'Normal rules of law, child protection legislation and Australia's detention of child asylum seeker

5872 words

Published in Alternative Law Journal , 2002.

Australia’s child asylum seekers

Applying normal rules of law and child protection legislation to the

situation of children in immigration detention centres.

Judith Bessant

In late 2001 an estimated 582 asylum seeking children were held in

detention by the Australian government. By mid 2002 approximately 150

children remained in detention (excluding those interned in camps off-

shore). Australia is the only country in the world to compulsorily detain

asylum seekers who arrive without valid documentation. It involves an

exercise of state power which in tandem with the suspension of normal

legal protections that are available to others, brings Australia

uncomfortably close to historical and contemporary examples of what

happens when state regimes extinguish fundamental legal and

constitutional rights understood to constitute the rule of law.

This article considers whether the circumstances under which young people

are being held in various detention centres constitute a prima facie basis

for determining that such children are at risk within the terms of

Australia’s child protection legislation. I begin by establishing the

criteria used in Commonwealth, state and territory legislation to

determine whether a child is in ‘need of protection’. I then use that

criteria to establish whether there is evidence that the welfare of young

people held in detention centres is threatened by their detention and

whether, if the normal rule of law were applied, those children would be

brought under the protection of that legislation.

The welfare of young people: a heuristic framework

The idea that government ought itself be subject to the rule of law is a document.doc Internal Use Only

long standing and widely held liberal principle employed to guard against

the arbitrary exercise of power. The criteria for identifying when a

child’s welfare is at risk, which are found in 12 separate and current

legislative enactments, points unequivocally to the serious plight of

young people in Australia’s immigration detentions centres.

In Australia the legislative definitions of ‘in need of care and

protection’, and the mandatory protection requirements are set out in the

following legislation:

Commonwealth: Family Law Act 1975;

New South Wales: Children and Young Persons (Care and Protection) Act 1998;

Victoria: Child and Young Person’s Act 1989;

Queensland: Child Protection Act 1999;

Queensland: Health Act 1937;

South Australia: Family and Community Services Act 1972;

Tasmania: Child Welfare Act 1960;

Tasmania: Child Protection Act 1974;

Tasmania: Child Protection Amendment Act 1986, 1987, 1991;

ACT: Children’s Services Act;

NT: Community Welfare Act 1983.

Under ‘normal’ circumstances, for a child to be placed on an order, a

court needs to determine the child is in need of care and protection.

This task is approached thematically; by identifying the following five

main criteria used to determine whether a child is in need of protection:

neglect, and inadequate provision of care,

abuse and maltreatment,

the health and development of the child being placed at risk,

education, and

parental responsibility and adequate supervision.

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Neglect and inadequate provision of care

One point that medical and social scientific experts appear to agree on

is that the social and emotional environment in which a child lives

impacts on their health and wellbeing.1

With this in mind, there appears to be a basis for child protection

intervention in the New South Wales Children and Young persons (Care and Protection

Act) 1998 . The same applies in the Victorian legislation (Child and Young

Persons Act 1989, s.63).

In New South Wales, according to the Children and Young Persons (Care and

Protection) Act 1998, a child is defined as being in need of care if:

adequate provision is not made for the child’s care,

if the child is abused, or is likely to be abused, or

if there is an irretrievable breakdown in the relationship between

the child and one or more of the child’s parents.

The same applies with the Victorian legislation (s.63 of the Child and Young

Persons Act 1989). According the Victorian Act a child is in need of

protection if the child has suffered, or is likely to suffer, emotional

or psychological harm of such a kind that the child’s emotional or

intellectual development is, or is likely to be, significantly damaged

and the child’s parent(s) have not protected or are unlikely to protect,

the child from harm of that type.

In Tasmania the Child Welfare Act 1960 similarly stipulates that ‘neglect’ is

evident in the failure to provide adequate care.

There is considerable evidence to suggest that young detainees are in an

environment where there is not adequate provision available for the child’s care. This

is apparent in the failure to provide a healthy context in which the

child lives. Prison-like environments do not constitute adequate provision of

care for the child. This is particularly so in centres where both child document.doc Internal Use Only

and adult inmates are strip searched, where riots occur on a routine

basis; and where there are regular outbreaks of violence between inmates

and inmates and guards including the use of water cannons and makeshift

weapons (Age, I6 April 2001; Sunday Herald Sun, 10 March 2002).2

Moreover, indeterminate imprisonment does not constitute adequate care for the

child.3 Young people detained in detention centres are by virtue of their

imprisonment being abused.

Freedom is a fundamental human right. Young detainees have not committed

crimes. Their only offence was to have been born to parents seeking

asylum.

Mandatory detention involves loss of liberty including restrictions on

freedom of movement. This inhibits a child’s capacity to engage in any

semblance of normal social, economic and cultural activities. I refer to

the development of social skills and primary personal and community

connections that provide a basis for social integration. Opportunities

for social participation, according to most standard medical and

sociological accounts are essential for healthy child and adolescent

development. Thus, denying young detainees the chance to take part in

general social activities inhibits their social and emotional

development,4 and is said to be a major factor contributing to the

development of later social and personal problems.5

If children in civil society were segregated, isolated and subject to the

‘security measures’ child asylum seekers experience, that action would be

widely held to constitute abuse. The experience of such incarceration for

young people who have recently suffered directly at the hands of

uniformed men (militia), or who have witnessed horrific violence en-route

to Australia takes on a special meaning: it ‘does not constitute adequate

care’.


There are issues about the degree of psychological and physical damage

caused by a child’s incarceration. The imprisonment of young people with

detainees, many of whom are suffering with their own health problems (eg,

depression, suicidal ideation etc), does not constitute adequate care (former

ACM psychology staff Lateline ABC, 23 April 2002).6 After visiting detention

centres, Liberal MP Bruce Baird described what he saw as the

‘psychological impact’ of the camp on detainees:

@quote = … the feeling of despair that permeates these places, the

general unhappiness and lack of activity, with detainees either

lying on their beds in the middle of the day or wandering around

aimlessly.7

Similar evidence came to Human Right and Equal Opportunity Commission

(HREOC) officers following their visit to Woomera in January 2002. Dr

Ozdowski (HREOC Commissioner) explained how the officers found four

children were ‘exposed to a high level of violence and were denied basic

levels of education’. He also said nine children has been at Woomera for

more than a year and 70 more for more than six months, even though

children should only be detained as a last resort and for a limited time

under the UN Convention on the Rights of the Child, to which Australia is

a signatory. The officers also:

@quote = … found 24 children had harmed themselves, including one

who slashed the word freedom on his forearm and another who tried to

hang himself. A 12 year old girl told the officers: ‘I am getting

crazy, I cut my hand. I can’t talk to my mother. I can’t talk to

anyone and I’m very tired. There is no solution for me -- I just

have to commit suicide -– there is no choice’. A 16 year old boy

said: ‘Some of us, we not have anyone in here. What can we do except

kill ourselves? [Age, 7 February 2002]

There is evidence that children in immigration detention centres suffer

physical, emotional and psychological harm. I refer to medical research

that demonstrates how such children can become severely depressed and

suicidal.8 There are children in camps who were previously severely

traumatised and injured in their homeland and/or en-route to Australia. document.doc Internal Use Only

For these highly vulnerable children, the added injury compounds their

problems and impedes recovery.

Given this, it is clear that child detainees are not protected; they are

abused; suffer harm, and are likely to be significantly damaged as a

direct result of their imprisonment. On this basis there appear to be

grounds, according to the New South Wales, Victorian and Tasmanian

legislation for intervention.

Child detainees regularly witness physical assaults and violations.

Reports of the handcuffing and beatings of inmates at Port Hedland are

not uncommon.9 Neither are accounts like the one where a father and his

three-year-old son were isolated for 13 days in an cell where it took an

hour to attract a guard’s attention so they could go to the toilet (Age, 19

June 2001).10

Under normal rules of law, mandatory and indeterminate imprisonment for

children who have not committed a crime, in surroundings like those that

child detainees endure, would not constitute adequate care of a child. If

parents in civil society imprisoned a child and denied them access to the

outside world; if they regularly exposed children to distressing

conditions; if they allowed children to live amongst depressed and

suicidal adults, then most Australians would consider such adults

derelict in their parental duties and the children in need of care and

protection.

Abuse and maltreatment

A raft of Australian legislation specifies the terms under which a child

is held to be at risk of abuse and maltreatment.

In New South Wales a child is defined under the Children and Young Persons (Care

and Protection) Act 1998 as being in need of care if adequate provision is not

made for the child’s care.


The Tasmanian Child Protection Act 1974 stipulates that a child may be

placed under a child protection order if it appears to a magistrate that

the child may have suffered abuse. Under the Child Protection Act 1986, a

magistrate who is not in a position to decide whether there may be a

substantial risk that the child may suffer abuse can make a temporary

child protection order.

A child is taken to suffer abuse if by act or omission, intentionally or

by default, any person neglects or interferes with the physical,

nutritional, mental or emotional wellbeing of the child to such an extent

that the child suffers, or is likely to suffer, psychological damage or

impairment; or the emotional or intellectual development of the child is,

or is likely to be, endangered; or the child fails to grow at a rate that

would otherwise be regarded as normal for that child.

In the Northern Territory a child is in need of care if the child suffers

maltreatment (Community Welfare Act 1983). For the purposes of this Act,

maltreatment means the child suffered or is at a substantial risk of

suffering physical injury and/or emotional or intellectual impairment.

Child detainees ‘suffer maltreatment’ and by virtue of their imprisonment

are placed at high ‘risk of suffering physical injury causing temporary

or permanent disfigurement or serious pain or impairment of a bodily

function or the normal reserve or flexibility of bodily functions,

inflicted or allowed to be inflicted by a parent, guardian or person

having the custody of the child’. Young people aged 11, 14 and 17 years

who are reportedly threatening suicide, are at risk of serious injury

(lawyer, McDonald, Age, 29 January 2002).11

Self-harm by children and harm to children perpetrated by others has

included prolonged ‘hunger strikes’, sewing or stapling lips together,

attempted suicide and deliberate poisoning all of which take place in

detention camps, causing ‘serious pain’, impairment of bodily function

and normal reserve of bodily flexibility’ (Age, 20 January 2002; Age, 21 document.doc Internal Use Only

January 2002; Age, 8 March 2002). In early 2002 the Age newspaper reported

that ‘… three Afghan children had stitches removed and remained in

hospital … suffering dehydration’ (Age, 21 January 2002; Age, 25 January

2002; Age, 26 January 2002) The next day it was reported:

@quote = … the 12 year old who collapsed yesterday was among a group

of youths engaging in self-harm. One boy 15, drank detergent, a 19

year old beat himself with rocks and an 18 year old had slashed his

chest … Another 8 people under 18 had drunk shampoo. [Age, 22

January 2002]

Michael Dudley, Chair of Suicide Prevention Australia, from the

University of Western Sydney and Sarah Mares, Faculty of Child and

Adolescent Psychiatry, Royal Australian New Zealand College of Psychiatry

made the point that normally children who were in the care of a parent

who exposed them to violence and did not ‘provide adequate education or a

place for play and development would be removed from that situation and

consideration given to prosecuting the guardian. This is the condition of

the children in the detention centres (Age, 22 January 2002). As Katie

Brosnan, former Port Hedland teacher reports; children are ‘exposed to

people trying to commit suicide … to adults who are truly desperate in

their need for freedom. Children seem to be exposed to just about

everything’ (Channel 9, Sunday Program, 5 May 2002).12

Other health specialists express similar concerns, drawing attention to

internationally published evidence which indicates that prolonged

detention of children is detrimental to mental and physical health.13

Placing children’s health and development at risk

The Western Australia Child Welfare Act 1947 defines a child in need of care

and protection if living under such conditions, or found in such

circumstances, or behaving in such a manner, as to indicate that their

mental, physical or moral welfare is likely to be in jeopardy.

In the ACT, the Children’s Services Act 1986 states a child is in need of care document.doc Internal Use Only

and protection if:

@quote = (a) the child

@quote = (i) has been physically injured (otherwise than by

accident) or

@quote = (ii) has been sexually abused

by one of the child’s parents or by a member of the household in

which the child lives, or there is a likelihood that he or she will

so suffer physical injury or sexual abuse

@quote = …

@quote = (c) by reason of the circumstances in which the child is

living, has lived or is reasonable likely to live, or in which the

child is found --

@quote = (i) the health of the child, has been impaired, there is a

likelihood that it will be impaired, or

@quote = (ii) the child has suffered, or is likely to suffer,

psychological damage of such a kind that his or her emotional or

intellectual development is, or will be endangered … [s.71]

The conditions in which many child detainees live impair their ‘health’

and ‘psychological well-being’ and damages their ‘emotional and

intellectual development’. Injury results from living in prison

conditions, from self-harm, and/or deliberate or unintentional harm

caused by others (ie., from regular contact with other inmates who are,

for example, severely depressed and/or suicidal).14

Reports of children being assaulted by some Centre staff and the

generally intimidatory environment15 means young detainees are ‘living

under such conditions’ that ‘indicate that the mental, physical or moral

welfare of the child is likely to be in jeopardy’. As medical

specialists, one of whom was himself a detainee observed:

@quote = The detention environment, exposure to actions such as

hunger strikes, demonstrations, episodes of self-harm and suicide

attempts, and forcible-removal procedures, all impact on a child’s


sense of security and stability … A wide range of psychological

disturbances are commonly observed among children in the detention

centre, including separation anxiety, disruptive conduct, nocturnal

enuresis, sleep disturbances, nightmares and night terrors, sleep

walking, and impaired cognitive development. At the most severe end

of the spectrum, a number of children have displayed profound

symptoms of psychological distress, including mutism, stereotypic

behaviour, and refusal to eat or drink.16

Children whose parents self-harm while in prison have their health and

development placed at risk (ABC Regional News, 14 March 2002).17 ‘Children

of parents who reach the tertiary depressive stage appear to be

particularly vulnerable to developing a range of psychological

disorders’.18 The trauma of separation from a parent in distressful

conditions is likely to impair the wellbeing of the child. As the Age

reported, some adults who self-harm are parents: ‘… the mother of a seven

year old girl was admitted to the Adelaide Hospital in a critical

condition after trying to hang herself’ (Age, 18 March 2002).

Given such evidence there appear to be reasonable grounds for

intervention under child protection legislation.

Child detainees have been ‘physically injured (other than by accident)’

inside the detention centres. Moreover, ‘there is a likelihood that the

child [in detention] will suffer physical injury’. ‘By reason of the

circumstances in which the child is living, has lived’, [namely in

detention], ‘the health of the child, has been’, and ‘is likely to be,

impaired’. Furthermore, those children are ‘likely to suffer,

psychological damage of such a kind that their emotional or intellectual

development is, or will be endangered’.

Education

In South Australia under the Children’s Protection Act 1993 an application may be

made to the Youth Court when the Minister is of the opinion that the document.doc Internal Use Only

child is at risk and an order can be made for the child’s care and

protection. For the purposes of the Act, a child is at risk if the child

is of compulsory school age but has been persistently absent from school

without satisfactory explanation.

In New South Wales a child is defined under the Children and Young persons (Care

and Protection) Act 1998 as being in need of care if adequate provision is not

made for their care.

In Tasmania the Child Welfare Act 1960 includes in the definition of a

neglected child one who ‘has not attained the age of 16 years and in

respect of whom there have been at least 2 convictions under section 9 of

the Education Act 1932, [and who] does not without lawful excuse, attend

school regularly’.

The ACT the Children’s Services Act 1986 states that a child is in need of

protection if required by law to attend school but persistently failing

to do so and if the failure is likely to be harmful to the child.

According to former detention centre teaching staff, children in

immigration detention centres over the age of 12 years do not attend

school (Katy Brosnan, Elly Leaver, former teachers, Port Hedland, ABC

Lateline, 10 April 2002; Age 11 July 2002). Given evidence that many child

detainees have not had access to education they are ‘at risk’. This

constitutes grounds for an order to secure the child’s protection.19

Many detained children under the age of 16 years regularly fail to attend

school (Age, 11 July 2002). Moreover, the quality of the education offered

to those who do attend school is reportedly dubious. A former detention

centre educationist explained, there was no syllabus, no accountability

and in her opinion, ‘an absolute disgrace’ (Katy Brosnan, Lateline 10 April

2002; Age, 7 February 2002).20 Similar ‘insider’ reports come from Aamar

Sultan, medical practitioner and former Villawood detainee:


@quote = … for most of the previous two years, there has been a

general dearth of activities, resources, or educational material,

leaving detainees [young and old] with long periods of unstructured

time.21

Parental responsibility and adequate supervision

In New South Wales a child is defined under the Children and Young Persons (Care

and Protection) Act 1998 as being in need of care if there is an irretrievable

breakdown in the relationship between the child and one or more of the

child’s parents.

In Victoria the Child and Young Persons Act 1989 indicates that a child is in

need of protection if the child’s parent(s) have not provided for,

arranged or allowed the provision of, or are unlikely to provide,

arrange, or allow the provision of, basic care or effective medical,

surgical or other remedial care.

In Queensland under ss.9 and 10 of the Child Protection Act 1999 a child is

defined as being in need of protection if that child does not have a

parent able and willing to protect the child from harm.

In South Australia under the Children’s Protection Act 1993 an application for an

order may be made to the Youth Court if the guardians of the child are

unable to maintain the child, or are unable to exercise adequate

supervision and control over the child.

In the ACT the Children’s Services Act 1986 states that a child is in need of

care and protection if:

@quote = (d) the child is engaging in behaviour that is, or is

likely to be, harmful to him or her and his or her parents or

guardian are unable or unwilling to prevent the child from engaging

in that behaviour;

@quote = (e) there is no appropriate person to care for the child

becausedocument.doc Internal Use Only

@quote = (i) the child has been abandoned by his or her parents or

guardian;

@quote = (ii) the child’s parents or guardian cannot, after

reasonable enquiries have been made, be found;

@quote = (iii) or the child’s parents are dead and he or she has no

guardian …

@quote = (f) there is serious incompatibility between the child and

one of his or her parents or between the child and his or her

guardian …

In Northern Territory the Community Welfare Act 1983 states that a child is in

need of care if not subject to effective control and engaging in conduct

which constitutes a serious danger to their health and safety.

In Tasmania the Child Welfare Act 1960 states a child may be in need of care

and protection, as a result of neglect or by being beyond the care or

control of a parent with whom the child is living.

Much of this legislation suggests that children are in need of care when

they are ‘beyond the care or control of the parent with whom the child is

living’. The imprisonment of children, and in most cases their parents,

by the Australian government often makes it impossible for parents of

young detainees to parent adequately. Prison life prevents parents from

attempting to put in place living conditions that benefit their children.

It subverts parents’ attempts to build relationships with their children

aimed at securing parental influence over the children. The capacity of

parents to prevent their children from self-harming and to restrain or

guide their conduct is limited by the conditions of living in a detention

centre.22

There is also the plight of unaccompanied minors. The policy of mandatory

and indeterminate detention of children in conditions like those

described means the Australian government as custodian of unaccompanied

children ‘allows’ those children to ‘suffer’ various ‘injuries’ which document.doc Internal Use Only

‘cause temporary and permanent disfigurement’ and impairment to the young

inmates’ ‘bodily functions, flexibility’ and ‘normal reserve’. In civil

society parents or guardians who permitted such suffering would be

subject to child protection legislation.

Cases of self-harm also raise issues about the provision of adequate

supervision.23 For parents of child detainees this goes to the question of

the government denying or undermining their parental rights by

incarcerating them in an environment that obstructs their capacity to

fulfil their parental obligation of providing a healthy environment in

which injuries including self-harm are unlikely. Thus, there are reasons

for concern with the Northern Territory Community Welfare Act 1983. Children

held in immigration detention centres are often not ‘subject to effective

control and engage in conduct that constitutes a serious danger to their

health’.

There is also the issue of unaccompanied minors who deliberately self-

harm. This poses questions about whether the state acting in loco parentis has

been negligent in providing adequate supervision and control of children

in their care. (Pursuant to the Immigration (Guardianship of Children) Act 1946

(Cth), the Minister for Immigration Multicultural and Indigenous Affairs

is the legal guardian of unaccompanied minors.) Given the incidence of

self-harm by unaccompanied minors, there appear to be grounds under South

Australian legislation for arguing that unaccompanied child detainees who

self-harm be placed ‘in need of care and protection’ (Channel 9, Sunday

Program, ‘The Trauma of Refugee Children’, 5 May 2002).

The prison conditions and status of child detainees are primary causes of

the child’s ‘behaviour that is likely to be harmful’.24 Moreover, in cases

where the state acts in loco parentis, the parent/state appears to be

unwilling to prevent the child they are responsible for from engaging in

harmful behaviour (ie., preventative measures, might involve removing

them from the environment causing the self-harm).


Moreover, although the Minister for Immigration is guardian, he appears

not to be proactive in considering unaccompanied minors for release on

Bridging Visas which indicates a failure to act in the child’s best

interest.

The ‘incompatibility’ between parents and children as outlined in the

legislation raises issues about unaccompanied minors. In the case of

these children the Australian government assumes a guardian role. When

this takes place an ‘incompatibility’ exists between the child and

government as prison keeper/guardian. The latter two roles are

incongruous and incompatible.

There are grounds for arguing that an ‘irretrievable breakdown exists’ in

the relationship between an unaccompanied child and the parent -- namely,

the Commonwealth government acting in loco parentis. The ‘incompatibility’ in

the relationship is evident in the act of forcibly detaining

unaccompanied children. There is also evidence of incompatibility when

the guardian -- the Australian government -- fails to meet that child’s

basic emotional and physical needs.

Australia’s practice of detaining unaccompanied child asylum seekers

indicates at best a conflict of interest between those acting in loco

parentis and the child, and at worst, an ‘irretrievable break down in the

relationship’ between the two. According to the New South Wales Children and

Young Persons (Care Protection) Act 1998 these are grounds for defining

unaccompanied children in Australia’s immigration centres as ‘being in

need of care’.

Holding unaccompanied minors in prison is not in their best interest.

Moreover, there is a fiduciary relationship between the unaccompanied

child and the Australian government. This relationship involves a duty to

act in good faith towards the person for whom responsibility has been

accepted in a way that confers benefit on that person. Such fiduciary

obligations are inherent in the relationship between those acting in loco document.doc Internal Use Only

parentis and the child.

The fiduciary (ie., the state or its representatives) is obliged to act

in the interests of the young person to the exclusion of the fiduciary’s

own interest. People subject to this duty are not expected to profit from

the relationship, or to put themselves in a position where the fiduciary

obligation and personal interest may conflict. Fiduciary obligations

operate with a recognition that the disadvantage or vulnerability of the

weaker party causes that person to rely on the other and requires the

protection of equity acting on the conscience of the other. Given the

extreme vulnerability of unaccompanied child asylum seekers, the state

has a duty to give high priority to their wellbeing.

Given the current legal and jurisdictional constraints operating, the

arguments mounted here are primarily moral and have a theoretical status.

State and territory child welfare authorities frequently claim they do

not have the authority to enter detention centres for the purpose of

monitoring child detainees. Legally and administratively this may be the

case. It does not, however, detract from the proposition that the

Commonwealth government is currently contravening numerous national,

state and territory child welfare/protection laws.

Concluding comments

Australia’s immigration detention centres provide an experience of

isolation, the physical design features and austerity are more commonly

found in high security prisons designed to house dangerous convicted

criminals.

Australia pursues a policy that means the indefinite detention of

thousands of people.

In late 2001 there were 582 children in immigration detention centres,

53 of them were unaccompanied. In July 2002, 150 children were in

detention.


Australia has abrogated its international obligations recognised by

numerous conventions to which Australia was a signatory. The mandatory

detention of asylum seekers breaches Australia’s human rights obligations

under the International Covenant on Civil and Political Rights, the

Refugee Convention,25 and the Convention on the Rights of the Child.

Australia’s international obligations, (as set out in those Conventions)

compels Australia to comply with the conventions. When the government

does not, we as a nation are in breach of international standards that

our government agreed to uphold.

Such observations sit alongside documented evidence of child sexual

abuse, maltreatment, self-harm, serious health and social pathologies

among young detainees; and the provision of inadequate health, social and

educational services for child and teenage detainees.

If any civil parent or guardian acted in the way the Australian

government has towards children in immigration centres, they would be

immediately subject to child care and protection orders. There are too

many examples of the Australian government contravening its own

legislation enacted to protect the wellbeing of vulnerable children and

applied to all civil parents and guardians for that purpose. Thus we can

see the principle of exceptionality applied to exempt the Australian

government from regulations that apply to all others. It is action that

is damaging to the young people concerned and offensive to Australians

who identify themselves as members of a democratic and humane culture.

The Australian government’s self-exemption from the normative and legal

restraints which ordinarily restrain absolute government power give cause

for serious concern for citizens interested in justice and the wellbeing

of one of the most vulnerable groups of children. Arguments for the

suspension of law on the basis of the right to protect a nation state’s

own existence is what facilitated the authority of regimes like the Third

Reich and the establishment of concentration camps. On the grounds of


‘general national principles’ certain perversions of justice, as

exceptions to normal rule, ought not be allowed.

Chris Goddard and Max Liddell hit the mark when they observed the

hypocrisy of the situation.

@quote = It is surely impossible to imagine that any child protection

service anywhere in the world would regard keeping a child behind razor

wire in a desert as anything but emotionally abusive. It is not hard to

imagine how history will judge the present circumstances of the children

being held in … detention … (Age, 21 March 2002).

References

1. Glover, S., Burns, J., Butler, Patton, G., ‘Social Environments and

Emotional Wellbeing in Young People’, (1998) 49 Family Matters 11-16;

Goddard 1996; Steel, Z., Silove, D.M., ‘The Mental Health

Implications of Detaining Asylum Seekers’, (2001) 175 Medical Journal of

Australia 596-9; Public Health Association of Australia, Submission to

HREOC National Inquiry into Children in Immigration Detention, 2002;

Silove, D., ‘The Psychosocial Effects of Torture, Mass Human Rights

Violations, and Refugee Trauma: Toward an Integrated Conceptual

Framework’, (1999) 187 Journal of Nervous Mental Disorders 200-07; The

Australian Psychological Society, Submission to HREOC National

Inquiry into Children in Immigration Detention, 2002.

2. Flood, P., A.O. Report of Inquiry into Immigration Detention Procedures, 2001; The

Australian Psychological Society, above, ref 1; Amnesty

International, 2001, ‘Defending children’s human rights: Children in

immigration detention in Australia’,

(http://www.amnesty.org.au/whatshappening/hrd4-5.html); Amnesty

International, ‘Refugee Children: The Unaccompanied Alien Child

Protection Act’, 2001.

3. Unicef Australia, United Nations Children's Fund, Submission to HREOC

National Inquiry into Children in Immigration Detention, 2002.

4. Patton, G., ‘Meeting the Challenge of Adolescent Mental Health’,

(1997) 166 Medical Journal of Australia 399-400. document.doc Internal Use Only

http://www.amnesty.org.au/whatshappening/hrd4-5.html

5. Resnick, M.D., Harris, L.J., and Blum, R.W., 'The Impact of Caring

and Connectedness on Adolescent Health and Well-being,' (1993) 29

Journal of Pediatrics and Child Health 3-9; Oxford Refugee Centre,

Understanding the Psychosocial Needs of Refugee Children and

Adolescents: What do we Mean by Psychosocial? The Refugee Experience

Website 2001,

<<http://earlybird.qeh.ox.ac.ukrfgexp/rsp_tre/student/children/cld_02

.htm>>.

6. The Australian Psychological Society, above, ref 1; Rousseau, C.,

Drapeau, A., and Corin, E., ‘Risk and Protective Factors in Central

American and Southeast Asian Refugee Children’, (1998) 11(1) Journal of

Refugee Studies 20-37.

7. Baird, Bruce, MP, Hansard, 18 June 2001; Rogalla, B., (former Woomera

Nurse), Submission to HREOC National Inquiry into Children in

Immigration Detention, 2002

8. Patton, G., Coffey, C., Carlin, J., Wolfe, R., Adolescent Depressive

Disorders: A Population Based Study over Three Years, (2000) 318

British Medical Journal 765-8; Professional Alliance for the Health of

Asylum Seekers and their Children, Submission to HREOC National

Inquiry into Children in Immigration Detention, 2002; The Royal

College of Nursing, Australia, Submission to the National Inquiry

into Children in Immigration Detention, 2002.

9. Commonwealth Ombudsman, Submission to HREOC National Inquiry into

Children in Immigration Detention, 2002; Flood, P. above ref 2;

Sultan, A. and O’Sullivan, K., ‘Psychological Disturbances in Asylum

Seekers Held in Long Term Detention; a Participant-observer Account’,

2001 (175) Medical Journal of Australia 593-6.

10. Flood, P. above ref 2.

11. Sultan, A. and O’Sullivan, K., above, ref 9; Steel, Z., Silove, D.M.,

ref 1 above; Professional Alliance for the Health of Asylum Seekers

and their Children, ref 8 above.

12. Commonwealth Ombudsman, above, ref 9.

13. Royal Australian College of Psychiatrists, media release, 17 August

2001; Rousseau, C., Drapeau, A., and Corin, E., above, ref 6.document.doc Internal Use Only

http://earlybird.qeh.ox.ac.ukrfgexp/rsp_tre/student/children/cld_02.htm

http://earlybird.qeh.ox.ac.ukrfgexp/rsp_tre/student/children/cld_02.htm

14. Steel, Z., Silove, D.M., ref 1 above; Sultan, A. and O’Sullivan, K.,

above, ref 9; The Royal College of Nursing, Australia, above, ref 8;

The National Children's and Youth Law Centre, 2002, Submission to the

HREOC, National Inquiry into Children in Immigration Detention.

15. ‘They [staff] -- just kick the kids -- they just want to insult us in

any way’, Al-Hashimy, released Woomera inmate, Age, 8 February 2002;

see also ????

16. Sultan, A. and O’Sullivan, K., above, ref 9; Rogalla, B., above, ref

7.

17. Rousseau, C., Drapeau, A., and Corin, E., above, ref 6; Professional

Alliance for the Health of Asylum Seekers and their Children, ref 8

above.

18. Sultan, A. and Os’Sullivan, K., above, ref 9.

19. South Australian Department of Education, Training and Employment,

Submission to National Inquiry into Children in Immigration

Detention, 2002.

20. Report of Human Rights and Equal Opportunity Commission, Age 7

February 2002 ‘…children under 13 received eight hours of classes a

week and there was virtually no education for teenagers, a claim

disputed by the Federal Government’; Australian Council of Deans of

Education Incorporated, Submission to HREOC National Inquiry into

Children in Immigration Detention, 2002.

21. Sultan, A. and O’Sullivan, K., above, ref 9, p.593.

22. Sultan, A. and O’Sullivan, K., above, ref 9; Public Health

Association of Australia, above ref 1; Rogalla, B., above, ref 7.

23. Amnesty International, above, ref 2.

24. National Legal Aid, HREOC Submission to the National Inquiry into

Children in Immigration Detention, 2002.

25. Australia committed itself to provide protection to people

applying for refugee status in Australia and who are recognised as

refugees in accordance with the international definition in the 1951

Convention relating to the status of refugees (the Refugee

Convention) and the 1967 Protocol Relating to the Status of

Refugees.document.doc Internal Use Only

Goddard, C., 1996, Child Abuse and child protection: A Guide for Health and welfare workers,

Melbourne, Churchill Livingston.


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