Last Updated 30 January 2003.
Transcript of Hearing - SYDNEYThursday 5 December 2002
Please note: This is an edited transcript.
Commissioners:
- Dr S. OZDOWSKI, Human Rights Commissioner
- Dr T. THOMAS, Assistant Commissioner
- Ms P. MOORE, Executive Officer
MR BROMWICH: Commissioner, before we start, I have been asked to place a concern on the record and I don't mean this to be in any sense a personal matter but it will have that flavour, I suppose. I've been asked to express a concern that there be no repeat of the sarcasm and personal attacks that were on occasions made yesterday. Commissioner, we are not aware that there has been the same approach taken to other witnesses before this Inquiry and indeed, I'm not aware that Counsel Assisting have been employed previously to, in effect, interrogate in part other witnesses.
These are, with respect, Commissioner, very senior Departmental officers. They are being asked what are complex and detailed questions with notice only as to broad topics and I'm simply asking - I realise that the heat of the moment can carry things sometimes but I'm asking that they be afforded the same courtesy and respect that I understand has been afforded witnesses at the Inquiry.
DR OZDOWSKI: Thank you very much for this observation. I would put it to you that if we were to have more yes and no answers and more direct answers, perhaps it wouldn't have happened. I would like to say further that I hope today the questions will be answered in a more [concise] manner so we can conclude certainly things today but thank you for your comments and I have brought them to the attention of Counsel Assisting.
MR BROMWICH: Commissioner, to the extent that the suggestion is being made that the witnesses haven't attempted to answer the questions, in my submission, that is not fair. Some of these questions have involved leaps from the specific to the general and witnesses have been, in my respectful submission, quite properly reluctant to take what has, in many cases, been an invalid step. I realise, Commissioner, you may not agree with that but the witnesses are doing their best to answer the questions as posed as well as they can and they have not always been susceptible to the short answer sought.
DR OZDOWSKI: Let us ask witnesses to continue doing their best and let the record to stand for public scrutiny.
MR BROMWICH: Yes, thank you.
MR WIGNEY: Yes. I think just if I can be permitted to comment very briefly on that before we move on. I think the transcript will speak for itself as to whether these witnesses have been endeavouring to assist the Commission by answering the questions put to them and I reject any accusation that any of the questions have been inappropriate to the extent that there was any sarcasm. It was yesterday afternoon when, you know, apart from a light-hearted response to what was a light hearted comment to me about a trick question, there has been no other sarcasm other than in the context of - I withdraw that.
There has been no sarcasm but I have attempted to press for direct responses to my direct questions, which in the most part were not objected to. Now, if we can just move on, please. Just to recap slightly to take us back to the position we were at before we were interrupted by the power failure yesterday afternoon, we were at the document at page 22 of the bundle [of a specific case study] and I had specifically directed your attention to the - that is part of the DIMIA Business Manager's report for the Port Hedland Detention Centre of November 2001.
I had specifically addressed your attention to the first sentence under the heading: Special Needs Cases where it is recorded by the DIMIA Manager at Port Hedland that the needs of intellectually disabled residents have still not been assessed or addressed. Now, as I indicated before we embarked on this case study yesterday, the concerns and focus of the Commission are the submissions that have been made by the Department to the effect that people with disabilities are promptly diagnosed and assessed and then case management plans put into place to address those disabilities.
That is the focus of the Inquiry. Now, yesterday we got sidetracked, as it were, as to whether there had been other medical interventions prior to November of 2001 and I invite you, please, if any of those - whether to tell us with some specificity what the medical interventions were prior to November 2001, relevant to the topic of diagnosis and assessment of the disabilities and formulation of the case plan.
MS McPAUL: Yes. I think that is our general understanding of where we were up to and we were going to assist the Commission with providing some additional information that we understand relate to the case in relation to the ongoing case management of these particular children and mother from the time that they were in the centre. It is my understanding, and if you bear with me, I can just run through a list of items here for the record, if you are happy with that. My understanding is that on 13.10.2000, the mother of the family - I will just check I'm using the correct numbering system from yesterday.
The mother of the family apparently commenced seeing a counsellor for anxiety and insomnia and was placed on some medication at that time. On 24.12.2000, again as I understand it, the mother was spoken to by a psychiatrist who mentioned to her apparently the possibility of the children having what I understand at that time was thought to be Fragile X Syndrome and the mother was provided with some information on managing children with intellectual disabilities. I then understand that on 3 January 2001, son number 2 had a further referral suggested to a particular doctor in relation to the delayed developmental issues I think that we looked at yesterday.
The whole - all of the children were apparently seen by their paediatrician at Port Hedland Hospital on 27 February 2001. On 28 February 2001 again the three children - here I'm referring to daughter 2, son 1 and son 2 in that context - apparently had blood testing carried out including some chromosome level testing. On 2 March 2001, those same three children, as I understand it, were reviewed by the paediatrician referred to earlier regarding their developmental levels and I believe indicated that Fragile X would be consistent with their understanding of the family history given.
As I think you may be aware, some other members of the family also exhibit some symptoms that appear similar. As I understand it on 11 June 2001, further medical advice was sought relating to seeking a definitive diagnosis for the other condition that we were working through in relation to the children. In August 2001, a paediatric registrar at the East Pilbara Health Service had appointments with the children. On the 18th of July - sorry, which - we got to - what date did you want to know up until?
MR WIGNEY: November 2001.
MS McPAUL: As I understand it, they are the particular medical interventions prior to that time and as you can see, most of those referrals were to doctors and paediatricians outside of our own particular set of doctors at the centre. So the reports and documents relating to those would most likely be held by those - that health service rather than the Department but I think it is clear that there was a cognisance of the particular - of the fact that the children did have a disability and that action was being taken to attempt to address that.
It might be helpful to put on the record what we currently understand to be the disability for these children, some information about their condition, if that would assist you.
MR WIGNEY: Well, we are going to come to that in due course, I think, so no doubt you will obviously have a fulsome opportunity to deal with that when we come to it. I'm trying to deal with it in chronological order but just ---
MR BROMWICH: Well, Commissioner, there is just one reason why it may be useful to have that additional information and that is the nature of the condition is one that was only more recently correctly diagnosed and even paediatric diagnoses early in the piece were wrong or at least wrong in the sense that the indications being taken at an early stage, we understand, were not correct and that explains in part some of the questions my friend is going to come to.
MR WIGNEY: Yes, well ---
MR BROMWICH: What I'm saying is that the ultimate diagnosis and information we very recently obtained, not specific to this case but generally, has a bearing on the questions that may be asked about the early stages because of the nature of the condition.
MR WIGNEY: Well, that evidence can be given by the Department witnesses rather than Mr Bromwich at the appropriate time as we go through the chronology.
MR BROMWICH: Well, I didn't say what the evidence was going to be. What I'm indicating is that it will have a bearing on questions early on because the very nature of the condition affects early steps that were taken or not taken.
DR OZDOWSKI: Counsel Wigney, please continue.
MR WIGNEY: Now, can I just pick up on a couple of points about the medical interventions that you just referred to. Now, putting aside for the present purposes the October and December [2000] assessments or consultations with the mother, I don't for a moment suggest that they are not important because you would agree, would you not, that in the case of disabled children, parental support is an extraordinarily important matter, that is, to ensure that parents have adequate support so that they can look after the children. Is that right?
MS McPAUL: I think the panel would agree with that.
MR WIGNEY: So we will come back to that topic in due course. There was a visit to a paediatrician, you say, on the 27th of February [2001]and do I understand your evidence to be that the Department does not have a copy of any report of assessment, written report or assessment, provided by the doctor in relation to that consultation?
MS McPAUL: As I understand it, the particular notes that that doctor may have taken at the Port Hedland Hospital would be held by that doctor at the hospital.
MR WIGNEY: But is it not - I'm sorry.
MS McPAUL: As I've said, we've provided all the documents that we've been able to locate within the Department.
MR WIGNEY: Is it not important if children with disabilities are assessed or diagnosed externally for that - any diagnosis or assessment to be provided in writing to the Department and ACM's so they are adequately able to deal with it?
MS McPAUL: My understanding is that in these circumstances the medical report would be held by the hospital, perhaps a synopsis of that would have been provided to an ACM doctor at the time.
MR WIGNEY: But not in the form of a medical report as you understand it?
MS McPAUL: I - well, I haven't seen the documents that are held by the hospital obviously but it would be my understanding that if the care was being provided to the children, a synopsis of the findings would have been provided to the doctor at the centre.
MR WIGNEY: Now again, does the same apply in relation to the consultation on the 2nd of March? Again, we don't have a medical report that [has been] provided by that paediatrician to ACM or the Department.
MS McPAUL: I think the scope of the notices for Notice 5 included documents that were actually in the Department's custody or control. I think there were some words
MR BROMWICH: Page 23 of the bundle.
MR WIGNEY: Yes, but my question simply is if the report is not in the Department's custody or control, it would follow from that, would it not, that the paediatrician has not provided the report to the Department?
MS McPAUL: Well, I'm not saying that. I'm saying that a search of the Department's records did not possibly identify this particular document that you were referred to but that does not necessarily imply that a document does or does not exist or that it may or may not be with ACM. So we did particularly seek some legal advice on the scope of this particular question.
MR WIGNEY: I see. In any event, as you indicated, and I don't want to get bogged down in this, but there was a reference to Fragile X and I think as Mr Bromwich correctly points out as we will discover in due course, ultimately tests were conducted in relation to that and it was - they were negative.
MS McPAUL: Yes. I think what we are seeing with this particular case is that clearly it was identified that there was a condition that the children might have and steps were being taken to try to identify what that condition might be and I think the other information that we have is that it is quite difficult in the early stages of that disease for it to be properly or adequately diagnosed, as it is a progressive disease and exhibits symptoms akin to a number of other conditions, many of which I understand were being assessed or eliminated by the work of the paediatricians over time.
MR WIGNEY: The next - well, what I think the next medical intervention you say occurred on 11 June 2001, I think you indicated that on that occasion, medical advice was sought seeking a definitive diagnosis. The position is that this family were detained from at least August of 2000. We have now 18 months later the seeking of a definitive diagnosis.
MS McPAUL: It is just approximately a year later but as I've said ---
MR WIGNEY: Sorry, my notes ---
MS McPAUL: As I said, I think the particular condition that these children are now diagnosed with, as I understand it, it is basically a disease that is quite difficult to diagnose initially. The information that we have is that the variation in clinical severity of symptoms and the individual rarity of each disorder often means that the doctors, parents and patients coming into contact with this group of disorders for the first time can be confused and overwhelmed because it is not clear at the outset of the onset of this condition exactly what it might be.
As I've said it is a progressive and degenerative condition which manifests itself more explicitly over time and I think what we are seeing here is a range of experts, including a number of paediatricians, having looked at the children, considering that they may first have one name for the condition but later on realising that that isn't exactly a definitive diagnosis for it.
MR WIGNEY: Do you accept that by June of 2001, that is slightly less than a year after the detention commenced, that there had been no definitive diagnosis of this condition?
MS McPAUL: I think that - what I'm saying is that it was - that the case was very difficult for a doctor to be certain of what the condition might be and what we are seeing here is an ongoing attempt, active attempt, by ACM and the Department to be able to specify the exact nature of the condition, as you would in the community with a child with something of this nature.
MR WIGNEY: Well, if we come back to the place where we commenced this Inquiry, that is, the Departmental Manager's report of November 2001, which is page 22, at the very least the opinion of the Manager of the facility at Port Hedland as at November 2001 was that the intellectual - I withdraw that. Was that the needs of this family, the disabled members of this family, had not been adequately or had not been assessed or addressed.
MS McPAUL: I think if you go on and finish that particular paragraph, you will see that there is some additional information there.
MR WIGNEY: Well, the additional information, and we will put it on the record if you like.
MS McPAUL: Yes, please.
MR WIGNEY: The outcome of DIMIA meetings with ACM's Manager, psychologist and Programs Manager, requesting that management plans be devised and implemented, is that the deficit has been acknowledged and plans are being made to address it, including the involvement of DCD and FACS. So that indicates that it had been acknowledged that the needs of these intellectually disabled residents had not been assessed or addressed.
MS McPAUL: I think it is saying that they were working - that they have acknowledged it and they are working with appropriate external agencies to find an appropriate range of options for the children. I think, you know, that that is what has been happening in that particular case.
MR WIGNEY: That as at November 2001, there was no, at least no, written management plan that had been devised and implemented in relation to the needs of these disabled residents - or disabled detainees.
MS McPAUL: Yes. I think we also need to be careful about the use of the term case management because I think there is - as we referred to earlier in the evidence from the Department, there has been an evolution of the way that we approach the management of individuals with special needs and others in the Department. I think the term case management is something that we have become more used to using towards the end of that year, but the information that I have available to me here is that a behaviour management plan for some members of the family was in place from 25 March 2001.
This behaviour management plan included tri-weekly therapeutic sessions for the family with a psychologist. The family's management being discussed at these fortnightly meetings. It also included 30 minute daily observations of one of the children and checks of the children on a number of times throughout the course of the day. Their cases were also discussed at the high risk assessment team meetings in the centre and it is my understanding that the parties involved in the ongoing management of the family from this, early in 2001 onwards, included our staff at the centre, some staff at central office, the ACM Programs Manager at the centre, the ACM medical services staff.
Staff of Family and Community Services, of DCD, and the other ACM welfare staff, including the child liaison officer, the school manager, the welfare manager and the psychologist. So that information is available to me here and that is my understanding of how the case is being handled. Whether we use the term specifically case management or not I think in the way that it came to be understood by the Department later in 2000, it was not actually in use at this earlier time and I guess that is why we have got something called a behaviour management program.
I think that what we are seeing here is some quite intensive management of the case from early on in their time in detention and some appropriate action being taken to manage their condition.
MR WIGNEY: Ms McPaul, I suggest to you that a plan to deal with the - to manage the behaviour of these detainees is fundamentally different from a plan to manage the needs of disabled people. You are - this plan is how to manage their behaviour in a detainment context, not how to deal with their needs. Do you agree with that?
MS McPAUL: No, I don't. I think the management plan that we are talking about here, as we've said, includes the school, the welfare, the psychologist and the medical officers of the centre as well as intervention with the relevant child welfare authorities and as we know also, we've been dealing with external paediatricians and health services in the East Pilbara area and I think compositely that picture goes to looking at all facets of the case.
MR WIGNEY: Where is it - where is the behaviour management plan? Show us the document.
MS McPAUL: Clearly I don't have that document with me here at the moment and a plan is also a series of actions to be taken, rather than just a record of something that might, you know, be written down at some point.
MR WIGNEY: Is it written down in a document?
MS McPAUL: I would need to check but as I've said, there is a number of plan facets ---
MR WIGNEY: But you plainly checked, haven't you? Is it written in a document?
MS McPAUL: I don't have any such document here with me at the moment, no, but that does not - you know, I don't think that negates the view that that there were clearly a number of people at ACM and from outside both DIMIA and ACM engaged in discussions about the condition of these children and what we were hoping to be able to put in place for them.
MR WIGNEY: From the point of the Department, or from the Department's point of view, who is in charge of the detention facility at Port Hedland?
MS McPAUL: There were a number of different managers over a period of time. Which particular time are ---
MR WIGNEY: November 2001. I don't want his name. Who is in charge? The manager. Sorry, it is a very simple question. Isn't the Manager the person in charge of the facility at Port Hedland?
MS McPAUL: The DIMIA Manager has certain responsibilities in relation to the centre, that is right, and as does the ACM Centre Manager.
MR WIGNEY: One would expect that if there was, call it what you will, a behaviour management plan or a case management plan or anything else to adequately deal with the needs of these disabled people, one would expect the Manager, Department Manager, to know about it. That is right, isn't it?
MS McPAUL: The Manager would have an idea of what is happening and I think they have indicated in their notes here that while they felt it may not have been adequate in some respects, that the issues had been acknowledged and work was clearly happening, as I've said, with a range of external agencies.
MR WIGNEY: The Manager didn't say that they were not adequate. He said that the needs of intellectually disabled residents have still not been assessed or addressed. Not that they were inadequate. That they hadn't been assessed or addressed at all.
MS McPAUL: Well, I don't know that they are saying that at all. I think what they are saying is that it has not been satisfactorily assessed and I think that that is consistent with what I'm telling you, which is that there was a process ongoing of attempting to properly assess what the condition that these children actually had was and in the expert opinion of a number of external paediatricians with whom we had consulted, there was not a clear diagnosis at that point.
MR WIGNEY: Now, I want to take you forward, please, to page 47 of the bundle. That is a memorandum on the letter of ACM, appeared to have been authored by the psychologist ---
MS McPAUL: Sorry, which page was that?
MR WIGNEY: Page 47.
MS McPAUL: 47. Thank you.
MR WIGNEY: I might just - if you haven't already done so, you might - I'm not going to take you through the entire document but just familiarise yourself with that document, please.
MS McPAUL: Okay.
MR WIGNEY: Now, this would appear to be a report prepared by the psychologist employed by ACM at Port Hedland to the - addressed to the Programs Manager in response to a request by the Programs Manager for a general outline of how to approach the issue of providing appropriate care and management of children with a suspected intellectual disability, right? Do you see that in the beginning of the document?
MS McPAUL: It appears to be such a document, yes.
MR WIGNEY: I just want to emphasise for a moment the use of the words "suspected intellectual disability." That would suggest, would it not, that the disability that these children had had not been properly assessed or diagnosed at this stage, that is, 5 December 2001. If my maths is correct, that is almost 18 months after the detention commenced.
MR BROMWICH: Well, with respect, Commissioner, the heading is 'suspected/identified'. That is the first point. The second point is that we have asked to place before the Commission, to some extent we have information about the difficulties of diagnosis including the fact that it can take many years for this particular condition to be diagnosed. Now, Mr Wigney does not want to have that placed on the record.
MR WIGNEY: Well, I do. I'm just doing it at the appropriate time.
MR BROMWICH: As I said previously, it affects criticisms being made about what did or didn't take place at an earlier time when it is realised that at a later time, the diagnosis - the diagnostic process of several years is not unusual or unreasonable and the false premise standing behind these questions is that it is somehow unusual or unreasonable, particularly by reference to 18 months. We have asked to have the record set straight so that can be properly understood and I can only repeat that request.
DR OZDOWSKI: Counsel Assisting?
MR WIGNEY: I will move through this document quickly but can I just respond to that by saying this. Our concern here is not that there had been incorrect diagnosis. It is that, in our submission, the records plainly indicate that these disabilities had not been properly or thoroughly assessed and perhaps even more importantly, the needs of these children had not been addressed at the very least up until very recent times.
MR BROMWICH: That is the very problem I'm trying to identify. That is the very point I'm trying to have addressed, that when you talk about needs, a necessary part of that is diagnosis. If you have a condition which takes some years, on occasions, to properly diagnose, that is going to affect your capacity to assess needs because you have got to know what you are dealing with. It is a false premise to say that you work out the needs and then you get the diagnosis or that you bring forward a diagnosis ahead of what is medically ordinarily possible.
DR OZDOWSKI: Counsel Assisting, the problem was apart from the needs, there is also the difficulty of making a correct final diagnosis. If we could deal with this issue first and then you continue with your line of questions after.
MR WIGNEY: I was going to give adequate opportunity to deal with it. If they want to deal with it now, they can go right ahead.
DR OZDOWSKI: Yes, we will listen now to the statement from the Department on this final diagnosis issue.
MS McPAUL: Thank you, Commissioner. As we said earlier, this - it is our understanding that the condition that the children have now been diagnosed with is one that takes some time to manifest itself. We've been able to do some of our research in relation to some of the conditions. I understand there are also a number of web sites that you might like to look at that relate to the particular condition and information contained by a number of different medical experts in this field.
The actual term, as I understand it and excuse me if I don't get this correct, it is apparently aspartyglucosaminuria or AGU which, as we understand it, is a lysosomal storage disease which can present a slow onset mental retardation. This can - this disease can present similar symptoms to those symptoms displayed with the Fragile X Syndrome including learning difficulties and Attention Deficit Disorder. This particular disease, as I said, can be difficult to diagnose initially. Definitive diagnosis can often take many years as various diagnostic possibilities are assessed and excluded.
The variation in clinical severity of symptoms and the individual rarity of each disorder often means that doctors, parents and patients coming into contact with this group of disorders for the first time can be confused and overwhelmed. Treatments at the moment appear to be in the fledging stage and only useful if administered prior to becoming symptomatic. These include things like bone marrow transplants, gene therapy, hormone therapy, organ transplantation, and aggressive orthopaedic management such as neuro-surgery of the spinal cord and cervical vertical fusions.
Seizures which are common in some lysosomal storage disorders may be managed with a number of anti-seizure medications. We understand that behavioural abnormalities often benefit from the use of sedatives and hypnotics. Sleep disturbances in some patients can also be managed with the use of the hormone melatonin. So I think what we are seeing here is that it is a progressive disease. It is a degenerative disease. It is difficult to manage and difficult, in fact, to identify and sometimes confused with the Fragile X disorder which, as I think we've seen some of the earlier paediatricians assessing these children earlier on, felt that it may be.
So I think it is important to understand that it is not something that just by looking at the child or coming into contact with the child you would actually be able to clearly assess and understand the nature of the disability, the way it might manifest itself or the way that it might need to be particularly managed or treated.
MR WIGNEY: Is that all you wish to say on that?
MS McPAUL: For the time being, yes. That is some of the information that we have to hand.
MR WIGNEY: I rather gather that that information you have obtained in fairly recent times from, amongst other places, web sites.
MS McPAUL: We've done some research on this. Now that we know from a medical diagnosis what the condition appears to be, we thought it would be helpful to be able to have some information for you and we've obviously been interested to know ourselves as part of that case management process.
MR WIGNEY: It does not appear that anyone else looked up these web sites, at least from the documents that we've got until very recent times at least.
MS McPAUL: Well, you can't make that assumption, I don't think, from the documents provided. People may be doing any amount of research separately and it would be very hard to know what an expert paediatrician might have resources to access.
MR WIGNEY: Unless they reduced it to a report which they gave to the Department or ACM in relation to these children. Is there anything else you want to say on that topic or Mr Bromwich wants to say on the topic?
MS McPAUL: Not at the moment, no.
MR WIGNEY: I just want to take you through what was, in fact, taking place in relation to these children as they remained in the Port Hedland detention facility.
DR OZDOWSKI: Counsel Assisting, could you put your microphone a bit closer because it is difficult to hear?
MR WIGNEY: I just want to continue to take you through the documents which record what, in fact, was occurring in relation to the assessment of these children and the addressing of their needs throughout 2001 and 2002 whilst they remained in the Port Hedland detention centre if I may. I think ---
MR BROMWICH: Commissioner, I just make this reservation. They record what is being recorded. It sounds like the obvious but that is what they do. They don't necessarily record everything that is happening because not everything gets recorded.
DR OZDOWSKI: But this is the evidence which needs to be tested in this forum.
MR BROMWICH: Tested? I thought this was an inquiry?
DR OZDOWSKI: It is an inquiry and we are testing the evidence here.
MR WIGNEY: Of course it would be open to the Department and I think the offer was made that if they really want to call any evidence of what, in fact, was taking place, it is certainly open to them to do so.
MR BROMWICH: We were told about these individual case studies late Wednesday of last week. Several officers were dedicated to assembling information to enable us to do what we could to answer the questions but we really had very little notice. We specifically asked to be told what documents witnesses were being taken to and we've been told by letter in reply that that would not take place. We are dealing with the - what we can the best we can in circumstances where we simply have not been given a degree of notice that would facilitate what Counsel Assisting is suggesting.
DR OZDOWSKI: Counsel's inquiry was ordered - this hearing was organised - originally scheduled for September and if we are not able to go about it more efficiently, we will have to continue hearings either this Friday or some time next week. I'm trying to avoid this - so please cooperate. Let us go through the matter as swiftly as we can, please.
MR WIGNEY: If I can just go through some of the medical records that do exist. At page 99 of the bundle, just very quickly, this would appear to be part of the medical record progress notes in relation to the first daughter - I'm sorry, the second daughter, the eldest daughter with a disability. Do you see that?
MS McPAUL: Daughter 1 from yesterday I think - daughter 2. Daughter 2 from yesterday.
MR WIGNEY: Yes. I just wanted to draw your attention to the fact that on the 7th of December 2001 it appears that some reference there to a formal assessment of IQ, I'm suggesting that tests were still ongoing as a matter of fairness to you. The other entry I wanted to point - direct you to was on the - I withdraw that. It was part of ACM's practice as far as the Department understands that if there were medical interventions, I think to use your term, they would ordinarily be recorded in a medical record or a progress notes. That would be the ordinary practice of most medical practitioners or health professionals, would it not?
MS McPAUL: In general, that is my understanding, yes.
MR WIGNEY: So any matters of significance ordinarily would be recorded in a record such as this one that we are looking at at the moment.
MS McPAUL: Maybe. Yes. It may be recorded elsewhere on the child's file or it may be recorded in notes that are made by external practitioners as well.
MR WIGNEY: Now, the only other point that I wanted to take you to was a further assessment, or interview at least, on the 15th of February of this year, which refers to some concerns about sexual vulnerability. Now, that is about towards the bottom of the page.
MS McPAUL: So that is on page 99?
MR WIGNEY: Yes. Now, of course, as I said as we go through these documents if there are any other documents that you want to draw our attention to or passages that I don't direct your attention to, then please don't feel constrained. Now, if we can just continue to move through the documents. At page 107 we have some similar progress notes in relation to - 107, I'm sorry. These medical records would appear to be relating to the son, that is the boy that is aged 12 or 13. Do you see that?
MS McPAUL: Yes, that is right.
MR WIGNEY: Again it would seem that as at December 2001, tests were continuing in relation to an attempt to assess or diagnose what was wrong with these children.
MS McPAUL: As I understand it, that is correct.
MR WIGNEY: There is a reference in - to that on the 7th of December and I think some follow up notes. Now, we haven't actually seen, I think, the reports of those tests but I don't think it matters particularly at this stage at least. If we can move through to - I apologise for the ---
MR BROMWICH: Can I just note for the record that these meetings and consultations are taking place every couple of days? That is what these records reflect. It is a fairly constant pattern of attendance.
MR WIGNEY: I've invited the witness, who is on oath, to give the evidence.
MR BROMWICH: I'm just noting ---
MR WIGNEY: And I've invited her, if there are any observations she wants to make about the documents, then she can do so.
MR BROMWICH: It is a common practice for counsel to note on the records something that is in the face - in front of everyone.
MR WIGNEY: Now, can I take you to 34(c) of the bundle, please. It is - I apologise for some idiosyncrasies in the numbering but if you find 34 and then there are a few documents after it.
MS McPAUL: Page 34.
MR WIGNEY: 34. Yes, backwards.
MR BROMWICH: These are extra documents that have been added in overnight.
MR WIGNEY: I'm sorry. No, they are not.
MR BROMWICH: They were there - not numbered. I see.
MR WIGNEY: Sorry. Can I take you firstly to 19. I'm sorry.
MS McPAUL: 19?
MR WIGNEY: Yes, 19. I'm sorry. Now, you will gather that what I'm doing is taking you through this in a chronological order hopefully.
MS McPAUL: Okay. So this is page 19.
MR WIGNEY: Yes. Now, it is part of a - the report of the Manager of the - the Department Manager of the Port Hedland facility for December 2001. You will see that from page 18 of the bundle and as we've seen from these reports, there is various topics or sub-headings and I want to direct your attention to some passages in the box dealing with individual care needs at the foot of page 19 which records the special needs of the three intellectually disabled children still not being met.
Meeting with special education teacher elicited some useful ideas and suitable plans were subsequently devised by the psychologist. These have not been implemented, however, due to a lack of personnel with suitable language skills.
Now, we have the three disabled children at this stage having been in detention now for in excess of a year. I think we are up to almost 15 months. We have the Department Manager in charge of the Port Hedland facility where these children are detained saying that the needs of these children are not being met and it would appear from this note that part of the difficulty is that there is inadequate personnel with suitable skills to deal with these children. Is that right?
MS McPAUL: I think the Manager was indicating that she felt that the needs may not have been met fully. However, she says that as well in that particular paragraph that there have been ongoing meetings with some other staff there. Particularly, I think, she refers to the special education teachers and she has also indicated that there were useful ideas and suitable plans that were being subsequently devised by the psychologist. So while it is an assessment that perhaps the needs were not being fully met in her view, it clearly indicates that work was ongoing to make sure that the needs were met to the extent possible.
MR WIGNEY: There is not much use having plans if they can't be implemented, is there?
MS McPAUL: Well, I'm not sure that is what this is saying. I mean, I think she is saying ---
MR WIGNEY: These have not been implemented however, due to lack of personnel with suitable language skills. That is what it is saying. There is not much point having plans if they can't be implemented. That is right, isn't it?
MS McPAUL: Well, ideally it would be useful to have a plan implemented. I agree.
MR WIGNEY: In relation to plans that this note indicates have been devised by the psychologist, are you able to show us what plans were in existence as at 2001, at least recorded in a report or a note?
MS McPAUL: That would be something that I may need to take on notice. I don't know if I have that particular document in our set here today. I certainly don't have it with me at the moment. I mean, if you are aware of it, I would be happy to have that pointed out so we can discuss it.
MR BROMWICH: In the interest of balance, I would ask my friend to go to page 17, which is the following month.
MR WIGNEY: Yes. Well, I'm going to come to that. I'm trying to do it in a logical, chronological order if you wouldn't mind and I will come to that. Now, in the next document chronologically that I wanted to take you to was the document at 34(c). So you have to find 34 and then go some documents through. That would appear as an email from the Centre Manager, I think, at the time, Department Centre Manager at the time at Port Hedland to two persons who, I think - and copied to officers of the Department, I think, in the central office. Is that right?
MS McPAUL: Yes, that is correct.
MR WIGNEY: Now, it's topic is the family that we are discussing in this case study. That is right, isn't it?
MS McPAUL: Yes, it is.
MR WIGNEY: The passage I wanted to direct your attention to commences three lines down. The psychologist is going to draw up a management plan for them based on her suggestions which will be implemented by the teachers. So in part this seems to deal with the education needs of these children but the point is this, is it not, that it indicates that as at 16 December 2001, that is 15 months after these children were first detained, there had been no management plan drawn up in relation to the special education needs of these children?
MS McPAUL: I think I already referred to the ongoing involvement of a number of people at the centre for these children, including educational, welfare and programs officers. I think there had also been approaches made to special education facilities external to the centre around this time for the children.
MR WIGNEY: I take it you are still not able to show us or point to a drawn up management plan for the special education needs of these children? Is that right?
MS McPAUL: Well, I don't have a copy of such a plan here, no.
MR WIGNEY: Well, let us go to the document that Mr Bromwich referred to earlier and that is at page 15 of the bundle.
MS McPAUL: I think perhaps before we move on, there are a couple of other matters in that particular document which ---
MR WIGNEY: Of course.
MS McPAUL: --- might be useful to have on. It does also say that one of the three children attended school about 60 per cent of the time last month, although the other children were not listed as attending. I think, as I've said, the inference that no attention was being paid to the educational needs of these children for any of the period or certainly around that time is not my understanding of what was happening with that particular case.
MR WIGNEY: No. My question was directed to whether there had been a management plan devised for their special education needs.
MS McPAUL: I guess what I'm saying is whether or not there is such a document in existence. It is not - not to say that there wasn't work being done to put educational, appropriate educational solutions in place for the children.
MR WIGNEY: Well, we have got one child attending school 60 per cent of the time and the other two children not being listed as attending at all.
MS McPAUL: Yes. As I understand it, there was a period in which the mother of the children declined to let her children attend the school.
MR WIGNEY: I see. We will come back to that topic. Now, the next document I was going to take you to was the document which is the Manager's report for Port Hedland for February 2002 at page 15. The document commences at page 14 but the passage dealing with these children commences on page 15.
MR BROMWICH: Sorry, have we skipped past 17?
MR WIGNEY: Sorry?
MR BROMWICH: We've skipped past 17, have we?
MR WIGNEY: I'm sorry, you are right. Yes. I had assumed that 15 chronologically would be before 17 but it is not. Perfectly right. January 2002. Mr Bromwich, as always, is perfectly correct. January 2002, Manager's report commences at page 16 and we now have, it seems, the Manager of the Department at least expressing the opinion that the needs of
MS McPAUL: We just seem to have a little bit of difficulty with the numbering in our particular folder. Could you just - it is page 16?
MR WIGNEY: Yes.
MS McPAUL: What do you believe is on the top of page 16?
MR WIGNEY: 17.
MS McPAUL: Page 17. Ours is the ---
MS GREAVES: There is page 18 as well. There are two pages that are the same.
MS McPAUL: We are on page 16. Is that correct?
MR WIGNEY: Yes. 16 is the commencement of the report just to indicate what we are looking at. 17 is the relevant passage.
MS McPAUL: Right.
MR WIGNEY: Now, as Mr Bromwich has pointed out, this indicates that at least by January 2002, that is 16 months after the children first - were first detained, the Manager of the Department at the Port Hedland facility has formed the view that their needs are being assessed - sorry, addressed through a specific case management plan by the ACM psychologist. Again, I ask if you have a document which satisfies the description of a case management plan in existence as at this time, I ask that you draw our attention to it now or take it on notice.
MS McPAUL: Look, as I - yes. I think we have taken it on notice as I understand it. Some Departmental officers are attempting to have such a document faxed down for your information. I should say as well that I think I alluded earlier to the evolution of the Department's approach to case management and the use of that term and the increasing sophistication of such documents over time. As I understand it, the use of the term and the compilation of a more comprehensive plan that outlines various aspects of case management was more uniformly used across all of the centres around the time of the end of 2001.
So certainly the Manager's statement here that there is a case management plan in place accords with my understanding of what was happening in centres for all children at that time, special needs children, unaccompanied minors and so on.
MR WIGNEY: It is a similar effect if you go to page 14 and 15. I'm trying to move things along as best we can. You will see that again as at February 2002, I think the Manager was - remained of the opinion that the needs of the intellectually disabled children were being addressed. That appears about two-thirds of the way down on page 15 but to - if one then goes to the following month, March 2002, the document commences at page 12. If one then comes to on page 13, the part of the report, the Manager's report, for March 2002, one sees that by that time the Department Manager is of the view that the special needs of the three intellectually disabled children are still not being met adequately:
ACM is very slow to produce suitable and implement management plans, partly due to the responsible staff being relocated for short term placements elsewhere.
So whatever happened in January and February, it seems that matters have regressed by March. Right?
MS McPAUL: Well, it is the view of the Manager that there may be some issues for ACM. Perhaps that question might be best to be addressed to them but as I understand it, the management plans that would have been put in place towards the end of 2001 would still be in existence. It is a question, I suppose, of continual refinement of those plans to make sure that the changing needs of the children are being addressed as they evolve. I think the important thing with the case management approach that is being adopted by ACM and the Department is that circumstances of individuals do not - are not static and don't stand still.
As we've seen with the particular needs of these children, the development of their condition degenerates over time and changes over time. So there would necessarily, I think, be a need to review those plans and to continually update them as different needs emerged.
MR WIGNEY: Yes. Well, we would rather like to see the plans because we haven't seen them and I suspect it is the case, isn't it, Ms McPaul, that you haven't seen a written management plan in relation to these children either, have you?
MS McPAUL: Personally? No, I haven't personally seen it but ---
MR WIGNEY: So when you are talking about - when you are talking about refining of management plans, you are just speculating, are you not?
MS McPAUL: No, I don't believe so. I think what is happening is that other officers of the Department are aware of these plans and I'm explaining our general understanding of how the plans work. For these and for other children, there is continual review, as we've said in this particular case, from the middle of 2001 with a range of staff at the centre and our staff in central office.
MR WIGNEY: In any event, it would seem that the head Department person at the - on the ground at Port Hedland himself wasn't happy with these plans - himself or herself wasn't happy with these plans as at March 2002
MR BROMWICH: I object - well, I object to that. That is not what he is saying at all. He does not say he is unhappy with the plans.
MR WIGNEY: Well, he says ---
MR BROMWICH: Concerns about adequate implementation.
MR WIGNEY: Well, he says that the special needs are still not being adequately met.
MR BROMWICH: That is a different question.
DR OZDOWSKI: Ms McPaul, did you speak to the other Departmental officers about the existence of this plan?
MS McPAUL: Members of my team have been working on the details of the preparation of this particular case and, as our Port Hedland Manager indicates there, there was a case management plan in place for the children so it is my understanding that that is the case.
DR OZDOWSKI: So the members of your team informed you about the existence of this part of the plan?
MS McPAUL: I've referred to the behaviour management and other ongoing care and members of my team have indicated that to me. That is my advice.
DR OZDOWSKI: That the plan does exist?
MS McPAUL: Well, I believe so, yes.
DR OZDOWSKI: Thank you.
MR WIGNEY: Well, you can take it on notice that if there is a written plan ---
MS McPAUL: We've already undertaken, I've already indicated that staff are at the moment attempting to obtain a copy for you.
MR WIGNEY: Now, in the next document I wanted to take you to again, we are still in March of this year, at page 34(e) of the folder you will see commencing in about the middle of the page is a print out of an email dated 27.3.2002 from someone to the Department Manager at the Port Hedland facility at the time. Right?
MS McPAUL: Yes. We have that document.
MR WIGNEY: Now, I'm trying to avoid the use of names but do you know who the author of that email is? What is his position at the Department?
MS McPAUL: At the present time he works in central office. Sorry, at the time in March 2002, I'm not sure whether he was in central office or at the centre but in any case, I am familiar with the individual.
MR WIGNEY: In any event, it seems to be a document that has been created after an HA - sorry, HRAT.
MS McPAUL: High Risk Assessment Team. Yes.
MR WIGNEY: High Risk Assessment Team meeting in relation to Port Hedland and it discusses, amongst other things, the children, the subject of this case study and I was going to take you to just - well, a couple of passages without slowing things down too much but you will see four paragraphs down there is a reference to the son and his intellectual disability being severe.
MS McPAUL: Yes.
MR WIGNEY: Do you see that?
MS McPAUL: Yes.
MR WIGNEY: I'm sorry, there is a reference to [name removed] throughout this email. That would appear to be the ACM psychiatrist or psychologist at the time.
MS McPAUL: That is our understanding, yes.
MR WIGNEY: If one goes over to the next page, that is on 34(f), the last paragraph of this document records this:[name removed], that is the ACM psychiatrist or psychologist:
Assesses the intellectual disability problems of the family are well beyond the capacity of the centre to deal with. They need a dedicated team of IDS, that is intellectual disability specialists, working to best practice and that cannot occur here. There has been no official diagnosis of Fragile X and [name removed] does not know where that comes from. The children need a diagnosis of their intellectual disability problems and a program of specialist therapeutic care. She intends to submit a formal management plan for each child this week.
So again we are talking about it seems that the suggestions for management plans being submitted as at March of this year but the real point here is that we have the ACM psychiatrist or psychologist saying the needs of these children cannot be adequately addressed in the centre at Port Hedland. Right?
MR BROMWICH: Just to put balance on that, I would ask my friend to refer to the second last paragraph on page 34(e) which suggests - well, suggests that release isn't really an option in the circumstances.
MS McPAUL: I guess one of the things, particularly with this family, we've working as you know with the child welfare authorities in Western Australia and the health service authorities in Western Australia and it is quite difficult to, as I understand it, obtain the kind of support in the community as well in that region for some of the, I guess, best practice or ideal things that we might like to have in place for these children. But that is not to suggest that the people who are working with them on a daily basis and supporting the family are not doing the very best that they can with what they have available.
MR WIGNEY: Please understand that I certainly, and the Commission certainly, isn't being critical of the people employed at these facilities who, for the most part, may well be hardworking and dedicated staff. We are not being personally critical. We are addressing the systemic issues relating to dealing with disabilities and here we have the member of the ACM staff, who is a psychiatrist or a psychologist, saying the needs of these children with disabilities cannot be addressed in this facility. Right?
MS McPAUL: That is the view expressed there, yes.
MR WIGNEY: We will come to the various options in due course and the views that have been expressed by various people. I don't think anyone is suggesting that one ought just open the gate and let them walk out but where are they now?
MS McPAUL: As I understand it, they remain at the Port Hedland facility.
DR OZDOWSKI: Can I ask you a question? It is a family of five, including three disabled children. What is the risk of them absconding if they had been released and allowed to access services in the community?
MS McPAUL: Well, they would need to be eligible for a bridging visa as well. I think we went through the whole dynamic of that yesterday so ---
DR OZDOWSKI: Yes, and I understand that and I also understand that it may not be possible to do this under the present system of law. But would you describe them as likely absconders?
MS McPAUL: It is difficult to know because there are - I think there is seven in the extended family for this group. They have - that is right, not all of them are intellectually disabled and they have, as I understand it, been right through the process, the determination process, including through the appeals process and I think the point that Ms Godwin made the other day in relation to this is that as people come towards the end of the process, there is a greater likelihood of them wanting to stay in Australia. So, you know, there is a risk factor to be taken into account there, given the stage of their processing.
DR OZDOWSKI: So there is a risk, despite their dependence on services at this stage of their processing, that they could abscond?
MS McPAUL: It is possible, yes.
DR OZDOWSKI: Yes. What about two years earlier when they started their processing?
MS McPAUL: Would the ---
DR OZDOWSKI: Would they abscond?
MS McPAUL: Well, it is very hard for me to speculate on what they might do. I mean, I think there are risk assessments made about some of those things at different times but the likelihood of absconding is not in itself a criteria for the grant of a bridging visa, even if they were eligible at that time for the grant of one. But I think the point that we were making earlier is that in that particular region, it is a remote area of Western Australia as you know, the kinds of support to any family with intellectual disabilities of this nature in that particular region is difficult because of the nature of the health services able to be provided more generally in the community.
DR OZDOWSKI: Is the school in Port Hedland looking after children with special needs?
MS McPAUL: Just give me a moment just to check my notes on that. Look, it is my understanding that the children are attending the Catholic school with the other children from the centre.
DR OZDOWSKI: Yes, I know. I have seen them there. My question is: is there in Port Hedland a school which would better suit their needs? Is there a school for intellectually disabled children?
MS GREAVES: My understanding is that there are some state schools, state Government run schools, that may have facilities and indeed that was one of the subjects of conversation with the Western Australian Department of Education that we raised - I mean, we took up recently in November.
MS McPAUL: The children are receiving one on one instruction from, as I understand it, an ACM teacher in the school facilities every day. So that - from that point of view they are receiving individual education that is targeted towards their particular needs but I ---
DR OZDOWSKI: From a specialist teacher - a teacher who specialises in disabilities?
MS McPAUL: I would need to check the specific qualifications of that individual but it is my understanding that ACM have taken steps to have an appropriate person there for those children.
DR OZDOWSKI: So if you would check the file. What I'm really interested is, clearly this family which has been a very long time in detention with three handicapped children, several handicapped children, and I would like to know whether all the resources which are available in the locality were used to advance their health and their educative needs.
MS GREAVES: Commissioner, we certainly tried to - ACM certainly tried to access a special education unit in Port Hedland at various times but that wasn't available to us. That is why we have now taken the issue up with the higher level.
DR OZDOWSKI: When did you first approach that unit?
MS GREAVES: December 2001 and then later in March 2002. Sorry, May 2002. March 2002 and then again in May 2002 with various ---
DR OZDOWSKI: Okay. So maybe that is all for the moment and I hope to get from you some information about the qualifications of that special needs teacher.
MS McPAUL: Our colleagues in ACM may be able to assist.
DR OZDOWSKI: Thank you. Counsel Assisting?
MR WIGNEY: Yes. I just pick up on the point I think specifically dealing with education. Can I take you to a few documents and I will try and move through quickly here. I don't want to be accused of skipping over positive things but I think as I indicated at the very commencement of this case study, we don't for a moment suggest that this is other than a complex and difficult case to deal with.
MS McPAUL: Look, I think we are in agreement that of the small number of children with disabilities that have ever been in the centre, this particular case is clearly one that is very complex and it has been one that is acknowledged in that vein.
MR WIGNEY: Now, those difficulties and complexities, and if I can try and do this in short terms, are demonstrated by some of the following documents that I will try and take you to quickly. If you go to page 36 of the bundle and picking up on the points raised by the Commissioner about education in particular, one can see there a document dated 27 March 2002. It is from the Programs Manager to the then Centre Manager at ---
MS McPAUL: No. To the ACM Centre Manager, yes.
MR WIGNEY: I'm sorry. The ACM Centre Manager.
MS McPAUL: Yes.
MR WIGNEY: It refers to the education plan in relation to these children and the difficulty under the present circumstances to devise a plan for the children and then he goes on to say:
Each requires a carer at all times for education to be a success. It is difficult to provide for them educationally, including socially. They require individual attention and assistance. Each appears to have an intellectual disability.
Now, again in general terms, you would have to accept, would you not, that attempting to provide proper education services for these disabled children in a detention environment such as Port Hedland was an extremely difficult matter to accomplish.
MS McPAUL: Look, I think it would be difficult anywhere to provide the appropriate care for this particular group of children with this particular kind of disability.
MR WIGNEY: If one goes over to page 37, and again take us to any other passages if you wish, but at the top of the page the Programs Manager refers to the fact that education is best if trained staff work with these children and then he refers to an option for the children to attend the special education class at South Hedland if that were possible.
MS McPAUL: Yes, that does make reference there to that.
MR WIGNEY: Again just trying to move through things fairly quickly, if one goes to 42(a) ---
MS McPAUL: Sorry, 42?
MR WIGNEY: 42(a). Now again, to emphasise I'm certainly not being critical of the individuals involved in this but it really demonstrates the profound difficulties in trying to involve these children in the education services that were provided to other children at the facility.
MS McPAUL: Look, I think we do acknowledge that and I think as my understanding at the moment is that the children are being taught with an individual teacher in a room of their own at the school, somewhat separate from the other education services being provided to the children there at the moment. That is in recognition of a range of factors including their socialisation and their intellectual impairment and the kind of one on one approach that is needed in that environment.
MR WIGNEY: Again not wishing to be critical but that teacher, I think it is clear - I withdraw that. You are aware of whether that teacher has special education training in relation to ---
MS McPAUL: Somebody is checking that point.
MR WIGNEY: Thank you. Of course, throughout these documents there is a reference to the fact that really someone with special training in relation to the education of disabled children is necessary.
DR OZDOWSKI: You are aware also ---
MS McPAUL: I'm sorry. We are just conferring about the education now. We are just checking some details.
MR WIGNEY: Perhaps if you jump through to 42(d).
MS McPAUL: Yes.
MR WIGNEY: I was just going to take you - that is an email from the Department Centre Manager to the Department central office in relation to these children. I think the topic is of interest but if one goes to the paragraph on the bottom of the page, there is reference to the ACM teacher who takes them to school and works with them every morning. He is having ongoing discussions with the state school and with another school, both of which have special education programs. He hopes that he can get some input from one or other in the next couple of weeks, even if it is just a couple of days a week that a special education teacher spends with them. It will relieve him a bit understandably.
MS McPAUL: Yes.
MR WIGNEY: Then there is a reference to the fact that he does not have any special education training and that I think the most - the local school that other children attend also does not have a special education trained teacher.
MS McPAUL: My understanding that that is the case for the Catholic school. I think as we have said from early in 2001, approaches had been made and continue to be made to that - the various special education units at the other schools in Port Hedland with, we'd have to say, limited success and that is - whereas I understand it we are still in some negotiations with the Western Australian authorities to enable us to access those facilities in the way that we would like.
DR OZDOWSKI: To say that they go to a school, is a bit of an overstatement, because they are using a room, which is not a part of the main school. It is a room which has not been used for some time for any other purposes.
MS McPAUL: I understand it is on the school premises.
DR OZDOWSKI: Yes. But it is not even equipped properly as a classroom.
MS McPAUL: No. That is an assessment that you've made. I can't comment because I haven't personally seen that.
DR OZDOWSKI: Yes, thank you.
MR WIGNEY: I suppose the point is this, Ms McPaul, that we are now in this document as at May 2002 coming up towards to two years in which these children have been in detention and even recognising the difficulties and complexities of this particular case, it would appear that they have not had any special education dealing with their disabilities for the better part of two years.
MS McPAUL: I mean, I think the educational opportunities provided to the children take account of their disabilities to the best that is available at the time and taking account of the evolving nature of the disabilities that the children have. I think you may be aware that for some other - it is common throughout Australia for children and others with disabilities and intellectual disabilities to also have access to programs and activities that provide a range of tactile and other experiences for those individuals.
You may be aware, I think from some of the notes that we have provided, that these particular children also participated in the riding for the disabled program at Port Hedland for a period of time and successfully completed that program and as I understand it, enjoyed it and got quite a degree of benefit from that.
MR WIGNEY: Yes, I think that is the example that you gave in the Department's written submissions to the Commission and that is why we embarked on this particular case study but the point is this, is it not, that accepting for present purposes that the Department and ACM did offer the best available services open to them to offer in this detention environment, the point is that the best available at the time was not good enough to adequately deal with this disabled - these disabled children? That is the point, isn't it?
MS McPAUL: Well, I would accept that it is not part of the state or a state curricula for special education. So to that extent I accept broadly what you are saying.
MR WIGNEY: Just excuse me for a moment.
DR OZDOWSKI: I would propose to adjourn at 10 o'clock for a coffee break.
MR WIGNEY: Yes.
DR OZDOWSKI: Will we be able to finish that case at a later time?
MR WIGNEY: Probably not. Perhaps if we break now I will try and shorten things so that we don't take - Mr Bromwich can tell me any particular documents he wants me to take the witness to or he can obviously take the witness himself and I will try and skip over some to move things along.
DR OZDOWSKI: Yes, so continue. We will break 10 o'clock.
MR WIGNEY: Yes. I'm sorry ---
MS McPAUL: So where are we up to?
DR OZDOWSKI: No, no. I'm saying just continue and we will break in 5 minutes.
MR WIGNEY: Now, I just wanted to try and jump forward a little bit. Just bear with me for one moment and make sure - I'm sorry, without being overly repetitive if you go to page 10 and 11 of the bundle you will see the Port Hedland Manager's report for April 2002 and again a reference to the fact that the opinion of the Department Centre Manager at the time was again that as at April 2002, the - whilst the children are being monitored by HRAT, there is an ongoing problem in relation to the need for special education and training is not being addressed.
MS McPAUL: Well, look, I think it reflects the Department's ongoing expectation that special education would be ideal to be provided for these children and I think the Manager is reporting back that there is still obviously still some difficulty accessing those external services ---
MR WIGNEY: Can I ask - I'm sorry.
MS McPAUL: --- as we've referred to. I mean, we've been attempting for some time to have access to those facilities.
MR WIGNEY: Now, on a slightly different topic, you recall that I asked you earlier this morning about the need for support of parents - supporting parents of disabled children so that they are adequately able to ---
MS McPAUL: Yes, and we would agree that that is an important component.
MR WIGNEY: If one goes to page 80 of the bundle - eight, zero. Yes.
MS McPAUL: Eight, zero.
MR WIGNEY: You will see, I hope, some medical records, progress notes in relation to the mother and in general terms it would be - it would appear that as at the May of 2002, Family and Community Services, that is a state authority, is being interviewed in relation to whether the mother is able to cope with the looking after her children in the detention environment.
MS McPAUL: That is - there is a notation there in relation to that but as I understand it, the mother had been supported in a number of other ways from early in 2001 as mentioned before. The whole family was part of an ongoing process of support. You know, I don't think that the Department disagrees with you that their support to the family in this context is important.
MR WIGNEY: Yes. You will see that in the next sentence it refers to the fact that at least as at May, she was relaxed and in a good mood, grateful for the help with the children but then if one goes over to the next page, we've got May of 2002 and again another interview with the mother: seen in the school as I was passing them - or it seems that it was just an observation in passing:
She was with her children, very upset as the other children had gone to the catholic school and her children were excluded. After long session, settled her down, however she is emotional and worn out in relation to her situation with the children and school and their education.
MS McPAUL: I think she also says - that appears to be the note there.
MR WIGNEY: Now, as far as you are aware from your study and consideration of this case study, was that the first opportunity that Family and Community Services had been bought in to deal with?
MS McPAUL: No. I believe that the particular circumstances of this family, different aspects of this family's situation were brought to the attention of Family and Community Services some time earlier than that. I think the first indication was on - in March 2001 I think was probably the first time that matters relating to this family were drawn to the attention of Family and Community Services.
MR WIGNEY: Just while we are on the topic of state authorities and before we take the break, can I take you to page 30(a) of the bundle. Now, this is a fax from the centre management down to someone at head office in the Department and there is a reference to some communication from the Disability Services Commission, that being a commission specially set up in
MS McPAUL: Sorry, just the page numbering thing again. 30(a)?
MR WIGNEY: I'm sorry. 30(a).
MS McPAUL: Yes, thank you.
MR WIGNEY: That fax refers to a letter from the Disability Services Commission. You are aware that that is a state body specifically set up to deal with people with disabilities. Having recently visited the facility in relation to these children, are you aware of whether the Disability Services Commission had been called in at any earlier stage, that is, prior to 27 June 2002, in relation to these children?
MS McPAUL: Not specifically aware although we understand that DCD was part of the earlier programs that we talked about from March 2001 but whether or not the matters specifically to the individual that is specified here, I'm not aware.
MR WIGNEY: Well, it would seem at least, and this is the last question I will ask before the break, but it will seem at least from this correspondence that the reason for the visit of the Disability Services Commission on this occasion was because the plight of - I withdraw that. The situation of these children had been bought to their attention by the Human Rights and Equal Opportunities Commission. Do you see that?
MS McPAUL: Yes. That is written here. I think also it points out a little bit further on that in the view of this particular letter writer anyway the feedback that we've received was - that the children apparently were not disabled enough to qualify for some of the special services available from that Commission. So - anyway, for what it is worth, there does seem to be a view expressed there.
MR WIGNEY: It would seem somewhat surprising for you having regard to what we have heard this morning about this condition?
MS McPAUL: Well, it may go to questions of assessment by some individual in another agency. I'm not saying that that is necessarily the view that we share here.
MR WIGNEY: That might be an appropriate time, Mr Commissioner.
DR OZDOWSKI: Could I ask Counsel Assisting to give me any comments you wish to make?
MR WIGNEY: I thought we hadn't finished with ---
DR OZDOWSKI: Yes, yes. I think Counsel Assisting the Human Rights Commission has finished his questions. We have ---
MR BROMWICH: Have you finished with this topic?
MR WIGNEY: I haven't finished the case ---
MS McPAUL: Have you finished with this case?
DR OZDOWSKI: No, no, not the topic but just we are adjourning for the break to have a coffee.
MS McPAUL: Yes. So there will be more questions on this case?
MR BROMWICH: There is going to be more questions from Counsel Assisting on this topic.
DR OZDOWSKI: Yes, that is right.
MR BROMWICH: When Counsel Assisting is finished, I will have my ---
DR OZDOWSKI: Okay. In this case, before we adjourn, one more issue. When you referred at the start of today to alleged sarcasm, you said that we have got very senior Departmental officers appearing today and that proper respect should be shown to them. I asked Counsel Assisting to consider the matter. Now, could you put please for the record identify the substantive level of the officers attending?
MR BROMWICH: Sorry, can I ---
DR OZDOWSKI: Substantive levels of the public service of the officers attending.
MR BROMWICH: You want me to identify what ---
DR OZDOWSKI: What levels in the public service, because you used the expression very senior Departmental officers and what I'm asking is to identify the substantive level of these people.
MR BROMWICH: I understand in relation to the current witnesses, all the witnesses?
DR OZDOWSKI: The current witnesses.
MR BROMWICH: Both the current witnesses are Assistant Secretaries. I think Ms McPaul is an acting Assistant Secretary.
MS McPAUL: That is right.
MR BROMWICH: But both of current - the two women witnesses in front of you, Commissioner, are assistant secretaries. That is their current positions.
DR OZDOWSKI: So what is this substantive level of Ms McPaul?
MS McPAUL: Senior Executive Service position.
MR BROMWICH: Senior Executive Service position. Ms McPaul is an assistant secretary but I think currently acting in that position. Is that correct?
MS McPAUL: That is correct.
MR BROMWICH: Ms Greaves is an Assistant Secretary of the Detention Policy Branch.
DR OZDOWSKI: The most senior officer would be, in the Department, the Secretary, I would assume?
MR BROMWICH: The senior officer in the Department
DR OZDOWSKI: The most senior officer is the Secretary?
MR BROMWICH: Yes, and Ms Godwin is a Deputy Secretary of the Department.
DR OZDOWSKI: Yes. So how many levels are there between Ms McPaul's substantive position and the Secretary's position?
MR BROMWICH: I think you usually have First Assistant Secretaries and Deputy Secretaries and then the Secretary- yes.
DR OZDOWSKI: Okay. Thank you. Now we can adjourn.
SHORT BREAK [10.05am]
RESUME [10.25am]DR OZDOWSKI: Okay. So the session is open.
MR BROMWICH: Commissioner, I understand there may have been some lack of clarity in the answer I gave you as to the ranking of these officers, Ms Greaves and Ms McPaul - Ms Greaves is a substantive Assistant Secretary of the Department. Ms McPaul is an acting Assistant Secretary. The other person who was at the table but was not taking an active part in answering questions, Mr Kelly, he is not an Assistant Secretary. He is a director which is the next level down. In terms of the comments I made earlier, all three are nonetheless senior officers of the Department.
DR OZDOWSKI: So they acknowledge this? Thank you.
MR WIGNEY: Just moving on and I will try and be as brief - I will try and do this as quickly as possible but please slow me down if you want me to refer to any other document or passage but I was going to firstly just take you back to document at 102 of the bundle. Really just to point out part of the reason as we've said is that the Department refers in its submissions concerning dealing with children with disabilities to the fact that these children participated in a horse riding scheme and that would appear to have commenced - from the note at the foot of this page, some progress notes in relation to one of the daughters to have commenced some time in June of 2002.
MS McPAUL: That appears to be the notation there. I'm just double checking for you whether we have any other dates. I think the horse riding for the disabled was an eight week course that actually commenced some time earlier in May and probably finished some time in June.
MR WIGNEY: Now, just trying to go through these documents as quickly as we can whilst doing justice to them. If you go to page 60, please. You will see that fax from ACM from a doctor, it appears, employed by ACM, to another doctor and it is relating to these children and one can see about three quarters of the way down the page you have referred, of course, to the difficulties in diagnoses and we take that on board but the doctor who authored this fax suggests that if a definitive diagnosis could be provided, that would be very helpful.
I mean, the point is that this is almost two years after these children have been in custody. It is a bit of an understatement to say that it would be helpful to have a diagnosis, is it not?
MS McPAUL: The children have been in detention. I think we've explored at some length this morning the difficulties in obtaining a diagnosis from specialists in relation to this case. I think the information we are seeing here is consistent with what we've already mentioned.
MR WIGNEY: Just moving forward and I really - at some stage you are aware that this Commission raised some concerns regarding the way in which this family was - or rather the children with disabilities were being dealt with in the Port Hedland facility. I wanted to simply direct your attention to a document at page 44 of the bundle which would appear to be the ACM psychologist's response to the concerns raised by the - this Commission. 44. I simply - I draw that to your attention. It may - I don't propose to go through it. It is a lengthy and detailed document but now is your opportunity to say anything in relation to it if you wish to.
MS McPAUL: I may have some further remarks in relation to this document but I will - let us see what you would like to ask about it first and then I will supplement it with anything else I need to put on record.
MR WIGNEY: Can I just direct you then to one passage on the - in the report by this psychologist? It is at page 46 and it is picking up with the topic that I raised with you shortly before the break about the mother and the author of this document indicates on page 46, it is the second last paragraph of the letter or memorandum:
In closing, my concerns with the[family] are not for the three children with special needs but for their mother and older sister, as my reviews( weekly, when I am at the centre) indicate that it is they who are displaying signs of lowered mood and general deterioration in presentation.
So it would appear that the mother at least was, to put it colloquially, her mental state was going downwards as a result of the pressures dealing with her children.
MR BROMWICH: With respect, Commissioner, that is not what the document says.
MR WIGNEY: Well, her mood and general deterioration and presentation.
MR BROMWICH: But that does not - my friend is making a causal connection there which it does not say.
MS McPAUL: It does not say what her - yes. It says that she is displaying signs of lowered mood and general deterioration in presentation but I don't believe that there is a direct connection made or a reason specifically given. It says it is difficult to conjecture.
MR WIGNEY: Well, one way or another, we dealt with in some length on Tuesday in the context of the family's topic how, in our submission, the detention environment undermines the ability of parents to deal with children in any event and that - whether it is the detention environment that is causing the lowered mood and general deterioration in presentation or whether it is specifically the pressures with dealing with the children, the fact is that there is an indication here that the parent, the mother, is starting to lose the ability to look after these children, right?
DR OZDOWSKI: In a way this was the advice I was getting during my visit to them when I met all the family. The official advice from ACM and the Department was that the mother had deteriorated to such a level that she couldn't look after the children any more. So basically daughter 1 was looking after the children.
MS McPAUL: Look, that is my broad understanding as well, that looking after these particular children is a very demanding task but as to what other factors might go to the make up of the mother's mental health, I'm really not in a position to say. As we indicated on Tuesday, there are any number of factors that might go to that and I think also the - again with this family as with some of the others that we talked about on Tuesday, the Department had determined back on 24 May 2001 that this family did not have refugee claims that were substantiated and therefore were not eligible for the grant of protection visas of one kind or another in Australia.
So again the choice to bring the detention period to an end lay within the capacity of the family and that they could choose at any point from then on to return to their home country and so far that has not been the case.
DR OZDOWSKI: But then possibly we are returning to the argument we had the other day about whether the mother could make an informed choice, given her current state of mind.
MS McPAUL: Well, we are talking about a period now spanning 18 months and I think at very many points in that time she would have been in a position and possibly as of today to make that decision. There are other members of her family, in the extended family group with her in the centre, so it is my understanding, that she would be in a position to make such a decision.
MR WIGNEY: Just trying to bring this case study to a halt. If you can go through to page 62 of the documents, please.
MS McPAUL: Are we still looking at that particular document, Mr Wigney?
MR WIGNEY: Yes, of course. If you wish to ---
MS McPAUL: Page 46 of that particular document, the third last paragraph where the particular psychologist is saying that over the past 12 months that they had been involved in contact with this particular family. The psychologist had noted a significant improvement in global functioning and the well-being of the three children with special needs. In particular, there has been a dramatic improvement in the inter personal functioning, social skills and general well-being of two of the children.
It goes on to say towards the end that the social capacities of the children, I guess, have improved. He is saying that one of the children had previously rarely made eye contact, acknowledging a greeting or a smile or verbalise.
This child is now consistently making eye contact, actively engages in appropriate social greeting behaviours without prompting and willingly verbalises and
saying that the aforementioned behaviours, the lack of eye contact and verbalisation and so on, are common in females with - reference here is to Fragile X -but to conditions…
So I think with the point that is being made there is that there has been some active intervention with the family over a long period of time as we pointed to and the assessment of the psychologist at the centre is that there had been some improvement following that process of interaction with the children.
MR WIGNEY: Can I now just take you forward to pages 62 and 63 of the bundle. Now, you will see that there are two letters there at 62 and 63 being letters from the doctors in the employ of the East Pilbara Health Service and it would appear that that health service had been engaged at least by August 2002, that is shortly - just over two years - after they were first taken into immigration detention and I really just wanted to direct your attention to two things. Firstly, it is apparent that still at this stage, that is some two years later, there are still diagnostic steps being taken ---
MS McPAUL: Yes. That is ---
MR WIGNEY: But in relation to - sorry?
MS McPAUL: That is our understanding. There was a continual process of, as I said, eliminating various possibilities.
MR WIGNEY: There is a reference in the second of those letters, that is the one dated 5 September 2002, to one of the children who is the, I think, the son of the elder of the two sons having speech difficulties and going to a speech pathologist.
MS McPAUL: Yes.
MR WIGNEY: Now, that is the first mention that we can see of visits to a speech pathologist. Are you aware of whether any earlier steps were taken in relation to testing speech and speech difficulties and speech pathology?
MS McPAUL: I'm just checking the notes that I have here.
MR WIGNEY: You can take that on notice if you need to do.
MS McPAUL: They are notes that I have indicate - I don't know whether that is the date that you are referring to but I think it is the same child was taken to a speech pathologist appointment in September 2002. Is that - yes, that is consistent with that document. Throughout the period of 2002, it is my understanding that the children were seen by a variety of paediatricians, paediatric registrars, a renal physician at the Department of Nephrology, a paediatrician at the Princess Margaret Hospital and an audiologist in Pilbara. So there was an ongoing process of seeking advice about the particular conditions for the children throughout the course of the year.
MR WIGNEY: Now, really the final issue I want to address in relation to this case study is this, that as a general proposition there are no administrative or regulatory difficulties involved in moving a detainee, be it an adult or child detainee, from one of the immigration facilities to another. That is correct, isn't it?
MS McPAUL: Well, there are a range of considerations that need to be taken into account for the movement of detainees. Operational needs, other factors going to the access that they might need to their legal team or any other community support or networks that they may have formed around the centre where they might be. There also needs to be consideration given to the practical arrangements. It is possible at each of the centres and I guess in this particular case, there is a large family group more than just the mother and the three immediate children with disabilities.
I think we have mentioned that there is a group of seven family members. So it is a - in theory it is possible to move them. In practice, there are many considerations that would need to be taken into account to effect a move to another location.
MR WIGNEY: Operational needs. What do you mean by that?
MS McPAUL: Well, yes. I mean, whether the kind of - you know, which other centre might be best chosen for the family group. It would need to be one perhaps where there was room in a family-style accommodation unit. There are a range of things like that that would need to be worked through, depending on the configuration of other family groups at any other prospective centre.
MR WIGNEY: Access to legal team was one of the other considerations. That wasn't an issue in this case, was it?
MS McPAUL: Well, I think without knowing the day to day contact of this case, I think I was talking in general terms about some of the factors that go - that need to be considered when moving. Obviously if the people are being represented by a legal team in one location to move them unilaterally to another location, that distance from that team is something that would need to be thought through carefully because clearly we would want them to have the advice that they need to pursue their case.
MR WIGNEY: Sorry, my question was fairly specific. Did you know there to be any issue in relation to access to legal team which may have been a relevant consideration in this case?
MS McPAUL: I would need to check the specifics of that for this case and could take that on notice.
MR WIGNEY: Community support meaning what?
MS McPAUL: Well, broadly, some detainees who have been in the, detention for a period of time have built up a range of associations or connections with people from the community, either through children attending the external school, church and community groups that surround the centre who provide support to detainees from time to time. For example, there are a number of those groups and individuals who might know the family or any family or any detainee and those sorts of networks are one of the factors that we consider in any decision to relocate.
MR WIGNEY: Meaning if the detainee or detainees have built up a relationship with someone outside that they don't want to break, they might not want to leave the facility, right?
MS McPAUL: Precisely.
MR WIGNEY: In this case you know, don't you, that the mother of these children has a - has family residing in Sydney?
MS McPAUL: Yes, we are well aware of that.
MR WIGNEY: I think it is the mother's sister.
MS McPAUL: I'm not sure of the direct - the specific nature of the relationship but we are aware that there are other family members in Australia.
MR WIGNEY: You are aware, are you not, that when the Human Rights Commission first raised concerns about the treatment of this family that it was suggested that a move to Villawood, that is the detention facility in Sydney in the vicinity of this woman's family, and with other community support in the area, would be an advisable course?
MS McPAUL: I'm not aware of specifically who was making that suggestion. Was it someone to the Commission or the Commission was making that suggestion?
MR WIGNEY: Well, as I understand it, it came from the Commission - to the minister.
MS McPAUL: From?
DR OZDOWSKI: From the Commission. I wrote to the Minister asking that they be moved here closer to the family.
MS McPAUL: Okay.
MR WIGNEY: Are you aware of - well, it is obvious isn't it, that they haven't been moved to Villawood. Do you know why?
MS McPAUL: Well, the family, as I understand it, are still in Port Hedland. As for the reasons why not, I think as I've explained, there is a range of factors that would need to be considered. I understand that the minister has replied to the Commission in general terms. I think the question you are asking me whether I'm aware of specific reasons why the family has not been moved and I think the general answer to that is that we consider that appropriate arrangements are being made to the extent possible for the family where they are in Port Hedland and would not necessarily be the case that a move to another centre would automatically imply that a higher range of services would be available in the centre for that family with those disabilities.
MR WIGNEY: Well, let us deal with it this way. You indicated that community support was one of the considerations involved in deciding whether or not to move a detainee from one facility to another. It is hard to imagine what better community support there can be than having a family living in the vicinity of the detention facility. Would you agree with that as a general proposition?
MS McPAUL: Well, the family would still be in detention as I understand it in that proposition so the kinds of services available would be supplied in the same way that they have been to date.
MR WIGNEY: Port Hedland is situated far north-west of Australia.
MS McPAUL: It is.
MR WIGNEY: It is probably about the furthest point in distance in Australia away from Sydney where this woman's family resides, right?
MS McPAUL: Well, there are also family members with the mother and child in the centre and I think those family members are also providing support to the family.
MR WIGNEY: What, the daughter, the elder daughter, the one daughter that isn't disabled?
MS McPAUL: There are other male relatives with the family, as I understand.
MR WIGNEY: Do you know that?
MS McPAUL: Yes. We've already put on record that there is a group of seven in the extended family.
MR WIGNEY: It is hard to imagine, with respect to the good citizens of Port Hedland, a more isolated place in Australia, in the far north-west of Western Australia, right?
MS McPAUL: I guess there are many isolated places in Central and Western Australia.
MR WIGNEY: You would have to agree, would you not, that there are more facilities in Sydney, being the largest city in Australia, for the dealing - for dealing with disabled children and disability services than there is likely to be in Port Hedland?
MS McPAUL: Well, I think with any - as I've said with any decision about the actual placement of a family in one centre or another, there are a range of factors that need to be taken into account and I believe that that is what has happened in the case of this particular family as it would be with others.
MR WIGNEY: Well, we are trying to inquire into why. Are you able to assist us with some specifics, please, rather than saying that there is a range of considerations that need to be taken into account?
MR BROMWICH: Commissioner, with respect, this amounts really to a form of merits review of an administrative decision. My friend can put various things. The witness has indicated there are a range of considerations and the overall decision made is that it was better for the family to remain where they are. In my submission, it is simply not appropriate to be going into what amounts to a full merits review of that decision making process. Yes, it is a factor. That is a legitimate factor. That has been acknowledged but it is not the only factor.
DR OZDOWSKI: What Counsel Assisting is trying to discover is: what are the reasons for not transferring this family to another place where other family members are living, not in detention, and where most likely, better services are available for children with disability. I think the question is fair.
MR BROMWICH: Well, with respect, Commissioner, it amounts to a review of the decision, a merits review of the decision. That is not the role, with respect, of this Commission. It has been acknowledged that that is a consideration and doubtless a consideration which was taken into account but it is not the only consideration.
DR OZDOWSKI: It has got nothing to do with a review of the decision because those decisions are not reviewable by this Commission. It has got plenty to do with trying to discover how the system works. Basically therefore this example which was provided by the Department of Immigration, is being used to test the system.
MR BROMWICH: Yes, Commissioner, but it has now turned to, away from a question of care being provided, to a question of merits review as to where someone should be located.
DR OZDOWSKI: Well, I have decided to allow this line of questioning to go ahead.
MR BROMWICH: Well, with - it is obviously your call, Commissioner, but in terms of spending time on the proper focus of the Inquiry, this is a distraction. It is a merits review of an administrative decision.
DR OZDOWSKI: Sir, allow me to define what the proper course of the Inquiry is. Thank you.
MR WIGNEY: I'm not interested in reviewing the decision. I want to know what is the basis of the decision. I want to know why the decision has been made not to move these children.
MS McPAUL: Look, I wasn't directly involved in that decision but I can talk to you a little bit about some of the operational factors which were referred to earlier in relation to Villawood itself. It is my understanding that there are a very large number of people who would probably prefer to be accommodated in Villawood and that is just simply not possible. Villawood has a fairly high capacity at the moment and is primarily used for managing the compliance program, compliance pick ups from the New South Wales and to some extent Queensland jurisdictions.
So you know, there are a number of different factors there that we have to balance up in terms of questions about where individual families might be located and I'm not sure that there is very much further that I can personally add without having been directly involved in the specific decisions, if there was one taken, not to move them. I mean, there is a suggestion that a letter has been provided but whether the Department has actively turned its mind to that question at this point, I really can't say, Commissioner. I don't know how recently your letter was.
DR OZDOWSKI: Thank you.
MR WIGNEY: You are aware, are you not, that - well, the suggestion has been made to the Commission that ACM has made several attempts to involve the children in the special education in Port - unit in Port Hedland and has been advised that those children will not be granted access.
MS McPAUL: Well, to date they have not been granted but we are continuing our negotiations to hopefully achieve that access.
MR WIGNEY: Has the Department made any actual inquiries with any organisation, special education unit of any organisation in the Sydney region as to whether the children could be catered for in the Sydney area, in the vicinity of Villawood?
MS McPAUL: Not to our knowledge.
MR WIGNEY: I have no further questions on this inquiry. Perhaps Mr Bromwich may.
DR OZDOWSKI: So you have concluded questions on this particular case?
MR WIGNEY: Yes. On this case study I've got no further questions.
DR OZDOWSKI: Thank you. Mr Bromwich, anything ---
MR BROMWICH: Commissioner, the first just - I just wish to run through is the processing history, case processing history, for this particular family, then I think Ms McPaul may have a few matters that she wishes to raise from the documents. If I could deal with that first part.
DR OZDOWSKI: Yes, please do.
MR BROMWICH: Ms McPaul, I think you have got the processing history available to you.
MS McPAUL: I believe so, yes.
MR BROMWICH: I think it is the position that this family arrived on a boat in Australia in August of 2000.
MS McPAUL: Yes, that is my understanding.
MR BROMWICH: On arrival in Australia, they initially didn't raise any claims that prima facie engaged Australia's protection obligations, that is, they weren't making a claim or making claims or statements that would ordinarily give rise to a refugee claim.
DR OZDOWSKI: So this explains the long period of their separation detention?
MS McPAUL: Well, it would be one of the factors, yes.
DR OZDOWSKI: Yes.
MS McPAUL: As I understand it, a protection visa application was not lodged until February 2001.
MR BROMWICH: That primary application for a protection visa was refused in May of 2001.
MS McPAUL: Yes, as I understand it. On the 24th of May.
MR BROMWICH: There was then an appeal to the Refugee Review Tribunal?
MS McPAUL: That is correct. That was undertaken a couple of days later.
MR BROMWICH: The primary application being refused meant that the delegate of the minister found that this - the members of this family were not refugees.
MS McPAUL: That is correct.
MR BROMWICH: The Tribunal affirmed and came to the same view in November of 2001.
MS McPAUL: That is correct.
MR BROMWICH: There was an appeal to the District Court - Federal Court, sorry.
MS McPAUL: To the Federal Court at the beginning of December 2001.
MR BROMWICH: In May of 2002, the Federal Court dismissed the application for review.
MS McPAUL: Yes, that is right. That was on 10 May 2002.
MR BROMWICH: I think, Ms McPaul, there were a number of documents you were taken through in this bundle and there were some other comments you wish to make about some of those documents. Is that correct?
MS McPAUL: Yes. There were a couple of other documents that we would like to just draw the Commission's attention to in particular.
MR BROMWICH: If it is convenient, Commissioner, it is probably easiest if the witness simply goes to a particular document and makes them - the comments that she wishes to make.
DR OZDOWSKI: Yes, please. Please do so.
MS McPAUL: The page numbering that I'm referring to is in the general green folder but I will just briefly refer to a couple of documents. I think the suggestion was made earlier that there may be no case management-type plans or records that refer to case management provided with the documents and with respect I think that some of the documents that have been provided indicate that there have been plans in place and do, in fact, comment on those plans and give an outline of some of the matters that we've discussed.
The numbering is, as we know, a little bit confusing but I will see if I can work through from the beginning in a chronological way. On folios 47 and 49 of this folder that we've got here, we've got a note from the psychologist, ACM psychologist, dated the 5th of December to the Programs Manager - December 2001, which indicates some information about the cognitive functioning of the children, the processes of assessment, the kind of intervention that would be required, including parent and family based intervention services. Some issues relating to approaches to schooling and what might be possible and the need for ongoing monitoring of the family, the expectation that a case manager would be responsible and appointed and responsible for the care and management of the children and oversighting the appropriate service delivery and general management. So within the documents, there is certainly an indication at that point that activities were undertaken as we indicated. There are a number of other documents subsequent to that on folios 50 to 52 dated 23 January 2002.
There is further ACM correspondence from the psychologist to our Manager, again indicating some matters relating to the assessment of the children. Indicating, for example, that although the children's language was not as well developed as their receptive language, they nonetheless - nonetheless all three children could adequately communicate. Some assessment of their motor skills and so on. So this clearly again indicates that there had been a particular assessment of the children and appropriate action is being taken in the centre to address their needs.
I think Mr Wigney was looking for evidence provided and these are two examples, amongst others. There are several other things here. An ACM memo dated 15 February 2002, 27 March 2002 which indicates an education plan. There is information relating to the behaviour management program in some detail in the documents at folios 37(a) to 37(b) and 38 and 29 in our folder, which are dates 28 March 2002 and 2 April 2002. There is also a progress report in folios 40 to 42 which is dated 4 April 2002 and I think possibly we looked at some of the folios on 40 to 46 which is from July 2002, an ACM memo also summarising the involvement in the management of this case since November 2001.
So I believe that we did provide quite a range of documents which outlines the specific plans and actions that were being taken in the centre. Nevertheless, I'm also endeavouring to obtain a copy of the current management plans for the Commission's information.
DR OZDOWSKI: Thank you for your submission. Mr Wigney, any questions?
MR WIGNEY: No.
DR OZDOWSKI: No. So we close the case of this particular family.
MR WIGNEY: Yes.
DR OZDOWSKI: We can progress now to the second case which you intended to examine today.
MR WIGNEY: Can I just indicate again the particular interest of the Commission is on the submissions that have been made in the Department's submissions about how children with disabilities are dealt with and in particular the issue of early assessment of disabilities and early formulation of case management plans to deal with those disabilities. I think we - it is fair to say we've explored many of the issues in general terms through the first case study so I will endeavour to move through this case study as quickly as we can, having regard to time limitations.
MS McPAUL: I'm conscious of the time as well.
MR WIGNEY: I just wanted to indicate that, not to do any injustice to the importance and significance of this particular case.
MS McPAUL: Sure, I understand that.
MR WIGNEY: You will see, I think, from the Department's submissions that as I indicated earlier, two specific examples are given by the Department in its submissions about assisting disabled children and I think you will agree that this particular case study, that is case study A on the list that has been provided, is one of the examples that is given by the Department in its submissions about assisting disabled children.
MS McPAUL: Could you just refer us, please, to the page in the submission you are looking at ---
MR WIGNEY: Page 70.
MS McPAUL: --- so someone can confirm that, please? We are assuming you are correct but we just don't have a copy of the document in front of us. That is all. If someone could just show me the document and we may be able to confirm it. Thank you.
MR WIGNEY: There is a reference there to - there is a box on the page: two examples assisting disabled children and one of the examples is a management plan in place for a child who suffers from a congenital disorder and you will see there some further descriptions about it and I think it is fair to say this is that case.
MS McPAUL: Yes, we believe it is the same case. Yes.
MR WIGNEY: Now, just to deal with the broad chronology in relation to this particular family, it consists of a mother. The child with the disability that will be the subject of discussion in this case study was born in 1986 so that means that he is presently ---
MS McPAUL: So we are referring, that, as child 1 for the purposes ---
MR WIGNEY: Yes. Child 1. So he is now about 16 years old.
MS McPAUL: That is right and there are two other children in that family, an older and a younger brother.
MR WIGNEY: Yes. The situation is, as we understand it, that that family arrived in Australia at some stage in November of 2000 and were detained in the Curtin Immigration Detention Facility.
MS McPAUL: That is my understanding as well.
MR WIGNEY: Now, again we have, that is, the Commission has served a notice requiring the provision of certain documents and again the - and just to explain that the documents that are within the bundle that we are going to work through and that are paginated come from the documents that the Department has provided to the Commission but are, of course, not all of those documents.
MS McPAUL: We understand that all the documents that were available when the notice was due, which I think probably was Wednesday last week, were provided to the Commission at that time. It is my understanding that there are some further documents which may have subsequently been provided on Friday to you or earlier this week from the child's period of the child's detention at the previous centre, the Curtin centre, which has subsequently been closed.
MR WIGNEY: Yes. Sorry, you are saying that there are more documents that have been provided?
MS McPAUL: I know that they have been identified. Obviously I haven't been in the office this week to confirm whether they have been sent but my understanding is that they may have been forwarded to you last Friday. In any case, somebody is confirming exactly what has happened with that.
MR WIGNEY: Well, that may explain one thing because accepting for the present purposes that this family were detained in November 2000 in the Curtin facility, the first records really that we have in relation, that deal in any significant way with the family are dated some number - are really dated in June of 2001. So some number of months ---
MS McPAUL: June 2001.
MR WIGNEY: Yes.
MS McPAUL: Okay. So there may - yes. The family would still have been at Curtin at that point in time so it seems like the majority of the documents are certainly with you.
MR WIGNEY: Well, can I ask this? It would appear that from at least from the documents that have been provided to us, we have not been able to identify any document or any record of an assessment of the health of this family and in particular this disabled child and certainly no records of any management plan, care plan or call it what you will, plan as to how the Department or ACM ought best address the needs of this child. Sorry, at least until some time later in 2001.
MS McPAUL: As you indicated, the child is there as part of a family unit and had been in the care of its mother, or the child was in the care of the child's mother, from the time that it entered the centre. So as I think we've indicated previously we do anticipate that parents take responsibility for the parenting and care of their children as far as possible. I think I've also indicated that the process of development of management plans was an evolutionary one throughout the course of that period. So it may well be that there is no particular document headed: Case Management Plan or some other like term for that earlier period.
DR OZDOWSKI: Could I perhaps make a comment here about parenting, the responsibilities and about my experience with this particular family? I visited Curtin twice and on both occasions, I met this particular family. The first time I didn't speak to the mother. However, she was pointed out to me by other detainees as a bit of a curiosity and at that stage, I saw her pushing a pram with a child in it and having real difficulty doing it, because it was a near desert situation - there were plenty of pebbles on the ground. I took particular interest in that woman and it was early in 2001.
Because of my responsibility as a Disability Discrimination Commissioner, and I work especially in the area of accessible public premises, and clearly from what I have seen, the pram was possibly the cheapest $20 pram one could get and I was surprised that this relatively small woman was able to push that kid over these pebbles and so on. Certainly she was attracting the attention of all the other detainees, who were showing me that basically this situation was inappropriate. The second time I met her, was quite recently on my last visit to Curtin which possibly was about four months ago. I would need to check it.
At that stage, she had decided to take a carer for the child and she simply explained that she had been doing it for one and a half years and she was now mentally and physically exhausted and she couldn't do it any longer and we had quite a detailed interview which we recorded for the purposes of this Inquiry. So just to put that into context. I met that woman and spoke to her. I also spoke to both her healthy children, the older boy and the young boy. So maybe I will leave it at that. I will now ask my Commissioner Assisting to take the chair for a few minutes because I've got something else I need to do. So if Professor Thomas could assume the chair for a short period of time.
MS McPAUL: Sure. The Commission might be interested to know some further information in relation to the equipment that is available to this particular mother and child. As I understand it, the family was moved to the new Baxter Immigration Detention Facility when it opened earlier this year, in around September I understand. At the Baxter facility we have the capacity to provide particular accommodation units that are designed for people with disabilities. These units include wheelchair access and particular configurations in the units themselves that are more suitable for people for use with people with disabilities who may have equipment that they need to use in the accommodation unit.
I understand that in May this year, some time well prior to that but while the family was still at the Curtin centre, there was a number of pieces of equipment purchased to assist with the care of this child, including a wheelchair, a mobile shower commode, a custom-made tilting bed and a home-care lifter or hoist with a sling and I believe that these pieces of equipment significantly assisted in the mobility, manoeuvrability for the child. I've personally seen some photographs of the child using this equipment.
It is my understanding that the facilities at Baxter where the child is now accommodated with his mother and siblings is better suited to meeting the needs of his particular condition in that disabled unit.
MR WIGNEY: Yes. I just want to explore for the present purposes and as briefly as possible the conditions that this child was in prior to the move to Baxter because we haven't had the opportunity to consider the conditions in Baxter now but the fact is that this child remained in the Curtin Detention Facility for the better part of two years before being moved to Baxter.
MS McPAUL: Yes. Baxter was - that is right. I mean, the Department had been working for some considerable period of time to construct a more suitable facility for families and for people with disabilities at Baxter and we felt that it was appropriate for the family to stay together in the other centre until such time as it was possible to effect the move to facilities that were better suited to their particular needs.
MR WIGNEY: So they stayed in - they stayed in Curtin for two years?
MS McPAUL: Up until the time that they were moved to Baxter which was, as I understand it, some time in September this year.
MR WIGNEY: Just less than two years then and of course, as I think we've explored earlier, there was nothing to stop the Department from moving this family to one of the other detention facilities. You didn't have to wait until Baxter was commissioned, did you?
MR BROMWICH: Well, I object to the question insofar as it is loaded with the 'nothing to stop' when we've already had a considerable body of evidence to suggest that,… 'nothing to stop' suggests that it is a one dimensional issue and it is not.
MR WIGNEY: I will rephrase the question. There was nothing in - there is nothing in the Migration Regulations, nothing in the Migration Act or in any other instrument preventing the minister or officer of the Department from deciding to move a detainee from one facility to another.
MS McPAUL: I think the situation with this particular family group, as with the other family with disability - disabilities - that we've already discussed, is that very careful consideration needs to be given to changing the arrangements that might be in place and while we accept that the process of providing services and management plans to these individual families has improved over time, one of the features to provide successful management of these cases is to enable the families to live in an environment that is familiar, that is understood by the children and disruption through moves that might be operationally convenient to the Department from one compound or one centre to another would need to be carefully weighed up against the effects that that might have on the children themselves.
So you know, it is not just a simple thing to suggest that we could easily simply move these people around at our convenience. I think there is a range of factors that have to take into account the circumstances of the families and their preferences and management strategies as well.
MR WIGNEY: You say, do you, that the Department carefully considered all of those matters that you have just referred to in that long answer in deciding not to move this family from the Curtin facility until September of this year?
MS McPAUL: Well look, I think the Department, as I said, was doing its best to continually improve the facilities and services available to the child in its location at Curtin. We had, as with the other family, sought advice from external health services in relation to the provision of care so there was an ongoing process designed to provide what we felt to be adequate care for the child at the centre.
MR WIGNEY: I see. Well, that is what we will explore as we go through these documents but just before we come to them, you also refer to the fact that prior to the move to Baxter, some equipment was purchased and I think you used the date May of this year. That is a date some 18 months after this child first was detained. Right?
MS McPAUL: The specialist equipment that we refer to, I think, as I said, was purchased in May. I believe there was an earlier time at which a stroller had been purchased - a new stroller had been purchased for the child back in May 2001.
MR WIGNEY: I see. Well, what I wanted - one of the things - the reason I asked the question is one of the things I want to explore with you is how it came to be that it took the Department some 18 months to purchase some of this special equipment but we will come to that as we go through the documents. One other preliminary matter that I want to take up with you in relation to an answer you gave shortly before, this child, I think you would agree, and you have seen photographs, is profoundly disabled, is he not?
MS McPAUL: As I understand it, the child has cerebral palsy.
MR WIGNEY: He is effectively unable to walk unaided and unable to carry out many other ordinary functions unassisted at all.
MS McPAUL: As I understand it, he has difficulty with managing his individual care, personal care, toileting and so on.
MR WIGNEY: That disability would have been obvious, would it not, to any officer of the Department or ACM when this child was first taken into detention back in November of 2000?
MS McPAUL: Quite possibly, yes.
MR WIGNEY: Do you suggest, do you, that the fact that this child came into detention with his mother absolved the Department from performing detailed and thorough assessment of the child's disabilities and from formulating a detailed and comprehensive plan for the care of this child?
MS McPAUL: I'm not suggesting anything of the sort. All I'm - what I was saying is that notwithstanding the Department's duty of care, which extends to all detainees including the members of this family, the child did arrive with its mother and - the child arrived with his mother and there were obviously a competent adult able to take care of the day to day needs of the child in question.
MR WIGNEY: Was the child assessed by competent medical officers with relevant expertise with a view to assessing the nature and extent of his disabilities when he was, to use the Department's word "inducted" into the Curtin Detention Centre in November of 2000?
MS McPAUL: As I understand it, the child did receive medical screening at the time he came to the facility. I understand that very shortly after that time, in the following month, a senior physiotherapist from the Derby Health Service was consulted in relation to the child. In addition to that commencing at the beginning of 2001, on 17 January 2001, there was an occupational therapy assessment made by a senior occupational therapist at the Derby Health Service and that this then continued twice weekly following that time.
In relation to the mother of the family, she was provided with counselling and some advice from a psychologist in relation to parenting strategies in caring for the child. There was also further medical, specific medical assessment, as I understand it, undertaken in August 2001 in relation to a number of members of the family. Then in 2002, there is a large number of details that I have here in relation to the child's ongoing assessment.
A paediatric nurse saw the child weekly from the beginning of 2002. Further psychological assessments were conducted for the child in March 2002 and a primary carer was appointed when it became clear that his mother was not willing to continue to care for the child in the centre. Again, a few days later a further psychological assessment of the child. Further assistance to the mother of the child over a number of weeks for a range of support services and further occupational therapy and physiotherapy, including stretching programs and standing in movement programs were put in place for the child back in April of this year.
As I said, we also purchased or had purchased the equipment that I made reference to earlier. The child has also been to a speech pathologist, a paediatrician on a number of occasions, an occupational therapist, a physiotherapist and since the move to Port Augusta, to the Baxter Immigration Detention Facility there, we've also been in contact with the paediatric unit who is providing support to the carers of the child at the centre. The child also underwent a CT scan and an EG assessment, as I understand it, towards the end of September this year, after the move to Baxter.
DR OZDOWSKI: Thank you, Professor Thomas, for chairing in my absence.
MR WIGNEY: Now, is that your full chronology of the medical interventions, to use your phrase, and treatments given to this child throughout the entire course of his detention, at least up until the present time?
MS McPAUL: Well, it is a summary of the key features which has been provided to me for the purposes of informing the Commission. I think what it shows is that there has been, particularly in the period when the child's mother indicated she was no longer willing to care for him, a very substantial process of ensuring that the disabilities of the child were able to be managed within the centre.
MR WIGNEY: I'm going to take up with you in due course the contention or suggestion you've just made now twice about the mother not being willing - about the mother not being willing to care for this child. I will come back to that in due course but is there anything else, lest I be accused of unfairness, you want to say about the medical treatment throughout the entire time that this child has been in detention?
MS McPAUL: Well, I think I've indicated that throughout the course of the child's period in detention, there has been an ongoing process of consultation with expert professionals in the local health services and the advice from those professionals has been incorporated into the care arrangements for the child in the centre.
MR WIGNEY: Do you say that the special needs of this child throughout the entire period that he has been in detention since November 2000, do you say that those special needs have been adequately provided and dealt with and addressed by the Department?
MS McPAUL: I'm just checking something here. I think the point that I made at the outset of the discussion around children with disabilities is that the Department's and the services provider's capacity to respond to the needs of these particular children has evolved over time. I think the summary of the care record that I've just put on the record here today indicates that there has been an ongoing process, seeking to address different aspects of this child's disability, whether it be physiotherapy or occupational therapy of some kind or other interventions, including being seen by a paediatrician.
I think certainly now with the facilities at Baxter that I referred to earlier and the arrangements that are available to be in place there in the disabled accommodation unit, are certainly meeting the current needs of the child as I understand it.
MR WIGNEY: Do you, as a senior officer of the Department, or either of your colleagues that are presently giving witness, say that the special needs of this child with profound disabilities have been adequately met and dealt with by the Department throughout the entire time that this child has been in detention since November of 2000? Can you please answer that question?
MS McPAUL: Well, I think - I think I have answered that question which is to say that we acknowledge that it has been a process of continuous improvement in terms of the facilities that have been available to the child throughout the course of the time that they've been there.
MR WIGNEY: Ms McPaul, I can ask the question another time but I just like to ask you to answer it, please. Do you say that the special needs of this child have been adequately provided for and dealt with by the Department throughout the entire time that this child has been in detention since November 2000?
MS McPAUL: Well, I think ---
MR BROMWICH: I object to the continuing questions along this line. The witness has answered to the best of her ability. This is clearly in the nature of an ambush question whereby you put a broad proposition, you then go through a pile of documents, you find some word or some indication that on a particular day or date there was some difficulty and conclude the general proposition is therefore false. It is not a useful process
MR WIGNEY: That is a basis for a judgment, is it?
MR BROMWICH: It is not a useful process to go through. The witness has answered. She is not the carer on the ground. She is answering as best she can on the information she has available to her. Short of having every person who has dealt with this child at every point in time, it is just not a useful question to be asking.
MR WIGNEY: I ask that there be a direction that the witness answer it.
DR OZDOWSKI: My view is, and I'm willing to be corrected on it, when I was first at Curtin Detention Centre and I met the mother and the child, there was basically no special provision for the needs of that child in place. It is what my considered view is at the moment. Basically what I'm giving to the Department, via Counsel Assisting, is an opportunity to put arguments so I might consider changing my view when I come to the final Report, which will ultimately be laid before Parliament.
MR BROMWICH: Well, Commissioner, you have come to a broad view. What the Counsel Assisting is doing is inviting the witness to express a global contrary prior view for no apparent useful purpose. He intends, presumably, to go to individual instances and point to particular shortcomings.
DR OZDOWSKI: I think ---
MS McPAUL: I - sorry, Commissioner.
DR OZDOWSKI: Yes, please go ahead.
MS McPAUL: I was simply going to say that I understand that the minister has also written back to you recently in relation to some of the questions that you have raised particularly about this case and indicated here that as I've said as well, the Department has sought to continually improve services and facilities available to people in detention. I understand that the level of support available to this child we are talking about and his family have improved over time and that the family has recently been moved to Baxter, as I've said, where the facility is well equipped to cater for the child.
Now, I think we are acknowledging here that there was a need for improvement and that that occurred. I'm really not sure what else I can say in answer to the counsel's question.
DR OZDOWSKI: I'm fully acknowledging that the Department improved its practices over time. What I've seen some time ago and what I see now, are two different things. I don't have a quarrel with that. Basically your response to the earlier question is that you improved, and I take it the issue is you improved from where my view is, that you improved from possibly close to zero, to something further. But I'm still asking you to challenge my earlier view so I can consider any additional evidence you may have on this issue.
MS McPAUL: Well, you may have been out of the room, Commissioner, when I did list quite extensive interactions and advice that had been sought from a range of health care professionals throughout the period - while the child was at Curtin. I personally believe that the Department was taking active steps to put in place appropriate care. Whether you form a different view about whether the actual care arrangements were, in your opinion, satisfactory is, I think, a matter for you. From where I sit, we were certainly working to do the best we could with what was available.
DR OZDOWSKI: Yes. I will read this particular part of the transcript with great care in finally considering this issue. Now I think we can move on.
MR WIGNEY: Yes. One more - let me ask you this. Do you think that the conditions in which this child has been detained since November of 2000 have been such as to ensure that he has enjoyed a full and decent life in conditions which have ensured his dignity, promoted his self-reliance and facilitated his active participation in the community?
MS McPAUL: Look, I think to the fullest extent possible under the circumstances, that has been the case.
MR WIGNEY: Okay. Let us move on. Now, as I said, we just want to explore some of the conditions that this child was in during his time in the Curtin Detention Facility. As I said, we have no records whatsoever of any medical assessment or any case plan until at the very least some time in 2001. Do you say that such documents exist?
MS McPAUL: In relation to a case plan earlier than that, I'm not sure that is what I said. I think I said that processes occurred? Around the child and advice was being sought. It is my understanding that a formal case management plan for the child - for the family, I guess, and for the child -was put in place early in 2002 and reviewed progressively on a very regular basis since that time.
MR WIGNEY: Are there any medical records, be they records of assessments, progress notes, memoranda, doctors' reports, anything that provides a record of any medical intervention or treatment or suggestion in the period from November 2000 up until say, for the present purposes, July or August of 2001?
MS McPAUL: From the time of the arrival in the centre until August?
MR WIGNEY: Mid-2001.
MS McPAUL: Mid-2001.
MR WIGNEY: Say six months or so later.
MS McPAUL: Just give me a moment. I'll check and see if there is anything that I'm aware of that we've directly provided. Again there is an extensive amount of documentation that has been provided on this child. There may well be within that some indication of records of the consultations made with external providers and some of the arrangements placed in the centre. As I said, the child was in the care of his mother for the better part of that time and my understanding is that it was early in 2002, as I've previously said, that a detailed case management plan was put in place for all members of the family.
MR RUSHTON: Commissioner, I might be able to assist the Inquiry. I understand on my instructions that there were various medical assessments beginning from 3 November 2000. I don't have the documents presently here but if we can take them on notice, perhaps we could ---
DR OZDOWSKI: It would be helpful if you could.
MR RUSHTON: Yes.
MR WIGNEY: Well, I can indicate that from the documents that have been produced to us by the Department, there is not a single medical report or a note or anything of that sort recording any assessment whatsoever of this child in the period up until June of 2001. Now, we would very much like to see such records as exist throughout the period. So if there are any, could you please take that on notice and produce them.
MS McPAUL: Sure. As I think I indicated at the outset, there was another bundle of documents being provided to you. I'm not sure whether that got to you on Friday or during the course of the week but I would also say that the scope of the Notice 5 in relation to this child, again as with the other one, indicated that they were documents actually in the custody of the Department. There may well be other documents pertaining to this child's medical records that are not directly in the custody of the Department and may be able to be provided to the Commission.
MR BROMWICH: Commissioner, if I could assist, I understand something like 1700 folios of documents have been provided in relation to this family.
MR WIGNEY: And we've been through them all.
MR BROMWICH: Well, I'm just not sure whether we're on cross-purposes at all. You have been through all 1700 pages?
DR OZDOWSKI: Yes, very much so.
MR WIGNEY: And I see that your officers are going through it now, so, presumably if there is anything in there that you want to direct our attention to you will be able to do so in the course of the day.
MR BROMWICH: We will try to. Part of the reason why we asked to be advised which documents you would be referring to was so that we could assist.
MR WIGNEY: It's part of the reason that we put you on notice of this case study so that you could assist the Commission in this Inquiry.
MR BROMWICH: 4 o'clock Wednesday of last week, Mr Wigney, 4 o'clock Wednesday of last week, two working days before the Inquiry was commencing.
DR OZDOWSKI: You chose that case as a part of the Department's submission, you did it now almost a year ago, when their submission was provided.
MR BROMWICH: In May of 2002 there was a reference in one small portion of a lengthy document. Two clear working days before an Inquiry we're told that there's going to be questions on a particular family. One of those families alone is 1700 folios of documents. There's just a logistical exercise in being able to get on top of that sort of volume of material amongst the, I think, 47 or 48 lever arch folders of documents that have been provided.
DR OZDOWSKI: I think this kind of argument leads nowhere and we also have limited time and we also have to read all the documents.
MR BROMWICH: I was responding to comment by Mr Wigney.
MR WIGNEY: Let us move forward. Can I pick up one point that you have commented on twice about the willingness or otherwise of the mother to care for this child. You have already agreed, haven't you, that it is fundamentally important to provide adequate support and assistance to the parents of disabled children. Right?
MS McPAUL: I think I agreed it was important to recognise that parents play a role in the management of their children in detention facilities and that in particular for families with disabilities - children with disabilities it was important to ensure that they were supported, yes.
MR WIGNEY: I don't think anyone in this room would disagree with the proposition that the parent of a disabled child has a role to play in the care and nourishment. My question is you agree, don't you, that a parent in such a position, in particular when the child is profoundly disabled, provides - requires significant support and assistance right?
MS McPAUL: I think so, yes.
MR WIGNEY: That would be the case if the parent was in the broader general community. It would be even more so when the parent is a detention environment such as Curtin, right?
MS McPAUL: Well, I think in either case there was a need for support but not perhaps in a detention facility even more so than in the community. There are support services available on a daily basis that could be used to assist the family whereas in the community the parent might well be fairly isolated and not have access to others in the same way that there could be in the detention environment.
MR WIGNEY: The Commissioner has referred in discussion at the commencement of our consideration of this case though, to the fact that he observed this - the mother of this child pushing the child in a pram, in conditions hardly conducive to the pushing of a pram. Are you able to show us a single document amongst the material relating to this family which suggests that the mother was provided with any support whatsoever in relation to her care of this disabled child?
MS McPAUL: As I understand it, on 7 February 2001, the ACM counsellor began counselling processes with the mother of this family and there was ongoing counselling support provided. I also understand that on 22 May 2001 there was also a meeting, I think, with the psychologist in which, as I think I mentioned earlier, parenting strategies were discussed with the mother of the child. On the 4th of April this year, there was also a referral made for the mother. However, she declined to take advantage of that offer and of ongoing care in relation to the health and welfare that was provided from the centre.
So I think that there has been support provided to the family over time. As I mentioned, the ongoing counselling that started back in 2001. So that support from welfare staff members within the centre and as we've said, we've also been seeking advice from external specialists in relation to the conditions for the children and no doubt that information would be passed on to the mother of the child as well.
DR OZDOWSKI: Can I ask you: was any equipment purchased to look after the special needs of the child soon after his arrival in Curtin Detention Centre?
MS McPAUL: I made some reference to that effect, Commissioner, when you were out of the room. It - there was a stroller bought which may have been the one you saw, I don't know, earlier on and a range of specialist equipment provided at the beginning of 2002 including the wheelchair, a lift hoist and some other items.
DR OZDOWSKI: This stroller, this was the one I saw when I was first there?
MS McPAUL: I don't know for sure.
DR OZDOWSKI: How much was spent on it, would you know?
MS McPAUL: I'd have to take ---
DR OZDOWSKI: What I saw was very basic.
MS McPAUL: It may well have been, Commissioner. I haven't personally seen that piece of equipment.
DR OZDOWSKI: Thank you.
MR WIGNEY: My question was directed to the support given to the mother of the child. You have referred to three things. Some counselling in February of 2001. That is some months after the family was first detained ---
MS McPAUL: That was ongoing counselling from that time.
MR WIGNEY: Commencing in February, right?
MS McPAUL: As I understand it.
MR WIGNEY: You referred to the fact that in May, a psychologist discussed with her parenting strategies. Right?
MS McPAUL: That is my understanding, yes.
MR WIGNEY: I think the third thing you referred to was April 2002 the fact that the mother - there was some referral by the mother. That was rather like shutting the barn door after the horse has bolted, wasn't it?
MS McPAUL: Well, I think we've just illustrated that there had been ongoing counselling support provided to the mother for the period from the beginning of 2001. I think we've acknowledged here today that the mother - the mother's personal health has varied over time and ---
MR WIGNEY: Is that the sum total of the support and assistance provided to the parents that you were able to refer the Commission to - the parent, I'm sorry?
MS McPAUL: As I said, there was ongoing counselling provided, as I understand it, from the very early period in 2001. Again, this family, as did some of the others, had been in detention for quite a period of time after their initial application had been determined by the Department. As I understand it, on 8 January 2001, the Department made a decision that the family did not meet the criteria for grant of refugee status or temporary protection visas in Australia. Again, I guess the implications that the Department could have done something about the length of time that the people may have been in detention, the contention that I'm putting for this family, as for the others, is that it was certainly within their scope or their control to make a decision to be part of Australia from very early on in the piece.
MR WIGNEY: I don't want to go over territory that we've ---
MS McPAUL: It was - you know, less than a year after their arrival.
MR WIGNEY: I don't want to go over territory that we've already gone over but ---
MS McPAUL: You might like also to refer to folio, I think it is 156 which relates to, it's our number, okay, it is a report dated 7 February 2001 from the ACM Curtin IRPC counsellor in relation to the mother saying that I have been counselling the mother since she arrived in the detention centre in November 2000, giving some details of her personal mental health situation. So I think that confirms the information that I've provided to you that there was an ongoing process of support to her and attempts made to ensure that her mental health was as good as it could be under the circumstances.
MR WIGNEY: Now, that report that you had just referred to is a three paragraph report and it concerns counselling in relation to post-traumatic stress disorder and as you indicated some anxieties relating to other experiences ---
MS McPAUL: That is right.
MR WIGNEY: --- relevant to this woman. It mentions nothing about counselling or support about looking after this disabled child, does it?
MS McPAUL: Well, I think it provides - it says that it provided counselling to the mother of the family from an early period. I think it would be hard to imagine that a professional counsellor and psychologist would not explore the entire family circumstances with the mother and a range of issues which no doubt are intersecting in her particular circumstances and care needs.
MR WIGNEY: Perhaps it would have put the Department on notice, would it not, that maybe this - the psychological health of this woman, even as early as February 2001, was such that she may have difficulties looking after and nourishing this disabled child of hers?
MS McPAUL: Well, I think that we've already acknowledged that the Department and ACM were aware of the need to provide support to the mother and that that was happening.
MR WIGNEY: Well, that is the first incident you refer to in the three things that were done. The ongoing counselling and this report, as I said, makes no specific reference to counselling about how she ought parent this disabled child. Have you got a document relevant to the other reference, the 27 May 2001? Perhaps we will just move
MS McPAUL: No, not to hand just at the moment but it may well be within the documents provided.
MR WIGNEY: Can I read you a passage, please, while we are on the topic of the mother, from page 18 of the bundle which is somewhat out of chronological order but
MS McPAUL: Sorry, Mr Wigney, there is another document here that I can draw the Commission's attention to in relation to that matter.
MR WIGNEY: Thank you.
MS McPAUL: I have a document on ACM letterhead dated 27 February 2001. This document indicates ---
DR OZDOWSKI: Is it numbered, this document ---
MS McPAUL: Well, it has our folio number on it. It is our set of folders.
DR OZDOWSKI: Thank you.
MR WIGNEY: Can you tell us what folio number it is, please?
MS McPAUL: On our folders?
MR WIGNEY: Yes.
MS McPAUL: I believe it is 183 to 186 but it is not your set of folders number. It is actually out of our documents. Yes, they've been provided previously. Well, I don't know whether they are folioed in your version. It is 183 to 186. They may well be folioed.
MR WIGNEY: Sorry, we will look for it and you continue with your answer, please.
MS McPAUL: I think we were talking in particular about the support provided to the mother and whether there was any confirmation of the suggestion or of the view that I put that the mother had been provided with support for the time that she had been in the centre. This ACM document on page 185, which is the third page of the particular document, in the first box at the bottom of that box indicates that the mother had been supported through the medical and welfare Departments since her arrival at the centre.
Indeed, that the - in the second box there - that there had been liaison with the Derby Hospital Occupational Therapy Department regarding the ongoing treatment program for the child in question and I think that that there is further evidence that ---
MR WIGNEY: This is a document dated 27 February of 2001?
MS McPAUL: Yes, it is. So I think that is evidence that there had been, since the period that the family came into the centre in 2000 and ongoing, as I've said, a variety of support provided to the mother as well as to the child.
MR WIGNEY: Can I just refer you to one document, please, which is a document at page 18 of our bundle.
MS McPAUL: I love this numbering system.
MR WIGNEY: 18.
MS McPAUL: Can you tell me what is on your document?
MR WIGNEY: Bottom right hand corner there should be the number 18.
MS McPAUL: Bottom right hand corner?
MR WIGNEY: Yes. Now, this is a letter dated 7 June 2002 authored by someone in the detention operations division of the Department, somewhere in central office.
DR OZDOWSKI: It is a minute actually.
MR WIGNEY: It is a minute. I'm sorry. I just wanted to direct your attention to the paragraph at the foot of the page.
MS McPAUL: Yes.
MR WIGNEY: It says, the second or third sentence in that paragraph reads:
A psychiatric assessment of the mother conducted in April 2002 concluded that the mother should not be considered as having abandoned her son but rather as a parent requiring respite care.
See that?
MS McPAUL: Yes, that is - yes.
MR WIGNEY: I will come, when I can find it in due course, to the actual report but the point is that the medical assessments of the mother make it clear, do they not, that the reason that she ultimately said that she was no longer willing to care for her son, as you put it, was because she was simply unable to physically and mentally care for her son.
MS McPAUL: I think the document is saying in that particular paragraph that there was a view that she may need respite care which I think any mother in the circumstances of looking after a severely disabled child may need from time to time. The document does also say in paragraph 2 that in March 2002, the mother of this child refused to assume the primary responsibility for the child and that the mother's action had resulted in a strained and estranged relationship with her two other children and as a result, some of the members of the family unit are no longer wishing to reside together as part of that unit.
So there was obviously a range of issues there and I think also since, this document says that since March 2002, ACM had assumed the complete care for the child in question and that the child was currently being accommodated in a recently modified residential unit in close proximity to the medical centre where 24 hour care was being provided by two registered nurses with the patient care assistant providing back up. It was also being reported that the child had made good progress and that his posture and muscle tone had continued to improve.
MR WIGNEY: Yes, we will come to that. I've now found the psychiatric report of the mother. Go, please, to page 39. That is a psychiatric report dated 13 April 2002 by a - you will see, a professor with significant qualifications in relation to psychiatry. I want to take you to some - it is an assessment of the mother. If you go over
MR BROMWICH: In terms of the last questions, I would ask my friend to refer to the bottom of the first page first.
MR WIGNEY: Thank you so much, Mr Bromwich. Can we go over, please, to the middle of the second page of this document.
MS McPAUL: Well, perhaps I could draw your attention then to that particular paragraph which does say that in this assessment that
recently the mother of the child had refused to care for her 15-year old son who is severely handicapped and it has to date proved impossible to persuade her to take over this care in the way that she had previously managed.
MR WIGNEY: Yes, but the balance of the report and the passages I was going to take you to was to explain how that came to be. If you go over to - in some detail. If you go over to the second page of the document, four paragraphs down:
Recently she started to feel psychologically tired. When asked to explain this, she found it difficult but agreed that it contained elements of depression, stress, a feeling of wanting to give up and general unhappiness. It is this state of feeling that has led her to refuse to look after the child who requires 24 hours supervision. She insisted that she loves him -
and then refers to some notes below -
but felt that he is getting bigger and that she would need assistance to care for him. Wherever she was she feels he will ultimately need to be looked after in a special setting and come home to her two or three days per week.
Then if one - I'm sorry, you want to something?
MS McPAUL: I was going to say yes. Look, in that context I think we've already put on the record that the child at this stage was, as I understand it, living in some specially modified facilities at the Curtin centre.
MR WIGNEY: Go over to the last page - I'm sorry, to page 42 of the bundle. There was some further notes in relation to this professor's medical examination of this mother. Five dot points down:
She does retain her love and concern for the son and does not want to abandon him. At no point did she give any evidence that she was using her situation to persuade the authorities in her favour but this cannot be excluded.
MS McPAUL: I don't think that the Department is in any way suggesting that in what I've said today. I've not at any point questioned her particular attachment to her child or suggested any motive whatsoever for what I understand to be the facts of the case.
MR WIGNEY: Then if you go over to page 43, there is a reference to management. In the first dot point:
Mother should not be regarded as abandoning or bad. She should be seen as any person in the community who has a difficult handicapped child and needs respite.
MS McPAUL: Well, I think I've already acknowledged and I think put before the Commission here today that clearly any mother in this situation may, from time to time, need respite care whether in detention or elsewhere.
MR WIGNEY: Well, can I just perhaps deal with this in short form and give you the opportunity to comment. I suggest to you from - at least from all of the materials that we have seen in relation to the services provided to the mother in terms of assisting her care for this child, it has been woefully inadequate. What is your ---
MS McPAUL: No, I don't agree with that, Mr Wigney. I think I've previously explained that the Department has continually since the period that the mother has entered the centre provided her with counselling and support from medical and welfare officers in the centre and externally. We've drawn your attention to various documents today which also support that view.
MR WIGNEY: I will try and move through these documents as quickly as possible. I'm not going to refer to all of them in the event that that is commented upon later. If you just bear with me, I will try and find those that are worth referring to.
MS McPAUL: All right. Commissioner, can I just be excused just for 2 minutes for a comfort stop?
MR WIGNEY: Of course.
DR OZDOWSKI: Of course.
SHORT BREAK [11.58am]
RESUME 12.03pm]DR OZDOWSKI: Okay. Are we ready to resume?
MS McPAUL: Yes, thank you, Commissioner.
DR OZDOWSKI: Mr Wigney.
MR WIGNEY: I will start talking about 1991 again if you are not careful. I'm not going to take you to all of the documents and we will try and move through this fairly quickly. Now, the next document I wanted to - a document I wanted to take you to ---
MS McPAUL: Are we - sorry, just before we move on. Are we - are you planning to ask further questions in relation to the support to the mother or move on to another topic?
MR WIGNEY: I'm moving on to another topic but if you want to say anything else ---
MS McPAUL: All right. Before we - yes, could I, please. Just before we move on, I think you were also, as I understand it just before the short break, inquiring as to how far back and what dimensions there were to the support being provided to the mother in this family. I have a document here which appears to be some case notes for a member of that family dated 7.3.2001. There is some other details on the top of that document relating to the date of birth and one of the other - the mother's name.
The particular item that I wanted to draw the Commission's attention to was, as I said, dated 7 March 2001. There is a note here, if I can read it all. It says there was a meeting with the mother along with an interpreter and a welfare officer and the author of this document, who is the counsellor, to discuss the proposed strategy for the family. There was agreement reached that the mother will ensure that the educational needs of the three children are met. They will participate in the occupational therapy program as recommended and stipulated by the medical clinic, participate in the parenting education program as per a particular doctor's recommendation through the medical clinic and liaise with the welfare department in collaboration with a designated nurse regarding the equipment needs and upkeep for the child in question. There is a reference there to looking at the attached management strategy which I'm not sure is in this particular set of documents just passed to me. There are also arrangements being put in place for the children to attend an outing today with officers of the centre to provide some time out for the mother and to give some enjoyment and stimulation to the children.
So that was back in March 2001 and I think again that shows that there were a number of centre staff working actively with the mother and the family as a whole to provide a strategy for their support and respite for the mother.
MR WIGNEY: Thank you. Now, obviously can you take this question on notice so that we don't take up too much more time but - and I don't want to cause those that are assisting you too much stress but of course in the fullness of time, we welcome you to go through the documents and draw our attention in particular to any other documents ---
MS McPAUL: We may be able to do that out of - at the conclusion of the hearings.
MR WIGNEY: Yes, out of hearing time.
MS McPAUL: We may be able to draw your attention to particular items prior to the finalisation of the report.
MR WIGNEY: Thank you.
MS McPAUL: Yes.
MR WIGNEY: Now, with that in mind, let us move on and it would appear that perhaps the best way to deal with it is to put you on notice and you can either provide us with a report or just simply direct our attention or provide us with further copies of specific documents that you want to draw our attention to.
MS McPAUL: Okay. Thank you.
MR WIGNEY: Now, I wanted to draw your attention to a document - sorry, it was a document that was only part of which was contained in the bundle given to you and I want to make sure that you have the full copy of it. I will just have it handed out. Now, that document that you are just being handed is a three page document. It is detainee management - ACM detainee management strategies document dated 2 April 2002 and it marries up with, hopefully, page 1 of the bundle that you have been given which is just, I think, the attachment to that management strategies document.
MS McPAUL: I see. Yes.
MR WIGNEY: Now, it is a document that contains in particular in the attachment some plans of sorts in relation to the management of this disabled child and in particular it refers to being housed temporarily - sorry, I'm going to page 1 of the bundle now.
MS McPAUL: Page 1 of the bundle?
MR WIGNEY: Yes, which is the actual attachment which contains the plan. In the third box down there is proposed placement and the child is to be housed in the donga located at the back of medical centre which is being upgraded to suit his needs and then in the next box, there is a reference to the fact that the mother is refusing - refuses to continue caring for him and in the following dot points, there is a suggestion that Family and Children's Services has now been contacted. Now, it would appear that - well, at least from our examination of the documents that have been provided to the Commission, this is the first document that appears to contain any detailed plan or strategy as to the management of this disabled child.
Now, if there are any other documents setting out a plan prior to this date, that is the 2nd of April, can you take it on notice that we would rather like to see it?
MS McPAUL: All right. Look, I think we've already agreed that we might do that and I think I've already stated that it is my understanding that it is around this time that the first comprehensive plan that dealt with ACM's responsibility at that point to care for the child, given the changed circumstances of the mother's capacity to do so, came into effect.
MR WIGNEY: That is right. It would appear, I would suggest, that the first time that a detailed plan was put together in relation to the management of this child was when the mother indicated that she was no longer able to look after the child.
MS McPAUL: Well, there may have been, as you said, something prior but this is the first detailed one that, as I understand, relates particularly to the responsibility that ACM had assumed when the mother no longer was able to take care of the child in the way that she had been previously.
MR WIGNEY: That is some 18 months after they - the child was first detained under the Migration Act.
MS McPAUL: Approximately, yes.
MS GREAVES: But we've taken on notice that we look to see that there are management plans ---
MS McPAUL: Any other things in the documents.
MR WIGNEY: Thank you.
MS GREAVES: --- or management strategies as indicated by the previous documents.
MR WIGNEY: Thank you. Now, just trying desperately to finish this by 12.30, can I take you next to page 11 of the bundle which compromises some case notes from the Department for Community Development of the State of Western Australia and it would appear that at this time, or some time before it, shortly before it, the relevant authorities or bodies in the State of Western Australia were contacted in relation to the care for this child.
MS McPAUL: I'm sorry, you were saying that we - that the document refers to ---
MR WIGNEY: This would appear to be at least from the documents we've seen to be the first indication of any active involvement by the relevant state authorities.
MS McPAUL: I think to put it in context it was at this point that it became clear that for whatever reason, the mother was not able or prepared or capable of looking after the child as she had done in the past. One of the options that was being explored at that time was whether there were any possibilities for placement of this child in an appropriate foster arrangement in the community with the support of the local community child welfare department.
I think one of the difficulties that we found here and again in South Australia in relation to this child is that while there may be foster care carers available for children without disabilities, it is extremely difficult to find an appropriate placement or carer willing to take on the responsibility of looking after a disabled child. The Department has certainly been active in working with the authorities, as Mr Wigney is pointing out here, from this point when it became evident that the mother may not be able to look after the child she had in the past.
Certainly, it is my understanding that the same sorts of discussions have occurred following the move to Baxter because it would be, in this case, obviously a desirable outcome and the Department continues to explore whether that is a possible option.
MR WIGNEY: I just want to take you to a couple of the recommendations from the author of this document who would appear to be a social worker employed by the Department for Community Development. Now, please feel free to refer to any other recommendations that you wish to but I wanted to take you to the third dot point which suggests that the family remain together and the next dot point: DIMIA to follow up whether Disability Services Commissioner could assist in planning and assessment of the child's needs.
Now, just picking up on that point, it would appear that prior to this date, that is prior to March of 2002, the Department had not contacted the Disability Services Commission, that being a state body looking after the services for disabled people in Western Australia.
MS McPAUL: I would not be certain that the Department had not contacted that body previously at all in relation to this case but I think it is true that it is the first time that the Department probably, given the changed circumstances of the family in the centre, were seriously looking for other possibilities for the care of the child in some kind of a supported community arrangement.
MR WIGNEY: Now, next to that notation, at least on our copy of the document, is some handwritten notes saying ACM can initiate this. Now, I want to come shortly to a slightly different theme and that is the respective roles of ACM and the Department in the care of this child but are you able to offer any explanation of who, in the Department's view, was responsible for contacting, for example, state authorities?
MS McPAUL: Well, it - as far as I understand, it would be a responsibility of the services provider but it may also be something that we would ask our managers to do additionally to add support to the particular claims in a case such as this where clearly there are, is an agreement about the benefit of finding an alternative arrangement. That might be possible for the child. Could I just come back to another document in relation to the question of whether we had previously contacted the Disability Services Commission in this case?
MR WIGNEY: Yes.
MS McPAUL: In our folios, number 958 - I'm not sure what it might be in yours but in the documents that we provided. I understand it is on Kimberley Health Service letterhead. Do you have that document?
MR WIGNEY: Yes, I've got that.
MS McPAUL: Yes. Okay. My understanding is that this is correspondence from a senior occupational therapist at the Derby Regional Hospital to the paediatric nurse at the Curtin Immigration Reception and Processing Centre and in that correspondence, it indicates in the second paragraph - well, it indicates a number of things, there being in the second paragraph in particular it says that the Disability Services Commission, our therapy outreach team, had been consulted in the care and management of this particular case and discussed what they would recommend for the child in relation to some shelf seating system and other options for his circumstances.
There was also mention of various quotes for something he called glide rehabilitation products so that the child could receive a wheelchair. Hip guides and so on and also makes reference to an assessment conducted by the physiotherapist and the senior occupational therapist on 20 February 2001. So it would appear that there had been some consultation with that Commission prior to that date.
MR WIGNEY: Thank you. Can I just ---
MS McPAUL: But it - sorry.
MR WIGNEY: Can I pick up on one point that - don't let that document go for the moment. You see in the first paragraph of that letter, there is a reference to the provision of a wheelchair and appropriate seating for this child.
MS McPAUL: Yes.
MR WIGNEY: This is back on 29 March 2001.
MS McPAUL: That is correct.
MR WIGNEY: Can you go to page 51 of the bundle, please?
MS McPAUL: Of your bundle?
MR WIGNEY: Our bundle, yes. I'm sorry. That would appear to be a document on the letterhead of Australasian Correctional Management Limited dated 19 April 2001 - 2002.
MS McPAUL: Yes, it is.
MR WIGNEY: In relation to this child and referring to the fact that:
it has been agreed after consultation with the physio and senior OT that the following equipment will be necessary to maintain his appropriate full time care in the medical area
and the first thing there is a wheelchair. That would suggest that the suggestion back on 29 March 2001 in relation to the provision of a wheelchair may not have been picked up at least until April or the next year, that is some year later.
MS McPAUL: I'm not sure of what may have happened in that intervening period but as I previously stated, the wheelchair was purchased - well, I guess it would be shortly or around the time of this piece of correspondence that we are referring to now.
MR WIGNEY: That is the April one so that perhaps may explain why the mother was seen to be pushing the child in a pram at some stage.
MS McPAUL: I think we've already considered that point.
MR WIGNEY: I'm sorry, I may have - we are talking about April but if you now go to page 18 of the bundle, it would appear that ---
MS McPAUL: We have one labelled A18. Is that the one you want me to refer to?
MR WIGNEY: Yes. It would appear that there would still be ruminations and communication between the Department and ACM about the purchase of this wheelchair as late as June of 2002. Do you see ---
MS McPAUL: Look, it is my ---
MR WIGNEY: Five paragraphs down.
MS McPAUL: Yes, it is - it is my understanding that the equipment was provided in May, I think I said earlier. So it is quite normal for equipment or for items to be purchased and for us to still have some ongoing processing of the payment for those items some time later.
MR WIGNEY: This - the suggestion for the purchase of a wheelchair having first taken place, it seems, back in March of 2001.
MS McPAUL: I believe that there was some discussion at that time, yes.
MR WIGNEY: Can I ask you this and I'm sorry to be jumping around like this but who did the Department regard as being responsible for purchasing such items? The Department or ACM?
MS McPAUL: I think if you are asking who is going to pay for it, then that question is neither here nor there. In the case like this, what we would be interested in is the acquisition of the equipment and as I said, if there was an issue about who was to pay for it at some later stage, that would be worked out through the contract management processes between the organisation and the Department.
MR WIGNEY: Well, you see, there was - it became a real issue between ACM and the Department as to who should pay for items like this for this child, didn't it?
MS McPAUL: I don't think, on the basis of the documents that you are referring to, that that is the case. I think the equipment was provided, as I understand it, around May.
MR WIGNEY: Okay.
MS McPAUL: I think the important thing is that the equipment was there for the child at that time.
MR WIGNEY: Go to page 34 of the document, please, of the bundle. This, I accept, does not deal specifically with the purchase of a wheelchair. It is an email dated around about the same time as that minute or letter that I just took you to. It is dated 20 June 2002. It is to a senior officer in the central office of the Department and it is - contains these words:
This afternoon [name removed] -DIMIA Centre Manager
whoever that may be -
was advised by the ACM manager that unless ACM received an immediate response to their request for additional funding for the care of the child they, ACM, would be dumping the child on DIMIA's doorstep tomorrow morning. ACM manager advised that this direction had come directly from someone -
and you can explain who that person is in due course if necessary -
who also instructed the ACM manager to contact DCD -
that is the disability - the Department for Community Development -
and advised them of the intention to dump the child. Whilst I can understand the frustration of ACM in relation to this matter, such action, which is no less than blackmail, is both unprofessional and totally inappropriate. DIMIA is as equally frustrated by ACM inaction on a range of issues but does not resort to these types of threats. Such threats only put ACM and DIMIA staff at Curtin under unnecessary pressure.
Does that refresh your recollection as to whether costs of caring for this child became an issue as between ACM and the Department?
MS McPAUL: I think what you were referring to earlier was the particular cost in relation to the wheelchair and as I indicated, I didn't believe that that was - I think you used a particular phrase which has implied that it was a significant issue. Quite clearly the care required for this child is of the nature of round the clock, 24 hour attention. I think we've mentioned previously that the child has very little capacity for toileting and taking care of his personal needs.
It is the case that there is a provision in the contract that DIMIA has with the outsourced services provider that for out of scope items that are, that is items that were not originally envisaged and specified in the parameters of the body of the main contract, can be raised with the Department as items for consideration and appropriate arrangements associated with that can then be negotiated in terms of - well, whatever that service might be but it may include such things as cost and operational matters associated with it.
In that context, shortly after the period in which ACM resumed full responsibility for this child, including providing that 24 hour care which had, in the past, been undertaken by family members, ACM had made a request to the Department in relation to that process with a proposal including an adjustment to the pricing structure that might relate to the care of this child. However, I would like to add that that in no way has affected the actual care that has been provided to the child for that period.
It is certainly my understanding that in this case, as with any other out of scope items, the provision of service continues in the way that we would expect while there is some negotiation at head office level about the specifics of the payment arrangements that might be put in place and as I understand it, those negotiations in terms of the cost of the particular care for this child is a matter that is currently being negotiated with the Department and the services provider.
MR WIGNEY: Is that all you want to say?
MS McPAUL: For the moment.
MR WIGNEY: That long answer, I suggest, entirely glosses over the real state of affairs, at least according to the author of this email who may care to comment on it if needs be, that relations between ACM and the Department in relation to the cost of the care of this child had reached such a point that ACM, to use the words in this document, had threatened to dump the child on DIMIA's doorstep. Now, that was the suggestion, wasn't it?
MS McPAUL: That is a view expressed by a particular DIMIA officer on that given day. I have no personal basis to suggest that that is actually the case. As I said, my understanding is that from the period towards the beginning of this year, ACM, as we've just outlined, has been working very closely and appropriately in the care of this child and I don't think there has been any suggestion that those care arrangements have been impacted by the other discussions happening in relation to the cost.
I mean, we're talking here about a situation where, as we've identified, the child is profoundly disabled and we are now in a situation where, as I understand it, the mother is not able to care for the child, or wasn't for a good proportion of this year, able to care for the child in the way that she had previously and that required round the clock care by some other specialist staff. I think it is quite reasonable that the services provider might want to discuss with us something that was well outside the scope of the contract in the beginning when I think, frankly I don't think either the people, any of the people negotiating the contract in the first instance envisaged that we may have a profoundly disabled child.
MR WIGNEY: Can I ask Mr Kelly if he wants to comment on this? Do you suggest that ACM did not threaten to dump the child on DIMIA's doorstep?
MS McPAUL: It is not the same person that - this is a different person entirely. I'm sorry.
DR OZDOWSKI: It was a note from the Manager of the camp site.
MR WIGNEY: I think just to put it ---
MS McPAUL: Could I just also - I'd just like to further clarify my answer on that which is that my understanding is that the request from ACM in relation to issues associated with the cost goes entirely, as I said, to care costs - costs of the carers, not to equipment which, as I said, I think had already been dealt with earlier.
MR WIGNEY: Now, I think when we launched off on that tangent, I was asking you some questions about a particular document which I'm just trying to turn up again now and if we can just briefly go back to that and I will try and wrap this up fairly shortly.
MS McPAUL: Which document?
MR WIGNEY: I'm just trying to find it. Just bear with me for one moment.
DR OZDOWSKI: I don't know. Do you mean 56?
MS McPAUL: I don't think that was the document we've been asked to turn to. We were on 18(a) or something, I think. Is that where we were?
MR WIGNEY: Sorry, bear with me. I was about to - sorry, I should take you to 56. That is the page that the Commissioner just referred to. I think that would appear to be a letter dated 10 October 2002 from the 58, sorry. We've got the multiple numbering here.
MS McPAUL: 58. Yes.
MR WIGNEY: 58.
MS McPAUL: Sorry, the number at the bottom of the page was 58. The number at the top was 56, as I understand it. It also has 167.
MR WIGNEY: It does.
MS McPAUL: We are talking about the same one, right?
MR WIGNEY: Yes. 10 October 2002, I just wanted to refer you to that document which would appear to suggest that as you have indicated, negotiations, it would appear, are still ongoing at least as at October this year between really the highest levels of ACM and the Department in relation to who ought be responsible for the cost and the care of this child.
MS McPAUL: That is my understanding.
MR WIGNEY: Now, just bear with me for one moment. I apologise. Look, can I just - I will just jump forward in time. I'm not sure where I was up to but I will jump forward in time. Having regard to the time, we really need to wrap this up but can I take you to the document numbered 35.
MS McPAUL: Which one again?
MR WIGNEY: 35, bottom right hand corner, there is lots of numbers on ---
MS McPAUL: 35?
MR WIGNEY: Yes.
MS McPAUL: 35. Yes.
MR WIGNEY: Now, this would appear to be an email, an internal Departmental email, and amongst other things - well, it is on the topic of this child and I want to take you to a couple of things, please. In the first large substantive paragraph on the page at the bottom - well, let me withdraw that and start this way. The general topic of this email is the various options open to the Department in relation to the continued management or care of this child. Is that right?
MS McPAUL: Yes, it appears to be that. Yes.
MR WIGNEY: There is a reference at the bottom of the first substantive paragraph on that page to the fact that both DCS, that is the relevant state body, and the psychiatrist strongly recommend that if the child is to be placed in the community, his mother and brothers would need to have regular access. Then there is a discussion of five particular options, those five options being: one, the child should be placed in a community facility and other family members are to be moved to an IDC in metropolitan location.
Second, placement in a community facility and family members placed in an alternate place of detention. Third, the child is placed in a community facility and other family members remain in the IRPC facility. I think that is Curtin. Four, representations made to the authorities in the home country of this family to give consideration to forced return of family to that country. Fifth, entire family, including the disabled child, remains in the facility at Curtin and ACM assisted to financially - to provide care.
Now, I just want to take you to each of the options which are then considered in detail on the next page.
MS McPAUL: I don't know. I mean, I'm happy to talk those through with you but I think I have already said that the Department was, and I think this document reflects that, actively looking at the options that might be possible for this child, both at Curtin and in the Port Augusta region and whether the child is with its - whether the child and the mother are located together in an alternative place of detention or whether the child is placed in a foster care situation, the reality is that outside of the centre, in the community, the Department would be required to ensure that there was appropriate support.
The experience that we understand today and I think is also reflected in part of this document that you are just taking us to which is that:
DCS have advised that it will be impossible to place this child in the local community of either Derby or Broome. He will be a difficult placement, given his degree of dependence. Community placements in the best of circumstances are very difficult to achieve and waiting times run into years.
I think that is reiterated in some other parts of the documents.
So I think, you know, we've already acknowledged enough, I hope, and it has been accepted here that the Department is working to the best of its abilities with the services provider and with those appropriate external welfare services to provide support, either to the child as a foster placement, which is quite difficult, or for other options. Even if the child and mother were to be located together, they would still need community support, either from the relevant welfare authorities or from some other community group that might be prepared to provide that.
Now, from the information that is available to us, that is likely to be a very difficult thing to achieve and a very costly thing to achieve. So it is not a simple thing and I think what this document is showing is that the Department has been looking for a range of possibilities that might be suitable and I said in the interim, the child is located at the Baxter facility where within the detention environment he is receiving 24 hour specialist care and in disabled accommodation unit that is appropriately equipped for his needs.
MR WIGNEY: In the interest of time, I won't quibble with your claim that it is somehow accepted that the Department has done everything that it can but let me just - of these options, the option that ultimately was taken up by the Department at least as at the date of this memorandum was to retain the child at Curtin.
MS McPAUL: Well, that is right, pending the opening of Baxter which we knew to be some short time after that and as I've said, the child and the remainder of the family have since moved to Baxter where there are better facilities and appropriate equipment and care is available and I think also one of the advantages perhaps of Baxter over Curtin is that it is closer to a metropolitan area and in Adelaide where there are also - a more easy access perhaps to some of the advice and support that the staff at the centre and ourselves may be interested in obtaining for the child's welfare.
MR WIGNEY: You refer to attempts to find community placement in Derby and Broome ---
MS McPAUL: Yes.
MR WIGNEY: --- both fairly small settlements and fairly isolated settlements, you would agree. What, if any, steps did the Department take to ascertain whether there could be some community-based care for this child ---
MS McPAUL: I mean, we'd also - sorry.
MR WIGNEY: --- in larger metropolitan areas such as, for example, Sydney or any of the other larger cities.
MS McPAUL: Yes. Yes. I think that same document refers to some investigations that had been made in relation to DCS in New South Wales where the advice had already - had also been received that it will be very difficult, if not impossible, due to the unavailability of places and the issues that arise. As I said before, foster care options do exist for foster children but in cases of profound disability, it is a very big ask of any other person to take on. It is extremely difficult for the welfare authorities to find a suitable placement that we could take advantage of.
MR WIGNEY: Let me take up one final point about this document and that concerns the comment in relation to option 2, that is placement in a community facility and family members in alternate places of detention. You will see in the middle of the page, page 36, part of the reason why that was advised against is that this family with this profoundly disabled child would be a flight risk. Is that a serious assessment?
MS McPAUL: It is a view expressed here but I think I can only refer again to some of the issues that Ms Godwin placed on the table which was that once families are not able to achieve the migration outcome they'd hoped for by coming to Australia as unauthorised boat arrivals or other unauthorised arrivals, the likelihood or propensity for absconding does increase with the advanced stage of processing and the number of determinations that have been made that the family have not been found to be refugees. So it would be a factor but again I guess it is open to question as to the degree of ---
MS GREAVES: The other factor, of course, with alternate places of detention, alternative places of detention, is the question of care and being able to provide an alternative place of detention where proper care can be provided to the family.
MS McPAUL: I mean, obviously in this document there are a number of options being put forward for serious consideration and I think I would like to suggest that the Department has, in fact, been doing that over a number of months.
MR WIGNEY: There are a number of other issues, Commissioner, I want to explore with this but I think that having regard to the rest of the program that we have, I think we should really conclude this case study now.
DR OZDOWSKI: It is possible we know enough ---
MR WIGNEY: Yes. I don't think it is fruitful to pursue it any further. Yes, that concludes the questions ---
DR OZDOWSKI: You concluded? Mr Bromwich?
MR BROMWICH: Commissioner, I only briefly wanted to again put the case processing history forward. That would take about a few minutes, if I could do that.
DR OZDOWSKI: Please do it.
MR BROMWICH: Yes, thank you. Ms McPaul, I think you have got the case processing history with you.
MS McPAUL: I have a summary of it, yes.
MR BROMWICH: Is it the position that the family in this case arrived as unauthorised boat arrivals and were initially detained at Curtin in November 2000?
MS McPAUL: That is correct, yes.
MR BROMWICH: In mid-November 2000, temporary protection visa applications were lodged.
MS McPAUL: Yes. Around the 8th of November.
MR BROMWICH: In early January 2001, a determination was made by a delegate of the minister that the applicants were not refugees.
MS McPAUL: It is my understanding that the primary decision was made and the refugee status was refused on the 8th of January.
MR BROMWICH: That position was confirmed, that is, that the family were not refugees by the Refugee Review Tribunal on 26 June 2001.
MS McPAUL: That is correct.
MR BROMWICH: The position is that the family are now available for removal pending other issues.
MS McPAUL: That is my understanding.
MR BROMWICH: Yes. Thank you, Commissioner.
DR OZDOWSKI: Thank you very much. Thank you very much for cooperation of all parties. It looks as if we are on time and we will be able to finish today. Maybe a few words about what I would like to do in the afternoon and we will meet at 2 o'clock so we look at a decent time for lunch. In the afternoon, I would like to press the issue of mental health but very briefly. Then I still would like to explore the issue of division of responsibilities between DIMIA and ACM, especially in the light of this correspondence and I would really like to do it on a practical level.
So I would like to ask that DIMIA officers who have actually been in detention centres to be available to answer some questions about it. Then if there are any outstanding issues, and from my point of view, I would like to ask a question about provision of food and special arrangements for food for children, what they are being given, including special formula milk. As you know it was a controversial issue in some of the public hearings so at least I would like to draw this to your attention.
Then I will invite DIMIA to put any additional issues on the public record you may choose to put, if you feel there is not enough evidence relating to some other issues.If you would like to put such other matters of your choosing, on the public record, you will have an opportunity to do it. And finally I will listen to your submissions about the time frame for response to questions on notice. Hopefully we can conclude all this not too late in the afternoon. But is this an agreeable course of action or are there any other issues, either DIMIA or ACM would like to have dealt with during the afternoon?
MS McPAUL: Well, no, but I guess I speak for myself but I would be prepared to start a little earlier in the hope of finishing a little earlier, rather than - maybe 1.30 rather than 2 for lunch.
DR OZDOWSKI: I don't have a problem with that. What about the other counsels? 1.30 would be convenient?
MR WIGNEY: I don't have a problem. The only thing that I was going to say is I will be very brief, at least - I think I'm going to ask two to three questions on the topic of mental health, although they are very broad questions really to elicit the Department's comments or response so but I'm certainly open to coming back at 1.30.
MS McPAUL: I'm just offering that ---
DR OZDOWSKI: But possibly, considering that some people need to travel to their home for a weekend, so let us start in this case at 1.30. Okay? Thank you very much.
LUNCHEON ADJOURNMENT [12.45pm]
RESUME [1.35pm]DR OZDOWSKI: Thank you very much for agreeing to start a bit earlier. Let us hope we can aim to finish between 4, 4.30 if everything goes okay, in light of people travelling back to Canberra. So we go to one new witness who wasn't on the stand before. So could we administer the oath or affirmation?
DAVID FRENCHAM, sworn [1.35pm]
FORMER DIMIA MANAGER WOOMERADR OZDOWSKI: Thank you very much, Mr Frencham. So Mr Wigney, if we could start briefly with mental health, please.
MR WIGNEY: Yes. As I said, really what I propose to do is really make an observation and then ask the Department officers to comment on it. My observational preface to the question is this. The Commission has received a large number of submissions and heard a good deal of evidence, most of it from eminent practitioners and experts in the field of mental health. Most of the submissions and evidence having been taken or heard publicly and therefore I take it that the Department is aware of it to the following effect.
That the environment in the detention facilities and Woomera in particular but the other facilities included is such as that it creates and exacerbates mental illness and development problems amongst detainee children from severe depressive orders to, in some cases, psychosis. To put it in the words of one of the professionals that has given evidence, that being a Dr Jureidini, it is hard to conceive of an environment more potentially toxic to child development.
We have also heard considerable evidence and taken submissions again from eminent practitioners to the effect that it is impossible to adequately treat these mental disorders in the detention environment because, in effect, it is the detention environment itself that creates and exacerbates the mental condition and the mental illness. Again in the words of one of the psychologists who worked on the ground in Woomera for, I think, over a year, that person being Harold Bilboe:
I was working in a no win environment because I couldn't change the environment. No matter how much I worked with the clients, I couldn't change the cause of the behaviour, the cause of their stress. It's like having a patient coming into a hospital with a nail through their hand and you are giving them pethidine injections for pain but you don't remove the nail. That is exactly what is happening in Woomera. You've got people down there with nails through their hands. We're holding them, we're not treating the cause. So the trauma, the torture, the infection is growing. We are not treating it. We're just containing it. Eventually when those people return to their homelands if they don't get temporary visas, they are going to carry that with them.
Now, my question in the light of that evidence and those submissions is this. Well, firstly what is the Department's response and in particular does the Department accept and acknowledge that the environment in these detention centres, and I include amongst those centres the recently opened Baxter centre, create and exacerbate mental illness? What, if anything, does the Department propose to do about the children who are still in immigration detention in the environment, for example, those that still remain in immigration detention in Woomera, and does it propose to continue to detain children in the immigration detention, for example, in Woomera in the future?
MS McPAUL: There are very many parts to that question, if you don't mind me saying so. You may need to help us recall all of those as we go through.
MS GREAVES: Can I say at the outset that the question of detaining children in immigration detention centres is a matter of policy and the law. The law requires that we detain children as well as adults and as we've made clear, I think, we do, when there are special needs required, we look to provide alternative arrangements where we can but we as Departmental officers are bound by the law. You asked a question about whether or not the Department was going to continue to detain children. That is a matter of policy and law.
MS McPAUL: Just in relation to that point, I think you asked the question as well about whether the Department would continue to detain children at the Woomera centre, in particular. It is my understanding at the moment that all of the children and families that remain at Woomera have been offered the opportunity to be accommodated at another facility, specifically at Baxter, on more than one occasion. I believe that offer has been made to those people and at this stage, they have declined to accept the offer of the improved accommodation and the new facilities at Baxter and the family compound atmosphere there. So for the time being, yes, it is my understanding that those children would continue to remain at the Woomera centre. There were some other bits.
MR WIGNEY: Well, it is really just to give you an opportunity, I suppose, to comment on the topic in general.
MS McPAUL: I mean, I think there was a point that Ms Godwin made in her submissions to the Commission a couple of days ago which is that it is extremely difficult to identify the exact genesis of a person's mental health that they might exhibit in the centre at any point in time. Of course, some of these people have had a very difficult and perilous voyage to get to Australia and they may well have other predispositions or issues in their life well before any thought of coming to Australia which might also be impacting on their personal circumstances whilst here.
So I think it is quite difficult to conclude that detention alone is the prime factor contributing necessarily to every person's mental health.
MS GREAVES: Indeed I think there is some evidence that has been put before the Commission that the impact of these refusals also has an impact, not detention per se, but the visa status. Also I think that some of the witnesses to the hearing have indicated that they can't pull apart the source of trauma. What we are trying to do is to focus on protective factors. We seek to - we focus on the amenities. We seek to support families while they are in detention and we are applying, as we have said on several occasions, continuous improvement to those amenities and to that support.
MR WIGNEY: I only want to take up one point with you and it relates to Baxter. As I understand the position, and I stand to be corrected, there have been for want of a better description, excursions to Baxter, that is, some of the families that are in Woomera have been taken and shown the facilities at Baxter and yet still declined to go there. Is that correct and ---
MS McPAUL: That is my understanding that there has been at least one visit for some family members from Woomera to Baxter and as I said to date, those families have chosen to remain where they are.
MS GREAVES: But that is not to deny that Baxter does have two separate family compounds in which families can be accommodated separately from the rest of the population.
MR WIGNEY: Can I ask you this? It is really to put again a proposition to you and to ask for your comment. In relation to the mental health services that have been and are provided in these detention facilities can I make the point again that I make no criticism of the staff and the mental health teams and the medical staff who attend to the mental health services on a daily basis. But can I suggest to you that it is manifestly the case that the mental health services that are provided in these detention facilities are entirely reactive as opposed to pro active and really are no more than a band-aid solution, that is, to use Mr Bilboe's analogy, like giving an injection for the pain caused by a nail in the hand but not removing the nail. Now, I just invite your comment in relation to that, please.
MS McPAUL: Okay. I disagree that it is manifestly clear in the way that you are suggesting. I think the initial health screening that happens for detainees - look, I think the broad proposition that the Department would put forward is that individuals with - who exhibit a need for particular mental health assistance will come to the attention of the services provider and DIMIA through initially the reception screening processes when they arrive in Australia but in addition to that, there is a continuing process of enhancing our case management approach to these issues.
It is certainly our expectation and understanding that the services provider is working to ensure that the mental health of detainees is managed throughout their time in detention and not simply, I think as you put it, a reactive process to a particular trauma or crisis point that may occur for that person whilst they are detained. These programs and activities are available in the centre and include a range of different opportunities for people to be involved in different activities that are happening, educational, recreational and sport, various excursions outside the centre and so on.
Of course, the other access is to welfare, mental health and medical staff on an ongoing basis in the centre. So I think to characterise the process as being simply reactive is not how I would understand it to be.
MS GREAVES: I would add that where it is assessed by the staff in the detention centre that external specialist help is required, that is provided.
MR WIGNEY: Just to make it clear, the reason I'm asking very few questions on this topic is not because it is a topic of considerable interest to the Commission but you will probably agree that in the context of the family case studies in particular that we've dealt ---
MS McPAUL: We have canvassed ---
MR WIGNEY: --- with and various other things we've covered virtually all of the topics that we proposed to address, I really just wanted to give you and the Department a further opportunity to comment on any issues relating to mental health.
MS McPAUL: Sure. I accept that we did canvas a number of mental health issues earlier on in relation to the specific cases. I guess I would just suggest to you that we need to be careful about generalising out from the particular circumstances of one case to all detainees who may have at one time or another been in detention. I think we've also discussed in this forum the fact that for different periods of the time that is being examined by this Inquiry, there were periods at which there was a very high turnover of detainees through centres, as well as some who are there obviously for a longer period of time.
The nature and type of health and mental health care to be provided to those detainees varies obviously, depending on their circumstances.
MR WIGNEY: The only response I wish to make to what you have just said is that we have, of course, because of the limited time available to us in terms of public hearing time, selected only two case studies for the family topic and two for disabilities. I wouldn't want it to be suggested however that as I've indicated before we embarked on all of the case studies that we have simply selected the most difficult or complex cases and I can suggest to you that in relation to - or firstly in relation to the disability case studies as I suggested, we picked those two case studies because they are the two very examples that the Department gave in its submissions.
MS McPAUL: There is a very limited number of children with disabilities that have been in detention at all.
MR WIGNEY: In relation to the family case studies, I can do no more than to suggest to you and indicate to you that from the information and evidence available to the Commission, there were a large number of other families in almost identical circumstances to those that were picked for the case studies and that - and obviously as a result of the limitations on time, we certainly couldn't address all of them.
MS McPAUL: Look, obviously there needed to be some choices made about the ones that the Inquiry would like to look at more closely. Clearly there are a range of circumstances for families and children in detention. I think it is just important to put on record that a very large number of those families and children move through detention very quickly and that the experiences of these quite difficult cases would not be typical of all detainees in detention, although it may represent a particular cohort that remain in detention today.
MR WIGNEY: Just finally in relation to the mental health topic and to an extent we've addressed this in the context of the family topic and the case studies. I think you have indicated on a number of occasions that the Department consults with state bodies and authorities in relation ---
MS McPAUL: Yes.
MR WIGNEY: --- the state bodies that deal with mental health issues and the protection of child issues. I think it is the situation and there was some discussion at length about whether or not the Department listens to specific recommendations made by those bodies in relation to families. It is the situation also, is it not, that the - at least some of the Government departments and in particular in South Australia have made general recommendations that, for example, children ought not be detained at all in the Woomera centre and the point is, we suggest to you, that the Department chooses to ignore those recommendations. What is your response to that?
MS GREAVES: I have to say that we do do more than just listen to the recommendations of the state authorities. We try and apply them and do apply them where we can, where they are not directly in conflict with our obligations under the Migration Act. Where we cannot apply the recommendations because of a difference under the Migration Act or circumstances under the Migration Act, we work with the health - the child welfare authorities to try and come up with the best solution in the circumstances.
We spend some time working with the child welfare authorities to do just that. I think that is seen from the evidence that has been provided to the Commission.
MS McPAUL: In particular one of the case studies that we looked at yesterday, I think you will recall, made a series of recommendations and whilst the Department was not able to, for reasons relating to our statutory environment and regulatory environment, implement all of those recommendations, the recommendation to move a particular child or family group to the housing project was, in fact, taken up and that family remains at the housing project as we discussed yesterday.
MR WIGNEY: Can I just give you one example and I will read it to you from a report provided by the Department of Human Services into the Woomera Detention Centre. Assessment Report dated 12 April 2002.
MS McPAUL: Have you got a page number for that, please?
MR WIGNEY: The document commences at page - top right hand corner 28. I was going to take you to two passages in that report.
MS McPAUL: Again, I think we've got ---
MS GREAVES: This is a report from ---
MR WIGNEY: It is from the Department of Human Services and hopefully at the top of page 28 ---
MR BROMWICH: I've got an ACM document. Page 28.
MS McPAUL: It might be the one that starts at page 29 headed ---
MR WIGNEY: Page 29.
MR BROMWICH: 12 April 2002.
MR WIGNEY: Yes. Sorry.
MR BROMWICH: That is page 29.
MR WIGNEY: Page 29.
DR OZDOWSKI: 29.
MR WIGNEY: I've got a title page in there as well but it does not - it is a report from the Department of Human Services, assessment report for the Woomera Detention Centre, 12 April 2002. I was just going to take you to two passages. Firstly on page 35, top of the page:
Continuous exposure to violence and self-harming behaviours is creating an unstable and unsafe environment in which psychological symptomatology such as suicidal ideation, disassociation, depression, restricted ranges of [a]ffect and anxiety are appearing in many of the children. The mental health and personality of many of the children and young people is being severely impacted because parental guidance and authority is being undermined, especially by the institutional nature of the facility.
On page 40 of the document, another general finding at the top of the page before particular case studies are considered, the Department says, or the author of the report says:
For children and young people in the Woomera centre the social and physical environment of detention is one characterised by alienation, idleness, dependency ,passivity through to aggression and even despair in some. The mental health and personality of many of the children and young people is being severely impacted because parental guidance and authority is being undermined. Parents are being degraded in the eyes of their children and scenes of hopelessness and social isolation abound.
For the children and young people at Woomera, their continuous exposure to violence and self-harming behaviours is also creating an unstable and unsafe environment in which psychological symptomatology such as suicidal ideation, disassociation, depression and restricted ranges of effect and anxiety are appearing.
Now, my suggestion to you is that no amount of upgrading of the physical infrastructure of Woomera is going to overcome those fundamental issues with the detention environment.
MS GREAVES: I think we need to clarify the status of this report. It was a document that was provided to us and which we then subsequently had a tele-conference with DHS personnel about it and because there were a number of factual errors in it, there were statements made in it which suggested that the Department was responsible for issues which were, in fact, within the responsibility of, for example, a state hospital. There were a number of issues that we went to in this report and DHS agreed with us that they would issue a corrigendum to it.
We've had to clarify how they have come to their findings and to highlight the areas where they have not asked - actually - checked with the staff of ACM and the DIMIA Manager at the time to - there were a number of unsubstantiated statements in it that they hadn't taken the time to check with ACM health staff or other ACM staff or DIMIA staff in the facility at the time. They were going to go back and look at all of that. We had a further tele-conference with them on the 29th of August and they were going to revisit the language that they had used in this report and we, I think, are still waiting for further documentation from DHS on it.
DR OZDOWSKI: Well, you see, our problem is that the submission we've got stands in evidence. It was provided to us, and stands unchallenged unless it is corrected. So therefore I think it is very important if there were changes that we are notified about it by DIMIA so we can consider it when writing the final report. We need you to provide us with some good examples to compare and contrast.
MS GREAVES: As soon as we get them from DHS we will provide them to the Commission.
DR OZDOWSKI: Thank you. Now, Mr Wigney, did we finish with mental health?
MR WIGNEY: I'm just checking.
MS GREAVES: Commissioner, there was just one other point that I would make about general recommendations by state child welfare authorities. Of course, we do take into account the general recommendations in our program of continuous improvement as best we can within the context of the law.
DR OZDOWSKI: Thank you.
MR WIGNEY: The only thing that I wanted to address and we might just take a moment to turn it up, this specific passage, is we have received evidence or submissions from the relevant state department that authored that report which is somewhat - well, does not entirely align with the version you have just given us. I'm just seeking to have it turned up now and if you could just excuse us for a moment.
MS GREAVES: I can attest to the fact that we had a telephone conversation with DHS about this report because I was part of that telephone conference.
MR WIGNEY: I'm sorry, I should ---
DR OZDOWSKI: No, no. We are not doubting what you are saying.
MR WIGNEY: I'm not doubting what you have said about having tele conferences and the like. It is a more general proposition. I apologise if I gave the other impression. Well, the passage perhaps for the present purposes I just want to take you to and again I'm not taking issue with what you have said about - specifically about this report and the tele-conferences is that at the Adelaide session of the Commission on 1 July 2002, some evidence was taken from a Ms McNeil whose position in the department I will tell you in a moment.
There was a general discussion about Woomera in particular and various reports and recommendations in relation to Woomera that had been given by the department to the Department of Immigration, given by the state department to the Department of Immigration. Mr Hunyor asked the question:
To what extent do you think the failure to heed the broad recommendations that you were talking about just before I asked the question to what extent has the failure to heed those recommendations increased the rates of child abuse, alleged child abuse?
The answer was: 'hugely, hugely':
So if the broader recommendations that you have been giving to ACM and DIMIA had been followed, your evidence is that the incidents of child abuse and alleged child abuse would have decreased significantly?
Answer: 'definitely.' Now, that was on a slightly different topic but again it deals with recommendations from state authorities. Was it the situation that the Department of Immigration actively listened to and followed recommendations by state departments?
MS GREAVES: I think we have nothing further to add. We do take account of the state Government's recommendations where they are within our capacity under the law to do so. We work actively with them. We have a generally cooperative relationship with the Department of Human Services and the Family and Youth Services part of that department. We have an MOU with them that deals with child protection and child welfare issues. All I can say is that that is the opinion of one person.
I guess what I'm saying is from our perspective we do - we do take account of those recommendations as best - to the extent that we possibly can within our obligations under the Migration Act.
DR OZDOWSKI: Basically it is a question; it follows that if there would be different legislation, one would assume you would be accommodating different recommendations, or maybe more or less of them?
MR BROMWICH: With respect, Commissioner, that is hypothetical.
DR OZDOWSKI: My comment is, yes. Yes, I don't - do not expect a response. Thank you.
MR WIGNEY: Well, just finally on the topic, can you go to page 213 of the bundle that I think I've given you. I'm getting very nervous about giving you page numbers at the moment. Let me just give you - sorry, I can't give anyone else - I think they were handed out yesterday but anyway look, rather than take up time, let me just give you this bundle. That bundle I've given you is opened at page 213. It is a report of the Department of Human Services Family and Youth Services Social Work Assessment Report on the circumstances of children in the Woomera Immigration and Processing Centre, 21 August 2002.
So it is later in date than the other report. If one goes to page 216, part C of the report: Recommendations. Recommendation A: that no child should be kept in the Woomera centre as it is an environment that fails to provide care and protection.
MS GREAVES: As I think my colleague has already said, we have - we have offered to move all families, all children, from the Woomera Detention Centre to another facility and they have chosen not to be moved.
MR WIGNEY: Is the fact that you have offered all children to move from the Woomera Detention Facility because you now acknowledge that it is, in fact, an environment that fails to provide care and protection?
MS McPAUL: I think it is more that we recognise that the facilities at Baxter are designed to accommodate families and the large proportion of unauthorised boat arrival families that remain in Australia are now there and that that would be an appropriate place for these other families to also be located.
MR WIGNEY: Yes. I have nothing further on that topic.
DR OZDOWSKI: Thank you very much. I think we have finished mental health; certainly it is one example of many others which were not fully considered during these four days. We possibly would require many more days to go in such a detail over a full range of areas. At least I think we could conclude that people get stressed in detention. Some of them even get mentally ill. The issue of causes, of course, is an issue which the Department was unwilling or most reluctant to admit that detention may be causing a link to mental illness, over and above any other single cause.
We acknowledge that certainly there are other causes and especially visa considerations are very important. Another issue which we were looking at, was certainly the issue of the handling of people by DIMIA and ACM who are either developing mental illness or who already acquired mental illness in detention. But there is possibly a whole range of other issues, yes, we could have looked at. What I'm proposing to do now is to move to that question about division of responsibility for DIMIA and - between DIMIA and ACM.
It will be again a very short issue but if I could perhaps make a bit of an opening statement. I understand that DIMIA is responsible for monetary payments and DIMIA is responsible for immigration status, but not necessarily for the people who are in detention centres, and that properly speaking ACM is responsible for the day to day operations. So this distinction tends to suggest that DIMIA is not getting involved with the day to day operations, or if it gets involved with day to day operations, it is happening only on the margins.
However, going to my visits to different detention centres, I formed an opinion that the situation, is a bit different in every one of the detention centres and that different factors do play a role as to what extent DIMIA is getting involved with day to day operations. I, for example, was told in evidence that - and I'm using it as example - that DIMIA decisions are required when it is coming to more expensive medical procedures, that DIMIA decisions are required when it is coming to the use of hand cuffs when people are going for outside visits, say, to a dentist.
I have also been told that DIMIA decisions are required when it comes to schooling, whether the detainees will be taught in the centres or have access to outside education, or in another instance, the use of isolation detention for a particular detainee. But basically I'm still having a lack of clarity in my mind about how it works on a practical level. So what I would like to ask you, Mr Frencham, who possibly has got the most of this operational experience, would it be possible, would it be fair, to ask you for a list of decisions where the DIMIA Manager in the centre is getting involved, or has been consulted? Is it the fact that making a decision - or perhaps such a list does not exist, and it depends more on situations on day to day judgment?
MR FRENCHAM: I think such a list does not exist. It could be very extensive. When I - I can only speak for Woomera but when I started at Woomera, my view was that the ACM and DIMIA were all in one partnership. I attended meetings with ACM three mornings a week and spoke to their manager and their other executive people every day of the week. My doors were always open to them and vice versa. In day to day, everyday activities we weren't involved. On a consistent basis though, for example, we would be monitoring food and every few months there would be a nutritionist report.
Probably every week or so, one or another of my staff would eat with the detainees in the compounds. Every day, no, but on a regular and ongoing basis over time we would monitor things. In terms of transfers in and out, I would wish to be involved if there were a need, for example, to use their own phrase, where there was some urgent medical problem. I would be aware, made aware anyway. I didn't need to give a formal authority to ACM to take someone into the hospital, for example, or to take someone to the dentist. We did understand that more routine kinds of things would happen.
DR OZDOWSKI: What would be your expectations concerning the issues you must be consulted on before they take place? What kind of issues, at least would you expect that before other persons you would be consulted before ACM does take any action?
MR FRENCHAM: Well, normally I would expect to be consulted if people needed to be removed, for example, by ambulance, if there was any need for hospitalisation. I would need to be informed of any significant incidents in the place. But in terms of transfers out, I think urgent hospitalisation is possibly the only one.
DR OZDOWSKI: We quite often heard in evidence that any substantial medical procedure which costs money was always referred to the DIMIA Manager. Is that correct?
MR FRENCHAM: Well, I think I was always made aware, yes, but not for approval.
DR OZDOWSKI: Not for approval?
MR FRENCHAM: No.
DR OZDOWSKI: So you were not deciding whether the person will get ---
MR FRENCHAM: No.
DR OZDOWSKI: --- treatment or not?
MR FRENCHAM: No.
DR OZDOWSKI: There was a similar situation in all other centres?
MR FRENCHAM: I could only speak for Woomera. I was in touch with managers in other centres and as far as I was aware, we were doing things on a reasonably consistent basis but I really couldn't speak for them.
DR OZDOWSKI: If somebody had to go, because of behaviour management reasons, to an isolation cell, whose decision ---
MS McPAUL: To the management unit.
MR FRENCHAM: We didn't have a management unit in Woomera whilst I was there.
DR OZDOWSKI: Well, I know you have got a new one just now. What were you doing in the past if there were problems with behavioural management?
MR FRENCHAM: If there was a medical background ---
DR OZDOWSKI: No, not medical. If somebody was giving, let us put it, a hard time to the people who were providing services ---
MS McPAUL: Perhaps, Commissioner - sorry, it might be helpful I think just in your opening remarks in relation to this, you made reference to apart from the isolation cell which I think is not the way we would characterise the facilities at the centre, I think you also made reference to meaning to seek the DIMIA Manager's approval for the use of hand cuffs.
DR OZDOWSKI: Yes.
MS McPAUL: Quite clearly the detention services contract specifies that those sorts of operational decisions will be made by the services provider based on their judgments about how to handle those circumstances.
DR OZDOWSKI: So in all cases, all decisions belong to ACM ---
MS McPAUL: Operational ---
DR OZDOWSKI: --- as far as it relates to operation?
MS McPAUL: Operational matters. That is right. We would, of course, be - expect them and require them to advise us of these matters, that most of those things that you have mentioned, in fact, would be the subject of an incident report of some kind to the Department as part of that normal reporting process, which is not to say that there may not be advice on the ground between the services provider to our Manager but certain events might be occurring in the centre.
But basically the way that the contract is structured and our expectation around that is that operational decisions are within the purview of the detention services provider. The issue about transfer to other centres I think, as we discussed this morning, the Department would be involved in some decisions regarding the actual location but that would include a range of operational factors which I alluded to this morning, including seeking some advice from the services provider about the logistics and the appropriateness in their view about managing those cases in a particular location.
MS GREAVES: And also for transfer, moving to outside education. That is something that obviously we are involved in also in terms of providing arrangements with the states to enable that to happen.
DR OZDOWSKI: But do you have a right so to say in terms of your authority to deny if, for example, ACM would decide that somebody will go to a certain school and the school is willing to receive that person, can DIMIA Manager say: no, for some reason I don't think it is appropriate for that man or woman or child to go to that school?
MS GREAVES: As I think we pointed out when we were talking about education, Commissioner, there would be an assessment made of the risks of having a person, a child, attending an outside school in terms of risks of such things as absconding.
DR OZDOWSKI: Who makes that assessment ---
MS GREAVES: That would be an assessment ---
MS McPAUL: An operational ---
MS GREAVES: An operational decision.
DR OZDOWSKI: So again ACM makes that assessment?
MS McPAUL: About the risk assessment?
DR OZDOWSKI: Yes.
MS McPAUL: Yes, that is a professional judgment made by the detention staff employed by ACM.
DR OZDOWSKI: ACM. Yes. It is possible ---
MS McPAUL: I mean, we would expect possibly to be advised of what view they had formed. If it looked like an outcome contrary to something that we would otherwise perhaps expect to happen, but it is - the assessment itself is their job.
DR OZDOWSKI: Let us put is this way. I won't be pursuing it much further but it is certainly not consistent with what I had earlier from other witnesses and I would welcome ACM, if ACM has any comments on the issue, to say a few words now or maybe to let us know later.
MS GREAVES: Commissioner, could I just add one point which is obviously in relation to things like risk assessment, there are some elements of that that would be known to us that might not be known to the services provider. For example, their particular status ---
MS McPAUL: Immigration status.
MS GREAVES: Immigration status. So we would be involved in that decision.
DR OZDOWSKI: So you would be making a decision? Do you have a better power?
MS McPAUL: Look, it is my understanding that the risk assessments are, as I said before, the responsibility of the service provider. We may feed some information into that process if we thought it was pertinent for that consideration. It may still be possible to move a difficult detainee from one location to another but they would - the services provider who would be undertaking that escort, would need to know, for example, that they may need two officers to escort rather than one and so on. So we may feed into that process but ultimately it would be their decision as to how it was handled.
DR OZDOWSKI: So basically what you are saying that you may get involved but basically and principally you are hands off and you only deal with ACM by way of monitoring and liaison?
MS McPAUL: Just to be clear on how that has been characterised. As Mr Frencham said, we have a partnering relationship with the services provider and day to day in the centres as you have heard there is a range of meetings and forums in which the DIMIA staff and the services provider staff might address jointly some issues that are arising at the centre at that time. But the operational matters in the centre are something, whether it is the provision of food or welfare or programs or all of those sorts of things, are part of the detention services contract.
DR OZDOWSKI: Dealing with hunger strike, dealing with riots?
MS McPAUL: Those are particular things that happen from time to time in the centres. From an operational point of view, again we would expect the services provider to be taking all necessary steps to ensure the immediate needs of the detainees in those circumstances were dealt with. For example, if people claimed to be on hunger strike, we would expect the services provider to be providing medical support, welfare support, water and food and so on to the detainees. But the Department would obviously have a role in monitoring that situation, reporting to our senior staff and to the minister's office about the progress of the particular circumstances of that incident.
DR OZDOWSKI: Using the example of the riots in Woomera this year in which this group was lip sewing and all the kinds of problems after which a group of minors from the same compound were released, my understanding is that a significant role in settling this riot was played by the ministerial advisory committee or IDAG as it is known.
MS McPAUL: I believe IDAG did visit the centre.
DR OZDOWSKI: So how did it work. Were they advising ACM on what to do, or were they advising the minister and the Department how to resolve the matter.
MR FRENCHAM: The IDAG group?
DR OZDOWSKI: Yes.
MR FRENCHAM: The IDAG group reported to the minister after their visit.
DR OZDOWSKI: So the final decisions were made on this occasion by the minister?
MR FRENCHAM: Well, I think the resolution was that processing would recommence and that was done in liaison with - discussions with the Department that the group did, in fact, report also to the minister.
DR OZDOWSKI: Yes. I don't have any more questions in this area. Mr Wigney, would you like to ask any questions?MR WIGNEY: It is on a slightly different topic and I would like to direct a question to Mr Frencham. We have heard some evidence, I think, yesterday. There were some questions directed to the role of the DIMIA Manager at respective detention facilities, including Woomera. As a delegate of the minister's powers of guardian in respect of unaccompanied minors, can you please tell us as a practical matter what, if anything, you did on a daily basis after January of this year in respect of the duties or powers as a delegate of the minister in that respect?
MR FRENCHAM: Yes. I could probably take you back a little earlier than that. I think the group of unaccompanied minors has always been recognised as a group that deserves some special attention and there has been, since prior to my arrival, a staff member who was designated to particularly oversight the care that was being offered them. There was a weekly meeting from - well, certainly prior to May last year which my staff would attend.
There was, I think going back to that stage but I'm not 100 per cent sure, a weekly meeting with program or ACM staff about the individuals. Picking up from January this year, I had a more senior person designated to - be an unaccompanied minors officer if you like - and she attended meetings with minors and with ACM staff. That was on a weekly basis.
MR WIGNEY: Well, what you have referred to there is, I suppose, some fairly formal things. Can I just pick them up one by one? First you say there was a staff member designated to oversee the unaccompanied minors. Was that an officer of the Department or of ACM?
MR FRENCHAM: Of DIMIA.
MR WIGNEY: What - my question is really directed at you being the person who receives the delegation as guardian. What did you do as a practical matter in relation to going ---
MR FRENCHAM: Well, the Deputy Manager was also delegated and she was the one who, from January this year, assumed that role.
MR WIGNEY: I see. As the person with - that would oversee the unaccompanied minors. Is that right?
MR FRENCHAM: Yes.
MR WIGNEY: What did she do as a practical matter in relation to her powers as a delegate of the minister?
MR FRENCHAM: She was the contact person for all the unaccompanied minors if they wished to raise anything at all with DIMIA or ACM. There was also an ACM officer who was specifically designated to look after the group but as I say, she met once a week at the minimum with the group and met separately with ACM operational staff who were responsible for looking after that group.
MR WIGNEY: Was there any one on one contact between the Deputy Manager and unaccompanied minors in terms of advice or assistance or support?
MR FRENCHAM: If they sought to see anyone at all, they would ask for her. She was known to all the minors there as their contact person and she would be out there on a regular basis, yes.
MR WIGNEY: What about in the interview, the screening or induction interview, and secondly I suppose the refugee status determination interview. Did the Deputy Manager or yourself have any role to play in those interviews?
MR FRENCHAM: I think it has already been made clear that there was no involvement of the DIMIA staff on site in the actual refugee determination process, in the application process.
MS GREAVES: Bearing in mind, of course, that at that time, January this year, we weren't seeing new arrivals. I mean, we are talking about a group that have already been in detention. So those are issues of the initial stage of their processing.
MR WIGNEY: Well, what happened before January 2002?
MS GREAVES: I think we talked about this yesterday.
MR WIGNEY: Yes, but I - the fact is that I want to ask Mr Frencham because, of course, he is there.
MR FRENCHAM: There was no involvement of the DIMIA office staff on site in the application process, no.
MR WIGNEY: That includes the screen interview and various interviews.
MR FRENCHAM: If minor children wished to speak and ask advice, we would provide general advice in terms of - this is the IAAAS provider, he is here to help you. All we can suggest is that you be up front and honest with him. Just tell the truth basically.
MR WIGNEY: I just want to ask one more question, not on the topic of guardianship but as a practical matter, who was in charge at these facilities, that is, was the deputy - was the Manager from the Department or the ACM Manager in charge and let me give you an example to try and make it a bit more specific and put it in context. What if, for example, the DIMIA staff and the DIMIA Manager in particular observed that, to take one example, a hunger strike or a lip sewing episode was being dealt with in an inappropriate way by ACM staff officers? Was the DIMIA Manager empowered to stop what was going on or how did that - how was that sort of situation resolved?
MR FRENCHAM: If there was any behaviour at all in a detention environment that we thought was inappropriate, we would make use of the contract.
MR WIGNEY: In that context, were there ever any, if I can use the phrase, demarcation disputes between the ACM Manager and the DIMIA Manager, that is, who ultimately has the final say on such matters?
MR FRENCHAM: I'm not sure what kind of situation you are envisaging.
MR WIGNEY: Well, can I just again envisage the situation relating to inappropriate dealing with a hunger strike or a lip sewing episode or something like that. Who had the ultimate ---
MS McPAUL: Perhaps ---
MR WIGNEY: I'm asking Mr Frencham.
MS McPAUL: Yes, but I think it is useful to put just this in some context, that the contract is for provision of services to DIMIA. The contract is to us and while we have a partnering relationship, ultimately the provision of those services are to our satisfaction, whether that is being monitored at a central level or on site.
MR WIGNEY: Yes, well, that is why I'm asking the question.
MR FRENCHAM: In that - I think in that circumstance as soon as it is apparent that there is a minor becoming involved in an incident like that, the reports are made immediately to FAYS and in that situation in January, FAYS was there, I think, within 24 hours.
MR WIGNEY: Yes, I have nothing further. Thank you.
DR OZDOWSKI: In a way it is - I can understand on a theoretical level but I have a problem with somehow combining all the evidence in a workable comprehensive whole. But perhaps it is one of these mysteries: when I was much younger I was born in East Poland and we had a communist party which was not taking any responsibility about how the Government acted and basically all the ruling of the country was delegated to the Government and the Government got the blame for all those things that went wrong. But really when it came to the crunch, the communist party was able to pull the strings. But anyhow, I know it is irrelevant in this context.
MS McPAUL: I think just for the record it is important to state that the Department acknowledges its duty of care and responsibility for all detainees and its contract management and monitoring responsibilities in relation to the services provider.
DR OZDOWSKI: Thank you. Will we have any contribution from ACM counsel in this area? No.
MR RUSHTON: No comment.
DR OZDOWSKI: No comment. Thank you. Now, basically what we would like to do now, maybe for next half hour or maybe shorter, is to go through a few outstanding questions the counsel may have for DIMIA. It is basically mopping up and then we will come to the final statement. As a matter of fact, he may be able to start with just a few questions. For example, it was confirmed that the minister delegated his guardianship role to DIMIA Managers and the ACM Managers in January 2002. Who had responsibility in the detention facilities prior to that time before the delegation?
MS GREAVES: The DIMIA Managers also had responsibility. It was just that - and obviously as part of our duty of care, DIMIA staff in the facilities carried out that responsibility. It was just that in January we felt it was preferable to have that delegation made absolutely clear.
DR OZDOWSKI: I see.
MS GREAVES: So that, for example, if there were decisions about intrusive medical procedures, there was no question about the ability for the DIMIA Manager to approve that.
DR OZDOWSKI: Sure. So there was more or less a legal point?
MS GREAVES: Yes.
DR OZDOWSKI: Yes. It was a - now, Ms Godwin had described that there are nine compounds at Baxter.
MS GREAVES: Yes.
DR OZDOWSKI: She described them as community-oriented and comparable to a village square concept. As you know I'm going after next week. What should I expect?
MS McPAUL: Commissioner, I've been to the centre on a number of occasions. Ms Godwin is right. There are nine compounds. The compounds at Baxter are organised a little differently, I think, to the ones that you will be familiar with at Port Hedland or at Woomera. Basically there are a number of individual accommodation units that are aligned around the outside of each of the individual compounds so that they face into the grassed area in the middle of the compound, something like a village square sort of concept, I suppose.
Within that compound there are shade structures, some small trees that are planted and obviously just growing at the moment. Some playground equipment for the children. I think some of the compounds may have like picnic benches and so on. So it is - it has got a - there is a communal dining room and so on. Those sorts of recreational rooms are also attached as part of each compound. So it is not the wide expanse that you may have seen at some of the some centres but a more self contained ---
DR OZDOWSKI: So how do the size of compounds in Baxter compare, for example, with the size of compounds in Woomera?
MS McPAUL: Well, they do vary a little. Mr Kelly might be able to provide some more specific details.
DR OZDOWSKI: Thank you.
MR KELLY: Sorry, Commissioner.
DR OZDOWSKI: Thank you.
MR KELLY: The compounds range in size from approximately 80 persons through to 168 persons in size.
DR OZDOWSKI: So they would be much smaller?
MR KELLY: Much smaller. One of the issues that the Department has recognised and certainly in discussions with our service provider, that some of the compounds that we do have in Woomera which range in size of up to over 400 persons, it is very difficult to manage on a detainee basis. So the Department, in constructing the Baxter facility, chose to take some of that advice and take advice from other experts in the field to come up with much smaller size compounds and compounds that might provide much more amenity in terms of individuals.
There has been criticism in relation to the lack of grass, as you know, in the Woomera facility. The facility at Baxter is - we've had turf laid in every one of the compounds. We have a watering system that enables the compounds to remain green, the grass remain green. We have each of the accommodation units provided for a double bed with an above single bed in a bunk arrangement so that we can accommodate small families in the one room. Each room has its own en-suite facilities as opposed to communal ablutions that we have in other facilities.
Some of the accommodation units have inter-connecting doors which allows us to be able to have much larger families live in two bedroom facilities as opposed to, you know, much larger dormitory-style arrangements in some of the facilities.
DR OZDOWSKI: Is there freedom of movement between different compounds?
MR KELLY: There can be freedom of movement between adjacent compounds but not between all nine compounds.
DR OZDOWSKI: And the ---
MR KELLY: Sorry?
DR OZDOWSKI: Go ahead.
MR KELLY: There is also the ability for people to move out of the compounds to undertake various activities. As an example, the children go off to school each morning. They are picked up by a school bus, for want of a better term. They are taken to the educational facility and they will spend the full day in the educational facility, much the same as we would expect in the normal community situation. They are provided with a small uniform, backpack for their school books, etcetera, and a lunch is provided for them at the facility and then they return to the facility - return to their compound later in the day.
For adults, the opportunity of being able to get out, we have set up in a large, I guess for want of a better terminology, a warehouse that existed on the site and an ability for indoor recreational facilities, including a gymnasium, etcetera, and there is an opportunity for people to go through that at various times during the day.
DR OZDOWSKI: Thank you. Now, changing the topic and in a while I will be able to see the detention centre in Baxter, I think, on the 12th and 13th, or something like that.
MS McPAUL: I think that is correct, yes.
DR OZDOWSKI: Also Ms Godwin has said in her opening statement that there are still five UAMs who are currently held in detention centres. Would you know whether under the new MSI of this week they will be immediately released. What is happening here?
MS GREAVES: Not all of the children are IGOC Act children, and I think the ---
MS GREAVES: --- numbers - sorry, the numbers of children do vary a little bit and I'm not sure whether it is actually five today because we have had in Villawood some unaccompanied minors come in quite recently from student visa cancellations but not all of the children are wards of the minister. I think - I'm just getting the number. These are two or three.
DR OZDOWSKI: I think it was five in the opening statement.
MS GREAVES: Sorry, five unaccompanied minors because there are a number of children that we referred to as unaccompanied.
DR OZDOWSKI: No. I'm talking only about unaccompanied minors.
MS GREAVES: But there are some that we treat as unaccompanied minors for the purposes of care, but were not wards of the minister.
DR OZDOWSKI: Okay.
MS McPAUL: Look, I can just provide you with a very brief synopsis of our understanding of those children. One of the children at Villawood is in the care of other family members at Villawood so - well, not the immediate parents. I believe it is a related aunt and so on.
DR OZDOWSKI: I understand.
MS McPAUL: Two of the children, as Ms Greaves said, were very recent compliance cases that had been identified in the community. They are of nationalities that we would expect to be removed very quickly and in fact it may well be that they have since been removed from Australia. There is one further child at Villawood. It is my understanding that we are presently seeking an assessment from the New South Wales Department of Community Services with a view to considering whether or not this child could be placed elsewhere or released on a bridging visa.
There is one other child at Woomera who, up until recently, had claimed to be an adult and has recently undergone one of the wrist X ray assessment processes and while the evidence is a little equivocal, we have given that person the benefit of the doubt that they are a minor which they will be for another couple of months, but they are very close to being 18 even so. We are actively discussing with Family and Youth Services what considerations we can look at for the possible placement of that person but there are a number of factors including their previous participation and involvement in certain other incidents at the centre which need to be taken into account in finding an appropriate placement.
MS GREAVES: All of that is consistent with the new MSI.
DR OZDOWSKI: Just to clarify some numbers. I understand in July 2001, there were about 628 children in detention.
MS McPAUL: We will just find our statistics folder and we might be able to assist you. So you are looking ---
DR OZDOWSKI: Yes, and my question is how many of them were unaccompanied minors?
MS McPAUL: Okay.
DR OZDOWSKI: I think 200.
MS McPAUL: July 2000, July 2001?
DR OZDOWSKI: July 2001.
MS McPAUL: I'm sure that that statistic is available, Commissioner. The data we have with us today appears to just provide the total number of minors, not UAMs but we can certainly provide that for you.
DR OZDOWSKI: Would you - okay. Would you also be able to give me the number of unaccompanied minors ---
MS McPAUL: In July.
DR OZDOWSKI: --- in July 2001?
MS McPAUL: Sure.
DR OZDOWSKI: Then what I would like to know is the figure which are alleged to be unaccompanied minors, find out how many of them were in foster care in the community.
MS McPAUL: At that time?
DR OZDOWSKI: At that time, or maybe now it would be unrealistic to establish that. It would be better to go to a later time, whenever you have to verify things, yes, because ---
MS McPAUL: Well, I think it is certainly within our means to ---
DR OZDOWSKI: --- it is really after January this year.
MS McPAUL: Yes. A couple of things I guess I would say. I think we can certainly find you the figure of the number of unaccompanied minors in July 2001. I think that that is obviously something the Department can provide. As to whether they were in community care at that time or not, we would need to check. My understanding would be that the main movement of children into community care occurred in January this year and since that time that ---
DR OZDOWSKI: Yes. Since January, yes.
MS McPAUL: Yes.
MS GREAVES: I take it you mean still in detention but in community care?
DR OZDOWSKI: Yes.
MS GREAVES: Yes.
DR OZDOWSKI: Yes, yes.
MS GREAVES: If we make that for ---
DR OZDOWSKI: If you could, yes. Basically, give me current numbers in terms of the kids in community care, I think would be the best one.
MS McPAUL: The current figure for children in community care?
DR OZDOWSKI: Yes.
MS McPAUL: Well, look, I can provide some information about that to you today.
DR OZDOWSKI: Okay. So maybe ---
MS McPAUL: Just in relation to the question about the number of unaccompanied minors in July 2001, we can say that for that particular financial year, 2000 to 2001, there were, as I understand it, 191 unaccompanied minors that arrived in Australia.
DR OZDOWSKI: I was very close.
MS McPAUL: Yes, at that time, in that time period. So they were new unaccompanied minor arrivals for that financial year out of a total of 1313 children that came to Australia in that period.
DR OZDOWSKI: Thank you. Perhaps the last thing, are you aware of any unaccompanied minors in detention centres currently and the limited number of them who have family members living in the community and are willing to foster them?
MS McPAUL: Well - and are willing to foster might be the difficult part. There is one, as I understand it, one female child at Villawood who may have some other family members in the community as part of the overall assessment being made by Department of Community Services in New South Wales. Those sorts of issues, I think, will also be considered.
DR OZDOWSKI: There is also a different case which is a case of children with their mother in Woomera Detention and their father living in Sydney. Why did you ---
MS McPAUL: Well, that is not an unaccompanied minor.
DR OZDOWSKI: Yes, I know, I know, I know, but they are still children and basically we've got a situation where one parent is in detention, one parent is free. Why can't the kids be with parent who is free?
MS McPAUL: Well, look, that is a - as I said, it is not an unaccompanied minor. The children are in the care of their mother, as I understand it, if we are referring to the same family unit.
DR OZDOWSKI: Yes, there is only one ---
MS McPAUL: I believe there are some other family members also accommodated at that particular immigration facility as well. So we ---
DR OZDOWSKI: Wouldn't it be in best interest of a child to be free with one - with father in the circumstances?
MS McPAUL: I think there is a number of different - yes, a number of complex issues about that particular case. It may be something you might wish to raise outside this forum.
DR OZDOWSKI: They were all the questions I had during that time. I don't know whether the Counsel Assisting ---
MR WIGNEY: I don't have any specific comments - questions. I have some comments I want to make just in closing in due course but I don't have any questions.
DR OZDOWSKI: Okay.
MS GREAVES: Commissioner, I can give you the number of unaccompanied minors that are in foster care at present and it is 12. It is 12.
DR OZDOWSKI: 12.
MS GREAVES: 12, plus - in alternative care arrangements with South Australia.
DR OZDOWSKI: At the moment?
MS GREAVES: Plus two children who were formerly unaccompanied minors, recently formerly.
MS McPAUL: Who remain in the foster care arrangements that were put in place while they were unaccompanied minors.
DR OZDOWSKI: Perhaps the last question which relates to this area. It is about lip sewing. Did you receive or are you in possession of any evidence which would positively suggest that parents were involved in the lip sewing of children?
MS McPAUL: Commissioner, as I understand it, there was some assessment made - as I understand it, the South Australian welfare authorities indicated that they had concerns that adults and specifically parents may have been sewing children's lips together at Woomera and I believe that was one of the bases upon which they came to make some assessments about what was happening there. An assessment was undertaken in accordance with the MOU between DHS and DIMIA and it is my understanding that we were subsequently advised that there was no evidence either to confirm or deny.
DR OZDOWSKI: Thank you. It is what my understanding is. Thank you. Now, perhaps it would be an opportunity for DIMIA and ACM to put any other matters on the public record if you would like to do it but before I will ask you to speak, perhaps I need to mention that it is the job of Human Rights and Equal Opportunity Commission to inquire into acts and practices of Commonwealth departments from the point of view of their compliance with the human rights as is stated in our legislation, and part of the definition includes the Convention on the Rights of the Child.
Basically this what this Inquiry is about, we are trying to find out whether the acts and practices of the Department of Immigration are compliant with the Convention on the Rights of the Child and some other instruments. The Human Rights Commission Act also gives us quite wide ranging powers how to conduct the Inquiry and the method of this Inquiry is very much a reflection of these wide ranging powers which we used. Possibly this flexibility which the legislation gave us requires that we give you consideration to all evidence which is put before us.
The purpose of this hearing was to test the evidence provided so far and in particular to give DIMIA an opportunity to address all the allegations which were put forward to us during the hearings where other organisations and individuals participated, and to provide further evidence from DIMIA in addition to their written submission which we received some time ago. I must say that their submission wasn't as helpful as I would have anticipated and it wasn't helpful mainly because it was referring to one particular point in time and as we have seen over the last four days, there was a process of change and of significant change.
Consequently, their submission didn't show us that. It, I think it should have shown this.. But in four days I understand it is very difficult to respond to all allegations so basically you do have this final opportunity to address the issues if you would like to provide any additional submission or any additional materials. For example, if you would like to provide us with materials you prepared for this hearing, maybe you prepared statistics or diagrams or other materials which would be useful for us writing the final report.
I would welcome very much for you to table these materials or to provide them to us at a later date. As you know, your minister has paid enormous attention to detail and most of the reports dealing with immigration detention centres in Australia were criticised by the minister because there were some errors of fact. So it is consequently my firm commitment to deliver a report which will have as few errors of fact as is humanly possible and therefore I need as much of your views on the material which was provided to us from other sources so I could form a fair and balanced judgment.
So having said that, I would like perhaps to invite first the Department of Immigration to address any outstanding issues which, in your view, are important and then I will ask ACM to do the same. Thank you.
MS GREAVES: Thank you, Commissioner. I just observed that not all of the allegations raised in the many, many submissions that were made to this Inquiry are capable of being addressed during the four days of this hearing.
DR OZDOWSKI: I fully agree.
MS GREAVES: I guess we might want to come back on some of them to you if we feel a need. In a short period ---
DR OZDOWSKI: Okay. You would like to have more public hearings?
MS GREAVES: No. No, thank you, but if there is anything in particular that we want to draw to your attention ---
DR OZDOWSKI: Please do.
MS GREAVES: --- I think we will endeavour to do that in the shortest possible time. There was just one other matter that I wanted to mention, Commissioner, and that was just referring to your summing up of our position on mental health. I don't think that anything that we said was to deny that the loss of liberty can be stressful for some people and some families and all we were trying to say, I think, was that it is not necessarily the only contributing factor.
But whatever the cause, what we attempt to do in the detention centres is to provide assistance, to identify the problems and to provide medical assistance, including assistance from mental health experts including external specialists for detainees in that situation. I guess the other just general comment that I would make in relation to our international obligations is that the Government is of the view that the legislature, both Commonwealth and State, the law, the administrative procedures that we have in place and policy documents that we have in place, do together meet our international obligations under the CROC.
That is not to say that in individual circumstances there might not be a situation where an individual acts not in accordance with those requirements but we have attempted in Government to put in place a system which is compliant with our international obligations and we believe, the Government believes that we are, in putting that in place, we have aimed to meet our obligations under the CROC.
DR OZDOWSKI: Thank you, Ms Greaves.
MR BROMWICH: Commissioner, there was one earlier point. Ms Godwin, as you are aware, was unwell and I think you had made an offer that she could review the transcript to see if she had any particular further comments to make. I think it is the Department's wish to take you up on that offer. It is not that we particularly anticipate anything but we are just not sure.
DR OZDOWSKI: Not the exactly - I think you said. My understanding is that the transcript will be provided to her and that if she wishes she can provide any comments. However, it is not to say that I will be editing the transcript or changing it and so on, just to make it clear.
MR BROMWICH: I took it to be making comments on that as arising particular matters either arising in her absence or when perhaps she was unwell and not fully composed as to what was - the implications of something that was being said. I wasn't talking in terms of a review of the transcript in that sense. I meant a review in terms of issues raised.
DR OZDOWSKI: That is fine. Yes, I'm open to additional submissions, comments or additional materials and I would welcome the Department to - and as well as ACM - to provide any materials within a reasonable timeframe here because the issue is we need to finish the report. It is already overrun its timeframe so I will be trying to finish it as early as possible.
MR BROMWICH: Commissioner, a number of questions on notice have arisen during the past four days. If I could indicate this. The questions that have arisen fall into three broad categories. Some that we are in a position to answer now. Some which we believe we will be able to answer within - or by the end of next week and a small number of questions which we can't be 100 per cent sure of how quickly they can be answered because inquiries are still being made to gauge the size of the task involved.
The most telling one in that regard is in relation to dealings with state welfare authorities and what they have sought in relation to particular cases. That is likely to involve a review of individual files and it is just not easy to determine in the abstract how time consuming or difficult that will be. What I propose to do, Commissioner, is to ask, I think, Ms McPaul if she can deliver the answers to some of the questions immediately and they are a couple of the matters that were of concern during the past four days. It won't take very long, if that is a convenient course..
DR OZDOWSKI: I don't see a problem but I would like to ask Counsel Assisting
MR WIGNEY: No, no, I don't see any problem.
DR OZDOWSKI: You don't? Okay. Yes, okay, we can go and answer the questions which could be responded to.
MS McPAUL: There were, as I understand it, a number of different questions but some of them we can give an update on today. I think there was a question asked about the number of single men in the compound at Woomera, currently accommodated in the compound at Woomera with some of the family groups who are there. I'm advised that today there are a total of 85 people in that compound, of which 62 are single men. The remainder are family groups.
DR OZDOWSKI: Thank you.
MS McPAUL: I think Mr Kelly is just rightly reminding me that I should put that in context, that the compound is a very large compound, able to accommodate some hundreds of detainees and it is my understanding that the family groups have their own accommodation unit for each family group within that compound and a separate - and the single men are accommodated in separate accommodation units. I think there was also a question asked on the 2nd of December about the rates of absconding for individuals and families who have been unsuccessful in receiving a protection visa application.
I have here a document that I'm prepared to table but in summary it is indicating that in the 2001-2002 program year, the number of failed protection visa applicants totalled 6255 and of these failed applicants, 2243 or roughly 36 per cent remained as unlawful overstayers in the Australian community.
DR OZDOWSKI: What I was particularly interested is the issue of family groups and absconding behaviour at different stages of processing, because my understanding is (from some evidence I have got during my recent visits to the United States) that family groups during the first stage of processing before the decision is made, are very unlikely to abscond.
MS McPAUL: Well, I think that that is probably consistent with the view that Ms Godwin expressed the other day which is that at the beginning of the process, people are more likely to make themselves available rather than at the end of the process when it is known that the outcome that they were seeking, that is to be able to remain in Australia, is one that is not likely to be achieved. So there is a correlation there between, I think, the risk of absconding and ---
DR OZDOWSKI: Yes, it is exactly the kind of analysis that I'm looking for.
MS McPAUL: But I think the capacity for the Department to desegregate these figures to specify family groups is not likely. But I am prepared to provide this information formally.
DR OZDOWSKI: Now, your figures relate to the Australian situation?
MS McPAUL: Yes, they do.
DR OZDOWSKI: And to authorised arrivals?
MS McPAUL: To failed protection visa applicants.
DR OZDOWSKI: But who are authorised arrivals, who arrive here with visas and ---
MS McPAUL: If they were in the community, it is likely that they were authorised arrivals ---
DR OZDOWSKI: Yes, authorised ---
MS McPAUL: --- as the unauthorised arrivals would, of course, have been detained.
DR OZDOWSKI: Exactly. Yes.
MS McPAUL: So we are willing to
DR OZDOWSKI: So it is a different category again?
MS McPAUL: Well, it is indicative if you ask for some figures ---
DR OZDOWSKI: No, no, fine, fine. I'm grateful.
MS McPAUL: --- in the time frames we can provide that particular piece of information.
MS GREAVES: Commissioner, we also have just a two page run down of the material that we have pulled together on the experience of other countries in terms of absconding rates. You will appreciate that a lot of countries don't publish this information on the rates of absconding asylum seekers but we have got some indicative figures from a number of countries. The United Kingdom, United States, France, Switzerland, Norway, Ireland and Germany and we thought that may be of interest to you.
DR OZDOWSKI: Thank you.
MS McPAUL: In addition, I think you asked on the 2nd of December for some additional information about the nature of the training courses provided to our Deputy Managers in preparation for them attending their functions in the centre. I have here as well a two page summary of the key areas that the course covers and indicates the key subject areas that those managers are provided with training on. It includes things relating to immigration processing and status, importantly, the monitoring and assessment of ACM's service delivery obligations, contract management concepts, some practical action that our staff are expected to take, the role of our staff in the detainee contact and liaison role within the centre and outside, and some further material on the management of assets and finances in the centre. So I'm prepared to provide that as well for the assistance of the Inquiry.
DR OZDOWSKI: Thank you.
MS McPAUL: Further, I think there were some questions of a general nature raised yesterday about the nature of the educational qualifications for some of the ACM staff presently at the Woomera centre and I'm advised that on the 30th of September this year, there were, in fact, five teachers available for the centre and the children in the housing project. These teachers - I will just call them teachers 1 through 5. The first teacher I have listed here has a Bachelor of Education and a Graduate Certificate of Educational Management.
The second teacher has a Certificate of Registration in Primary Teaching and an Infants Teachers Certificate. The third teacher has a Bachelor of Education and a Diploma of Teaching. The fourth teacher has a Bachelor of Education, a Diploma of Teaching and a Master of Education with a TESL component. The fifth teacher has a Master of Education, Bachelor of Education and a Diploma of Teaching, as I understand it. We could, on notice, provide what we know to be the educational qualifications of ACM staff at other centres if that would be of assistance to you.
I think it is important also to say that we've been monitoring the qualifications of the teachers delivering education for some time now and you might be aware that on the Department's web site, there has periodically been placed an updated amenities table that I believe contains some of this material which you could refer to but we are happy to provide you with an update if that would be of assistance. I think that is probably all of the questions that we understand to be on notice and which we can provide a concrete answer here today.
As Mr Bromwich said, there is obviously a number of other questions which people are either working on now or which will take us a few days next week to compile in a state that is sensible and can be presented to you so we will undertake to do that.
DR OZDOWSKI: Yes, please. Please exercise some judgment there, in the area and in the light of other evidence where you didn't have a chance or didn't make, or chose not to make initially, your own contribution, to put your own side of the story because possibly you have got most time as a single organisation and in terms of public hearings, no other organisation would have four days but it is about your problems, your policies and you possibly know best as how to respond to allegations made.
MS GREAVES: Commissioner, as we say, we will try to give you an indication next week if there is anything - any of the questions where a more complicated answer is required and more research to be done and searches through documents to be done and if it looks as though it will be longer than next week, then we will let you know next week, if that is all right.
DR OZDOWSKI: I would intend at this stage as to have a draft report ready possibly some time close to end of February/March and we still need to review a whole lot of materials but if we receive your materials prior to Christmas, or most of them, you can be assured they will be considered in preparation of the report. Now, do we have any other issues, Counsel Assisting?
MR WIGNEY: I simply had three largely procedural matters to raise. Firstly, and it really follows from what has already been discussed this afternoon, it will have been obvious that not all of the relevant topics that have been dealt with, for example, in the Department's submissions, have been dealt with in the course of this public Inquiry. The fact that we have not specifically, in the course of this public hearing, addressed a particular topic, or the fact that we have addressed it briefly, or the fact that we have not, for example, challenged a particular submission in the Department's written submissions, should not be taken as any indication or expectation that the Commission does not take issue with that topic or the submission made by the Department.
No doubt when the draft report is provided in due course, the Department will have an opportunity to comment on other matters that have not been raised in the course of this public Inquiry. Secondly, just in relation to two matters that have been raised and particularly in relation to the documentation, firstly in relation to the comment made about the late notice of the case studies, can I assure the Department that there has been no attempt to disadvantage the Department in the public hearing in dealing with those case studies.
The fact is that the Commission received a large number of documents, as you know, over the course of the last few days as the red eyes of those that instruct me will be testimony to, and we've obviously been working hard to endeavour to put those together in some form that we can deal with during the public hearing. So there was no - obviously no intention to disadvantage the Department in that respect and likewise in relation to the suggestion that a list of documents that would be the topic of evidence be provided.
Again, there has been a huge quantity of documents produced and the Commission staff have spent a considerable amount of time going through them and there really was no concrete decision as to what documents would or would not form the, part of evidence and cross examination. So again there was no intention whatsoever to make things difficult for the Department in addressing the questions that were put. Rather really the intention of putting together the bundles of documents was to make it easier to address the topics in evidence.
They were the only matters that I wished to raise, Mr Commissioner, other, of course, to thank the Department for their cooperation and assistance.
MR BROMWICH: Commissioner, I've been asked to just give a very short form submission and when I say short, I mean measured in minutes. Just by way of a wrap up of the Department's position in relation to the public Inquiry over all. So with your leave that is what I seek to do now. Commissioner, in addition to Ms Godwin's opening statement, the Department wishes to submit that, with respect, it is neither valid nor logical to point to perceived problems or shortcomings with individual cases and conclude that this applies to most or even any other cases. It's a process of example, but it does not necessarily apply across the spectrum.
Secondly, the Department submits that judgments ought not be made about what has occurred in isolation or out of context. The Department was dealing with an unprecedented influx of boat people, a fourfold plus increase and a substantial change in composition from mostly single adult males to include large numbers of family groups and unaccompanied minors. A telling statistic in that regard, Commissioner, is that in the 1999-2000 year, a total of 790 temporary protection visas were granted. That is not processed or people arriving. That is the grant of visas. That figure, the grant of protection visas, leapt in 2000 to 2001 to 4382. That means that the Department dealt with, processed and granted 4382 protection visas in the 2000-2001 year alone. That reflects very substantially where the efforts of the Department were being invested. Moreover, what the Department was dealing with had to be dealt with in a particular legal framework so it wasn't as though that volume of work was being done in some loose or light fashion. It was a very detailed exercise.
Having regard to the available physical and human resources to the Department, the Department submits that its performance was reasonable in all the circumstances, particularly in responding to those rapidly changing circumstances as they emerged. Commissioner, the Department's approach, as reflected in its written submissions and opening statement, is to look to the present and the future with the past being used in aid to that objective and I noted a short while ago, Commissioner, you stated that the object of the Inquiry was to see whether the acts and practices of the Department are compliant with its obligations.
We take that as a form of encouragement that - to the extent the future is referred to. It is being referred to in aid of assessing the current compliance. It should be noted in that regard, Commissioner, that the submission by the Department in particular was reflecting the state of affairs in April/May 2002 which was reflecting what the Department saw as its current compliance with its obligations. That is not to say history is unimportant but that is the proper use to be put to it.
Finally, Commissioner, in each of the four case studies we have considered this week, it needs to be remembered that the great bulk of the period in detention occurred after the detainees were found not to be refugees. The Department submits that issues concerning immigration status and removal cannot and should not be ignored, either as a matter of law or as a practical and relevant consideration in the approach taken by the Department. Those are the submissions the Department wishes to make at this time. Thank you, Commissioner.
DR OZDOWSKI: Thank you very much. Unfortunately, we can't go home because I just forgot - I just reminded myself that I didn't ask questions about food and children so I would like to return to that one. I know you are ready to go but allow me. It won't take very long. There are a few issues I would like to ask. First issue is the evidence we got some time ago that in the year 2000, there was $4 allocation per person in detention centre for food per day. Is it correct? I heard the figures six and seven [dollars] in terms of the context of the special housing project. If you can answer this one now ---
MS McPAUL: Do you mean money paid to detainees for food or you mean money allocated for the purposes of providing ---
DR OZDOWSKI: No. In terms of allocation for purchase of food or allowance for purchase of food for detainees, it was $4 per day per person.
MS McPAUL: With respect, I'm not sure that that is a question that is best put to the Department, mainly because the Department pays a detention services fee that encompasses a number of components. That fee is, I think we have mentioned, designed to cover nutrition and other things. It may be something that ACM may be ---
DR OZDOWSKI: Yes, I accept your argument.
MS McPAUL: --- to respond to.
DR OZDOWSKI: Could I put that question to ACM?
MR RUSHTON: Can I take that on notice, Commissioner? I don't have the answer here.
DR OZDOWSKI: Thank you. If you perhaps - if there were changes but my understanding is that the amount was allocated in the year 2000. So if there were any changes since then, if you could say. The second issue is special meals for children. Regularly there was in evidence put to us that the special dietary needs of children were not catered for both in terms of quality of food and in terms of timing of availability of food. I would like to have your point of view about it and possibly I think ACM possibly would be better in terms of responding to that questions because you were delivering it.
MS McPAUL: For which period and for which centres? All of them?
DR OZDOWSKI: Basically in all centres I heard that complaint. Maybe less, yes, maybe less in Villawood and Maribyrnong and in Perth but certainly yes, Curtin, Port Hedland and Woomera.
MS McPAUL: And the time period?
DR OZDOWSKI: I beg your pardon?
MS McPAUL: The time period.
DR OZDOWSKI: Times were different but the issue is where the special meals provided for children and if so, during what - in which periods of time.
MS McPAUL: I guess just - we could just say something general about that which is that is my understanding that special food for children and infants is available in the centres. This includes access to milk for children and special food is available on request and readily and easily available on request. So if I can just put that context around it, I'm sure ACM can provide you with some specifics.
DR OZDOWSKI: If you look on the transcript and on other evidence, we received certainly it was not the view of parents who were in the detention centres. The last one was, to question if special formula milk - which again we were told on a number of occasions that it was available but not always -and one of the mothers told us that she had to go four days without access to formula milk for her baby and that she had to feed the baby with water and sugar during that time.
MS McPAUL: Can I just say that in general I am not aware of such an instance having occurred and it might be of assistance to the Commission to understand the general arrangements that I understand to be in place for provision of formula in the centres. As I understand it, the IDS require that facilities, equipment and professional support to enable detainee mothers to care for a nursing infant be provided and that mothers are provided with information and support to encourage them to breast feed their children.
But where this is not possible or the mother decides against breast feeding, baby formula and sterilised bottles are available for detainee infants and children at all times. To ensure that the formula is prepared to an acceptable health and sterilisation standard, infants - and that infants are provided with the correct amount of formula, and that regular contact is maintained between the health staff and the parent or parents of the infant - it is our understanding that the services provider has adopted the following process for providing instant formula at the centres.
This process is that health staff sterilise all the equipment required for the provision of infant formula. The formula is prepared in individual bottles according to the feeding requirements of the infant or infants at the IDF health centre. All the bottles are clearly labelled to avoid mis identification. They are refrigerated at the health centre or in a similar convenient location in the centre and that parents or detention officers are able to collect the bottles from the health centre staff as required.
So that is my understanding of what the process is generally in the centre. That is not to say that there may not have been an individual case but ---
DR OZDOWSKI: You have a theoretical description or a standard description.
MS McPAUL: But which reflects what ---
DR OZDOWSKI: What I was hearing in terms of hygiene, accessibility are the issues. The picture is different and I draw it to your attention to give you an opportunity to eventually ready the evidence and comment on it.
MS McPAUL: Look, Commissioner, if you - yes. If you have got the particular details that were raised with you, we would be happy to hear about that, perhaps outside this direct forum and provide you with further advice, if we can, about those cases.
DR OZDOWSKI: Thank you. Now, I finish with the outstanding questions. So possibly I would like to put on the record thank you to the Department of Immigration for providing the thousands of pages under the subpoena. I know the exercise was very time consuming and staff demanding for you but I think it was an exercise which will benefit the future work of your Department. Thank you very much. I officially close this hearing. Thank you.
ADJOURNED INDEFINITELY [3.30pm]
Site navigation
Change font size: 
