Australia's detention of asylum seeker children amounts to torture

Health professionals have said it for a long time; now it is the official position of the Family Law Court. An immigration lock-up, where people have numbers instead of names, where guards, razor wire and electric fences set the physical and mental perimeters to existence, is no place to bring up children. Yet this is the reality for children who travel in a refugee boat en route to Australia, until they are released from these inhumane conditions.

Because of the damage inflicted, the deliberate detention of asylum seeker children equals torture, as defined by the Convention against Torture and outlawed by all statutes of national and international law. It is my opinion that Australia is in breach of this convention, and therefore guilty of crimes against humanity.

Detained children cannot escape from the cage where they are continually neglected. It would be bad enough if the government simply turned a blind eye to their pain and suffering. But in a curious interplay of politics and the judiciary, the Australian government has written statute law in such a way that the law appears to condone the child neglect that occurs as the logical consequence of the policy of mandatory detention.

Some politicians say that immigration detention is necessary for Australia to safeguard its borders and exercise its national sovereignty. Logic dictates that the systematic incarceration of children destroys, rather than enhances, our national interests. All children should be released at once, together with both parents. Instead, the post-Tampa implementation of the Pacific Solution spreads the nightmare across other Pacific islands.

Of private pain and public scrutiny

Severe damage is inflicted on children by detention. The bureaucratic and mechanistic process damages people who are detained, as the surreal world of the detention centre badly affects their mental states. Dr Aamer Sultan is a medical practitioner from Baghdad with extensive experience in psychiatry. He is also a refugee who was detained at the Villawood centre for over two years. During his detention, he observed that people are overcome with "detention syndrome", a form of psychological damage.

Dr Sultan's initial observations, which were published in the medical journal The Lancet, refer to adults. Subsequent research published by Dr Sultan and Dr Kevin O'Sullivan made it clear that children are particularly at risk of being damaged in detention centres, as parents there are unable to provide the expected parental support. Psychologist Zach Steel from the University of New South Wales treats people who have suffered severe psychological trauma, including those who are victims of the policy of mandatory detention. In a media interview, he has described as a "nightmare" and as "systemic child abuse" the finding that 21 out of 22 children who have been in detention are damaged by the experience.

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.

Intentional Neglect: A form of torture

Child neglect, even if it causes psychological damage, does not automatically 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 United Nations 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.

This definition sets torture apart from other cruel, inhuman or degrading treatment and punishment, which are also addressed by the Convention against Torture. To be defined as 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.

The incarceration of children under the policy of mandatory detention satisfies all four conditions.

1. Severe pain or suffering

During the Northern Ireland case, the European Court of Human Rights established that inhuman and degrading treatment becomes torture when suffering is intense. This intensity relates to how pain and suffering is experienced by the victim, and depends on personal factors, such as age, sex, state of health and resilience. Children, because of their age and developmental needs, are especially vulnerable.

Children who have suffered or witnessed the pain and suffering of others, are likely to reach torture threshold very quickly within the prison environment of the immigration detention centres. 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 that had persecuted him and his family in his homeland. 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. 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.

2. Intentionally inflicted for the purpose of obtaining information/confession or to punish or intimidate "him" or a third person

If children are knowingly placed into conditions of neglect, the damage that inevitably follows is foreseeable. Criminal law stipulates that the knowledge that an act will lead to an outcome equates to intention to create that outcome. Knowing the predictable outcome of the policy of mandatory detention, and nevertheless persisting with it, makes the Australian government culpable of torture of children.

The government has made it clear that, apart from protecting Australia's borders, the policy of mandatory detention is also intended to deter people smugglers from bringing asylum seekers to Australia. Children are incarcerated for the purpose of influencing the actions of "third persons", the people smugglers. Implementation of the Pacific Solution also prevents people from claiming refugee entitlements in Australia, and can be considered a punishment.

3) Consent or acquiescence of a public official or person acting in an official capacity

Torture comes about by the continued refusal of the government to stop the neglect. Government involvement is systematic, because immigration policy precludes any legal means of allowing child refugee applicants without a visa to live in an environment that fosters normal growth and development.

Detained children are not actively mistreated on specific orders from the Australian government. There is no official torturer in the traditional sense: a person who beats a screaming child. But where children are concerned, passive withholding of developmental requirements causes as much damage as active violence. Neglect by policy is just as cruel, unjust, and inhumane as if there were a personal perpetrator. Therefore, the definition of torture needs to be interpreted in a way that challenges mechanistic, systematic, and impersonal neglect. Perfecting torture by a method that dispenses with the necessity of personal interaction during the torture process must not be rewarded.

The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), has responsibility for Immigration Detention Centres, despite a contract with Australasian Correctional Management that indemnifies the government from damages incurred as the result of day-to-day operation of detention services. Ultimately, the duty of care for safety and security of detained asylum seekers rests with DIMIA and cannot be delegated to a private operator. This is a position that DIMIA accepts. Personnel of Australasian Correctional Management, therefore, act in the capacity of "public officials", as they are operating under the non-delegable duty of DIMIA. The same may be said of detention centres at Nauru and Manus Island, who are also there by order of the Australian Government.

4) Does not include pain or suffering from lawful sanctions

Mandatory detention has its legislative basis in the Migration Act 1958. The Convention against Torture assumes that some pain and suffering always occurs, purely because a person is placed in detention. Such pain and suffering is "inherent in or incidental to lawful sanctions", and therefore does not amount to torture.

But systematic child neglect inside the detention centres outweighs the pain and suffering expected from any form of legal detention, and is therefore outside the spirit of the Convention against Torture. Detention under Australian law does not give license to introduce further pain and suffering. Immigration laws should not be extended to the point where they disregard other basic laws, and accept child neglect under the guise of lawfulness.

Torture as a Social Process

Immigration detention is not a legal necessity. It occurs in the absence of judiciary process, as the result of the mechanistic and dispassionate application of the policy of mandatory detention. Asylum seekers who make it alive in rickety boats to the Australian coastline, or even within Australian waters, are automatically kept in custody until the outcome of their refugee claims is decided. Whole family groups are locked up, including their newborn babies.

It is of concern how, from among seventeen applicants for the tender to administer detention services, DIMIA chose a company experienced in the running of jails. Had DIMIA intended to provide processing services rather than prisons, it would have employed social workers, teachers, and specialist counsellors with trauma and torture experience.

Some children have spent years inside the immigration lock-ups. These terms of imprisonment appear excessive for travelling to Australia without valid documents, particularly as there is no upper limit on the length of detention.

In detention centres of the Pacific Solution, isolation is even greater than in the remote centres of Australia. Torture as a social process is an ongoing layering of indignities and ill treatment, leading to psychological damage. Isolation, and the resulting invisibility of detainees provides yet another layer of the social process.
Children have special rights and protection in detention because they are especially vulnerable to abuse and damage. These protections are designed to minimise pain and suffering. By consistently denying these rights, the Australian authorities are inflicting pain and suffering, which in turn ties these denials to torture, as defined by convention.

A government official is available at all times, because each detention centre has a DIMIA manager on site. The presence of the DIMIA manager strengthens the link between events in detention centres and the government's policy of neglect.

Torture Under the Eyes of the Law?

Not only is international law breached. There are several "disclaimers" within national Australian law that seem to make prosecution impossible by our legal system. The 1988 Crimes (Torture) Act only allows for prosecution of torture if the crime was committed outside of Australia. This legislation might pave the way to impunity for acts of torture within Australian territory, but it may apply to Australian officials acting in camps in Papua New Guinea and Nauru, or even on Christmas Island.

In more recent legislation, the Border Protection Act exempts individuals "who acted on behalf of the Commonwealth" from prosecution for criminal or civil offences. Future case law needs to test if this legislation paves the way to impunity not only on board of ships, but anywhere within Australia, Nauru, and Manus Island.

The physical and mental wellbeing of detained children is in jeopardy, as they are exposed to severe pain and suffering. Isolation from mainstream society, secret commercial contracts, and the remote location of most camps within Australia and in the Pacific Islands, provide an ideal environment for torture.

At this very moment, community opinions remain polarised and a humane outcome for detained children is uncertain. It is therefore crucial that the press, individuals and refugee advocacy groups remain vigilant and demand that the government work in an accountable and morally responsible manner.