Date: 
Thursday 12 February 2015

Author

Professor Gillian Triggs, President

The Australian Human Rights Commission welcomes the tabling in Parliament of The Forgotten Children our Report of the National Inquiry into Children in Immigration Detention.

The Commission also wholeheartedly welcomes the release of children in immigration detention over recent months.  Since the Inquiry began in February 2014, many of the 1,138 refugee children detained at that time are now in the community or in community detention.

But much more remains to be done. Recent data from the Department of Immigration shows that 211 children remain in detention throughout Australia and a further 119 children are held indefinitely on Nauru. When our Report was provided to the Government last October, these children had been detained for an average of 14 months. Today their detention has lengthened to nearly 18 months on average. It is our hope that the remaining 330 children will be released with their families as soon as it is safe to do.

Aims of the Inquiry

The Commission called this Inquiry to review and better understand the impact on children in immigration detention over the past 10 years since our earlier Inquiry in 2004. Our primary concerns were the failure to release children over the preceding months and the exceptional periods of time for which they were detained in the camps.

Our aim has been to conduct objective, evidence-based research into the physical, mental and developmental consequences for children of Australia’s policy of mandatory and indefinite detention.

Australia’s immigration laws are exceptional

No country in the world, especially not comparable countries such as the UK, Canada, New Zealand and the US, mandates the indefinite detention of children as the first policy option and then denies them effective access to the courts to challenge the necessity of their detention over months and even years.

The United Kingdom, for example, requires that children who arrive without visas are immediately screened and released into the community while their refugee status is determined.

Only at the point of exit from the UK after an unsuccessful visa application can a child be detained - and then only for 72 hours.

United Kingdom law contrasts starkly with Australian law where, since 1992, the Migration Act has required children to be detained, indefinitely if necessary, when they arrive by boat without a visa.

This law has been supported and implemented by both sides of politics variously over last 23 years.

How did we conduct this Inquiry?

Our Report, The Forgotten Children, makes credible and compelling reading. It is underpinned by evidence from several sources.

The Inquiry team, led by me, comprised lawyers, social researchers, and two Commissioners - the Children’s Commissioner Megan Mitchell and the Human Rights Commissioner Tim Wilson. We visited 11 detention centres, with repeat visits to Christmas Island after reports of incidents of alleged self-harm and attempted suicide.

Much of the statistical data was derived directly from the Department of Immigration itself, from the Government contractor, International Health and Medical Services; from testimony given under oath at public hearings including former Ministers of Immigration and workers at detention centres; and from 239 submissions from the general public and civil society.

An important source of evidence came from the detainees themselves. Never before has an in-depth study been conducted that gives voice to so many refugees.

1,233 children and their parents - both detained, and in the community - participated in a questionnaire, giving the study international significance.

A vital feature of our methodology was to bring medical experts with us to each detention centre, including 4 child psychiatrists and 5 paediatricians. They represented over 200 years of combined medical experience.

Findings

Our findings are deeply shocking. We found that:  

  • All the medical evidence confirms that Detention causes and compounds mental health disorders amongst children.
  • 34 percent of children detained in Australia and Christmas Island have a mental health disorder of such severity that they require psychiatric support. Fewer than 2 percent of children in the general community have mental health disorders of this severity.  We believe the rate to be even higher in Nauru.
  • Children are self-harming in detention at very high rates – over a 15 month period from 2013-2014, there were 128 incidents of self-harm amongst children.
  • During this same period there were 27 incidents of voluntary starvation involving children.
  • Children have been exposed to unacceptable levels of assault, including sexual assault and violence in detention. They often live with adults who are mentally unwell.
  • Children live in very cramped conditions where disease and fear spread quickly. On Christmas Island up to 4 people shared a tiny room of 2.5 x 3 metres
  • Over a 15 month period from 2013-14, 128 babies were born in detention, many having their first birthday without ever knowing freedom.
  • Detention of children destroys normal family relations. One parent told the Inquiry team: “My son thinks we are robbers”.  Another said, “My child only takes orders from the SERCO guards”.
  • Many children were wetting the bed long after being toilet trained. Children were especially frightened of the nightly head-counts, with officers flashing torches on them at 11pm and 5am overnight.

Many children arrive in Australia without a parent or guardian.

One 17 year old teenager arrived alone in Christmas Island from Pakistan in 2013. He had been subject to torture and trauma at the hands of the Taliban and saw his friend murdered. He escaped and, using people smugglers, he finally reached Christmas Island.

Despite repeated recommendations both by a psychiatrist and by the Director of Mental Health of the Department of Immigration that he be moved to community detention for treatment, he has been held in closed detention. While treated at a hospital in Melbourne for Post-Traumatic Stress Disorder and psychosis he was again returned to detention despite medical expert concerns that he would self-harm or commit suicide. The boy was referred to the Minister - his legal guardian - for release into community detention. Despite this, he remained in indefinite closed detention.

The report is full of such stories and figures.

“My country and my religion is a target for Taliban.  There were many bomb blasts and always big wars and terrible attacks.  Shia people have arms, legs, noses hacked off, necks slashed, plus there is rocket fire and missiles.  This is because I am Shia.  All this means no one is safe and now because I escaped.  I am in detention.”  From an unaccompanied child at the Nauru Regional Processing Centre.

Legal findings

The Report also documents Australia’s international legal obligations. May I be quite clear? The Australian Human Rights Commission has the statutory task of monitoring compliance by respective Australian Governments with human rights treaties such as the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

Over the last 23 years the Commission has consistently advised on the settled position at international law of our refugee policy.

  • It is not illegal to seek asylum. Rather, the onus is on Australia to assess the refugee status of those who reach our shores and seek our protection from conflict and persecution.  In short, refugees are not criminals and to treat them as such is, in itself, contrary to the law.
  • Under the Convention on the Rights of the Child, a child may be detained only as a last resort.
  • Indefinite detention, in poor conditions without effective access to appropriate medical care, education or supervision by the courts, amounts to arbitrary detention contrary to the most ancient common laws that prohibit detention without trial, including the Magna Carta signed 800 years ago this year.
  • International bodies have also repeatedly expressed their concerns. Recently, the UN High Commissioner for Human Rights stated that offshore processing and the ‘turn back the boats’ policy is “leading to a chain of human rights violations including arbitrary detention and possible torture”.

These are powerful and disturbing words.

We have published the Inquiry Report with two purposes in mind:

  • First – to tell the stories of ‘the forgotten children’.
  • Second – to ensure that ‘never again’ will refugee children be detained in such numbers or for such a length of time or in such damaging conditions.

This report is even-handed. Both sides of politics are responsible for breaches of our international obligations. Alternatives to indefinite detention, such as community detention, have not been properly considered by government decision makers, and the safety and wellbeing of children has not been a primary consideration.

For all these reasons, I ask the Government to act now to ensure that:

  • all the remaining 330 children and their families in detention in Australia and Nauru be released as soon as practicable, and on their release, that they be given the medical and educational support they need in the future.
  • legislation be enacted ensuring that children may be detained only for health, identity and security checks within a strictly limited period.

It is acknowledged that detaining children does not stop the boats or people smugglers or the tragic drowning of refugees at sea. The numbers of boats have declined because we have used military patrols to deter and send them back.

This Report provides an opportunity for change.

Never again should any child be treated in this way in Australia’s name. I hope the evidence presented in this Report serves as a record of the profound mental and developmental harm caused by indefinite detention.

Until the law changes, children remain vulnerable to being detained again. We need bi-partisan support for legislative change.

May I conclude on a personal note?

Leading this Inquiry has been a life changing experience for me. Although I have been a lawyer for 46 years this Inquiry has taught me how important it is to respect the dignity of every human being and how vulnerable the rule of law can be to abuse, even in a mature democracy like Australia’s.  

These lessons I learned as I stood in the phosphate dust and heat of Christmas Island telling a mother that her baby born a few weeks ago in Brisbane is deemed by Australian law to have arrived by sea and not able to apply for citizenship.

These lessons I learned as I talked to a very young girl - as bright and eager as any Australian - when she broke down in tears, not because her family had been killed by Al Shabaab in Somalia or because she is alone and scared, but because she has been denied an education for a year on Christmas Island.

The practice of locking up children taints all of us and is contrary to those values we admire in the Australian spirit; a generous hearted welcome to those needing our protection and a fair go. I appeal for a more humane and legally responsible approach to refugees who seek our help.

I ask you to read this Report and decide for yourself.

Thank you.

Address

Australia