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"Long-term detention and mental health", ANZAPPL Annual Congress, Fremantle, Western Australia.

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“Long-term detention and mental health”

Speech given by Dr Sev Ozdowski OAM, Human Rights Commissioner

ANZAPPL Annual Congress, Fremantle, Western Australia, 26 September 2003

Conference Convenors and Co-directors, distinguished guests from both Australia and overseas, ladies and gentlemen, all.

I would like to acknowledge the traditional custodians of the land on which we stand and by so doing remind ourselves that Australia’s cultural traditions stretch back many thousands of years.

The Human Rights Protection System in Australia

The system of human rights protection in Australia is rather complex and depends on interaction of many different elements such as our Federal and State constitutions, legislation and common law.

It is fair to say that with the very notable exception of indigenous Australians, the system, while not perfect, has still produced some reasonable outcomes. Notably what I would call the “fair go” laws: that is disability, race and sex in the anti-discrimination arena and economic justice from the “Harvester” decision, through minimum wages to the centralised wage fixing system.

What has not been well maintained, has been the area of civil and political rights where the absence of a constitutional Bill of Rights and reliance on the common law creates an obvious lacuna in the human rights menu.

The Human Rights and Equal Opportunity Commission is an important element of the human rights protection system in Australia. It is a statutory authority which is independent of the Government of the day. It was first established by the Australian Parliament in 1981, and then re-established in 1986. HREOC administers laws relating to human rights and discrimination.

It does this in several ways, including:

● Investigation of complaints; with provision for court sanctioned outcomes in the anti-discrimination area contrasting with parliamentary reporting in the case of human rights breaches.

● Provision of public education about human rights; the HREOC website’s

( popularity is testimony to this; ● Monitoring human rights compliance by Federal administration; of which “Bringing them

Home” and Children in Immigration Detention are but two recent examples; ● Policy and legislative development; the suite of anti-terrorism bills is a good example

Some Basic Statistics on the Immigration Detention Regime:

● When was the policy introduced? 1992 to deal with the perceived influx of Cambodians and

Vietnamese. One of the primary purposes was to perform basic health, identity and security checks. ● Who is detained? All persons who either arrive without a visa or whose visa expires. If they

are intercepted outside Australia’s territorial waters or arrive at Christmas/Ashmore, they go to Nauru/PNG; otherwise detained in Australian detention centres. ● How many boat arrivals? In practice, most people in long term detention are asylum seekers

who arrive by boat. Since 1989, 13,475 have arrived by boat which would barely half-fill the WACA!! ● Where are they from? Over the past few years most boat arrivals have been from Iran, Iraq,

Afghanistan; reasonable numbers have also come from Palestine, Sri Lanka and China. ● Children? Nearly 50% of the children who applied for asylum over past three years are from

Iraq and 97% of those were successful. Approximately 35% are from Afghanistan and 95%

were successful. Just under 10% were from Iran and 66% were successful. ● Unaccompanied children UAMs? During 1999 alone, the last year UNHCR has figures,

20,000 UAMs applied for asylum in Western nations, 46 of those travelled to Australia. ● How many in detention (all categories)? In 2001-2002 approximately 10,000 people in

detention; 1,700 were children and 1,400 of those children were boat arrivals. As at 7 July 2003, there were just over 1,000 people in detention, 92 of whom are children. ● How long in detention? Boat arrivals must stay in detention until they get a refugee visa or

are sent back home. Sometimes this can take years.

1. The longest a child has been in detention with a family is 5.5 years.

2. In January 2003, the average length of detention for children was more than one year and three months.

3. By April 2003, 50 children had been in detention for more than 2 years. All of those children were in detention with one or more parents.

● Are they genuine refugees? Over 90% of boat arrivals in detention over the past three years

have been found to be genuine refugees ie almost all found to have suffered persecution and released into Australian community.

1. In the same period only about 20% of the asylum seekers who arrived with a visa (eg tourist visa) were found to be refugees; this refutes the argument that there is a correlation between being a “boat person” and a “fake refugee”; in fact boat people are much more likely to be refugees.

● What type of visa do they get? Since 1999, those who do get a refugee visa only get a three

year temporary protection visa. After three years is up they must start all over again. This compares with those who arrive (say) on a tourist visa and then apply for refugee status - they get permanent visas. Regulations proposed by the Government to bring these applicants into line with “boat arrivals” were disallowed by Parliament in September 2003.

● What impact do the TPVs have on their recipients? There is evidence suggesting they

suffer from a lack of stability, have difficulty settling and factually they cannot access some key services like the Integrated Humanitarian Settlement Strategy’s (IHSS) housing, education and language support package or effectively “social security”.

Responsibility for Human Rights in Immigration Detention Centres.

As Human Rights Commissioner, I have the responsibility to inspect and report on conditions in immigration detention centres on an ongoing basis, from an HR compliance perspective. These visits raised considerable concerns, and were personally traumatising, because I could see the visible changes in individuals I had met previously.

I could also gauge the changes in mood in general as various factors caused many adults and their children to remain in remote centres for well over a year. They were deprived of community contacts and cultural/religious support, and were increasingly devoid of hope.

Three stages of deterioration:

1) In general, one could say, people can take up to 2-3 months of detention without major visible impact on them. They are relieved to be in Australia and believe that their new start in life is just around the corner.

2) After this their behaviour changes. We witnessed trauma, self-harm and family disintegration on our visits.

3) After one year in detention, the number of people requiring psychological and psychiatric help is staggering.

Above all, I was concerned at the many effects of detention on children and young people, and this was the reason why I initiated the National Inquiry into Children in Immigration Detention in November 2001.

My views on this subject were also informed by evidence from the Stolen Generations Inquiry; from the Inquiry into Child Migrants sent from the United Kingdom to Australia, and from other inquiries

which concluded, as a rule, that any institutionalisation is bad for children.

I am concerned also that the social, psychological and economic cost of institutionalisation is enormous. In considering the psychological or psychiatric effect, it is likely that some children will require many years of subsequent professional support and care.

Remember immigration detention is a very particular, even peculiar form of institutionalisation. It is not imprisonment in the traditional sense that we know it; no sentence, no prison discipline, no time out; but there is a total loss of freedom with a commensurate absence of decision-making capacity and choice.

Freedom of choice is probably one of the most fundamental bulwarks of a democracy and one taken most for granted - and yet look at how Sydney’s water restrictions can irritate because they remove this tiny bit of choice in how to wash you car, to get a taste of what immigration detention means.

While I cannot yet talk about conclusions of the Inquiry, I believe that public information from the process so far and the assessment of my numerous visits to detention centres has led me to develop some key observations.

Some of these I discussed at a conference in October last year, noting especially:

● The continued adverse comment on people of ‘middle Eastern background’ who are ‘queue

jumpers’ with plenty of money. This does not help the Australian community understand the background and often traumatic experience of asylum seekers; ● The fact that the mental health state of those remaining in detention, especially children, is

atrocious. ● I even used the phrase “de facto mental hospitals” without the resources;

● In spite of this and continual recommendations from experts, such children and their families

are not allowed to live in the community because they must be ‘available for removal’. Some of them have been waiting for this removal for well over a year. During this time their health status has deteriorated rapidly.

I continue to be concerned at the level of mental health problems. However, I note the recent answer provided by the Immigration Minister in a Parliamentary response, that only some 2.9% of detainees [1] were taking medication for a psychiatric illness.

Of course, this may mean that some detainees have a psychiatric disorder but refuse medication. But in addition, the Minister also excluded depression from the definition of psychiatric illness!! Even though it is one of the most common disorders in immigration detention centres.

At least the recently published research by Dr Zachary Steel and others has addressed the incidence of mental illness in detention centres in more detail, thereby providing some objective clinical analysis.

ACM/DIMIA Public Hearing, Sydney 2-5 December 2002

What I would like to concentrate on today is some of the material which was discussed during public hearings with DIMIA and ACM in Sydney in December 2002 as part of the Inquiry.

My purpose here is not to demonise individuals within DIMIA and ACM, but rather to demonstrate the cultural attitude that the policy has engendered in the department and the company.

Many issues were of particular concern to me during those hearings, especially:

1. The bureaucratic rigidity of senior DIMIA officials and their seeming lack of interest in exploring the use of existing options to improve the situation of detainees.

2. The insistence of DIMIA that detainees caused their own problems; and

3. DIMIA’s belief that a wealthy 1st world country such as Australia meets its international obligations even if it only provides the minimum requirements.

I believe that all of these factors have led to the provision of services, or lack of them, which have had a serious and unnecessary effect on the health of detainees throughout the period from 1999 to the present. This includes the health of those unlikely to obtain a visa, in that they have been found as not engaging Australia’s “protection obligations”.

1st point - DIMIA Officials and available alternatives to institutional detention

One of the points that must always be considered is whether a department is responsible for an action or direction, or whether it is just implementing legislation and policy directions.

Even if a Department is implementing what government wants, there are often different ways in which such outcomes can be achieved. The legislation itself will often provide these.

Today I will mention a few areas where legislation allows such flexibility.

Alternative accommodation

For example, there is scope within the Migration Act to detain people almost anywhere. And yet:

● Individuals with serious illness were transferred to metropolitan hospitals for treatment, and

then generally returned to detention centres; ● A child who developed a mental illness within a detention centre because of the violence he

had witnessed was first transferred to another detention centre, then sent to foster care in the community. Eventually one of his parents was allowed to live with him; (Shayan Badraie); 2001. The whole family was finally granted a visa. ● On a few occasions, a family was transferred from a remote detention centre to a metropolitan

detention centre because of better access to medical and other services. It is not mandated that they can only be detained in a prison-like detention centre. Yet alternatives were only really explored, albeit in minimal ways, subsequent to the problems that occurred with the UAMs in Woomera in January 2002 when serious riots occurred.

This group of unaccompanied minors was removed from Woomera as a result of the concern expressed by the South Australian Department of Human Services for their well-being. Some were subsequently granted visas and placed directly under state protection; others have not been granted visas, and when they turn 18 can in theory be returned to a detention centre.

However, since those Woomera disturbances there has been little change in the options available to others. In fact, there are probably fewer options. From the health point of view, detainees are harder to treat and place, because they have been in detention so long.

From the security point of view, they must be available for removal even if there are no certain plans for removal.

This is the real difficulty with the system that we have at present: the conflicting principles of best interests of the patient and best security practice. In all the different arrangements that have been made since early 2000, these conflicting principles have been evident.

For example:

● A woman was eventually admitted to psychiatric care on medical intervention, but DIMIA was

unwilling to allow the next stage of treatment in a community setting. Intervention was required by state agency. [Sydney - NSW Public Guardian]. Family eventually received visa in late 2002. ● A similar situation occurred in another state [South Australia, early 2003, man now living in

care of family in community. Intervention of Public Advocate]

Possibly other factors are involved in these decisions, such as:

● Was DIMIA willing to pay the costs of such care? Evidence suggests that when some

‘unexpected’ situation arose, it is more likely to be DIMIA who pays the costs of care than ACM. ● Has ACM been reluctant to make guards available - it is expensive to provide 24 hour shifts to

guard one individual. ● Does the state have a suitable hospital bed available, especially when ACM guards are

forever present? - this may be upsetting to other patients in the ward.

Overall, it is still security or costs which dominate in these arrangements, not the health of the patient or the professional skills of the doctors.

Bridging visas

There is also an option to allow people to live in the community through the provision of bridging visas.

Bridging visas are routinely granted to all people who arrive with a visa and then apply for a Protection Visa. The reason for this, according to DIMIA, is that DIMIA already knows who these individuals are: they have a name, they provided the required information to get a visa therefore it is appropriate to let them live in the community.

Yet it seems from recent public information, that it is possible for a child sex- trafficker to get a visa to bring a twelve year old girl to this country and keep her a prisoner for 15 years to work in the sex industry.

Even though the legislation does make it difficult for some people in detention to obtain a bridging visa because of the no “final determination” clause, many others could potentially access its provisions. For instance:

● A child could apply for a Bridging Visa if a state welfare authority has certified that release is in

the best interests of the child; and ● A child or adult could apply if a Department-appointed doctor certifies that the person has a

health need or torture/trauma experience; [2]

However, in discussing bridging visas with DIMIA officers at the December 2002 hearing, it became clear that this option was rarely considered for people in detention. To HREOC this appeared strange because:

● It was aware of many cases of children with disabilities who had been in detention for a long

time; ● Many adults and children had other health problems; and

● It was more than likely that many people had experienced torture and trauma prior to arrival in


So, even if we put aside the fact that many people were arguably mentally unwell, only as a result of their prolonged detention, it was obvious that bridging visas were not even being considered, for many other detainees, in the limited circumstances originally envisaged by Parliament.

This system was put in place by Parliament through legislation and through regulations which have to be agreed by Parliament. Yet, there seems to be a great reluctance to follow Parliament’s line.

DIMIA’s role:

On questioning DIMIA officials, HREOC counsel found there was no evidence of any bridging-visa action being initiated by DIMIA officials even though it is within the capacity of a detention centre manager to do so. In discussing Bridging Visas for unaccompanied minors with DIMIA, HREOC found that DIMIA had not been much involved in initiating better outcomes for UAMs.

As far as children were concerned, DIMIA thought that State welfare officials should make such assessments.

However, there was a Catch 22 - sometimes State welfare departments were unaware of the existence of children, much less their mental health status or any disabilities they might have. In any event, state legislation in itself did not allow them access to children in detention centres, unless DIMIA agreed.

And, on the many occasions when state welfare agencies have become more involved - and this has increased since January 2002 ---DIMIA will not accept the word of recognised experts. The State reports, at best, will trigger a request for a DIMIA-appointed doctor to make an assessment.

2nd Point -DIMIA’s insistence that detainees caused their own problems;

It is in the area of mental health especially that DIMIA’s attitude to at least the current detainee population is most obviously negative. There is an automatic distrust of people who do not arrive in an orderly fashion; from this follows that any mental “condition” they subsequently manifest must be false. But “orderliness” has never been a characteristic of refugees!!

For example

Witness Jews escaping the Nazi Holocaust, the many millions seeking to escape Stalin’s oppression and the thousands fleeing Vietnam after the fall of Saigon in 1975; these are some representative samples of the manifest absurdity of this proposition.

Assuming that there is a sound Refugee Convention basis for the acceptance by either DIMIA or the RRT of applications for a visa, there was a sound reason for people to leave promptly.

There is often no alternative except to turn to a people smuggler. From the statements of some asylum seekers, they have no idea where they are going, only that the money they have will take them to one place rather than another. Had a better option been available or feasible, or been known to be available, would people not save their money and go to it?

But the understanding demonstrated by DIMIA of asylum seekers especially those who fail in their applications is minimal. During the public hearing in December, DIMIA said:

the choice to bring the detention period to an end lay within the capacity of the family and… they could choose at any point from then on to return to their home country and so far that has not been the case. [3]

This is a strange statement, given that:

● Some of the detainees are mentally ill and cannot come to a well informed judgement of what

they should do; ● In many instances, it has been impossible for people to return to their home country, even with

DIMIA’s help.

It is not logical to support a war against Iraq, but for a government department to think it possible at the same time to return to Iraq the very people who were forced to leave.

There is such a degree of contradiction and perversity in what DIMIA says and does that the effect can be quite surreal. Speaking of refugees, and the effect on them of detention itself, the DIMIA officer stated on one hand:

Of course, some of these people have had a very difficult and often perilous voyage to get to Australia and they may well have other predispositions or issues in their life well before any thought of coming to Australia which might also be impacting on their personal circumstances whilst here.

Firstly, this statement says to me that DIMIA believes:

● mental health problems are probably not caused by detention - people carry them with them.

Secondly, DIMIA also seems to be saying:

● ‘at most these people had an unpleasant voyage to Australia; this has contributed to their

mental health problems’ and also: ● ‘they may have been losers in their own country. It has really got nothing to do with Australia.’

Yet DIMIA knows that it expends significant funding on torture and trauma services under its settlement services for people who arrived as recognised refugees under the “off-shore humanitarian program”.

What is the difference? The fact that we carefully chose one group and didn’t choose the other group?

I believe we all have a responsibility to point out the lack of logic and the discriminatory attitudes that are being perpetuated by these statements.

3rd Point - Provision of Bare minimum of services

I don’t believe that detention centres have ever been very generous in their provision of services to detainees. From the detailed evidence provided to the Commission, this certainly appears to be the case over the past few years.

Maybe this wouldn’t matter much if there was a short maximum period of detention. It is when detention is for many months and even years, that the greatest damage is done. International conventions are rarely specific about the standard of services that should be provided or

the time by which this standard must be reached. But in terms of children, the CRC states that detention must be the last resort and must be for the shortest possible period.

As far as health and related services are concerned, a country such as Australia should seek to provide the highest standard that it can. The CRC speaks of taking positive action to restore and rehabilitate, not just to hand out Panadol.

In its evidence to the Inquiry in December last year, DIMIA’s position appeared to be that due to the large number of detainees, services could only be basic:

“The provision of immigration detention services is a complex and dynamic area of public administration. It is not possible to predict the number of unauthorised arrivals that may come to Australia. After all people simply do not book in. Nor is it possible to predict the means of their arrival, the characteristics of the population that arrives nor the validity of any claims they may make to remain in Australia”. [4]

If numbers were relevant, many disadvantaged countries would have a good excuse to provide the bare minimum. Yet, the Inquiry heard evidence that even countries dealing with massive numbers of traumatised people - such as in central Africa - were assessing the nutritional intake of children.

I agree that the provision of services to a refugee or asylum seeker population is complex. The way the system is structured means that one is essentially running small separate towns in isolated parts of the country.

But the services’ provider ACM was paid handsomely to cope with this complexity. And DIMIA also, as a long-established department, was paid by us taxpayers, to be efficient. I think Australia could easily have provided a much better level of service to asylum seekers which would have had a beneficial effect on their health.


There is much else to consider with the situation of children in immigration detention. I believe that the problems of mental health in particular affect both adults and children and that there must be a solution.

After all, if detainees who have experienced both jail and immigration detention, would rather be in a penal institution than a detention centre, I think we need to be seriously concerned about this policy’s implications.

1. March 24th, 2003, Hansard, Senate, pp. 9705-9706 2. Migration Act S72; Migration Regulations 2.20(7) and 2.20(9) 3. Transcript of evidence, DIMIA, Sydney 5 December 2002, p. 37 4. Transcript of evidence, DIMIA, December 2002, p.