O'Connor, Claire --- "Cruelty in our name: Children in immigration detention" [2014] PrecedentAULA 42; (2014) 124 Precedent 4

---

CRUELTY IN OUR NAME

CHILDREN IN IMMIGRATION DETENTION

By Claire O’Connor SC

Harsh treatment of refugees has recently been criticised by Pope Francis. He said, ‘The culture of well-being makes us think about ourselves and renders us insensitive to the cries of others.’^[1]

Nowhere is this insensitivity more apparent than in Australia. The number of people seeking asylum here who arrive by boat is comparatively small, yet we treat them cruelly. They are all placed in immigration detention. And it is the children in detention who feel the impact of the detention conditions most keenly.

As of April 2014, there were 677 children in immigration detention centres in Australia – 254 on Christmas Island and 423 in Alternative Places of Detention (APODs). A further 156 children were in immigration residential housing (which is also surrounded by fences and guarded by staff in uniforms), bringing the total number of children in detention on-shore to 833.^[2] Most children were from Iran, Iraq or Afghanistan; 10 per cent were stateless.

A further 190 children were being held off-shore in Nauru.^[3] Many children, both on-shore and off-shore, were unaccompanied. We now have the highest number of children in detention since 2004.^[4] The longest documented period for a child in detention in Australia was 998 days.^[5] As of April 2014, people spent an average number of 305 days in immigration detention.^[6]

As a criminal lawyer, I have visited prisons in both Australia and England, so the harsh environments in which we keep law-breakers are not foreign to me. In the past 12 years I have also been to a number of immigration detention centres in Australia. The conditions in these detention centres – in which we keep people who have broken no laws – are worse than in any prison I have visited.

I have seen small children pressing their faces into wire and staring out to the desert of Woomera. I have observed row after row of metal huts in separated compounds, surrounded by razor wire, with no play areas and no vegetation. The children I observed had seen guards in uniforms, sometimes wearing full riot gear with batons and face masks. Many children witnessed water cannons used on detainees, and many have seen and continue to witness detainees self-harming by hanging, jumping into razor wire, cutting themselves and sewing their lips together. For years, children in detention were referred to by number, not by name.

I have acted for children who have stopped eating, had nightmares and lost the ability to play. I have acted for a family who were eventually transferred from Baxter to a psychiatric hospital. The transfer was too late. Ten years later, they are unable to function properly because of the permanent damage that detention caused to their psychiatric health. I know of a father who tried to kill himself when he reached the end of his tolerance after guards repeatedly refused to allow his young baby access to formula for a night feed. I know of another father who was beaten when guards tried to strip search him in front of his young daughter. He was taken to isolation and then his child sent back to Iran days later with the Department of Immigration lying to the father, telling him she was in Port Augusta with the manager ‘shopping’.

When I visited Christmas Island, families were mainly held at Phosphate Hill and Construction Camp. The accommodation in those camps consisted of rows of tin huts. Some detainees were also kept in tents at the main detention centre on the Island. There were inadequate play areas, overcrowding, few activities and only some of the children were allowed to attend school.

SHAYAN BEDRAIE

The fate of children in detention has concerned many people for years. One of the first media reports from inside the detention environment in Australia was the ABC’s Four Corners program about Shayan Bedraie, which aired in August 2001.^[7] Shayan was then six years old and had been held in both the Woomera and Villawood detention centres with his family. Shayan had stopped eating and talking, was described by experts as very ill, in a near-catatonic state, unlikely to recover and in urgent need of treatment. He had seen adults and children self-harm. He had seen detainees on hunger strike, had seen detainees try to hang themselves, and had watched detainees cutting their own bodies.

By the time the documentary aired, Shayan had been admitted to psychiatric facilities at Westmead Children’s Hospital on more than one occasion and those treating him had opined he would never recover.^[8] Five doctors said that he had been so traumatised by his experiences in detention that he now suffered from a post-traumatic stress disorder (PTSD) as a result. The medical report of those doctors had recommended to the then Minister for Immigration, Phillip Ruddock, that Shayan and his family should be released into the community to prevent a further decline of his condition. Ruddock had taken the report and scrawled across the release recommendation paragraph ‘Bucklies’ (sic). Ruddock issued a 20-page press release after the Four Corners program aired denying the allegations of lack of care for Shayan. He later appeared on the 7.30 Report, again denying fault and infamously referring to Shayan as ‘it’.^[9]

By 2006, Shayan’s father, acting on his behalf, initiated legal action against the Commonwealth for breach of the duty of care in failing to treat his son’s psychiatric conditions and by contributing to his permanent injuries. Shayan’s case was settled during the trial with the Commonwealth agreeing to pay him $400,000,^[10] but not until the court had heard all the plaintiff’s evidence, including the Commonwealth lawyers blaming Shayan’s permanent psychological conditions on poor parenting.

Shayan was not the only child who suffered from the effects of detention. Most children who spent more than a few weeks in centres did. An Iraqi doctor detained in Villawood collaborated with an Australian psychologist and they published a study in 2001 which spoke of the impact of detention on children. They reported:

‘The detention environment, exposure to actions such as hunger strikes, demonstrations, episodes of self-harm and suicide attempts, and forcible removal procedures, all impact on a child’s sense of security and stability.

A secondary effect is mediated via the parents, whose ability to provide a caring and nurturing environment is progressively undermined... with risk of neglect and physical abuse of dependent children increasing across the course of detention. Following allegations of sexual abuse at the Woomera centre, detaining authorities have increased their monitoring of parents at Villawood for evidence of neglect and abuse, leading to parental fears of their children being removed, which has further increased family insecurity... on a number of occasions, the authorities have separated children from their parents to pressure adults to cease their hunger strikes. A wide range of psychological disturbances are commonly observed among children ... including separation anxiety, disruptive conduct, nocturnal enuresis, sleep disturbances, nightmares, and night terrors, sleepwalking, and impaired cognitive development ... a number of children have displayed profound symptoms of psychological distress including mutism...’^[11]

AUSTRALIA IN CONTEXT

Compared to the rest of the world, Australia’s refugee problem is minute. According to the Department of Immigration and Border Protection, just under 50,000 unauthorised boat arrivals came to Australia between the election of Kevin Rudd’s Labor Government in 2007 and the election of Tony Abbott’s Coalition government in 2013. In the same six-year period, Australia accepted about 1.3 million migrants.^[12] Boat people therefore represent less than 4 per cent of all arrivals in Australia. Yet many people have the impression that the number of boat arrivals threatens us. Compare Australia’s problem with that of Jordan, which has had 611,685 Syrians arrive in the last three years,^[13] or Lebanon which has had a staggering 1.1 million.^[14]. In Italy, over 100,000 refugees have arrived between January and August 2014^[15] – almost all arriving by boat from North Africa.

The purpose of detaining asylum seekers, including children, in isolated and harmful conditions is to deter others from attempting to come to Australia by boat. If people coming here were only economic migrants, cruel policies might work. But when people are fleeing a genuine fear of persecution in their own country and are prepared to risk their lives to make the treacherous journey to Australia, then no policy, short of death, will be effective in deterring them. The current minister says that only one boat has arrived since the election 12 months ago but the boats being stopped and turned around, or the passengers being offloaded and put on alternative craft and sent back to Indonesia is occurring. We are not being informed of the numbers for ‘operational reasons’.

It is wrong to treat people who come here seeking asylum in such a cruel way, especially as we know that most will be genuine refugees within the definition of our Migration Act. According to the Immigration Department’s own statistics, almost 90 per cent who arrived by boat and were processed were found to be refugees in the period from 2000 to August 2014.^[16]

LEGAL CHALLENGES TO CHILDREN IN IMMIGRATION DETENTION

Australia has ratified a number of instruments relevant to children, including the Convention on the Rights of the Child, which came into effect in January 1991. The Convention says, ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’^[17] (author’s emphasis).

As Tania Penovic wrote in 2003, ‘Any suggestion that children’s best interest are served by indiscriminate, wholesale detention on the basis of their status as unlawful non-citizens can easily be refuted on the evidence available of the impact of detention on children. This detention also violates article 3(2)^[18] of (the Convention).^[19]

Challenges to date in Australian courts have been ineffective in preventing children being held in detention centres or off-shore. The legal actions that have been successful to date have resulted in children being removed from toxic detention environments after the harm to that child’s mental health has already occurred, and in claiming damages for harm done to children post release children after they have been injured, as in Shayan Badraie’s case.

One legal challenge which attempted to require the Commonwealth to take the best interests of the child into account over other considerations when determining where boat children should be kept involved five children being held at Woomera.

The Full Court of the Family Court in B v Minister for Immigration and Multicultural and Indigenous Affairs considered the obligations of Australia under the Convention on the Rights of the Child and the welfare provisions about children within the Family Law Act 1975 (Cth).^[20] The Full Court said its welfare jurisdiction allowed the Court to protect children who were children of marriages and were in immigration detention in harmful conditions. The Court held that even if the detention was lawful, the Family Court had jurisdiction to give directions about the nature and type of detention to ensure the best interests of the child were being met and to avoid harm to the child. The matter went back to the Family Court for trial. Strickland J refused to order the release of the children as sought by those acting for the children, claiming detention was not in their best interests. The Full Court (with a different bench) disagreed with Strickland J’s application of the welfare provisions of the Family Law Act.^[21] The Commonwealth appealed to the High Court, asking it to rule that the Family Court had no jurisdiction. The High Court agreed with the Commonwealth’s position.

The High Court held that the Family Court cannot deal with a matter, ‘unless the relevant legislation identifies ... some right that may be determined or privilege that may be granted by a court, or some duty or liability that is enforceable against a person by another person’.^[22]

This year, the former Chief Justice of the Family Court, Alistair Nicholson, who had presided in the first Full Court appeal said, ‘Normally one might feel chastened by a unanimous defeat in the High Court but I think that I can say that I have never been as proud of any decision that I have made as a judge as I am of that one. I still think that it was morally and legally correct, even though the High Court thought otherwise.’^[23]

INQUIRIES AND REPORTS

There have been many inquiries and reports into the effects of detention on children. The most damning criticism is the 2004 Human Rights and Equal Opportunity Commission (HREOC) report, A Last Resort? – Report of the National Inquiry into Children in Immigration Detention.

In its summary, the report states:

‘When children are detained in a closed environment, the options available to shelter them from [demonstrations riots, hunger strikes and violent acts of self-harm] ... are limited ... the Commonwealth [has] failed to take all appropriate measures to protect and promote the mental health and development of children in immigration detention .... [detained children] suffered from anxiety, distress, bed-wetting, suicidal ideation and self-destructive behaviour including attempted and actual self-harm .... Some children were also diagnosed with ... depression and post-traumatic stress disorder ... Living behind razor wire, locked gates and being under the constant supervision of detention officers... caused a great deal of stress... there was no routine assessment of the mental health of children on arrival, insufficient numbers of mental health staff ... and inadequate access to specialists trained in child psychiatry ... The only effective way to address the mental health problems ... is to remove the child from that environment.’^[24]

The HREOC referred to a report by Professor Jureidini, a child psychiatrist who had visited the Woomera and Baxter centres to research the toxicity of the detention environment on the mental health and development of children. His study found that all detainee children aged 6 to 17 had a PTSD, had trouble sleeping, had a sense of futility and hopelessness, suffered from overwhelming boredom and fulfilled the criteria for major depression with suicidal ideation. He reported that 70 per cent had symptoms of an anxiety disorder.^[25]

The HREOC found that:

• Australia’s mandatory detention of children was inconsistent with Australia’s obligations under the Convention on the Rights of the Child;

• children in immigration detention for long periods of time are at high risk of serious mental harm;

• the Commonwealth’s failure to implement the repeated recommendations of mental health professionals that certain children be removed from the detention environment with their parents amounted to cruel, inhumane and degrading treatment of those children in detention;

• children were exposed to physical and mental violence;

• children had been deprived of the right to enjoy the highest attainable standard of physical and mental health;

• people with disabilities had not been dealt with fairly;

• children were being denied the right to education; and

• the treatment of unaccompanied children was wanting.

The HREOC’s recommendations included the cessation of holding children in detention centres. Now, ten years later, the Australian Human Rights Commission (AHRC) is holding another inquiry into children in immigration detention,^[26] noting that the main recommendation in the 2004 report has not been implemented.

As part of the new inquiry by the AHRC, hearings were held on Christmas Island in July this year. President Gillian Triggs said, ‘I’d say almost all [of the detainees], including the adults, were coughing, were sick, were depressed, unable to communicate [and] weak.’ She observed that some asylum seekers were not leaving their cabins and were not eating.^[27]

She said that there were 315 children in the facilities on the Island and noted that in the 15 months to 31 March 2014 there had been 128 reported cases of self-harm among them.^[28] She noted that ‘a lot of the younger babies are not crawling or not doing things they should be doing at their age group simply because of the conditions’.^[29] Professor Triggs also said, ‘The overwhelming sense is of the enormous anxiety, depression, mental illness but particularly mental retardation.’^[30] She went on to say that the conditions were ‘inhumane’ and called on the government to remove all the children onto the mainland.

Even worse for children is the policy that all asylum seekers who arrive by boat after July 2013 are being sent off-shore to Nauru or Manus Island. As of April 2014, there were 190 children detained on Nauru.^[31] Manus Island, so far, has been reserved for single males.

Nauru’s detention centres have been criticised by the United Nations High Commissioner for Refugees (UNHCR). Its 2013 report described Nauru as ‘rat-infested, cramped and very hot’. The report said that ‘... the psycho-social wellbeing of vulnerable people – including unaccompanied children and survivors of torture and trauma – is an issue of concern’.^[32] The UNHCR noted that there was limited running water, poor sanitation, no schooling and no access to adequate mental and physical health facilities. A nurse working at Nauru in 2013 described it as ‘like a concentration camp’.^[33] UNHCR has called on the Australian government to stop sending children to Nauru.

An Amnesty International Report in 2012 described Nauru as ‘... a human rights catastrophe... a toxic mix of uncertainty, unlawful detention and inhumane conditions...’^[34] Amnesty reported that detainees live in tents on camp beds with barely any room between them, in temperatures of up to 40 degrees with 80 per cent humidity. Mosquitos are rife. In the rains, the paths turn into muddy streams.

In February 2014, the cost of visas for journalists who wanted to visit was increased from AUD $200 to $8,000.^[35] In April 2014, Nauru refused to allow Amnesty access.

There is no doubt that the Commonwealth knows that its policies harm detainees and children in particular. It has been told by the 2004 HREOC inquiry, by Amnesty, by the UNHCR and by psychiatrists in peer-reviewed articles in national and international journals.^[36] Courts have found the Commonwealth owes a duty of care to detainees and the Commonwealth has breached that duty.^[37] Since 1999, the Commonwealth has paid out over $22 million in compensation claims for people harmed by immigration detention.^[38]

There is no doubt that permanent damage to children will result from the Commonwealth’s cruel policies. The detention conditions on Nauru, the detaining of asylum seekers in toxic environments in Australia, and the policy of stopping boats and forcing asylum seekers back to Indonesia in orange lifeboats to await whatever fate might befall them, are seriously harmful to children. No Australian Government policy has been as cruel and as harsh to children since the removal of Aboriginal children from their families. We accept now that those policies were wrong. Equally, the policy of detaining children here and in Nauru, or worse, returning them to unsafe places, is cruel and immoral.

At some time in the future, a Prime Minister will read aloud an apology to former detained children. As we all felt when hearing the stories of removed children – how did people do that? – so, too, a future audience will ask how we let this happen. As we contemplate the sad children behind wire in Nauru, in Darwin, and on Christmas Island, we must ask how is this happening now, and in our name?

Claire O'Connor SC primarily practises in criminal law but has also been counsel in a number of significant human rights cases: the High Court constitutional case of Al-Kateb, the personal injuries case of S v Manager, Baxter, the Trevorrow Stolen Generations case, and for the deceased and survivors at the inquest into the sinking of the SIEV 221 off Christmas Island in 2010. She acted for Cornelia Rau following her release from immigration detention. She is the current chair of the SA Council for Civil Liberties.

---

^[1] The Telegraph (UK), ‘Pope Francis condemns “globalisation of indifference” as he comforts refugees on Italian island’, 8 July 2013.

^[2] Department of Immigration and Border Protection, ‘Immigration Detention and Community Statistics Summary’, 30 April 2014, <www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-apr2014.pdf>.

^[3] Ibid. 280 children were from Iran, 39 from Afghanistan, 47 from Iraq, 90 from Vietnam, 108 from Sri Lanka, 12 from Pakistan and 28 from Somalia. 71 were described as ‘other’ and 144 were stateless. The total number of female children in detention was 359 with 474 males.

^[4] See Australian Human Rights Commission, <www.humanrights.gov.au/publications/national-inquiry-children-immigration-detention-2014-discussion-paper>.

^[5] Chen Shi Hai was born in detention and he and his family were not released until he was five and a half. Penovic, Tania, ‘Immigration Detention of Children: Arbitrary Deprivation of Liberty’, Newcastle Law Review 11; (2003) 7(2).

^[6] See above n2.

^[7] ABC Four Corners, ‘The Inside Story’.<www.abc.net.au/4corners/archives/2001b_Monday13August2001.htm> (last accessed July 2014).

^[8] Professor Newman said, ‘He was in a very serious condition. He was withdrawn, mute, depressed, poorly interactive, quite regressed, acting in quite a young way and not eating or drinking adequately.’ ABC, 7.30, <www.abc.net.au/7.30/content/2002/s551139.htm> (last accessed July 2014).

^[9] ABC, 7.30, <www.abc.net.au/7.30/content/2002/s551139.htm> (last accessed July 2014).

^[10] <www.abc.net.au/4corners/stories/s350029.htm> (last accessed July 2014).

^[11] Aamer Sultan and Kevin O’Sullivan, ‘Psychological Disturbances in Asylum Seekers Held in Long-Term Detention: A Participant-Observer Account’ (2001) 175(11) Medical Journal of Australia 593.

^[12] <www.immi.gov.au/About/Pages/detention/about-immigration-detention.aspx> (last accessed May 22014).

^[13] http://data.unhcr.org/syrianrefugees/country.php?id=107 (last accessed August 2014).

^[14] http://data.unhcr.org/syrianrefugees/country.php?id=107 (last accessed August 2014).

^[15] http://abcnews.go.com/International/wireStory/24-bodies-recovered-italys-refugee-rescue-25124863 (last accessed August 2014).

^[16] http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/AsylumFacts (last accessed August 2014).

^[17] Article 3(1).

^[18] The article reads, ‘States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.’ Further articles in the Convention say that the detention of a child shall be used only as a measure of last resort and for the shortest appropriate period of time, and require children to be held separately from adults unless it is considered to be in the child’s best interests not to do so. (Articles 37(b) and (c)).

^[19] Penovic, Tania, ‘Immigration Detention of Children: Arbitrary Deprivation of Liberty’, Newcastle Law Review 56, (2003) 7(2), at 60-1.

^[20] B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451; (2003) 199 ALR 604.

^[21] Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; [2004] 219 CLR 365.

^[22] At [122]. See ‘B and B and the Minister for Immigration and Multicultural and Indigenous Affairs: Can International Treaties Release Children from Immigration Detention Centres?’ Melbourne Journal of International Law, (2004)5 (1), 256.

^[23] <www.yourdemocracy.net.au/drupal/node/28761> (last accessed July 2014).

^[24] HREOC, ‘A last resort? Report of the National Inquiry into Children in Immigration Detention’, <https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention>, Introduction (last accessed July 2014).

^[25] <https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention>, chapter 9 at 9.4.

^[26] <www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014>. On 3 February 2014, the President of the Commission launched an inquiry into children in closed immigration detention and to investigate what has changed since the 2004 report. The Inquiry issued a discussion paper (see <www.humanrights.gov.au/publications/national-inquiry-children-immigration-detention-2014-discussion-paper>). The Commission will report its findings later this year.

^[27] ‘Asylum seeker children describe Christmas Island as “hell”, Human Rights Commission says’, ABC News, 24 March 2014, <www.abc.net.au/news/2014-03-24/human-rights-commissioner-says-christmas-island-centre-shocking/5341524> (last accessed July 2014).

^[28] Ibid.

^[29] ‘Kids detained on Christmas Island sick and depressed: Gillian Triggs’, The Australian, 24 July 2014, <www.theaustralian.com.au/national-affairs/policy/kids-detained-on-christmas-island-sick-and-depressed-gillian-triggs> (last accessed July 2014).

^[30] Ibid.

^[31] <www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-apr2014.pdf>.

^[32] <www.unhcr.org/cgi-bin/texis/vtx/search?page=search&docid=52947ac86&query=nauru> (last accessed July 2014).

^[33] AAP, ‘Nurse Marianne Evers likens Nauru detention centre to concentration camp’, 5 February 2013, <news.com.au> (last accessed July 2014).

^[34] ‘Amnesty International Slams Nauru Facility’, <www.amnesty.org.au/refugees/comments/30726> (last accessed July 2014).

^[35] <www.amnesty.org.au/news/comments/34423/> (last accessed July 2014).

^[36] For a list of the extensive pre-2005 publications, see the references in the HREOC Inquiry, above n24.

^[37] See Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486; S v Secretary Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; (2005) 143 FCR 217; Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93; (2004) 207 ALR 83.

^[38] http://www.smh.com.au/national/government-in-fight-over-refugee-injury-claims-20140718-zu0se.html (last accessed August 2014).