6. Australia's Immigration Detention Policy and Practice

A last resort?

National Inquiry into Children in Immigration Detention

6. Australia's Immigration Detention Policy and Practice

Australian law requires the detention of all non-citizens who are in Australia without a valid visa (unlawful non-citizens). This means that immigration officials have no choice but to detain persons who arrive without a visa (unauthorised arrivals), or persons who arrive with a visa and subsequently become unlawful because their visa has expired or been cancelled (authorised arrivals). Australian law makes no distinction between the detention of adults and children.

This Inquiry accepts that mandatory detention for a strictly limited period designed to obtain basic information about health, identity, security and basic information that supports a visa claim, may form a legitimate part of a system of immigration controls, as long as the detention is subject to effective review by a court.⁽¹⁾

Mandatory detention in Australia, however, goes well beyond this. When children arrive in Australia without a visa and are seeking asylum, they are required to stay in detention well beyond the period of time it takes to gather basic information about an asylum claim, health, identity or security issues. Both adults and children must stay in detention until their asylum claim has been finalised or a bridging visa has been issued. The consequence is that these children are often detained for months and sometimes for years, many of them in detention centres in remote areas of Australia. Under the Migration Act 1958 (Cth) (the Migration Act) there is no time limit on this detention and only very limited review by the courts is available. It is this long-term, indeterminate and effectively unreviewable mandatory detention of children that is the key concern of this Inquiry.

The Inquiry recognises that there are children in immigration detention who are not asylum seekers - usually children who have overstayed their visa. Those children tend to spend a much shorter period of time in detention because they are detained to facilitate deportation. Furthermore from 1999 to 2002, children overstaying their visa constituted under 5 per cent, on average, of children in immigration detention. These children have the same rights in detention as children seeking asylum. Therefore, while the primary focus of the Inquiry is on children who are unauthorised arrivals seeking asylum, the rights discussed in this and following chapters should be understood also to apply to children who are detained for having overstayed their visa.

This chapter addresses the following questions regarding Australia's detention policy and practice:

6.1 What are the human rights relevant to the detention of children?
6.2 What is the history of mandatory detention in Australia?
6.3 When are children detained?
6.4 Where are children detained?
6.5 Is detention in the 'best interests of the child'?
6.6 Are children detained as 'a measure of last resort'?
6.7 Are children detained for the 'shortest appropriate period of time'?
6.8 Can courts provide effect review of the legality of detention?
6.9 Is the detention of children 'unlawful' and 'arbitrary'?

There is a summary of the Inquiry's progressive findings on these issues and two case studies at the end of the chapter.

6.1 What are the human rights relevant to the detention of children?

United Nations instruments have defined what is meant by 'detention' as follows:

Deprivation of liberty means any form of detention or imprisonment or the placement of a person in another public or private custodial setting from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.

United Nations Rules for the Protection of Juveniles Deprived of their Liberty, rule 11(b)⁽²⁾

UNHCR considers detention as: confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory.

UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, guideline 1⁽³⁾

The 1998 Human Rights and Equal Opportunity Commission (the Commission) report on immigration detention, Those who've come across the seas, examined Australia's detention policy as it applied at that time to adults and children, and found that it was inconsistent with and contrary to human rights.⁽⁴⁾ This Inquiry applies much of the reasoning used in that report, but focuses specifically on whether Australia's detention policy contravenes the rights set out in the Convention on the Rights of the Child (CRC), which are much more specific and demanding than those contained in the International Covenant on Civil and Political Rights (ICCPR).⁽⁵⁾

Article 37(b) and (d) of the CRC provide that:

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; ...
(d) Every child deprived of his or her liberty shall have the right to promptaccess to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Thus article 37 of the CRC contains four key elements relating to the human rights of children:

detention of a child must be a measure of last resort
any detention of a child must be for the shortest appropriate period of time
every detained child has the right to challenge the legality of his or her detention before a court or other competent, independent and impartial authority, and to a prompt decision on any such action
no child should be detained unlawfully or arbitrarily.

The international law regarding each of these issues is discussed in more detail in sections 6.6, 6.7, 6.8 and 6.9 respectively. However, at this stage the Inquiry notes that the provisions of article 37 of the CRC are generally reiterated in several of the United Nations High Commissioner for Refugees (UNHCR) guidelines on refugee children⁽⁶⁾ and the provisions of article 37(b) are repeated throughout relevant UN standards on children. For example, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the JDL Rules) states that detention 'should be used as a last resort' and 'be limited to exceptional cases'.⁽⁷⁾ The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), which also provide some guidance regarding the treatment of children who are not charged with a crime, state that any detention should be brief⁽⁸⁾ and that it should only occur where the child has committed 'a serious act involving violence'.⁽⁹⁾

The UN Committee on the Rights of the Child raised the placement of children in immigration detention centres as one of its 'Principal Subjects of Concern' in its concluding observations on Australia's periodic reports.⁽¹⁰⁾ The UN Human Rights Committee has also found, on several occasions, that Australia's immigration detention system breaches human rights.⁽¹¹⁾

There is a substantial divergence between views of the Inquiry and the Department of Immigration and Multicultural and Indigenous Affairs (the Department or DIMIA) regarding the correct interpretation of article 37(b) of the CRC.⁽¹²⁾ Those differences can be summarised as follows: whereas the Inquiry is strongly of the view that international human rights law requires the rights of each individual to be considered and protected, the Commonwealth asserts that international law permits the application of public policy measures to a group of people as long as that general policy is 'legitimate, non-punitive and proportionate'.

The effect of the Commonwealth's position is that the mandatory detention of children who are unlawful non-citizens would not breach article 37 of the CRC because there are 'legitimate, non-punitive and proportionate' reasons behind the policy which requires their detention. The Inquiry rejects this proposition, because it is not supported as a matter of international law. A proper application of article 37 requires a case-by-case assessment of whether the detention of each and every child is justified in the individual circumstances. While the execution of legitimate policy goals may be one of the circumstances to consider in such an assessment, it will not be the sole or determinative factor in assessing whether the detention of an individual child accords with the right to liberty under international law. The Inquiry's interpretation is consistent with the views of the UN Human Rights Committee (see section 6.9 below).

Article 3(1) of the CRC requires Australia to ensure that the best interests of the child are a primary consideration 'in all actions concerning children'. In order to comply with article 3(1), the Commonwealth - relevantly here the Parliament, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) and the Department - must specifically address its attention to the impact of detention on children, and make their best interests a primary consideration in deciding what laws will regulate immigration in Australia and how those laws should be administered.

As discussed further in Chapter 4 on Australia's Human Rights Obligations, in order to comply with article 3(1), laws in relation to immigration detention must permit - and the Executive must make - individualised decisions regarding the best interests of each child. Such individualised decisions should relate not only to the question of whether or not a child needs to be detained, but also to the circumstances and manner in which that detention is to take place.

As discussed throughout this report, there are a variety of factors that make up what may or may not be in the best interests of the child. This chapter concentrates on two factors - the liberty of the child and the protection of family unity (see especially article 9(1), CRC).

Also of relevance is the requirement that asylum-seeking children receive the appropriate assistance to enjoy their rights under the CRC (article 22(1)). Furthermore, special attention and assistance must be provided to unaccompanied children to ensure that they can enjoy their right to liberty and that their best interests are a primary consideration (article 20, CRC).

Finally, several submissions to the Inquiry have argued that article 31 of the Refugee Convention - which prohibits the imposition of penalties on certain asylum seekers who arrive without a visa - is also relevant to a discussion of Australia's detention policy. While the Inquiry is of the view that the Refugee Convention is relevant to immigration detention, it has focussed its analysis on the CRC in this chapter on the basis that the protections under article 37(b) of the CRC are stronger than those in the Refugee Convention.⁽¹³⁾

6.2 What is the history of mandatory detention in Australia?

Prior to 1992, Australian law permitted the detention of certain persons who were in Australia without a valid visa but did not require it.⁽¹⁴⁾ The introduction of mandatory detention laws in 1992 was a reaction to the arrival of 438 Vietnamese, Cambodian and Chinese 'boat people' to Australia's shores between November 1989 and January 1992.⁽¹⁵⁾ Concerns about another 'influx' spurred bipartisan support for increasingly tough measures on persons who arrived in Australia without a visa.

The 1992 legislation both required mandatory detention of certain 'designated persons' and prevented any judicial review of detention by specifically providing that 'a Court is not to order the release from custody of a designated person'.⁽¹⁶⁾However, the legislation did impose a 273-day time limit on detention.⁽¹⁷⁾

Another increase in boat arrivals and asylum applications in 1993 and 1994⁽¹⁸⁾ resulted in the Parliament broadening the application of mandatory detention to all persons who either arrived without a visa or who were in Australia on an expired or cancelled visa.⁽¹⁹⁾

The 1994 legislation also removed the 273-day time limit on detention and instead provided that an unlawful non-citizen could only be released from detention on the grant of a visa, removal or deportation from Australia. The 1994 amendments also introduced a non-compellable discretion in the Minister to issue bridging visas which would allow for the release of persons who were otherwise mandatorily detained. The limitations on judicial review of detention that were introduced in 1992 remained.

In 1999, the Australian Government introduced legislation that increased penalties for 'people smuggling' offences and that prevented this Commission from sending letters informing detainees of their right to legal assistance. However, that legislation did not alter the mandatory detention provisions regarding unlawful non-citizens.⁽²⁰⁾

The next major change to the mandatory detention policy occurred in September 2001 when a raft of amending legislation was enacted in reaction to what has become known as 'the Tampa crisis'⁽²¹⁾ and in pursuit of the so-called 'Pacific Solution'.⁽²²⁾ Amongst the series of changes that were introduced by this legislation was the designation of Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands as 'excised offshore places'. The legislation enables the transfer of persons who are intercepted at sea or who land on any of those excised offshore places, to processing centres on Nauru or Manus Island in Papua New Guinea. The legislation also prohibits those persons from making a protection visa application, other than at the discretion of the Minister. See further section 6.4.4 on the 'Pacific Solution'.

6.3 When are children detained?

As set out above, the effect of the Migration Act is to require an immigration officer to detain all 'unlawful non-citizens' present in Australia.⁽²³⁾ Those detained may only be released if granted a visa or removed from Australia.⁽²⁴⁾ Asylum seekers must stay in detention until either a bridging visa or protection visa has been granted, or they are removed from Australia. This can take weeks, months or years.

There are no special considerations regarding the initial detention of unlawful noncitizen children as opposed to adults. While the Migration Regulations 1994 (Migration Regulations) do contemplate the early release of children by the grant of a bridging visa, between 1999 to 2002 they were issued to only one unaccompanied child, one mother and her two children (leaving the father in detention) and one whole family who arrived unlawfully by boat. This is discussed further in section 6.7.4 below.

Since September 2001, any family or unaccompanied child who has landed, or is seeking to land, on Christmas Island, Ashmore and Cartier Islands or Cocos (Keeling) Islands, or any other place determined to be an 'excised offshore place', without a visa may be detained as 'excised offshore persons'. The reason this is a discretionary rather than a mandatory requirement appears to be to facilitate the transfer of excised offshore persons to Nauru and Manus Island.⁽²⁵⁾ The Department has stated that the 'discretion to detain is likely to be exercised unless such persons are moved to an offshore processing place'.⁽²⁶⁾ Thus, in practice, 'excised offshore persons' are detained either on Christmas Island, Nauru or Manus Island in Papua New Guinea.⁽²⁷⁾Almost all of those persons are also asylum seekers and they will remain in detention at least until their refugee status processing is complete.

Some children and families arrive in Australia on one type of visa, for instance a tourist visa, and then apply for protection as a refugee (authorised arrivals). If a family or child seeks asylum while the original visa is valid, the Department will usually issue a bridging visa pending the outcome of their application so that the person is not detained. If a family or child seeks asylum after the original visa has expired then they may be subject to mandatory detention. However, in practice these persons are almost always granted a bridging visa immediately upon lodging a protection visa claim and therefore 'released' within hours of being detained. In most cases they are not taken to a detention facility at all.⁽²⁸⁾

Other reasons a child must be detained include overstaying the period of a visa or cancellation of a visa due to breach of conditions. Those children will generally be eligible for bridging visas that will restore their lawfulness and avoid detention.⁽²⁹⁾

6.4 Where are children detained?

The vast majority of unauthorised arrival children and families detained under Australia's mandatory detention laws have been held in secure immigration detention facilities like Woomera, Port Hedland, Curtin and Baxter which are described in some detail in Chapter 3, Setting the Scene.⁽³⁰⁾ Accordingly, the majority of the Inquiry's report focuses on examining whether the conditions within those facilities comply with the CRC.

However, the Migration Act permits the Minister to approve any place to be a place of 'immigration detention'. The Secretary of the Department must also direct a person to 'accompany and restrain' the detainee for the purposes of immigration detention.⁽³¹⁾That person need not be an officer of the Department or Australasian Correctional Management Pty Limited (ACM).

Prior to 2001, the Minister's power to declare a place of 'immigration detention' was generally used to facilitate the provision of certain services outside immigration detention centres. For instance, a motel may have been declared a place of detention to allow for temporary accommodation, a hospital may have been declared to allow medical treatment of a detainee, or a school may have been declared to allow certain children to attend outside schools.⁽³²⁾

In August 2001, the Minister exercised those powers to establish a Residential Housing Project (RHP) near the Woomera detention centre. Further, in January and February 2002, the Minister declared several homes in Adelaide to be places of detention for unaccompanied children in foster care (home-based detention). The Department describes the aim of these 'innovative approaches to alternative detention arrangements' to be to 'respond to the needs of particular groups such as women and children and unaccompanied minors'.

The Inquiry agrees that these initiatives represent a positive step forward regarding the conditions in which women and children are detained. However, it must be remembered that these places are not alternatives to detention, but rather alternative forms of detention. The Department retains full control and responsibility for everything that happens to children in these places.

The following sections discuss:

6.4.1 The Woomera Residential Housing Project
6.4.2 Home-based detention
6.4.3 Findings regarding alternative places of detention
6.4.4 'Pacific Solution' detention facilities

6.4.1 The Woomera Residential Housing Project

The Woomera RHP is a more friendly detention facility set up for a small number of mothers and children among the detainee population. It was opened on a trial basis on 7 August 2001. The Department stated that:

The trial was intended to look at ways in which alternative detention arrangements could be made which would provide a more 'normal' existence for children with their mother or guardian, whilst still abiding by the terms of the Migration Act 1958.⁽³³⁾

When established, the Woomera housing project consisted of a cluster of three houses to accommodate detainees and a fourth house for ACM staff and communal activities. Originally, at full capacity the housing project could accommodate 25 women and children. The project was expanded in 2003 to a capacity of 30-40 detainees, depending on family composition.

The houses are located in the Woomera township, a short distance away from the Woomera detention centre. Each of the three original houses has three bedrooms and a communal lounge area and kitchen. The Inquiry has not visited the expanded project but understands that the houses have a similar configuration. In the centre of the houses is a grassed area and garden which is tended by the detainees. Unlike in the Woomera detention centre, the detainees are given a budget to spend on food ($7 per person per day), do their shopping in the local supermarket and cook for themselves. This is an attempt to provide more autonomy to mothers.

View of communal garden and an accommodation unit at the Woomera Residential Housing Project, June 2002.

Prior to the closure of Woomera detention centre in September 2002, children in the housing project attended the same education and recreation activities provided for the children in the detention centre. In addition, they participated in additional excursions such as food shopping trips.

The housing project has a calmer, quieter atmosphere and is more attractive than the detention centre. There is no razor wire or palisade fencing surrounding the cluster of houses, although there is an infrared detection system. Detainees are not free to leave the area without being accompanied by an ACM guard and cannot leave their houses to go to any of the communal areas after 11pm.

View of communal garden and an accommodation unit at the Woomera Residential Housing Project, June 2002.

The Department opened a housing project in Port Hedland in September 2003 and in Port Augusta, near Baxter, in November 2003.⁽³⁴⁾

(a) Who can be detained at the Woomera Residential Housing Project?

Participation in the Woomera RHP is voluntary but not all who want to live there are eligible, nor can all eligible detainees be accommodated. As at 12 December 2003, two children were housed there. 81 children have been accommodated there since the project began.⁽³⁵⁾

Detainees who wished to be transferred to the Woomera RHP had to submit an application form which was considered by a panel consisting of the ACM Centre Manager and Health/Welfare Manager, the Department's Manager and a resident of the Woomera township.⁽³⁶⁾

All detainees had to be volunteers and either:

women accompanied by children (excluding boys aged 13 and over) who have an immediate family member at the Woomera (or Baxter) facility, or
unaccompanied female minors, or unaccompanied boys under 13, or
unaccompanied women with or without children.

They must also have passed initial health checks, pose no known management risk and agree to the conditions of participation including:

not to leave the boundary of the property without an officer
to be sensitive to the needs and wishes of other participants
to behave in a responsible manner.⁽³⁷⁾

As indicated above, fathers and boys aged 13 years or over, were ineligible to live at the housing project - although there were visiting rights. This rule was changed in September 2003 so that boys aged between 13 and 17 were permitted to live there. Both the old and new eligibility rules meant that women and children from two-parent families were separated from their husbands and fathers and some were separated from sons and brothers.

During the first year of the housing project, only detainees who were awaiting their primary refugee decisions were permitted to participate (although, when a family lodged a merits appeal at the Refugee Review Tribunal after they had already been transferred to the housing project, they were usually permitted to stay). It appears that the reason for this criterion was that persons in the primary phase were regarded as a lower flight risk than those in appeal stages. However, the result of the policy was that those who had been in the detention facility for the longest were ineligible to participate. As the Department's Woomera Manager noted in February 2002:

this style accommodation benefits greatest those who are likely to be spending lengthy periods in detention - and [I] would support an approach being made to the minister or his office if that is required to attempt to achieve that end.⁽³⁸⁾

The Department did make changes to the criteria so that by the second year of the project, women and children (other than boys aged 13 and over) could move there at any time during their refugee status determination process, including during any appeal to courts. The fact that there were no actual or attempted escapes during the first phase of the project may have contributed to the change in policy.⁽³⁹⁾

Another change in the policy, in July 2002, was to permit the housing project selection committee to include:

a small number of women and children who do not meet the eligibility criteria but have compelling circumstances. This includes special needs cases and those who are vulnerable or at risk and who could otherwise not be accommodated appropriately in an immigration facility.⁽⁴⁰⁾

Migration Series Instruction (MSI) 371 on Alternative Places of Detention, issued by the Department in December 2002, opens the door to early transfer to housing projects, stating that '[e]very effort should be made to enable the placement of women and children in a RHP as soon as possible. All decisions should be made as expeditiously as possible'.⁽⁴¹⁾

(b) Why were fathers and boys aged 13 and over excluded from the housing project?

In its Fact Sheet on the Woomera housing project, the Department stated that '[f]or cultural and practical reasons males over 12 years could not be appropriately accommodated in the Project'.⁽⁴²⁾

During the hearings in December 2002, the Inquiry sought to clarify what the Department meant by the 'cultural and practical reasons' for excluding teenage boys and men.

MR WIGNEY (INQUIRY COUNSEL): ... The first point that you raised as being a reasonable rationale or principle behind not having fathers at the Woomera housing project was that it was necessary to provide culturally appropriate living arrangements, and I think that is a phrase that is used in the DIMIA submissions as well. What do you mean by 'culturally appropriate living arrangements'? Do you suggest that in some cultures it is not normal for fathers to reside with their families?

MS McPAUL (DIMIA ASS SEC (UNAUTH ARRIVALS)): I think what I was trying to refer to is the expectation that members of one family would be able to live in a culturally appropriate environment without any suggestion that there would be inappropriate interaction with males who are not of that part of that family group. So I'm not suggesting that it is inappropriate for family members to be together, rather that families need to be certain that whatever living arrangements are in place for them will be something that they are comfortable with personally.⁽⁴³⁾

Additional comments provided by the Department on this issue emphasise that consultations with detainees indicated that some women might choose not to participate if other women's husbands and sons were present:

for cultural reasons having males involved was expected to significantly influence the decisions of females who might otherwise wish to participate.⁽⁴⁴⁾

On the face of it this would appear to be a reasonable consideration. However, in the view of the Inquiry, it is important to examine this rationale against the background that within the Woomera detention centre itself, several families - including fathers and teenage boys - would share one 'donga' (demountable) in which the families were separated by a curtain only. The Department was pressed at the hearing to explain the distinction between the 'cultural appropriateness' of housing full families together in the Woomera detention centre and the housing project. The Department ultimately came back to the point that this was a project designed to encourage 'voluntary participation' of women and children and therefore the comparison was invalid.⁽⁴⁵⁾ This still does not explain why there was no effort to improve conditions for families where there were fathers and boys over 12.

The Department suggested that the capacity of the housing project meant that they could not provide separate facilities for older male detainees:

The overall capacity of Residential Housing Projects are relatively small, compared to the number of people in immigration detention. The need to provide separate facilities for males would further reduce the number of participants overall who could take part in the arrangements.⁽⁴⁶⁾

However, once again, this does not explain why the Department did not seek to increase the 'overall capacity' to accommodate this concern. Furthermore, it does not explain why the same 'cultural factors' did not require similar separation of families with teenage boys and men inside the Woomera detention centre.

It appears to the Inquiry that another possible reason for the Department's exclusion of teenage boys and men, was that they may be more likely to escape than women and children:

DIMIA ASS SEC (UNAUTH ARRIVALS): Commissioner, there are a number of factors that are also taken into account in the context of the housing project itself. As you may know, it is a low security environment, you've been there yourself and you've observed that. It is surrounded by just a normal colorbond kind of fence. So in making the operational decisions about who might participate in that project there are a number of different factors that we would take into account. As I said, participation in the project was voluntary so we needed to be able to encourage women and children to come forward to participate. Secondly, I guess, we also needed to have regard to the security aspects of all members of the family and I think it would be - my understanding is that it is more likely that women and children would be adequately accommodated in that less secure environment than some other family members that they may also have with them.

DR OZDOWSKI: So when you talk about security aspects you are implying that there is a risk of absconding of men?

DIMIA ASS SEC (UNAUTH ARRIVALS): That is one of the considerations.⁽⁴⁷⁾

The risk of escape is clearly a legitimate concern in principle. However, it is the Inquiry's view that this concern had already been addressed by the existing eligibility criteria which requires that any participant - mother, daughter or young boy - be assessed to be a low management risk. In the event that any child or parent was assessed as a high flight risk it may have been reasonable to exclude that individual, however this possibility does not explain the general exclusion of all men.

Finally, the Department stated that 'the trial was intended for women and children - therefore, there is no issue of why men and boys were excluded when they were not considered to fall within the intended scope of the project'. Such circular reasoning does not explain why the project was only intended for women and children (to the exclusion of men) in the first place.

Since 2 December 2002, the criteria has permitted boys up to 17-years-old to participate in the project (but not fathers or adult brothers).⁽⁴⁸⁾

(c) What is the impact of the separation from husbands and fathers?

A father of children who were living in the Woomera housing project had the following to say about the impact of separation:

Children need their father and they need to be all together, like mentally and spiritually we are all sick. Also, they have separated me from the rest of my family and now I am alone in the donga here and my depression has been more and this has had a negative effect on my whole family.⁽⁴⁹⁾

Independent examinations by the Department, the UN, this Commission, child welfare specialists and doctors of the Woomera housing project have all noted that although the environment in the housing project was an improvement on the Woomera detention facility, the separation of mothers and children from their husbands and fathers constituted a serious problem.

The Department commissioned an evaluation of the Woomera housing project in March 2002. That report found that 'participants have clearly benefited from the living conditions provided and it has been possible to maintain security with residents living in the town environment'.⁽⁵⁰⁾ The report notes that '[t]he residents and their husbands were unanimous in their views that living in the Project was a great deal better than living in the IRPC [Immigration Reception and Processing Centre]'.⁽⁵¹⁾ It also found that the 'physical separation of family members (with adult male family members remaining in the IRPC) has not been a barrier to detainees wishing to participate in the Project. However, the separation remains the major concern of families'.⁽⁵²⁾

In September 2002, the Inquiry joined with this Commission's Sex Discrimination Commissioner to investigate whether the housing project warranted the extension of an exemption from the operation of the Sex Discrimination Act 1984 (Cth). The exemption would protect the Department from complaints that there was discrimination against men by excluding them from participation. The then President of the Commission found that the improved environment for women and children meant that 'the continuation of the project is worthwhile and that the exemption to ensure the Project may operate without challenge under the Act is appropriate'.⁽⁵³⁾However, she also found that:

[I]n view of the distress caused to families as a result of separation of family members and the impact separation has on the development and wellbeing of the family unit the Commission strongly urges DIMIA to further pursue the broadening of access by husbands/fathers to their wives/children at the Project, including giving serious consideration to the provision of dedicated family accommodation at the Project.⁽⁵⁴⁾

By the time the Department sought an extension of the exemption in August 2003, the criteria had been expanded to include teenage boys but not fathers.⁽⁵⁵⁾

In July 2002, the United Nations Special Representative for the High Commissioner on Human Rights found that:

Families in detention are sometimes separated (e.g. in the Woomera family housing project, where wife and children are living in Woomera town, while the husband is detained in the centre), which, instead of providing adequate care to families, in fact appears to introduce another element of distress. While the efforts of the Government to provide alternate and more humane places of detention ...have to be recognized, it appears questionable whether the separation of families is advisable, even if the participation in the family housing project is completely voluntary.⁽⁵⁶⁾

The doctor treating patients from the housing project told the Inquiry that, when detainees first went to the housing project, they were content with the change in environment but that a year later the parents had great difficulty coping with the separation:

It is not difficult to predict that when you remove the husband or father from a family which is battling to cope in the face of mental illness and pressure that the mental health of the family will not improve and will likely deteriorate. Without stating the obvious, families do better with a caring mother and father together in the same household.⁽⁵⁷⁾

Further, the South Australian Department of Human Services (DHS)⁽⁵⁸⁾ report on Woomera in April 2002 commended the Department's efforts to transfer young children to more family-friendly quarters but recommended that:

Families must be kept together at all times, which includes their stay in detention as well as being released together.⁽⁵⁹⁾

Impact of the Woomera Housing Project on a family

In July 2002, a child psychiatrist assessed the condition of a family that had been in detention since December 2000:

It is extremely important for this family to remain together. There is a high risk that if the children were separated from their parents, or the mother and children separated from [the father], that this would increase the risk of suicide of one of the family members.

This family should be immediately removed from the detention context. Until this is possible, they should be moved to live in the Woomera housing project'.⁽⁶⁰⁾

When not offered the option of release, this family chose to be housed in the housing project at the sacrifice of separation. At the end of October 2002 ACM health staff wrote that:

It is obvious that [the mother] is struggling to come to terms with her continued separation from her husband and the continued mental illness amongst her children.⁽⁶¹⁾

The family were released from detention in August 2003.

The Department states that the problem of separation was resolved by family visits to the Woomera detention centre:

Although male members of the family over 12 years of age are not eligible to participate, the integrity of the family unit [is maintained] by ensuring participants regularly visit family remaining in the Woomera IRPC. These visits are made once or twice a week.⁽⁶²⁾

However, several detainees at the housing project complained to Inquiry staff that these visits were much less frequent than they would like. ACM policy allows daily visits; however, there are differing views on how often those visits occurred in practice. Detainees suggested the visits were less frequent and ACM confirmed that detainees 'were unable to visit the Woomera IRPC on demand and at short notice, however that was usually due to the availability of transport'. However, ACM also highlighted that detainees were often taken to the detention centre for medical and legal appointments as well as for recreational activities.⁽⁶³⁾

In any event, the visiting scheme was little consolation to the fathers left in the facility for the majority of time. The Inquiry received evidence of a serious decline in the mental health of fathers after being separated from their family. One father deteriorated so seriously that his wife and son decided to go back to the detention centre to support him.

Another problem with the visiting scheme was that some children felt so traumatised by returning to the facility that they did not want to go there and visit:

I want my dad to go to the housing because I don't want to go back to the centre.⁽⁶⁴⁾

I don't like [to go] back to [the] centre. I remember all of my bad times. I can't [go] back to centre.⁽⁶⁵⁾

The Department stated that in April 2002 it had begun to 'trial visits by fathers to the Project site'.⁽⁶⁶⁾ While there was one visit on 28 April 2002, the next visit by fathers did not take place until September 2002, shortly before the Inquiry's visit.⁽⁶⁷⁾ A mother in the housing project said:

People like you come, then they organise some programs or plans for them. For example, for long time before that, [the children] were saying we want our father to come over and visit but it wasn't allowed but then, [name removed] came this Saturday and they were allowed to come from 12 till 4. They came over and then they said 'That's it', that was finished, that was only one time so, because they knew you were coming.⁽⁶⁸⁾

A child detained in the housing project reported in September 2002 that her father had only come to visit her once:

Before they can't come to visit. Only one week ago they let men come.⁽⁶⁹⁾

With the closure of the Woomera detention centre in April 2003, fathers were then detained more than 170 km away at Baxter. The Department told the Inquiry that there were regular visits including a mid-week day visit by fathers and older boys from Baxter to the Woomera housing project. There were also weekend visits of the mothers and children from the housing project to Baxter. Family members could stay overnight in the Baxter facility.⁽⁷⁰⁾ As these arrangements only started in 2003, the Inquiry has not spoken to detainees about the implementation and impact of these arrangements.

The Department emphasises that detainees' transfer to housing projects is voluntary and therefore the splitting of the family is a choice that parents can make for themselves. However, it is of concern to the Inquiry that parents are forced into the position of choosing between the family being together and allowing their children to live in a more hospitable environment than a secure detention centre. This so-called choice is contrary to the spirit of the CRC which provides both that the detention be a matter of last resort and that the family stay together. It is also inconsistent with the Department's argument that it is in the best interests of children to be detained with their parents, as discussed below.

(d) What other problems do children face in the housing project?

It appeared to the Inquiry that while women and children were initially extremely relieved to be able to leave Woomera detention centre and happy about the improved environment, as time went on the 'freedoms' of the Woomera housing project seemed less and less significant. For instance, while many of the women were pleased to be able to do their own shopping and cooking, some felt insulted that they did not have control over what they could buy:

They won't give you, you know free like that you can enjoy from your shopping. Now any time since I am [at the housing project], any time I would go to shopping I come back upset with a headache because just they make it bitter for us, like there's discussing about everything.⁽⁷¹⁾

The independent report that the Department commissioned in March 2002 addressed these tensions and recommended the following:

Guidance, not heavy handed direction, is what is required. Not the sort of action recounted to me by a local Woomera resident who was in a checkout queue and said she was greatly embarrassed for a Project resident when a staff member loudly went though her shopping and took out all items which she decided the resident could not have.⁽⁷²⁾

Several of the women who spoke to the Inquiry also highlighted that having several families sharing a three-bedroom house created serious friction. This was exacerbated by the already fragile mental state of most of the mothers. The doctor for housing project detainees presented the problem as follows:

It is not hard to understand that when you place a number of families all of which are suffering from mental illness into the same accommodation it is almost certain that the abnormal social dynamics which will develop will lead to problems.⁽⁷³⁾

Another problem raised by both detainee mothers and health staff was that often one mentally ill mother ended up looking after the child of another mentally ill mother. While there appears to have been some desire to help one another, the lack of special support for these arrangements caused substantial tensions between families living in the same house.

One mother interviewed at Baxter detention centre told Inquiry staff that:

If the Whyalla housing project [proposed for Baxter] is like Woomera then it is no good. You can't put three families in a house with 1 toilet, 1 oven etc. You need a house for every family.⁽⁷⁴⁾

Another family described the impact that the crowded housing had on the ability of the children to learn:

At that house there are three rooms and it's been allocated for three families and then [the children] need to study, they need to study other lessons or English but it's difficult, it's impossible because of the house, the house is full of people. And then there is only one wardrobe, they have their clothing there ...the boy's stuff, my stuff and also [the children's] books, and if they need something, like a book or something they have to take out everything so that they can get what they want. And that's why they always cry, all the time they're crying.⁽⁷⁵⁾

6.4.2 Home-based detention

Home-based detention refers to a system whereby members of the community are designated as persons authorised to 'detain' children and their families. As the Department explains it:

[P]ersons who have duties in relation to unlawful non-citizens outside Immigration Detention Facilities (IDFs), such as foster carers accommodating unlawful non-citizen children in places approved as alternative places of detention, will be designated as persons who may 'hold' a detainee 'on behalf of an officer'. ... there is no conflict between the need for detainees to be 'held' on one hand, and the ability to place detainees with special needs in 'alternative' places of detention on the other.⁽⁷⁶⁾

January 2002 - two months after this Inquiry was announced - was the first time that the Department actively pursued the option of home-based places of detention for unaccompanied children.⁽⁷⁷⁾ Several homes and schools in Adelaide were declared as alternative places of detention ('declared places') and several foster carers and school principals were directed to accompany and restrain detainee children ('directed persons').

The effect of this initiative was that by the end of April 2002, 17 of the unaccompanied children who were still detained in Woomera and Curtin at that time had been transferred to places in the community, went to schools in Adelaide and otherwise moved around Adelaide as long as they remained in declared places or in the presence of directed persons. Later in the year a further two unaccompanied children were transferred from Woomera detention centre to home-based detention.

As at 28 November 2003, there were five unaccompanied children in detention centres (two in Villawood and three on Christmas Island) and ten unaccompanied children in home-based places of detention. A child detained with relatives who were not his parents, was transferred into the care of family in the community in 2003, after two and half years in detention centres. At least four children detained with their parents were also placed in home-based detention (without their parents) - one in August 2001 and three siblings in November 2003. Only two whole families were transferred to home-based detention between 1999 and 2003.⁽⁷⁸⁾

(a) Recent history of foster carer homes being used as alternative places of detention

The arrangements for the transfer of just under 20 unaccompanied children to foster carer homes as places of detention over 2002 commenced 'at the time of the tensions in Woomera IRPC in January 2002 ...in order to protect them from incidents of self-harm and hunger strikes'.⁽⁷⁹⁾ Case Study 3 in Chapter 14 on Unaccompanied Children sets out the circumstances of the unaccompanied children involved in the hunger strikes and lip-sewing in some detail. The documents provided by the Department indicate that the sequence of events immediately leading up to these arrangements was as follows.

On 14 January 2002, the Deputy Manager of Woomera wrote to Family and Youth Services (FAYS, within DHS) requesting assistance regarding one 12-year-old and two 14 to 15-year-old unaccompanied children in Woomera who were becoming 'increasingly despondent'. The Deputy Manager states:

I would like to look into the possibility of having these minors alternatively housed, outside the detention centre environment. This may not be possible, as a delegate of the Minister would have to consider the issuing of a bridging visa before any of the minors could be released from detention. However, I would like to ask your assurance in assessing the needs of these children - and looking into whether or not appropriate families could be located for any or all of them - with a view to making a recommendation concerning possible bridging visa issue. This has been done from this centre once before that I am aware of.⁽⁸⁰⁾

On 16 January 2002, hunger strikes began in Woomera in response to the Minister's announcement that all processing of applications by Afghan asylum seekers would be halted. The hunger strikes were accompanied by acts of self-harm. FAYS was called in to assess children participating in these events.⁽⁸¹⁾

On 24 January 2002, the Executive Director of FAYS wrote to the Acting First Assistant Secretary of the Department providing the name and address of the foster carers who would look after the children mentioned in the 14 January letter. The children were not issued with bridging visas but rather transferred to foster carer homes which had been declared places of detention.

On 26 January 2002, the Executive Director of FAYS wrote to the Department stating that another three unaccompanied minors who were self-harming should be 'removed as a matter of urgency from the Detention Centre'.⁽⁸²⁾ One child was assessed as 'highly depressed with an inability to focus his energies on anything other than dying via starvation and dehydration'. On 27 January 2002 FAYS wrote to the Department with foster carers and addresses for these children.⁽⁸³⁾

On 29 January 2002, the Executive Director of FAYS wrote to the Department regarding the remaining unaccompanied children in Woomera:

The Department of Human Services remains seriously concerned regarding all minors in Woomera. They have stated that they are intending to 'group suicide' and whilst this statement can be regarded as an attempt to pressure the Commonwealth government to release them from detention the risk of suicide remains high. This is particularly so given the hopelessness expressed by them and the tendency to reinforce one another's behaviour. The Department strongly recommends that these young people be placed outside of the Woomera Detention Centre.⁽⁸⁴⁾

The assessment report in relation to those children attributes their behaviour to 'exposure to recent self harm behaviours and the movement out of Woomera of other [unaccompanied children]'.⁽⁸⁵⁾

By 7 February 2002, nine more unaccompanied children had been moved to foster carer homes in Adelaide which had been declared as alternative places of detention.⁽⁸⁶⁾ But there were still several unaccompanied children in detention about whom FAYS reiterated its recommendation that they 'be placed outside the Woomera Detention Centre to ensure their safety'.⁽⁸⁷⁾ The next day foster home placements were found for these children.⁽⁸⁸⁾

The South Australian authorities also made several recommendations for the removal of children with their parents from Woomera into the community. None of these children were transferred to home-based alternative places of detention.

The Department should be commended for acting so quickly to remove unaccompanied children from Woomera during the chaotic period of January 2002. However, the Department's action during this time raises several questions:

What is the nature of the alternative detention arrangements with South Australia?
Why were children not transferred to home-based detention prior to January 2002?
Why were only unaccompanied children removed from the facility to home-based detention?
Have these arrangements been used anywhere other than South Australia?

(b) What is the nature of the home-based alternative detention arrangements made with South Australian child welfare authorities?

Unaccompanied children transferred to home-based detention can live in a home and go to a community school like other children, except that they must be 'held by or on behalf of an officer'. Should they want to go anywhere that is not a declared place of detention, they must be accompanied by an officer or other person who is approved by the Department (a directed person).⁽⁸⁹⁾ The Department may decide to return children in home-based detention to a detention centre at any time.

The Department retains ultimate control and responsibility for the children's care and whereabouts. However, the Department has entered negotiations with DHS to clarify the relative roles and responsibilities between the Department and DHS.

The first version of the draft agreement with DHS regarding alternative detention arrangements was exchanged on 24 January 2002. As at 28 November 2003 there was still no signed agreement.⁽⁹⁰⁾ However, the Department provided the Inquiry with a draft agreement that appears to have been drafted in July 2002 and noted that negotiations were still going on regarding costs, arrangements for education, reporting arrangements and indemnity.

Under the July 2002 draft agreement, the Department 'maintains ultimate duty of care for all detainee minors' and is 'responsible for any compliance action which is required should a detainee minor abscond'.⁽⁹¹⁾ In any event, since the Minister is the guardian of the unaccompanied children, he or she will retain those special responsibilities as will any Departmental delegates, including Managers of the detention centres.⁽⁹²⁾

DHS is responsible for the safety, care and development needs of detainee minors and must use its 'best endeavours to ensure that the detainee minors are available for the purposes of immigration processing and/or removal or repatriation as requested by DIMIA'.⁽⁹³⁾ Furthermore, as the State authorities also have delegated powers of guardianship with respect to unaccompanied children, those special powers may also be exercised.⁽⁹⁴⁾

However, it is the responsibility of 'directed persons', who will usually be DHS staff, teachers and foster carers, to 'remain with the child during any time they are outside an approved place of detention', for example, if there is a school excursion.⁽⁹⁵⁾

If it appears to a directed person that the child may try to disappear, 'the directed persons are expected to use their powers of persuasion, conflict resolution and negotiation to attempt to gain the detainee minor's cooperation',⁽⁹⁶⁾ but are not expected to use force.⁽⁹⁷⁾ In any event, none of the children transferred to foster care detention over 2002 have either attempted to, or actually, disappeared.

The Department emphasises that it must conduct a 'responsible and considered assessment of alternative arrangements' and that these assessments can take time.⁽⁹⁸⁾ In particular, the Deputy Secretary highlights difficulties in finding people who are prepared to ensure that the children will be 'available for processing and removal'.⁽⁹⁹⁾

However, as set out above, the series of events in January 2002 demonstrate that transfer to foster homes can be arranged literally overnight in times of crisis, as is the case in the broader community when child welfare agencies routinely place a child at risk into care at a moment's notice. It is therefore unclear to the Inquiry why it took such dramatic displays of despair to arrange for the placements.

Some of the children who were transferred from Woomera to Adelaide during January and February had been held in Woomera for more than eight months and all had been in detention for over four months.⁽¹⁰⁰⁾ The eight months preceding January included several riots, demonstrations, fires and substantial numbers of self-harm attempts to which children were exposed and in which some children participated.⁽¹⁰¹⁾Therefore, if the Department was generally concerned 'to protect unaccompanied children from incidents of self-harm and hunger strikes' it seems that action to remove them from the detention centres would have been warranted prior to January 2002.⁽¹⁰²⁾

In any event, the South Australian child welfare authority clearly links the levels of despair and depression of children with detention in Woomera. Given that the Minister and his or her delegates have a special responsibility to ensure the best interests of the child are a primary consideration while in their care, the Inquiry regards it as inadequate that the Department did not routinely and immediately transfer unaccompanied children to home-based detention.

The Department offers the explanation that prior to January 2002, it considered that:

taking into account all the circumstances, it was in the minors best interests to be appropriately cared for in a detention facility, ensure their availability for priority processing and initiate family tracing action through the Australian Red Cross.⁽¹⁰³⁾

However, the Inquiry is not satisfied that the best interests of these children were adequately considered prior to their placement in home-based detention. The Migration Series Instructions (MSI) tabled by the Department on 3 December 2002 suggests that there may be some changes in the future. For example, MSI 370 states that:

It would be usually in the best interests of an unaccompanied ward to be transferred out of a detention facility.⁽¹⁰⁴⁾

(d) Why only unaccompanied children?

On 24 October 2002, the Inquiry issued a Notice on the Department to produce information and documents regarding transfer into alternative places of detention of both unaccompanied children and children with their families. Since the response of the Department did not include any material with respect to the placement of entire families in the community, the Inquiry concluded that there were no formal arrangements. The Inquiry addressed the question to the Department again during the hearings with the Department in December 2002 and the Deputy Secretary provided information about one discrete family.

INQUIRY COUNSEL: ... Is the Department aware, or has there been any case, where an entire family has been put in a similar sort of foster arrangement, I suppose, when the Department has received advice from a State authority to the effect that (a) it's in the interests of the family to be released from detention, and (b) it's in their interests for the family as a whole to be released? Has there been any case where an entire family has been put into a similar sort of foster care arrangement?

MS GODWIN (DIMIA DEPUTY SECRETARY): I think from my memory there is a family in an alternative place of detention, not strictly speaking a foster placement as such, but where an organisation has agreed to take responsibility for their ongoing care and also to make sure that they're available for immigration processes, whether that's application or removal. But I return to the point that I made before. I'm also aware of another situation where we were attempting to establish that and there were considerable difficulties identifying a place that was both able to provide - or an organisation able to accept responsibility for - the provision of care and support and willing to take responsibility for having them available for immigration processing.

Now, it's certainly been the case that over the years numbers of community organisations have come forward saying, you know, that they're prepared to provide support in these situations but it has most often been the case that when what they're actually committing to is explored, they regard it as outside their ambit of responsibility to agree to co-operate in having people available for removal and I understand their point here. They say that's not their responsibility, but if they are not prepared to take that responsibility, then it falls to the Government to find ways of meeting that obligation in the most appropriate way that it could be done.⁽¹⁰⁵⁾

It appears therefore that the Department viewed community detention for families as a possibility in principle, but rarely in practice. The Inquiry understands that there are many pressures on community groups which may mean that they are not willing to take on the role of 'detaining' children and their parents as required by the Migration Act, especially in the absence of additional funding. However, the Inquiry also understands that an increasing number of individuals and groups are willing to take on such a task. In any event, during the Inquiry's visits to detention facilities, staff met several detainee families with close family in the Australian community who were apparently willing to take responsibility for them. In at least one case a child's parent was in the community.

The Inquiry has not received specific evidence as to whether the reason the Department has not routinely transferred children in detention centres to the supervision of a family member living in the community - and almost never to a welfare organisation - is, as the Department suggests, because family members are unwilling to take the responsibility of ensuring availability for removal. However, the information before the Inquiry suggests that this is not an option that was actively explored over the period of the Inquiry. The December 2002 MSI issued on Alternative Places of Detention supports this conclusion in that it considers the possibility of transferring detainee families to the custody of community groups, but not relatives.

The reluctance to more actively pursue the opportunities available under the Migration Act to transfer families from closed detention facilities to alternative places of detention, is particularly troubling in the light of the frequent recommendations by the South Australian authorities that families be released from detention. For instance, in the case of Woomera in January 2002, the South Australian authorities wrote to the Department with respect to several families stating that:⁽¹⁰⁶⁾

It is the view of [DHS] that none of the notified children can be assessed as safe whilst they remain in the current situation and that for any adequate assessment to occur the children and their families should be removed from the Centre and thoroughly and professionally assessed.⁽¹⁰⁷⁾

(e) Are there home-based alternative detention arrangements outside South Australia?

In a Notice issued to the Department on 24 October 2002 (Notice 4), the Inquiry required information regarding all arrangements or agreements that existed between the Department and any State agencies or non-government bodies relating to the provision of and funding or payment for the transfer of children to alternative places of detention. The Department's response was that alternative detention occurred on a case-by-case basis but that:

a broader, more formal operational framework is in place between DIMIA and the South Australian Department of Human Services (DHS) regarding the placement of some detainee minors in alternative detention arrangements in the community. These arrangements are reflected in a draft Agreement between the department and DHS.⁽¹⁰⁸⁾

The Department did not notify the Inquiry of any arrangements with States other than South Australia nor provide any explanation as to why 'formal arrangements' had not been entered into in any other State. However, documents provided by the Department to the Inquiry indicate that two of the unaccompanied children placed in alternative detention in Adelaide had been transferred from the Curtin facility in Western Australia.

The Department also provided details of arrangements that have been made for one family to be 'held' by a community group in Victoria.

6.4.3 Findings regarding alternative places of detention

The recent efforts by the Department to improve the conditions of detention for women and children are to be commended. These efforts demonstrate that there is scope within the Migration Act to ensure detention is more appropriate to the needs and interests of children. Indeed, that scope has been there since at least 1994.⁽¹⁰⁹⁾

The transfer of almost 20 unaccompanied children to foster care detention in the community is a clear advance in the physical conditions of detention when compared to facilities like Woomera and Curtin. Psychologists report an improvement in the mental health of children when they leave the closed detention environment. Children in home-based detention told the Inquiry that they were pleased to be living in Adelaide and meeting Australian children:

I am quite good now, because I go to school and I don't have much pressure like I had before.⁽¹¹⁰⁾

However, the Inquiry is concerned that this initiative only commenced in January 2002, after most of the unaccompanied children who had been in detention centres between 1999 and 2001 had already been released. Many of those unaccompanied children had spent long periods in detention and would have benefited from speedy transfer into the community.⁽¹¹¹⁾Further, the children who were transferred in January 2002 had suffered for some time in the detention centres (see further Case Study 3 in Chapter 14 on Unaccompanied Children).

Furthermore, over the period of the Inquiry, the concept of home-based detention in the community was applied to only one whole family. One more family was transferred into community detention in September 2003.⁽¹¹²⁾

The Department appears to be of the view that residential housing projects provide a good solution to the difficulties facing families in detention and has frequently declared the success of this initiative. For instance, in foreshadowing the closure of the Woomera detention centre, the Minister stated that:

The very successful Woomera Residential Housing Project (RHP) will remain open and all residents will be offered the opportunity to stay in the Project or move to Baxter with their partners.⁽¹¹³⁾

However, the evidence provided to the Inquiry does not support such a definitive conclusion about the success of the Woomera housing project. The Inquiry recognises that the housing project provides an improved physical environment and a closer approximation to family-style living than in detention centres. Children in the housing project are not exposed to riots and other disturbances taking place in the detention centre and have easier access to excursions into the community. However, closer examination reveals that the continuing restrictions on liberty have diminished the positive impact of the project on women and children. In the words of two children who were living in the housing project:

CHILD 1: The [detention] centre has its own problems and the housing project has also its own problems. Like I think both are equal. Just here is like ... the shape is different -

CHILD 2: Yeah, there also just the shape and the look is like better there and maybe we cook but still we have some problems that is equal with the [detention] centre.⁽¹¹⁴⁾

The most dramatic restriction regarding the lives of participants in the housing project is the condition that fathers stay in the detention centre. This condition exacerbates the already fragile mental state of families and has not been adequately justified by the Department. While there is no compulsion on two-parent families to volunteer for the project, the Inquiry is of the view that asking families to choose between a less harsh environment for their children and separation from their father is unfair. While this condition does not impact on single mother families, they have also found it difficult to conduct 'normal' parenting in the housing project.

The doctor providing care to detainees at Woomera wrote to the Department in October 2002 setting out his concern that:

at the current rate of deterioration of the families housed [at the housing project] ... it will not be long before the project must be considered a failure and alternatives found for the detention of those held there.⁽¹¹⁵⁾

The housing project highlights one of the recurring themes of the Inquiry, namely that despite efforts by the Department to improve conditions of detention, it is the detention per se - the deprivation of liberty and autonomy - that is more often than not a primary cause of distress for children and their parents (see further Chapter 9 on Mental Health). This is not a new discovery and explains why the CRC imposes such strict limitations on the circumstances under which children may be detained - in particular that it be a measure of last resort and for the shortest appropriateperiod of time (as required by article 37(b) of the CRC).

Section 6.5 examines whether the failure to ensure the prompt transfer of children to alterative places of detention in the community suggests a failure to make the best interests of the child a primary consideration. Sections 6.6.3 and 6.7.7 assess whether the transfer of children to residential housing projects and home-based detention have any impact on Australia's compliance with the right to be detained as a matter of last resort and for the shortest appropriate period of time.

6.4.4 Pacific Solution' detention facilities

'Since late 2001 the number of children in Australia's detention facilities has been gradually declining. One of the reasons for this reduction lies in the fact that, since September 2001, most children attempting to make the journey to Australia by boat have been transferred by the Australian Navy to detention facilities in Papua New Guinea or Nauru. In other words, child asylum seekers heading for Australia on boats are not usually detained in Australia but in third countries.⁽¹¹⁶⁾ This transfer of asylum seekers is the primary feature of the Government's 'Pacific Solution' strategy.

Under international law, Australia continues to be responsible for any foreseeable breach of the human rights of the children that it forcibly relocates to third countries.⁽¹¹⁷⁾Therefore, Australia is responsible for any breaches of human rights that it can foresee will occur with respect to the children that the Australian authorities transfer to Nauru and Papua New Guinea. This includes the decision to detain and the length of detention of children in those countries.

The Department appears to agree with this proposition with respect to asylum seekers who enter Australia's waters:

Australia's protection obligations extend to refugees who have entered Australia's jurisdiction by entering its territorial seas. The Pacific strategy in no way detracts from these obligations.⁽¹¹⁸⁾

The Inquiry sought assistance from the Department to facilitate visits to the detention facilities in Nauru and Papua New Guinea. However, the Department has taken the view that while Australia has some responsibility for the rights of children detained in Nauru and Papua New Guinea, this Inquiry's jurisdiction does not extend to inspecting those facilities and interviewing those children. The Inquiry does not accept this view. However, without the cooperation of the Department it has not been possible for the Inquiry to properly assess the conditions in those centres.⁽¹¹⁹⁾

Accordingly, while the Inquiry has received some submissions regarding detention in Nauru and Papua New Guinea, the Inquiry has been unable to collect any primary evidence on the conditions in the facilities and the impact that they have on child detainees. The Inquiry is not, therefore, in a position to comment in any detail on whether the conditions in those facilities meet standards required by the CRC.

Nevertheless, the Inquiry is in a position to comment on how the 'Pacific Solution' legislation impacts on Australia's obligation to ensure that these children are detained as a matter of last resort and for the shortest appropriate period of time. Therefore, throughout this chapter, the Inquiry has briefly assessed whether detention in Nauru and Papua New Guinea pursuant to the Migration Act, might breach article 37(b) of the CRC.

Furthermore, in Chapter 16 on Temporary Protection Visas, the Inquiry comments on the impact of detention in 'Pacific Solution' countries on family unity.

6.5 Is detention in the 'best interests of the child'?

The principle of detention as a last resort and for the shortest appropriate period in article 37(b) amounts to recognition by the international community that the deprivation of liberty is rarely in the best interests of the child. Indeed, many studies have considered the impact of institutionalisation on children and conclude that the social and psychological effects can be long term and serious.⁽¹²⁰⁾

In making a decision to detain children, the Commonwealth is obliged to consider the following issues, with the best interests of each child as a primary consideration:

Should a child be detained?
For how long should a child be detained?
Where should a child be detained?

As discussed throughout this chapter, the Commonwealth legislature has made a universal decision in relation to questions of whether or not a child should be detained. The Migration Act requires all children who arrive in Australia without a visa to be detained, no matter what their individual circumstances. This blanket approach raises immediate concerns regarding the 'best interests' principle because it prevents the best interests of each child being considered in the 'decision' to detain - indeed, it prevents any decision at all. The Department has recognised that its first opportunity to actively consider the best interests of the child is only after the child is detained:

In the context of administering the Migration Act, when making any decisions regarding the best interests of the child, departmental officers must consider those interests in the context that the child is required by law to be detained.⁽¹²¹⁾

Regarding the length of detention, the Department states that the availability of bridging visas in the Migration Regulations properly takes into account the best interests of the child. Section 6.7.4 below suggests that highly restricted use of this mechanism makes it difficult to accept that the best interests of the child were a primary consideration in either developing or applying the bridging visa rules to children in detention.

There are two key decisions to be made in relation to the location of detention. First, whether the child should be detained in a detention centre or an alternative place of detention (for example home-based detention or residential housing projects)? Second, if detention is to be in a detention centre, which one? These questions are closely related to a further decision, namely the conditions under which children should be detained. Some of the factors to take into account in these decisions include the ability of children to gain appropriate access to:

migration application assistance (see Chapter 7)
health and mental health services (see Chapters 9 and 10)
disability services (see Chapter 11)
education and recreational opportunities (see Chapters 12 and 13)
cultural and religious communities (see Chapter 15).

Certain detention centres also create serious risks of exposing children to physical violence (see Chapter 8 on Safety).

In some cases decisions concerning in which detention centre to place a child can have implications for the unity of a family, as set out below.

6.5.1 How does the 'best interests' principle apply to children detained with their family?

There is little debate that it is in the best interests of the child, in most circumstances, to live with his or her parents. The question is what impact that has on decisions made within the context of the mandatory detention system.

(a) The 'best interests' principle and the decision to detain a family

The Australian Government and the Department have stated on several occasions that the principle of family unity in article 9 of the CRC means that it is usually in the best interests of the child to be detained because their parents must be detained:

The Government recognises it would be preferable if children and their families did not need to be detained. However where detention is required by law because they are unauthorised arrivals, or have breached visa conditions, it is the Government's considered view that it is in the best interests of child for them to remain with their parents, family or fellow country people.⁽¹²²⁾

The Inquiry rejects this argument. It is flawed for a number of reasons.

First, the decision to detain children does not arise from a consideration of their best interests following the detention of their parents. Children are detained for the same reason and at the same time as their parents. They are detained on arrival because they are unlawful non-citizens. There is no consideration of children's best interests before they are detained.

Second, the argument implies that there is no choice but to detain parents. This is obviously incorrect. The Commonwealth has made a decision to detain all unlawful non-citizens, including children and their parents. If the Government believes that it 'would be preferable if children and their families did not need to be detained', they may propose changes to the legislation that permit that preferred position. They have not done so.

Third, a proper consideration of the best interests of the child does not seek to trade off rights against each other when they are, in fact, compatible. The above argument suggests that the right of a child only to be detained as a last resort is to be traded for the right to family unity in the name of his or her best interests. The Inquiry rejects such an approach. Instead, the best interests of the child are met by allowing the child to remain with their parents and be at liberty. Such a result can be achieved by the Commonwealth if it chooses to provide such an option under the law. It has chosen not to do so.

During the public hearings many witnesses were asked to respond to the Minister's assertion that it is usually in the best interests of children who are with their parents to remain in detention in order to keep the family unit together. The following are some of the responses to that proposition:

No one can seriously argue that it is in the best interests of the child to detain children. The government attempts to argue that it is in their best interest because of the family unity. Now, we agree that family unity is vital and an integral right under the Convention. However, it can't be used as a justification to detain children. It must be read in totality, this Convention, not in isolated bits. The Convention really can't be used, in fact is misused, if we justify a position of one evil versus another. It is not a choice between detaining children with their family or releasing children and separating them from their family. Children and their families need to be released from detention.

UNICEF Australia⁽¹²³⁾

DR OZDOWSKI: Could I ask you, there is a picture of this dilemma in terms of policy because the Minister is saying that he is showing the best interests of the child by keeping the whole family in detention rather than allowing separation and letting children out or letting mothers and children out. How do you see ...

DR POWRIE: Well, from a child developmental point of view there is no dilemma. A child's development is best supported within a healthy family context where parents are free to care for their child in their culture and supported in a way in which they see fit as parents.

Australian Association for Infant Mental Health⁽¹²⁴⁾

DR OZDOWSKI: The Minister is often saying that he cannot release children because it is in the best interests of children to stay with their parents, and the parents have got to stay in detention.

MR MANNE: Yes. Yes, well, one of the fundamental issues in relation to the best interests of the child is also not being exposed to an environment which could cause them harm. I don't need to speak or to lecture you on the problems that we face in detention at the moment, but clearly there is a culture of where self-harm has become a norm in detention, where there have clearly been lots of other problems, problems which are caused again in our view by the system that we have.

The best interests of the child, whether with a family or unaccompanied, in our view cannot be to remain in an environment as problematic as that. And indeed, our other view would be that in relation to - and I would like to provide the Commission with some further written materials on this - but if the presumption was that children ought not be, as a presumption detained, surely the principles of family unity would require that if a child is not to be detained because it is harmful, then also families of those children ought to be released with those children. That would be our basic position.

Refugee and Immigration Legal Centre⁽¹²⁵⁾

(b) The 'best interests' principle and the decision regarding location of detention

The Department states on the one hand that it is concerned to keep the family together, and on the other hand it makes separation of two-parent families a condition of transfer to a residential housing project (see further section 6.4.1 above). It is the view of the Inquiry that the exclusion of fathers from the housing project minimises the positive impact that the creation of the Woomera housing project may have had on compliance with the 'best interests' principle.

Furthermore, evidence before the Inquiry indicates that the Department has not made a child's best interests and family unity a priority when deciding in which detention centre to detain children. The Inquiry heard several examples of children who had a parent or close family members living significant distances from the detention centre where they were located. Refugee parents in the community cannot generally access their families in detention in remote centres as the distance and cost is too great.⁽¹²⁶⁾

For example, in 2001, an unaccompanied Iraqi boy was detained at Port Hedland while his mother and siblings were living in Melbourne on refugee protection visas. The Department considered transferring him to Maribyrnong to be closer to his family. The decision hinged on whether the child could be 'managed' at Maribyrnong, rather than the imperative of being close to his family:

Follow-up with regard to [the child] and determine whether a transfer to Maribyrnong IDC is possible so that he can be close to his family who are living in Melbourne after being released on TPVs. This depends on whether he can be managed effectively at [Maribyrnong] and other operational considerations.⁽¹²⁷⁾

Children of another family at Woomera in 2002 had not seen their father for three years since fleeing Iraq.⁽¹²⁸⁾ He was living in Sydney while they were detained at Woomera. They had telephone contact with him, but the boys were clearly bitter about 'the protracted separation from their father and the futility and irrelevance of their existence in a Detention Centre environment'.⁽¹²⁹⁾ The boys were lacerating their arms and drinking shampoo.⁽¹³⁰⁾

The Department gave the following general explanation for its refusal to transfer families between detention centres for family unity reasons:

Transfers are administratively and logistically challenging and costly. In considering any move to a different place of detention, relevant factors include the available places of detention, infrastructure and support services, capacity to meet visa processing and reception requirements, and management of diverse detainee populations.

Detainees may sometimes seek a transfer on the basis of having family or friends in areas close to other detention facilities (such as Villawood IDC). It is not administratively practical, cost effective or equitable to move detainees for that reason alone. Such issues, however, may sometimes be relevant in consideration of management options for detainees with particular needs that cannot be adequately addressed in another facility.⁽¹³¹⁾

In the Inquiry's view, this response illustrates that neither the best interests of the child nor the principle of family unity were primary considerations in the Department's decision process regarding the location of children.

A third example of children who have been separated from their father by being detained in Woomera, involves a family of five children aged 3, 7, 9, 10 and 12 on arrival. The children were detained with their mother in Woomera. The father had come to Australia earlier, but at the time of arrival the mother did not know his whereabouts. Within three months the children had learned that their father was alive and living in Sydney on a temporary protection visa. However, it appears that the children's father only learned of his family's presence in Australia, by coincidence, a year after their arrival.

Case Study 1 at the end of this chapter outlines the sequence of events regarding this family and the impact that detention in Woomera, far from their father, had on the children. It highlights the range of options which could have been pursued by the Department or the Minister to ensure the best interests of the child and family unity at various stages.

6.5.2 How does the 'best interests' principle apply to unaccompanied children in detention?

Unaccompanied children require additional protection and assistance under article 20 of the CRC. The United Nations High Commissioner for Refugees (UNHCR) states that children seeking asylum should not be detained and this 'is particularly important in the case of unaccompanied children'.⁽¹³²⁾ The UNHCR guidelines, which apply the CRC to the situation of asylum seekers, also recommend the appointment of an independent guardian or adviser to ensure that 'the interests of the child are safeguarded'.⁽¹³³⁾ This is in recognition of the fact that children who are without their family need extra help to enjoy the same level of rights as children with their families, including someone to advocate that they be detained as a matter of last resort and for the shortest appropriate period of time.

Australian law seeks to provide this assistance by appointing the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) as the guardian pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act). The Minister, in turn, has delegated his powers to the Department's Managers and Deputy Managers in each of the detention facilities as well as to State and Territory child protection authorities.⁽¹³⁴⁾ The Federal Court of Australia states, and the Department readily accepts, that as guardian, the Minister and his or her delegates are required to act in the best interests of the children who are their wards.⁽¹³⁵⁾

Australia's detention laws do not make any distinction between the detention of unaccompanied children and any other child or adult. Thus all unaccompanied children arriving in Australia without a visa must be detained.

Regarding the length of detention, section 6.7.4 notes that over the period of the Inquiry, only one unaccompanied child was released from detention on a bridging visa. Section 6.7.5 notes that, over the period of the Inquiry, there was no specific priority for processing the visa claims made by children.

However, as set out above in section 6.4.2, from January 2002 almost 20 unaccompanied children were transferred from detention centres to home-based detention. The placement of these children in home-based foster care represented a clear step froward in applying the 'best interests' principle to unaccompanied children.

The Department's efforts to make the best interests of unaccompanied children a primary consideration regarding their care in detention centres is discussed in detail in Chapter 14 on Unaccompanied Children and throughout this report.

By December 2002 the Department formally acknowledged that the best interests of unaccompanied children would usually require that they not be in detention facilities. This statement was embodied in MSI 370 called 'Procedures for Unaccompanied Wards in Immigration Detention Facilities'. MSI 370 replaced MSI 357, which was issued in September 2002. The change between September and December represents a fundamental development in the Department's approach to the best interests of unaccompanied children.

MSI 357 issued in September 2002 stated:

13.2.1 It is in the best interests of an unaccompanied ward that his or herimmigration status be resolved in the shortest possible time after the conclusion of review of a refusal decision so that he or she is either released from detention on a visa or removed from Australia as soon as practicable.

Thus MSI 357 recognised that it would be in the best interests of unaccompanied children to be released from detention quickly, but only after a refugee claim has been refused at the primary stage (which can take many months). The MSI went on to provide that, in the meantime, if the Department Manager believed that the unaccompanied child's needs 'cannot be appropriately provided for', the Manager should investigate the possibility of transferring the child to a place of detention other than an immigration detention centre. The MSI then set out the steps that the Manager needed to go through to establish that their needs could not be provided for.

Three months later, in MSI 370, the Department replaced paragraph 13.2.1 (above) with the following:

13.2.1 It would be usually in the bests interests of an unaccompanied wardto be transferred out of a detention facility.
13.2.2 This can be facilitated by pursuing alternative detention arrangementsor, if the child is eligible, granting them a bridging visa.⁽¹³⁶⁾

Thus, by December 2002 - ten years after the introduction of mandatory detention - the Department began to assume that satisfying the best interests ofunaccompanied children usually requires their release or transfer from detention facilities.

However, the Department continues to suggest that that it may be in the best interests of some unaccompanied children to remain in detention. For example, the Department has stated that it may be in a child's best interests to remain in the company of persons they have made friends with:

INQUIRY COUNSEL: Well, let me ask you this, does the Department say that in detaining each and every one of the unaccompanied minors at the Woomera Detention Centre over the past three years or so the Department took into account as its primary consideration the child's best interests?

DIMIA DEPUTY SECRETARY: Well, that's our overall position. But clearly, as Mr Walker said, there are a range of other considerations. Best interests of the child, as we understand it, is required to be a primary consideration but not the only consideration and there were a variety of other circumstances and considerations that needed to be taken into account including, for example, the groups with which people have turned up. People often wanted to stay together as a group even though one of that group was an unaccompanied minor.⁽¹³⁷⁾

The Inquiry is not convinced that this is a good reason for an unaccompanied child to remain in detention and, to the best of the Inquiry's information, there has been no instance of a State child welfare authority recommending that a child stay in detention so that he or she can remain with his friends.

The Department also suggested that the release of unaccompanied children into the Australian community may expose them to people smuggling rings in Australia:

Account must be taken of factors such as ... the possibility of falling into the hands of people smugglers who traffic in children (as has been documented in overseas countries such as Canada).⁽¹³⁸⁾

The Inquiry does not accept that this is an issue of real concern in Australia for unaccompanied minors for whom the Minister remains the guardian. There is no evidence to suggest that these children are at serious risk of 'falling into the hands of people smugglers'.

The Department states that between 3 December 2002 and 16 May 2003, 25 unaccompanied minors were assessed against MSI 370. Eight children were transferred to alternative places of detention, one was granted a bridging visa, nine turned 18 (or were re-assessed as being over 18), three were removed from Australia and four were assessed to be a high risk of absconding and therefore remained in detention facilities.⁽¹³⁹⁾

It is important to note that while these MSIs represent a positive development in the Department's approach to unaccompanied children, they do not represent any change in thinking regarding the detention of children with families.

6.5.3 What do children think about being in detention centres?

Many of the submissions to the Inquiry report the views of children who have spent time in detention centres.⁽¹⁴⁰⁾ Those submissions and the children interviewed by Inquiry staff in focus groups and in detention facilities give a clear picture of what children thought about detention:

A feeling of darkness came on me in the detention centre, and all my hope disappeared. My world has been dark ever since.⁽¹⁴¹⁾

It was like a desert ... It felt like we were in a cage. We could not go anywhere with all the fences and that stuff ... It was like jail as there was no care ... [M]any of the people were angry because of the time they were in detention. The children were crying. My father is so angry and I don't know why ... It was a bad experience. There were no times when we were happy there ... We were at war in Afghanistan because of the Taliban and we thought we have come to another war here. In the detention centre, always soldiers all around us. Oh my God, can the Taliban get us again? ... It was so hot, so very hot and lots of flies and we needed a fan.⁽¹⁴²⁾

The whole condition in the camp is really, really bad, people are really stressed. Those people they are there for a long time they get really agitated. They used to come to [dining room] for example ...a guy sits there for a while and then he gets really upset, mentally sick and he just pulls the chair and throws it away and causes lots of fight and scaredness between people - young people, children - because the restaurant it (is) for everybody, everybody is there.⁽¹⁴³⁾

Drawings on a school desk at Port Hedland, June 2002.

Three Afghan unaccompanied children who had spent some time in detention before being recognised as refugees and released into the community have the following views about detention:

I think there should not be any detention for children at least. All these Afghans that are spending months or years in detention, they have not done anything wrong, they are not criminals and they should listen to them. But there should not be any detention for children. They should be free.⁽¹⁴⁴⁾

I actually experienced lots of negative things in there. For the time that I was there, I remember that there were young children who were living with adults, always having nightmares and I could see and I could hear them screaming at night time and once I saw with my own eyes that someone had broken a window and with that glass cut himself. And I have also witnessed someone who cut himself with a blade.⁽¹⁴⁵⁾

I experienced a lot of violent people, experiencing negative things, especially when they put us with people who actually spend one year or one and a half years there. They are the people who experienced lots of negative things who have lost their mental power and they always talk about the negative things that they experience. For example, in my case, even though I spent only three months in that detention centre, I was in contact with a man who spent actually one and a half years of his time in Australia detention centre and he asked me he said 'you're a new person, you are a new arrival so you don't know what you will be going through' and then he was telling me about all the negative things that he will do and that made me even more heartbroken and even more scared and afraid and I just remember that another fellow, he had to go and visit a friend who is in mental hospital because he spent quite a long time in detention centre and he lost his mind and he ended up in hospital.¹⁴⁶

An Australian teenage girl who made friends with children in detention describes their experience as follows:

... the people that I talk to in the detention centres have told me of their experiences. They believe that the worst thing about detention is the psychological trauma of waking up and not knowing why exactly you are there, how long you are going to be there for, and what is going to happen if you are eventually given a TPV or sent back; so that is the worst.

Also, boredom, not having formal schooling so therefore spending all day thinking about what has happened to you and what can happen to you. Being called by numbers makes them dehumanised, makes them feel like animals, not like individuals, not like people - that, again, one of the worst things. Also, being surrounded by depression - constantly depression makes them also depressed. By seeing older people give up it shows them that the only way is to give up.⁽¹⁴⁷⁾

6.5.4 What do State child welfare authorities say about keeping children in detention centres?

Child protection authorities in States that have immigration detention centres have said, on various occasions, that the detention environment has a seriously detrimental impact on children. While many of these comments have been made in the context of assessments of particular children and families, some have also been of general application. The South Australian authorities have been the most vocal about the impact of detention on children.

DHS states that 'in the reports that have gone up to DIMIA it has been made clear that our view is that all children are at risk'.⁽¹⁴⁸⁾ Two of the individual assessments conducted by DHS of children in Woomera in February 2002 state that:

The detention environment is not suitable for impressionable adolescents and in this instance it is strongly compounding their sense of persecution. Ideally children such as [names removed] should not be in detention.⁽¹⁴⁹⁾

Ideally a family with children should not be confined in a detention centre.⁽¹⁵⁰⁾

DHS sent the Department an assessment report regarding Woomera dated 12 April 2002 which states at the outset that:

[DHS] maintains its previously stated position that it is not in the best interests of the child to be detained in detention centres ...⁽¹⁵¹⁾

Detention is often represented as a 'place' and as such a passive concept, however such a concept greatly underplays the impact of such facilities on the physical, psychological and emotional wellbeing of children, young people and their families.⁽¹⁵²⁾

A report conducted by the South Australian Child and Adolescent Mental Health Services (CAMHS) summarising the situation of families in Woomera from January to July 2002 states:

While each family has particular issues and difficulties, an overwhelming feature of the assessments was the clear evidence of the detrimental effects of the detention environment on the children both directly, (including inadequate developmental opportunities, exposure to violence and adult despair and removal of hope for their futures), and indirectly, as a consequence of parental mental illness.⁽¹⁵³⁾

In August 2002, DHS recommended:

That no child should be kept in the Woomera centre as it is an environment that fails to provide care and protection.⁽¹⁵⁴⁾

Furthermore, in a recent independent assessment of child protection in South Australia (the Layton Report), the chapter on Children in Detention states that:

Whether it be indirect or direct, the combined effect of the circumstances of immigration detention of children in detention centres is incompatible with them being in a situation which is in their best interests, instead the detention centre environment is positively detrimental to their well being.⁽¹⁵⁵⁾

In assessing the mental health of unaccompanied children in Port Hedland and Curtin detention facilities, the Western Australian Department for Community Development states that:

The best interests of children include that their development should, wherever possible, occur in a family environment within their own community.⁽¹⁵⁶⁾

The Department is of the view that the recommendation of the Western Australian authority is not incompatible with the provision of care to children in a detention facility. The Department has also expressed concern about the accuracy of the DHS report of 12 April 2002 and the Layton Report.⁽¹⁵⁷⁾ However, in neither case have the authors of the reports altered the content in response to the Department's complaints, indicating that they stand by their original assessments. The Inquiry accepts their assessments, which are supported by the overwhelming weight of evidence.

6.5.5 What do community groups say about keeping children in detention centres?

While the Government has asserted that public opinion supports Australia's detention policy generally, the Inquiry is not aware of any evidence suggesting support for the detention of children.⁽¹⁵⁸⁾ Of the 346 submissions received by the Inquiry, none argue that the detention of children is desirable - including the Department's submission.

Many of the written and oral submissions received by the Inquiry from human rights organisations, children's organisations and mental health experts argued that detention could never be in the best interests of the child. The following are just three examples of the many comments to this effect:⁽¹⁵⁹⁾

It is self evident in the material below on psychological and social wellbeing that if the primary consideration were the best interests of the child, none of the children in these interviews would have been placed in detention.

Asylum Seekers Centre⁽¹⁶⁰⁾

Unsurprisingly, medical and child welfare experts have concluded that holding child asylum seekers and their parents in immigration detention is contrary to the child's best interests.

Kids in Detention Story⁽¹⁶¹⁾

In short, our submission is that the current arrangements for detention of children in Australia fall conspicuously and depressingly short of meeting our international obligations to act in the best interests of the child, which is clearly the guiding principle on this issue. The relevant rights set out in international laws and guidelines recognise the distinct vulnerability, and the need for protection and care of children. The current arrangements for detention of children in Australia in many respects do not meet those basic requirements ...

Refugee and Immigration Legal Centre⁽¹⁶²⁾

If appropriate arrangements are made for the care of unaccompanied children in the community, it is difficult to imagine that it would not be in their best interests to be released from detention at an early stage. As the Refugee and Immigration Legal Centre stated:

[O]ur experience in terms of the release of children from detention shows that there are no reasons whatsoever why it cannot be facilitated. In our experience, we have not noted any circumstance where it has not been in the best interests of the child to be released, and we are working very closely with agencies with expertise in terms of care and welfare of children once released, including Hotham Mission.⁽¹⁶³⁾

6.5.6 Findings regarding the best interests of the child

The Inquiry agrees with the Department's statement that 'determining what is in the best interests of the child will involve a consideration of the relevant circumstances of the individual child in light of the rights established by the [CRC]'.⁽¹⁶⁴⁾ However, Australia's mandatory detention policy does not currently permit such an assessment because it requires the detention of all persons arriving in Australia without a visa, no matter what their individual circumstances. The law makes no distinction between whether a person is an adult or child, nor whether a child is accompanied or unaccompanied by his or her parents.

There is a preponderance of evidence suggesting that institutionalisation is generally bad for children. State child welfare authorities, community groups and children who have been in detention all talk about the detrimental impact of the deprivation of liberty generally and detention in Australia's immigration detention centres in particular. The evidence recounted throughout this report confirms that detention has a negative impact on children in a variety of areas.

In the Inquiry's view, the clear evidence that detention can have a detrimental impact on the well-being of children suggests that the best interests of the child have not been a primary consideration in the introduction and maintenance of laws that require the detention of children irrespective of their circumstances. This is an issue considered further in Chapter 17, Major Findings and Recommendations.

Further, if the best interests of the child were a primary consideration in creating and applying the detention laws then those laws would permit the result that neither children nor their parents would be held in immigration detention except as a measure of last resort and for the shortest appropriate period. Thus the oft-stated premise that the best interests of the child require that children be detained because their parents must be detained, is the perverse result of inappropriate detention laws.

However, those laws do permit the Department to make decisions regarding the location in which children are detained. In the Inquiry's view the Department has, on certain occasions, failed to make the best interests of the child a primary consideration when making some of these decisions. For example, decisions as to which detention centre a child should be detained in do not appear to have given sufficient priority to the fact that a child may have a parent or relative in the community near one particular detention facility.

Further, the delay in making arrangements for the regular transfer of unaccompanied children into home-based detention, and the failure to make such arrangements for children accompanied by their parents, suggests a failure to give adequate weight to the best interests of the child when determining where to detain children (see further section 6.4.3 above).

The Inquiry is not of the view that the Woomera housing project provides the same quality alternative location both because the restrictions on movement remain and because the rules of participation require fathers to remain in the detention centre separate from the rest of their family (see further section 6.4.3). However, even that initiative took until 2001 to introduce. The housing projects in Port Augusta and Port Hedland only opened in 2003.

Finally, while the development of MSI 370 in December 2002 demonstrates that the Department has put policies in place to ensure that the best interests of unaccompanied children are a primary consideration in future decisions relating to their location and care, the delay in formalising this policy is of great concern.

Issues relating to the best interests of the child and the length of detention are discussed in section 6.7 below.

The issue of the

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A last resort?

National Inquiry into Children in Immigration Detention

6. Australia's Immigration Detention Policy and Practice

6.1 What are the human rights relevant to the detention of children?

6.2 What is the history of mandatory detention in Australia?

6.3 When are children detained?

6.4 Where are children detained?

6.4.1 The Woomera Residential Housing Project

View of communal garden and an accommodation unit at the Woomera Residential Housing Project, June 2002.

(a) Who can be detained at the Woomera Residential Housing Project?

(b) Why were fathers and boys aged 13 and over excluded from the housing project?

(c) What is the impact of the separation from husbands and fathers?

Impact of the Woomera Housing Project on a family

(d) What other problems do children face in the housing project?

6.4.2 Home-based detention

(a) Recent history of foster carer homes being used as alternative places of detention

(b) What is the nature of the home-based alternative detention arrangements made with South Australian child welfare authorities?

(d) Why only unaccompanied children?

(e) Are there home-based alternative detention arrangements outside South Australia?

6.4.3 Findings regarding alternative places of detention

6.4.4 Pacific Solution' detention facilities

6.5 Is detention in the 'best interests of the child'?

6.5.1 How does the 'best interests' principle apply to children detained with their family?

(a) The 'best interests' principle and the decision to detain a family

(b) The 'best interests' principle and the decision regarding location of detention

6.5.2 How does the 'best interests' principle apply to unaccompanied children in detention?

6.5.3 What do children think about being in detention centres?

Drawings on a school desk at Port Hedland, June 2002.

6.5.4 What do State child welfare authorities say about keeping children in detention centres?

6.5.5 What do community groups say about keeping children in detention centres?

6.5.6 Findings regarding the best interests of the child