HREOC Website: National Inquiry into Children in Immigration Detention
Comments on Transcripts of the Public hearings for DIMIA and ACM
by Philippa Goodwin, Deputy
Secretary DIMIA
- Comments
on Transcript of the Public Hearing held in Sydney on 2 December 2002
- Comments
on Transcript of the Public Hearing held in Sydney on 3 December 2002
- Comments
on Transcript of the Public Hearing held in Sydney on 4 December 2002
- Comments
on Transcript of the Public Hearing held in Sydney on 5 December 2002
Comments
on Transcript of the Public Hearing held in Sydney on 2 December 2002
Page 19:
- To clarify this
section of the record, I note that the department's Detention Services
Provider, Australasian Correctional Management (ACM), was not involved
in production of documents for Notices 4 and 5. This is referred to
in a later part of the transcript by Ms McPaul (page six, 5 December
02).
- As Notices 4
and 5 were served on the department, and not ACM, documents in the
possession of the department only were supplied.
Comments
on Transcript of the Public Hearing held in Sydney on 3 December 2002
Pages 19 - 28:
- I would like
to make some general comments on matters relating to the Woomera Residential
Housing Project. These comments also serve as a response to the questions
taken on notice on this issue.
- The decision
to investigate alternative arrangements for the women and children
in detention was taken by the Minister for Immigration and Multicultural
Affairs in early December 2000. The issue arose because, in late 2000,
a number of people and organisations had called for arrangements for
women and children similar to elements of the Swedish model.
- When established,
the Woomera Residential Housing Project was a trial of alternative
arrangements for women and children. It was intended as a project
to focus on approaches for the management of diverse populations within
detention centres.
- By early 2001,
broad parameters for a trial of alternative arrangements for women
and children had been agreed to by the Minister. 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 (the Act).
- In relation
to the exclusion of men and older boys, as described above, this needs
to be considered in the context that the project was a trial of alternative
detention arrangements for women and children. The department's submission
to the Sex Discrimination Commissioner for an exemption under the
Sex Discrimination Act 1984 notes that it was considered that
women and children, as minority groups within the detention centre
environment, may feel vulnerable in a largely single adult male population.
In addition, from a practical viewpoint, the small number of houses
involved would create difficulties if adult males were involved. 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.
- In relation
to the participation of older boys, as identified by Ms McPaul in
her evidence, a key element of the trial was that participation was
voluntary. As explained by Ms McPaul, for cultural reasons having
males involved was expected to significantly influence the decisions
of females who might otherwise wish to participate. Female immigration
detainees who would be eligible to participate might decide not to
when they became aware that there might be male detainees accommodated
at the project. There was also a general reluctance evident during
discussions with detainees for family members to agree to a housing
environment in which female family members were living in such close
proximity to non-familial male detainees. In this way, the participation
of males and older boys was expected to affect the success of the
alternate arrangements.
- An important
consideration for the Minister and the department in meeting obligations
under the Act is the requirement to maintain immigration detention.
Matters such as security necessarily form part of any management decision
when detaining an individual. Consistent with this position, a history
of management difficulties or participation in escapes in detention
facility are relevant factors when considering the participation of
any women and children.
- It is not valid
to make a comparison between detention arrangements in a large detention
facility and those developed for the Residential Housing Project,
as Counsel for Commission was seeking to do during the discussion
of this issue. The circumstances and factors influencing decision
making in the establishment of accommodation arrangements at Woomera
IRPC and the Residential Housing Project were and remain markedly
different.
- With regard
to consultation on the trial, including determining an appropriate
age limit for the participation of boys in the project, the Minister
and the department undertook a comprehensive consultation process
from early to mid 2001. This included discussions with detainees,
the Immigration Detention Advisory Group (IDAG), Family and Youth
Services (FAYS), relevant ACM staff and the local Woomera community.
- The level of
formality in those consultations varied, and records of consultation
with detainees are not available. Consultations with women as part
of the Inquiry into Immigration Detention Procedures undertaken by
Philip Flood AO, included possible alternative arrangements for women
and children. Feedback from those discussions is included in the report
of this Inquiry (page 30).
- In mid 2001,
departmental and ACM staff held a large meeting with the detainee
women in Woomera IRPC. At that meeting, there was a discussion of
the proposed parameters of the trial. The detainee consultative committee
also discussed the proposed Residential Housing Project. Discussions
identified that in the Middle Eastern cultures, older boys are considered
men at approximately age 15 years. In light of the cultural sensitivities
of including adolescent boys who were approaching adulthood, eligibility
for the trial was limited to boys up to the age of 12 years.
- Having considered
the information and advice from all relevant parties, the Minister
determined that, for the reasons outlined above, it was not in the
interests of the project to extend eligibility to adolescent boys
over the age of 12 years at that stage.
- Initial community
consultation meetings were facilitated and held by the Minister's
Office. While no records of those meetings were made, the attached
document, a copy of responses to questions raised at consultations
between the community and Minister in early March 2001, provides a
summary of issues raised at those meetings.
Pages 55 - 78
- This section
of the transcript has dealt with, among other things, the department's
response to general recommendations by child welfare authorities.
My colleagues have indicated that there are some complexities in meeting
general recommendations by State authorities. I would like to make
some additional comments on these complexities.
- The focus of
State authorities is principally on responding to child protection
matters for individuals in their State, subject to their State's legislation.
Understandably, such officers are not necessarily familiar with or
experienced in the interaction of Commonwealth and State law and,
more specifically, the requirements of the Migration Act 1958
(the Act) and other relevant Commonwealth Acts. Given this, State
authorities may make recommendations that press for options that are
not legally available to the department or fall outside of the parameters
for effective administration and operation of the detention program
(such as the release of all or many families from a detention facility).
Nevertheless, as advised by my colleagues, the department works with
the State authority to develop suitable options that focus on the
needs of the individuals and take account of the legal framework.
- Notwithstanding
this, there are times when general recommendations are made that do
seek to take account of the particular legal and policy framework
of immigration detention. For example, the department is increasingly
using alternative detention arrangements for detainees with special
needs (such as women and their children, and unaccompanied minors)
and State authorities have begun to include such options in recommendations.
Understandably, organisations not directly involved in the detention
program can perceive that such arrangements are easy to establish
and implement, while failing to understand the range of constraints
on such options under the Act. I described these constraints in more
detail on 3 December 2002.
- My colleagues
have also referred to the documents demonstrating that the department
is working actively to manage the complex situations described.
- When an individual
or family is of concern to the department and the services provider,
a range of responses take place. This includes regular liaison by
DIMIA Managers with relevant ACM staff; discussions by phone with
Central Office, the relevant DIMIA Manager and/or other DIMIA Managers;
the involvement of State child welfare authorities for assessment
and recommendations; meetings between ACM and/or relevant experts
to discuss and explore appropriate options; close monitoring of incident
reports; holistic review of health of the individual or family, visa
processing and other issues by Detention Operations Section in Central
Office; and considerations by senior departmental staff of issues
and options relevant to the individual or family.
- All of these
activities would be taking place within an environment of increased
observation of the individual or family within the centre, consultation
with the family (as possible and appropriate) and implementation of
agreed strategies.
Comments
on Transcript of the Public Hearing held in Sydney on 4 December 2002
Page 34:
- Under subsection
235(3) of the Migration Act 1958, it is an offence for unlawful
non-citizens to engage in work in Australia. For this reason, work
opportunities and, it follows, professional career or trade qualifications
are not available to unlawful non-citizens.
- In relation
to minors, Articles 28 and 29 of the Convention on the Rights of the
Child (CROC) do not require State Parties to provide accreditation
or recognised certificates of completion or attendance. For detainee
minors, Ms Lumley provided evidence on reports provided to parents
regarding progress and completion of studies in immigration detention
centres.
Page 84:
- I support the
comments made by my colleagues regarding the issue of payment of costs
and fees in relation to external schooling of children. The issues
raised in relation to Maribyrnong IDC are indicative of the difficulties
associated with accessing external State schooling, particularly at
the early phase of negotiations. The department, however, has continued
to focus on this issue with significant achievements evident over
the course of 2002.
- As I described
in my opening statement, arrangements had been put in place to access
external primary schooling for children in the Maribyrnong IDC since
1999. This was at a local non-government school.
- In March 2001,
a detainee child of secondary school age entered the centre. Initially,
the child required English as a Second Language (ESL) training. This
was provided within the centre by ACM.
- It was determined
that the child would benefit from transitioning into secondary schooling
externally, as there were no other children in the same peer group
within the centre. While continuing to provide ESL training, ACM sought
to negotiate access to a State secondary school. This was unsuccessful.
- In August 2001,
departmental staff became involved in the negotiations with the Victorian
Department of Education and Training (DET) and approval for access
was granted. During these discussions with DET, a request for funding
at the overseas student rate was made. This was the first such request
for fees to the department or ACM.
- In September
2001, while issues relating to duplication of funding provided by
other Commonwealth agencies and requirements of the detention services
contract were being resolved, the child in question was released from
detention. It is important to note that while these discussions were
held within the department, the child continued to participate in
educational programs within the centre.
- The issue of
educating detainee children in the Victorian State school system arose
again in relation to particular families in mid 2002. More generally,
issues related to access to State schooling and appropriate fees to
be charged have continued to be actively explored and progressed,
in particular through the development of Memoranda of Understanding
(MOU) with State education authorities. MOUs with the New South Wales,
South Australian and Victorian education authorities have since been
signed. A copy of the MOU with the Victorian Department of Education
& Training (DET) is attached.
Page 98:
- I would like
to make some general comments about separation detention. Separation
detention is a management tool through which the integrity of Australia's
visa determination process is maintained. It is an area or areas in
a detention facility in which new arrivals are kept separate from
other detainees. Effective separate detention provides the Department
with the assurance that any claims by unlawful non-citizens to remain
are put forward without the embellishment or coaching of others.
- Unauthorised
arrivals who, after their initial entry interview do not prima facie
engage Australia's protection obligations or do not make a visa application
remain in separation detention.
- Where the department
requires that detainees be kept in separation detention, the services
provider ensures that this is achieved so long as there are appropriate
facilities available within the detention centre. Detainees in separation
detention continue to have reasonable access to the full range of
facilities and services, and ready access to departmental staff. In
reception and processing centres, such as Woomera IRPC, separation
detention is usually achieved by putting in place arrangements for
a designated compound. This means that detainees are not isolated
while in a separation compound.
- The length of
time in which a detainee remains in separation detention can vary.
In my evidence on 2 December 2002, I stated that it is usually for
a number of days. This is accurate, in particular for the current
caseload of detainees. Those detainees who arrive at a centre and
do not raise claims which, prima facie, may engage Australia's
protection obligations are available for removal and can remain in
separation detention for extended periods before they are able to
be removed from Australia. This may occur where there are large numbers
of people arriving unlawfully, such as occurred in 2000 and 2001.
Comments
on Transcript of the Public Hearing held in Sydney on 5 December 2002
Page 43:
- This part of
the transcript raises issues related to the movement of detainees
to other centres. As indicated by my colleagues, this is only considered
if the needs of an individual or family cannot be adequately met within
a particular facility.
- It is not usual
practice to consider moving a detainee or detainee family to another
centre. Such a move would be considered only where compelling reasons
existed for transfer, such as access to and availability of services
specific to their needs or circumstances.
- 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.
Last
Updated 27 March 2003.
