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Submission to National Inquiry into Children in Immigration Detention from
Jesuit Refugee Service (JRS)
Jesuit Refugee Service (JRS) is an international Catholic organisation whose mission is to accompany, serve and defend the rights of forcibly displaced people. It has a staff of over 600 full time personnel and is at work in over 60 countries. At the present time JRS has active programmes of social support and legal counselling in prisons and detention centres for asylum seekers in about 20 countries. Jesuit Refugee Service Australia (JRS Australia), an incorporated body, both supports this international organisation through recruitment and raising funds, and at the same time serves refugees in Australia.
Over the past 20 years, some 200 Australians have contributed their professional skills and dedication through JRS programmes of service to refugees, of research and the promotion of the rights of refugees in various parts of the world. Their minimum time commitment for overseas service has normally been two years, although some have served for more than ten years. On return to Australia, most remain in close contact with JRS, and as members of an informed public, are able to observe the conditions under which asylum seekers are treated in this country.
Within Australia our personnel regularly visit Villawood Immigration Reception Centre as pastoral workers, and the Woomera facility in both a pastoral and legal counselling capacity. Because of our experiences through this network of contact, service, research and information, we welcome this important enquiry into the situation of children in immigration detention in Australia. We are compelled to speak, given what we see is an untimely and unnecessary refugee crisis provoked by the failure of the Australian Government to respect its international obligations.
JRS Australia is convinced that the Australian Government policy of non-reviewable mandatory detention is unjust, inhumane and unnecessary and contrary to our obligations as a signatory to the Refugee Convention. Moreover, the current Australian practice fails to comply with the Detention Guidelines set out by the UNHCR Executive Committee (of which Australia is a member) Conclusion No.44.
In particular JRS Australia argues that the detention policy currently administered by the Australian Government contravenes:
Article 9 of the International Covenant on Civil and Political Rights and article 37 of the Convention on the Rights of the Child, which prohibit arbitrary detention;
Article 37 of the Convention on the Rights of the Child, which prohibits detention of children except as a last resort and for the shortest appropriate period of time;
Article 10 of the International covenant on Civil and Political Rights and Article 37 of the Convention on the Rights of the Child which require that detained persons be treated with humanity and respect for human dignity;
Article 23 of International Covenant on Economic, Social and Cultural Rights and article 18 of the Convention on the Rights of the Child which protect the right of parents to found a family, the right of families to state care and support, and the right of children to the care of their parents;
Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights and article 28 of the Convention on the Rights of the Child which recognise children's rights to education.
Article 9 of the International Covenant on Civil and Political Rights and article 37 of the Convention on the Rights of the Child, which recognise a right to take legal proceedings to challenge detention;
Article 22 of the Convention on the Rights of the Child, which requires the state to provide appropriate protection and humanitarian assistance to refugee and asylum seeker children, especially in relation to family reunion;
Given JRS Australia's experience with children in detention and those recently released, we feel confident in making the following observations:
The present system in Australia sees many children held in detention for months and some, even years. Normal family life is impossible in the detention setting with restricted freedom, roll calls and musters, invasion of privacy, disturbed sleep, violent incidents between detainees and between detainees and staff. There are complaints of forced medication, (tranquillisers and anti-depressants), and of inadequate treatment and medication for valid medical conditions. There are instances of mothers and children being held in detention while the father of the family is living in the community already accepted as a refugee. There are instances of young children being subjected to tear gas use and injured in baton charges, and others where children have been forcibly detained and placed in isolation as a means of punishment and control. Children have, through no fault of their own, been witnesses to violence, depression, and suicide attempts and the psychological damage done by this trauma may take years to address.
The siting of detention centres in remote and arid parts of the country contributes to all the problems experienced by the detainees and, JRS suggests, those of the staff who have care of them.
JRS Australia considers the dysfunctional regime imposed by the detention centres to be wholly unacceptable and submits that Australia's greatest failure has been to care for the psychological and social well being of children by:
- Mandatorily detaining
them without reference to their possible previous trauma
- Holding them in
detention arbitrarily and without adequate explanation and information
and thereby placing them at risk of further harm and psychological stress.
- Failing to provide
adequate medical and psychological support staff; ignoring the advice
of medical professionals when given and failing to address the signs
of depression and suicidal tendencies in children, young people and
adults.
- Failing to process
refugee claims quickly and efficiently thereby causing children and
adults to be detained for lengthy periods.
- Failing to expedite
the reunion of family members.
- Failure to provide
suitable recreation and play facilities and intellectual stimulation
in the form of appropriate educational programmes for all ages.
- Failure to provide
suitable detention centre staff, trained specifically in the needs of
people seeking asylum, as opposed to correctional staff.
- Siting detention centres in remote, arid and isolated parts of the country where amenities are minimal and normal social access impossible.
JRS Australia also submits that current laws, policies and practices hinder long-term outcomes for asylum seeking children in the following ways:
- Legislation which
has progressively limited the powers of judicial review since 1992.
- Legislation which
permits detainees as young as ten to be strip-searched. (Introduced
and passed in 2001).
- The revision of
definitions of " refugee", "persecution", "particular
social group", and the introduction of the terms "non-political"
and "particularly serious" crimes, into the 2001 Migration
Act revision, makes it more difficult than before to prove refugee status.
This affects the dependent children of asylum seekers unaccompanied
minors.
- Legislation passed
in 2001 which gives fewer benefits to those who arrive onshore without
valid visas or are processed in excised territories such as Christmas
Island, and in the camps on Nauru and Manus, than those who apply via
UNHCR overseas or arrive with valid visas. This penalises the children
of some of the most desperate asylum seekers who have already endured
danger and hardship to escape harsh regimes such as those of Iraq, Iran
and Afghanistan.
- The conditions
of the Temporary Protection Visa subclass 447 renders holders uncertain
regarding their status and unable to plan ahead or have any sense of
permanence or belonging. This is particularly important for children
and young people. Holders of this visa can only apply for an 866 visa
(permanent protection) at the discretion of the Minister.
- For holders of
the TPV with families in other countries, the lack of right to family
reunion means that some children may never be reconnected to members
of their immediate families. Australia's policies are impinging on children
outside the country who would once have been able to come to Australia
under family reunion provisions.
- The excision of
offshore islands from the migration zone and the returning of boats
to Indonesia places children (and adults) at risk. The so-called "Pacific
solution" has meant the incarceration of children and adults in
environments not equipped to deal with them.
- Australia's "Safe third country" provisions do not meet the UNHCR guidelines and therefore could put children (and adults) at risk of returning to a place where they have insufficient protection or unable to stay permanently and may finally force their return to the original country of persecution.
JRS believes the rights of the child would be best served by an efficient initial assessment of health and security on arrival in Australia during which time legal advice and counselling would be freely available to adults and unaccompanied minors. This process, particularly in the case of children and their parents, should take no more than 72 hours and parents and children should not be separated. Families should be assisted into the community with secure housing, English language classes, health care and assistance with employment. Families should be given assistance to locate appropriate schools for their children. Resources should be allocated to identifying symptoms of trauma and the provision of psychological support services for both children and adults.
Unaccompanied minors should be housed with carefully vetted foster families or in community housing with all necessary support mechanisms in place including the appointment of an appropriate guardian. They should have close contact with their language and cultural groups and be assisted into appropriate high schools and training courses.
JRS submits that the release of asylum seekers into the community with monitoring and support would be cost effective by comparison with the maintenance of privately run detention centres both on and offshore. JRS believes that while asylum seekers are waiting for their refugee status to be determined, the best interests of children (and adults) are served by assisting their assimilation into Australian society. By adopting this approach Australia is also fulfilling its international obligations.
JRS Australia submits it is a contradiction in terms to address the welfare of children in detention on the grounds that the very fact of detention works against all aspects of welfare of the child. Once the detention of children is accepted, their rights are compromised regardless of the quality of the amenities provided and in the case of the detention centres in Australia, JRS considers the provision of education, recreation, access to legal advice, health care and family support to be gravely deficient. However, not only are essential elements missing in the care of children in detention, JRS submits that the implementation of Government policies is causing a degree of pain, suffering and psychological harm which may take years to address.
JRS Australia maintains that, in implementing its policy of mandatory detention, the Australian government has breached articles of the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and, as the legal guardian of children while in detention, now stands in breach of its duty of care.
Last Updated 9 January 2003.
