Click here to return to the Submission Index
Submission to National Inquiry into Children in Immigration Detention from
the Western Australian Government
The Commonwealth Government has jurisdiction for immigration policy matters through its powers under the Migration Act 1958 and the Immigration (Guardianship of Children) Act 1946 Act. The Commonwealth is therefore fully responsible for current immigration policy settings, including the mandatory detention of 'on-shore' child asylum seekers and restricted access for Temporary Protection Visa (TPV) holders to Commonwealth-funded settlement services on release from detention.
The Western Australian Government is obliged to operate within the parameters imposed by Commonwealth immigration policy. WA Government service provision responsibilities affected include the care and protection of children; law and order; education; and health services delivery. Under the WA Child Welfare Act 1947, for instance, the WA Department for Community Development (DCD) is responsible for investigating and responding to allegations of child maltreatment involving children held in immigration detention facilities or released into the community that are brought to DCD's attention by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) or members of the community. DCD also provides a variety of support services to unaccompanied children released from detention as a consequence of its role as guardian for unaccompanied children .[1]
It is the WA Government's view that the provision of services by WA Government agencies to 'on-shore' asylum seekers, including children, should be based on memoranda of understanding (MOUs) negotiated with DIMIA.
The WA Government's broad position on matters relating to all families and children, including people held in immigration detention facilities, family groups holding TPVs and unaccompanied children living in the community, is based on the following principles:
- The best interest of the child is the primary consideration in all actions regarding children.
- Children must be able to live in a safe environment and to be protected from significant harm in an environment where their physical, intellectual, cultural and psychosocial needs are addressed.
- Family care is the most appropriate form of care for children, and families should be helped to care for and protect their children.
- Institutional care is the least preferred option for providing support to children.
1. The provisions made by Australia to implement its international human rights obligations regarding child asylum seekers, including unaccompanied minors.
INTERNATIONAL CONVENTIONS
The 1951 United Nations Convention Relating to the Status of Refugees was ratified by Australia on 22 January 1954, and the 1967 Protocol Relating to the Status of Refugees was accepted by Australia on 13 December 1973. A refugee is defined in Article 1A(2) as a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who not having a nationality and being outside the country of his former habitual residence as result of such events, is unable or, owing to such fear, is unwilling to return to it.
An asylum seeker is someone who is awaiting the determination of his/her claims for refugee status. Once a person's claim has been accepted he or she is described as a refugee. The United Nations Convention and the 1967 Protocol relating to the Status of Refugees do not require asylum seekers to obtain a visa to enter a country in which they seek recognition of their status as refugees.
The United Nations Convention on the Rights of the Child (CROC) embodies the world community's view of the minimum standards that governments should adopt in the treatment of all children, regardless of nationality or immigrant status. It is the most widely accepted of all the United Nations Human Rights instruments and has been by 191 countries, including Australia on 17 December 1990.
Relevant provisions of the CROC include:
- States shall take all appropriate measures to ensure that children are protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs of the child's parents, legal guardians, or family members [Article 2];
- The best interests of the child shall be a primary consideration [Article 3];
- Children should not be separated from their parents against their will, except when competent authorities determine that such separation is necessary for their best interests [Article 9];
- States shall take all appropriate measures to protect children from physical or mental violence, abuse and neglect [Articles 19 & 34] and to promote recovery and social reintegration of children subject to neglect, exploitation, abuse, torture or armed conflict [Article 39];
- All asylum seeking and refugee children, unaccompanied or accompanied, should receive appropriate protection, humanitarian assistance [Article 22] and education [Article 28];
- Mentally or physically disabled child should enjoy a full and decent life and should be given special care and assistance [Article 23];
- All children are to be provided with a standard of living adequate for their physical, mental, spiritual, moral and social development [Article 27];
- Detention of children should be used only as a measure of last resort and for the shortest appropriate period of time [Article 37].
In ratifying the CROC, Australia accepted that it had legally binding international obligations with respect to the treatment of children. Although the CROC has not been incorporated into Australian legislation, the effect of ratification of international instruments in general was raised in Minister for Immigration v Teoh (1995), in which the High Court held that:
ratification of a treaty by the State's Executive, while not amounting to a binding rule of law, does create a legitimate expectation that the Government and government agencies will act in accordance with that treaty.
The provisions of the CROC are implemented in Australia through the implementation of the Commonwealth's Human Rights and Equal Opportunity Act 1986, which refers to the Convention as a 'relevant international instrument'.
Western Australian Government Position
The right of every sovereign nation to protect its borders is unquestioned. The State Government supports measures to protect Australia's borders against people smugglers, including the establishment of a proper coast guard facility to patrol our coastline, as well as the policy of mandatory detention to discourage the trade in the trafficking of people. However, there is also a need to get the correct balance between this border protection and compassion. Compassion should start at once and most obviously with both accompanied and unaccompanied child asylum seekers, who should be accorded their fundamental rights in keeping with the CROC. Children should not have to suffer as a result of the Commonwealth Government's legitimate efforts to protect its borders. In particular:
- The dehumanisation of asylum seekers by the Commonwealth Government to create a climate of fear in the Australian community using factually inaccurate and emotionally charged claims should cease, in line with the resolution of the Ministerial Council on Immigration and Multicultural Affairs in April this year. The Council resolved (Agenda Item 4.1) to discourage the use of inflammatory and discriminatory language, and encourage the use of positive language that promotes community harmony and, as agreed during the debate, particularly by senior levels of Government.
- Although mandatory detention is required to enable identity, security and health checking, and ensuring that those who have failed the test of being a refugee and at high risk of absconding do not abscond, the Government should promote community understanding of the facts about asylum seekers and children in particular.
- It is inappropriate to discriminate against children on the basis of their method of arrival in Australia.
2. The mandatory detention of child asylum seekers and other children arriving in Australia without visas, and alternatives to their detention.
PRINCIPLES
As referred to above, Article 37 of the CROC states that detention of a child must be used only as a measure of last resort and for the shortest appropriate period of time.
Western Australian Government Position
The Western Australian Government's position can be summarised as follows:
- As a general rule, children should be held in detention only as last resort, with the best interests of each child being foremost in any decision.
- Children should
be held in detention centres for the minimum period possible in line
with the following principles, as announced by the Federal Leader of
the Opposition on 26 January 2002:
- Where children seeking asylum are unaccompanied by family members, they should be fostered out in the community as quickly as possible.
- Where children are accompanied, they should be allowed with their mothers to be released from the centres into ordinary style housing under appropriate supervision.
- Where for some reason a more formal detention setting is required for a child's family, those families should be separated from the other asylum seekers and housed in more appropriate conditions.
- On arrival, immigration authorities should identify children promptly, and their general wellbeing, health and cultural needs assessed. This applies particularly to unaccompanied children, who may be in detention without siblings or extended family.
- Conditions in detention centres must meet the special needs of children.
- Decisions about child placement must relate to the particular circumstances of each child on a case-by-case basis.
The decision-making process regarding determination of refugee status and any subsequent appeals must be expedited to minimise the time children spend in detention. Children should be out in the community where they can live more normal lives and not be subjected to further trauma and stress, above that experienced prior to arrival in Australia. Minimised detention time is particularly important for unaccompanied children, where consideration of their best interests on a case by case basis must include decisions based on maintaining any links the child may have with siblings, more distant relatives or adults in their cultural group. Where an unaccompanied child has no siblings or distant relatives in detention, particular attention is required to ensure that their needs are addressed.
With respect to allegations of child maltreatment in detention facilities, separation of a child from his or her family should only be considered when there is no other way of ensuring the safety of the child concerned. Where this occurs, the WA Department for Community Development will continue to work with the child, family members, DIMIA and service providers to ensure the safe return of the child to the family, where appropriate.
The Commonwealth Government is tending to deny children seeking asylum their rights under the CROC by treating them as unauthorised arrivals without documentation first, and only secondarily as children.
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 the children are detained;
- health, including mental health, development and disability;
- education;
- culture;
- guardianship issues; and
- security practices in detention.
CONDITIONS UNDER WHICH CHILDREN ARE DETAINED
Few Western Australian government agencies are familiar with the conditions in detention centres in Western Australia. State agencies have no right of access and must be invited to the centre. It is therefore not possible to assess the general conditions in the centres, although some comment is made below on specific issues.
Child Protection
DIMIA maintains the ultimate duty of care for all people held in immigration detention facilities, including children. As indicated above, the WA Department for Community Development (DCD), which has statutory responsibility for child protection, has no right of entry to the detention centres which are on Commonwealth land, and must be invited to visit.
DCD has a key role in assessing and investigating child maltreatment notifications relating to all children in detention. This includes determining the case classification and priority of response for such notifications, and providing recommendations to DIMIA to ensure the safety and best interests of children. DCD assesses the situation on a case-by-case basis and responds as it would to the notification of maltreatment of a child living in the community.
Responsibility for acting on recommendations made by DCD to secure the care and protection of children rests with DIMIA. DCD does not have the authority to remove a child from a Commonwealth immigration detention facility. The authority for such a decision rests entirely with the Commonwealth, following DCD advice.
In the 2001/02 financial year to date, DCD has responded to 13 notifications (not individual children) of child maltreatment in immigration detention facilities in Western Australia. Three of these referrals were substantiated. In this same period DCD has responded to 25 referrals to assess and recommend as to the general welfare of children including unaccompanied minors. Nine of these related to a request from DIMIA to assess the emotional status of all unaccompanied children in detention. The remainder related to advice on parenting issues.
To assist DIMIA and Australian Correctional Management staff to recognise maltreatment when it has occurred, or to recognise when a child may be at risk of maltreatment, DCD is able to provide training on these issues. Currently DCD is investigating the feasibility of providing a Positive Parenting Program for the parents of children in detention.
Negotiations are progressing on an MOU that involves clarification of DCD and DIMIA child protection roles and responsibilities in immigration detention facilities.
Western Australian Government Position
The Western Australian Government welcomes the progress being made on the MOU relating to child protection. It is concerned, however, about the discrepancy between DCD's statutory responsibility for child protection and its lack of authority within detention centres. In particular, detention centre staff may lack the skills and abilities required to identify children in need of protection and to notify DCD.
Given their extreme vulnerability, all unaccompanied children in detention should have a guardian who can ensure that the full range of their needs (relating to education, health, legal status, safety and general welfare) is met. Such a guardian must have the authority and capacity to fulfil the role in the best interests of the child. Since children are being detained in centres under Commonwealth control, State government officers are not in a position to exercise guardianship responsibilities effectively.
HEALTH
Public Health
In general, the management in Western Australia of the prevention and control of communicable diseases in the detention centre environment for children has been effective and well coordinated. Children are screened for symptomatic infections and brought up-to-date with the Australian Standard Vaccination Schedule soon after arrival. Western Australian Government Public Health Units assist with immunisation and provide public health advice at their own cost. The protocols for screening for infections and immunising against diseases for detainees were drawn up in collaboration between DIMIA, the Commonwealth Department of Health and Ageing and State and Territory Health Departments. These protocols provide for a high standard of immunisation and infection control.
In addition, there is no indication that the food and water supplied to the detainees has resulted in any outbreaks of food or water-borne disease.
In summary, the provision of medical services for the prevention and control of infectious diseases in the detention centre environment appears to be satisfactory.
Mental Health
The Port Hedland Detention Centre employs a psychiatric nurse, general practitioner and clinical psychologist with child and adolescent experience to meet the mental health needs of children and adolescents and their parents. The staff consult with the State Mental Health Service at Port Hedland at their discretion about individuals.
While it is possible for services such as the Transcultural Psychiatry Unit and the specialist treatment service for people who have experienced torture or other severe trauma, located in Perth, to liaise with personnel at the detention centre, the opportunity for direct referral where required is limited.
Parental mental health is also important for child and adolescent development. Concern about the availability of assessment of and treatment for psychiatric illness in adults and their children in detention has been consistently raised with the Western Australian Government by the Royal Australian and New Zealand College of Psychiatrists. Concerns include the lack of routine screening for mental disorder by detention centre staff, reluctance (based on cost considerations) of detention centre management to use appropriate treatment, lack of confidentiality of medical records, and the potential for selective referral to mental health professionals.
The WA Department of Health understands that the Port Hedland Detention Centre does not routinely screen for mental disorder, but relies on individual or staff referral for an assessment. Staff referral is likely to be biased towards observable behaviour that presents management problems. Parents may be reluctant to refer themselves or their children for fear of jeopardising their refugee status.
The mental health staff employed by the detention centre are also seen as biased by some of the detainees. It is known that records are made available to DIMIA and this is likely to deter help-seeking. The lack of confidentiality of mental health records has also been reported to the Mental Health Division of the WA Department of Health.
The North-West Mental Health Service has experienced at least one incident where recommended treatment has been questioned on the basis of cost by the Detention Centre's general practitioner and a less expensive but unsuitable substitute proposed. Fortunately, it was agreed between the State-employed psychiatrist and the general practitioner that the prescribed medication would be used. However, this example indicates the potential for cost considerations to adversely influence clinical decisions.
Western Australian Government Position
Extended periods of detention of children suffering trauma and stress through fleeing their home country compounds this trauma and stress. A detention centre is clearly an inappropriate environment for child and adolescent development. For mental health reasons, it is reiterated that children should be held in detention centres for as short a time as possible.
The provision of mental health services to families and children in detention services is a Commonwealth responsibility. At present, the WA Department of Health provides a number of services, including psychiatric services, to the detention centres in WA on request from centre management, without reimbursement from the Commonwealth and on an ad hoc basis.
Formal arrangements should be developed between the WA Health Department and DIMIA to ensure the provision of adequate mental health services to families and children in detention, and appropriate reimbursement to the State.
EDUCATION
Children Residing in Detention Centres
In addition to Article 28 of the CROC, referred to above, Article 22 of the UN Convention Relating to the Status of Refugees requires States to provide the same elementary education as is provided to residents and other education that is as favourable as possible.
If children are to be held in detention, even temporarily, appropriate educational facilities must be provided. The WA Department of Education has minimal contact with children while they are in immigration detention centres. The Western Australian Government is therefore not in a position to comment on any education programs that may be offered by the Commonwealth within the detention centres. It seems clear, however, that most children in detention centres are not receiving the same broad education as other children in Australian schools.
Some children in detention are attending school in Western Australia. In 2001 three school-aged detainees were enrolled in Derby District High School. The students were released each day from the Curtin Detention Centre and returned in the afternoon. This year, 16 detainees, five primary and 11 secondary, are being released each day from the Centre to attend school. The criteria used by Derby District High School when considering accepting the detainees are: adequate mastery of English; a medical clearance; and that they are of school age. Effective English as a Second Language programs within the Centre are therefore clearly required.
The only Commonwealth funding provided to the Western Australian Government for the children's schooling is the General Recurrent Grant of $479 for a primary school child and $711 for a secondary school student, well below the actual cost of providing such schooling.
Some of the children released from immigration detention centres have had little or no formal education prior to coming to Australia. Those who have attended school may have been taught in very large classes, by rote, and with very few resources. The educational environment in Australia is, in most cases, totally different from their experience.
In the Community
Children who are granted a Temporary Protection Visa (TPV) and released into the community are eligible to enrol in a government school.
The Commonwealth, through the General Recurrent Grant, provides funding for children on TPVs to attend mainstream classes. They are not, however, entitled to access the Commonwealth New Arrivals program, which provides targeted per capita funding for students who are newly arrived in Australia, whose first language is not English, and who require intensive English language assistance to enable them to participate fully in mainstream educational programs. For students to attract this per capita funding they must hold Australian residency status.
Schools are required to enrol children on TPVs without the funding support traditionally provided to refugees under the New Arrivals program. These children are at risk of not achieving the major learning outcomes of schooling to levels that would enable them to achieve their potential because they have very low levels of English. The number of TPV holders that presented for enrolment in 2002 in Western Australia is not yet established.
In the face of the Commonwealth's refusal to accept responsibility for providing the funding required to meet the educational needs of TPV children, the Western Australian Government has undertaken a number of initiatives:
- The Western Australian
Department of Education has worked with the Conference of Churches (WA),
the Office of Multicultural Interests and the Association of University
Women in an attempt to provide support and services, in particular English
as a Second Language (ESL) tuition.
- A special English
as a Second Language centre, funded by the Western Australian Government,
has been established at Balga Senior High School for unaccompanied minors
residing in close proximity to the school. As of 11 April 2002 there
are 11 students attending this centre.
- Intensive Language Centres (ILCs) have been requested to accept TPV children on a spare capacity basis once eligible students have been accommodated.
In addition, all WA government schools are required to establish and implement procedures to plan for and provide appropriate educational programs to any children who have been identified as being at risk of not achieving their educational potential. Western Australian Government funding is provided to support the Students at Educational Risk (SAER) Making the Difference strategy. Any child released from a detention centre and enrolled in a government school who was experiencing the effects of trauma and detention would be included in programs provided by the school. As schools are not required to report to the Central Office of the Department on such programs it is difficult to ascertain how many children previously held in detention centres are included in SAER programs.
Western Australian Government Position
The sooner that children in detention centres can be engaged in meaningful educational programs the better, as this will ensure a smoother transition into Australian schools. The WA Department of Education would be willing to provide or assist in the provision of appropriate educational programs to children in detention centres (particularly effective English as a Second Language programs) should the Commonwealth be prepared to fund such an initiative.
In terms of funding provided to children in the community, the Commonwealth should not discriminate between TPV holders and those with Australian residency status. In particular, intensive English language assistance should be provided on the basis of educational need. The failure to provide this assistance can impact not only on the children holding a TPV in achieving educational outcomes through an inability to fully participate or requiring additional teacher assistance, but also other children in the class.
SETTLEMENT SERVICES FOR UNACCOMPANIED CHILDREN
The WA Department for Community Development (DCD) provides settlement services to unaccompanied children released from immigration detention in Western Australia. As of April 2002, the Department has open cases involving 66 unaccompanied children. The average age of unaccompanied children released in Perth at present is approximately 16 years.
DCD arranges (typically on extremely short notice from DIMIA) for children to be met on arrival in Perth after their release from detention and provided with emergency accommodation leased by DCD for this purpose. The children are provided with information and assistance to access community resources, such as the Association for Services to Torture and Trauma Survivors, Centrelink, education and training facilities and longer term accommodation. Where necessary, they are assisted with bond money for rental. DCD also provides counselling and payments for expenses such as school fees and clothing.
Unfortunately, little progress has been made on an MOU regarding support services for unaccompanied children released from detention into the community that is currently being negotiated multilaterally by DIMIA and a State and Territory working group.
At present, DCD is operating according to the terms of a draft MOU with the Commonwealth dating from 1996, but never signed by the Commonwealth Minister for Immigration. The draft MOU compensates the Western Australian Government for approximately 29% of the salaries and related costs of DCD field staff working with unaccompanied children released from detention. No provision is made for important settlement services such as on arrival accommodation, clothing and incidentals.
As well as providing material support and counselling, DCD has developed a number of strategies to reduce the social isolation unaccompanied children experience following release from detention. In doing so, the Department is seeking to build networks with other organisations that provide services to unaccompanied children through mechanisms such as frequent face-to-face discussions, e-mail groups and community networking.
DCD strategies include the following:
- To make it easier for unaccompanied children to contact DCD staff and to avoid misunderstandings in DCD reception areas, special purpose message cards to be left for staff have been designed.
- In addition to liaising with schools about individual refugee students, DCD staff also visit schools to provide information to small groups of unaccompanied children. Where appropriate, teachers attend the discussion to improve follow-up and reinforce the advice provided.
- A newsletter that provides practical information about Centrelink and other issues is produced for unaccompanied children. The newsletter, available in English and translated into Dhari, is also distributed to schools, DIMIA and other agencies in contact with TPV holders.
Western Australian Government Position
There is an urgent need for completion of the MOU regarding support services to unaccompanied children released from detention into the community, to ensure adequate service provision to these vulnerable young people.
The continuing failure of the Commonwealth Government to meet its responsibilities in relation to funding these services continues to impact detrimentally on the WA Government. The MOU should provide for full cost recovery to the Western Australian Government.
COMMONWEALTH-STATE ADMINISTRATIVE ARRANGEMENTS
The discussion above makes it clear that in a number of areas, including education, health and settlement services for unaccompanied TPV children, there is an urgent need for formal arrangements between the Commonwealth and State agencies to ensure adequate service provision to children.
Western Australian Government Position
Children in detention centres
The Commonwealth is responsible for children in Commonwealth detention centres. The Western Australian Government is willing to provide services according to administrative and funding arrangements set out in memoranda of understanding. The State has a role in assessing child maltreatment allegations relating to children in detention centres that are reported from within or outside the detention centres; the State will continue to perform that assessment role as part of its child protection function. In all other matters, there should be full cost recovery to the State for any services it provides.
Unaccompanied children in the community
Although the Western Australian Government has guardianship responsibility for unaccompanied children released into the community under a delegation from the Minister for Immigration, ultimate responsibility for the children's welfare remains with the Commonwealth.
Commonwealth funding is an area of particular concern. According to the Commonwealth, the Grants Commission provides the States with funding sufficient to the children's needs. However, although the Grants Commission potentially redistributes GST revenue from States where the children's needs are lower than average to States where the needs are higher than average, the Commission provides no additional funding in aggregate to cover the additional costs of meeting Commonwealth responsibilities. While there are other specific sources of funding, in practice this funding falls far short of the need eg. no provision for intensive English assistance and only 29% of the cost of settlement services, as explained above.
The Commonwealth must recognise the special needs of these children and provide funding for all the services required to meet them rather than shifting these costs on to the State. One way of achieving this end would be for DIMIA to assess needs and purchase State services as required.
4. The impact of detention on the well-being and healthy development of children, including their long-term development.
The potential negative impact of the refugee experience upon children is well documented.
Children in detention, by nature of displacement, are generally deprived of their normal social, economic and cultural environment, which has the potential to disrupt their natural development. Many children lose role models in a detention and refugee situation, their role in the family may change, and the continuity of experience required for normal development may be further undermined when the children come into contact with different cultures.
The emotional and psychological well-being of children in detention is particularly jeopardised when they are exposed to adult distress, self harming behaviours and violence [2]. Children are made even more vulnerable by distress and psychological disorder in their parents, and by the inappropriate burden of supporting parents and caring for siblings. The trauma experienced by many children in detention may manifest itself in withdrawal reactions, muteness, food refusal and sleep disturbance. Newman suggests that trauma has long-lasting effects on children and is likely to influence the children's capacity for trust, empathy and attachment. Traumatised young children are likely to suffer from depression, anxiety and post-traumatic stress symptoms.
More broadly, research into early brain development [3] suggests that trauma experienced during early childhood may increase the likelihood of complex problems emerging during adolescence and young adulthood, including drug abuse and anti social behaviour. Clearly the State Government is concerned about such long-term problems being evidenced in children granted refugee status, both in relation to the individuals themselves as well as the impact on the wider community.
As noted by the Federal Leader of the Opposition in his Australia Day address this year, Australians are becoming increasingly distressed with the plight of the children held in detention. All children, regardless of their family background, should have the chance to be happy and healthy and get a good education.
A detention centre is an impoverished social, educational and physical environment for child and adolescent development. There is also the risk of physical and sexual abuse and for the experience of further trauma due to rioting and other expressions of adult frustration. The likelihood that children in detention have experienced extreme stress prior to arrival can be expected to compound the effects of living in a detention centre.
Western Australian Government Position
The manner in which the Commonwealth Government holds children in detention is not meeting their basic needs and therefore clearly contravening the CROC provisions. The detention of children for indefinite periods of time is of particular concern. It is not in the best interests of children to be held in immigration detention facilities. At the very least, every effort should be made to minimise the period of time in detention, and conditions within detention facilities should be conducive to the safe care and protection of all detainees, particularly children.
If the Commonwealth is to continue to hold child asylum seekers in immigration detention facilities, DIMIA has a duty of care to ensure that conditions are not prison-like, that they meet the psycho-social, educational, health and cultural needs of children and protect them from exposure to harm. DIMIA also has an obligation to collaborate with Western Australian Government departments to achieve these objectives and to advise agencies with statutory responsibilities for the protection of children when children are considered to have suffered harm or to be at risk of harm.
In addition, the importance of accommodating a child in detention with their family must also be considered including, in relation to unaccompanied children, their siblings, extended family or more distant relatives in detention with them.
Because of the impact of detention on children's development, every effort should be made by the Commonwealth to minimise the time children spend in detention. The extended length of detention for some children makes their rehabilitation post-release very difficult, imposing a heavy and ongoing burden on State service provision.
5. The additional measures and safeguards which may be required in detention facilities to protect the human rights and best interests of all detained children.
The conditions in detention facilities, the experience of detention and other factors make it difficult to undertake effective assessments of the well-being of individual children held in immigration detention facilities.
Recent WA Department for Community Development (DCD) psychological assessments of the best interests of individual unaccompanied children held in immigration detention facilities resulted in the following recommendations to DIMIA:
- Children in immigration detention facilities should have improved access to psychiatric services or be transferred elsewhere to receive specialist mental health treatment.
- Immigration detention facilities should not be 'prison- like'.
- A more personal relationship between detainees and staff than currently exists would reduce the 'prison-like' atmosphere for children.
- Minimising processing time for visa applications and providing regular updates concerning status would lessen the anxiety of children.
- Increased contact between unaccompanied children still in detention and the outside community through outside visits or increased community visits to centres.
- Communication by unaccompanied children still in detention with their family or other people in Australia or from their country of origin should be facilitated.
- Improved access to education services, translators and computer and internet access within centres.
- Increased access to counselling provided by people of a similar cultural orientation.
- An independent advocate should be appointed for unaccompanied children to ensure their needs are met and their rights upheld.
Western Australian Government Position
The Western Australian Government supports the Commonwealth Government taking responsibility for acting on the above recommendations.
Other measures and safeguards needed to protect the human rights and best interests of children in detention are raised under Terms of Reference 3 and 4.
6. The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention.
The current Commonwealth policy of restricting access to post-arrival services effectively creates two classes of refugees living in the community:
- those who enter Australia via United Nations Human Rights processes off-shore have full access to a comprehensive range of settlement services, including education;
- TPV holders, both family groups and unaccompanied children, are denied access to many settlement services. This is a source of additional stress to people who are often already traumatised as a result of events in their native land, the journey to Australia and a prolonged period in detention. It also shifts the financial burden for providing these services to the State.
Western Australian Government Position
The Commonwealth must take responsibility for the consequences of its immigration policies in this area.
The failure to provide access to services places significant demands upon community volunteer groups and Western Australian Government service providers in the absence of DIMIA-funded settlement services. It also makes it more difficult for TPV holders to adjust following release from detention with potential long-term impacts on the State.
The Commonwealth must recognise the need to collaborate more effectively with Western Australian Government and community agencies to enable TPV holders to settle into the community. In doing so, the Commonwealth should:
- ensure that realistic funding levels are provided to the States and Territories for the extensive services required to support refugees, particularly both accompanied and unaccompanied children, as they leave detention and enable them to become contributing members of the community
- ensure TPV holders have access to the full range of Commonwealth settlement supports.
One specific issue of concern is the level of reimbursement DIMIA provides to DCD for support services to unaccompanied children. Currently this meets only a fraction of the costs incurred, a matter that requires urgent attention through completion of an MOU. Another is the lack of provision for intensive English language assistance.
The Commonwealth should also consider funding community groups that support TPV family groups and individuals, such as the Coalition Assisting Refugees After Detention in WA.
CONCLUSION
In this submission the Western Australian Government has identified a number of concerns about the adequacy and appropriateness of the Commonwealth's treatment of child asylum seekers and other children who are, or have been, held in immigration detention.
The Western Australian Government welcomes the opportunity to work with the Commonwealth to ensure that children who are, or have been, in immigration detention are enabled to develop their potential and contribute to society.
1. 5 of the Commonwealth Immigration (Guardianship of Children) Act 1946 empowers the Minister for Immigration and Multicultural and Indigenous Affairs to delegate all guardianship powers, functions and duties regarding unaccompanied children to State and Territory child welfare departments.
2. Newman, L. (2001) Children in Detention - the Burden of Trauma in Developing Practice, Summer, 2001/2002.
3. Marshall, J. & Watt, P. (1999) Child Behaviour Problems A Literature Review of the Size and Nature and Prevention Interventions. Perth Western Australia: The Interagency Committee on Children's Futures.
Last Updated 9 January 2003.
