MODERN-DAY TORTURE:
GOVERNMENT-SPONSORED NEGLECT
OF ASYLUM SEEKER CHILDREN UNDER THE AUSTRALIAN MANDATORY IMMIGRATION DETENTION
REGIME.[∗]
By: Barbara
Rogalla[#]
A six-year old child lies across his father’s shoulder [1] His eyes lack purposeful expression and his skin is pale. His number is LEE 67. Shayan Badraie’s parents brought him from Iran to Australia in their quest for refugee status. But they came by boat and they arrived without visas. The world may have never known about Shayan’s plight, were it not for a hidden camera inside the Villawood detention centre that secretly recorded the damage Shayan suffered as the result of his detention. When the television documentary went to air in August 2001, Shayan had been inside immigration detention for fifteen months. One day Shayan stopped talking. As time went by he also stopped eating and drinking. During a cycle of nine admissions for ‘rehydration and drip feeding’ to the Westmead Children’s Hospital in Sydney, the child recovered, but became ill again when he returned to detention. [2]
In October of 2001 Shayan was one of 663 children in immigration detention, including 73 unaccompanied minors.[3] Their detention is mandatory and is not the result of judicial process. A Commonwealth Ombudsman report in March 2001 reveals that:
Of the population still in detention at [2 Feburary 2001] seven children were born in detention and remained in detention, the oldest having been some 19 months in detention. ... I am aware of a child born in detention in July 1996 and still in detention in April 2000.[4]
Australian legislation stipulates that such detention is for
administrative purposes, to assess if individuals qualify as refugees under the
1951 Convention. The terms of imprisonment appear excessive for travelling to
Australia without valid documents, particularly as there is no upper limit on
the length of detention.
Some Australian politicians say that such
detention is necessary for Australia to safeguard her borders and exercise her
national sovereignty. The author argues that mandatory detention damages
children, and that the government’s refusal to prevent this, and to
enforce child protection laws, makes it culpable of torture of children.
The number of asylum seekers en route to Australia began to decline
during the 2000/2001 financial year. Such decline was due to an agreement
between Indonesia and the United Nations, whereby Australia intercepted the
boats at sea, and returned the asylum seekers to Indonesia.
[5] It was an outcome of this
agreement that resulted in the South Pacific’s involvement in
Australia’s detention of refugees. In August 2001, the Norwegian freighter
HMAS Tampa picked up 434 survivors from the sunken vessel Palapa in the Indian
Ocean. In a subsequent ‘shock decision by the
government’,[6] Australian Navy
commandos stormed the Tampa and prevented her from entering Australian waters.
This incident gave rise to the ‘Pacific Solution.’
Under the
‘Pacific Solution’ Australia’s navy intercepts asylum seekers
at sea, and forcibly moves them to detention centres on Nauru and Manus Island,
Papua New Guinea. In exchange for a ‘$20 million assistance
package,’ which not only included payment for providing the detention
services, but also measures to improve the living conditions for the local
population of the cash-strapped nation, Australia persuaded Nauru to accept and
process asylum seekers to ensure their refugee claims would not be heard in
Australia.[7] One month later, a deal
with Papua New Guinea resulted in a detention centre on Manus
Island.[8] In February 2002 there
were 1,159 detainees in the Nauru camp and 356 detainees on Manus
Island.[9]
The
‘Pacific Solution’ incorporates major legislative and policy changes
that contribute to further the pain and suffering of asylum seeker children.
Apart from the stress of surviving a hazardous voyage at sea, the forcible
removal to an unknown and unwanted destination by the military, can only add to
the trauma. The conditions in the Pacific Island camps also leave a lot to be
desired. The Head of the Federal Government’s advisory group on detention
informs the Senate that Nauru is ‘easily the worst’ of all detention
centers, where interruptions to fresh water supplies and electricity failures
contribute to physical hardship.[10]
Government policy places children into these conditions of pain and
suffering. Systematic government involvement in such practices could amount to
torture, as defined by the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment. Australia is a signatory to this
convention, but Australian domestic law ensures that prosecution for the crime
of torture may occur only in very limited circumstances.
OF PRIVATE PAIN AND PUBLIC SCRUTINY
Effects of detention on mental health
Life in detention centres is sad. Australia has put in place an
impersonal system. Harm does not result from the deliberate action of
individuals, but from a bureaucratic and mechanistic process. Dr Sultan, a
medical practitioner from Baghdad who himself was detained at the Villawood
centre for over two years, coined the term ‘detention syndrome.’
The detention syndrome is a clinical condition that arises directly as the
result of being a detainee inside an immigration detention centre.
The experience of detention leads to a day-to-day mounting of stress caused by the environment of the facility where several factors — residential, administrative, and judicial — converge to undermine an individual’s mental state .[11]
As described by Dr Sultan and Dr. O’Sullivan, the detention syndrome
evolves in four stages. Initially detainees enter into a ‘non symptomatic
stage’, where the dismay of detention is mitigated by hope that they will
soon have a successful claim. As hope disappears and the prospect of forcible
repatriation or indefinite detention becomes more apparent detainees enter into
increasingly more severe depressive stages. The most severe is the
‘tertiary depressive stage’, which is characterised by
‘hopelessness, passive acceptance and an overwhelming fear of being
targeted or punished by the managing authorities’.
[12]
Accordingly, the initial
euphoria of surviving the voyage to Australia (or at least near to Australia,
for detainees taken to Nauru or Manus Island) is replaced by passive numbness
and distrust. This attitudinal change is nurtured by the indefinite
incarceration, by the fear of being sent back to a country that persecuted and
possibly tortured them, and by harsh and traumatic conditions within detention.
Sultan and O’Sullivan also found that in this environment children
are particularly at risk of developing psychological disturbances, as parents
are unable to provide the expected parental
support.[13] In another clinical
study, twenty-one out of twenty-two detained children in Australia either
developed or increased their psychiatric problems. The researcher summarises the
findings as a ‘nightmare’ and ‘systemic child
abuse’.[14]
Evidence
of systematic psychological damage is also emerging from camps in the Pacific.
The head of psychiatric services at Nauru resigned in protest over a
‘mental health nightmare.’ His observations also confirm worsening
of psychiatric problems, as the direct result of ongoing
detention.[15]
Intentional neglect: A form of torture
Child neglect, even with resulting mental illness does not, by itself,
constitute torture. But systematic involvement of a government in this process
may amount to torture.
Within the framework of human rights, the agreed
definition of torture comes from the Convention against Torture:
... ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.[16]
This
definition sets torture apart from other cruel, inhuman or degrading treatment
and punishment, which are also addressed by the Convention against Torture. To
establish torture, four criteria must be met. There must be
1) severe
pain or suffering, ( physical or mental);
2) intentionally inflicted for the purpose of obtaining information/confession or to punish or intimidate “him” or a third person;
3) with consent or acquiescence of a public official or person acting in an official capacity;
4) which is not pain or suffering from lawful sanctions.
I will now go on to argue that the incarceration of children under the
policy of mandatory detention satisfies all four conditions.
1)
Severe pain or suffering, ( physical or mental)
The European Court of Human
Rights[17] establishes that inhuman
and degrading treatment becomes torture when suffering is intense. Such a
severity criterion intimately relates to the personal attributes of victims,
such as age, sex, state of health and resilience. Children, because of their age
and developmental needs, are especially vulnerable.
Various references
cited in this article describe the damage that detention inflicts on some
children. Children who have suffered or witnessed pain and suffering before they
arrive in detention, are likely to reach torture threshold very quickly within
the prison environment. It is therefore crucial that children from refugee
populations are not exposed to the harsh realities of mandatory detention.
Even an ‘innocent’ decision, such as room allocation, can
have a detrimental effect. A 15-year-old felt terrorised when he was housed with
men from the ethnic group which had persecuted him and his family in his
homeland.[18] Routine awakening by
guards during random night patrols, the use of flashlight beams and the
repeating of detainee names can lead to children developing fears about
sleeping. One child resisted being put to bed, only to wake later exhausted,
screaming with nightmares.[19]
Waking detainees and shining a torch in their faces during hourly watch rounds
possibly contributes to security. But systematic sleep deprivation is also a
widely recognised form of torture.
In Nauru, not even basic physical
needs are met. An Australian artist gained access to the camp by posing as a
tourist, and took photos and recordings with hidden camera and sound equipment.
‘She said detainees were physically and mentally ill from living in filthy
conditions caused by a permanent water shortage. Contagious stomach and skin
infections were rife and many detainees were very depressed’.
[20]
2) Intentionally
inflicted for the purpose of obtaining information/confession or to punish or
intimidate ‘him’ or a third person
If children are
knowingly placed into conditions of neglect, the damage that inevitably follows
is foreseeable. Criminal law stipulates that the knowledge that an act will lead
to an outcome equates to intention to create that outcome. Knowing the
predictable outcome of the policy of mandatory detention, and nevertheless
persisting with it, makes the Australian government culpable of torture of
children.
The government has made it clear that, apart from protecting
Australia’s borders, the policy of mandatory detention is also intended to
deter people smugglers from bringing asylum seekers to
Australia.[21] Children are
incarcerated for the purpose of influencing the actions of ‘third
persons,’ the people smugglers. Implementation of the Pacific Solution
also prevents people from claiming refugee entitlements in Australia, as
stipulated in international law, and can be considered a punishment.
3) Consent or acquiescence of a public official or person acting in an
official capacity
Torture comes about by the continued refusal of the
government to stop the neglect. Government involvement is systematic, because
immigration policy precludes any legal means of allowing child refugee
applicants without a visa to live in an environment that fosters normal growth
and development.
Detained children are not actively mistreated on specific orders from the
Australian government. There is no official torturer in the traditional sense,
who beats a screaming child. But where children are concerned, passive
withholding of developmental requirements causes as much damage as active
violence. Neglect by policy is just as cruel, unjust, and inhumane as if there
were a personal perpetrator. Therefore, the definition of torture needs to be
interpreted in a way that challenges mechanistic, systematic, and impersonal
neglect. Perfecting torture by a method that dispenses with the necessity of
personal interaction during the torture process must not be
rewarded.
Once the above argument is accepted, it is easy to establish
that there has been consent to torture by a public official. DIMIA, the
Department of Immigration and Multicultural and Indigenous Affairs, has
responsibility for Immigration Detention Centres, despite a contract with
Australasian Correctional Management that indemnifies the government from
damages incurred as the result of day-to-day operation of detention services.
Ultimately, the duty of care for safety and security of detained asylum seekers
rests with DIMIA and cannot be delegated to a private operator. This is a
position that DIMIA accepts. [22]
Personnel of Australasian Correctional Management, therefore, act in the
capacity of ‘public official’, as they are operating under the
non-delegable duty of DIMIA
4) Does not include pain or suffering from lawful sanctions
Mandatory detention has its legislative basis in the Migration Act
1958. The Convention against Torture assumes that some pain and suffering
always occurs, purely because a person is placed in detention. Such pain and
suffering is ‘inherent in or incidental to lawful sanctions,’ and
therefore does not amount to torture.
But systematic child neglect inside
the detention centres outweighs the pain and suffering expected from any form of
legal detention, and is therefore outside the spirit of the Convention against
Torture. Detention under Australian law does not give license to introduce
further pain and suffering. Immigration laws should not be extended to the point
where they disregard other basic laws, and accept child neglect under the guise
of lawfulness.
Torture as a social process
Whilst it
may be difficult to identify individual instances of torture occurring in
detention centres, if torture is conceptualised as a social process happening
over a period of time then its occurrence becomes much more clear. Shayan
Badraie’s experience of detention illustrates how the seemingly passive
role of the government equates to torture of a child. For three months, six-year
old Shayan’s cycle of treatment and relapse continued as he oscillated
between clinical indicators of health and illness. Then the media arrested the
cycle. But Shayan’s recovery came at a price. After the screening of the
television documentary in August 2001, the family was split up. Shayan was
re-admitted to hospital and then released into the care of a foster family in
Sydney. He was re-united with his mother when she was set free in January
2002,[23] but his father remained in
detention for another seven months. Eventually, the whole family was granted a
Temporary Protection Visa, after appealing to the Federal
Court.[24]
The clue to
Shayan’s torture is the interplay of medical treatment and detention
imperatives, where eating and drinking during hospital admission meant he was
well enough to return to detention. Inside the detention centre, the six-year
old would stop eating and would then be re-admitted to hospital. Government
policy of the mandatory detention of children ensured that Shayan would receive
treatment without ever getting well, because detention re-activated his
condition.
Shayan’s repeat hospitalisations render the institution
of medicine a tool of immigration politics. Health professionals in detention
centres always face a potential clash between ethical considerations and the
objective of detaining people.[25]
Treatment efficacy is compromised, because treatment interventions occur inside
an environment that causes ill health, or because affected individuals are
released from hospital into the conditions that caused the problem in the first
place. Treatment outcome therefore is sub-optimal, and this occurs as the
logical result of the policy of mandatory detention.
The structure of
wire fences, of daunting routine, and of medical treatment driven by detention
imperatives maintain a backdrop of unrest and unpredictability. Children are
aware that batons, riot shields, water canons or gas missiles can always be
directed at them, even if friendly medical personnel patch up injuries. An
environment where tension, suicide attempts, riots and hunger strikes are
routine means constant fear.
Children learn quickly that no adult inside the
detention centre has the power to stop this fear. The government initiative of
keeping children locked inside these conditions, instead of moving them to
safety, constitutes a breach of various provisions of the Convention against
Torture.
There are uniforms, ID badges and head counts. Food is eaten
when given out, usually after standing in a queue, followed by a scan for
concealed metal cutlery. Less visible, but just as orderly, is the dismantling
of family structure where traditional patterns of food preparation, eating and
parental role modelling are replaced by the life of the institution.
Refugee applicants at the Woomera detention centre used to be called by
a number, until this dehumanising practice was stopped when media publicity
alerted the public to these conditions. People in the concentration camps of
Nazi Germany were also called by a number. A submission to the Human Rights
Commissioner about current practices in Australia reports that
‘...children have begun to identify themselves by numbers instead of by
names and
families’.[26]
The
detention syndrome locates the causal factors that produce ill health ‘in
the environment of the
facility’.[27] The following
is how the mere physical layout impacts on parliamentary delegates:
As a general comment, some members were shocked by the harsh picture presented by the exterior of some of the centres: double gates, large spaces between high fences topped with barbed razor wire. The physical impact of the centres, and the psychological impact on the detainees, are among the lasting impressions of the visits.[28]
But physical conditions can be easily improved without changing the plight of the children. Planting flowers inside the cage would only provide a decorative canvas that makes the mechanistic neglect and resulting torture even more grotesque. At the modern Baxter facility in South Australia, the offensive razor wire fence is replaced with an electric fence. Detainees have access to courtyards within the compounds. But they are on 24-hour camera surveillance, and all ‘outside views are blocked.’ Many detainees would prefer to be back at the notorious Woomera facility. [29]
In detention centres of the Pacific Solution, isolation is even greater, due to the difficulty for refugee advocates and journalists to obtain visas and to travel to the islands. Until May 2003, lawyers were not allowed to visit their clients at the Manus Island detention centre. [30] Torture as a social process is an ongoing layering of indignities and ill treatment, leading to psychological damage. Isolation, and the resulting invisibility of detainees provides yet another layer of the social process.
THE RIGHTS OF THE CHILD
As a signatory nation to the Convention on
the Rights of the Child (the CRC), Australia gives a formal undertaking to
‘protect the child from all forms of physical or mental violence’
while in care [31] and thereby
guarantees a child’s physical integrity. The CRC article 39 calls for
‘physiological and social recovery’ to be initiated immediately
after neglect has occurred. Article 37 also protects children from violence and
neglect, and prohibits torture. Yet violence and neglect are ongoing and
continue throughout detention.
The spirit of the CRC is to protect the
best interests of children. While the CRC does not define ’best
interests’, one can readily see how separation from social life undermines
the child’s growth and development. Detention also takes away parental
discretionary powers and leaves the child in limbo between government policies
and the guards who implement the policy.
The Convention on the
Rights of the Child also guarantees
education.[32] But for education to
be effective, children need to be happy, secure and emotionally safe. These are
absolute prerequisites for the learning process. The opportunity and
encouragement to explore their own creativity and the freedom for imagination to
flourish are essential. Education in detention is not compulsory, and is below
the standard offered to Australian children. Some children attend state schools
in the community, under escort by detention guards. But for most, education is
effectively interrupted for the duration of detention. In a developed Western
country, withholding of formal education from young refugee applicants who are
detained for long periods is inexcusable. The resultant neglect also puts
Australia at odds with several UN
conventions.[33]
An
investigation by the Human Rights Commissioner into breaches of rights of
children in detention, due to be printed in August 2003, did not include
children on Nauru and Manus Island, because ‘the inquiry's jurisdiction
does not cover these
places’.[34] This exempts the
Australian government from scrutiny by the Human Rights Commissioner of
potential human rights violations under the Pacific Solution. But occasionally
conditions of detainees in even the most inaccessible centres are made public.
Four weeks after a riot at Nauru, a
journalist[35] secretly gained
access to the detention camp. Seven detained women have husbands who live in
Australia on refugee visas. A three-year-old boy, whose father lives on a
Temporary Protection Visa in Sydney, has no memory of his father.
One
father at the camp reported the following:
My big son lost his brain. Now crazy. My wife also crazy. My small daughter, she forget our language. She don't know how to speak. My son, another one, his hand broken about 10 month. No-one take him to hospital.[36]
A mother said:
My daughter was sick yesterday and she was vomiting, but all the APS (Australian Protective Services)[37] gave her was a syrup, and only a small amount.[38]
Australian
Federal Police began investigating Australasian Correctional Management (ACM) in
May 2003, for allegedly charging for education services it did not
provide.[39] Only five years
earlier, ACM enjoyed a good introduction to immigration detention services.
After privatisation of detention services, the Human Rights Commissioner began
an investigation.[40] The report
commended ACM for its good relationship with detainees. But things changed
quickly. In September 1999, the same year that the favourable report by the
Human Rights Commissioner was published, the Federal Ombudsman began an
investigation ‘...following complaints and a number of reported incidents
including escapes and allegations of assaults on
detainees.’[41] Eighteen
months later, the ombudsman presented his findings.
...there were a worrying number of reports of indecent assault and threats toward unattached women and children who represent the groups at highest risk. In my view, the accommodation and monitoring/care arrangements at IDCs (Immigration Detention Centres) did not come up to what I would regard as a minimum acceptable standard to ensure that those at greatest risk are not exposed to harm.[42]
Results of a Parliamentary
Inquiry[43] were released almost
concurrently with the Ombudsman report. Again, there was evidence of inhumane
treatment directed at women and children. Both reports question the mandatory
detention of children. The government insists that mandatory detention is in
Australia’s national interests. Logic dictates that the systematic
incarceration of children destroys, rather than enhances, Australia’s
interests.
These children arrive through no fault of their own. They arrive because adults bring them here. Yet they are held accountable for problems created by grown-ups. The indiscriminate detention of children, therefore, is a reflection of how this nation treats those who are innocent. A legal and political framework that scapegoats children and uses them as a deterrent to stop others from arriving, is offensive to Australians.[44]
While the children are in immigration detention, special considerations apply
in addition to the CRC. The UN Rules for the Protection of Juveniles Deprived of
their Liberty (Rules) identify guidelines for the detention of minors under the
Juvenile Justice system, including developmental needs such as leisure,
education, vocational training, and access to the library. These needs are not
provided in immigration detention.
An entire section of Rules sets
criteria for the selection of personnel. Professional training is not enough.
The Rules[45] also stipulate the
personal qualities of ‘integrity, humanity, ability and professional
capacity’. Australia falls short of delivering these standards. The Flood
Report recommended that the training of detention staff be upgraded, because
some staff lacked awareness of company policy and also needed ‘guidance to
deal with issues of racism, sexism and religious
intolerance.’[46]
Children have special rights and special protection in detention because
they are especially vulnerable to abuse and damage. The protections are designed
to minimise pain and suffering. By consistently denying these rights the
Australian authorities are inflicting pain and suffering, which in turn ties the
denial of rights to torture, as defined by convention (above).
POLITICS OF DECENCY
Mandatory immigration detention is a disturbing chapter in the history of
Australia. Complaints, inhumane conditions, human rights violations,
heavy-handed detention staff, and inadequate medical care are repeated
throughout several
investigations.[47] These problems
occur consistently over time, because they are systemic to the detention
process, and the logical outcome of government policy. A government official is
available at all times, because each detention centre has a DIMIA manager on
site. The presence of the DIMIA manager strengthens the link between events in
detention centres and the government’s policy of neglect.
It is of
concern how, from among seventeen applicants for the tender to administer
detention services, DIMIA chose a company experienced in the running of jails.
The working culture of Australasian Correctional Management (ACM) seems
inappropriate for facilities where children are detained for administrative
purposes. ACM’s American parent company, Wackenhut, originated from the
traditions of the Federal Bureau of Investigation and also from prison work.
Wackenhut now operates correctional facilities in seven countries. Had DIMIA
intended to provide processing services rather than prisons, it would have
employed social workers, teachers, and specialist counsellors with trauma and
torture experience.
Another cause for alarm is that ACM obtained the
contract without first producing a Child Protection Policy that effectively
deals with sexual abuse of minors. In February 2001 the Flood inquiry documented
that no such policy was
implemented.[48] This seems
indefensible, because the company has been the sole operator of immigration
detention facilities across Australia since
1998.[49]
Community
opposition to mandatory detention grows. After an asylum seeker jumped to his
death at the Maribyrnong detention centre in December 2000, sympathetic
activists occupied rooftops at the centre until police intervened. Protesters
demonstrate at detention centres in the cities and in remote areas. Interest
groups such as Amnesty International, refugee, charity, church and political
groups continually stage protests, rallies and vigils. The number of protesting
groups has increased dramatically since the beginning of 2001, as prominent
people in society use their influence to condemn the inhumanity of mandatory
detention.
People speak against the backdrop of hot political debate.
Words such as ‘illegal immigrants’ and ‘queue jumpers’
are now in colloquial use. The Immigration Minister conjures images of
‘illegals’ who ‘steal’ places from Australia’s
refugee and humanitarian program, and dismisses individuals who criticise his
policies as ‘malicious’ or ‘naïve’. A new
vocabulary also emerges at the other end of the political spectrum. Detention
centres are interchangeably called ‘refugee prisons,’
‘gulags’, ‘concentration camps’ or a ‘hell
hole’.
Official DIMIA correspondence during the ‘children
overboard affair’ refers to people on the stricken boat as SUNCs
(Suspected Unauthorised
Non-Citizens).[50] The diabolical
humour inherent in this neologism trivialises the danger of drowning, deflects
from the fact that there were real people on the boat, and dishonours our
national and human responsibilities toward individuals in
distress.
Aboriginal elder Ms Wadjularbinna Nulyarimma
calls white Australians ‘descendants of the First Fleet of illegal boat
people.’[51] Fears that the
current generation of boat people intend to steal the land from us, just as
their British predecessors who also came by boat two hundred years ago and
subsequently stole the land from the Aborigines, may reflect a collective
paranoia of the Australian psyche that explains anti-refugee
sentiment.
The public is aware of abuse and neglect behind razor wire
through media reports and findings from official investigations. But many
Australians do not welcome refugees. Popular antagonism toward detained asylum
seekers allows the government to operate outside of accepted accountability and
transparency practices.
In November 2000 a daily newspaper, The
Australian, reported that child abuse was
‘rampant’[52] at the
Woomera detention centre, that a child was raped and sold for cigarettes, and
that Australasian Correctional Management suppressed an investigation at the
time.[53] The response was unique. A
government official confirmed previous sexual abuse investigations, but
summarised these as instances of faulty ‘parenting
skills.’[54] The Immigration
Minister claimed the rape allegations ‘were being pushed by advocacy
groups opposed to the mandatory detention of asylum seekers with
children.’[55] But within
days, the Minister ‘was forced to admit that evidence may have been
suppressed’[56] and ordered a
Parliamentary Inquiry.[57]
During a two-week hunger strike of 250 people that spread from Woomera
to other detention centres, tensions escalated when eighteen people were treated
for dehydration on the seventh day of the hunger
strike.[58] The Immigration
Minister further inflamed matters by accusing parents of forcibly stitching the
lips of their children to prevent the children from eating, and threatened to
remove children from their
parents.[59] A Senior Advisor to
the Immigration Minister resigned amid the controversy because ‘every time
a humanitarian issue is raised in relation to the asylum seekers, their
deviousness and even criminal intent is
proclaimed.’[60]
In an
earlier incident, during the “children overboard affair,” Australian
Navy rescued survivors from a sinking boat at high sea. ‘The Federal
Government’ claimed that passengers threw their children overboard
‘in a premeditated attempt to force their way into the
country.’[61] Although it was
known at the time that these allegations were incorrect, the Prime Minister, the
Immigration Minster and the Defence Minister used the ‘children overboard
affair’ to warn the public that asylum seekers who arrive by boat lack
human qualities and are therefore unfit to live in Australia. Political
commentators speculated that this antirefugee stance was crucial to the
re-election of the Howard
government.[62]
Further
evidence of attempts to dehumanise asylum seekers came to light during a court
case, more than one year after the Tampa incident. ‘Authorities gave Tampa
asylum seekers a pot of jam and filmed them diving for it to portray them as
wild people during a hunger strike aboard HMAS
Manoora.’[63] An eyewitness
reports the footage was obtained after people had not eaten for ten
days.[64]
The prevalent
ideology demonises asylum seekers and is cultivated by the Australian
Government. This ideology serves to rationalise the denial of protection
guaranteed by Human Rights conventions and national legislation. Detention
centres which operate under the policy of mandatory detention conform to a
policy where child neglect is the logical outcome. But neglect becomes torture
when the government fails to engage laws that should prevent such neglect.
Despite mounting international
criticism,[65] Australian
government propaganda portrays asylum seekers as repugnant, as people whose
values are incompatible with perceived Anglo-Saxon tendencies to love and
protect children. Consistent with this ideology, nurtured by a language that
strips incarcerated asylum seekers of their humanity, is the myth that
Australians must protect themselves from people who flee persecution and arrive
by self-initiated travel arrangements. People fleeing terror are depicted as
terrorists. Our national response is incarceration of all such persons,
including their newborn.
Since the suicide missions of four hijacked
planes in America caused the world to convulse with change, the Australian
government has increasingly promoted another rationale for mandatory detention.
Arguments that Australia must protect its borders have become louder and point
to refugee boats as the preferred means for terrorists to enter the country. A
backlash against individuals with dark hair and olive skin is in progress at the
time of writing, although some such individuals were born in
Australia.
There is no domestic law that prohibits torture inside
Australia, as defined by the Convention against Torture. Section 6(1) of the
Crimes (Torture) Act 1988 only recognises torture if a government
official commits the crime outside of Australia. The same
‘disclaimer’ appears in the 2001 amendment of the Act. Individuals
may be charged under other relevant Australian legislation, for instance,
assault. But torture is a crime against humanity, and being charged with assault
or child neglect does not address the intent that is inherent in an allegation
of torture. Culpability for torture extends beyond the individual perpetrator
and holds governments accountable. It would seem that the Crimes (Torture)
Act 1988, by excluding Australia from its jurisdiction, paves the way to
impunity for Australian officials committing torture within their own territory.
However, the Act may apply to Australian officials acting in camps in Papua New
Guinea and Nauru.
More recent legislation, section 7(1) of the Border
Protection (Validation and Enforcement of Powers) Act 200 removes the right
to sue for criminal and civil offences committed against asylum seekers who
arrive without visas. Accordingly, the Commonwealth, its officers, or ‘any
other person who acted on behalf of the Commonwealth’ are exempt from
legal proceedings against them. The legislation applies ‘whether or not
the action was taken while the person was on board the
vessel’.[66] Future case law
needs to test if the Border Protection (Validation and Enforcement of Powers)
Act 2001 paves the way to impunity for breaches of criminal and civil law
not only on board of ships, but also within immigration detention centres in
Australia, Nauru, and Manus Island.
Indeterminate length of immigration
detention is not a legal necessity but a matter of government policy, with
virtually no scope for judicial intervention. This places the detention of
asylum seekers at odds with traditional notions of crime and punishment. Some
asylum seekers, including children, are detained for years. No crime has been
committed that warrants such lengthy imprisonment, or such inhumane treatment
and neglect. In contrast with other prisoners who are detained after a court
case, there is no hope for leniency or early release on parole. Australian
legislation is unable to protect asylum seeker children from the damage they
suffer as the result of their systematic incarceration.
CONCLUSION
The physical and mental wellbeing of
detained children is in jeopardy. The institutions of law and medicine have been
hijacked for the purpose of political gains, with the result that Australian
domestic law has removed protection and justice as a realistic outcome for child
refugee applicants.
Children in immigration detention are exposed to
breaches of several human rights instruments, such as the Convention against
Torture, the Convention on the Rights of the Child and the United Nations Rules
for the Protection of Juveniles deprived of their Liberty. Australian law, such
as the Crimes (Torture) Act 1988, the Migration Act 1958, the
Border Protection (Validation and Enforcement of Powers) Act 2001,
effectively do not stop the ongoing abuse and neglect of children behind razor
wire and electric fences. In practice, this means that investigations,
prevention and punishment of child abuse and neglect are not carried out with
the full force of child protection laws that apply elsewhere in Australia. This
makes the Australian government responsible for the torture of
children.
Against the backdrop of ongoing torture of children, the
insistence by the government that detention is humane becomes an intellectual
exercise that distorts semantic meaning in the war of words between the
Department of Immigration and Multicultural and Indigenous Affairs and refugee
supporters.
Isolation from mainstream society, the remote location of
most camps within Australia and in the Pacific Islands, prevention of access by
the media, the secrecy clauses that prevent public scrutiny of commercial
contracts between the Immigration Department and the prison firms who operate
these detention centres, all provide an ideal environment for torture to occur.
Whilst torture of detained children is in progress, many Australians perceive
asylum seekers as a threat. Public perception of such threat is generated by the
manipulation of language, as a racist ideology strips asylum seekers of their
humanity.
The institution of medicine, traditionally renowned for its
ethos to provide medical treatment regardless of social, political or legal
status of the patient, has been transformed into a tool of immigration politics.
Medicine is practiced within the framework of mandatory immigration detention, a
framework that undermines the wellbeing of detained children. For many, a prison
environment becomes their sole experience. This environment causes the detention
syndrome, a phenomenon that destroys the fabric of a person’s being.
Neglect, as the logical consequence of government policies, compromises
the mental, social, and developmental profiles of detained children. Future
research needs to explore if the detention syndrome constitutes a new diagnostic
entity. Future research also needs to explore the relationship between the
length of detention and the amount of damage inflicted, and potential causal
links between immigration detention and intergenerational
damage.
Australia’s response to unwanted and uninvited refugees is
to keep people out by military means, and to incarcerate those who make it alive
to our shores, including families with their newborn babies. Such response is
morally wrong as well as indefensible, because it causes untold damage,
especially to children, and compounds the pain and suffering already experienced
before their arrival. To prevent further damage from being inflicted in the name
of Australia, children should be released from detention, together with both
parents. Sadly, it seems that most Australians support the government’s
stance on refugees. At the time of writing, community opinions remain polarised
and a humane outcome for detained children is uncertain. It is therefore crucial
that the press, individuals and refugee advocacy groups remain vigilant and
demand that the government work in an accountable and morally responsible
manner.
[∗] This article is based on the unpublished article The systematic incarceration of children in immigration detention in Australia: A modern form of torture by Barbara Rogalla and Trish Highfield. The author wishes to thank Patrick T. Byrt, Human Rights Barrister, South Australia, for on-line pro bono assistance.
[#] Barbara Rogalla is currently a commonwealth scholar at RMIT University in Melbourne, Australia. She has worked as a Registered Nurse at the Woomera Immigration Detention Centre, and subsequently became a Human Rights Activist for refugees. She initiated media interest by alleging that Woomera management of Australasian Correctional Management suppressed an investigation into allegations of child sexual abuse at that centre. A parliamentary inquiry later confirmed a cover-up by the company.
[1] Whitmont, D., ‘The inside
story: Continuing turmoil in migrant detention centres is projecting an
Australia that is unsympathetic to the needs of people who fled their homeland
to seek shelter here.’ (Four Corners TV broadcast) 13.08.01 http://www.abc.net.au/4corners/stories/s344246.htm
[2]
Baillie, R. ‘Alliance speaks on behalf of detainees.’ (7.30
Report TV broadcast) 08.05.02.
[3] Zable, A. ‘Refugees or pawns?’ The Age (Melbourne) 12-10-01.
[4] Commonwealth Ombudsman
Report of an own motion investigation into the Department of Immigration and
Multicultural Affairs’ immigration detention centres (2001)
21.
http://www.comb.gov.au/publications_information/Special_Reports/IDCMarch1.pdf
[5] Mares, P ‘Moving the
barriers off-shore: cooperation with Indonesia reduces the number of 'boat
people' arriving in Australia’. Australian Broadcasting Corporation
6-8-01.
http://www.abc.net.au/ra/asiapac/features/AsiaPacFeatures_341432.htm
[6]
Dodson, L., Mann, S., Forbes, M. ‘PM's refugee showdown’
The Age, (Melbourne) 30-8-01. http://www.theage.com.au/news/national/2001/08/30/FFXQ5QKQYQC.html
[7]
Allard, T.; C. Skehan ‘Nauru's $20 m Australian pay-off for taking
refugees’ Sydney Morning Herald (Sydney), 11-9-03.
[8] Forbes, M. & Taylor, K ‘$1m offer for PNG to process refugees’ The Age (Melbourne) 12-10-01.
[9] BBC News, Q&A Pacific
Solution http://news.bbc.co.uk/1/hi/world/asia-pacific/1802364.stm
[10]
Taylor, K. ‘Detention on Nauru 'the worst.’’ The Age
(Melbourne) 2-5-02.
http://www.theage.com.au/articles/2002/05/01/1019441394477.html
[11] Silove, D., Steel, Z. &
Mollica, R. Detention of asylum seekers: Assault on health, human rights, and
social development. (2001) 357 The Lancet
1436–7.
[12]Sultan A.
&. O’Sullivan, K. Psychological disturbances in asylum seekers held in
long-term detention: A participant-observer account. (2001) 175 Medical
Journal of Australia 593–596. http://www.mja.com.au
[13]
Ibid.
[14] O’Neill, M
‘Children in detention suffer a 'living nightmare': study.’(
Lateline, TV broadcast) 12-5-03 http://www.abc.net.au/lateline/content/2003/s852962.htm
[15]
Mc Kenzie, N. ‘Nauru camps “psychiatrist’s nightmare:
doctor.’ ( 7.30 Report, TV broadcast) 15-5-03 http://www.abc.net.au/7.30/content/2003/s855996.htm
[16] Convention against torture and other cruel, inhuman or degrading treatment or punishment. Article 1. http://www.unhchr.ch/html/menu3/b/h_cat39.htm
[17] (1978) Case of Ireland v
United Kingdom (1978) 25 EHRR
66.
[18] Rogalla and
Highfield, above note 1.
[19]
Rogalla and Highfield, above note 1.
[20] Rule, A. ‘Spy tape
reveals Nauru despair.’ The Age (Melbourne) 22-6-02
http://www.theage.com.au/articles/2002/06/21/1023864500414.html
[21]
See the Australian Ministry of Immigration website section on border protection.
http://www.minister.immi.gov.au/borders/index.htm
[22] Commonwealth Ombudsman,
above n 4.
[23] Taylor, K.
‘Asylum Woman freed to care for ailing boy.’ The Age
(Melbourne) 18-1-02.
[24] Nott, H. ‘Temporary
visas for family.’ Herald Sun
2-8-02.
[25] Rogalla, B.
‘Nursing behind razor wire: A question of ethics’ (2001) 8(9)
Australian Nursing Journal
21.
[26] KIDS (Kids in
Detention Story), Submission to the Human Rights and Equal Opportunity
Commission National Inquiry into children in Immigration Detention. May
2002. http://members.ozemail.com.au/%7Eburnside/hreoc-submission.htm
[27] Silove, D., Steel, Z. &
Mollica, R., above note 11.
[28]
Joint Standing Committee on Foreign Affairs, Defence and Trade, Completed
inquiry: Visits to immigration detention centre. 1. http://www.aph.gov.au/house/committee/jfadt/IDCVisits/IDCindex.htm
[29] Di Girolamo, R.
‘Return us to Woomera: detainees.’ The Courier Mail
16-09-02.
[30] On Location Pacific
‘PNG: Lawyers get access to Manus Island Detention Centre’
Australian Broadcasting Corporation. 26-5-03.
http://www.goasiapacific.com/location/pacific/GoAsiaPacificLocationPacStorie_864908.htm
[31] Convention on the rights of
the child. Article 19. http://www.unicef.org/crc/fulltext.htm
[32] Article 28.
[33] Convention on the rights of the child. Article 28; United Nations Rules for the Protection of Juveniles deprived of their Liberty. Article 38; Universal Declaration of Human Rights. Article 26.
[34] Taylor, K. ‘Fewer
children held in detention centres’ The Age (Melbourne)
31-5-02.
http://www.theage.com.au/articles/2002/05/30/1022569814665.html
[35] Adcock, B. ‘Inside Nauru. Pacific despair’( Dateline TV broadcast) 29-1-03. http://www.sbs.com.au/dateline/#
[36] Ibid.
[37] APS is the government department that used to run immigration detention centres in Australia before the private company Australasian Correctional Management was appointed for that purpose in 1998. An investigation by the Human Rights Commissioner (Human Rights and Equal Opportunity Commission Immigration detention: Human Rights Commissioner’s 1998-1999 review (1999)) found that APS was ‘failing to meet human rights standards.’ The same investigation also found that APS officers used unreasonable force toward detainees, and that allegations that APS officers hit children were not investigated. APS is currently present at the Nauru camp.
[38]
Ibid.
[39] Kirk, A.
‘Australian Federal Police to investigate Woomera Detention Centre
practices’ The World Today, Radio Broadcast, Australian Broadcasting
Corporation 27-5-03.
http://www.abc.net.au/worldtoday/content/2003/s865722.htm
[40] Human Rights and Equal Opportunity Commission Immigration detention: Human Rights Commissioner’s 1998-1999 review (1999).
http://www.hreoc.gov.au/pdf/human_rights/asylum_seekers/idc_review.pdf
[41] Commonwealth Ombudsman, above note 4.
[42] Commonwealth Ombudsman, above note 4, pages 19-20.
[43] Flood, P. Report of
Inquiry into immigration detention procedures. (2001) http://www.minister.immi.gov.au/detention/flood.htm
[44]
Rogalla, B. ‘Australia’s little prisoners’ (2001) 28
Australian Children Rights News 1-4.
http://www.dci-au.org/acrn/ACRNMarch2001.pdf
[45]United Nations Rules
for the Protection of Juveniles deprived of their Liberty.
[46] Flood, P., above note
43.
[47] Human Rights and Equal
Opportunity Commission Those who’ve come across the seas. Detention of
unauthorized arrivals. (1998) http://www.hreoc.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf
; Flood, P., above note 43; Commonwealth Ombudsman, above note 4; Joint Standing
Committee on Foreign Affairs, Defence and Trade, above note
28.
[48] Flood, P, above note
43 at p 26.
[49] ACM has lost
since its contract with DIMIA. But the new company who is contracted by DIMIA,
Group 4 Falck, owns Wackenhut in the US. ACM is a subsidiary of Wackenhut.
[50] Willace, M. ‘Senator expresses regret over child overboard affair’ The World Today radio broadcast 28.02.02. http://www.abc.net.au/worldtoday/TWTChronoidx_Thursday28February2002.htm
[51] Jopson, D. ‘You are
the original illegal boat people: Rattled Ruddock gets the refugee
treatment’Sydney Morning Herald (Sydney) 17-8-01.
[52] Spencer, M. ‘Child
abuse alleged at Woomera’ The Australian 13-11-00.
[53] Spencer, M.
‘Woomera officer tells of boy raped and sold for cigarettes’ The
Australian 15-11-00.
[54]
Spencer, M., above note 52.
[55] Spencer, M. ‘Woomera detainees not segregated’ The Australian 18-11-00.
[56] O’Neill, M. ‘Abuse Inquiry’ (Lateline TV broadcast) 22-11-00.
[57] Spencer, M. ‘Rape
inquiry ordered’ The Australian
23-11-00.
[58] Taylor, K.
‘Eighteen treated as Woomera protest worsens’ The Age
(Melbourne) 23-1-02.
[59] Taylor, K. & Debelle, P.
‘Ruddock threat over child hunger strikers’ The Age
(Melbourne) 22-1-02.
[60] Davies,
J-A., Clennel, A. & Tomas, J-C. ‘Ruddock advisor quits in
disgust’ Sydney Morning Herald (Sydney) 23-1-02.
[61] Douez, S. & Forbes, M.
‘Boat people ‘threw children overboard’’ The Age
(Melbourne) 8-10-01.
[62] Manne,
R. ‘How a single-issue party held on to power. Howard’s Houdini Act
may usher in a genuinely new chapter in politics’ Sydney Morning
Herald (Sydney) 12-11-01; Marks, K. ‘Howard surfs home on a wave of
xenophobia’ The Independent (UK), 11-11-01.
[63] Kappelle, L. ‘Starving
boatpeople given jam’ The Courier Mail
19-09-02.
[64]
Ibid.
[65] Paddock, R. C.
‘The ‘Crime’ of being a young refugee. Australia: Hundreds
face years in lockup. Doctors warn of harmful effects’ Los Angeles
Times (US) 5-1-02.
[66]
Section 5(d).