immigration detainees to State prisons; Report of the Commonwealth
Ombudsman, December 1995.
obtained from Sydney Morning Herald article on front page entitled Ruddock
adviser quits in disgust, published on Wednesday January 23 2002
Detention Standard 6.1.1 published by DIMA; website address http://www.immi.gov.au/illegals/det_standards.htm
Immigration Detention Standard 6.1.2 published by DIMA; website address
http://www.immi.gov.au/illegals/det_standards.htm
Detention Standard 7.2.3 published by DIMA; website address http://www.immi.gov.au/illegals/det_standards.htm
Detention Standard 7.8.3 published by DIMA; website address
http://www.immi.gov.au/illegals/det_standards.htm
Immigration Detention Standard 7.9.1 published by DIMA; website address
http://www.immi.gov.au/illegals/det_standards.htm
taken from HREOC report entitled Those who've come across the seas, quote
on page 123. Report can be obtained at website address http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf
obtained from Sydney Morning Herald article on front page entitled Ruddock
adviser quits in disgust, published on Wednesday January 23 2002
Quote taken from HREOC report entitled Those who've come across the seas,
quote on page 122. Report can be obtained at website address http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf
Quote taken from page 6 of Adrift in the Pacific; the implications of
Australia's Pacific Refugee Solution, published by Oxfam Community Aid
Abroad, February 2002.
The use of the word 'his' or 'he' is an exact duplication of the wording
of the Convention relating to the Status of Refugees. PWD acknowledges
that this language appears as gender specific and that this may cause
offence, however for the purposes of this submission exact duplication
of the wording of articles in the Convention has been retained and PWD
obviously acknowledges that in this instance the use of the words 'his'
or 'he' relate to all persons regardless of gender.
Last
Updated 9 January 2003.
