Expert Panel on Asylum Seekers
SUMMARY
The Society seeks the Expert Panel?s support in:
- The urgent establishment of a Legal Advice Service for asylum seekers in the NT
- Independent guardianship and legal representation of minors (accompanied and unaccompanied)
The Society calls upon the Panel to take its issues into account when providing policy advice and recommendations to the Federal Government, particularly on the following terms of reference:
- The development of an interrelated set of proposals in support of asylum seeker issues
- Short, medium and long term approaches to assist in the development of an effective and sustainable approach to asylum seekers.
IMMIGRATION DETENTION CENTRES IN THE NORTHERN TERRITORY
The situation around asylum seekers and immigration detention issues in Darwin is unique. This arises principally from the location of immigration detention facilities in Darwin itself, as opposed to remote locations in Australia or offshore.
In Darwin, asylum seekers are held in detention at four immigration detention centres (IDCs):
The Darwin Airport Lodge (DAL) is a so called alternative place of detention or APOD. This private sector facility holds families and unaccompanied minors. The capacity of this facility is 435 people but it is currently under capacity. On 4th July 2012 167 men, 90 women, 80 children and 53 unaccompanied minors (UAMs) were detained at DAL[1]. It is important to note that these figures can vary from one day to the next depending on visas granted, movement to community detention and arrivals from other centres.
The Northern Immigration Detention Centre (NIDC) has the reputation of being the worst IDC in Australia. This facility holds unaccompanied men. The NIDC has a capacity of 536 but is currently under capacity with 49 men, most of them classified as irregular maritime arrivals (IMAs).
Wickham Point is a new facility opened in January 2012. The centre will hold up to 1,500 unaccompanied men. As of July 2012 Wickham Point held approximately 1,300 men.
Berrimah House is classified as an APOD. Unaccompanied minors who were identified as Indonesian crew or alleged foreign fishers are held in this facility. In July 2012 there were 13 UAMs detained. These minors do not seek asylum in Australia and they are detained without charge. They are seeking to return to their home but they have to wait for Australian Federal Police (AFP) to make a decision on their case.
As of July 2012 there were over 1700 people held in Darwin IDCs: 1500 men, 91 women, 146 children including 66 unaccompanied minors[2].
LEGAL ADVICE AND SUPPORT SERVICE FOR ASYLUM SEEKERS IN THE NORTHERN TERRITORY
Legal Services in the NT are able to provide a range of legal advice and assistance to people in the NT. Increases in service demands on these services is likely to stretch the capacity of the services and result in service gaps.
The Society is concerned that people detained in immigration detention in the NT have complex legal needs and should have access to legal advice and assistance. Unfortunately, as you will be aware, there is no dedicated refugee legal service in the NT. Legal services in the NT are not specialised in meeting the range of complex legal needs of people in immigration detention and, due to capacity, only able to meet some of those legal needs.
The recent construction of a 1,500 bed facility at Wickham Point will naturally increase the population of detainees in the NT and place further pressure on legal services and the pro bono community to assist people who fall though the existing gaps in service provision.
However, NT Legal Aid Commission announced that its assistance in judicial review cases has to be terminated on 31 August 2012 due to the lack of funding.
The Social Justice Committee of the Law Society has been advocating for a legal advice and support service for asylum seekers in the Northern Territory. The Society asked both governments for support and requested to enter into discussions with the Department of Immigration and Citizenship (DIAC). DIAC denied our enquiry the Society and referred to the Immigration Advice and Application Assistance Scheme (IAAAS), which is funded by DIAC, instead. Furthermore, DIAC referred to the portfolio responsibility of the Attorney-General?s Department. For Robert Knight, Minister of Justice and Attorney-General of the Northern Territory, however this matter is a Commonwealth issue: ?The Northern Territory Government is not in a position to provide additional funding to the Northern Territory Legal Aid Commission regarding an asylum support service.?[3]
POLICING AND LEGAL ASSISTANCE
The Minister of Immigration and Citizenship, Chris Bowen MP, and NT Chief Minister, Paul Henderson, signed a $53 million Memorandum of Understanding (MoU) for the provision of policing services and cooperation with the Immigration Department on 12 March 2012.
The MoU is an important step in formalizing the Federal Government?s relationship with the Northern Territory Government around the growing industry of immigration detention facilities. Darwin is being called the ?detention capital of Australia? with the expansion of detention centres here to 3,000 beds.
The Society would like to highlight that it is not enough to provide $53 million over two years on policing without additional funding to other parts of the legal and justice system. As both governments accept this is a growth area for the Territory, then legal service providers such as the Northern Territory Legal Aid Commission need to be funded to meet that growth.
There is abundance of evidence that unrepresented litigants are costly to the legal system and place a burden on already stretched resources. By providing funding for an independent legal advice service the current costs for the legal sector would be limited and resources could be redirected to the community.
LEGAL ASSISTANCE FOR DETAINED MINORS
Children in detention is a major concern of the Society. The liberty of the child is a fundamental right, as outlined under Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Article 37 of the Convention on the Rights of the Child (CRC). Children have particular vulnerabilities because of their age and dependence on caregivers. The detention environment has been found to have a negative impact on the physical, mental and social wellbeing of children, particularly for unaccompanied minors.
As at 4th July 2012, there were 146 children (aged under 18 years) in immigration detention facilities and alternative places of detention[4]. These figures include unaccompanied non-citizen children who arrive in Australia with the intention of becoming permanent residents, as well as Indonesian minors apprehended and detained who are crew on people smuggling or fishing vessels and who do not seek asylum.
There are currently two immigration detention facilities in the Northern Territory that detain children. Delegates of the Society visited both centres on 13th June 2012 and talked to DIAC and Serco personnel.
Berrimah House holds single males who are alleged foreign fishers. As at 4th July 2012 there are 13 UAMs in this facility.
As at 4th July there are 133 children, including 53 UAMs detained at Darwin Airport Lodge.
The Society has reports that 25 children (16 UAMs and nine accompanied) have been in immigration detention for over one year. The youngest child with parents in detention is two years old and was born there. The youngest unaccompanied child in the Australian Immigration Minister?s care has spent over one year in detention and is seven years old[5]. The girl was only six years old when she arrived as an unaccompanied minor by boat. She is presently detained in her third detention facility with no prospects of release[6]. Both children are currently detained at the DAL in Darwin.
Detention has severe effects on human beings, particularly children, for instance delayed development, loss of normal play, separation anxiety, disrupted conduct, suicide attempts, loss of language, eating poorly, nightmares, self-harm and mutism.[7]
The Society is concerned that children detained in immigration detention have complex legal needs and should have access to legal advice and assistance. As noted above there is no immigration legal service in Darwin or elsewhere in the NT similar to those operating interstate. Northern Territory Legal Aid Commission (NTLAC) is providing some legal assistance to UAMs both those seeking residency and those seeking to return to their home. This is not funded and is likely to cease as at 31 August 2012.
GUARDIANSHIP AND INDEPENDENT LEGAL REPRESENTATION OF MINORS (ACCOMPANIED AND UNACCOMPANIED)
The Society is concerned about the arrangements that are currently in place for the independent legal representation of UAMs in immigration detention in the NT. The Immigration (Guardianship of Children) Act 1946 (IGOC Act) provides that the Minister for Immigration and Citizenship is the guardian of unaccompanied non-citizen children who arrive in Australia with the intention of becoming permanent residents. This causes a conflict of interest between the Minister's role as guardian under the IGOC Act and as the decision-maker under the Migration Act 1958.
This conflict of interest has been identified by the Commonwealth Ombudsman, Senate Inquiry and Australian Human Rights Commission. The Australian Government recognises that the IGOC Act is outdated and not designed for the purpose for which it is now used.
Additionally those UAMs that are not seeking residency but are detained pending Australian Federal Police investigations are under the guardianship of a different agency.
The Society welcomes the announcement of the National Children?s Commissioner. The Society would propose that the National Children?s Commissioner ought to be the guardian for all UAMs.
Noting that the appointment will not be commencing until 2013 and given that the current guardianship arrangements are inappropriate, we submit there is a basis for the appointment of independent legal representatives for UAMs in immigration detention and alternative places of detention. Under such a model the role of such representatives would differ depending on the circumstances of the child.
It is essential that the guardianship arrangements for UAMs facilitate access to independent legal advice and assistance.
The Society sent a letter to DIAC on 17th May 2012 asking the Minister to advise what safeguards are in place to ensure that the guardianship arrangements for UAMs facilitate access to independent legal advice and assistance. To date the Society is still awaiting the Minister?s response on this matter.
MENTAL HEALTH AND MEDICAL ASSISTANCE
It is well documented that detention has a dramatic impact on mental health ? current research indicates that excluding pre-existing experiences of torture and/or trauma, 3% of people in detention at three months experience a mental illness. At two years this increases to nearly 50%.
The Mental Health Council of Australia reports high rates of self-harm in detention with 1100 self-harm incidents reported in 2010/2011 or up to three or four a day being reported. These rates place suicidal behaviour by people in detention at more than 26% higher than in the general community[8].
Northern Territory Council of Social Services (NTCOSS) reports that the Royal Darwin Hospital has seen a child as young as nine years old admitted for self-harming.
Because the majority of asylum seekers (up to 90%) go on to receive permanent visas, a long-term settlement problem associated with poor mental health outcomes is being created.
The Society is concerned about the long-term issues created by the detention system. Issues of particular concern identified are: levels of mental illness; levels of self-harm; the impact on relationships and parenting capacity; the reported levels of use of medication to cope and the long term impact of this; and the impact of people?s capacity to contribute to Australian society in terms of work after release. In addition the capacity to provide any therapeutic or recovery services while people were still being subject to the same factors upon is questioned.
Darwin Asylum Seeker Support and Advocacy Network (DASSAN) stated in a press release of 20 March 2012[9]: ?Northern immigration detention centre (NIDC) and immigration detention centres generally are not fit places to house human beings for long periods of time. The levels of self-harm inside the NIDC are now out of control. In the past few weeks there have been four people attempt suicide by hanging themselves, a large number of self-harm incidents and a number of hunger strikes?.
The number of self-harm and suicide attempts of asylum seekers in immigration detention centres in Darwin in 2011 can be counted in the hundreds[10].
The number of people attempting suicide as a result of detention is increasing. There has been a self-harm epidemic occurring in Darwin detention centres with reports of up to five asylum seekers a day attending the Emergency Department (ED) of Royal Darwin Hospital (RDH) after self-harming. These people are usually discharged the same day and returned to detention[11].
The Society investigated and spoke with Dr Paul Bauert, President of the Australian Medical Association (AMA) NT, who confirmed that doctors are treating up to five asylum seekers each day at RDH, on some days the number is even higher. Dr Bauert said that the hospital?s resources are overstretched and RDH is not able to cope with the pressure. ABC News reports that since the Wickham Point Centre opened in January 2012, demand for ambulance services has surged, causing paramedics to miss high-priority cases elsewhere[12].
CONCLUSION
Australia is a signatory to International Conventions such as the 1951 Convention relating to the status of Refugees (Refugee Convention) and 1967 Protocol as well as the 1949 Geneva Conventions and Additional Protocols, and therefore has certain obligations to fulfil.
Asylum seekers are people within our society that are particularly vulnerable to disadvantage and human rights abuses. Natural justice and procedural fairness principles dictate that those subject to legislative provisions ought to have access to legal representation to assist them to address any concerns.
The level of legal need is higher in the Northern Territory than in other parts of the country. Legal assistance providers including those providing legal information and help in relation to refugee and immigration matters are under-resourced and advocacy assistance to asylum seekers in the Territory is limited.
Who will be filling the vacuum when NTLAC terminates its service for asylum seekers in August 2012? The Commonwealth and the Northern Territory Government have been ignoring this question.
Larger jurisdictions have a significant profession which includes a large pool of pro bono practitioners. Importantly the private profession in the Northern Territory consists of approximately 50 firms, the bulk of whom are sole practitioners. Many elect not to absorb this work for commercial reasons. The Society?s Pro Bono Clearing House faces challenges specific to the region to meet the calls for assistance as the small pool of practitioners is already stretched.
To achieve improvements in access to justice for asylum seekers in the Northern Territory, legal assistance ought to be funded at all stages of resolution of people?s immigration status, including increased resources for NTLAC and IAAAS agents for judicial review assistance.
Without further legal assistance many persons within Australia?s immigration detention network are unable to obtain timely, accurate legal and migration assistance or to fully understand and exercise their legal rights. This is not only having an impact on the basic individual rights of detainees, but it is also exacerbating delays in visa processing, increasing pressure on the courts and resulting in greater costs to the general community.
The Society called upon both governments to support the Society?s call for the establishment of a legal assistance service for people in detention. Both governments denied the Society?s enquiry.
Natural justice and procedural fairness principles dictate that those subject to legislative provisions ought to have access to legal representation to assist them to address any concerns.
It is thus essential and overdue that asylum seekers have access to an independent legal advice service and appropriate support in the Northern Territory. The Society calls upon the Panel to take this matter into account when providing policy advice and recommendations to the Government.
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[1] Statistics provided to the Society by DIAC.
[2] Statistics provided to the Society by DIAC.
[3] Response from the Minister for Justice and Attorney-General on 14th June 2012 in regards to the Law Society?s enquiry.
[4] Statistics provided to the Society by DIAC.
[5]http://endchilddetention.org/wp-content/uploads/2012/06/Infographic-Australia_A3.pdf[6]http://endchilddetention.org/wp-content/uploads/2012/05/Myths-Facts-of-child-detention-Australia-May-2012.pdf[7]http://endchilddetention.org/wp-content/uploads/2012/06/Infographic-Australia_A3.pdf[8] Mental Health Council of Australia (2012): Fact sheet. Mental Health Care for Refugees and Asylum Seekers in Immigration Detention Centres: http://www.mhca.org.au/index.php/component/rsfiles/download?path=Factsheets/Fact%20Sheet.%20Mental%20Healthcare%20for%20Refugees%20and%20Asylum%20Seekers%20in%20Immigration%20Detention%20Centres..pdf&Itemid=539http://dassan.weebly.com/dassan-press-releases.htmlhttp://dassan.weebly.com/uploads/8/2/7/1/8271022/media_release_51211.pdf Australian Medical Association and ABC News 20 March 2012: http://www.abc.net.au/news/2012-03-20/darwin-hospital-struggling-with-self-harm-asylum-cases/3900116[12]http://www.abc.net.au/news/2012-07-05/bowen-detention-centre-visit-follow/4112848
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