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Ozdowski, Sev; OAM --- "A last resort? Report of the national inquiry into children in immigration detention" [2004] AltLawJl 70; (2004) 29(5) Alternative Law Journal 235

Report of the National Inquiry into Children in Immigration Detention[#]


Since 1992, asylum seekers who arrive in Australia without a visa-both adults and children -have been subject to mandatory detention. In all but a few rare cases, their detention ends only when they are recognised as refugees and granted a protection visa', or when they are removed from the country. The Human Rights and Equal Opportunity Commission's National Inquiry into Children in Immigration Detention was established to examine whether the laws requiring the detention of children and the treatment of children in immigration detention met Australia's obligations under international law, especially the Convention on the Rights of the Child (CROC). This article briefly outlines the findings and recommendations of the Inquiry.

On 13 May 2004, the report of the Human Rights and Equal Opportunity Commission's National Inquiry into Children in Immigration Detention was tabled in Federal Parliament. The title of the report -A last resort?-comes straight from art 37(b) of CROC which states:

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. [emphasis added]

Australia ratified CROC two years before the mandatory detention policy was introduced. The 900 page report -which is structured around CROC- is the result of two years of detailed research and consultation.

Over 2002, the Inquiry visited all detention centres in Australia-some of them a number of times-and spoke to detention centre staff and detainees. The Inquiry also compelled the Department of Immigration and Multicultural and Indigenous Affairs (DIM lA) and Australasian Correctional Management (ACM) to provide primary records (some 25 boxes of them) relating to individual cases and general operational polic1es and procedures.[1] The Inquiry received almost 350 written submissions and took oral evidence from more than 150 witnesses. The written and oral evidence came from DIMIA and ACM, current and former detainees and their parents, medical and legal experts, and: a vast range of community organisations and individuals.

Inquiry findings

The Inquiry made many detailed findings about the administration of immigration detention centres in Australia. The major findings are summarised as follows:

• Australia's mandatory detention policy is fundamentally inconsistent with CROC

• children in detention for long periods are at high risk of serious mental illness

• there have been multiple further breaches of human rights between 1999 and 2002.

Mandatory detention policy

The Inquiry found that the mandatory detention policy itself is fundamentally inconsistent with CROC. In

particular, Australia's mandatory detention system fails to ensure that:

• detention is a measure of last resort, for the shortest appropriate period of time and subject to effective review (art 37(b) and (d) CROC)

• the best interests of the child are a primary consideration in all actions concerning children (art 3(1) CROC)

• children are treated with humanity and respect for their inherent dignity (art 37(c) CROC)

• children seeking asylum receive appropriate assistance (art 22(1 )) to enjoy, 'to the maximum extent possible' their right to development (art 6(2)) and their right to live in 'an environment which fosters the health, self-respect and dignity' of children in order to ensure recovery from past torture and trauma (art 39 CROC).

Risk of mental illness

The Inquiry found that children in detention for long periods are at high risk of serious mental illness.

The evidence before the Inquiry on this issue was overwhelming. There was first hand evidence from psychiatrists who had treated children in detention, reports from state child welfare authorities and primary medical records that demonstrated, beyond any doubt, that long-term detention had a serious impact on children.

For example, some children were diagnosed with clin1cal depression, post traumatic stress disorder and developmental delays. Many children showed symptoms such as nightmares, bed-wetting, muteness, lost appetite and suic1de ideation -the list goes on.

In 2003 a psychiatric study of20 children detained in a remote centre found that all were suffering from psych1atnc illness (all but one child were suffering from major depression and half were suffering from post­ traumatic stress disorder).[2] These children experienced a tenfold increase in psychiatric illness over the period of detention.

Two of many 'Case examples given in A last resort? describe children who have suffered serious mental illnesses:

A14-year-old boy detained at Woomera attempted to hang himself four times, climbed into the razor wire four times, slashed his arms twice and went on hunger strike twice over a four-month period in 2002. This boy's mother was hospitalised due to her own mental illness during this whole period. This boy was only released from detention in July 2004.

Another case is that of a family -a father, mother and 10-year-old son -who arrived at the Ashmore Islands in April 2001. They were immediately taken to the Woomera detention centre. A few months later, in August 2001, the family agreed to be separated, with the mother and son moving to the nearby Woomera Residential Housing Project (the rules of the Project do not permit father’s to live there).

In May 2002, South Australia's Family and Youth Services (FAYS) noted that the boy was showing 'clear signs of severe stress: his sleep-talking, nightmares and now sleep-walking indicate deep-seated trauma'. In the same month, an ACM psychiatric nurse reported that his mental health was deteriorating and recommended the family be reunited and released on a bridging visa.

At the end of May, the mother and son went back to the Woomera detention centre because they no longer wanted to be separated from the father. Between May and November 2002, the young boy attempted to hang himself twice and 'self-harmed' by cutting himself on at least eight occasions.

Regular psychological assessments documented the boy's deteriorating mental health and the urgent need for intervention, including immediate release from the detention environment These reports were provided to the Department

He is at on-going risk of self-harm and his parents are unable to support and help him. In fact, he is currently the 'strong one' in the family - and he is only 11 years old.

FAYS, June 2002

He is completely dysfunctional for his age and experiences bouts of depression and uncontrollable rage ... the stresses for a young boy to represent the family under these circumstances is pushing him into extreme and dangerous behaviours.

ACM psychologist, June 2002

[L]ittle can be done to help them wh1lst they remain in the detention situation.

Psychiatrist, Royal Adelaide Hospital, July 2002

Continued detention increases the risk of self-harming behaviour and increased traumatisation.

Psychiatrist, Women and Children's Hospital (Adelaide), July 2002

The boy's self-harm incidents have risen in frequency so much that 'he now seems to be disassociated when he cuts himself.'

Teleconference involving FAYS, ACM, the Department and Woomera Hospital, October 2002

Long term detention has had a devastating effect on [this] family ... Detention of this family at the Woomera Detention Centre is no longer an option. I strongly recommend that ... the family be given alternative accommodation, preferably community-based ... Anything less would be a failure in our duty of care.

ACM psychologist to Department Manager, October 2002

In November 2002, ACM's Acting General Manager wrote to the Department outlining the serious concerns of health professionals and recommending that the family be transferred, at least to a detention centre other than Woomera, but preferably to an alternative place of detention. Attached to ACM's letter were 18 reports on the family and their health needs.

In January 2003 the family was transferred to the Baxter detention centre. The problems continued.

[He] remains depressed with symptoms of PTSD. He remains at high risk of suicide and the centre is clearly unable to provide the appropriate supports to ensure his safety.

SA Child and Adolescent Mental Health Service, January 2003

When I asked if there was anything I could do to help him, he told me that I could bring a razor or knife so that he could cut himself more effectively than with the plastic knives that are ava1lable (sho:vv1ng me the many scars on his arm).

Psychiatrist, Women and Children Hospital (Adelaide), February 2003

This family was released in June 2004 on refugee protection visas more than three years after they were first detained and more than two years after doctors started noting serious mental health problems in the family.

The Inquiry found that DIMlA's failure to implement the repeated recommendations to release families like the one in this second example amounted to cruel and inhumane treatment in contravention of art 37(a) of CROC.

Further breaches of human rights

The Inquiry found that at various times between 1999 and,2002 DIMIA failed to:

• ensure sufficient protection from physical and mental violence (art 19(1) CROC)

• ensure that children could enjoy the highest attainable standard of physical and mental health (art 24(1) CROC)

• ensure adequate education until late 2002 (art 28(1) CROC)

• ensure appropriate care for children with disabilities (art 23(1) CROC)

• ensure that unaccompanied children received the special protection they needed (art 20(1) CROC).

Inquiry recommendations

Having found these breaches of human rights, the question for the Inquiry was: where to go from here? What should be done in the future to avoid ongoing breaches? The Inquiry made the following recommendations.

Release the children

The first step is to release the children who are in detention centres and residential housing projects as soon as possible.

Some children in detention in June 2004 had been there for more than three years. As at Boxing Day 2003 the average length of detention was one year, eight months and 11 days. That is clearly well beyond the 'shortest appropriate period of time' that CROC requires.

Some of the children and their parents have serious mental health issues and need specialised, on-going medical help which they cannot get in the detention environment The only solution for these children is to be released from the environment that is causing them so much harm.

The Inquiry therefore called for the release of all unaccompanied children and all families by 10 June 2004

-four weeks after the report was tabled in Parliament. That date has passed and there are still children in detention, although by October 2004 the number was diminishing.

Change the mandatory detention laws

While releasing the children who have already been in detention for long periods is extremely important in order to prevent ongoing breaches, it only solves the immediate problem. Australia needs to make sure that asylum seekers who arrive in the future do not end up suffering under this same system again. Unless Australia's laws change, children will continue to be detained in places like Christmas Island and Baxter for indefinite periods of time. The Inquiry therefore made a second recommendation: change the immigration detention laws.

Australia needs laws that make detention of children the last resort-not the first and only resort. Australia needs laws that ensure detention of children is for the shortest appropriate period of time -not for indefinite periods of time. Australia needs laws that can accommodate individual assessment of the circumstances of each unaccompanied child and family -not laws that put all unauthorised arrivals in the same category. And Australia needs laws that make the best interests of the child a primary consideration – not laws that force a choice between family separation or indefinite detention.

The Inquiry therefore recommended that amended laws should incorporate the following minimum features:

• a presumption against the detention of children for immigration purposes

• an independent assessment by a court or tribunal, within 72 hours, as to whether there is a need to detain children for immigration purposes (for example for the purposes of health, identity or security checks)

• prompt and periodic review by a court of the legality of continuing detention of children for immigration purposes

• all courts and independent tribunals should be guided by the following principles:

-detention of children must be a measure of last resort and for the shortest appropriate period of time

-the best interests of the child must be a primary consideration

-the preservation of family unity

-special protection and assistance for unaccompanied children

, • amendment of bridging visa regulations for unauthorised arrivals so as to provide a readily available mechanism for release of children and their parents. Any child or family released on a bridging visa should be provided the appropriate social support.

Appoint an independent guardian for unaccompanied children

The Inquiry found that the Minister, as guardian of unaccompanied children, failed to satisfy the duty to ensure that the best interests of unaccompanied children was his or her 'basic concern', as required by CROC. This results from an insurmountable conflict between the Minister's role as 'detainer', 'visa decision­maker' and 'guardian' of unaccompanied children.

The Inquiry therefore recommended that unaccompanied children have an independent guardian in place of the Minister for Immigration.

Codify minimum standards of treatment for immigration detainees

The development of standards and systems for administering immigration detention has taken place through commercial agreements with detention services providers, ad hoc arrangements with state authorities and internal departmental guidelines. Detainees have no directly enforceable rights or remedies under these arrangements. Further, there is no direct avenue to obtain a remedy for a breach of the human rights protected by CROC because the Commonwealth Parliament has not enacted legislation that provides for such remedies.

In the Inquiry's view, if the Commonwealth intends to continue to detain children and their parents, whether for short or long periods, specific legislation and regulations should be enacted which set out the rights of detainees, the responsibilities of the body administering the detention centre and the remedies available for any breach. This should apply irrespective of whether there is a private or public detention services provider.

Long-term legacy

If Australia does not change its laws it will not only be repeating past breaches of human rights, it will be creating a terrible legacy for itself. A last resort? makes it clear that the longer children are in detention the more likely it is they will develop serious mental heath problems. A last resort? also highlights that more than nine out often of these children end up calling Australia home because they are eventually found to be genuine refugees. Out of 2184 children in detention between

1999 and 2003, almost 93% have been found to be refugees.

So the Australian community is left with the burden of helping these families deal with both the normal challenges of settling into a new society and the additional mental damage that we ourselves have caused.

Australia's current immigration detention laws just do not make any sense -either legally, practically or morally.

Reasons for the Government's policy

The Government's response to the publication of A last resort? states that it has had to make the awful choice between locking up children and deterring people smugglers and it chooses the second of these. There are several responses to this.

First, DIMlA has not provided the Inquiry with any evidence whatsoever that there is any connection between detention and deterrence of people smugglers.

It is important to remember that Australia has had a mandatory detention policy since 1992. Over the past 12 years, sometimes there have been large numbers of boat arrivals, and sometimes there have been very small numbers.

There are all sorts of factors that might encourage or deter people from coming to Australia, including the conditions in countries like Afghanistan, Iran and Iraq; the level of coastal patrolling; the imposition of tough people smuggling laws; and international cooperation on criminal smuggling rings. It is not correct to say that detention is the only, or even the primary, factor.

Second, there is no part of human rights law, or any other modem law, that permits the Government to use innocent children to deter criminal people smugglers. While Australia has the right to protect its borders and stop people smuggling, it also has the responsibility to uphold its human rights obligations to children. A last resort? shows clearly that Australia's detention policy does not meet those obligations.

Third, a close look at the number of boat arrivals makes it clear that there are hardIy 'floods' of people arriving on our shores by boat. Since 198,9 only 13,500 people- single adults, families and unaccompanied children -have arrived in Australia by boat If all these people were gathered together in the Olympic Stadium in Sydney, they would only fill 15% of the seating capacity. As a proportion of all new settlers, boat arrivals are roughly one percent of the total.

Finally, it is important to remind ourselves that almost 93% of the children who are detained eventually end up in the communiy on refugee visas.


This year Australia is the Chair of the Unied Nations Commission on Human Rights. This is a great opportunity for Australia to be a human rights leader: Australia should use this opportunity to change its laws so that they comply with the Convention on the Rights of the Child.

Other countries such as Canada, Sweden and the UK seem to deal with the issue of increasing refugee flows without the need for extended detention. There is no doubt that Australia can also find a solution in line with the Convention it has signed. It is just a matter of finding the political will to implement those solutions.


[#] The full report is at <>

[*] DR SEV OZDOWSKI OAM is the Human Rights Commissioner.

[1] Pursuant to legal Notices to Produce under HREOC Acts 21 (1)

[2] Z Steel, et al. 'Psychiatric Status of Asylum Seeker Fami1ies Held for a Protracted Period in a Remote Detention Centre in Australia', forthcoming. referred to in Z Steel, The Polit1cs of Exclusion and Denial of the Mental Health Costs of Australia's Refugee Policy, (Key Note address at 38th Congress Royal Australian and New Zealand College of Psychiatrists, Hobart, 12-15 May 2003).

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