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Modern Day Torture: Government-sponsored Neglect of Asylum Seeker Children under the Australian Mandatory Immigration Detention Regime (Article) [2003] JSPL 14; (2003) 7(1) Journal of South Pacific Law

Modern Day Torture: Government-sponsored neglect of asylum seeker children
under the Australian mandatory immigration detention regime

By: Barbara Rogalla^[#]

A six-year old child lies across his father’s shoulder ^[1] His eyes lack purposeful expression and his skin is pale. His number is LEE 67. Shayan Badraie’s parents brought him from Iran to Australia in their quest for refugee status. But they came by boat and they arrived without visas. The world may have never known about Shayan’s plight, were it not for a hidden camera inside the Villawood detention centre that secretly recorded the damage Shayan suffered as the result of his detention. When the television documentary went to air in August 2001, Shayan had been inside immigration detention for fifteen months. One day Shayan stopped talking. As time went by he also stopped eating and drinking. During a cycle of nine admissions for ‘rehydration and drip feeding’ to the Westmead Children’s Hospital in Sydney, the child recovered, but became ill again when he returned to detention. ^[2]

In October of 2001 Shayan was one of 663 children in immigration detention, including 73 unaccompanied minors.^[3] Their detention is mandatory and is not the result of judicial process. A Commonwealth Ombudsman report in March 2001 reveals that:

Of the population still in detention at [2 Feburary 2001] seven children were born in detention and remained in detention, the oldest having been some 19 months in detention. ... I am aware of a child born in detention in July 1996 and still in detention in April 2000.^[4]

Australian legislation stipulates that such detention is for administrative purposes, to assess if individuals qualify as refugees under the 1951 Convention. The terms of imprisonment appear excessive for travelling to Australia without valid documents, particularly as there is no upper limit on the length of detention.

Some Australian politicians say that such detention is necessary for Australia to safeguard her borders and exercise her national sovereignty. The author argues that mandatory detention damages children, and that the government’s refusal to prevent this, and to enforce child protection laws, makes it culpable of torture of children.

The number of asylum seekers en route to Australia began to decline during the 2000/2001 financial year. Such decline was due to an agreement between Indonesia and the United Nations, whereby Australia intercepted the boats at sea, and returned the asylum seekers to Indonesia. ^[5] It was an outcome of this agreement that resulted in the South Pacific’s involvement in Australia’s detention of refugees. In August 2001, the Norwegian freighter HMAS Tampa picked up 434 survivors from the sunken vessel Palapa in the Indian Ocean. In a subsequent ‘shock decision by the government’,^[6] Australian Navy commandos stormed the Tampa and prevented her from entering Australian waters. This incident gave rise to the ‘Pacific Solution.’

Under the ‘Pacific Solution’ Australia’s navy intercepts asylum seekers at sea, and forcibly moves them to detention centres on Nauru and Manus Island, Papua New Guinea. In exchange for a ‘$20 million assistance package,’ which not only included payment for providing the detention services, but also measures to improve the living conditions for the local population of the cash-strapped nation, Australia persuaded Nauru to accept and process asylum seekers to ensure their refugee claims would not be heard in Australia.^[7] One month later, a deal with Papua New Guinea resulted in a detention centre on Manus Island.^[8] In February 2002 there were 1,159 detainees in the Nauru camp and 356 detainees on Manus Island.^[9]

The ‘Pacific Solution’ incorporates major legislative and policy changes that contribute to further the pain and suffering of asylum seeker children. Apart from the stress of surviving a hazardous voyage at sea, the forcible removal to an unknown and unwanted destination by the military, can only add to the trauma. The conditions in the Pacific Island camps also leave a lot to be desired. The Head of the Federal Government’s advisory group on detention informs the Senate that Nauru is ‘easily the worst’ of all detention centers, where interruptions to fresh water supplies and electricity failures contribute to physical hardship.^[10]

Government policy places children into these conditions of pain and suffering. Systematic government involvement in such practices could amount to torture, as defined by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Australia is a signatory to this convention, but Australian domestic law ensures that prosecution for the crime of torture may occur only in very limited circumstances.

OF PRIVATE PAIN AND PUBLIC SCRUTINY

Effects of detention on mental health

Life in detention centres is sad. Australia has put in place an impersonal system. Harm does not result from the deliberate action of individuals, but from a bureaucratic and mechanistic process. Dr Sultan, a medical practitioner from Baghdad who himself was detained at the Villawood centre for over two years, coined the term ‘detention syndrome.’ The detention syndrome is a clinical condition that arises directly as the result of being a detainee inside an immigration detention centre.

The experience of detention leads to a day-to-day mounting of stress caused by the environment of the facility where several factors — residential, administrative, and judicial — converge to undermine an individual’s mental state .^[11]

As described by Dr Sultan and Dr. O’Sullivan, the detention syndrome evolves in four stages. Initially detainees enter into a ‘non symptomatic stage’, where the dismay of detention is mitigated by hope that they will soon have a successful claim. As hope disappears and the prospect of forcible repatriation or indefinite detention becomes more apparent detainees enter into increasingly more severe depressive stages. The most severe is the ‘tertiary depressive stage’, which is characterised by ‘hopelessness, passive acceptance and an overwhelming fear of being targeted or punished by the managing authorities’. ^[12]

Accordingly, the initial euphoria of surviving the voyage to Australia (or at least near to Australia, for detainees taken to Nauru or Manus Island) is replaced by passive numbness and distrust. This attitudinal change is nurtured by the indefinite incarceration, by the fear of being sent back to a country that persecuted and possibly tortured them, and by harsh and traumatic conditions within detention.

Sultan and O’Sullivan also found that in this environment children are particularly at risk of developing psychological disturbances, as parents are unable to provide the expected parental support.^[13] In another clinical study, twenty-one out of twenty-two detained children in Australia either developed or increased their psychiatric problems. The researcher summarises the findings as a ‘nightmare’ and ‘systemic child abuse’.^[14]

Evidence of systematic psychological damage is also emerging from camps in the Pacific. The head of psychiatric services at Nauru resigned in protest over a ‘mental health nightmare.’ His observations also confirm worsening of psychiatric problems, as the direct result of ongoing detention.^[15]

Intentional neglect: A form of torture

Child neglect, even with resulting mental illness does not, by itself, constitute torture. But systematic involvement of a government in this process may amount to torture.

Within the framework of human rights, the agreed definition of torture comes from the Convention against Torture:

... ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.^[16]

This definition sets torture apart from other cruel, inhuman or degrading treatment and punishment, which are also addressed by the Convention against Torture. To establish torture, four criteria must be met. There must be

1) severe pain or suffering, ( physical or mental);

2) intentionally inflicted for the purpose of obtaining information/confession or to punish or intimidate “him” or a third person;

3) with consent or acquiescence of a public official or person acting in an official capacity;

4) which is not pain or suffering from lawful sanctions.

I will now go on to argue that the incarceration of children under the policy of mandatory detention satisfies all four conditions.


1) Severe pain or suffering, ( physical or mental)

The European Court of Human Rights^[17] establishes that inhuman and degrading treatment becomes torture when suffering is intense. Such a severity criterion intimately relates to the personal attributes of victims, such as age, sex, state of health and resilience. Children, because of their age and developmental needs, are especially vulnerable.

Various references cited in this article describe the damage that detention inflicts on some children. Children who have suffered or witnessed pain and suffering before they arrive in detention, are likely to reach torture threshold very quickly within the prison environment. It is therefore crucial that children from refugee populations are not exposed to the harsh realities of mandatory detention.

Even an ‘innocent’ decision, such as room allocation, can have a detrimental effect. A 15-year-old felt terrorised when he was housed with men from the ethnic group which had persecuted him and his family in his homeland.^[18] Routine awakening by guards during random night patrols, the use of flashlight beams and the repeating of detainee names can lead to children developing fears about sleeping. One child resisted being put to bed, only to wake later exhausted, screaming with nightmares.^[19] Waking detainees and shining a torch in their faces during hourly watch rounds possibly contributes to security. But systematic sleep deprivation is also a widely recognised form of torture.