The Report by the Australian Human Rights Commission of the National Inquiry into Children in Immigration Detention was tabled in Parliament in February 2014. Since the Inquiry began in January 2013, hundreds of children have been moved out of detention into the community. However, currently, 133 children continue to be detained on mainland Australia and 107 children are held on Nauru. The average length of time children spend in detention in Australia is 1 year and two months. Some have been held for years.
In March this year, the United Nations Special Rapporteur on Torture, Juan Mendez, found that Australia’s policy of indefinite and mandatory detention violates the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Prime Minister rejected the Report saying he was ‘sick of being lectured to by the UN’. In response, Mr Mendez pointed out that ‘we in the UN also deserve respect and I wish the PM had taken our views on this more seriously’.
The exchange follows similar expressions of concern from within the UN Human Rights regime over the last few months about Australia’s refugee detention policy from the Human Rights Council, the High Commissioner for Human Rights, the Committee against Torture and the Working Group on Arbitrary Detention.
The United Nations Committee on the Rights of the Child has expressed deep concern about Australia’s policy of mandatory detention and has repeatedly urged Australia to ‘reconsider its policy of detaining children who are asylum-seeking, refugees and/or irregular migrants; and, ensure that if immigration detention is imposed, it is subject to time limits and judicial review’.
The United Nations High Commissioner for Refugees has also called for Australia to end offshore processing. After visiting the detention centre on Nauru, the High Commissioner stated that ‘no child, whether an unaccompanied child or within a family group, should be transferred from Australia to Nauru’.
During my recent meetings in Geneva with the 110 national human rights institutions around the world, I was struck by the virtually unanimous bewilderment of experienced UN human rights diplomats that Australia should reject fundamental human rights along with the international monitoring processes designed to give them effect. Genuine concern was expressed that Australia was turning its back on its traditional leadership in international human rights protection. This was especially so as Australia has, since Dr Evatt took part in negotiating the Universal Declaration on Human Rights in 1948, been an active proponent of international human rights, including the creation of the International Criminal Court.
How has it come to this?
There is no simple explanation. Australia played a valuable role in the Security Council over the last two years, particularly as President during the crisis in the Ukraine. Australia is currently seeking a seat on the Human Rights Council and continues to sponsor an important General Assembly Resolution supporting the work of national human rights institutions.
One explanation lies in the Government’s concern that the Inquiry conducted by the AHRC into the impact on children of long term and indefinite immigration detention might challenge its border security policies. Any such concern is curious as the Ministers of Immigration of both the former and current Governments have denied that detaining children has any deterrent effect on people smuggling. In short, detaining children does not stop the boats.
Both the Labor and Coalition Governments have adopted the practice of detaining asylum seeker children since the legislation mandating detention was passed by Parliament in 1992. The Report is even handed in condemning this long-standing policy of immigration detention on the ground that it violates Australia’s international obligations.
We have been at a loss to understand why Australia should detain children in locked environments for so long. No other country in the world mandates the indefinite detention of children as the first policy option and then denies them access to the courts to challenge the necessity of their detention over many months and sometimes years.
The immigration practices of comparable nations are in stark contrast to those of Australia. For example, in 2010 the United Kingdom Government of Prime Minister David Cameron committed to ending the detention of asylum-seeking children.
Children who arrive without visas in the UK are immediately screened and released into the community while their asylum status is determined.
If immigration detention happens at all in the UK, it is usually only at the point of exit from the county after an unsuccessful asylum or visa application and only for a maximum of 72 hours for children. In very rare cases, this can be extended to a maximum of 7 days, but only with ministerial approval.
Why did the AHRC launch the Inquiry?
2013 saw a peak in the number of asylum seekers globally – largely as a result of the unrest of the Arab Spring. In Australia, asylum seeker numbers rose to a record high in July 2013. There were 1992 children in detention in that month. The peak in the numbers of children in detention coincided with a steady increase in the length of time that asylum seekers, including children, were spending in detention.
By the time of the Federal election in September 2013, the then Government had moved about 900 children into the community. However, in the months following the election, the numbers of children in detention remained relatively constant at approximately 1,100 children and the periods for which they were being held were increasing.
These alarming developments confirmed that it was time for the Commission to conduct a comprehensive Inquiry into the impacts on children’s health and development while they remained in prolonged, indefinite detention. As the law is well settled that such detention breaches Australia’s international obligations, the focus of the Inquiry lay on the mental and physical health impacts of detention rather than on the legal principles.
What was the methodology adopted by the Inquiry?
It was vital to the credibility of the Inquiry that its findings should withstand critical and objective assessment. The Report reflects the views and experiences of 638 children; the largest cohort of children ever surveyed about prolonged immigration detention. The Report provided unprecedented first-hand evidence of the impact that prolonged immigration detention has on the mental and physical health of children. It also identified the impact of detention on the key developmental stages of children as infants, pre-schoolers, primary aged children and teenagers.
The Inquiry team visited 11 detention centres, with repeat visits to Christmas Island after reports of attempted suicide and self-harm. The Inquiry also received 239 submissions from the public and stakeholders, took evidence from 41 witnesses at 5 public hearings, and relied significantly on data provided by the Department of Immigration and Border Protection. Perhaps the single most important aspect of the Inquiry methodology was the inclusion of internationally recognised medical experts, child psychiatrists and paediatricians in each detention centre visit. Their expertise confirmed the scholarly literature and added significant credibility to the findings of the health impacts of long-term detention.
For all these reasons, we believe the data and findings by the Inquiry are nationally and internationally significant.
Inquiry findings and recommendations
The Inquiry confirmed many disturbing facts:
- Detention creates and compounds mental health disorders amongst children according to all medical evidence.
- According to the clinical assessments made by the detention health provider, 34 percent of children have a mental health disorder of such severity that they require psychiatric support. Less than 2 percent of children in the Australian community have mental health disorders of this severity.
- Children are self-harming in detention at very high rates.
- Children have been exposed to unacceptable levels of violence in detention.
- Children have been locked up for close to 16 months without any known date for release.
- Children live in very cramped conditions – on Christmas Island many shared a tiny room of 2.5 x 3 metres with up to 4 people.
- Children live in locked environments with adults who are mentally unwell.
- More than 30 percent of adults in detention have moderate to severe mental health disorders.
The Report confirms that the detention environment is dangerous. Consider the following statistics of violence in the detention environment over a 15 month period:
- 57 serious assaults
- 233 assaults involving children
- 207 incidents of actual self-harm (128 involving children)
- 436 incidents of threatened self-harm
- 33 incidents of reported sexual assault (the majority involving children); and
- 183 incidents of voluntary starvation/hunger strikes (with a further 27 involving children).
These statistics do not give a complete picture. Rather, it was each individual story that most moved the Inquiry team. We met a distressed seven year old girl on Christmas Island who had been banging her head and having regular nightmares during which time she would wet the bed. Her parents said she had stopped making sense to them when she spoke. The family had been requesting help from the medical health provider (IHMS), but were told to wait. After many months, the child was referred to a psychologist and is receiving ongoing support.
Bed wetting problems are common amongst children in detention of all ages. Many children spoke of their fear of the night headcounts. At approximately 11pm and 5am every night, a guard shines a torch into the rooms of sleeping families and asks for the identification of people in the room. Many children described these head counts as the ‘visit of the ghosts’.
While we were not able to visit Nauru the evidence we received about the conditions of detention was truly shocking. The Inquiry found that children on Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress.
Children are being detained in vinyl tents which house 12 to 15 families. Individual family areas are separated by vinyl partitions. There is no privacy.
Inside these tents temperatures regularly reach 45-50 degrees and there is no air-conditioning.
Evidence to the inquiry identified serious water shortages with showers being restricted at times to 30 seconds each day.
Problems of cleanliness and hygiene appeared to be especially serious as they relate to toilets and showers. The Inquiry was told by a doctor who had worked on Nauru that the state of the toilets and the lack of water contributed to dehydration:
And the dehydration was often related to both the fact they didn’t have access to water during the day on demand and the other reason was that a lot of them, particularly women and children, didn’t want to drink water during the day because they didn’t want to use the shared toileting facilities.
The Inquiry received evidence from staff working in Nauru of incidents of harassment, bullying and abuse.
The recent report into allegations relating to conditions in Nauru by Philip Moss confirmed the Commission’s concerns about the welfare and protection of children. The Moss Review found that in relation to children there were both reported and unreported allegations of sexual and other physical assault. The Moss Review reported that between October 2013 and October 2014, 17 minors engaged in self-harm (including one attempted hanging). The youngest child involved in self-harm was an 11 year old.
Despite the findings of the Moss Review and my Inquiry it is unconscionable that 107 children remain in detention on Nauru and 133 children are held in Australia.
This situation is untenable. For this reason I have called for the Government to act. Some of the key recommendations of this report are:
- That all children and their families in detention in Australia and Nauru be released as soon as possible
- That legislation be enacted so that in future, children may only be detained for as long as is necessary for health, identity and security checks
- That no child be sent offshore for processing unless it is clear that their human rights will be respected
- That a royal commission be set up to examine the continued use of mandatory detention since 1992
My hope is that the Inquiry findings and recommendations provide an opportunity for governments to pledge bipartisan support for legislation that will stop the detention of children in this country.
The Commission’s Report should serve as a record and a reminder of the damage that detention does to children so that never again are asylum seeker children detained for prolonged periods by Australia.
Professor Gillian Triggs is President of the Australian Human Rights Commission. Professor Triggs will be delivering the keynote address at the HRLC's upcoming 10th Annual Human Rights Dinner.
This article was written for the special Children’s Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons, the Human Rights Law Centre and UNICEF Australia.