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Submission to National Inquiry into Children in Immigration Detention from the

Multicultural Disability Advocacy Association of NSW

Acknowledgements

This submission to the Human Rights and Equal Opportunities Commission's Inquiry into Children in Immigration Detention Centres is the result of the work and contributions of many people.

Most of all we would like to thank the individual refugees for sharing their experiences with us.

We also would like to thank all the individuals from across many different agencies, sectors and across communities who gave up time and contributed their knowledge to this submission.

Over 25 people from across Australia contributed to this submission and their knowledge of the different areas either through personal experiences, through their work as visitors to or workers in the centres, as lawyers for people in the centres, as ethnic community workers once people live in the community, as disability workers, etc. made this submission possible.

Whilst some people were happy to be named as contributors to this submission, others were not and others felt that they could not be named. Therefore we have decided no individual and no individual agency would be identified as contributors.

MDAA would like to thank everyone who contributed and we hope that this submission will assist with getting children out of immigration detention centres.

Article 23 (1), Convention on the Rights of the Child
 States Parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

1. Principle Statement

We state unequivocally that children and their families do not belong in immigration detention centres and that all children and their families need to be released immediately from those centres.

Article 23 (3), Convention on the Rights of the Child
 States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision

Article 22 (1), Convention on the Rights of the Child
 States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties

Whilst we believe the detention centre environment is harmful for all children, we are particularly concerned that children with disability and unaccompanied minors are especially vulnerable in the detention environment.

2. Recommendations

2.1 Principle
 We recommend that the principle stated above be applied to all children with disability and their families in immigration detention centres.

In addition, based on the issues outlined below, we put forward the following recommendations:

2.2 Establish alternatives to detention
 Considerable work has been done by a range of organisations and individuals to develop viable, less expensive and more humane alternatives to the current detention regime.

2.2.1 MDAA supports proposals, such as those put forward by the Refugee Council of Australia, which include a short period of closed detention and then open detention and/or community release.

2.3 Urgent changes needed to make the current system better
 In order to protect and maintain the rights of children with disability in detention centres now, MDAA recommends the following immediate changes:

2.3.1 All children have an initial examination by independent experts (including medical experts, psychologist, physiotherapist, speech therapist, and other allied health professionals) with expertise in the various areas of child health and development to detect possible congenital and acquired disabilities. All these examinations need to be accompanied by a qualified interpreter who is not only trained in health interpretation, but has also undertaken training in the area of disability.

2.3.2 In order to ensure access to the above mentioned specialists and to ensure the assessments are of high quality all children and their families need to be detained in metropolitan immigration detention centres.

2.3.3 Once a child has been identified as having a disability, that child and their family are moved to a detention centre located in one of the capital cities to facilitate access to specialist services and expertise and ensure that the quality of assessment of the child's needs is not compromised. Access to those services can be provided either in the detention centre or, if more appropriate for the child's best interests, in facilities in the community.

2.3.4 The parents are involved in all aspects of the child's' 'treatment'.

2.3.5 All detention centre facilities are made accessible for people with disability, consistent with
State standards and the provisions of the Disability Discrimination Act 1992.

2.3.6 All detention centre education is provided in a manner accessible to children with disability,
by qualified education professionals with training in special education.

2.3.7 Good dental care is provided to children with disability in detention.

2.3.8 All detention centre staff undergo training in disability issues.

2.3.9 All instruments of restraint (including the use of 'observation rooms') as outlined in the Immigration Detention Standards 7.10, be prohibited in relation to children.

2.3.10 Incidences which for adults would involve the use of observation rooms, will trigger a review as outlined in 2.3.1

2.4 Independent monitoring, review and establishment of an independent guardian
 The Minister for Immigration, Multicultural and Indigenous Affairs is the guardian of all unaccompanied minors in detention centres. MDAA believes this creates a conflict of interest for a Minister responsible for both administering the Government's immigration detention policies and promoting the best interests of children detained under those policies.

Similarly, DIMIA is responsible for appointing a contractor (ACM) and monitoring the detention services the contractor provides. There is an inherent conflict of interest in these two roles: DIMIA has a vested interest in ACM being seen to perform the contract well and this may adversely affect the way it monitors that performance.

The following recommendations introduce measurable standards that DIMIA would be obliged to monitor to ensure ACM's compliance with them. These measurable standards would increase ACM's accountability. To reduce these conflicts and as DIMIA and ACM do not have the specialist training or expertise needed to deliver services to children with disability, MDAA recommends:

2.4.1 The responsibility and guardianship over children is transferred from the Minister for
Immigration, Multicultural and Indigenous Affairs to the Minister for Children and Youth
Affairs, who has responsibilities under the Family and Community Services portfolio.

2.4.2 Regular monitoring and review of children in detention centres is undertaken by independent experts (including medical experts, psychologist, physiotherapist, speech therapist, and other allied health professionals) with expertise in the various areas of child health and development. All these examinations need to be accompanied by a qualified interpreter who is not only trained in health interpretation, but has also undertaken training in the area of disability.

2.4.3 Once a child with a disability has been identified, an independent, external case manager is appointed (i.e. through the appropriate State/Territory authorities). The case manager should work with the detention centre contractor's health and education staff to monitor implementation of any programs recommended.

2.4.4 Once a child with a disability has been identified, the child has access to an 'external guardian' or advocate who liases with the family and whose main role is to ensure that the best services and options are available to the child. (This is not to replace the parents as the guardians, but to ensure that the relative powerlessness of the parents is not reflected in bad services and loss of opportunities for the child.)
The Refugee Council of Australia in their submission on unaccompanied minors has put forward a model which could be modified to be also used in relation to children with disabilities.

2.5 Transparent complaints processes
Given that the current complaints mechanism as outlined in Immigration Detention Standard 7.11 is inadequate, we recommend:

2.5.1 All children with disability in detention centres and their families have access to effective complaints mechanisms. These complaints mechanisms could be those used by the relevant State/Territory agencies in relation to all people with disability, and more general complaints mechanisms available to all people accessing services provided by that State/Territory.

2.5.2 Information about complaints processes is available in all languages read at a Detention Centre at any point in time.

2.6 Temporary Protection Visa (TPV) holders
 Because families with children with disability have no chance of coming to Australia through the onshore program, we recommend:

2.6.1 Families with children with disability, once successful in their application for refugee status, are given a Permanent Protection Visa as a special needs group, to ensure access to the full range of Commonwealth (Disability Support Pension, Carer's Pension, family reunion, etc) and State funded services and to ensure care is provided commensurate with Australian standards.

2.7 Legislative changes
To ensure that children with disability are protected in line with the conventions and obligations Australia is signatory to, we recommend:

2.7.1 Removal of the exemption of the Migration Act from the Disability Discrimination act

2.7.2 Incorporation of international conventions to which Australia is signatory into domestic law.

2.7.3 Creation of a 'Bill of Rights' accessible to all people living in Australia.

3. About MDAA

The Multicultural Disability Advocacy Association of NSW (MDAA) is the peak body in NSW for people from a non-English speaking background (NESB)[1] with disability and their families and carers.

MDAA is the only advocacy service in NSW available specifically to people from NESB with disability, their families and carers.

MDAA is working towards:

4. Scope of this submission

The focus of this submission is on children with disability, including all disabilities except psychiatric disabilities/ mental health conditions. The reason for excluding children with mental illness from this submission is not that we don't believe this to be a major issue. In fact, we believe the mental health of children in detention centres is a major area of concern. However, there has been significant focus on the mental health of children and we understand that there will be a range of submissions forthcoming which focus on this specific aspect.

This submission is specifically concerned with children with other disabilities, namely children with intellectual disability, physical disability, sensory disability, brain injuries, etc. and unless stated otherwise, wherever we refer to children with disability in this submission we specifically exclude children with psychiatric disabilities/ mental health conditions.

Furthermore, this submission will not focus on the prevention of disability in immigration detention centres, but the scope will largely be limited to identifying the consequences of having children with disability locked up in immigration detention centres, in a prison-like environment without adequate services and facilities. Finally, this submission focuses on immigration detention centres on Australia's mainland.

This submission brings together experts from the field of disability who provided their professional advice on the issues raised and some of case studies included.

5. The case studies

The purpose of the case studies is to illustrate a particular area of concern in relation to children with disability in immigration detention centres, not to highlight the plight of a particular individual. In addition, MDAA is particularly concerned to ensure that any individual's identity remains anonymous. Therefore the case studies used in this submission have been developed in four ways:

Firstly, some of the case studies used in the submission are based on 'stories' given to MDAA to be used in this submission. To ensure people's anonymity, we have made changes to disguise the individual's identity (such as gender, nationality, disability, etc.). Secondly, some case studies have been developed out of conversations and anecdotal evidence and again efforts have been made to disguise the identity of the individuals. Thirdly, some case studies are composites, made up of different cases and anecdotal evidence. Lastly, a small number of the case studies are hypothetical, based on the likelihood of such a situation occurring.

MDAA's concern is with the validity of the issue raised and the consequences of not identifying and not dealing with these issues within the immigration detention centres. To clarify this point, the case study below about the unavailability of a modified spoon which would assist Declan to feed himself is used as an illustration that specialist and modified equipment is often not available. Whether every detail of the case study is based on a detainee's experience is irrelevant to the point being made.

6. Number of children in immigration detention centres on the Australian mainland

On the 18th of February 2002, DIMIA made the following information available to the National Ethnic Disability Alliance (NEDA):

1. As of the 1st February 2002 a total of 378 children were residing in detention centres on the Australian mainland.

2. As of the 5th February 2002 a total of 16 (or 4.2%) children with disability were residing in detention centres. Children with disability are currently located at Port Hedland, Curtin and Woomera detention centres.

3. The types of disability affecting these children include cerebral palsy, hearing impairment, vision impairment, acute dwarfism, trauma, Perthes disease and cardiac, asthmatic and genetic (including Fragile X) disabilities.

It appears that DIMIA did not identify any children with cognitive and other 'non- visible' disabilities. MDAA has great concerns about disabilities not being identified and detected (see below). Through our discussions with people, we have been told of children with other disabilities than those identified by DIMIA. MDAA believes the DIMIA figures underestimate the number of children with disability, particularly as 'trauma' is included by DIMIA in the category of disability.

There are several factors which need to be taken in account when estimating the number of children with disability in immigration detention centres. These factors are based on:

6. 1. Available Australian data:

Whilst any disability data is to be treated cautiously, the following data about children and disability appears to be reliable as 'guiding' data:

6. 2. Incidence of disability in country of origin, incidence of disability amongst refugees and lack of access to services in country of origin and during the duration of being a refugee:

According to the WHO (1981), refugee children are at increased risk of disability, including developmental disabilities, as a result of:

Many of the children currently in immigration detention centres would have been exposed to those increased risks. Little 'hard' evidence is available, but it has been found that the rate of congenital malformations in Iraq has risen dramatically over the last decade (Wareham S. 2002). Dr Shant Raman, a paediatrician who visited Villawood unofficially, reported that there were many young babies and toddlers who had developmental delay (ABC Lateline 19 03 2002). Developmental disabilities may be higher in some detention centre populations because of inter-marriage of first and second cousins in some cultures.

6. 3. Australia's refugee policies

Australia's off-shore program excludes close family members on health grounds. As a result, those who have a child with a disability are unable to bring their family through the conventional resettlement program. There is no 'queue' these families can join. It can therefore be argued that current policies and programs force families with a child with disability into the hands of 'people smugglers', exposing them to the dangers of clandestine travel and leaving them no option but to try their luck as 'on-shore' asylum seekers. This means that unlike families with children without disability who can apply for refugee status, these families have really no other option than to come as 'illegal entrants' and spend time in an Australian detention facility. The vast majority of these people will only ever be eligible for a temporary protection visa.

Based on those factors we conservatively estimate the number of children with disability currently in immigration detention centres (based on figures given to us by DIMIA) to be about 30 or about 8% of all the children currently in immigration detention centres on the Australian mainland.

It is important to note however, that irrespective of how many children with disability there are in immigration detention centres, these children ought to be treated in accordance with the Convention on the Rights of the Child to which Australia is signatory. DIMIA's letter to NEDA assures NEDA that 'all necessary steps are taken to ensure that the needs of these children are met'. Below we will demonstrate that this is not the case and that the needs of children with disability are largely not identified or met.

7. The Legislative Framework

The current legislative framework and the lack of enforceable legislation lie at the heart of many of the problems identified in this submission.

7.1 The Commonwealth Disability Discrimination Act

"The Australian government has recognised its obligations under international law to eliminate discrimination against people with disabilities, and has enacted domestic legislation making such discrimination unlawful. The Disability Discrimination Act 1992 (Cth) (the DDA) prohibits direct and indirect discrimination against people on the ground of their disability" (HREOC, National Inquiry into Children in Immigration Detention, Background paper 5).

Whilst the DDA applies to all Commonwealth, State and Territory agencies, it does not

(a) affect discriminatory provisions in the Migration Act 1968 or any regulation made under that Act; or

(b) render unlawful anything done by a person in relation to the administration of that Act or those regulations." (DDA, 1996)

MDAA understands that the current interpretation of the exemption of DIMIA from the DDA effectively means that all DIMIA run and funded agencies (such as ACM) and activities relating to the administration of the Migration Act are exempt from the DDA. By contrast, we believe the purpose of the exemption was largely to prohibit the immigration of people with disability, whose disability may constitute a cost to the community. Applying the exemption well beyond that purpose surely goes beyond the original intent of the legislation and stretches the definition of what is the administration of an Act beyond its legally intended meaning.

7.2 Compliance with International Conventions

As many of the international conventions are not incorporated in Australian domestic law, they are not enforceable. Compliance with international conventions is not built into current legislative structures, but left to individual courts. There is also no Bill of Rights which would strengthen the use of international conventions within the Australian legislative framework.

8. The situation in on-shore Immigration Detention Centres

Children with disability have all the needs that ordinary children have and by definition many of these are unable to be met in the confines of a detention centre. Children with disability have a number of additional needs that are particularly compromised by their life in detention. This section of the submission seeks to highlight some of these additional needs and how not meeting them is a breach of Australia's human rights obligations.

8.1 Non-detection and non- identification of children with disability; lack of early intervention,
Article 23 (3), Convention on the Rights of the Child

Recognising the special needs of a disabled child, assistance … shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.

Article 23 (2), Convention on the Rights of the Child

States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child.

In general, experts agree that a lack of early identification and appropriate intervention is likely to lead to:

Children with disability need early intervention and expert assessment of their conditions and needs. Children with disability are more vulnerable than the average child to poor nutrition. Hearing and sight difficulties need to be detected early to prevent secondary difficulties. Failure to recognise disabilities can lead to emotional and behaviour difficulties due to unreasonable demands being placed. Like all children, children with disability need acceptance and love, a stable environment, and realistic nurturing.

Over 50 years of research on children with many types of disabilities receiving a range of specialized services in many different settings has produced evidence that early intervention can:

Albert

Albert lived in an immigration detention centre for almost 1 year from the age of 3. He basically didn't develop any speech and did not communicate verbally with anyone. Albert's parents and Albert communicated in a type of sign language which whilst rudimentary was sufficient to communicate day to day needs. Albert's parents were worried and they had raised it with the nurse who checked Albert's ears and told the parents that she thought he was a bit of a 'slow learner'. For the last 15 months, Albert and his family have lived in the community and Albert's family has just made contact with an advocacy agency who is currently trying to organise an assessment for Albert.

According to Wang and Baron (1997), social interaction and purposeful communication are essential for children's emotional health and development. It is important to identify whether a communication difficulty is part of a general developmental impairment or an isolated problem. If the former, it is critical to exclude that the child is affected by a reversible condition such as some metabolic disorders. Early identification and treatment of children with communication impairments decreases their frustration and increases the likelihood of minimising disabling conditions later.

Bega

Bega was born 8 years ago and has spent almost 5 of those years in refugee camps, mostly in South East Asia, and for the last 6 months in Australia. Unbeknownst to Bega and her family, she has polio. Over the last three months her ability to speak clearly and her physical abilities have deteriorated significantly, but her parents are scared to talk to a medical officer about it, fearing that this will just make it harder to be successful in their application for refugee status.

Early intervention may begin at any time between birth and school age, however, there are many reasons for it to begin as early as possible. There are three primary reasons for intervening:

Karnes and Lee (1978) have noted that "only through early identification and appropriate programming can children develop their potential".

Pellegrino (1998) identifies that it is often common for the mobility problems of cerebral palsy to be over-emphasised, even though related cognitive problems may have a much greater effect on the long-term well-being for a child in the areas of communication, socialisation and ability to care for themselves. Unrecognised hearing loss may interfere with language development. Additionally, children with cerebral palsy are at risk of abnormalities in swallowing and digestion, which can have significant effects on their growth and breathing. For musculoskeletal problems, early recognition and timely referral are important, as conservative treatments introduced at an early age have a better chance of success and are less costly than more invasive and complex procedures introduced later.

For children with autism early intervention support is critical. Hands on early intervention can make amazing life-long differences for children who are diagnosed with autism at an early stage. A lot of work is done teaching young children with autism to interact physically with their families. It is much harder when a person is older. Like all of us, kids will learn ways that help them to survive or "win". If these behaviours manifest into challenging behaviour, an older and bigger child makes it very hard for parents and specialists to cause breakthroughs.

8.2 Lack of access to or difficulty in accessing facilities in Immigration detention centres

According to DIMIA most centres have the following non- medical facilities available to detainees:

Everyone MDAA has contacted said that there are virtually no education classes happening anywhere and play facilities are at best limited. At one time there was 1 swing for almost 150 children at Woomera.

Whatever limited facilities are available to all children, children with disability are unlikely to access many of those facilities as they have not been made accessible to children with disability.

It is generally agreed that when working with children with disability the following five general principles can be used to guide the selection of effective practices:

Below we demonstrate that none of these principles is applied in Australian immigration detention centres.

8.2.1 Lack of access to appropriate educational facilities

Article 28 (1), Convention on the Rights of the Child

States Parties recognize the right of the child to education and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular

(a) Make primary education compulsory and available free to all

(d) Make educational and vocational information and guidance available and accessible to all children.

For all children, but especially for children with disability, there is a particularly sensitive learning period between the ages of two and seven. This is when children learn basic perceptual skills, object reasoning and spatial awareness, concepts of time, etc. A false environment, such as a detention centre environment, is not conducive to learning broader skills.

Cecilia

For almost all of the 1.5 years Cecilia lived with her Mum in an immigration detention centre, her Mum wanted her to go to the school, but Cecilia was banned from the school as she was seen as disruptive and too difficult. She used to walk around and leave the classroom, talk loudly to herself, sometimes scream for no apparent reason.

If a teacher tried to 'calm her down' she became very distressed, screamed and bit herself. The teachers could not cope and asked her Mum not to bring her to school any more.

To provide Cecilia with equal opportunity and enable her to learn in the class with the other students, there needs to be in place:

1. Teachers with appropriate training. There is not necessarily a need to have teachers with full special education qualifications, but teachers who have had some level of in-service training around teaching mixed ability classes; and

2. Back up for teachers by consultants with special education training who can assist teachers to learn to:

Appropriately supporting Celia in the 'school' at the detention centre may provide the following benefits:

The fields of early childhood and early childhood special education promote the incorporation of instructional goals and curriculum content into normally occurring routines in the home, preschool, day-care centre, and kindergarten settings (Bredekamp, 1987; Rainforth & Salisbury, 1988). Recognising that children with special needs require efficient, effective, and functional instruction directed at achieving socially and educationally valid outcomes (Carta, Schwartz, Atwater, & McConnell, 1991) it is important that practitioners identify the nature of each child's needs and the extent to which accommodations and supports will be necessary for each child to be successful. The best program for a child is the program that is designed for the specific needs of that child. Instructional arrangements, curriculum content and instructional procedures can and should be varied to coincide with the intensity of each child's learning needs. Such accommodations increase the likelihood that children with special needs can be included in a vast array of typical classroom activities.

Children with cognitive disability need:

By way of example, Cecilia (above) needs a daily structured routine; a breakdown and presentation of appropriate educational input; and consistent behavioural expectations, in conjunction with a very individualised program that has a varied activity base and that functionally addresses her communication, physical/ sensory, social, self-care, leisure and cognitive needs.

8.2.2 Lack of access to appropriate equipment

Article 28 (1), Convention on the Rights of the Child

States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development

Declan

Declan has cerebral palsy and needs a modified spoon to be able to feed himself. Whilst readily available in the community, these spoons are not available in the immigration detention centre. Therefore Declan relies on his sister to feed him which basically means that because of the speed with which meals are served and need to be eaten, both Declan and his sister are not getting enough food.

Without modified equipment, a child with cerebral palsy will be unable to develop independent living skills and in the long-term will need a much greater level of support. Children with cerebral palsy frequently have oral-motor impairments which can affect their development of speech, language and feeding skills. Promoting feeding skills is best initiated at early ages. There are physiological reasons to stimulate the development of feeding at that age when a child's brain has greater plasticity. Early intervention also stops development of poor patterns which can be difficult to change later. Professional assessment of a feeding difficulty would consider treatment options from a range of solutions including modified utensils, as well as modified food texture and postural changes (Solot, 1998).

With appropriate physiotherapy, 70% of children with cerebral palsy will walk by the age of 3 years. In general, the time for really learning new physical skills lasts until age 8 and then it is a question of maintenance of skills and prevention of the type of muscle tension that causes deformity and loss of function in people with cerebral palsy.

Modified equipment is important in aiding the development of children with disabilities for the following reasons:

Also in the long-term, there is a need for increased financial resource, support and assistance being required if equipment is not readily available for those who need it, as these children will miss out on early learning experiences as a result and may remain dependent on adult care-givers to achieve basic self-care/ living skill tasks (ie, meal times/ toileting, etc) in the future.

8.2.3 Lack of consideration, inflexibility of the system to take into account individual needs

The detention centre environment causes massive disruption to 'normal' family practices, such as the parents and children's ability to choose what the child has to eat, to learn how to prepare food, to prepare and eat alone as a family together, etc. Breaking those routines can have a considerable impact on children with disability, particularly for those with an intellectual ability. For those with eating difficulties, disruptions to diet can have a profound effect on nutrition.

Enda and his Daughter

Despite the fact that Enda had offered to pay money for additional and gluten free foods for his daughter, who has multiple disabilities and is quite frail, this was not allowed. Meals are only served at specific times and no food is allowed to leave the "dining" area. Detainees are checked for food before they leave. Since living in an Australian detention centre, Endas' daughter has lost a lot of weight.

Children with particular conditions such as cerebral palsy and coeliac disease are at increased risk of developing problems with nutrition and growth. Studies show that children and young people who are undernourished are at increased risk of illness such as respiratory disease and pneumonia, and adverse developmental outcomes (Kessler & Dawson, 1999).

Persons with developmental disabilities are at increased nutritional risk because of feeding problems, drug/ nutrient interactions, metabolic disorders, decreased mobility, and altered growth patterns. Nutrition assessment and care plan development demand specialist knowledge ad skills in an interdisciplinary team setting… persons with developmental disabilities should receive comprehensive nutrition services as part of all health care, vocational and educational programs (American Dietetic Association, 1992)

Rose

Rose is 14 years old and has diabetes. Ideally Rose needs to eat several times a day and needs to be able to access juices or something similar any time day or night. The detention centres serves three meals a day and other than water no food or drink are available outside these times.

8.2.4 Lack of physical access to buildings and facilities

"To the extent possible, the Department is also currently taking steps to ensure that all infrastructure development at each of the centres takes account of the needs of detainees with physical disabilities. The new purpose-built facility being constructed at Baxter Immigration Reception and Processing Centre (IRPC) includes two disabled unit buildings, each containing three bedrooms with the capacity to accommodate two people per room. Refurbishment planned for Port Hedland IRPC includes provision for persons with disabilities such as building access, installation of ground floor amenities, and fit-out of ground floor bedrooms." (DIMIA letter to NEDA, 18. 02.2002).

Felix

Felix is 13 years old and has a physical disability. An old hospital wheelchair has been made available for Felix. Whilst Felix is not strong enough and the wheelchair too heavy for Felix to push himself around, he can be pushed by adult males. This means that Felix is largely isolated from peers and is dependent on adults to get him to places. Furthermore, many of the facilities in the detention centre are not accessible, leaving Felix dependent on adults to carry him in and out of the dining room, bathrooms, etc.

As a child moves through childhood and puberty, their musculoskeletal system is more susceptible than an adult's to both internal and external mechanical forces which can alter the shape and angle of immature bones. The abnormal internal forces affecting children and young people with physical disabilities must be addressed and ameliorated, to prevent further exacerbation of their impairment and restriction (Walker and Stranger 1998, p392). An additional consideration is the sudden and rapid growth patterns of children and adolescents that may require fast response to address both clinical and therapeutic need.

Equipment needs may become more evident during adolescence, when a person has grown and become heavier. The possibility of injury may be heightened, such as the young person developing scoliosis as a result of poorly fitted wheel chair seating, or back injury for carers due to lifting and transfers. Providing appropriate equipment at that time can reduce future costs on government health and social services.

Appropriately equipping children addresses safety issues, enhances functioning, assists in pain relief, and stops or lessens further physical complications, such as bone fusion, reduced lung capacity, dislocated hips or arms, and swallowing problems. Ultimately, this reduces the long-tem financial and social costs which can be associated with a disability.

In the short-term lack of access to facilities decreases mobility and physical and social function and contributes to continued dependence in self-care and community living skills. In the nog-term, it limits overall learning, development and independence; inhibits social interactions/ environmental opportunities; and discriminates against/ denies the disable the basic right to be 'included' with others.

8.2.5 Lack of expert medical attention

Article 24 Convention on the Rights of the Child

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

…

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

Gertrude

Gertrude was three years old when she lived for 7 months in an isolated immigration detention centre. Gertrude has a physical disability (Cerebral Palsy) and under the contract the Government has with the detention centre management, medical attention needs to be provided for.

Whilst Gertrude, due to her disability, would have needed at least some specialist medical intervention, reality in the detention centre was that once every 2 months Gertrude and her mother went to a general practitioner.

This doctor then merely looked at Gertrude and said "she is ok" and sent her back without any medical intervention.
Gertrude is now five years old and she has just started going to weekly physio therapy.

The physiotherapy costs about $200 per week. Gertrude and her family now know that the medical needs of Gertrude were overlooked because they were seen as too expensive.

Since children with cerebral palsy have difficulties with a number of areas of their development, a team of qualified professionals needs to be involved in interventions, these include physiotherapists, occupational therapists, speech pathologists and early special educators. Areas in which a child will often need specialist intervention include:

It is important that children with cerebral palsy receive support and intervention from an early age to ensure they have every opportunity to reach their full potential (from Spastic Centre letter, 26th March 2002, attached to hard copy of submission).

8.2.6 A crisis as the best option to get expert advice

The best chance children with disability have of receiving qualified and expert intervention is when they slip into a crisis which constitutes a risk to their life or the lives of others. As appears to be happening with people who experience a severe episode of mental illness, people with complications due to their disability are hospitalised when critical.

Crisis intervention:

Kilian

Kilian has a severe intellectual disability with physical disabilities, including breathing problems. Kilian had several extremely serious medical crises whilst at a desert immigration centre and he and his family were moved to a city detention centre, where he was referred to hospital for surgery. After the surgery, there were several visits to a specialist medical clinic

8.2.7 No access to medical equipment and essential aids

Article 24 (1+2), Convention on the Rights of the Child

1e. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care.

Much is known about the ill-effects of institutional settings on people with disability. It is widely agreed that those settings have negative effects on people with disability in terms of their health, emotional, intellectual and social developments, etc. In terms of health, in order to ensure and maintain the health of people with disability it is important to have:

Henry

17 year old Henry lived in an immigration detention centre for over 18 months. Like most desert Immigration detention centres his was mostly very hot in summer and quite cold in winter. Henry has asthma which means he has difficulties breathing. Since Henry started living in the community he has had access to a ventilator. In the detention centre, all Henry could do on a hot day was hope that he could spend the day in a hut that had functioning air conditioning.

Ita

Ita is 7 years old and has spina bifida. Ita's Dad has to queue to see the centre's nurse every day (that can take up to three hours) to get a daily supply of continence aids. Mostly he can't get enough continence aids for Ita or has to make do with alternatives ( ie. babies nappies) which means that Ita is basically always wet and has developed sores.

8.3 Lack of skills and knowledge about disability amongst staff, detainees, families and children with disability

8.3.1 Overall lack of disability skills of staff

According to DIMIA the following professionals are employed at the different detention centres (not all centres have all the personnel):

The health services that are delivered according to DIMIA are:

Curtin: Primary Health Care; First Aid, Health Education, Mental Health Nurse
Maribyrnong: Primary Health Care; First Aid, Health Education, Psychiatric Nurse
Port Hedland: Primary Health Care; First Aid, Health Education, Mental Health Nurse
Perth: Primary Health Care; First Aid, Health Education, Mental Health Nurse on call
Villawood: Primary Health Care; First Aid, 'Shared Care'-antenatal Management, Psychology Services
Woomera: Primary Health Care; First Aid, Health Education, Mental Health Nurse, Psychologists, Women's Health, Stress Management, Child and Family Health; Immunisations; Oral Hygiene; Pro-active Health Management.

MDAA is confident that the training received by those professionals employed by ACM is not sufficient to deal with the disability issues inside the centres. Training received by any of the professional groups above focuses almost exclusively on the basic medical needs (including the mental health medical needs) of the children with disability. Mainstream health professionals do not usually have the expertise in disability required. Nurses, occupational therapists, physiotherapists and speech pathologists receive only very limited training in disability during their undergraduate years and as a result, most complete/ undertake specific post-graduate training in disability relevant to specific clinical streams and courses, or complete a Post-graduate Diploma in Disability. We understand that nurses in particular receive only a one week clinical placement in disability (maximum 6 hours) throughout their undergraduate training and only one semester of tutorials, mainly behavioural in focus and not clinical/ health specific.

Specialised knowledge of physical, motor, social, language, cognitive and personal hygiene/ self-care development is necessary. Specialised assessment skills, including 'acute' clinical observations; cognitive/ standardised assessments; and functional assessments (motor; language/ communication; self-care/ living skills, etc) and on occasions, neuro/ developmental assessments are all essential when determining the nature of the disability and its degree/ severity.

Specialist disability clinical staff required include:

Early intervention by a specialist physiotherapist is important for any physical disability in the short-term. If the child with disability is left without early intervention they will have to compensate posturally in some way to counter the effects of the disability. In the long-term, the body of a child with a physical disability will compensate in such a way that it will lead to problems greater than the initial disability itself. Short-term compensations include muscle shortening and require surgery and intensive post-operative physiotherapy. Long-term compensations result in contractures and deformities, generally requiring the need for specialised equipment/ resources such as modified wheelchairs, customised seating, splinting, etc. In the long-term, the lack of early intervention for children with a disability results in increased care and spiralling medical, therapy and equipment costs.

8.3.2 Not inviting disability experts into detention centres

Article 19, Convention on the Rights of the Child

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programs to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

MDAA has spoken to a wide range of disability service providers in NSW and several in some of the other States and territories. We have been unable to find even one single incident, where disability experts were invited into an immigration detention centre to provide the quality and expert services needed by some of the people with disability.

Jude

Jude is a 13 year old girl with mild to moderate intellectual disability. Jude refuses to attend school and in the past she often went wandering. A couple of weeks ago, Jude went off and did not return to her family for several hours. When she did, she was crying, her clothes were dirty and torn. Since then Jude has been hitting and biting herself. Her family assumes she was assaulted and they reported the incident to centre management. The centre doctor saw her two days after the incident and gave her some sedatives. Since then Jude has continued to harm herself and has been placed in isolation (euphemistically called the 'observation room') on several occasions.

Wilson & Brewer (1992) found that people with intellectual disability were 3 times more likely to be a victim of violent crime than people without disability. Sobsey (1994) and Crossmaker (1991) documented that there is an increase of abuse in congregate care, especially in institutional settings.

Whilst no particular research has been done on the abuse rates of people with intellectual disability in immigration detention centres, the institutional nature of the centres is similar to other institutional settings.

Article 34, Convention on the Rights of the Child

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.

It is important to note that whilst children with disability display a similar range of symptoms and behaviours as reactions to the abuse, for children with disability these behaviours are more often interpreted, especially by non- experts as being part of the disability. It is also important to note here that as with people without disability there is a range of behaviours and symptoms synonymous with Post Traumatic Stress Disorder (PTSD), which in the setting of the immigration detention centres is likely to be diagnosed ( if it is diagnosed at all) as part of other traumatic experiences.

Finally, the weight of evidence from institutional settings has irrefutably proven that punishment is a completely inappropriate way to deal with behaviours such as those displayed by Jude and the only intervention that will have a good impact and outcomes are positive approaches.

8.3.3 Lack of knowledge amongst detainees and families about disability
One of the reasons why children with disability are discriminated against is because of other people's attitudes towards them. In detention centres there are different cultural groups with different attitudes. As discussed above staff are most likely to have no training in disability issues, therefore staff need training to overcome their own attitudinal barriers towards people with disability to ensure that they can use that training in addressing negative attitudes towards disability amongst detainees.

A social approach to disability is needed that highlights the interaction between persons with disabilities and the environment. Such an approach is also needed to ensure the effective protection, development and inclusion of children with disability.

Leo

Leo is a 12 year old boy who is HIV positive. Somehow other detainees learned that and Leo is isolated and people do not want to sit next to him or his family. Catching 'AIDS' is a fear amongst many of the detainees. Although there is information about HIV/AIDS available in different languages, no such information is available to the detainees.

It cannot be assumed that the people in immigration detention centres have been exposed to the same levels of public health education and more broadly public education about disabilities.

Marian

One day in the detention centre Marian collapsed and started foaming from the mouth. Her parents didn't know what to do and screamed for help. They wanted Marian to go to hospital immediately. Two guards arrived and recognised that Marian had an epileptic seizure. They did everything to ensure that she did not hurt herself and also tried to calm the parents. Whilst Marian's parents are educated, they have never seen an epileptic seizure. They don't believe and do not trust the centre's doctor and they worry about what has really happening to their daughter.

9. Issues once children with disability are released from Immigration Detention centres into the Community

Article 2 (2), Convention on the Rights of the Child

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of status, activities, expressed opinions, or beliefs of the child's parents, legal guardian or family members.

9.1. Temporary Protection visas

It is important to note that a large number of the people who apply for refugee status when in immigration detention centres are currently granted refugee status and given Temporary Protection Visas (TPV) Subclass 785. Temporary Protection Visas exclude people from a range of services and entitlements available to people who are granted permanent protection visas and others. These services and entitlements are regulated through either Commonwealth or States and Territory jurisdictions. Over 40% of all TPV holders currently reside in NSW.

Neot

Neot's dad sent him to the immigration detention school facility whenever school was on. Neot would usually sit in the back and say nothing. Sometimes he was asked to answer a question but he never did. He never talked to any of the other children and in general he hardly every spoke to anyone, except to his dad or his Mum.

Whenever Neot was given the opportunity to do any written work he excelled in writing stories and in maths. A Psychiatrist was called in to do an assessment but he could not communicate with Neot.

A mental health nurse three months later finally discovered that Neot had a severe hearing impairment and urgently needed hearing aids. Neot and his family are living in the community but as a temporary Protection Visa holder Neot cannot access the hearing services and has been using an ill - fitting second hand hearing aid for some time.

TPV holders are not eligible for the full range of social security benefits. The 'Special Benefit' designed for TPV holders is less than the dole. TPV holders are not eligible for Job assistance programs or English language programs. For minors with a disability this means that they cannot enter specialist training programs. Without specialist skills minors with a disability who are TPV holders face an almost insurmountable barrier to the labour market. As many TPV holders are likely to be granted continued refugee protection, the cost of continued unemployment and under utilization of skills will be transferred to the broader community.

TPV holders are also not eligible for disability pension or the full range of benefits attached which place them at a financial disadvantage. That financial hardship is compounded by the cost of disability, such as medication, equipment, transport costs, etc. Not being eligible for some Commonwealth benefits, such as the Disability Support Pension, means people are ineligible for some Commonwealth / State funded programs such as PADP (Physical Aids for the Disabled Program).

As TPV holders have no right to family reunion, this combined with the ineligibility for a range of services, means that any care which might need to be undertaken for the child with the disability is largely being provided by one person (usually the mother).

Albert

Albert's family ( as shown on page 8 of this submission) has made contact with an advocacy agency and has tried to organise an assessment for Albert, but has been unsuccessful in accessing the assessment through the appropriate disability government agency in NSW (the Disability Directorate of the NSW Department of Ageing, Disability and Home Care) as Albert is not a permanent resident (DADHC; policies for Working with People with Disabilities Version 2 Departmental Intake Process [clarification on this point is currently being sought by MDAA])

Whilst TPV holders can access Commonwealth funded Early Health Assessment and intervention programs provided by torture and trauma services, these assessments and programs do not focus on disability. The expertise of those services is torture and trauma counselling, not identifying disabilities and designing intervention programs.

It appears that children with disability who are TPVs in NSW are not eligible for the specialist early intervention services available to other children with disability. Children with disability who hold a TPV appear to be able to access 'mainstream school' and are most likely to experience the same or greater difficulties as all children with disability experience in 'mainstream' school settings.

The consequences of TPV holders' ineligibility for case management offered to other refugees by settlement services is that other services, often small, under-funded ethno-specific community based services, have to spend huge amounts of time trying to procure specialist and affordable services to assist children with a disability.

Financial hardship is also compounded by TPV holders' ineligibility for specialist housing, or in most states, such as NSW, not even being allowed on the public housing waiting list. They are also ineligible for Commonwealth funded services which could assist with finding housing that is appropriate for the child with disability.

Overall there is a lack of clarity about what TPV holders are and are not eligible for in NSW and there are clear inequities across different State and Territory jurisdictions. We understand that DIMIA has refused to produce comprehensive information for service providers on what services TPV holders are eligible for. There is also some lack of clarity about what state funded services TPV holders can access.

9.2 Cost shifting

It is clear from the evidence available that if a person with a disability cannot access disability services, there is a high cost to them in terms of their opportunities and options as discussed previously in this submission, but there is also a greater cost to the community. In most cases this cost will be carried by the States and Territories, not by the Commonwealth.

To highlight again the point about the importance of early intervention, the range of studies below emphasise the long-term cost effectiveness of early intervention. The highly specialised, comprehensive services necessary to produce the desired developmental gains are often, on a short-term basis, more costly than traditional school-aged service delivery models. However, there are significant examples of long-term cost savings that result from such early intervention programs:

A number of specialist disability services do not offer services to people who are temporary residents, but it appears that many non- government disability agencies have a 'don't ask, don't tell' attitude.

Those agencies are placed in the position of having to undertake extensive case work assistance which can create a significant burden on their existing resources. This again highlights a significant cost shifting from the Commonwealth. In addition, many disability services have little experience in working with newly arrived refugees and often have limited experience with unsupported NESB clients.

9.3 No links between detention centres and services in the community

On release from the detention centres families are not referred to the services they need and any useful assessments, case notes or programs from detention are lost. Without this, families are left to negotiate the maze of services alone, without interpreters. Most families not only don't know the words for services, but they also don't understand the service system. The disability service system in particular, with its multiple entry points and with many, many 'dead-ends' is a challenge to most families, let alone those without language interpreters and without any understanding of the Australian service system.

8. For more Information

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1. The definition of NESB refers to a person:

Last Updated 30 June 2003.