Transcript of Hearing - PERTH
Monday 10 June 2002
Please note: This is an edited transcript
Commissioners:
DR S. OZDOWSKI, CommissionerDR T. THOMAS, Assistant Commissioner
MRS R. SULLIVAN, Assistant Commissioner
Counsel Assisting Commission
MS V. LESNIE
COMMISSIONER OZDOWSKI: Welcome to every one, I think we will start rolling and I would like to formally open this public hearing which is one of series of hearings conducted around Australia. My name is Sev Ozdowski and I am the Human Rights Commissioner and with me are my two Assistant Commissioners. To my right is Dr Trang Thomas, Professor of Psychology at the Royal Melbourne Institute of Technology. And to my left is Dr Robin Sullivan who is Queensland's Children's Commissioner. At the end of the table on the left is Vanessa Lesnie who is the counsel assisting the Inquiry.
Before we commence hearings, I would like to note the following matters. First I would like to draw your attention to confidentiality and privacy issues. I have given a number of directions to protect the privacy, security of employment and human rights of people assisting or otherwise involved in the subject of this Inquiry. The identity of asylum seekers giving evidence, producing information or documents or making submissions to this Inquiry, is not to be disclosed. The identity of all other persons giving evidence, producing information or documents and making submissions to the Inquiry who request anonymity is not to be disclosed and the evidence or information produced to the Inquiry is not to be published in any way that identifies or could identify an individual.
The Commission believes it is important to respect the privacy of individuals and to protect children in particular. Even where individual cases have been made public, individuals should not be named in this hearing. Secondly, a number of comments have been made in the submissions into the Inquiry about individuals who have worked at detention centres. These people should not be named because they do not have opportunity to defend themselves against allegations made.
I would like also to ask media to adhere to the following where a witness requests not to be identified by name or photograph, please respect that request and when filming. Please also respect the wishes of those who may not want to be included in any background shots.
The purpose of the hearings of the Inquiry is to test the quality of evidence submitted to us. If you feel that you misunderstood our questions or didn't hear them, please ask for clarification. Because of time limits, we may choose to address some questions in writing to you, so I would like to ask your cooperation in responding to our questions.
Now, I would like to welcome our first witness, Ms Marry-Anne Kenny. Could you please come forward and take a place at the witness stand.
MARY-ANNE KENNY, affirmed [9.05am]
COMMISSIONER OZDOWSKI: Thank you very much. Now, I would like to ask you to make an opening statement. In particular, I would like to ask you to state in this opening statement your expertise. Please remember, we are interested in facts. This Inquiry is to test the merits of fact. We are, as an Inquiry, trying to also find out whether Australia is meeting its international obligation with relation to children. In particular we are interested in conditions of detention and also, we are interested in impact of detention of children. So, if I could ask you to open with a statement?
MS KENNY: Okay. Well, I am a solicitor with Community Legal Centre, SCALES, which is the Southern Communities Advocacy Legal and Education Service. I am also a senior lecturer in law at Murdoch University and in my position at Murdoch, I work at SCALES which is a clinical course for final year law students. My particular interest in appearing before this Inquiry is to reflect upon experiences that SCALES has in providing immigration advice and assistance to asylum seekers.
We have been working with asylum seekers for the last, I think, 3 or 4 years and much of that work has been in working with people who have been in detention or are currently in detention or post detention. We have had a contract to assist with people in detention at the Perth Detention Centre which obviously doesn't hold children but we have come into contact with children in remote centres such as Curtin and Port Hedland, occasionally as well.
We also work with Temporary Protection Visa holders who are in the community. In particular, just recently we have been asked by the Department of Community Development in WA to provide legal advice and assistance to unaccompanied minors with their applications for permanent protection whilst they are on their Temporary Protection Visas. So, that is a very broad outline of the work that we do.
The submission that we decided to put in was to focus on the work or basically, the legal representation of children and young people because we felt you would probably be receiving a lot of evidence on issues around psychological issues, education and so on from people who had more expertise than us and we thought it would be good to reflect upon issues regarding legal representation and the participation of children in legal process because from the contact that we have had with young people and children, it seems that there don't appear to be guidelines that are used by the Department of Immigration themselves. Nor legal representatives that have regard to the particular issues and barriers that children face let alone barriers that children who are seeking asylum face.
So, that was really the focus of our submission in terms of legal representation and legal capacities. I did not want to say too much more but perhaps if there are particular issues that you wanted me to - I know that you have got quite a packed agenda so I am quite happy to address what ever issues arose out of our submission that you would like to ask me about.
COMMISSIONER OZDOWSKI: Yes, thank you very much and can I congratulate you and people also seated with you from the Southern Communities Advocacy Legal and Education Service, SCALES, on the submission. It was certainly a very substantial submission, well thought through and was a pleasure to read it. But now, let us go to the issues the submission raises. I would like to speak with you to start with about the issue of guardianship. On page 20, you said that as regards unaccompanied minors, the roles and responsibilities between the State and Commonwealth are not clear; there is confusion. Could you perhaps explain what you mean by this?
MS KENNY: Well, when unaccompanied minors arrive here, they are covered by the Immigration Guardianship of Children Act, the Commonwealth Act when they arrive and looking at the historical foundations of that particular Act, it appeared that it was really to deal with the post World War II migration of children where we were actively seeking to bring young people and children to the country. So, the frame work of the particular Act doesn't seem to have been amended or adapted to the current situation.
So, it appears that under the Act that the Minister is obviously the guardian when they first arrive and considering that the Department of Immigration is also deciding their immigration status, it appears to be quite a conflict.
COMMISSIONER OZDOWSKI: How long does the Minister remain a guardian?
MS KENNY: Yes, well that is not clear. That does not seem to be clear to me. From practice, from talking to people, the State authorities who work with unaccompanied minors, they appear to see their role as beginning once the children are released from detention. And certainly, my understanding from the evidence given or the submissions made to the recent Full Federal Court case, which I refer to here, Odhiambo, and I think you are going to hear from Marg le Sueur after me, who was involved with that case so you perhaps would ask her some more questions about that.
COMMISSIONER OZDOWSKI: And what is the legal situation, okay, the child arrives here and assuming the child is unaccompanied, the Minister is the guardian from the moment the child arrives?
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: Now, the child is put into detention and let us assume that there is some allegation of abuse of that child, what happens then?
MS KENNY: Well that appears then to be an issue that the State welfare authorities should be involved with and certainly from statements they have made, they see that as their prerogative but the difficulty is, or my understanding from talking to the State authorities, and again you can put this to them. I understand you are speaking to them later today but they are not actually notified when children arrive and are in detention.
COMMISSIONER OZDOWSKI: So they don't know?
MS KENNY: So, they don't actually know that they are even there until the Department of Immigration informs them that they are there and as to when or what circumstances they inform them does not seem to be very clear. Whether you have to wait for an allegation of abuse or whether some other agency informs them of their existence is not clear.
COMMISSIONER OZDOWSKI: So you are not aware of any standard procedure of DIMIA informing State authorities about the arrival of unaccompanied children?
MS KENNY: Well, there is an agreement and that was referred to in the case of Jafari v Minister for Immigration where there is a Memorandum of Agreement so if there are issues about child detention then there is a responsibility to inform the Department of Immigration. Or, the Department of Immigration has a responsibility to inform the State Department. So, there is a Memorandum of Agreement but as to when that actually occurs is not very clear. And that was commented on, in fact, by the judge of that particular case.
COMMISSIONER OZDOWSKI: Do you have any recommendations how it could be handled better?
MS KENNY: Well, I think there should be a clarification between the two departments as to the arrangements for children. So, there should be a clearer arrangement in respect of the State and Commonwealth authorities but I think also, it should certainly be the case that somebody else apart from the Minister for Immigration should be the appointed guardian. There should be some arrangement set up, whether that is a Commonwealth body or a State body, it can be worked out.
COMMISSIONER OZDOWSKI: Why is the Minister not a proper guardian?
MS KENNY: Well, I think that having the Minister for Immigration as their guardian also the person that decides, is the ultimate arbiter of their case in terms of their application for asylum, can represent a conflict of interest, particularly to the Government's policy and certainly, the Minister has stated, intention to keep people or to use detention, to use mandatory detention models and to continue using them. And so he has those conflicting issues about what is the Government policy as opposed to acting in the best interests of the children involved.
COMMISSIONER OZDOWSKI: So, what you are saying is that he may have a conflict of interest here?
MS KENNY: Yes. Certainly too, one thing that occurred to me on reading through the Immigration and Guardianship of Children Act, is that it refers to children who arrive in Australia which also raises an interesting issue because that Act has not been amended to exclude, well, the whole raft of islands, I suppose, now that may be excluded from the migration zone. So it appears that, I understand, there are quite a number of unaccompanied children in Christmas Island and so we are still, strictly speaking, fall within the guardianship of the Minister and yet they are not allowed to have access to the legal procedures had they been able to come to mainland Australia. So, they are not given legal representation, for example, they are given a different type of determination in their case and how you could argue that that is in their best interest would again seem to be a conflict of interest.
COMMISSIONER OZDOWSKI: Ms Kenny, do you have a view who is the guardian of children at Manus or Nauru?
MS KENNY: Again, that is not clear. They did come within the Australian territorial - those particular children did come within the Australian territories so I would think at that time they did come within the territorial jurisdiction of Australia so the Minister would have been their guardian at that time. Now they have been removed from here, again that is difficult to say. They may well no longer be within the Minister's jurisdiction but the fact that he ordered their removal or participated in their removal, again, may mean that they have some form of legal redress, perhaps, against him in terms of a breach of fiduciary duty.
COMMISSIONER OZDOWSKI: Yes, but you are not certain whether the Minister is a guardian of unaccompanied children in Nauru and Manus?
MS KENNY: No. That is not very clear.
COMMISSIONER OZDOWSKI: So there could be a situation that they are with no guardian there?
MS KENNY: Yes.
ASSISTANT COMMISSIONER SULLIVAN: Do you want to make any additional comment about children who, in fact, come with their families or a family member in terms of the comments you made about unaccompanied minors?
MS KENNY: Yes. In terms of children that come with their family, I think one issue for me dealing with a particular case of two children that were up in the Curtin Detention Centre who did come with their family, there were amendments made to the Migration Act to say that if children are included on their parents' application, that primary application, and that primary application does not succeed, then they are excluded from making further application themselves. With these particular children that I was dealing with, they had their own claims, quite clear claims for protection themselves and were able to lodge them because it was prior to an amendment being made to the Migration Act which would exclude them, but it concerns me that if a legal representative is appointed to assist a family that arrives, that it is often the case that the children are not spoken to.
Their views about the application process are not sought and their particular claims may not be put forward because it is seen by the representative that the best thing to do is to speak to the parents involved and not necessarily speak to the children. Which, depending on the age of the children sort of flies in the face of making sure that they are included and understand the legal process. So, it is of concern that they can often be excluded from that whole process. They may not even be spoken to by the Department of Immigration who may think it is really the responsibility of the parents to pass on the information to the children but it should be the case that somebody is appointed to assess whether or not those particular children would like to lodge their own claims.
ASSISTANT COMMISSIONER SULLIVAN: There are children who are under the guardianship of the State in other circumstances?
MS KENNY: Yes.
ASSISTANT COMMISSIONER SULLIVAN: Do they get additional rights or privileges that these children don't get by being under the guardianship of the State?
MS KENNY: And of the Commonwealth?
ASSISTANT COMMISSIONER SULLIVAN: And the Commonwealth, yes.
MS KENNY: I am not sure about that. Yes, you would have to ask the State representatives but, I mean, as far as I can see, in terms of the State arrangement at least the children that are involved do have a case officer that is assigned to them who is responsible for looking after their best interest to ensure that they are covered in terms of any medical needs, housing needs, education needs. So, they are there to oversee those sorts of things where as there does not appear to be, again, with the Commonwealth, anybody who is appointed individually to look after that range of needs for children in detention.
ASSISTANT COMMISSIONER SULLIVAN: Thanks. And my final question relates to something in your submission about medical opinions for release?
MS KENNY: Yes.
ASSISTANT COMMISSIONER SULLIVAN: And your concern about that. Would you like to talk about that?
MS KENNY: Yes, I would. Obviously I would expect most people are talking to you about bridging visas for children or people under the age of 18. There is also an ability to get a bridging visa if you have a medical need that can't be cared for in detention. The way the regulation is currently phrased, it requires that the assessment of that medical need be done by a doctor appointed by immigration. So, if I were to get a doctor, as legal representative have arranged for an expert to provide a report on a client to say that they have a medical need that can't be cared for in detention, that would not satisfy the requirement of the regulation.
And in fact, that has happened to me on a couple of occasions so, in those circumstances, the Department of Immigration have refused the bridging visa on the basis that it was not a report that was arranged by Immigration. And I have tried to appeal that and it has not been successful because that is the way the regulation is worded. And so, it very much depends on the good will of the Department of Immigration to organise that medical report. And I am not saying they won't, they will. If you talk to them about it they generally will organise that medical report but it does lead to a sort of a one sided process. Also, at the end of the day, the actual assessment of who - my understanding from the Department of Immigration as to who - the person that determines whether or not a person will get a bridging visa, is the manager of the centre.
Again, I think, it should be somebody within the Department that is separate from the centre because if you are coming up with a claim to say that this person has a medical need that can't be cared for in detention, then it is not something that is unrelated to detention, it is something that perhaps they may have a psychiatric condition or a depression that has been induced by the detention experience. A centre manager may be reluctant to admit that their centre may have
COMMISSIONER OZDOWSKI: That his centre produced this result. Yes.
MS KENNY: Yes, yes. So, I think that those assessments should definitely be done by, as to whether a person would qualify for that visa, somebody outside the actual centre itself. I also think that there should be access. If you are able to get a specialist that has the appropriate qualifications and it is their opinion that the person has a medical need that can't be cared for in detention, then they should accept that as evidence.
ASSISTANT COMMISSIONER SULLIVAN: Is it a possible scenario that the centre manager would be the delegated guardian of an unaccompanied minor and therefore the person who should be requesting the medical opinion for the bridging visa release, and the person who will be deciding on whether the bridging visa will be granted? So is it possible that one person, the person in control of the centre will have the role of guardianship, and therefore the role of ensuring the best interests of the child, which may require release on medical reasons? He would be the same person who would request the medical opinion from the DIMIA person, and the same person who would actually decide whether the visa was granted.
MS KENNY: Yes.
ASSISTANT COMMISSIONER SULLIVAN: Is it possible that one person could play all of those three roles?
MS KENNY: It is possible that that could happen. With the release from detention on medical grounds that can be at any age, it is not necessarily for people under the age of 18.
ASSISTANT COMMISSIONER SULLIVAN: I see. Okay.
MS KENNY: It is any age. I am just putting it forward, is that is another possible ground on which a young person or a child could be released from detention, let alone the one that is more specific to them in terms of their best interests. Again, some of the centre managers have been very helpful and have identified that a person does need to be released from detention on medical grounds and have been the people to organise the medical assessment and grant the bridging visa at the end of the day. And that does occur and so they do have the best interests of the people in detention at heart.
But my point is, it shouldn't just be restricted to that particular person. If another person there, a representative or somebody else can identify that a person has a medical need then, if that is assessed by an appropriate person, and the Department can get their own assessment if they wish to test that assessment, but it shouldn't just be restricted to something that the Department of Immigration organises.
COMMISSIONER OZDOWSKI: How easy is it to get appointed by the Department of Immigration, a specialist or as a doctor who can issue this assessment?
MS KENNY: That's a good question. The particular most recent case I dealt with was somebody who was brought down to the Royal Perth Hospital, so it took some months. It took about three months from me flagging the idea of a bridging visa. I organised a medical opinion and it wasn't accepted. Well it wasn't accepted as falling within the requirements for the bridging visa and they had to organise another medical opinion.
COMMISSIONER OZDOWSKI: So, if I understand correctly, the person was a psychiatric patient in the hospital for three months before you managed to put the first application which was unsuccessful.
MS KENNY: No, he was there in October. I put in an application around about November and the Department couldn't organise somebody to do a separate opinion until around about the end of January. So it was around about four months in total.
COMMISSIONER OZDOWSKI: Thank you.
ASSISTANT COMMISSIONER THOMAS: You expressed some concern of some unaccompanied minors may not have a lawyer during the process, the DIMIA screening of their applications?
MS KENNY: Yes.
ASSISTANT COMMISSIONER THOMAS: Do you know any cases that they are disadvantaged because of that? Clearly unfairly screened out?
MS KENNY: For unaccompanied minors, I don't have any particular examples for unaccompanied minors, no. But I have had adults who have been screened out through that process, yes. But not unaccompanied minors.
ASSISTANT COMMISSIONER SULLIVAN: Do unaccompanied minors have guardianship in that screening process? Sorry, does the Minister act as a child's guardian in the screening process?
MS KENNY: It doesn't appear that there is any independent person to me, that is appointed at that stage, to advise them on what that process is about or to assist them through that process.
ASSISTANT COMMISSIONER SULLIVAN: So there is no one who could ask for a lawyer on their behalf, for instance, in that process?
MS KENNY: I don't think so. Again, I haven't had any direct experience of any unaccompanied child that has been screened out through that process. I don't know of any direct examples. But just by analogy of dealing with adults who have been screened out through that process, and knowing that it does happen that if they don't, or for whatever reason, raise the protection obligations of Australia then they can be screened out. And also of concern is given the barriers that I've outlined in our submission that unaccompanied children face when they arrive here, that it may be difficult for them to sit down with a person and understand what that process is about, and use the sort of magical words to get them through and screened in.
ASSISTANT COMMISSIONER THOMAS: Yes.
COMMISSIONER OZDOWSKI: Perhaps one wish I would like to raise with you, it is a question of bridging visa E, subclass O51, and basically it is saying that a child could be released from detention when it is in the best interests of the child and that state welfare authorities needs to certify this. I think a few days ago Minister Ruddock went on public record saying that whenever he received an advice from state authority that the best interests of the child to release the child from custody, the Department acted immediately and children were released. Could you say what your experience is in this area?
MS KENNY: Well certainly if he receives the advice that it is in the best interests of the child to be released, then it would seem, under the regulation, he has to or must release them, as long as he is satisfied there are adequate arrangements in the community. But the difficulty is in the assessment of whether or not it is in the best interests of a child. For example, the same two children I was referring to in the example before that were in Curtin, had arrived with their parents and an uncle and the uncle was released. He was given a TPV and released into the community. These two children were quite distressed and in fact were on a hunger strike and had lost a substantial amount of weight.
The State Welfare authorities were contacted and I would say not by the Department of Immigration, it was by a church organisation, and an assessment was made. Now they had an uncle that was actually in the community that they were quite close to, had spent quite a great deal of their life with in their country of origin, but it was assessed that it was still in their best interests to remain with their parents in detention. So, not to remain in detention, but basically it was in their best interests to remain with their parents. And because their parents did not qualify for a bridging visa themselves, then they were not able to be released.
So that is the problem. I mean it may well be assessments are made, but it is getting that actual assessment that it is in their best interests. So, with children who arrive with their families that is going to be a difficult balancing act for the state Department to do. However, with unaccompanied minors there should be no reason why they are not released in to the community. I know that some have been but in the past. In dealing with some of the unaccompanied minors I am dealing with now, some of them were in detention for eight to nine months and not released until they were granted their TPVs.
COMMISSIONER OZDOWSKI: Usually the link is because the Minister would say, well there are two categories. One is unaccompanied and the situation is relatively simpler. But then you have got children with families and usually the Department would say that it is in the best interests of a child to stay in detention with parents, rather than to be released into the community.
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: What is your view on it?
MS KENNY: Well my view is it shouldn't be and either or, it should be that there should be some provision for release of families and parents as well as their children. So if a family does come and it is in the best interests of the child to be released into the community, then they should be released with their parents. So there should be some provision for some sort of alternate detention model. There are some trials of that obviously going in Woomera, which I expect you have heard about, with unique success. But some sort of arrangement whereby parents can be released in some sort of alternative arrangement, similar to suggestions that have been put up by HREOC under alternate detention models.
For example, a bail process. Similar to a bail process or a report in process, or some sort of supported accommodation would be more acceptable.
COMMISSIONER OZDOWSKI: The Department is concerned and the Minister is concerned, that people who are released on bail would abscond.
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: Could you tell me something, from your legal practise, what is the likelihood of Australian criminals absconding?
MS KENNY: Well I used to practise in criminal law as well, so. I mean, sometimes there is risk of people absconding, but there is perhaps a better analogy to talk about people who arrive here lawfully and are in the community and not put into detention. So I have always thought it rather ironic that, for example, you can have people who manage to get a passport and a visa and come to the country lawfully and they are not detained. And sometimes their visa application process can go on for years through appeals and so on. And I've not had one client that has gone through that particular process, that has absconded. They have basically continued to report to the Department of Immigration and have remained present up until the time, sometimes succeeding, sometimes not succeeding. And then they depart.
COMMISSIONER OZDOWSKI: So your experience is that no one absconding, even if the outcome was negative.
MS KENNY: Yes. Nobody absconded, because in these sort of circumstances the stakes are very high. They don't want to return to their country of origin, so they will continue to remain engaged in the process all the way through, with the hope that they will be allowed to remain here. So all the clients I have had are highly compliant with any conditions that are placed on bridging visas. It also seems to me to be quite arbitrary the way that we determine that somebody has come here unlawfully. So, for example, many of the clients that I have that come from Burma managed to get passports and to get exit visas by bribing people within their country of origin to obtain what is, at the end of the day, a lawful passport and a lawful visa. But at the same time they have put forward a great deal of money to get that particular passport and that visa, and then arrive here on lawful documents.
Also whereas on the other hand you will have people, say from Afghanistan who just cannot, there is just no way they are going to be able to get a lawful visa and they will pay somebody, in order to come here. They will still have identifying documents and yet those people are detained and the person who managed to bribe, in their country of origin, to get the lawful documents is not detained. So it seems to me, if you are able to find out, if you are able to determine issues in terms of identity and security then there doesn't seem to be a reason for holding someone in detention for extended periods of time.
COMMISSIONER OZDOWSKI: Ms Kenny, you used the word "unlawfully" and there is much confusion here in the mind of the Australian public about people coming to Australia in boats.
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: Can I ask you for your legal view. Is a person coming to Australia by boat and on arrival seeking asylum protection, breaking any Australian laws?
MS KENNY: No, I didn't. Yes. I shouldn't have used the word "unlawfully", I should have used the word unauthorised. No, they are not breaking any Australian laws because in international law you have a right to seek asylum and we have signed the relevant conventions for that. So they are not breaking any Australian laws by arriving and then seeking asylum in our country. Even if it is in an unauthorised manner.
COMMISSIONER OZDOWSKI: Thank you very much.
MS KENNY: Thanks.
COMMISSIONER OZDOWSKI: Do you have anything to ask?
ASSISTANT COMMISSIONER SULLIVAN: Nothing.
COMMISSIONER OZDOWSKI: They are all the questions we have for you Ms Kenny. Thank you very much for your submission. Any concluding statement?
MS KENNY: No, just apart from the recommendations that I have in the submissions that I have made. I guess one of the strongest issues that I hope that comes out of this particular inquiry, is that there be some recommendation or some guidelines that are perhaps proposed to the Department of Immigration in the way that they actually assess an application that is put forward by children, or unaccompanied minors, or children that arrive with families. I think that that is an area that is unfortunately really lacking at the moment in Australia.
There are some very good guidelines that are available from overseas and internationally about how assessments should be made of applications from children, and how interviews in particular should be carried out with children, which I would hope that the Department of Immigration would pick up here. To deal with not just children in detention, but also could extend to people who arrive here on valid visas as well. So I would hope that that is something that comes out of this inquiry as well.
COMMISSIONER OZDOWSKI: So what you are saying, possibly also that at the moment there is inadequate training for people who deal with children in these circumstances?
MS KENNY: I don't know what training is given to be honest. I don't know what training, if any, is given to people in the Department of Immigration but certainly, just from experience of being at some interviews with children, that some of the questioning doesn't seem to be appropriate toward dealing with the age and experience of the person that they are interviewing. And on searching for some sort of guidelines, I wasn't able to find any. I know that there are some guidelines in existence in relation to gender related persecution, but there is nothing that is specific to children.
Given our obligations, and the fact that we have signed the convention on the rights of the child, and all that that entails it should be the case that there are some quite detailed guidelines as to how children are interviewed. Not just how they are interviewed but also how their actual claims are assessed. We shouldn't be assessing their claims in exactly the same way we would assess an adult's claims. There are different factors that should be taken into account when assessing, for example, a well-founded fear of persecution. A young person or a child may not be able to articulate as clearly as an adult their fears of persecution and be as specific as often the Department of Immigration seem to want people to be, in terms of laying out their particular claims for persecution.
COMMISSIONER OZDOWSKI: In terms of the legal profession, did the Law Society produce any guidelines for lawyers, how to deal with children here in Western Australia?
MS KENNY: Children seeking asylum?
COMMISSIONER OZDOWSKI: Yes.
MS KENNY: I haven't seen any guidelines. I know that there are various guidelines from Victoria, I think, in terms of interviewing and representing children. But they are more generic toward representation of children.
COMMISSIONER OZDOWSKI: In Victoria it was produced by the Law Society of Victoria?
MS KENNY: Yes.
COMMISSIONER OZDOWSKI: Yes.
MS KENNY: As far as I am aware the Law Society in WA hasn't produced any guidelines here.
COMMISSIONER OZDOWSKI: Thank you.
MS KENNY: Thanks.
COMMISSIONER OZDOWSKI: Thank you.
THE WITNESS WITHDREW [9.42am]
COMMISSIONER OZDOWSKI: Now, could we ask our second witness Ms Marg le Sueur to come to the witness stand.
MARGARET Le SUEUR, affirmed [9.42am]
COMMISSIONER OZDOWSKI: Thank you. Could I ask you now to introduce yourself for the record stating your name, your address and the organisation you are representing?
MS le SUEUR: My address is [address removed] and my observations today do not come from me representing any particular organisation. I am involved in a number of different organisations but my observations today come from myself.
COMMISSIONER OZDOWSKI: Thank you very much. Now, could I ask you to make an opening statement in particular focusing on your expertise in the area and your experience in the area?
MS le SUEUR: I have prepared a little opening statement but I will preface it by saying that I am a solicitor and migration agent and I have been working as a migration agent since 1994 although I did have a little break, I think I was not registered for a year in '99, I can't remember exactly which year, but I had a little bit of a break. And I was living in Port Hedland for four years until January this year and in that capacity I had regular contact with the detention centre in Port Hedland and became a regular visitor there. I was on the resident's committee of the detention centre and so I came to know a number of the detainees including the unaccompanied minors.
COMMISSIONER OZDOWSKI: I understand you were also involved with a legal case Odhiambo and Martizi?
MS le SUEUR: That is right, yes, yes.
COMMISSIONER OZDOWSKI: Could we maybe start with that particular case. My understanding is that there were problems here with securing representation for these two young men. Could you tell us what has happened?
MS le SUEUR: Sure. How I became involved with the case might answer that question. I knew the two boys because of my involvement with the detention centre in Port Hedland and one day one of the boys rang me up and said "Oh Marg I'm coming to Perth next week" and he was saying like could I come and visit him in the detention centre" and I said "That is nice, why are you coming to Perth." And he said "I have got full Federal Court." And I said "Oh have you got a lawyer?" "No." And so they were unaware of what they needed that they did not even realise that they had to have a lawyer or they kind of knew that would have been nice but they did not have one so they were coming down to tell their story anyway.
So I thought that was so completely unacceptable that I drafted some documents and I did this "off my own bat" I have to say. I did not do it - you know I acted pro bono for these boys and so I just spent the weekend figuring out how to draft up documents. Drafted up the documents, went to the Federal Court to ask for an adjournment so that I could find the boys a lawyer. When I got to Court and I started to make my submission the three judges were very concerned that the boys had arrived in court without a guardian and asked where was their guardian. And I - you know, who did I get instructions from and then I said "from the boys". And that is when the whole issue of the guardianship of the boys arose. And then they became concerned that the boys hadn't - that no one had instructed a solicitor on their behalf, that they had been left to do it themselves.
COMMISSIONER OZDOWSKI: They were challenging the Minister of Immigration in the Court?
MS le SUEUR: Mm hm.
COMMISSIONER OZDOWSKI: And the Minister of Immigration is their guardian?
MS le SUEUR: Yes, that is right. Yes, and that is one of the issues that is certainly being raised in our case. We have not had a decision yet in that matter but one of the issues that we raised was that conflict between the Minister's role as the guardian of the children, and at the same time it was the Minister that was sitting there with - well, the Minister, not himself but you know, can I just tell you, the first day when I came to Court with the first boy, he - he is a 17 year old boy, he came to Court in handcuffs, he didn't walk into the Court in handcuffs but he was certainly brought to the Court in handcuffs. He had four guards with him and so - and he was there by himself with the four guards behind him and on the other side there were two solicitors from the Department of Immigration, a barrister and two DIMIA officials up against a 17 year old boy.
COMMISSIONER OZDOWSKI: I must say it is difficult for me to understand that because I have been living in this society for quite a while but to make an action in Federal Court, possibly there are some skills required. How does a boy manage to do it?
MS le SUEUR: He managed to do it because some of the detainees who have been in detention for a long time. I mean the detainees, you know, are not stupid you know and they have often not a lot to do. They read everybody's decision, they talk about everything. They become "bush lawyers" in a way. And so one of the other detainees who felt sorry for the boys helped them to draft up their application.
COMMISSIONER OZDOWSKI: How should the process, in your opinion, work in terms of securing legal representation for unaccompanied minors?
MS le SUEUR: How should it work? Let me think. I think that, in the first place, there should be particular regard given to the fact that they are young and that it is quite difficult to get instructions from young people and it can take quite a long time. I can only answer it in a way by telling you how it currently works and how that doesn't work. How it currently works is that legal advice is provided through the IAAAS tender process and a variety of different firms and organisations are appointed to give legal advice to the detainees through that process.
Some of the organisations that provide advice through that process are community organisations who - and firms who, I think, do quite a good job. There are other firms who do it purely for the profit motive and who don't allow the time to actually get proper instructions from the applicants, particularly when they are children. And so I think that that would be one of the first things that I think needs to be built in is an allowance for proper - but it should also be that - it is very difficult for children to give instructions because they don't know the law and they don't often - and often in my experience from now taking instructions from young people, if you have grown up all your life with a great deal of trauma and abuse then you often don't even know that that is not normal.
I wrote an example, I have a little opening thing here that I had written and I have given you an example here, I will just find it here. This is a story about a young person. He in fact, he wasn't a minor, he was 20 but you know, he is not much older than a minor. I asked him if he had ever experienced persecution at school because of his ethnic background. And he said "Oh well it wasn't nice, they called us names and sometimes they beat us." And well, that didn't sound too bad, so I asked him to tell me some more stuff about the school days.
Now, it took quite a long time but eventually I discovered, and on one occasion, somebody from a hostile ethnic group in that community, had come to the school and massacred 10 of his fellow students and he hadn't actually thought to tell me that when I first asked him the question. I don't know why, I don't know what was going on his head but that is what I mean about how difficult it can be to get proper instructions from young people. He has lived his whole life with ethnic violence.
He comes from a particular country where there has been ethnic conflict for sort of 15, 16 years. He didn't know that and also, I mean, the language and the interpreter problem. Maybe he didn't understand the question at first, but, like it took quite a bit of probing to find this horrific story out. Now if you are from a firm where the motive is profit you don't take that time and this is an anecdotal evidence, I suppose, is that some of the firms are told that they need to take instructions from three clients a day. Now there is no way you can take adequate instructions from a young person if that is the amount of time that you allow. In my experience, you know, when I am taking instructions from a young person, I go the first day, I ask questions, I talk to them, I establish some sort of rapport with them. Then I have to come back another time and every time that I see them, because they start to trust me, and because they start to know who I am, you find out more stuff.
MS LESNIE: Can you explain what aspects of the current system stop that from happening in the case of representing children asylum seekers? Is it the tender process, is it the location of the detention centres, is it the number of lawyers that are available? What parts of the system need to be changed to address that problem?
MS le SUEUR: Yes, yes, sure. I think part of it is the tender process in that, you know, it puts some sort of profit imperative in there. I also think it is the fact that despite the fact that three of the main detention centres, Perth, Port Hedland and Curtin are in Western Australia, the majority of the people who are involved in the current tender for provision of advice to people in Port Hedland and Curtin come from Melbourne and Sydney. And I think that that makes for totally inadequate interaction between them and their solicitors.
I mean, the boys often don't know who their lawyer is. The boys have told me stories about how they would go to the RRT hearing or the hearing with the case officer and there is a whole bunch of people and the television and they will say and they don't know which one is the case officer and which one is their lawyer.
MS LESNIE: In terms of unaccompanied minors there is - the way the system should be working as I understand it is that the guardian should be ensuring that unaccompanied minors get adequate legal advice. And for unaccompanied minors in detention centres that would usually be the detention centre manager. In your experience, what - how active have the guardians of boys in detention centres been in obtaining regular advice for unaccompanied minors and ensuring continuing advice through the process?
MS le SUEUR: In my experience they are more likely to be obstructionist than helpful.
MS LESNIE: Do you have examples of that?
MS le SUEUR: Yes, I do have an example. I have an example of one. One of the rules is that people can change their advisers if they can show a substantial reason for wanting to change their advisers. Now one young detainee that I know of, he had what I would call a substantial reason for wanting to change his adviser. He had been asked to comment about something that had been put to him. Something had been put to him in a DIMIA letter. His adviser sent him a copy of the letter and asked the boy to comment.
Now this boy is 16 years old, he hardly speaks any English, the adviser simply sent this letter saying: look this letter has been given to us by DIMIA what do you say about it? So the child, with the help of some other detainees, wrote a one page letter, addressed directly to the case officer, addressing the matter that had been raised. The adviser didn't pass that letter on to the case officer, instead the adviser reduced the detainee's letter to a one line response saying "excessive, he disagreed with what you say because blah, blah, blah. And that was the end of the response. It was just a single line.
Needless to say the outcome was not positive for the case officer. So I suggested to the boy that he should go with the letters to the DIMIA office and ask them to give him a new adviser because his instructions had been clearly ignored. And that is part of the obligations of being a migration adviser to actually follow the instructions of your client. Now in this case because the boy had addressed this letter to the case officer it should have been passed on to the case officer and it was not.
So I said to the boy "take all this up to the DIMIA office, talk to them and tell them you want a new migration adviser." So he booked an appointment. Now in Port Hedland if you want to see the DIMIA managers you have to make a written request for an appointment. And sometimes it can take a week or two to get that appointment. Despite what the Department put in their submission that is how the system works up there. So eventually when he got his appointment he was told, well yes he could change his adviser if he wanted to but they were not going to pay for it, he would have to pay for it himself.
So that is one example. But also in my experience, DIMIA refuses to discuss their cases with detainees. They see their role, from my understanding, and I have gained this understanding like anecdotally but also from material that was put on in relation to both the Odhiambo and Martizi cases. They see their role as kind of explaining the contents of a decision letter. So they might say "Oh here is your decision letter now unfortunately I am sorry to tell you that you have been rejected". And they would see that as being their role.
And this - they may or may not say "Well you have got seven days to apply for a review". But they certainly don't see - and they are very clear, and they have made very clear statements to me about not wanting to get involved in the process with the Department of Immigration, the process of their visas.
MS LESNIE: Is that because of the inherent conflict between their roles or?
MS le SUEUR: I don't think they have thought about it that clearly. I think that they just don't see that as being their role.
ASSISTANT COMMISSIONER THOMAS: You say that you are a frequent visitor to both Perth and Port Hedland detention centres. Can you comment on the facilities of the two places in relation to children?
MS le SUEUR: In my experience I have never seen any children in the Perth detention centre. So I really couldn't say. I know that recently after the issue about children in detention centres came into the public arena, in about, I don't know, January or so, suddenly a whole lot of toys appeared in the Perth Detention Centre. But they haven't come out of their boxes, they are still sitting up in storage because I don't think they have actually got any children and they certainly have not had any since I have been there. In Port Hedland - do you mean facilities in general or you mean legal facilities or?
ASSISTANT COMMISSIONER THOMAS: Yes, facilities in general. Recreational facilities
MS le SUEUR: Look, as a member of the public I have only rarely stepped beyond the kind of public area of the detention centres so I don't really feel very qualified to comment about that sort of thing. There are other people who could probably make that comment better.
ASSISTANT COMMISSIONER THOMAS: Yes, thank you.
ASSISTANT COMMISSIONER SULLIVAN: Perhaps I can narrow it down a bit then and say over the period which I think you said was from '94 onwards, have you noticed any changes in the legal processes that you have described this morning. In other words have there been any improvements or any deterioration in the role that you have played?
MS le SUEUR: I think the deterioration has been remarkable. I remember when I was working for an organisation in Sydney, I was asked by the State Manager there, my organisation was asked by the State Manager there to come and provide training for the DIMIA staff on: How does it feel to be a client. And so we regularly went and had meetings with the Department of Immigration, we provided that sort of feedback to people. That would not happen now. I think the whole atmosphere has changed remarkably. Then I used to get much more of a feeling of co-operation.
That was much more of a sense of being - I am talking about a sense here, you know, and the statements that were sent from the Department managers in those days - were about, you know: like we are trying to make this happen together and we want to put an end to the "gate-keeper" mentality that used to be there. And, so they were quite proud of trying to change some of that culture and I think that that has completely reversed again.
ASSISTANT COMMISSIONER SULLIVAN: And are you able to pinpoint why?
MS le SUEUR: I wouldn't presume to pin point why, but I would point out that there was a change of Government in 1996.
COMMISSIONER OZDOWSKI: Just following from it, how would you describe the culture of the Department now?
MS le SUEUR: I - look, that is a very difficult question to answer. I think the culture of the Department is incredibly hostile to - particularly to asylum seekers and - but I think that the Department is, in my impression, incredibly demoralised and overworked. And it has a really appalling result for applicants right across the board. I think one of the things that you need to remember is that if you are a refugee or an asylum seeker you don't have to pay anything for your application, although if you are in the community I think you have to pay $30 for your protection visa application. But to make an immigration application you actually pay thousands of dollars.
Like a regular application to sponsor your parent upfront is $1100. The level of service that you might expect once you have paid that is simply not there. A person might apply to sponsor their relative from some post and say some of the African posts and it can take at least two years for an application to be processed, you know. And that is because it is incredibly under-staffed. And that is - the staffing too is very uneven, the staffing in a lot of the African posts, in a lot of the posts in the Middle East are incredibly low. Whereas
COMMISSIONER OZDOWSKI: But yes, we possibly go a bit too far. We really would like to focus on children in detention and how this culture relates to it.
MS le SUEUR: Yes sure. Right okay, back to the children
MS LESNIE: Maybe if I can ask a bit more specific question. You represent asylum seekers and sometimes children in the migration interview, which is the process by which DIMIA, the Department of Immigration, determines whether or not someone has a refugee claim. Have you - in the Department's submissions they said that they have increased screening times and they are making efforts to sort of speed up the whole process. I guess I would ask two questions: one have you noticed this effort to try and keep things moving faster, and; second of all, relating back to what we were talking about before, have you noticed in terms of the interviewing officers, are they making efforts to, for instance with children, to try and assist children through the process?
MS le SUEUR: In answer to that, I have never represented young people from the time of their initial application. But certainly two unaccompanied minors that I know of from the Port Hedland detention centre, they arrived in August last year, and they have had their decision within the last month. I would not be exaggerating to say it was probably a month - maybe it was a little bit more than a month, it might be five weeks, but they have actually only just had their decision. Now that does not seem to me like a very speeded up process. And I might be wrong, but I think that most of the other people who came on the same boat with those two boys have already had their decisions quite some time ago. So, in fact, it appears to me that it is taking longer for young people than it is for grown ups.
ASSISTANT COMMISSIONER THOMAS: I have been told that one of the factors of the delay is to find out the identity, the paperwork. Can you comment on that? The length of time in processing may be due to that?
MS le SUEUR: That may well be so. In my experience it can take a long time even if there is paperwork.
ASSISTANT COMMISSIONER THOMAS: So can you comment on why some cases are quick and some cases long? Because there have been cases that are much shorter. What is the factor that makes a case short and a case very long?
MS le SUEUR: I often describe the whole process to people as a bit of a lottery. If you are lucky, you will get a good lawyer and if you are lucky you get a good case officer. And if you are lucky everything goes okay, if you are not lucky and you do not have a good lawyer and you do not have a good case officer, then you know it is fairly much down hill from there. So it really is very
ASSISTANT COMMISSIONER THOMAS: It is a lucky factor.
MS le SUEUR: Yes, it is very arbitrary.
COMMISSIONER OZDOWSKI: On the second page of your submission, you said that children are developing behavioural problems and basically being traumatised. Do you have any direct personal knowledge of cases like it? Or have you been told stories told by a religious order? I am interested in your personal knowledge and experience only.
MS le SUEUR: Yes, sure. I am a lawyer, I am not a psychologist, I do not really know about that stuff. I do know that the children talk to me about, you know, that they do not want to go to school because they feel like they are in prison and in some ways they feel like that refusing to go to school is one of the few pieces of power that they have to actually exert. Because they know that somehow or other, the guards really want them to go to school. So if they refuse to go to school it is a little piece of power that they can exert. I also know that, you know, I know of children who have, you know, developed speech impediments, not necessarily as a result of being in detention. They may well have come with a speech impediment, but I know that stress makes it worse for them. And I have seen children in a stressful situation. When they are talking to me it might not be so bad, but when I hear them talking to the Department of Immigration it becomes far worse because, you know, it is a much more stressful situation.
COMMISSIONER OZDOWSKI: Thank you very much, Ms le Sueur. Any final comments?
MS le SUEUR: Any final comments, just let me think this through. I would make some comments about the issue of the bridging visas that you spoke to Ms Kenny about. Over the past few years there have been a number of unaccompanied minors in detention and, to the best of my knowledge, very few of them, if any, I actually only know of one but there might be more, have ever been assisted by anyone to make a bridging visa application.
Now, one would think that if a guardian, and the Minister is the guardian of the children, was truly interested in - was truly acting in their best interests, that they would have assisted each one of those unaccompanied minors in detention who are all eligible for applying for a bridging visa at some time, would have assisted them to make that application. And I have personally tried to help a number - a couple of young people to make bridging visa applications.
Unfortunately, in the - and it was the two - the Odhiambo and Martizi boys. When I became aware that they were actually eligible to make a bridging visa application, it was only about three weeks before their 18th birthday. And the Department has 28 days to make a decision on a bridging visa application. I had certification from the Department of Community Development that it was in the best interests of the boys to be released from detention. I made the application and the boys turned 18, 10 days apart. On the night before each of their 18th birthdays, the Department rang me with some more information that they needed and there was simply no way that I was going to be able to get that information to them before they turned 18.
COMMISSIONER OZDOWSKI: So what are you suggesting?
MS le SUEUR: I am suggesting that if the Department had any goodwill at all towards these boys and had let that - that it was well and truly open to the Department to have granted a bridging visa to the boys in these cases. And that, even if the thing that they were asking for, the extra thing that they were asking for was real, which I have no doubt it was, you know, and maybe it would have been a good thing to have done. They could have asked for that, you know, a few days before, to give me time to do it.
The fact that they asked for it the very night before they turned 18 meant that that was - there was no - and knowing that there was no possibility that I was going to get that done before they turned 18 seemed to me to be certainly not acting in the best interest - or even showing any real goodwill or trying to do something to facilitate this happening for these two boys. And the other thing that I would like to say is that the - that at the moment the Department may well be right in - may well say that there are almost no unaccompanied minors in detention. Certainly I do not know of any - that - certainly I expect that they would say there are no unaccompanied minors in detention in Western Australia.
Now, one of the reasons for this is that some of those boys, whose process had been going on for quite a long time and the Department had never raised the issue of their age. And so it was not open to the Department to raise the issue of their age at this stage. I mean, for example, they are in the Federal Court, you know, it is a bit late once the boys have gone through the initial application and the RRT. The Department cannot then at the Federal Court raise the issue of their age with any kind of credibility.
Some of those boys have been moved to one of those alternative detention places in Adelaide, which I think is great - okay. There are other boys who are still at the primary stage, who have suddenly been found to be over 18 on the basis of wrist X-rays. Now, the use of wrist X-rays as a determinator of age has come under quite a lot of scrutiny and it is not a process that is accepted by everybody. The Department of Immigration has never in the past sought, to my knowledge, sought to challenge the age of any of the unaccompanied minors.
I know a number of boys who were sadly in detention from the age of they were 15 until they were 18 and are now well over 18. Nobody every questioned their age. But suddenly now that it has you come into the public arena the issue of the responsibility of the Department for unaccompanied minors, it seems to me that their response to it has been to remove the obligation by simply reclassifying the boys wherever possible as being over 18. And I think this is a cynical disgrace. And it has had quite a profound impact on the boys because it means that, even if their processing is still somewhere down - you know, is still ongoing, it means that it kind of removes their option to have a bridging visa.
And I just wanted to make two comments following on from some of the questions that you asked Ms Kenny. One of the questions that you asked was about the case officer being appointed for unaccompanied minors. I know that one of things that the Department's policy says is that they do assign an ACM person to be like a liaison person. And I think at some time they may also might put one of the DIMIA staff as being somebody who looks after the unaccompanied minors.
When I ask the unaccompanied minors: so, do you know who these people are; they did not actually know who they were. And when I said: I think it is so and so; she said: she hassles us all the time to go to school. So it seems that that is the content of the obligation that they see, is to hassle them to go to school. I do not know that if ever - that the young people ever get any benefit from that process. Certainly they do not - they were not even aware of who they were.
And the other thing was a question that you asked about the certification that it is in the best interests of the children to be released and does that happen immediately. The Department for Community Development certainly did certify that it was in the best interests of the - of Simon Odhiambo and Peter Martizi to be released. And the Department certainly did not act on it immediately. In fact they blocked it.
COMMISSIONER OZDOWSKI: Thank you very much, Ms le Sueur, for your evidence.
MS le SUEUR: Thank you.
THE WITNESS WITHDREW [10.17am]
COMMISSIONER OZDOWSKI: Could we ask now our next witness, Dr Judyth Watson please.
JUDYTH WATSON,
sworn [10.18am]
EIRA CLAPTON, sworn
THEO MACKAAY, sworn
COMMISSIONER OZDOWSKI: Thank you very much. Can I ask now, all of you, to introduce yourself by stating your name and also address and organisation you represent for the record.
DR WATSON: I am here to represent the Coalition Assisting Refugees After Detention as one of its volunteers and also I am a member of the Social Responsibilities Commission of the Anglican Church.
MR MACKAAY: I am Executive Officer of the Anglican Social Responsibilities Commission and our office is at [address removed].
COMMISSIONER OZDOWSKI: Thank you.
MS CLAPTON: I work for the Council of Churches of Western Australia as their Refugee Migrant Services Officer and I am also involved with the Coalition Assisting Refugees After Detention. Our office is in [address removed].
COMMISSIONER OZDOWSKI: Thank you very much. Your submission contains a number of cases and I think it would not be proper to discuss the cases here. What we could do after we have dealt with general issues, is clear the room and take the evidence about individual cases in camera. What we could do also if we have any further questions, perhaps we could put them to you in writing and seek your responses in writing as to some cases considering the time limitations today. Is that proposal agreeable to you?
DR WATSON: Yes, yes. All the parents have given approval for us to present their cases to you but some of them would be easily identified and I have done an update yesterday on where those children are now and on their well-being.
COMMISSIONER OZDOWSKI: Thank you. Could I ask you, Doctor, now to make opening statement on behalf of all of you.
DR WATSON: Thank you, thank you. I think it is really important to emphasise that we haven't visited detention centres to observe children and we have met all the children following their release from detention. The CARAD submission addressed concerns related to all the terms of reference and in particular to terms of reference (2) and (4) that is mandatory detention and the fourth one was the impact of detention on the well-being and healthy development of children. We argue in our submission that the treatment of child asylum seekers in Australia contravenes the Convention on the Rights of the Child by breaching many of those articles.
We claim that by incarcerating children and by denying them family reunion, the Australian Government has not only failed to implement the obligations inherent in being a signatory but that they have flouted them. Children have got no comprehension of the reasons for detention. Many of them speak about the time that they were in prison. They experience consequences and among other things we think that detention undermines parental promises of escaping to freedom and to safety.
These children are a most vulnerable group with direct experience of the persecution from which they have fled. The conditions that too many have been exposed to in detention could only compound their anguish and the conditions for many of them on release add to that as well. Many, we believe, have undiagnosed post traumatic stress disorders on release and some cases in our submission support that claim. We have referred to 42 children in the submission, including two born since release and two who have turned 18 since release. All are acknowledged to be refugee children yet they and their families continue to be denied the services and family reunion available to all other refugees.
We think that the children we have met should be recognised as a continuing vulnerable population with special needs, despite, of course, the resilience of some and, as I said, only yesterday I checked about the progress and welfare of most of the kids and their families which we can elaborate on. Although CARAD has actively lobbied for access to appropriate education for child refugees with temporary protection, their access to intensive language centres remains discretionary and is dependent on the number of places available at a particular school. Those centres are important for the children, not only because of the English language learning but because of the pastoral care that is available to them there.
We are also concerned about dental health services and their availability and too many of them and too many adults come out with urgent dental needs, tooth-ache that has been suffered for a long time. I should say that CARAD formed to provide services to people with temporary protection visas, services denied them because of the criteria applying to TPV785s but more and more we have been drawn into issues relating to detention centres. We oppose mandatory detention. We believe that once somebody's health identity and security status has been checked, the claim for refugee status should be assessed in the community with all the supports that are available.
I was asked by the Commission to present any additional issues and I would like to raise three. One is about social security incomes for young people. As dependent children who are school students turn 16, their parents who receive a special benefit lose the family tax benefit for that child. This means their income, the family income, drops by $70 a fortnight which, in a poor family, is not an inconsiderable loss. And those young people, many of whom are unaccompanied minors referred to previously, who are past compulsory school age, can participate in a 12 month full-time school program where there is an emphasis on English language and pastoral care.
Those who are minors and turn 18 while attending school, must decide whether to leave school to continue receiving an income or to continue school and forego an income. The Education Department of W.A. insists, of course, that schooling is a full-time pursuit but the Department of Social Security is effectively prepared to pay young people an income to stay at home. We have, over the past year - CARAD has written to both Senator Vanstone and Mr Anthony and we understand that there are reviews into these two issues. But only last week we discovered that people who have refugees with disabled family member are not eligible for those extra bits of money that we provide to people who need disability support. So that is another area of social security from which people are precluded.
COMMISSIONER OZDOWSKI: Now perhaps if I could ask you a question. You are saying that you are serving so many different people who came out of detention and children. Could I ask you why you have not been joined by any of your clients here in this public hearing, any of the people who have got direct experience of this?
DR WATSON: Many people want to hear the stories straight from the refugee and there is no doubt when they hear those stories they are very powerful. However, refugees are most reluctant, we have found, to tell their story publicly because they fear that any implied criticism of the government will somehow harm their chances of converting their temporary protection into permanent protection. They feel very strongly about that.
COMMISSIONER OZDOWSKI: Even after they have been released from the detention centres?
DR WATSON: Even after being released from detention and, as an Australian, that appals me, that we recognise that they are refugees and they do not feel safe.
ASSISTANT COMMISSIONER THOMAS: These people, their refugee status is still being processed so in a way they are not refugees yet.
DR WATSON: No.
MS CLAPTON: No, no. The government has decided that they are refugees, that is why they have been released into the community.
ASSISTANT COMMISSIONER THOMAS: Okay.
MS CLAPTON: But they have been given a temporary visa. Very often in the first month or so of release, detainees - former detainees will speak about how important it is to improve the conditions of the people they left behind in the detention centre and at that point I have been able to collect a number of statements from people accusing centre managers and others of abuse. However, when I ask them to put it, to actually sign it and make a formal complaint of it, at that point they become extremely frightened and say that they are afraid that their temporary protection visa, when it comes up for review at the end of the 30-month period, that they will not be allowed to stay in the country because they have criticised the government.
DR WATSON: This is a continuing problem.
COMMISSIONER OZDOWSKI: So what you are saying that, because they have got temporary protection visas it creates an ongoing psychological stress on them and it is, in a way, makes difficult for them to settle on a more permanent basis here.
DR WATSON: Yes.
MS CLAPTON: Yes. I have been working for refugees in one way or another for over 10 years. The client group that belongs to those people with temporary protection visas is the most mobile, the most fragile and the most traumatised group I have worked with in that 10 year period and it is because they cannot know what their future is, they cannot put the past behind them, they do not know how to settle, they have very little in the way of settlement services provided for them.
COMMISSIONER OZDOWSKI: Thank you. Could we perhaps now go to the state government guardianship and the Commonwealth guardianship? How does it work? Does the state provide guardianship when they are released?
MS CLAPTON: CARAD has deliberately not become involved with providing services to unaccompanied minors when released because the Department of Community Development has responsibility for those young people. We have at times intervened with the Department of Community Development to suggest improvements to their service or to advocate on behalf of some young people who we have got to know through our social contacts but we recognise that it is the Department of Community Development that is charged with looking after them and which has provided their basic services.
COMMISSIONER OZDOWSKI: Now in your submission you spoke about the medical and other health needs of children. Just a moment ago you mentioned the situation of children who were released and who have disabilities. Could you perhaps say something more about this? In particular what I would like to know is to what extent mental health issues or other issues relate to the periods spent in detention in Australia and to what extent they were the problems brought into Australia? I am also interested in whether you could you comment about long term impact of detention on well-being of children. I know it is very big problem
MR MACKAAY: Without getting into cases.
DR WATSON: Yes, yes.
COMMISSIONER OZDOWSKI: We will come to the cases in a moment.
DR WATSON: Yes.
MS CLAPTON: I can just say in general terms that CARAD's experience is that, when children are released from detention, we notice a number of immediate health concerns and those health concerns would indicate that, to be kind, the word basic might be applied to the health services provided to children in detention. And you can see from the number of cases in the submission that there are a variety of health concerns which either have been dealt with in a kind of a palliative way rather than an active way, health concerns that have not been aggressively treated, health concerns that have been overlooked perhaps.
So, on release, children sometimes are in need of immediate treatment which we believe they should have got in detention and which they did not get. The submission also points to a number of psychological problems associated with the experience of being a refugee in Australia in a detention centre with parents who are depressed, who are perhaps involved in protests in the detention centre seeking better treatment for their children or seeking better treatment for themselves or others and that these have negative impacts on the children.
DR WATSON: I think that children carry with them an awful burden for the responsibility of their parents as well. Very often they learn English language way ahead of their mother or father and they are the conduit into the family for people like us very often and other professionals. And those children themselves - I can think of one particular family where they were all made to watch a man being shot. Two of them were playing with - two of that same family were playing with other children a little time later and these other kids were playing with land mines in Afghanistan. One was killed and one had his arm ripped off.
I cannot see that they will ever recover just from those experiences. And almost all the children to whom we refer in the submission have been under the care of ASETTS, our torture and trauma service. Almost all of them, and certainly the ones that I know, which is about half of these, have night terrors. Many of them are bed wetters. Many of them cannot go to school because either themselves, sibling or a parent has been up in the night. And I do not think we know half of it, half of the pressures put on these children. So that's from the mental health point of view.
We have referred in this to people with physical chronic diseases and disabilities because as Eira says when people come from detention there are some pretty basic unmet health needs, including importantly I think and specially for children, dental problems. We have heard of other refugees doing extractions for people with tooth ache because there is no dentist.
COMMISSION OZDOWSKI: In detention centres?
DR WATSON: Yes.
ASSISTANT COMMISSIONER THOMAS: So after release, in your experience, how long do you observe these syndromes and other PTSD in the children? Do you follow them up for many years?
DR WATSON: Well, the first of these temporary protection visas were - the first people who left detention was January 2000 and that is when CARAD formed. And I can say that many of us has formed friendships as well as working relationships with these families and, yes, it is still happening, they are still going
ASSISTANT COMMISSIONER THOMAS: It is two years after now
DR WATSON: Yes.
ASSISTANT COMMISSIONER THOMAS: For some of them. The first group who got the, you know, TPVs, so it is now about two years now and do you observe any cases that still suffer these syndromes?
DR WATSON: Yes, yes.
MS CLAPTON: I think you need to understand that, whilst they are on a temporary visa, the time doesn't really - time doesn't make any difference in term of overcoming their trauma and settling down. The closer they get to the end of the 30-month period, the more anxious the family becomes about whether they will be sent back and you can see from our submission that many children are terrified about the idea that they will have to go back to situations such as the one that Judyth has described. But I would just like to underline that, whilst these children are traumatised very often before they leave their country and arrive in Australia, their period in detention has also re-traumatised those children and that that re-traumatisation process means that they are mentally at risk, many of them, and will be so until their family has some kind of permanent resolution to their life experience as a refugee.
ASSISTANT COMMISSIONER THOMAS: But even after they received, say, a permanent visa, the effect will still go on.
MS CLAPTON: I have worked with people who have been given a permanent visa in past who arrived in Australia through the offshore program and it does take time to over come trauma, certainly, but with support and with the belief that they are now safe, many people are able to become survivors of trauma rather than victims of trauma. But for the temporary protection visa population, that important safety aspect is not there for them.
DR WATSON: I think too, children are very open to cues that they get from the community and particularly from television and they get a very clear message that a lot of people do not want them here. Very clear. And while there are two cases related to bullying in our submission, it is the experience of several that they have been bullied at school because of who they are.
ASSISTANT COMMISSIONER THOMAS: In your observation of all of these cases, do you see the effect of age in the children, very young ones compared to teenagers?
MS CLAPTON: My experience is that all children will exhibit certain symptoms. A very tiny infant can learn to distrust its world because its parents are traumatised. An older teenager is more likely to want to take responsibility for the family and protect the family. If the parents are depressed or crying, the teenagers will feel as though they ought to be able to solve the parents' problems. The children in the middle very often will go through that child stage where they believe that something that they have done has created an impact on their world in a kind of a magical or fanciful belief because children do not have the consequences of their life experience sorted out the way adults do.
So, they believe that if they shouted at their parent in the morning and the parent had a rejection of their visa in the afternoon, that somehow that was connected to the experience in the morning. So, children take blame, they are just not really logical but they often blame themselves for things that are happening in their families. And I do not think you can say that there is any age that is safe from this.
DR WATSON: I think there is quite a lot of sociological work that you could refer to both in violence against women, studies about violence against women where pre-verbal children are more vulnerable than we ever thought and also in the divorce kind of literature where children blame themselves is .....
ASSISTANT COMMISSIONER THOMAS: So, did you see any of the effects of the relationship between the children and their parents, did you observe anything special?
DR WATSON: It is very protective. They are very protective of their parents in a very touching way.
ASSISTANT COMMISSIONER THOMAS: Do they ever discuss the role of the parents in bringing them here?
DR WATSON: The thing they all remember about coming here, first of all is the sea journey. Everybody. Because no one has ever seen the sea before. And they have to get to know you before they will talk about the reasons for leaving. It's very traumatic.
ASSISTANT COMMISSIONER THOMAS: I was wondering whether you observed any kind of guilt, either on the side of the children or the parents in terms of whether the parents blamed themselves for bring the children here or the children blamed the parents?
DR WATSON: I think there is a lot cultural things in guilt that - I do not know, I mean, we just all take each other on face value, I think. But no doubt that kind of distress is there.
MS CLAPTON: Yes. I think that most refugees will say that the reason they make an attempt to find safety is to make their children safe and they will have promised, very often, to their children that they will be safe. The parent's inability, particularly in detention to have any power over the lives of their children or to make their welfare better, and you will see several of our cases involve parents trying to advocate for something better on behalf of their children in detention and failing to do so. Now, that puts a great stress on the parent who wants to be a provider and wants to provide for their children but is unable to do so because they have no power in that situation.
DR WATSON: And the clothes.
MS CLAPTON: And similarly, yes, the fact that many people report that they have their own clothes taken away from them when they arrive in Australia and they are often only given the most minimal set of clothing and, you know, mothers turning to making bed sheets into clothing for children because they do not have enough clothes for the children to wear. Children on release arriving in Perth without shoes, for example; a family of 4 with one shopping bag of clothing for all 4 of them. One of the first things we have to do with CARAD is to provide all of the family with clothing because they simply do not have enough clothing and they have been in the habit of taking off one shirt, washing it overnight and putting it back on the next day because that is all they have to wear.
ASSISTANT COMMISSIONER THOMAS: How do you think the process influences the role modelling process between the children and their parents? You know, in a normal family children observe their mother performing certain roles and the father performing certain roles but now, because of detention centre, that kind of process may be influenced. So what do you observe after they have come out?
COMMISSIONER OZDOWSKI: Yes. If I could add here. In Melbourne we had much evidence about families disintegrating in the detention process and one of the key issues was that traditional parental roles were undermined and quite often then replaced, even by the ACM guard, becoming an authority role for children rather than father or mother. So, basically that is what we are trying to understand?
ASSISTANT COMMISSIONER THOMAS: Yes, so when you observe the children after they have been released; the family?
DR WATSON: I would have to say that we have not noticed that but some children are here with a father and some with a mother and some with 2 parents. No, I think that in our experience, children are really used as mediators between the family and community, who ever that is. Their family roles are very gender specific so there are things that boys do and girls do and mothers do and father do and that seems to be somewhat exaggerated and, I mean, I have observed all the normal kind of sibling rivalries and those kinds of things that go on but not the guard, no. No.
One family that came down that I met, when we asked their names, they gave their numbers and we have been appalled that this practice continues in detention where people are referred to by number and not by name. And we understand there has been a recent purge on that before the UN visited detention centres that they were emphasising that people should be called by name.
COMMISSIONER OZDOWSKI: Well perhaps we will be moving to a closed session but before we do just to conclude basically, what I understand from your responses to Professor Trang is that basically you did not observe family institution being undermined by experience of detention. So, even if there was temporary disintegration of the family in detention, the family recovers after release. Did I understand you correctly?
DR WATSON: Well, yes, to some extent. I mean, part of what we do at CARAD is assign maybe 2 or 3 or 5 volunteers to a family to help with enrolling children at school, help with medical and other appointments, to teach how to shop and budget and use public transport, to mediate with Centrelink. I mean, we try to provide very full and coordinated service from volunteers and we have got about a thousand volunteers, supporters and donors. People have responded astonishingly generously to our requests for help. We have furnished houses, we have railway tickets for people who want to go to Melbourne.
COMMISSIONER OZDOWSKI: Thank you. Mr Mackaay, is there anything you would like to ask before I will close the public session of the hearing?
MR MACKAAY: I had hoped to be able to put our submission from the Social Responsibilities Commission into a context of the wider Anglican Church's view from within the Diocese of Perth. I have copies of resolutions spanning the years 1992 to 2001 which show a progression of concern in the church which almost looks like the deterioration of the situation in the detention centres and they address things such as access to services within the centres, the need for family units to not be held in the detention centres if the children are to be cared for properly.
And one of the final resolutions last year simply used the word that the church deplores the whole business of the detention centres and wants to see them ended. I should explain the Social Responsibilities Commission speaks in its own name in its own right but when the Synod of the Anglican Church adopts a resolution, that is the Church speaking as the Church and I have copies of those resolutions for you.
COMMISSIONER OZDOWSKI: Thank you very much. We will accept the copies for the record. I see Dr Watson, you wanted to say something now?
DR WATSON: There were just 2 other issues, when I said I had 3 additional issues. One being social security support, another is a rather poor photocopy of a letter written in Dari I have got sent from Nauru from a man who would have no idea that the letter could be presented here. Nevertheless, the recipient wants me to present it and the author of the letter says something like:
Human Rights here are just words and just talk. The people here are going mental.
But he makes this distinction, that as adults he:
...and others made a decision to take this journey to freedom but the children who endured the same conditions are blameless and should not be there in that prison.
I have got a copy if you wanted to translate it.
COMMISSIONER OZDOWSKI: Yes.
DR WATSON: We, of course, oppose the Pacific Solution and understand that about a quarter of the population in Nauru are children. The third thing I wanted to raise was because to illustrate the desperate lengths to which people are prepared to go to effect family union, denied through the temporary protection visa and two of the people here, men on temporary protection visas lost their wives and children on SEIV X which went down in October last year. Two men. One lost his wife and 3 children. Another his wife, 2 children, his brother and sister-in-law and their 3. They were hoping to join him.
COMMISSIONER OZDOWSKI: Yes. Thank you very much. Now, I propose to close the session so I would ask every member of the public to leave the room. Tea and coffee will be served outside. We will now go to individual cases where the identity of people involved needs to be protected. So, if I could ask that only witnesses are present at the table plus staff of Human Rights Commission remains in the room. Thank you.
SHORT ADJOURNMENT [10.55am]
RESUMED [11.40am]
COMMISSIONER OZDOWSKI: Welcome to everyone.
DAVID GORNALL,
affirmed
JUDITH CHERNYSH, affirmed
AARON GROVES, affirmed
KERRY ROSS, affirmed
BILL CURRY, affirmed
TARA GUPTA, affirmed
MAREE De LACEY, affirmed
MARGARET BANKS, affirmed [11.45am]
COMMISSIONER OZDOWSKI: Thank you, and now I would like to ask you to introduce yourself for the records, stating your name and the department you are representing.
MR GORNALL: I am the Acting Director, Country Services for the Disability Services Commission.
MS CHERNYSH: I am a Principal Policy Officer with the Disability Services Commission.
DR GROVES: I am the Chief Psychiatrist of Western Australia and the Acting General Manager of the Mental Health Division in the Department of Health.
MS ROSS: I am the Acting Principal Policy Consultant with the Federal Affairs in the Department of Premier and Cabinet.
MR CURRY: I am a Senior Project Officer with the Department of Community Development.
MS GUPTA: I am Director, Legal Services, with the Department of Community Development.
MS De LACEY: I am Executive Director, Country Service Delivery, Department for Community Development.
MS BANKS: I am Acting Executive Director of Student Services and Community Support with the Education Department.
COMMISSIONER OZDOWSKI: Thank you very much. As I understand each of you would like to make a short opening statement on behalf of the department you represent, so what I would propose to do is to start with the Department of the Prime Minister and Cabinet and after Ms Ross addresses us, if we could go to Ms Margaret Banks because as I understand it you are having the pleasure of estimates later in the day.
MS BANKS: We will need to leave at 1 o'clock.
COMMISSIONER OZDOWSKI: Thank you. So could we start with Ms Ross please.
MS ROSS: The Western Australian Government welcomes the opportunity to appear at this hearing in support of its written submission to the Inquiry. The whole of government submission was jointly prepared by a number of government agencies. Western Australia's submission focuses on the need to develop effective Commonwealth/State mechanisms, for coping for what is a relatively new and highly complex situation. This situation is the direct outcome of a series of Commonwealth policy decisions.
The provision of services adequate to meet the needs of children, both in immigration detention and after their release into the community is a matter of prime concern to the government. State government agencies have the operational capacity to provide many of the services required but the Commonwealth needs to accept full responsibility for funding such services. There is an urgent need to develop formal service provision arrangements between DIMIA and state agencies, based on full cost recovery from the Commonwealth by the state. Clarification of state and Commonwealth roles and responsibilities in relation to child welfare. Is another crucial matter raised in the submission. My colleagues here today are from the areas of child welfare, disability services, education and health. They would like to make their statements now please.
MS BANKS: Margaret Banks from Education. The Department of Education of Western Australia is willing to provide for the educational needs of students in immigration detention centres given adequate Commonwealth funding, and the capacity to provide for and accommodate the number of specialist teachers needed to meet the demand. Currently, our only provision for children who reside in detention centres is at the Derby District High School, where the school is continuing to educate those children with adequate mastery of English who are based at the Curtin Detention Centre.
The school has the capacity and willingness to accept more students in the context of resource provision, the principal of the school is unsure of the life of the detention centre and therefore restricted in planning for the future. The Department of Immigration and Multicultural and Indigenous Affairs is currently negotiating with Christmas Island District High School to establish an education program for those potential students who will be located at that centre. Based on current trends, it could be expected that up to 400 children requiring an educational program could be at Christmas Island Detention Centre at any one time.
Up to 800 new arrival students are enrolled each year in intensive language centres in Western Australia. Many have come from detention centres. The Department of Education currently provides tuition to students with English as a second language needs in these intensive language centres at a ratio of one teacher to 15 students. Unaccompanied minors on temporary visas who were enrolled at the Balga Senior High School last year in an emergency situation are now being educated within the post compulsory intensive language centre at Cyril Jackson Senior High School. The individual needs of all children, including those with learning difficulties and disabilities, can be catered for within the environment in which they are enrolled. Thank you.
COMMISSIONER OZDOWSKI: Thank you. Let us go around the table.
MS De LACEY: I am Maree De Lacey from the Department for Community Development. I will give a brief statement about our role and some of the issues in relation to that role and then I will hand over to my colleague, Bill Currie who, will talk about his area of expertise which is around children on temporary protection visas and the care of them outside of detention centres.
The Western Australian Department for Community Development has three areas of involvement with unaccompanied children and families seeking asylum. Firstly, the department has responsibility for the investigation and response to allegation of child maltreatment involving children held in Immigration detention facilities or released into the community and brought to the department's attention by DIMIA or by members of the community. Limits on the capacity of the department to undertake this role, include that the department does not have the power to remove a child from a detention centre if there are concerns about care and protection of the child, this authority rests with DIMIA.
The department has no automatic right of entry to detention facilities as these are located on Commonwealth land and so it must seek permission to visit. Following its investigation of child protection notifications, the department makes recommendations to DIMIA based on its assessment, but once again the responsibility for implementing the department's recommendations rests entirely with DIMIA. It is important to note that DIMIA retains the ultimate duty of care for all people held in immigration detention facilities including children.
It is also important to note that Western Australia, unlike other states, does not have mandatory reporting of child maltreatment allegations. The department is currently negotiating a Memorandum of Understanding with DIMIA which clarifies the respective departmental roles and responsibilities in relation to child protection notifications and general concerns regarding the well-being of children. The MOU also makes provision for the departmental staff to provide training to DIMIA and to ACM staff concerning child protection and child welfare issues. These negotiations on this MOU are progressing and we do anticipate this MOU will be finalised in the foreseeable future.
The second area of involvement concerns provision of advice regarding the general welfare of accompanied and unaccompanied children following requests from DIMIA. The third and the major area of the department's contact with refugee children involves acting as guardian for unaccompanied children released from detention to live in the community. Currently the department is providing support to approximately 21 of these children but these numbers do fluctuate. It is of great concern to the department that the Commonwealth has failed to provide realistic levels of funding to the department for supports to these vulnerable young people.
During 2000 to 2001 Commonwealth reimbursement to the department represented only 29 per cent of the total expenditure on services for those young people. In conjunction with other state and territory community services departments the Department for Community Development has been negotiating an MOU with DIMIA for additional supports to unaccompanied children released from detention to live in the community. This MOU is in addition to the one I referred to previously about child protection. Since October 2001 there has been no progress at officer level on this second MOU with DIMIA and this issue does require urgent attention.
MR CURRIE: The department provides assistance to meet the social, emotional and practical needs of unaccompanied children living in the community. This includes assistance to obtain legal advice on a case by case basis, provision of counselling and referral and liaison with specialist mental health and other services, provision of clothing and other practical support such as enrolment in school and provision of information about other ethnic and community resources available to them.
The department also works with other service providers and community groups to improve co-ordination of support to refugee children. In relation to refugee family groups, including those holding temporary protection visas, the department has provided a one off grant to the Coalition Assisting Refugees After Detention for settlement services following release from detention.
COMMISSIONER OZDOWSKI: Thank you. Ms Gupta.
MS GUPTA: No. I do not have anything at this point.
DR GROVES: Dr Aaron Groves from the Department of Health. The Western Australian Department of Health is primarily concerned about the provision of public health and mental health services to children in Immigration detention centres. The Department of Health's public health units have a well development protocol for providing a high standard of immunisation and infection control and believe that the prevention and control of food and water borne diseases is satisfactorily controlled.
The mental health needs of children, adolescents and their families are provided on request by the state Mental Health Service from Port Hedland or Broome. The mental health needs of children are best met by the shortest possible duration of detention. The Department of Health provides a number of services without reimbursement from the Commonwealth and on an ad hoc basis. It is keen to develop formal arrangements between the Western Australian Department of Health and the Department of Immigration and Multicultural and Indigenous Affairs. Thank you.
COMMISSIONER OZDOWSKI: Thank you.
MS CHERNYSH: Judith Chernysh, Disability Services Commission. We have a formal statement to be submitted. It was not included in the overall statement from the State. I will just summarise that statement. The Disability Services Commission has a responsibility for policy and program development and service planning in all areas that affect the rights and needs of Western Australians with disabilities. It is also a funder and provider of services for people with disability who meet the eligibility criteria of the Commission, which is outlined in the paper that I have provided you with.
The Commission currently does not have a formal agreement with DIMIA to provide services to children with disabilities and their families who may be in detention centres or on a temporary protection visa. In order for the Commission to provide services such an agreement would need to be in place, and this agreement would need to provide for a formal notification by DIMIA identifying the children with disabilities and their families who are in need of services and support. It would require an assessment by the Commission as to the needs and the possible services that could be provided and the cost of those services and it would also require that the cost of those services be met by the Commonwealth.
It is important to highlight the importance of the Commonwealth meeting the costs and services that could be provided to children with disabilities and their families. The current demand for accommodation and individual family support services to Australian residents with disabilities currently outstrips the availability of resources that the States have at their disposal. There is a significant unmet need and, for example, in WA there are over 263 families in 2001/2002 who were not able to secure funding for out of home accommodation for their family member with a disability and the Commission believes their first priority is to secure funding for these people.
COMMISSIONER OZDOWSKI: Thank you very much for your statements. Let us perhaps start with education. Let us start first with kids in detention. What is your involvement with children in detention? I understand there are some children going to a school in Derby. Could you describe how many of them, what years and then let us have a look at other areas at Port Hedland and so on.
MS BANKS: With Derby, my understanding is that the current number is 13, initially the number was 4 but it has fluctuated.
COMMISSIONER OZDOWSKI: Thirteen, does it include all children of school age in detention?
MS BANKS: I do not have the figures. I can provide them to you later as supplementary information.
COMMISSIONER OZDOWSKI: It would be very helpful.
MS BANKS: We will obtain that for you as to which year groups they are in. The students that are attending are those who have adequate mastery of English to be able to enter into the mainstream program.
MS LESNIE: If I just could interrupt there. In the written submission you also state that there are some health screening before kids can participate in the schools in Derby. Is that correct?
MS BANKS: Not in my submission.
MS LESNIE: It was in the WA submission. It says that:
Conditions considering accepting detainees are adequate mastery of English and medical clearance and they are of school age.
I wonder if you knew anything about the medical clearance.
MS BANKS: No. I cannot add to that. That would be on the advice of health experts. Within education, we would be taking the advice of others rather than doing that screening ourselves.
MS LESNIE: Okay.
MS BANKS: So that is the Derby situation and the children receive an education as any other child within that setting and if they have particular educational needs then whatever the school offers by way of added support would be provided to them at the same time.
COMMISSIONER OZDOWSKI: But you would not be providing intensive language training for children who are not able to participate in the mainstream.
MS BANKS: No, there are no resources provided for that. I believe but I cannot verify this, that children who need intensive language support receive that within the detention centre.
COMMISSIONER OZDOWSKI: I see. Looking at the 14 children who go outside, what would be their ages?
MS BANKS: Of school age?
COMMISSIONER OZDOWSKI: Yes. I know, but I trying to find whether they are primary school children, secondary school children.
MS BANKS: That is what I cannot provide you with at the moment.
COMMISSIONER OZDOWSKI: Okay. Would it be possible to ask you to take that question on notice, so we could get some more information?
MS BANKS: Yes.
COMMISSIONER OZDOWSKI: Now, considering that they are participating in mainstream schooling, could you comment about the relationship between children from town and children from a detention centre. Are there any difficulties?
MS BANKS: I am not privy to that information; I believe you will be going up to the school. We have not had through our normal reporting processes any information to the effect that, that is an issue. If I may also add, my understanding is that the Principal has been involved in community consultation both prior to the students being enrolled and runs an ongoing community consultation with the school community.
COMMISSIONER OZDOWSKI: Would you have any information about progress made by kids from the detention centre.
MS BANKS: Not individual information.
COMMISSIONER OZDOWSKI: No. What I am trying to find out, when we have the public hearings quite often we hear how traumatic it is to be in a detention centre. What I am really trying to find out is whether there is any visible impact when one compares one group of students with the other group of students.
MS BANKS: I don't believe we have that information available in the central office, if I can take that as supplementary information.
COMMISSIONER OZDOWSKI: Okay.
MS BANKS: Because if I could just add that I have been dealing with this more at the policy level, that is why I can't provide the information of the specifics on the ground.
COMMISSIONER OZDOWSKI: Now after children are released from detention, do they have an automatic right to access the school system in the state?
MS BANKS: Yes, they immediately have rights to access the school system. Up until recently we have had difficulty in some of them being able to access the additional support for intensive language development. But recently we've received notification from the Commonwealth that the TPV visa classification would be funded, so that
COMMISSIONER OZDOWSKI: Entitles.
MS BANKS: Yes, yes. So that will address one of the major issues that we had.
COMMISSIONER OZDOWSKI: In another state I was told that children need to receive special permission in order to attend state schooling, but it's not the case here.
MS BANKS: No, we have, once they were released and they are of school age, we have enrolled them in our schools.
COMMISSIONER OZDOWSKI: Would you know the total number of children in the education system here in Western Australia? Children from detention, the total number of them?
MS BANKS: Not specifically. We can talk in terms of visa category. I could take that one as supplementary information too.
COMMISSIONER OZDOWSKI: Yes. Okay. Do you have any questions relating to education here?
ASSISTANT COMMISSIONER SULLIVAN: How do parents in detention centres find out how their children are going at the high school?
MS BANKS: The children would have the normal reporting processes, but once again, I'm sorry I can't provide you with on the ground information about parents' access to the schools.
ASSISTANT COMMISSIONER SULLIVAN: Would that normally be face-to-face reporting?
MS BANKS: A combination of reporting is normally used, which is both written reporting and face-to-face. And in many of our schools every effort is made to provide interpreter information to enable parents to get accurate information. But that would be another issue that I can't verify the details.
ASSISTANT COMMISSIONER SULLIVAN: It would be helpful if you could get details for us. Have there been additional counselling services provided at the high school in the light of the nature of these children?
MS BANKS: The counselling services are provided on a needs basis from our district office and so if this had created additional demand. But I don't have the figures of the extent to which adjustments have been made.
ASSISTANT COMMISSIONER SULLIVAN: Normally such counselling involves family members as well, or it can often involve family members. Maybe this is again a question you can't answer, but I am interested in whether parents can come to such counselling sessions.
MS BANKS: I guess it is important to draw the line too between the sort of counselling that is provided in education and the sort of counselling that is provided by other service deliverers. Our counselling service is with respect to educational progress and in the development of the educational programs for students at risk and where work with school psychologists is involved. We encourage the involvement of parents, yes.
ASSISTANT COMMISSIONER SULLIVAN: I am assuming that many of these students would fall into that category which is why I am asking the question. When you say the normal range of curriculum opportunities, and I don't know the high school's curriculum well enough, but I assume there is some vocational training involved. Can these young people also participate in that?
MS BANKS: My understanding is that they can participate in whatever in-school programs that are offered but there are some issues with respect to excursions and I don't believe the high school operates a structural work place learning, where students are having days out in the work place.
ASSISTANT COMMISSIONER SULLIVAN: That is obviously what I was getting at.
MS BANKS: Yes. I would have to provide that information. You know the specifics of the operational detail of the school are better obtained from the principal.
ASSISTANT COMMISSIONER SULLIVAN: Right. If a culturally and linguistically different student rocked up at Port Hedland who was not from the detention centre, would you still provide educational services to that child?
MS BANKS: At any of our schools, yes, if a student is a resident or has the appropriate visa the Department of Education provides an educational program for every child.
ASSISTANT COMMISSIONER SULLIVAN: But you are making a distinction in this case because of the lack of Commonwealth funding?
MS BANKS: Yes. The issue is the visa classification and hence the access to our education system and the Commonwealth funding that is attached to the visa classification.
ASSISTANT COMMISSIONER SULLIVAN: I guess I am interested in putting a proviso on enrolment that their English must be adequate. I would have thought that proviso may not appear in other enrolment forms in other schools in the state.
MS BANKS: Correct.
ASSISTANT COMMISSIONER SULLIVAN: And so the justification is the financial one?
MS BANKS: My understanding is that the students who need greater development of their language skills are provided with the education within the detention centre. But your point about in all environments, we take children no matter what their cultural or linguistic background is. But with some visa categories, of course, the additional support for intensive language is provided. And that is where most of our students with intensive language needs are directed, in the first instance of their education.
ASSISTANT COMMISSIONER SULLIVAN: Does that particular high school cater for children with disabilities?
MS BANKS: Yes. All of our country schools accept students with disabilities. In our metropolitan schools and some regional we have specialist facilities for students with intellectual disabilities. But all other disabilities are catered for within the main stream schooling programs.
ASSISTANT COMMISSIONER SULLIVAN: So there would be an assumption if one of these, or some of these children, had disabilities they could be catered for at that particular school?
MS BANKS: That would be correct. But that also is a resourcing issue in that within our Department, our capacity to provide for students with disabilities and learning difficulties, the resource demands are quite stretched.
ASSISTANT COMMISSIONER SULLIVAN: I would think some of the evidence we have heard to date would indicate that the needs of these children could in fact be beyond the norm. And I was just wondering whether you had taken that into account in your planning for the education of these children?
MS BANKS: Not knowing the specific details, I can't add to that. But our policy is one of provision for all students and appropriate provision and appropriate support would be the intent of the service that we would be wanting to provide if funding is appropriate.
ASSISTANT COMMISSIONER SULLIVAN: My final question is if and when the children leave that school, is there some sort of documentation that goes with them? And is it any different from the documentation that goes with other students when they transfer out?
MS BANKS: I can't comment on the specific practise of the school, but the normal documentation is school reports.
ASSISTANT COMMISSIONER SULLIVAN: School based reporting?
MS BANKS: Yes.
ASSISTANT COMMISSIONER SULLIVAN: Thanks.
MS LESNIE: I wonder if I could just ask one point of clarification. Did you say that there were no children from the Port Hedland detention centre going to school in Port Hedland?
MS BANKS: In government schools.
MS LESNIE: I see. Okay.
MS BANKS: It is my understanding that they are attending a Catholic school, but it is not my place to comment on the Catholic position.
COMMISSIONER OZDOWSKI: Ms Banks, just two final questions to conclude. Are you involved, I mean is the state government involved, with any education provision within the detention centres?
MS BANKS: Not on the main land.
COMMISSIONER OZDOWSKI: Not.
MS BANKS: I understand that Christmas Island, where we have a different agreement with the Commonwealth.
COMMISSIONER OZDOWSKI: Arrangement. I see, so you will be providing education on Christmas Island within the detention centre?
MS BANKS: What is being negotiated through a memorandum of understanding, and the negotiations are only under way, is provision at the school. But also my understanding is that possibly the detention centre would be a possible environment with certain conditions as to what facilities were provided. And I think that is based on an understanding of possible expected large numbers, because it is the capacity to provide within existing facilities of a school. And so if large numbers of students arrive the school would not have the capacity to provide at the school setting.
COMMISSIONER OZDOWSKI: So it could be alternative arrangements, depending on the number of students. It could be either outside or inside. So the government is building some kind of a school at the detention centre over there to comply with
MS BANKS: I don't know, but in some of the preliminary discussions the expectation is that an appropriate learning environment, even if it was in the detention centre, be conducive to learning and appropriate for children.
COMMISSIONER OZDOWSKI: And normal curriculum of Western Australia would apply to the Christmas Island detention centre?
MS BANKS: That is what we would be interested in negotiating. Services that are consistent with a quality education provided to all Western Australian children.
COMMISSIONER OZDOWSKI: And the last one is more practical and you may not know the answer. But basically at the moment the arrangement is that the bus will come in the morning to the detention centre, take kids to school, and then return them afterwards. What about ACM guards, or any other guards, do they accompany children to school?
MS BANKS: I am sorry, I can't answer that. I don't know the details.
COMMISSIONER OZDOWSKI: Thanks Ms Banks.
MS BANKS: Thank you.
COMMISSIONER OZDOWSKI: I think your presence is no longer required but you may stay if you choose so.
MS BANKS: All right. I will stay a while, thank you.
COMMISSIONER OZDOWSKI: Now I would like to ask Professor Thomas to focus on mental health issues.
ASSISTANT COMMISSIONER THOMAS: Dr Groves, in the submission it said that this detention centre has a psychiatric nurse and clinical psychologist. And the service is backed up by the state Mental Health Service, on referral and with no reimbursement. Can you comment on the adequacy of that policy, that arrangement, with the Mental Health Service?
DR GROVES: Thank you, Assistant Commissioner. It is difficult to actually make a direct comment about how adequate that policy is. Clearly it is the Commonwealth Government's responsibility to provide the mental health services to all people within mandatory detention. From the state government's perspective it is welcoming that the Commonwealth department actually employs people to work within the detention centres. The control and issues to do with their employment and what services they provide, is totally under the responsibilities of the Commonwealth government and I can't comment about those.
From our perspective we have child and adolescent mental health workers located in Port Hedland and also in Broome. They are available to provide specialist mental health services to any children on referral from those key mental health workers who are sited in Port Hedland. From our perspective we certainly have the capacity to provide those specialist mental health services on referral. A second issue though arises and that is the issue of specialist mental health services to children and adolescents who are traumatised. Given the group of children in detention they are different from other children who would normally access child and adolescent mental health services.
In that way we have a government funded, non-government organisation, in Perth that provides specialist trauma and torture services. They have limited capacities, because they are located in Perth, to provide specialist services outside of Perth. In addition we also have the West Australian Trans-Cultural Mental Health Unit, again located in Perth. They can provide specialist assistance outside of the metropolitan area but it is really a secondary consultation model rather than a primary service delivery model.
We also do provide key psychiatry services that are child and adolescent specialist. We have a consultant psychiatrist within Child and Adolescent Mental Health Services who provides tele-psychiatry throughout the state. And again those services can be provided to augment the state specialist mental health services in the rural area, and that occurs on a regular basis. So from that perspective I think we have got comprehensive, or the opportunity to provide quite comprehensive, mental health services to the children.
The issue that we remain concerned about is that that is provided without cost recovery from the state and we are very keen that that can be moved forward with the Department.
ASSISTANT COMMISSIONER THOMAS: I don't know whether to ask, but can you compare the accessibility to mental health services for the people, or children, in detention centres, and those in the public in general in Western Australia?
DR GROVES: The accessibility is equal. We would do it on a priority basis, given the clinical need. And if it is clearly a high priority clinical issue we would provide the services on that basis.
ASSISTANT COMMISSIONER THOMAS: Yes.
MS LESNIE: Could I ask how do cases get referred?
DR GROVES: By the staff from the detention centre.
MS LESNIE: Okay.
ASSISTANT COMMISSIONER THOMAS: And since it is implied that there may be a possibility of under-reporting, because a parent is reluctant to report because they are afraid that it might jeopardise their refugee status. Would you comment, as an expert, on the long term impact of this event with so many cases of mental health which may be under-reported?
DR GROVES: You have captured two slightly separate issues.
ASSISTANT COMMISSIONER THOMAS: Yes.
DR GROVES: The first one is the degree to which they are referred to our services, and the second one is the long term consequences of not being referred. It is hard to actually make a specific comment about whether there is under-reporting. We have certainly had submissions from various groups that there may be under-reporting, but without actually having a formal process of screening children within detention, we actually would not know. What we do know though, from the available literature in the world that has looked at refugees, and in particular refugees' children, we know that there is a very high morbidity rate amongst those children.
Certainly in some studies such as the Swedish study of children in refugee detention, as much as 78, nearly 80 per cent, of children suffer from severe sequelae from their trauma. That usually presents in the form of post traumatic stress disorder. But also it often presents with depression and anxiety symptoms as well. We know that in those children, and from other studies that have been done, particularly in the Cambodian children as refugees that were followed up for six years and beyond, we know that without adequate treatment their symptoms become long standing. And so that is a concern for us that interventions should be early and complete to try and reduce the long term consequences on those children.
ASSISTANT COMMISSIONER THOMAS: Are you aware of what happened to the children after they had been released, with any cases of mental health problems? Because they would belong to the state responsibility after they have been released.
DR GROVES: They do indeed, yes. I am not aware of any specific circumstances. But again the government policy is that children and their parents once they are released from detention are therefore eligible for Medicare and also eligible for access to public mental health service, in fact public services within the government sector at no charge in Western Australia. And my understanding is that they continue to access those services. Again our concern is that within the Australian Health Care Agreement with the Commonwealth government, the Commonwealth government provides us about 40 per cent of the cost of public hospital services.
Again, that is an issue which we have in terms of once they are released, in terms of the funding allocation for our state; it is on a person basis, rather than identifying those people who use services. And again 40 per cent of the total cost is what we are getting.
ASSISTANT COMMISSIONER THOMAS: But how would those on bridging visas or temporary protection visas, could they access the state Mental Health Service?
DR GROVES: Yes, they can.
ASSISTANT COMMISSIONER THOMAS: But I don't think they have Medicare cards.
DR GROVES: No, they don't need to have those to access our services.
ASSISTANT COMMISSIONER THOMAS: Okay.
DR GROVES: But again, we do have the issue about cost recovery from the Commonwealth government.
ASSISTANT COMMISSIONER THOMAS: In the submission there is also mention of the mental health records and the lack of confidentiality. The psychologists, they are bound by the Code of Ethics in terms of confidentiality. Can you comment on that?
DR GROVES: The question in the submission that we provided, related to advice that had been given to the West Australian government's Department of Health that raised concerns about the confidentiality of those medical records. I don't have any specific information that says to me that those records aren't confidential. But I think it was an important thing to have within the submission that that had been raised with the West Australian government's Department of Health.
MS LESNIE: The submission also refers to an incident where treatment recommended by the North West Mental Health Service was questioned because of its cost. Can you elaborate a little bit on that example?
DR GROVES: Try not to identify any particular personal circumstance?
MS LESNIE: No.
DR GROVES: But there was a situation in which referral of an adolescent in detention was made to the North West Mental Health Service, which is based in Broome. The adolescent was assessed and the result of that was a recommendation as to a particular treatment program. My understanding is that there were some discussions and negotiations about the cost of providing that particular treatment approach for that adolescent. But at the end of the day, best practise was what was followed and the adolescent was actually instituted with that treatment program.
MS LESNIE: So the concern was the cost to the detention centre of paying for the treatment?
DR GROVES: That is my understanding, yes.
ASSISTANT COMMISSIONER THOMAS: The submission mentioned that there is a lack of screening for mental disorder by detention centre staff. How important do you think that this service should be provided for the detainees, for the children and for the staff?
DR GROVES: Professor Thomas, again that was something that was noted as a concern raised to us. I don't actually know whether mental health screening occurs routinely within the detention centre or not. It would be best practise in our view, given this group of children and their parents, that that should occur. I would agree with you but I am not in a position to know what the Commonwealth government actually does in terms of mental health screening. But I raised that in the submission because, certainly many groups have noted to the Department of Health that their concerns were that that was not occurring.
ASSISTANT COMMISSIONER THOMAS: Do you think it is possible to differentiate the morbidity of the children and the parents' rate?
DR GROVES: No.
ASSISTANT COMMISSIONER THOMAS: Caused by their pre-migration experience and then during the detention centre and then maybe during the time when they are in limbo after release?
DR GROVES: No, I think it is very difficult to disentangle the children from their parents and the various stages of the whole transition process through being a refugee.
ASSISTANT COMMISSIONER THOMAS: So what kind of research project would you propose if we wanted to answer this question?
DR GROVES: We have been somewhat fortunate in this state that Professor Brett McDermot, who is the Professor of Child and Adolescent Psychiatry, is actually a world leading figure when it comes to trauma and children and I would have thought that we are well placed in this state to actually undertake quite a comprehensive study of the consequences and the treatment outcomes for children who have been traumatised through this process. Professor McDermot is actually in Queensland at the moment working and is about to go to Cambridge University, unfortunately, for six months. However, we would certainly be well placed on his return to be able to undertake that sort of research.
ASSISTANT COMMISSIONER THOMAS: Would you consider, say, applying to NH&MRC for a grant to conduct this kind of project? Do you think it is possible to conduct this kind of project?
DR GROVES: I am sure that is the case. Professor McDermot led a fairly large study of children and the sequelae after the Sydney Bush Fires many years ago and has got many NH&MRC grants. The issue is to do with the access to conduct the research but I am sure he would have a marked willingness to do so.
ASSISTANT COMMISSIONER THOMAS: Yes. Thank you.
COMMISSIONER OZDOWSKI: Dr Groves, if I could follow with a few questions. In your professional opinion, would detention add to trauma which children may have encountered before they are being taken into the detention centre?
DR GROVES: The available literature in the world is that it can do so. It is difficult to be precise and talk about that for all children but certainly the available evidence is that most children can be traumatised by the circumstances of being in detention and again that runs across a number of different domains. One of the concerns amongst the literature is that the failure to treat children who have been traumatised both before but certainly as a consequence of being in detention, often leads to secondary morbidity. They have more problems with language development, they have more problems with education, they are more likely to be - to feel depressed.
They don't usually add an additional burden to the country in which they go to but more it is the personal consequences rather than adding a burden to the country where they reside after there from detention.
COMMISSIONER OZDOWSKI: And the State government is making treatment services available to traumatised kids released from detention?
DR GROVES: That is right.
COMMISSIONER OZDOWSKI: And they are using it?
DR GROVES: I cannot actually comment on the usage rate at the moment. I do know that some children and their parents have used those services but I am not in a position to know of what the full uptake of those services are.
COMMISSIONER OZDOWSKI: Is there any chance of finding this information or is it too difficult?
DR GROVES: In the future it could be but we do not collect that information in that way to be able to provide that information at the moment.
COMMISSIONER OZDOWSKI: Possibly it would also be too difficult to comment at this stage about long term impact of detention on children?
DR GROVES: Certainly not from a Western Australian perspective because the research has not been done. In terms of the world literature again, in other countries certainly there is abundant evidence that there are long term problems. However, I am not in a position to say what they are with respect to Western Australia.
COMMISSIONER OZDOWSKI: If it is so that children may be traumatised further through the process of detention, the Minister of Immigration recently stated that whenever state officials advise federal officials that in the best interests of a child to be out of detention, the Minister will release such a child immediately. What is the practice at the moment? How are you assessing and advising the Commonwealth officials about the release of children from detention?
DR GROVES: That has usually been on a casse by case basis and I would not know what the current circumstances are in terms of the voracity of that statement.
COMMISSIONER OZDOWSKI: Did you have cases when you advised the Department of Immigration that it is in the best interests of a child to be released from detention and the child was not released within reasonable period of time after such advice?
DR GROVES: I am not in a position to know the outcomes of any submissions that have been put to the Commonwealth government so I could not say either way, sorry.
COMMISSIONER OZDOWSKI: Is there anybody in the state service who would know it?
DR GROVES: I would need to contact each one of the health services within the state to find that information but I am happy to undertake that.
COMMISSIONER OZDOWSKI: Yes please do so. We would like to see how effective your advice is.
DR GROVES: Yes.
MS De LACEY: Could I just interrupt for a moment? From Community Development's point of view, we certainly have had the request to make assessments of children and young people in detention and to provide recommendations back to DIMIA about whether or not they should or where they are best placed. So I can probably answer that question for you as well.
COMMISSIONER OZDOWSKI: If you could, and then always when it is coming to the Department of Immigration, the Department of Immigration is saying that there is quite an important balancing act to be done, whether it is better for a child to stay in detention with parents or parent, or to be released. You possibly deal with it on a practical level. How do you do it?
MS De LACEY: It is a matter of assessing on a case by case basis. We were asked by DIMIA in February of this year to make an assessment of all the unaccompanied minors who were in detention at that time and there were nine. We made that assessment on the basis of a psychologist's attendance who assessed at both detention centres and it is a very difficult process to make an effective assessment within a detention centre because of a range of factors. Factors according to - factors relating to the young person themselves. All of these young people were 16 or older who have obviously been through significant trauma in reaching the centres.
Factors also associated with being in detention related to language issues, cultural issues, the environment of the detention centres etcetera. So the assessments themselves were quite difficult to undertake but ultimately the recommendation that we made on the basis of each individual ones of those young people, was that each of those young people should be released to the community on bridging visas. The outcome of those assessments, to the best of our knowledge when we followed up with the detention centres, was a combination of results.
Some of the young people turned 18 so therefore were no longer within the category of unaccompanied minor within a detention centre. Some were released on the temporary protection visas for which they had made application anyway. There was also an instance of someone being referred to another detention centre and, as one of our earlier people has given evidence, a couple of unaccompanied minors were reclassified. To the best of our knowledge, there was only one - and this was when we followed up about six weeks ago, there was only one still in detention but expecting the visa to come through at any time.
COMMISSIONER OZDOWSKI: So basically one could say that, excepting the people who reached 18, in most cases you were successful.
MS De LACEY: Whether we were successful or not I am not sure because, in many ways, the processing fact continued irrespective of the fact that we had made the assessment so for some of these young people they received their temporary protection visa for which they had made application some time prior. So whether it was our recommendations or whether it was just normal process that resulted in the young people being released, I could not say. There are certainly other instances where we are called in to make assessments on younger children, children who are in the care of their families - it may be a child protection referral for example or it may be a general welfare referral.
Again, we make the assessment on the basis of the individual cases, always with the framework around it though that, wherever possible, no matter where a child is, whether they are in the community or in a detention centre or where they are, wherever possible it is always in a child's best interests to be cared for safely within their family context. We also wrap around that the issues for children in detention centres that often they have been through fairly traumatic circumstances. They may well only be in the care of family and know nobody else in the country.
As difficult as it may be, there is something of a routine within the detention centre. There are other people that they can speak to within their - who are - within their cultural groups or language groups. We are also very cognisant of the issues of attachment and the issues of trauma so, wherever possible, we certainly do work with the detention centres and with the families to try to maintain that connection and maintain the child with their family, simply because to separate a child from their family, given everything else, is likely to add to the trauma they have already been through and that is something that we are obviously all working to avoid.
COMMISSIONER OZDOWSKI: We have heard of the cases where families disintegrated in the detention centres and became quite dysfunctional. We heard also the cases where children form attachments with guards or with people in other detention centres. Did you encounter this kind of cases?
MS De LACEY: We have certainly come across situations where the families are going through quite major traumas and we have had situations where we have been asked to make an assessment when a parent, for example, has felt that they are just not able to give their attention to the child. Again, we deal with those on a case by case basis and the kinds of things that we look at. We always work with the family, with the parent as well as with the child and talk with them about what the solutions might be.
There have been instances where we have made the recommendation back to DIMIA and, again, it is important to say that all we can do is make recommendations and DIMIA are the ones with the authority to act on them. There have been times when we have made the recommendation that the child might need to be cared for someone within that group other than family for a short period of time but maintaining the connection very, very strongly, so maintaining maximum amounts of contact.
We would also, in those situations, make recommendations around the sorts of services that the family needs, the parent needs, in order to be able to regain the care of that child. So, again, it is always trying to focus on that, the context of family within the detention centre. There may be other recommendations that we might make in terms of counselling for the children themselves. Every effort really to try and maintain as normal an environment in a fairly abnormal environment as is possible.
COMMISSIONER OZDOWSKI: We have also heard of children who develop mental illness in the detention centre so possibly you will be also meeting this kind of children and making recommendations? What would you recommend usually in this kind of cases? Which takes priority, the family in detention or may be outside treatment or?
MS De LACEY: Difficult to generalise because, again, it is on a case by case basis. Wherever possible, it is about trying to get the services in that can keep the family connection happening. We have not had a situation at this point - we have had one situation where there was a separation, a very brief separation of a child from the family because there was no other way that we or DIMIA could work out to keep that child safe. So there has been one instance where that has happened but it was a very brief separation and reunification happened quite quickly.
Again, wherever possible though, we do try and work to keep them together. It is a balancing act. There are a whole range of factors in every one of these assessments, a whole range of factors that do have to be taken into account.
ASSISTANT COMMISSIONER SULLIVAN: When you recommend those additional support services to families, have you any sense of whether DIMIA takes up those kinds of recommendations as well?
MS De LACEY: We have certainly in past months been actively following up and even prior to that with any contentious situation or any situation that we are particularly concerned about, we do follow up with DIMIA to find out whether the recommendations were acted on. We have - by and large, generally the recommendations have been acted on. We have had only one situation more recently where - and it wasn't because of DIMIA not wanting to, there are other factors that came into it, where we had to work a little bit harder and a little bit longer to get the recommendations acted on.
COMMISSIONER OZDOWSKI: So your overall experience was the federal government is, that they do take your recommendations seriously and they do act on it?
MS De LACEY: To date it certainly has been. Again, we don't know what we don't know. So we do have to rely - again, because we don't have the automatic right of access into the detention centres. We have to rely largely on DIMIA advising us so there may be information that we are not aware of but, by and large, at the local level, we work very hard to have an effective working relationship with the detention centres and, by and large, the information that we receive is that the recommendations that we make are taken seriously.
COMMISSIONER OZDOWSKI: Thanks Ms De Lacey. Any questions? No?
ASSISTANT COMMISSIONER SULLIVAN: One more. Given that there isn't mandatory reporting in Western Australia, what is the source of the reporting that you do get?
MS De LACEY: The majority - and I have some data here for you that I can provide to you later, the majority of the referrals come to us from either ACM or DIMIA. We have, in each location, in Derby and Port Hedland a nominated liaison office for the detention centres and that is the person that they make the referrals to. By and large, that is where it comes from but they do come as well from other sources and increasingly more recently we have been getting referrals around general welfare issues from members of the community or lawyers or other groups within - across Australia.
ASSISTANT COMMISSIONER SULLIVAN: Are there any self-referrals about harm by children, young people?
MS De LACEY: To the best of my knowledge, we have had none, no.
ASSISTANT COMMISSIONER SULLIVAN: What avenue would they use should they choose to?
MS De LACEY: That is also very difficult because they - people do have access to telephones but again I would not imagine that they would necessarily know who they could call, who they could talk to. One of the issues that our staff confront when they go into the detention centres to make assessments is that it is difficult to explain exactly who we are in relation to DIMIA. We are all government. So whether a young person would actually contact a government agency or even know to contact a government agency, I think there would have to be a question mark over that.
ASSISTANT COMMISSIONER SULLIVAN: Thanks.
COMMISSIONER OZDOWSKI: Your submission said that you responded to certain notification of child maltreatment and 25 referrals relating to the general welfare of children, could you describe the process, how does it happen, how you get notified, how does it work really?
MS De LACEY: From the financial year of 2000-2001, our staff at the local level made contact with the detention centres at the local area. This was prior to the broader MOU being negotiated between us and DIMIA, State and Commonwealth. They made contact with the centres to begin a process of setting up a local agreement about how referrals would happen. As I said, we have nominated a senior officer who is the liaison officer with the detention centres. The referrals come direct to that person. Sometimes when they come from members of the community, they come to our duty officer so they just go direct to our office.
COMMISSIONER OZDOWSKI: So it could be an outsider, it could be a person visiting centre.
MS De LACEY: Absolutely.
COMMISSIONER OZDOWSKI: Or someone from the ACM or DIMIA office, okay.
MS De LACEY: We take the same role in terms of child maltreatment allegations within detention centres as we do outside. Anyone can make a referral and we will make an assessment on the basis of that referral and determine the action that needs to be taken. So, no, there is no exclusiveness in terms of who can make referrals.
COMMISSIONER OZDOWSKI: And you have easy access to the centres or are there difficulties with you accessing centres?
MS De LACEY: By and large, it is when we have needed to access, and particularly on child protection matters, we have had no problems at this point in terms of making the contact. The arrangement is that we will - if we receive a notification, we will contact the DIMIA Manager at the detention centre and advise them of the notification. Generally it has come from them anyway but, if not, we will advise them but we won't advise who the referral has come from and we will arrange a time to go into the detention centre.
We have not had an instance in relation to child maltreatment where we have had any problems with access into the detention centre at this point. But we are always very clear, and it is always made very clear and we are very aware as well, that it is not something that we have a right of open access to. It has to be on the basis of getting permission from DIMIA.
COMMISSIONER OZDOWSKI: Did you have delays in permission being granted?
MS De LACEY: To the best of my knowledge, not in relation to child protection allegations. We have had to negotiate in relation to some of the more general welfare issues at times but we have always sorted it out but there have been times when there has been perhaps a bit of a misunderstanding about our role and DIMIA's role in terms of being able to respond to just general welfare notifications. The reality again though is that DIMIA makes the decision about whether or not they will allow us in to make an assessment.
COMMISSIONER OZDOWSKI: Coming to the cases of self harm of children, do you get involved with them as well?
MS De LACEY: We have had some involvement certainly, yes.
COMMISSIONER OZDOWSKI: So again the Department or ACM notifies you when self harm happens?
MS De LACEY: That is the majority of situations. We have had one or two contacts from outside people about young people who may be subject to self harm within the detention centres.
COMMISSIONER OZDOWSKI: Could you generalise and say why we have this incidence of self harm and what are the circumstances?
MS De LACEY: It is a very broad generalisation because again the young people that we are dealing with or the children range in ages quite broadly. But in terms of, if I could just put it back to the assessments that were made by our psychologists about some of the sources of difficulty for the young people, the most - the biggest issue that was difficult for them to deal with was the uncertainty. Consistently that came through, the uncertainty of when they might be able to be released, the uncertainty of their visas and the length of time of being in detention centres.
That uncertainty was one of the issues that was coming through. Our psychologists' assessments - and I think there is some referral made to that within the state submission as well, also included a whole range of factors about the detention environment and absence of contact or what young people felt was an absence of contact and knowledge and understanding of what was going on back home. They may have left some time ago and not know what has happened with family and with other people. So there is a whole range of factors that can certainly cause difficulty and which they tell us are causing difficulty for them.
COMMISSIONER OZDOWSKI: You name length of time as one of the key factors. Is there a breaking point, how long kids can take it?
MS De LACEY: I really don't think I am able to answer that, I think there again a whole range of factors that would be taken into account with that. So I really don't know.
COMMISSIONER OZDOWSKI: But your experience with children harming themselves, how long had they been in detention before they started harming themselves?
MS De LACEY: Again I would have to go back to the individual cases to find that information out for you.
COMMISSIONER OZDOWSKI: Would it be possible to have a look at it?
MS De LACEY: Yes, and you will be speaking to our area manager and our manager in each of Derby and Port Hedland, so certainly they could give you some of that information about specific situations as well.
COMMISSIONER OZDOWSKI: There were allegations that part of self-harm by children is done with encouragement of parents and especially there were allegations that, in terms of lip sewing in Woomera in January this year, there was some parent involvement. In terms of your experience with self-harming cases here in Western Australia, were there parents involved with it or encouraging it?
MS De LACEY: We recently had a referral in relation to self-harm, where there was an allegation that parents were involved. The outcome of our assessment, and the children themselves, who were young people, were very clear, that they made the decisions themselves, their parents were not involved in that decision.
COMMISSIONER OZDOWSKI: Why did they do it?
MS De LACEY: Those young people? Again it was a whole range of factors around the length of time, they were very distressed. Everyone at that time, there was a range of people who were distressed around - in the environment. It was a fairly tense time within the detention centre.
COMMISSIONER OZDOWSKI: Can kids function normally in detention environment?
MS De LACEY: Again, it is a very broad - a very broad question. And again children are all ages. So for some children who are very young there needs are quite basic in terms of just contact with someone who is consistent and there for them. So can children function normally is a very broad question. I think we would put it back to what we have said within the submission that the detention environment is not a normal environment and that the recommendation from the state is that children should be kept within detention for as short a time as possible.
MS LESNIE: You described in your submission that, and also in your opening statement about being asked to do an assessment of the parenting issues and implementing training programs in respect of it. Can you ask sort of what started, or what spurred the request and what you found and what recommendations you made?
MS De LACEY: The request came, really as a result I think of the fact that a lot of work was being done to establish a relationship between our staff and the detention centre people at both locations. So there was a lot of discussion around about what we could offer to them and what we needed and what DIMIA was doing. So I think it came out of that general broad discussions around the kinds of services that the Department for Community Development provides.
It was a request that came from DIMIA around whether we could provide a particular parenting program that we do run in the Port Hedland area to the detention centre and to people within the detention centre. And that is something that we are prepared to do. It is obviously not easy, and there is a lot of work that is still happening around it. Largely the reason that it is not easy is that there is a whole range of cultural factors that these particular programs are not designed for.
So our staff need to get a lot more information about the kind of cultural factors that they need to take into account around any kind of parenting program and then place it within the context of parenting within a detention centre. But it is something that we are still willing to explore and are still exploring.
MS LESNIE: Other than the cultural issues, are there specific issues that you feel like you will need to address in the context of a detention environment that you might not otherwise need to address in the community?
MS De LACEY: From our staff's perspective I think one of the issues that has already been touched on a little bit earlier is simply the, to some extent, the abnormality of a parent - of a family environment. In the submission that we have provided - the government's provided, our recommendation also includes that, if there is some reason why children need to stay within a detention centre for any length of time, there should be some separation of families so that they can - from other people I mean - so that they can in fact maintain something of a normal family unit. So there are those kinds of factors as well that would have to be taken into account.
MS LESNIE: There is one more question I wanted to ask you about referrals to state protection. One of the other things that you mention in your submission is that you might be willing to give ACM and DIMIA staff training on how to identify child maltreatment problems. Once again I would like to ask you why you felt that that was necessary and whether you have noticed any gaps in the referrals system because of the lack of training. One other question I would like you to address also is that we have heard that there is a high turnover of staff in detention centres and how the training might deal with that issue as well.
MS De LACEY: The first part of the question. It is more being pro active rather on the basis of any real inadequacy in referrals. Again we don't know what we don't know. We rely on information coming from the detention centres and certainly the number of contacts is increasing. We provide training to a whole range of agencies and we offer training to a whole range of agencies. It is part of the normal kind of process to support them in making referrals to us and understanding as well, how we respond and what sorts of referrals we need.
So that suggestion did not come on the basis of any perceived inadequacy in the referrals. Already we have had one low level joint training session between ourselves and DIMIA in one of the areas and we have certainly made the commitment that when training goes to those locations for our own staff we would make it available to DIMIA. But it is also not just DIMIA, we are also making it available to our non-government agencies and the education department and anybody, I mean, basically, that is the nature of working in country areas in particular to try and share training.
Turnover. I think turnover is an issue for most agencies in country areas. It is one of those issues where you provide the training and provide the training hopefully to enough people that when there is turnover there is still someone within those areas who has been trained. I think the most important factor for us though really is around the relationship between the centre and our key liaison person. They do meet quite regularly and have quite a bit of contact, particularly from one of the centres and that in itself improves everybody's skills in terms of us understanding what is happening in the centre and their understanding of what we need.
COMMISSIONER OZDOWSKI: Do they reside at the centre. How does it work?
MS De LACEY: No.
COMMISSIONER OZDOWSKI: It is a telephone contact?
MS De LACEY: It is a telephone contact and those workers are usually the workers who provide the assessments in the detention centres when there is a need to do that.
COMMISSIONER OZDOWSKI: Did DIMIA ever refer a case to you about the alleged abuser was a DIMIA official or ACM official?
MS De LACEY: We haven't had that happen at this point, no, no.
COMMISSIONER OZDOWSKI: So maybe we will move on and would like to ask some questions about the memorandum of understanding you were saying that you haven't managed to develop that one. I understand South Australia have got one and are very proud of it. So what is happening over here?
MS De LACEY: There are two MOUs in progress at the moment and a third one that is being mooted. The one that South Australia has already signed is the memorandum of understanding in relation to child protection within detention centres. That was provided to all states by DIMIA in its draft form some time ago when it first began to be developed. So South Australia certainly did begin the negotiations earlier than the rest of us.
The MOU that we are negotiating, because circumstances are different, state to state, we operate under different legislation, we have different circumstances such as mandatory reporting, or none. There are some differences between us and South Australia so we are still negotiating that. We are quite hopeful that that MOU in relation to child maltreatment referrals and the general welfare issues of children within detention centres, we are positive that that will be signed reasonably soon.
COMMISSIONER OZDOWSKI: Are there any outstanding issues still to be worked through?
MS De LACEY: There a couple of outstanding issues that we do still need to talk about and talk through. They, again, probably one of the primary issues is around funding. But it is not as big a sticking point as it is with the other MOU, to the best of our knowledge, at this point. When we haven't signed it I guess anything can happen.
COMMISSIONER OZDOWSKI: Yes. Could you focus on the other MOU?
MS De LACEY: The second MOU is one that has been in progress now for a number of years. And, as I said earlier, the progress on that MOU stopped in October last year at officer level. Now the difference between this MOU and the child protection one, the child protection one we are negotiating state by state because of the differences. The other one, which relates to unaccompanied minors released on temporary protection visas out of detention centres, is something we are negotiating multi-laterally which means that all of the state government agencies are negotiating as a group with the Commonwealth.
At officer level those negotiations ended in about October last year and there was not any progress beyond there. It was agreed at the Community Services Minister's Advisory Committee that the next step would be that the CEOs of the various agencies, state agencies, would meet with the Secretary of DIMIA and attempt to negotiate the finalisation of that MOU. That meeting has not occurred yet.
COMMISSIONER OZDOWSKI: Do you have any anticipated date of finalisation of that MOU?
MS De LACEY: No, I could not begin to predict that.
COMMISSIONER OZDOWSKI: So how does it practically impact on you not having that MOU? Is it really needed?
MS De LACEY: Yes, it is. It is actually needed. In fact both of those MOUs are needed. Although we are working together at the local level in relation to the child protection issue, the broader MOU really does set a framework that everyone understands. And so it is needed for that reason. In relation to young people outside of detention centres I might let Bill talk a little bit about that. But that MOU is also needed; one of the fundamental issues and fundamental sticking points is obviously money and obviously the reimbursement from the Commonwealth and that is a primary issue that we would need to have resolved.
Because at this point, there are services being provided, but without the reimbursement, and there are issues around that. There are also a number of other issues within that MOU that are sticking points but that is the fundamental one. The third MOU which has been mooted relates to the issue of alternative places of detention, children being released to an alternative place of detention.
COMMISSIONER OZDOWSKI: Yes. So they are still deemed to be in detention but basically could be looked after by family.
MS De LACEY: That is right. But they are based within - that is right. That MOU has not started yet.
COMMISSIONER OZDOWSKI: So perhaps if we could ask you to say a few words about young people outside detention.
MR CURRIE: Since the middle of 1999 the Department for Community Development has accepted round about 105 refugee minors in terms of guardianship responsibility. We currently have 21 and we are still providing care to about another four.
COMMISSIONER OZDOWSKI: Since the guardianship was formally transferred from the Minister for Immigration to the state government?
MR CURRIE: That is right. I could say a little bit about the process of what occurs? DIMIA provide us with no more than five days notice of the release of children from the detention centres.
COMMISSIONER OZDOWSKI: Five days notice?
MR CURRIE: Five days, yes. So we arrange the pick-up from the airport, transfer to a place of accommodation which we organise and we then basically run a settlement program with the children which involves catering for all of their needs, much as a parent would care for a teenage child.
COMMISSIONER OZDOWSKI: So you will have a case officer for each child?
MR CURRIE: Yes. We have one full-time staff member who is the case manager and with assistance
COMMISSIONER OZDOWSKI: One for all of them or one per child?
MR CURRIE: One for all of them. We had a particularly busy influx of children late last year and then we put on an extra full-time worker, so we had two for several months, in fact until quite recently.
COMMISSIONER OZDOWSKI: For over 100 kids?
MR CURRIE: No, I'm sorry, that was since the middle of 1999, and because the children, when they are released, most of them have already turned 16 within a period of months they begin to turn 18. We have also had a lot of children who have voluntarily decided to move interstate. It has already been referred to - the mobility of these children is quite pronounced. So we have lost a number, in fact a large percentage to the eastern states and they will either arrange that through us with our consultation and assistance or else they will just simply move and the next thing we hear of is that they have taken themselves interstate.
COMMISSIONER OZDOWSKI: So what you are saying that some young people if they decide to move say to Sydney, you may simply lose them from the horizon.
MR CURRIE: Yes.
COMMISSIONER OZDOWSKI: Would you notify NSW authorities that they child moved here, you would, if you knew it was necessary?
MR CURRIE: Yes, yes, that is right. I mean, sometimes we don't know where they have gone, they just go. But we often hear back from them. We are probably their primary contact and we get to know them very well. Our relationship is quite good - in fact it is very good with most of the children.
COMMISSIONER OZDOWSKI: What reasons would they give you for moving out of Perth?
MR CURRIE: They tell us that they hear of better lifestyles or better programs, access to education, that was a big issue last year, it has eased somewhat, since the children have better access to education in WA now so that is less of a reason. But often it is for fairly esoteric reasons, they have heard from a friend of theirs that they can get them a job or something of that sort.
The children, from what I have seen, there is a kind of an issue for them about whether they should attend school and try and attain some sort of educational proficiency in English or broader educational outcomes or whether they should go and work and it is a tension for them. Some of them who feel
COMMISSIONER OZDOWSKI: What is the outcome of tension in terms of percentages, how many of them stay with education?
MR CURRIE: It is about 60 per cent in school.
COMMISSIONER OZDOWSKI: 60 per cent for schooling.
MR CURRY: Yes.
COMMISSIONER OZDOWSKI: And that is basically you are saying high school, education in high school or?
MR CURRIE: They are mostly just intensive language, so they are just learning English. We do have some who are attending normal mainstream school. They have mastered English to that extent that they can cope with other education.
COMMISSIONER OZDOWSKI: But if they attend only the intensive English classes is it possibly part-time or full-time?
MR CURRIE: It is full-time up until the age they turn 18 and then they are required, well, under Social Security regulations, they lose their special benefit on their eighteenth birthday if they retain full-time education. So it basically forces them to go to alternative which is the 15 hours - up to 15 hours a week and retain their benefit. So, in addition to the, sort of, educational - I mean, we function pretty much as a parent would in regard to a teenage high school student. We cover all of their educational expenses. Make sure they get enrolment. Help them open a bank account. Manage their medical and dental services and so on.
And we employ a husband and wife couple who are from Afghanistan and Dari speakers to act as interpreters and a day to day sort of follow-up to make sure that they attend any appointments they need to attend. Make sure they are okay in their accommodation and so on.
COMMISSIONER OZDOWSKI: Any dysfunctional kids; any problems with crime or?
MR CURRIE: We have had two children admitted to psychiatric hospitals as in-patients for very short stays. As a result of, sort of, post traumatic, sort of, incidents.
COMMISSIONER OZDOWSKI: So it is impacts, yes?
MR CURRIE: Yes. I mean, one kid was just watching a Clint Eastwood film and in the middle of the film just started to react to it; and became very distressed. So he was admitted overnight and then released, with no diagnosis or with a diagnosis that there was no underlying psychiatric problem. But I think it was something to do with the violence in the film that just triggered some sort of reaction. And, you know, another boy who clearly has had some trauma and from time to time he just finds things - you know, day to day living quite difficult to cope with. And he had one admission for about three days. And, again, with some counselling and so on he felt better fairly quickly. And subsequently he sought out some more counselling on an out-patient basis.
So they are the only two cases I know that have resulted in admissions to hospital. We work closely with a number of community organisations including ASETTS, which is the service for survivors of torture and trauma. We have assisted them to run a camp which about 18 of the boys attended. And they explained their role and I think about six or eight of the boys have followed through with going along to sex education and counselling. And I think that has been helpful for them. So we encourage them to access whatever they feel they need in the community.
COMMISSIONER OZDOWSKI: We are possibly coming slowly to the end of this session. So, there are perhaps two more issues I would like to raise. And one issue - the issue of disability and also if there are any legal issues. And then I will ask you to provide a concluding statement if you are interested in doing it. And, of course, my Commissioners, if you have got any questions, yes, please do interrupt and ask. But if we could start with the issue of disability.
MS CHERNYSH: I guess the issue is that to the best of our knowledge, we have not had any formal referrals from DIMIA for children with disabilities. We certainly are aware that there are children with disabilities in the detention centres.
COMMISSIONER OZDOWSKI: It is what we heard today, yes.
MS CHERNYSH: Yes. And we certainly know that there has been contact between departments. The Department for Community Development and ourselves. But there has been no formal referral from DIMIA. There was a call from Australian Correctional Management staff to myself asking in general about services that we provide and the question was motivated in part by the support that she had been arranging on behalf of a young person with disabilities which had already been on-going for many weeks, I understand. But from her point of view, it was simply asking about: well, what services does the state government provide for children with disabilities? But we have had no formal involvement.
COMMISSIONER OZDOWSKI: But the state services would be open to people who are on release from detention centres for kids with disabilities?
MS CHERNYSH: On a cost recovery basis. If those people are not Australian citizens or Australian residents.
COMMISSIONER OZDOWSKI: Sure. Who would pay? Would you expect the Commonwealth to pay?
MS CHERNYSH: Yes.
COMMISSIONER OZDOWSKI: Would you provide the treatment prior to receiving their payment or how does it work in practical terms?
MS CHERNYSH: Well, at the moment it doesn't work in practical terms. We have no referrals.
COMMISSIONER OZDOWSKI: No referrals.
MS CHERNYSH: There has not been any request to make any particular arrangements. But the position is, given our current demand, that we want some arrangements in place, an agreement in place, before we provide services. Having said that, I think that it is probably true to say that with some of the children who may be attending schools, where they need therapy services, they may be receiving those services that may be provided by the school that we, indirectly, fund. But any formal request from us would have to be met with an undertaking to meet the cost of the services.
COMMISSIONER OZDOWSKI: Ms Chernysh, what about visits to the detention centres, were you visiting them when you learned about cases of kids with disabilities there?
MS CHERNYSH: To the best of my knowledge, to date we have never been invited to attend. I understand though that we may be seeking to visit the centres but we have not been invited in.
COMMISSIONER OZDOWSKI: Thank you.
MS CHERNYSH: Nor have we made any overture because there has not been a referral.
COMMISSIONER OZDOWSKI: A referral or a request, yes. Thank you very much. Now, coming to legal matters, any outstanding issues which we did not cover?
MS GUPTA: No, not really. I just wanted to sort of clarify something that Bill said. It is the guardianship in respect of children, unaccompanied minors on TPVs in the community. The guardianship is not transferred, it is basically that the delegation is triggered in that the Commonwealth asks us to take on that role in respect of the children in the community. However, it is our view that the Commonwealth still retains ultimate guardianship and responsibility for those children.
COMMISSIONER OZDOWSKI: Thank you.
MS LESNIE: How does that work in practice, if it is the state who is actually physically the guardian, what role would the Commonwealth still have to play as the person or as the government authority of ultimate responsibility?
MS GUPTA: To my knowledge to date, the issues in respect of the Commonwealth relate largely to funding. There has not been a particular situation to my knowledge where there has been a situation where by the Commonwealth has exerted direct authority over the state in respect of a particular child. But I suppose what I am saying is the legal responsibility ultimately still remains with the Commonwealth. I mean, the sticking issue relates largely to the funding. Would that be right?
MS ROSS: That is right.
COMMISSIONER OZDOWSKI: Just a question, I understand from the earlier statements that this state legislation applies to Christmas Island?
MS GUPTA: It only does in an indirect way in that it only happens by way of, I suppose, Commonwealth legislation and while, for example, the State Child Welfare Act applies in Christmas Island it is administered by the Commonwealth authority there.
COMMISSIONER OZDOWSKI: Extends to, yes. Okay but the legislation extends to Christmas Island?
MS GUPTA: Yes.
COMMISSIONER OZDOWSKI: And it does not apply to Nauru or?
MS GUPTA: That is right, to my knowledge, yeah.
MS De LACEY: The way that we work in relation to Christmas Island, because that is quite recent, we do have an MOU with the Commonwealth in general, in terms of welfare services to Christmas Island where by we provide supervision and consultancy services to the social worker who is employed by the Commonwealth and reports to the Administrator on Christmas Island. So, in relation to referrals that may come about children or families in detention on Christmas Island, they go to the Administrator and the Administrator and the social worker who is employed by the Commonwealth who makes the assessment but we do provide supervision to that social worker.
COMMISSIONER OZDOWSKI: Thank you.
MS De LACEY: So we do not directly provide services there.
COMMISSIONER OZDOWSKI: Thank you, Ms De Lacey. Ms Ross, if you have any concluding remarks, please?
MS ROSS: I really would just like to reiterate, I think what everyone has said today, you are really getting the same message right across the board. This is a relatively new area. As you would have gathered, the state agencies in many respects have a pretty good working relationship with DIMIA and the correctional management people in the centres. But there is a lot that still needs to be worked out. For instance, with disability services, there is not really much of an arrangement in place and you have heard about the MOUs that are not developing in other areas.
So, there is a real need to develop these formal arrangements and to remember the state government position is that all of these children, whether they are in detention centres, whether they are unaccompanied minors who have been released on TPVs, or children with families who have been released on TPVs, all of these children should have access to the services that they need and some of them need considerable services. And that the Commonwealth government needs to recognise that the funding just is not there for the full range of services at the moment. And we are seeking that.
COMMISSIONER OZDOWSKI: Yes, I heard that. Thank you very much, Ms Ross, and thank you very much Western Australian Government delegation for your evidence and I now declare this session closed and we will reconvene 10-past-2, thank you.
THE WITNESSES WITHDREW [1.13pm]
RESUMED [2.10pm]
COMMISSIONER OZDOWSKI: I think it is now time to start the afternoon session of today's hearings. I understand we have got two witnesses to come forward, Dr Annie Sparrow and Dr Paul Carr0ll. Could I ask you please to come in, thank you?
PAUL
CARROLL, sworn [2.11pm]
ANNE MARIE KATE SPARROW, sworn
COMMISSIONER OZDOWSKI: Well thank you, now could I ask you to introduce yourself and mention your name and that address of the organisation you represent, if any, for the record.
DR SPARROW: I am a paediatric doctor in training. I am not representing any organisation other than my own individual experience.
COMMISSIONER OZDOWSKI: Thank you.
DR CARROLL: I am a doctor who worked at the Woomera detention centre and I am training to be a general practitioner. But likewise I am not representing any organisation.
COMMISSIONER OZDOWSKI: Well thank you very much for coming for the hearings. What I would like to do is to ask you to start with an opening statement, maybe each of you could say a few words about why you are here and especially what is your expertise in the area? And then I will ask Professor Trang Thomas to start discussing with you the issues of mental health and then we will follow.
DR CARROLL: Okay. I worked as a medical officer in the medical clinic at Woomera in July and August last year. I was thinking on my way in here of what I could possibly add to the hearing that would be something you had not heard before. You seem to be well equipped with the facts and figures and statistics of who, where and why and I will not reintroduce any of that today. But really what I thought I could provide would be just a first hand experience of what it was like to work in the detention centre. And particularly what it was like to work with the children there.
Before I went there I was pretty naive and ignorant about the issues surrounding detention. And when I came out I was ashamed and angry that we could conscionably treat human beings the way that they are treated at Woomera. At the time I was there, there were more than a thousand asylum seekers being held at Woomera who had been there for various lengths of time, varying from a few weeks up to two years. The main problems that I saw relate to both conditions, medical problems that had been present before arriving in Australia as well as conditions that developed and progressed during detention.
The sorts of problems that were common in children were problems such as depression, which often manifested itself as anorexia, particularly in teenage children. As well as many problems related to the set up of the centre itself. Lots of children with cuts and scratches because of the surfaces on which they were playing. There were also many behavioural problems and dermatological problems were very common amongst the children. Of most concern to me, out of a lot of concern, was the health and welfare of the unaccompanied minors, some of whom were as young as eight years old.
And the sad part about them, in my observation, was that they had lost the sparkle in their eyes that eight year old children should have had and they seemed to be much older than their years. And they seemed to be relatively unaware of the causes of the problems that they were suffering. People asked me why I only went there for four weeks, and I asked myself how I managed to stay there for four weeks. The difficulty of working there is that the overall mentality behind the centre seemed to be as a deterrent facility. Whereas our role was to try and act as advocates for the welfare of these people, which was difficult given the organisational structure.
COMMISSIONER OZDOWSKI: Could I stop you for a moment. You describe yourself as an advocate.
DR CARROLL: An advocate for their welfare, yes, for their health.
COMMISSIONER OZDOWSKI: Welfare, so your medical function was the first one.
DR CARROLL: Yes.
COMMISSIONER OZDOWSKI: And how would the advocacy - could you maybe explain how the relationship between medical and advocacy functions in the circumstance?
DR CARROLL: Okay. I am maybe using the wrong word, but what I really meant is that my function was primarily to improve and ensure their medical health and so - but that was often against the overall philosophy of the centre, which was not to necessarily make the lives of these people comfortable or healthy. So I often found I was at cross purposes with the organisation because I wanted to improve the health of these people and that was not what the overall mission of the place seemed to be about.
COMMISSIONER OZDOWSKI: Thank you.
DR CARROLL: I guess the one advantage I might have over - I understand that you have visited Woomera earlier this year, and one advantage I might have over you is that nobody dressed up the place before I went there, because I was just a nobody. The main problems that came up time and time again while I was there is that the - my sympathies lay most directly with the children, because they were mostly unaware of the problems that had surrounded them. They were problems not of their making. And the interplay between the dynamics of the families, between the children and their parents, those that had parents there, was very difficult, because often the parents would become distressed at the fact that they were unable to be providing appropriate care and conditions for their children because of the conditions around them.
And that in turn affected the health and welfare and well being of the parents. Just sort of briefly, a lot of the other problems were due to the location of the centre which, as you know, is in the middle of a very isolated area in the middle of South Australia. When I was there it was during a very cold time and at nights the temperature often went below zero. And I would see many children brought in by their mothers with respEIRAtory infections and then, at the same time as trying to treat them, the mothers would be asking me if I could write letters to the centre organisation to get heaters put into their rooms because they did not have any.
Simple things like being able to add a piece of fruit or a tub of yoghurt into the diets of children whose nutrition may have been sub optimal was extremely difficult and resisted. So, in summary, it is my considered professional opinion after having worked at Woomera that the conditions there are not the way to treat children. And that the conditions and the prolonged indeterminate nature of their detention is detrimental to their health and well being as each day passes.
COMMISSIONER OZDOWSKI: Dr Carroll, you went there for a temporary assignment of four weeks?
DR CARROLL: I went there initially for a week and towards the end of every week I would be asked if I could stay for an extra week.
COMMISSIONER OZDOWSKI: To extend. Did you stay in touch with some of the people you met over there?
DR CARROLL: I have stayed in touch with some of the medical staff, yes.
COMMISSIONER OZDOWSKI: Some medical staff, so you know what also was happening in a longer period of time?
DR CARROLL: I know what has happened over several months since then, yes.
COMMISSIONER OZDOWSKI: Thank you, Dr Carroll. Dr Sparrow.
DR SPARROW: I spent two periods at Woomera in two weeks in August of last year and two weeks in January of this year. And I concur with the statements that Paul has said about the general conditions under which they live at Woomera. I was particularly distressed when I visited the centre in January.
COMMISSIONER OZDOWSKI: January this year?
DR SPARROW: January of this year was a time of great unrest amongst the detainees and I have a lot of information about that particular period of time. Certainly when I came out I was particularly distressed and I read with great interest the media statement produced by HREOC after the visit, because it completely concurred with my experience. One of the first things I did on leaving the centre in January was to look up the United Nations chart from the rights of the child because I was convinced that many of the conditions under which the children were held at Woomera violated those conventions.
And that has led to my own and Paul's involvement with the media and subsequent involvement because of our concerns. I am primarily a paediatric doctor. I saw many of the children in the centre as well as the other adults, of course my major concern is for the children and as they are the vulnerable ones, and really so many of their problems relate directly to the prolonged and indeterminate nature of their detention, which is a combination of the very harsh and isolated physical environment, the poor accommodation facilities and the lack of resources for primarily their mental health and the lack of resources for their leisure activities.
As I said I have a lot of information. I looked through my notes recently again and in one day, on 10 January, out of probably about 20 people that I saw, 14 of the children displayed symptoms of post traumatic stress disorder. These were a variety of children from only a few months of age to 16 years of age. Their symptoms include withdrawal, behavioural change and a common feature is bed wetting, which was very commonly seen in the camp. Self-harm, particularly the distressing case of a 16-year old female, unaccompanied minor, who displayed all the symptoms of depression.
I looked at my notes and I can see there is nocturnal enuresis, flat affect anxiety, concerns about weight loss. I had not seen, before I went to Woomera, I had seen very, very few depressed children and every day at Woomera I saw case after case of children. And some of them were very profoundly depressed, some that I actually considered admitting to facilities at the women and children's hospital, because of my concern.
COMMISSIONER OZDOWSKI: Could I ask you just two things before we go much further. Were you in Woomera on 19 December 2001?
DR SPARROW: On the 19th of
COMMISSIONER OZDOWSKI: 19 December 2001?
DR SPARROW: No, no.
COMMISSIONER OZDOWSKI: No. You came for January?
DR SPARROW: January, I think it was, from the 7th to the 19th, two middle weeks of January.
COMMISSIONER OZDOWSKI: Yes.
DR SPARROW: And then two weeks of August in last year.
COMMISSIONER OZDOWSKI: Yes. Thank you very much. Now referring to Woomera in January, there is still a controversy about lip sewing. Do you have any knowledge of children sewing their lips over there?
DR SPARROW: None of the children had sewn their lips together when I left and I believe that there was a case where a 12-year-old did sew her lips together in the week after I left. But I don't have any direct knowledge, no.
COMMISSIONER OZDOWSKI: Are you aware, either directly or indirectly, about alleged parents involvement with lip sewing?
DR SPARROW: I am not. I couldn't give you any information on that.
COMMISSIONER OZDOWSKI: Thank you very much. And now just looking at a second incident, looking at the House of Representatives Hansard, quite recently Mr Crean mentioned that on 19 December 2001, three ACM guards bashed Zihar Sayed, an unaccompanied minor, in Woomera. Are you aware of any circumstances of this case?
DR SPARROW: No.
COMMISSIONER OZDOWSKI: No. Thank you. Professor Thomas.
ASSISTANT COMMISSIONER THOMAS: Dr Sparrow, as a paediatrics expert, can you tell me about the mental health of the children, due to the experiences before their migration and whether there is any change during the time they are in the detention centre?
DR SPARROW: I was very struck, when I revisited the centre in January, that there were some children there, some families that I had seen in August. There was a specific example that I can give you of an infant who had been born in detention in early March 2001. I saw him when he was six months, five/six months of age, in August. He was developmentally delayed then, I believe, in that he was not rolling, for example. Very little babble. But what struck me much more was on revisiting the centre in January, where this same infant had not yet learnt to crawl, could barely sit upright by himself, was still not babbling and showed features of quite significant developmental delay for a one-year-old.
There are other specific examples that I have in my notes of children, for example, who began to show features of post traumatic stress disorder, such as nocturnal enuresis, bed wetting at nights, after they had arrived in the camp.
ASSISTANT COMMISSIONER THOMAS: The literature usually says that age sometimes acts as a protector because very, very young children often are not aware of the surrounding and yet this baby, in a way, gets affected right from the beginning. Can you explain that?
DR SPARROW: I think there are certain ages that are more vulnerable.
ASSISTANT COMMISSIONER THOMAS: Yes.
DR SPARROW: Infants are very vulnerable because normally that is a period of great stimulation in the first 12 months. An infant cannot be stimulated if, for example, the parents are depressed, which they certainly were in this case having been in detention for over a year.
ASSISTANT COMMISSIONER THOMAS: Yes.
DR SPARROW: And if it is not given access to the normal things which we would regard as part of an environment. As we know, at that stage there was no grass in Woomera for an infant to learn to crawl on or to walk on.
ASSISTANT COMMISSIONER THOMAS: Yes.
DR SPARROW: The inside areas were very crowded, cramped, with very little carpeting and no user-friendly areas, as it were, for an infant. So I think they are particularly vulnerable.
ASSISTANT COMMISSIONER THOMAS: Yes, yes. And what is your observation about the parenting role of the parents in these circumstances? In the detention centre, how do you think the parents can act out their parental role?
DR SPARROW: Well likewise, I think it is extraordinarily difficult for parents to continue to support their children when the parents themselves are subjected to the prolonged and indeterminate conditions under detention.
ASSISTANT COMMISSIONER THOMAS: Yes.
DR SPARROW: The ongoing understandable obsession with the process of requiring a visa and the lack of transparency that was associated with that, that affects a parent's mental health profoundly and has enormous effects on the children's well-being. Many of the parents were concerned that they could not support their children or do anything about the problems of the withdrawn behaviour or the destructive behaviour or the nocturnal enuresis. And they found it particularly frustrating and worrying, of course, for their children that they were becoming very depressed.
ASSISTANT COMMISSIONER THOMAS: You said that several of the children display depressive symptoms and do they receive any treatment for that?
DR SPARROW: Treating depressed children is difficult. Under normal circumstances one would provide immediate access to counselling, as it were, to simply talk to children, to change an environment. If it is the environment causing the stress or the depression, one of the first things to do is to try and improve the environment or to support the environment under which the child must live, to support the parents. Sometimes children go on to medication, not often. We usually try and provide the optimal and maximal physical support in the environment.
Now that is very difficult at Woomera because the parents need support. Both times I was working there, there were three psychologists, which was not felt adequate for the 900 detainees that were there in January. So the parents could not be supported. Likewise these psychologists could not support the children as they needed. There was no way of improving the environment at that time in terms of providing resources, providing recreational facilities where children can simply play, or draw. Sometimes we use art therapy, for example.
The provision for psychiatric care was extraordinarily difficult and in one specific example for an acutely depressed with post traumatic stress disorder, the best I could do was arrange for her to see a social worker, once a week, in Roxby Downs. And I didn't feel that was an adequate provision of care for children who are at great risk.
ASSISTANT COMMISSIONER THOMAS: Did you have a chance to educate the parents in terms of handling children, their children?
DR SPARROW: I certainly spent a lot of time talking to the parents about how they could best support their children. In three cases, I did start children on anti-depressant medication which I can emphasise is quite an extreme step to take. One thing, simply because of the physical limitations of giving anti-depressant medication to children. You need to give a very small dose and it needs to be carefully monitored, for example. But one of the problems I encountered also with the adults is that the pharmaceutical therapy is sometimes the only option. If there is no adequate counselling, if there is no resource facilities, if there is no provision in case, or very little provision, for acute and psychiatric care then one can only use medication. And sometimes I did.
COMMISSIONER OZDOWSKI: How old were the children you put on anti-depressant medication?
DR SPARROW: There was a 13 year old boy, a 13 year old girl and a 10 year old girl. I need to check my records but I believe I may have also started the 10 year old on anti-depressants.
COMMISSIONER OZDOWSKI: Ten year old as well.
DR SPARROW: Yes.
COMMISSIONER OZDOWSKI: Yes.
DR SPARROW: The 13 year old, two 13 year olds.
ASSISTANT COMMISSIONER THOMAS: These are the adolescent group. Would you think that that is the most vulnerable group, the adolescents?
DR SPARROW: Likewise, they are, another group that are particularly at risk. I believe the only children that are in any way protected by their age are those that may be two, three years of age and they seem to be less aware. But upwards of that was when I saw many of the symptoms, whether it was about destructive and aggressive play, withdrawal from others, lack of ability to engage with other children or adults, the adolescents were very vulnerable because at that time there was no provision made for them. They could not attend school if they were over the age of 12. There were no recreational facilities, there were no resources for them other than a couple of televisions and therefore there was simply nothing for them to do all day.
I certainly thought these were the children too who self-harmed. A thirteen year old girl who I saw slash her wrists, a 14 year old boy who attempted hanging, a 16 year old boy who attempted hanging.
COMMISSIONER OZDOWSKI: Could we stop on that for a moment. You have possibly seen some other cases of self-harm, including that attempted hanging. Was that incident realistic, could the child could have harmed himself?
DR SPARROW: Yes, that was my concern, in that particularly with the 16 year old child he tried to hang himself off one of the compound fences by using a makeshift rope or a sheet, I believe it was, and standing on the bin and kicking the bin away. And that was my concern, was that when you slash your wrists, for example, you have certain control over how far you want to proceed, but with an attempted hanging there is every chance that you will succeed in hanging yourself. So that was something I took very seriously.
COMMISSIONER OZDOWSKI: And in your professional opinion, it relates to the state of mental health of that particular child and not to the way to negotiate better visa outcomes, as some people are saying?
DR SPARROW: My professional opinion is that it reflects the mental health and the depressive state of the child and the children, yes.
COMMISSIONER OZDOWSKI: Thank you. Sorry for interrupting.
ASSISTANT COMMISSIONER THOMAS: Yes. Clearly in your submission, you have said that the length of detention has seemed to play a critical role on the people, especially the children's mental health. The government has said they will offer to remove the children, but then as a professional you know the parents refuse because of the separation anxiety. So would you be able to offer a satisfactory proposal? How do we counter-balance, you know, the separation anxiety with a better environment for the children?
DR SPARROW: I would hesitate to speculate. My objective data and experience, I hope is objective, revolves again around the prolonged period of detention and that remains my impression that the only way to really solve that particular issue is to shorten the period of detention. I understand that there have been many improvements made at Woomera since my time there, which I think would certainly stimulate the children and provide a better resource. But the bottom line is that being in detention is not a positive influence and probably or it is, in my experience, a very negative influence on a child's mental, physical, spiritual well-being.
It is not in the best interests of a child to be separated from its parents. Certainly there were no circumstances that I saw at Woomera where it would be reasonable to separate the child from the parents, because the parents were still a supportive influence for the child. And therefore if I speculate, then one can move the entire family out of detention to be placed in the community, or a better option would be to simply use the housing community at Woomera to at least put the child with his or her mother and siblings in the community while the father remains in detention.
I had one particularly distressing experience with a very depressed 10 year old, that I was very concerned about. Whose family and who she, I believe, needed more than anything to be simply removed from the environment and they had been at Woomera eight months at that time and they were unable to have access to the Woomera housing community because they had had their visa application refused. And therefore I understood, after discussion with the other health professionals, that they were not eligible, which I felt was again against the welfare of the child.
ASSISTANT COMMISSIONER THOMAS: What would you think about the long term impact of all this?
DR SPARROW: I believe the submission from the Alliance of Colleges that I have been a part of and, as has Dr Carroll, is we all agree that there are several very worrying effects about the long term effects of detention that range from developmental delay, it may be expressed physically or mentally, and the lack of development and achievement of whether they are motor mile stones, the ability to talk, the ability to communicate and the other problems that relate to developmental delay. And there is also evidence that this can affect children's brain development, which is of extreme concern.
Then there is the manifestation of depressive symptoms, of symptoms of post traumatic stress disorder, which in my experience, and I can only say this as in my experience, I don't have psychiatric training. I have a lot of paediatric training. These effects will take maybe months and maybe years to really overcome. The prolonged incarceration of these children, to the point where children will resort to self-harm and suicidal attempts and ideation, is absolutely extreme. I think that it will take a long time to get over.
COMMISSIONER OZDOWSKI: Can I follow up with one question here. You were saying that long term detention has this particular impact on children. What is a bearable length? Or let's put it this way, how do children who have had different lengths of detention behave differently? Do you see any difference between children who spend say two months, four months, and a year?
DR SPARROW: I can only say that the longer that they spent, the worse the effects that I saw. And that was to some way dependant on the age and the support, whether they were an unaccompanied minor or whether they simply still had the support of their parents, or even a parent. But in my experience at Woomera I would have to say that anyone who had been there longer than three months would be at grave risk, I believe, and did develop symptoms. And some children, as I know, developed them shortly after arrival in the camp. And they were the physical manifestations, such as bed wetting, of the mental stress.
COMMISSIONER OZDOWSKI: Thank you. Dr Carroll, we are not trying to exclude you. Yes, please, feel free to interrupt. Please feel free to say what you know on the subjects we are discussing. What I would like to cover at the moment is the question of the issue of the control of ACM and DIMIA over the treatment. What I would like to ask you, because we heard earlier today in the evidence that some of the medical decisions were not implemented. Could you perhaps elaborate on that issue? To what extent were your decisions regarding patients implementable in the circumstances?
DR CARROLL: Yes. Probably to answer that properly, I would need to separate ACM from DIMIA. There wasn't a lot of direct day-to-day input from DIMIA, in terms of how the medical clinic was run or particular patients or particular medical conditions. However they are responsible for the overall ethos of the place and the way it is set up. But on a day-to-day basis it is the detention managers who look after the detention officers, who are all part of ACM, that I had the most to do with. And it has to be said that on many occasions our aims were similar, but in some areas our aims were different. And that provides a problem.
The difficulties that we really had, in terms of working there as medical officers, is the lack of resources and the lack of facilities and the lack of backup that we had in dealing with complicated, interwoven medical and psychological problems. Almost every presentation of any patient had an element of a psychological facet to it, and that had to be understood in terms of trying to manage the patient's problem. That became difficult because we had very limited access to outside resources and certainly we were strongly encouraged not to refer people outside the centre because of the costs that would be incurred to ACM primarily, but also to DIMIA.
COMMISSIONER OZDOWSKI: What do you mean by "strongly encouraged"? How did it work?
DR CARROLL: I would ask the Health Services Manager, who was in charge of the medical clinic.
COMMISSIONER OZDOWSKI: Didn't ask the doctor?
DR CARROLL: No, a nurse usually. They changed regularly, but there were usually a nurse. As I say we had a lot of complicated problems that we didn't have the facilities to deal with and this was part of the problem of being located where the centre is, so far away from any other form of civilisation, is that there was no in between, between what we were able to do in the medical clinic and essentially a patient being seen in a tertiary hospital in Adelaide. Which was not only expensive but a cumbersome arrangement and not always completely necessary. Something half way would have been adequate for a lot of people, but we just didn't have that option that we would have if the centre was located closer to civilisation.
So if we needed to transfer somebody to another hospital or to another setting, we had to get permission from the Health Services Manager, who had to get permission from the organisational people, and I don't know how much of that was ACM and how much was DIMIA. I mean we were constantly reminded that the operation was a financial one and that we had to try and make savings or not increase costs where that could be avoided.
COMMISSIONER OZDOWSKI: In your normal practise would you make similar considerations? Would you make similar choices?
DR CARROLL: No. Well, not on the same scale, no. I mean working in a public hospital setting, things are done when they need to be done as long as that is feasible. I wasn't used to being told that things shouldn't be done in order to save money, no. Not in terms of direct patient welfare.
COMMISSIONER OZDOWSKI: Were there any written guidelines telling you what you could and couldn't do?
DR CARROLL: I was given no written guidelines either before, during or after my time at the medical centre. There was no doctor more senior than me in the organisation, in ACM, to whom I could ask. The difficulty was that the circumstances of working in the centre were such that there was a very high turn over of doctors because nobody was able to stay there on a long term basis, because of the stress and difficult conditions. And so every time a new doctor arrived, they arrived with their own values and principles and ideas of how the place should run. But there was no pre-existing guidelines to follow when I arrived. And it was really a matter of me deciding on a case by case basis, what I thought was most appropriate.
COMMISSIONER OZDOWSKI: And you said stress. So even you, a professional person, who knows professionally how to handle stress, you are saying you were under stress, and other doctors as well.
DR CARROLL: I have been working as a doctor for 10 years including working in Third World countries and in acute psychiatric institutions with extremely disturbed patients and I have never worked in a setting like I did at Woomera and I hope I never do again. I never felt so intimidated, so oppressed and so frustrated and so powerless and so helpless in terms of being unable to really offer a great deal of tangible assistance to patients who were clearly in significant distress.
COMMISSIONER OZDOWSKI: Were your recommendations for hospitalisation, for example, ever refused?
DR CARROLL: Yes. Particularly psychiatric patients. There were several instances where because we had no containment facility or no medical place where we could remove people from a stressful or tense situation, to actually to let people cool off, there was no capacity for that. The only place that people could be taken was the police cells at the town which happened on many occasions and was completely inappropriate.
COMMISSIONER OZDOWSKI: For medical, mental health purposes?
DR CARROLL: Yes. So it often happened that it was necessary to transfer acutely disturbed patients to a psychiatric facility, partly for treatment of their psychiatric problems and partly to remove them, albeit, temporarily from the pressure cooker situation that was developing in the detention centre. This happened successfully on several occasions and several patients were transferred to the psychiatric hospital in Adelaide while I was there and came back after a week or two considerably improved although with letters from the consultant psychiatrists expressing their frustration that there wasn't anything more that they were able to offer these people other than a brief respite from the conditions that they were in.
However, in the latter part of my stay there I tried to organise a transfer to the same facility for a similarly acutely disturbed gentleman who was suffering from strong self harm ideas and severe depression for which I felt he not only needed treatment but also removal from the situation he was in. And I was told that that was no longer possible because of a bureaucratic problem between the State and Commonwealth Governments that there was no agreement in place to accept these people into the State Government psychiatric hospital coming from a Commonwealth institution under the auspices of DIMIA.
And so all I was able to do was write to everybody I could think of to try and get the problem reviewed and at the time that I left, it still was not addressed and there was no psychiatric facility that we were able to refer patients to. And we had to manage them within the confines of the centre, which, to get back to your original question, often involved operational issues and meetings between myself and the detention managers as to how particular detainees conditions would be managed. Particularly, there were several men at the time who had taken to climbing on top of buildings and threatening to throw themselves off.
These were men who were I had seen before and after, often on a daily basis, to try and counsel them as best I could given the limitations and I was asked on several occasions to sedate these people medically, which I did not think was appropriate and so I did not agree to do that. But that was one instance where we had a conflict of ideas about how people should be managed.
COMMISSIONER OZDOWSKI: Could I just repeat just to make a hundred percent sure that I understood you correctly. Your medical decisions could have been challenged by a nurse who was in charge of the centre or by management if the cost of treatment was too high?
DR CARROLL: If there was thought to be any doubt as to the benefit of the course of action that I was proposing, yes.
COMMISSIONER OZDOWSKI: And the second thing, that the local prison, I assume, in Woomera city was used to house mental patients, basically?
DR CARROLL: Yes. And Annie can tell you more about that because more of that happened subsequently while she was there.
DR SPARROW: I would like to give you an illustration of that.
COMMISSIONER OZDOWSKI: Please do.
DR SPARROW: One of the unaccompanied minors was brought in to the clinic one afternoon in great distress, having had his visa refused and he was not violent, not aggressive but acutely suicidal and hysterical. He was brought in very roughly by two officers and it was suggested or, I was advised that he should have some intramuscular sedation which again, I did not feel was appropriate. He was somebody who needed acute care, counselling, support management. And it was suggested to me that the most appropriate place where he could be monitored for the suicidal risk that he demonstrated was in the annexe. And this was proposed to me as the best solution.
COMMISSIONER OZDOWSKI: What is the, "annexe," I am sorry, I do not
DR SPARROW: Oh, I will tell you. And at that stage, in the end I felt the most appropriate place was for him to go back into the compound where he could receive support from his friends, the other unaccompanied minors because there was no one else to support him, as it were. And that he be monitored in the compound by one of the officers and he received some oral sedation and I went in the next day to visit him in the compound.
Now, this sounds - normally when I tell this story it is a bit more dramatic but in my naivety at that time, I thought that the annexe must be this little sort of room or rooms, as it were, off the medical centre where somebody could be safely observed and managed with the appropriate monitoring and facilities and support. The next day, which was a week-end day, I was asked by the Health Services manager to go and check the hunger strikers who were currently at the annexe and I was asked to do that on the next day, the Sunday because at that stage they would have been hunger striking for over 48 hours and need medical attention.
I had not been told that there were any people hunger striking until then and I said, of course, I will have a look at them. I did not find out where the annexe was until that night in the local hotel where I was having an informal conversation with the psychologist and an interpreter and they offered to visit the annexe with me to see the hunger strikers the next day. I was very grateful and we arranged to meet. At that time, briefly, I had the use of the car which was not one of the facilities we usually had at Woomera. I had it for 12 hours and we met the next day; I was on my way to the centre and I was told by one of the other health professionals that the annexe was, in fact, the police cells.
So we drove, not to the centre but to the police cells, to the police station, and I found these 3 hunger strikers in solitary confinement with nothing in the cells, not even water. And I was shocked beyond description, really, to find that this was where they had proposed to monitor a 14 year old suicidal, unaccompanied minor.
COMMISSIONER OZDOWSKI: What has happened to him, did he go there?
DR SPARROW: No, he did not.
COMMISSIONER OZDOWSKI: No.
DR SPARROW: But that was really directly a result of my own negotiation to put him back into the compound and as I said, in naivety I had assumed the annexe was part of the medical centre or even part of the hospital but I had never imagined that it would be a police cell.
COMMISSIONER OZDOWSKI: Could be come back to one thing, Dr Carroll, you mentioned the use of sedatives, or as we call it in the legal way, chemical restraint. How often is chemical restraint being used especially in relation to minors?
DR CARROLL: It was always an option of last resort because it is so ineffective in the long term and my firm belief was that it was almost invariably inappropriate because it did not solve the problem in the long term. The only setting that I found that sort of thing to be useful is when in an acute problem when the cause of the problem can be rectified. That is not the case for these people and so it really was only used in situations where there was thought to be no alternative in terms of an acutely distressed person.
In my experience while I was there, it was not used with minors but certainly it was used in adults and just had an overall effect on - because of everybody is living on top of each other, it was apparent to everybody but it was not used while I was there for minors.
COMMISSIONER OZDOWSKI: So chemical restraint was used not only to subdue people who were violent and were threatening other people and property but also on other occasions?
DR CARROLL: In my experience it was used when detainees had become so distressed that they were thought to be at risk of harming themselves or somebody else. But as I said, that was not something that I encouraged because it was not even a medium term solution to the problem. However, to non medical people working there, it was seen to be a useful way of solving the immediate problem and getting through the next few hours or the next night. And we were often under considerable pressure to resolve situations that developed acutely, that the atmosphere of the centre seemed to be that the tension would mount over a period of days and weeks to a flash point and at that time we were strongly pressured and encouraged to or to try and subdue, particularly certain detainees as effectively as possible.
COMMISSIONER OZDOWSKI: But it related to individuals?
DR CARROLL: Hm mm.
COMMISSIONER OZDOWSKI: You are not aware of any food additives in order to keep the population subdued?
DR CARROLL: No, I wasn't aware of that. Certainly if it happened, it didn't happen with my knowledge. But the medication was a last resort. The most common treatment for these people who were thought to be causing problems, would be to handcuff them and usually bring them down to the medical centre which was the only place that people could actually be observed continuously. And so often we had people in a very small centre, which we only had two, sort of, bunk beds. We had people there who were handcuffed who were there purely for observation and not for any specific medical reason.
COMMISSIONER OZDOWSKI: Were nurses allowed to use chemical restraints?
DR CARROLL: As far as I was aware, not without the direction of a doctor.
COMMISSIONER OZDOWSKI: So it need to happen because of your direction.
ASSISTANT COMMISSIONER THOMAS: In terms of the children's nutritional requirements, do you think it is adequate?
DR SPARROW: I would say it is barely adequate. I ate a couple of meals with the detainees. I felt that it was a very bland diet that was culturally inappropriate, certainly the meal that I experienced. And I spent a great deal of time and I think Paul did as well, where we would simply write letters of recommendation for a child, especially the infants and anyone under the age of five, to have dietary supplementation in the form of fruit, yoghurt, snacks. I never experienced any success with any of these letters at all, in my experience.
I didn't see any cases of malnutrition at the centre. I did see cases of weight loss, which I think reflected the depression that these children were under, very poor weight gain. I think the diet is probably just about adequate in the short term.
ASSISTANT COMMISSIONER THOMAS: What do you think about the interaction, or relationship, between the children and the guards?
DR SPARROW: That is certainly one of the daily problems at Woomera, is that children are exposed to the acts of violence, as it were, that occur between the guards and the detainees or by the adult detainees or even the children, of self-mutilation or self-harm or violent behaviour when the adults would climb on to a building and threaten to throw themselves off or actually injure themself on wire, for example. And I did have a few experiences where children were directly exposed to violent behaviour between the guards and the children's parents, and where the children were removed violently from their parents' arms. I feel the word "violently" is probably not too extreme, roughly. And again, that is not conducive to any child's mental health where ever they are.
COMMISSIONER OZDOWSKI: Dr Sullivan.
ASSISTANT COMMISSIONER SULLIVAN: Did you have any experience of child abuse while you were there?
DR SPARROW: It was proposed to me that some children had suffered child abuse, or been manipulated, used by their parents in a manipulative way to gain the attention of DIMIA I suppose. I am only speculating here because I didn't directly witness any incidents of child abuse and that is also what I said to the Department of FACS, where I did not directly witness any instances of concern that led me to believe that a child was actually at risk from its parents.
DR CARROLL: We had a lot of difficulty not being able to speak very good Farsi or Arabic, and most of the detainees had very little or no English. So there were often instances, and we were extremely alert to the possibility of children being abused by people in the centre. And I remember one specific instance when a seven or eight year old child was brought in screaming with blood pouring from his lip. And somebody said that he had been assaulted. Eventually we found an interpreter who was able to get the hysterical mother to explain that, no, he had been playing soccer and had tripped on the rocky ground and cut his mouth open on the ground, which was much more likely and something that we saw much more commonly.
So I never saw any instances of child abuse and all of the injuries that I saw were readily able to be explained by the conditions that the kids were playing on, usually.
ASSISTANT COMMISSIONER SULLIVAN: Were there any kids with disabilities there during your time?
DR SPARROW: Yes.
ASSISTANT COMMISSIONER SULLIVAN: Would you like to talk about, I guess, what if any support was provided to them?
DR SPARROW: There was one particular case of a child in a wheelchair when I was at the centre in August. There were many features of concern about this particular child. I spent a long time medically trying to come to a diagnosis and in the process referred him to the women and children's hospital for diagnosis investigation and support for a child who did not have the use of his legs essentially. From recall again, I would have to look at my notes, but I believe he was about 11 or 12.
What was of concern was that his mother was at the centre with this child and the two siblings, both younger, one of whom was also very mildly affected by the same disease which turned out to be polio, and the only male relative, their uncle, had been discharged from the centre, had been released a few weeks prior to my arrival. This meant that the child was now in a very vulnerable situation because it was culturally, totally inappropriate for him to enter the shower blocks or the toilet blocks with his female mother which I found to be a very frustrating and distressing situation to deal with and certainly the mother found it almost impossible to deal with and he required a great deal of support, of course, because he simply could not walk.
That is the most striking example I can give you of a disabled child who was at risk and did not receive really adequate support while he was in the centre.
ASSISTANT COMMISSIONER SULLIVAN: How did patients get to see you? Did they have to go to the nurse first?
DR SPARROW: Yes. The patient generally has to get the attention of the officer for the compound who will then allow them to communicate, to make an appointment with the nurse at some stage, within the next day or a couple of days.
ASSISTANT COMMISSIONER SULLIVAN: So do you think there was - sorry.
DR CARROLL: What happened was in each of the compounds the nurses would run what they called a clinic four times a day basically where they would dispense medication and at that time detainees would come to the nurse and say, "I want to see the doctor" and the nurse would take a note of the problem and their number because they do not use their name and that would all be entered in a big book and then, at the end of the day, one of the nurses would make appointments for the next day, based on what was in this book.
And we were never able to keep up with what was in the book because there was always emergencies that came in on top of the appointments that were booked but there was usually two doctors and you would get there in the morning and there would be a list of code numbers of people that we had to see - that we would see that day who would be called, one by one, over the loud speaker by their code number.
ASSISTANT COMMISSIONER SULLIVAN: So there wasn't any screening out of people. You are comfortable that everybody who asked to see the doctor was, in fact, allowed to albeit, you know, it might be some time in the future?
DR CARROLL: Well we certainly weren't able to see all of the people in the book when I was there and it wasn't a particularly good process because there is no interpreters available in the medical clinics so the detainee got into the nurse to ask to be seen by the doctor had to be - was done without the benefit of an interpreter. So often the problem that we thought we were seeing was completely different. In fact, it was usually different to what we actually did see and which was a concern because a lot of them so-called minor problems listed in the book were deliberately left and more supposedly pressing medical problems seen earlier when, in fact, often what we thought we were seeing was not what we were actually seeing and a lot of the minor conditions that we were not seeing may well have been more serious. So it was not a very good system but it was the best they could run at the time.
DR SPARROW: I think people did get missed as well. Certainly under the circumstances, in a day particularly in January there was some other - if there was some other incident somewhere in the centre which meant that an officer was not able to go to the compound to get the particular detainee to come to the clinic, then they simply got missed and left and there were a few instances where I particularly wanted to see a child or review a child that I had to make an extraordinary effort for the child to actually get into the clinic to be able to be seen and, likewise Paul said, the emphasis - I mean, this comes back to, you know, the fact that our fundamental concern was the health and welfare, that is our concern.
ASSISTANT COMMISSIONER SULLIVAN: So you had the right to recall patients?
DR SPARROW: Yes we did. We would say, "I would like to see this patient again" but, on occasion, I would find that somebody who I particularly needed to see, a child that I was particularly concerned about, I would say, "I need to review them and I need to see them". They would be brought to the clinic and I would not be informed and so they would simply sit there for three hours while I was seeing other patients or dealing with other issues because it was very difficult that the triage process often did not prioritise what was actually important and it required extraordinary effort on our part as doctors to try and triage patients to actually see them in order of priority and I think that some patients did get missed simply because they weren't able to make the effort to come to the clinic or they missed their appointment because of circumstances.
ASSISTANT COMMISSIONER SULLIVAN: My final question is about confidentiality which seems to be a term that crops up fairly regularly at these hearings. Would you like to comment on that and its impact on the way that you were able to practice? I understand there is confidentiality agreements that are signed by employees.
DR SPARROW: I didn't sign a confidentiality agreement.
ASSISTANT COMMISSIONER SULLIVAN: Right.
DR SPARROW: It wasn't in my contract, it wasn't in Paul's contract, so.
ASSISTANT COMMISSIONER SULLIVAN: Okay. That is fine. That clarifies it because I understood there are some
DR SPARROW: I believe there are some but not .....
DR CARROLL: I spoke to quite a few of the doctors that had worked there and none of them seemed to have ever signed or seen confidentiality agreements. But, to be honest, you are asking, you know, how did it affect what we did and agreements or no agreements it would have no impact on what we did or what I did anyway. It was, you know, our job, frustrating though it was, was to try and improve the health of these people as best we could and we certainly had a lot of problems and a lot of obstacles but that wasn't really one of them.
ASSISTANT COMMISSIONER SULLIVAN: Right. Thank you.
COMMISSIONER OZDOWSKI: Perhaps one more question, okay?
MS LESNIE: Just one more question. In the Department of Immigration submission they describe a detailed case management strategy for unaccompanied minors and Dr Carroll you said you had had some contact with unaccompanied minors. I was wondering whether you, as doctors, were ever involved in the sort of ongoing observation surveillance of unaccompanied minors?
DR CARROLL: I was not involved in the ongoing management of anyone. I was not consulted about either day to day or medium term management of difficult people. There was a committee, the HRATs committee - the High Risk Assessment Team Committee who met daily and decided on the appropriate management and supervision of people who were deemed to be at risk. Despite asking I was not allowed to be involved in that committee, involved in the decision making.
MS LESNIE: Were there any doctors in that?
DR CARROLL: No. It was a psychologist and nursing and I don't know whether the detention managers - I think they were involved in that committee as well but we had no input into that. We had essentially no input into how often and how people were observed other than to make recommendations to this committee and certainly there was no comprehensive, you know, I am not familiar with the strategies that you refer to but that is because no one ever told me about them or asked my opinion or involved us in them.
We were very peripheral to the running of the centre by the detention managers and the detention officers. We weren't involved, we were often a thorn, I think, and we were marginalised and essentially I often felt that our role was a token one in that we were there because it was - they wanted to show that they were making an effort but effectively on a day to day basis we were hampered and it often felt like you were working with one hand tied behind your back and certainly management strategies like that were not something that we were ever a party to or involved in.
DR SPARROW: I read that part of the submission with interest because that certainly was not in place when I was there or, if it was in place, it was very secret and all the unaccompanied minors that I had contact with and I went into the compound and specifically talked with many of them, had lunch with them, they did not have the support that this part of the submission seems to suggest. They did not have any mentors. If they had any support, it was generally taken upon by other detainees themselves voluntarily to offer support to unaccompanied minors but most of them I saw did not receive and were not part of any ongoing management plan.
MS LESNIE: Just one quick follow up. You both describe very short terms periods of time in the detention centre. I was wondering what effect you think it has on detainees and general health care to have sort of a quick turnover of doctors in the facility?
DR CARROLL: It is clearly not ideal in terms of continuity of care which is a staple and a linchpin of competent medical management. There was very little continuity of management, both from a medical and a nursing point of view. The nurses changed every six weeks apart from one or two who were permanent. There was one doctor, the doctor in the town who came to the centre often for a couple of hours in the day but was very limited in what he was able to see and do. It was incredibly frustrating being there for a short time and yet it would have only been more frustrating to be there even longer because of the limitations placed on our ability to care for these people.
But it is absolutely clearly not ideal but the conditions under which the medical clinic in particular runs means that no one would be able to last. I think the longest in my knowledge that anybody has lasted in the recent year is about six weeks and that is at extreme cost to their personal situation.
DR SPARROW: There is one other thing I would like to say too. When I was there in August and it was my first experience of the extraordinary level of problems, particularly in the children which is my - yes, my main concern and I identified many children in that first week and in the second week that I wanted or needed ongoing care and follow-up, particularly by somebody who had paediatric skills. I have been involved in paediatric practice, specifically paediatric practice, for eight years now and I offered to come back at that time for another week in six weeks time, for example, to be able to follow-up and again six weeks later than that I said I would do my best to make myself available to come back.
And I certainly made that provision and when I offered to come back in six weeks time the centre manager had changed and I was told that my services were not required and would not be required until further notice, which I found surprising because I know that, apart - well, I am very sure that, apart from myself, there has not been anybody there who has had specific paediatric skills, experience and background to administer to that highly vulnerable population.
COMMISSIONER OZDOWSKI: Any final statements on the health care needs of children in detention?
DR SPARROW: Children should not be in detention. It is as simple as that.
COMMISSIONER OZDOWSKI: It is not good for health.
DR SPARROW: It is profoundly detrimental and when you asked before about the long term effects I think we can only speculate about the long term effects.
DR CARROLL: Yes and I think even though I was only there for a short time, this is not something that I normally do but I think I was so surprised at the conditions and the way that a lot of the children in particular were functioning in the centre that has led us to say things about it where otherwise I would not have. And it was apparent that as each day progressed the physical and mental well-being, particularly of the children, deteriorated in front of our eyes and that is not something that I can
DR SPARROW: Tolerate.
DR CARROLL: Tolerate - thank you.
COMMISSIONER OZDOWSKI: Well I thank you very much Dr Sparrow and Dr Carroll for your submission and for your presence. I would like also to ask you to extend our appreciation to the Alliance of Professionals concerned about the Health of Asylum Seekers and their Children for their submission which is a very substantial submission. Thank you very much. Now we will have a break for about 15 minutes and after the afternoon break we will have a closed session so I will ask only witnesses to be present after the break. Thank you very much.
THE WITNESSES WITHDREW [3.30pm]
Last Updated 9 January 2003.
