By Dr George Venturini*

Testing the thesis … Disdain for the importance of human rights (continued)

The Report provided unprecedented direct evidence of the negative effect of immigration detention on children. Prolonged detention was clearly and unequivocally shown to have serious negative effects on the mental and emotional health, as well as the development of these children. The Report contained the following findings:

• The mandatory and prolonged immigration detention of children is in clear violation of the Convention on the Rights of the Child, including Article 24(1) which provides that all children have the right to the highest attainable standard of health.

– Detention creates and compounds mental health problems in children. Children in immigration detention have significantly higher rates of mental health disorders than children in the Australian community. Clinical assessments by doctors working in detention facilities revealed that 34 per cent of children in detention had moderately severe to very severe mental health problems. Less than 2 per cent of children in the Australian community have problems at this level.

– There are high rates of self-harm by children in detention. In a 15-month period, from January 2013 to March 2014, 128 children in detention, aged 12 to 17 years, engaged in acts of self-harm, including attempted suicide. One 15-year-old boy in detention in Darwin told Inquiry staff: “I don’t feel safe because of my own self”.

– Children are detained in close confinement with adults who suffer high levels of mental illness. Thirty per cent of adults detained with children have moderate to severe mental illnesses.

– Children have been exposed to unacceptable levels of violence in detention. From January 2013 to March 2014 the following incidents were reported from detention centres where children were held: 207 incidents of actual self-harm; 210 incidents of voluntary starvation – 27 of which included children; 436 incidents of threatened self-harm; 57 serious assaults; 233 assaults involving children; and 33 incidents of reported sexual assault – the vast majority involving children.

– The harsh and cramped living conditions on Christmas Island created particular physical illnesses among children. On Christmas Island many children shared a tiny room of 2.5 × 3 metres with up to four people.

– The children detained indefinitely in Nauru are suffering from extreme levels of physical, emotional, psychological and developmental distress. While the Inquiry team were not able to visit Nauru, the evidence … received about the conditions through submissions and testimony at public hearings was shocking. [The investigators] received reports that children and their families are being detained in very hot and cramped conditions in vinyl tents, with no privacy or air-conditioning, serious water shortages and problems with cleanliness and hygiene. The Inquiry also received evidence from staff working in Nauru of incidents of harassment, bullying and abuse of children. The recent report from Philip Moss into the conditions in the detention centre in Nauru confirmed many of the Commission’s concerns.

Key recommendations of the Report are: 1) That all children and their families in detention in Australia and Nauru be released as soon as possible; 2) That legislation be enacted so that children may only be detained for as long as is necessary for health, identity and security checks; and 3) That no child be sent offshore for processing unless it is clear that her/his human rights will be respected.

The finding that detention causes harm to the mental health of children is not new. The Commission’s report following its first National Inquiry into children in immigration detention, released in 2004, found that children in immigration detention for long periods of time were at high risk of serious mental harm. Since that time successive Australian Governments, and the Australian public, have been on notice about the human cost of Australia’s mandatory detention system.

Despite the recent detailed findings and recommendations in the Forgotten children report, at the end of March 2015 there were still 124 children in detention in Australia, and 103 children detained in Nauru. There is an urgent need to remove these children from these detention environments which are causing them harm.

Medical professionals who have witnessed the health impact of detention first-hand can and do provide powerful evidence against the policy of mandatory detention. Medical professional organisations including the Australian Medical Association, the Royal Australian and New Zealand College of Psychiatrists and the Royal Australasian College of Physicians have accordingly taken a public stance against mandatory detention.

The Commission’s Report was slammed as “partisan” by the Abbott Government but the report is a wake up call for both sides of politics.

The Abbott Government sought the resignation of the Professor Triggs two weeks before it launched an extraordinary attack on the Commission over the Report.

The request was conveyed orally by an official on behalf of Attorney-General Senator George Brandis. It was rejected outright by Professor Triggs, who saw it as an attack on the independence and integrity of the Commission and herself.

The U.N.’s Working Group on Arbitrary Detention called on ‘national authorities’ to respect the role and “high reputation” of Professor Triggs.

No grounds were given for seeking Professor Triggs’ resignation. She was simply told that “some other opportunity” would be available to her if she resigned.

The approach came a fortnight before the government tabled the Commission’s Report calling for a royal commission into the detention of children under Labor and Coalition governments since 1992 on the last possible day available under convention.

Prime Minister Abbott branded the Report a “transparent stitch-up“, adding that the Commission would have been better advised to write former immigration minister Scott Morrison a congratulatory letter for stopping the boats. “I reckon that the Human Rights Commission ought to be sending a note of congratulations to Scott Morrison”, the Prime Minister declared in Parliament on 12 February 2015, [the note to be] “saying. ‘Well done, mate, because your actions have been very good for the human rights and the human flourishing of thousands of people.”

His attacks were echoed by other ministers including Attorney-General Senator Brandis, Mr. Morrison and Immigration Minister Peter Dutton, who is still in that position with the Turnbull Government.

A spokesman for Senator Brandis declined to offer any comment or answer questions submitted by the press, but the Attorney-General and his department secretary, Chris Moraitis, would be facing questions on the issue when they appeared before a Senate Estimates Committee on 24 February 2015.

Senator Ian Macdonald is currently the Chair of the Legal and Constitutional Affairs Legislation Committee. Prior to entering politics the senator had practice as a lawyer, probably having qualified as an amanuensis or articled clerk; he had offices in Ayr, Bowen and Airlie, North Queensland.

Senator Macdonald has led the Liberal Party Senate Team at elections in 1990, 1996, 2001, 2007, and 2013. He is a very, very busy man, involved in many other committees – too busy to read the Report. Nevertheless, he judged it “unnecessary, irrelevant and inaccurate” and “not worth the paper it was written on.” While questioning Professor Triggs before the Senate Committee, Senator Macdonald even boasted that he had not read the Report. He later issued a statement claiming he had read an an addendum which confirmed his decision “not to waste my time on a report which was clearly partisan.” He had read “The actual evidence of the Department of Immigration and Border Protection which commented on the Draft Report, [and] was largely ignored by the A.H.R.C. See the addendum to the Report where the Departments objections are published – but unfortunately mostly ignored.

I did read that addendum to the Report – which confirmed the partisan nature of the Report and confirmed also my decision not to waste my time on a report which was clearly partisan … ”

Professor Triggs appeared before the Committee on 24 February 2015 and refused to comment on the push to remove her when contacted by the press. Nevertheless, she mounted a strong defence of the Commission’s impartiality, saying that it had tabled numerous reports critical of the impact of mandatory immigration detention to the former Labor government and had intervened in the High Court to oppose its so-called ‘Malaysian solution’.

“I am very disappointed that the substance of the report is being ignored for an inaccurate allegation of bias” she said.

The inquiry had been planned to coincide with the 10th anniversary of the Commission’s first investigation of children in detention and was called “when the government was not releasing children and their period of detention had reached unacceptable levels” she said.

Reports raising concerns about the impact of detention on children had been tabled in 2012 and 2013 during the period of Labor rule, she said. “To suggest that, all of a sudden, the Commission concentrated on the issue because there was a new government is a serious misrepresentation of the facts.”

Government criticism of the Report focused on the timing and the fact that it has dramatically reduced the number of children in detention from the peak of almost 2,000 under the former government.

But Professor Triggs said that she welcomed the fall in the number of children in detention under the Abbott Government from around 1,100 to 211 on the mainland and 119 on Nauru. “I totally reject any suggestion that this report is a politicised exercise.”

She also rejected the government’s claim that the Report was out-of-date, saying more than 300 children were still in detention. “This is a document of record, but it is a document of a continuing position in relation to these children.”

The shadow Attorney-General, Mark Dreyfus, said it was shameful that the government had questioned the integrity the Human Rights Commission’s leadership.

“Good governments don’t attack independent institutions, they respect them” he said. “This allegation is deeply concerning. Senator Brandis must urgently explain his actions.”

Greens senator Sarah Hanson-Young, described the move as “bullying and intimidation” and an attempt to shut down dissent. “The government thought it could scare Gillian Triggs out of her job, but it turns out they picked on the wrong person” she said.

Ben Saul, Professor of international law at the University of Sydney, defended Professor Triggs and the Commission, saying that they had performed their roles faithfully: “The Commission’s report on children in immigration detention is a credible, impartial, evidence-based assessment of Australia’s [lack of] compliance with its international legal obligations.”

Tomorrow: Testing the thesis … Disdain for the importance of human rights (continued)

* In memory of my friends, Professor Bertram Gross and Justice Lionel Murphy.

Dr. Venturino Giorgio Venturini devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975 he left a law chair in Chicago to join the Trade Practices Commission in Canberra.