Birchall, Ebony; Nigro, Laura; Zerno, William --- "Child sexual abuse in Australia s immigration detention" [2019] PrecedentAULA 72; (2019) 155 Precedent 34

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CHILD SEXUAL ABUSE IN AUSTRALIA’S IMMIGRATION DETENTION

By Ebony Birchall, Laura Nigro and William Zerno

The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) identified that immigration detention settings in Australia (both held and community detention), and the offshore processing regime, carry an increased risk of child sexual abuse.^[1] This article uses the term ‘detention’ to refer to these settings.

The Royal Commission investigated numerous institutional settings and reported that among these settings, it had the least information about the detention environment.^[2] The Royal Commission attributed this dearth of information to the fear of victims and a lack of reporting, which it identified as a serious concern.^[3]

This article summarises the legal frameworks surrounding children in detention and the Royal Commission’s reporting on child sexual abuse in detention. It outlines recommendations for increasing protections for children in detention and considers principles of compensation relating to child sexual abuse in detention.

CHILDREN IN DETENTION

The treatment and protection of children from refugee backgrounds has long been the subject of public scrutiny in Australia. Article 37(b) of the Convention on the Rights of the Child states that ‘the arrest, detention or imprisonment of a child ... shall be used only as a measure of last resort and for the shortest appropriate period of time’.^[4] A variation of this principle has been codified in Australian law.^[5] Despite this, children are detained as Australian law compels the detention of all people, including children, who arrive in Australia without a valid visa.^[6]

The Royal Commission identified that most children in detention have already experienced significant trauma in their country of origin, or have been exposed to sexual and physical abuse during their time seeking asylum.^[7] It also found that immigration detention settings then increase the likelihood of child abuse, by failing to provide adequate therapeutic support for children and by making it more likely that children will experience social isolation.^[8] The Royal Commission highlighted that the detection of this risk is made more difficult by language and cultural differences, which act as barriers to children reporting abuse and receiving appropriate support.^[9]

Children who arrive in Australia without a parent or guardian are particularly vulnerable to physical and sexual abuse in detention, as they do not have the usual social supports or advocates for their welfare. Currently, when a child arrives in Australia unaccompanied and as a non-citizen, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs is appointed as their guardian.^[10] This poses a potential conflict as the guardian responsible for an unaccompanied child also holds additional roles or legal obligations which may be counter to the best interests of the child. Sarah Dale, Principal Solicitor from Refugee Advice and Casework Service (RACS), has called for the appointment of an independent guardian for unaccompanied children.^[11]

Children who are accompanied by their refugee parents also face risks of harm and abuse during the process of seeking asylum in Australia. In many circumstances, such as in the cases of FKAG v Australia^[12] and MMM v Australia,^[13] Australia has granted a child refugee status and a protection visa but has not provided the same protection to their parent(s), which means the parent(s) must remain in detention. In these circumstances, the parent(s) are forced to make a difficult decision between having the child settled in the community without them, or keeping the family together, which results in the child remaining in detention.

It is well established that prolonged detention causes an increased risk of mental harm to both adults and children. A Senate Select Committee was established in 2015 to inquire into the conditions and circumstances at the Regional Processing Centre in Nauru. Its final report, Taking responsibility: Conditions and circumstances at Australia’s Regional Processing Centre in Nauru, highlighted the detrimental effect of prolonged detention, and reported observations of development regression and deteriorating mental health among children from refugee backgrounds on Nauru.^[14] The case of AYX18 v Minister for Home Affairs^[15] is one of many that discusses the effects of prolonged detention on children. The case involved a ten-year-old boy who was held in Nauru with his mother. The boy suffered from severe depression, which was exacerbated by his time in detention, and he had attempted suicide on three occasions. The boy’s mother successfully sought court orders for the boy to be transferred to Australia, so that he could be assessed by a specialist child psychiatrist.

There is a long history of political controversy around children in detention. Public sentiment generally opposes the detention of children. For example, more than 80 per cent of Australian paediatricians consider that detention of children constitutes child abuse and oppose offshore processing.^[16] Politicians announced in 2016 that they had released all children from detention, a claim strongly disputed by the refugee sector which pointed out that, at the time, children were still living within the offshore processing regime in Nauru. Additionally, some children within the onshore detention system were considered by politicians to be ‘released’ from detention only because the facility in which they were held had been reclassified.^[17]

At the time of the Royal Commission’s inquiry, children who arrived in Australia via boat, without a valid visa, were taken to Nauru under the offshore processing regime. In 2018, the #KidsOffNauru campaign lobbied the federal government to remove children from refugee backgrounds from Nauru, declaring that the detention environment did not support the wellbeing of children and increased children’s exposure to abuse and other traumatic events. The campaign was partly a response to reporting that at least 30 children on Nauru were suffering from Traumatic Withdrawal Syndrome. This is a life-threatening condition, caused by exposure to traumatic environments and resulting in dramatic social withdrawal, including an inability to talk, eat or self-care.^[18] Over 170,000 Australians signed the petition and backed the campaign, and all children were removed from Nauru as of February 2019. Although children have been removed from Nauru, there are still many residing in community detention onshore in Australia.

THE RISK OF CHILD SEXUAL ABUSE IN DETENTION

It is difficult to ascertain the level of risk of child sexual abuse occurring in immigration detention due to the lack of reliable data.^[19]

This lack of reliable data is largely due to significant barriers around disclosing and identifying child sexual abuse in detention.^[20] These barriers, cited in the Royal Commission report, include:^[21]

• shame and fear of ostracism by the victim;

• fear of further abuse and retribution in immigration detention;

• fear of a negative impact on the victim’s immigration status or placement;

• distrust of police and government authorities; and

• communication barriers.

Despite the incomplete data on the risks of child abuse in immigration detention, there have been a number of reports that reveal a worrying prevalence of child sexual abuse in Australia’s immigration detention centres. These reports, detailed below, indicate a disturbingly consistent pattern of child sexual abuse over many years.

As part of the Royal Commission a Child Protection Panel (CPP) review was established to review instances of child sexual abuse in detention. From a sample 214 incidents of child abuse, neglect and exploitation reported between 1 January 2008 and 30 June 2015, it found that 27.6 per cent of incidences involved child sexual abuse.^[22]

In 2015, the Senate Select Committee received evidence of reports of child sexual abuse at the Nauru Regional Processing Centre as part of an inquiry into conditions at the Centre.^[23] Broadspectrum, one of two major contracted security service providers at the Centre, gave evidence to the Senate Committee that it had received 45 reports of alleged child abuse and sexual assault between 2012 and 2015.^[24]

The Forgotten Children: National Inquiry into Children in Immigration Detention 2014 report by the Australian Human Rights Commission identified 33 cases of reported sexual abuse between January 2013 and March 2014 in onshore and offshore held immigration detention, the majority of which involved children.^[25]

The review by former integrity commissioner, Philip Moss (commissioned in 2014), investigating allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru was released on 20 March 2015 (the Moss Review). The Moss Review identified several reports of child sexual abuse, sexual harassment of children and sexualised behaviour among children at the Nauru Regional Processing Centre between September 2013 and October 2014. It also concluded that there was under-reporting of sexual and other physical assault.^[26]

In 2001, a report by Philip Flood examined child abuse in immigration detention between 1 December 1999 and 30 November 2000. Nine of the 35 cases of child abuse that it examined involved allegations of child sexual abuse by other detained people.^[27]

The rates of incidence found in these investigations, and their consistency over a long period of time, raise very serious questions about the protections afforded to children in immigration detention given the risks of sexual and other abuse.

The fact that these levels of reported abuse have occurred over a protracted period of time, within an environment that is subject to near-complete control by government staff and subcontractors, underscores the gravity of the risk and urgent need to reform detention policy, or at the very least implement the recommendations made by the Royal Commission.

ROYAL COMMISSION’S RECOMMENDATIONS

In its final report, the Royal Commission made several recommendations relating to child sexual abuse in detention, including:

• establishing a mechanism to regularly audit the Child Safe Standards in detention;

• ensuring the funding of appropriate therapeutic and other specialist support services to meet the needs of victims in detention and ensuring that those people are linked to ongoing treatment when they leave detention;

• designating appropriately qualified child safety officers to every place in which a child is detained;

• implementing an independent visitors’ program in immigration detention;

• extending risk assessment mechanisms to ensure that they address the safety of children in held and community detention who are known to be at high risk (particularly those under the age of six years or involved in multiple incidents);

• improving institutional responses to ‘persons of interest’, particularly those who repeatedly come to notice;

• introducing a risk assessment process around the movement of children and their families, to identify the needs of children and families in detention and to respond to and mitigate risks;

• ensuring that children are not placed in detention with non-familial men, adults experiencing serious mental health concerns, or other children who have exhibited harmful sexual behaviours; and

• improving building and design features of detention facilities, including removing any building design that impedes supervision of interactions among people in detention, and increased use of CCTV.^[28]

The Royal Commission has exposed detention as an institution which presents a specific risk of child sexual abuse. As the government is responsible for maintaining the use of detention it must implement the Royal Commission’s recommendations immediately.

COMPENSATION FOR CHILD SEXUAL ABUSE IN DETENTION

It is well established that the Australian government owes a duty of care to the people within the onshore detention network. There are strong reasons to believe that the Australian government owes a similar duty to people within the offshore processing regime, although a clear judicial statement on this point is yet to be made.^[29]

Harm suffered in onshore detention, arising because of failings in the government’s duty of care, will fall under the negligence laws of the relevant state or territory of Australia.^[30] Harm suffered offshore is more complex, as the harm arose outside of Australian territory. The laws that apply in those claims may be those of the nation where the harm occurred.^[31]

Outside of ordinary claims in common law negligence, the National Redress Scheme, established from recommendations made by the Royal Commission, provides survivors of child sexual abuse in Australia with an avenue for compensation. However, eligibility for entitlements under the Redress Scheme is restricted to people who are Australian citizens or permanent residents at the time the person applies for redress.^[32] Given the government’s current position that ‘people who arrive by boat will never be settled in Australia’,^[33] the vast majority of victims of child sexual abuse in detention are likely to be excluded from the Redress Scheme.

CONCLUSION

International law and community values overwhelmingly support the contention that children should not be subjected to detention. When children are detained, the risk of mental harm increases dramatically. The Royal Commission’s Final Report has made clear that in addition to the increased risk of mental harm, detention also increases the risk of child sexual abuse. Even with limited data available, it is clear that rates of reported abuse in detention have been unacceptably high for a long time. The risk of child sexual abuse in detention affects an already vulnerable group and unaccompanied children are exposed to an even greater degree of vulnerability.

Given the known risks and vulnerabilities of the children involved, the government should eliminate the detention of children entirely, or at least mitigate the risks of child sexual abuse by implementing the Royal Commission’s recommendations and introducing an independent guardian for unaccompanied children. While the use of detention for children is currently lower than it has been over the past 10 years, the risks of detention need to be continually researched and reported on to ensure that children remain out of detention into the future.

Ebony Birchall is a Senior Associate, William Zerno is an Associate, and Laura Nigro is a Lawyer in Slater and Gordon’s class actions team. They specialise in public interest class actions. PHONE [phone] EMAIL [e-mail].

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^[1] P Parkinson and J Cashmore, ‘Assessing the different dimensions and degrees of risk of child sexual abuse in institutions’, report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney, 2017, 25 and 27.

^[2] Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) (Royal Commission Final Report), Vol. 15, 163.

^[3] Ibid, Vol. 15, 205–9.

^[4] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Art 37(b).

^[5] Migration Act 1958 (Cth), s4AA(1).

^[6] Ibid, s189.

^[7] Royal Commission Final Report, above note 2, Vol. 15, 200–5.

^[8] Ibid, Vol. 15, 198.

^[9] Ibid, Vol. 15, 200.

^[10] Immigration (Guardianship of Children) Act 1946 (Cth), s6.

^[11] Refugee Advice & Casework Service, Unaccompanied asylum seeker children in Australia urgently need an independent guardian to advocate for their well-being (Media Release, 26 July 2019) <https://www.racs.org.au/unaccompanied-asylum-seeker-children-in-australia-urgently-need-an-independent-guardian-to-advocate-for-their-well-being/>.

^[12] Human Rights Committee, Views: Communication No. 2094/2011, 108^th sess, UN Doc CCPR/C/108/D/2094/2011 (26 July 2013) (FKAG v Australia).

^[13] Human Rights Committee, Views: Communication No 2136/2012, 108^th sess, UN Doc CCPR/C/108/D/2136/2012 (25 July 2013) (MMM v Australia).

^[14] Senate Select Committee on the recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Taking responsibility: Conditions and circumstances at Australia’s Regional Processing Centre in Nauru, Commonwealth of Australia, Canberra, 2015 (Senate Select Committee Report), 154.

^[15] [2018] FCA 283 (6 March 2018).

^[16] EJM Corbett, H Gunasekera, A Maycock and D Isaacs, ‘Australia's treatment of refugee and asylum seeker children: The views of Australian paediatricians’, Med J Aust, Vol. 201, No. 7, 393–398.

^[17] Amnesty International, Fact Check: Are all Children out of Detention? (14 May 2016) < https://www.amnesty.org.au/fact-check-are-children-out-of-detention/>.

^[18] Asylum Seeker Resource Centre, Child Trauma on Nauru – the Facts (28 August 2018) < https://www.asrc.org.au/2018/08/28/child-trauma-on-nauru-the-facts/>.

^[19] Royal Commission Final Report, above note 2, Vol. 15, 12.

^[20] Ibid, Vol. 15, 205.

^[21] Ibid, Vol. 15, 205–209

^[22] Ibid, Vol. 15, 12.

^[23] Senate Select Committee Report, above note 14, 107–10.

^[24] Ibid, 120–1.

^[25] Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in

Immigration Detention 2014 (2014).

^[26] P Moss, Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, released to the public on 20 March 2015 (the Moss Review).

^[27] P Flood, Report of inquiry into detention procedures, Commonwealth of Australia, Canberra, 2001, 23.

^[28] Royal Commission Final Report, above note 2, Vol. 15, 218–44.

^[29] For a discussion of whether a duty of care is owed concerning an applicant under the offshore processing regime, see Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 [200]ff.

^[30] Civil Liability Act 2002 (NSW); Wrongs Act 1958 (Vic); Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (WA); Civil Liability Act 2002 (Tas); Civil Law (Wrongs) Act 2002 (ACT); Personal Injuries (Liabilities and Damages) Act 2003 (NT).

^[31] See, for example, the Manus Island Class Action which applied PNG negligence laws: Kamasaee v Commonwealth of Australia & Ors, S CI 2014 6770.

^[32] National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), s13(1)(e).

^[33] E Karlsen and J Phillips, Developments in Australian Refugee Law and Policy (2012–August 2013) (Research Paper, 25 September 2014) 14, <https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/3412593/upload_binary/3412593.pdf;fileType=application%2Fpdf#search=%22library/prspub/3412593%22>.