Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697642001805.pdf (Australia)
Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre Submission to the Legal and Constitutional Affairs References Committee January 2017 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 55 UNICEF Australia submission regarding serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre 1.
UNICEF Australia 1.1.

UNICEF is a multilateral organisation that works in over 190 countries to promote and protect the rights of children.

UNICEF supports child health and nutrition, clean water and sanitation, quality basic education for all boys and girls and the protection of children from violence, exploitation, abuse and HIV.

1.2.

UNICEF is unique among world organisations in our rights based and participatory approach to working with children and young people.

1.3.
1.3.

UNICEF Australia is a National Committee of UNICEF which advocates for the rights of all children and works to improve public and government support for child rights and international development.

2.

Introduction 2.1.


UNICEF acknowledges that a number of agencies, including the United Nations High Commissioner for Refugees (UNHCR) and the Australian Human Rights Commission, have referred to the harmful nature of the arbitrary detention of asylum seekers, including children in the Regional Processing Centre (RPC) on Nauru, and have pointed out how such detention is contrary to international law.
Those agencies have also described the detention, its conditions and decision-making regarding children in the Regional Processing Centre as contravening the best interest of the children held there.1 2.2.

Since asylum-seeking children have been transferred and held in the Regional Processing Centre, successive reports have not only highlighted concerns about conditions for children but also raised specific allegations of abuse by staff and other detainees.
UNICEF Australia notes the most recent report by the Child Protection Panel, Making Children Safer: The Wellbeing and protection of children in immigration detention processing centres.2 While UNICEF commends the appointment of the intendent panel, we have serious concerns about the panel’s findings, in particular, the premature closure of child abuse investigations, miscategorisation of incidents and a lack of capacity to respond to complex incidents.
This 1 See UNHCR submission (27 April 2015) to Senate Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru; UNHCR, 2013; Australian Human Rights Commission, 2014.
2 Making Children Safer: The Wellbeing and protection of children in immigration detention processing centres: http://www.border.gov.au/ReportsandPublications/Documents/cpp-report-making-children-safer.pdf 2 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 55 UNICEF Australia submission regarding serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre report again sets out a number of the ongoing and systemic failures to protect refugee children on Nauru.
2.3.

UNICEF Australia acknowledges that the Government of Nauru has taken significant steps to improve its national child protection system, including the introduction of the Child Protection and Welfare Act.3 While a vital piece of legislation that better aligns Nauru with international human rights standards, in practical terms further systems development, capacity building and human and financial resourcing is required to ensure that the Child Protection and Welfare Act can be properly implemented.
2.4.

UNICEF asserts that the absence of a robust, effective child protection system on Nauru is a major factor that has led to the systemic failure to protect asylum-seeking and refugee children from abuse and self-harm.

We further recognise the importance of a functioning and adequately resourced child protection for all Nauruan children.

2.5.

UNICEF reiterates its position that the Australian Government retains legal responsibility for the rights and wellbeing of people it transfers to Nauru.
That responsibility includes securing durable solutions for those found to be owed protection.4 2.6.

UNICEF Australia has welcomed the announcement of the Turnbull Government that an arrangement has been reached with the federal government of the United States to resettle those who refugees currently on Nauru and Papua New Guinea (U.S. - Australia Arrangement).
Indefinite detention is not a sustainable or a humane option for children, families and people seeking asylum, and the U.S. - Australia arrangement has the potential to provide a durable solution for children and families to start rebuilding their lives.

2.7.
2.7.

The Australian Government’s current policy settings to deter irregular maritime voyages to Australia – which include the transfer of asylum seekers to Nauru and Manus Island for processing and settlement – were never intended to be a permanent solution.
Rather, these measures were designed as a ‘circuit-breaker’ until such a time that a genuine regional cooperation framework could be implemented.5 3 Child Protection and Welfare Act 2016: http://ronlaw.gov.nr/nauru_lpms/index.php/act/view/1186 4 UNICEF Australia and Human Rights Law Centre, Submission to the Senate Inquiry into Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru, (13 May 2015).
5 Report of the expert panel on asylum seekers, August 2012: http://artsonline.monash.edu.au/thebordercrossingobservatory/files/2015/03/expert_panel_on_asylum_seek ers_full_report.pdf 3 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 55 UNICEF Australia submission regarding serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre 2.8.
If Australia collaborates with other states in the region to increase the scope and quality of protection, and provide access to durable solutions, then the need for people to take dangerous boat journeys is likely to be significantly reduced over time.
Therefore, UNICEF encourages the Australian Government to increase its investment in regional protection so that asylum seekers have viable options including access to health, education, and working rights, and thereby minimising the need for dangerous journeys by land or sea.

3.

Parameters of this submission 3.1.

This submission is primarily based on a Review of the Child Protection System in Nauru commissioned by the Ministry of Home Affairs (MOHA) in Nauru and UNICEF Pacific.6 3.2.
The Child Protection System review in Nauru focused primarily on the protection situation of local Nauruan children: access (physical and linguistic) proved too challenging to include children living in the Regional Processing Centre and other children living in the community who have applied for refugee status as well as non-Nauruan children from non-English speaking backgrounds (for example Chinese).

3.3.
However, numerous reports available on child protection issues facing asylum seeking and refugee children were considered as part of the desk review for the report, including the Physical and Mental Health Subcommittee of the Australian Joint Advisory Committee for Nauru Regional Processing Arrangement (2014), the Australian Human Rights Commission (2014) and Philip Moss (2015).7 In addition, as all children are under the legal jurisdiction of the Government of Nauru, the legal review by its nature encompassed all children.
3.4.

UNICEF Australia welcomes the United States resettlement arrangement announced by the Australian Government in November 2016.

We anticipate that children and their families may be prioritised for resettlement under this arrangement.

We urge the Australian Government to find feasible and appropriate third country options for children and others who may not be accepted into the United States Refugees Admissions Program.

4.
4.

Guiding frameworks and principles This submission is informed by the following guiding frameworks and principles: 6 Review of the child protection system in Nauru, 2015: https://www.unicef.org.au/Upload/UNICEF/Media/Documents/Nauru-ChildProtection-Review.pdf 7 Physical and Mental Health Subcommittee of the Joint Advisory Committee for Nauru Regional Processing Arrangement of a Nauru site visit, 16–19 February 2014; Australian Human Rights Commission, 2014; Moss, 2015.
4 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 55 UNICEF Australia submission regarding serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre  UNICEF’s global position is that children should not be detained based on their immigration status, or that of their parents.8  Convention on the Rights of the Child 1980 (the Children’s Convention 1989);  Convention on the Elimination of Discrimination Against Women 1979;  The 1951 Convention Regarding the Status of Refugees;  Best Interests of the child as a primary consideration (Article 3, CRC);  Appropriate protection and assistance for minors who seek refugee status or who are recognised as refugees (Article 22(1), CRC);  Protection from all forms of violence, abuse and neglect (Article 19, CRC);  Right to non-discrimination (Article 2, CRC);  Right to life, survival and development (Article 6(2), CRC);  Prohibition of torture or other cruel, inhuman or degrading treatment or punishment (Article 37(a), CRC);  Detention as a measure of last resort and a prohibition of arbitrary detention (Article 37(b), CRC and GENERAL Comment 10 CRC Committee).
5.

Factors contributing to the abuse and self-harm alleged to have occurred.

National child protection framework 5.1.


In 2016, UNICEF Pacific Office and the Government of Nauru released a joint Review of the Child Protection System in Nauru.9 The aim of the review was to (i) develop a full picture of the child protection system including policies, legislation, a map of services and an understanding of community attitudes towards children, and (ii) to develop recommendations to strengthen the existing framework.

5.2.
5.2.

The research was conducted through an extensive desk review, interviews with key informants with current knowledge of child protection approaches and social welfare, and group discussions more broadly across the community.

The review identified primary child protection issues as raised by key informants and community leaders and stakeholders, but does not provide findings on prevalence.
Primary protection concerns include sexual abuse, physical abuse, harsh discipline, neglect and witnessing family violence.
8 Uprooted: The growing crisis for refugee and migrant children, UNICEF 2016: https://www.unicef.org/publications/index_92710.html 9 Review of the child protection system in Nauru, 2015: https://www.unicef.org.au/Upload/UNICEF/Media/Documents/Nauru-ChildProtection-Review.pdf 5 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 55 UNICEF Australia submission regarding serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre 5.3.
The review focused primarily on the protection situation of Nauruan children.

Restrictions on access (both physical and linguistic) proved too challenging to include children living in the RPC or refugee children living in the Nauru community.

However, the review provided an understanding of the local child protection system and its capacity, or limitations, in responding to the complex needs of asylum seeker and refugee children and families.

5.4.
5.4.

The review found that the Government of Nauru has taken significant steps to improve the national child protection system.

In 2016, the government passed the Child Protection and Welfare Act.10 The Act is a vital piece of legislation that better aligns Nauru with international human rights standards.
The legislation has provisions that give the Ministry of Home Affairs a clear mandate to take action to protect children from harm, provides investigation powers and allows for children to be moved from situations of harm to safe caregivers.

Importantly, the legislation introduces a mandatory reporting requirement for cases of child sexual abuse.

5.5.
5.5.

While this is a positive development, in practical terms further work and resourcing is required to ensure that the Child Protection and Welfare Act can be properly implemented.

The child protection system in Nauru, at this stage, is developing and is currently not well positioned to respond adequately to the complex needs of refugee children and their families.
Further efforts and investment is required to strengthen the basic building blocks of the child protection system, train skilled staff, improve the referral and case management systems and address incidents of gender-based violence and to support children with disabilities.

5.6.
5.6.

Without a well-functioning and adequately resourced child protection system, it is difficult to understand how successive Australian governments have considered offshore processing a safe or sustainable policy decision for refugee children and their families.

In the absence of key systems, including basic child protection services, offshore processing arrangements cannot reasonably be considered in their best interests.

6.
The effect of Part 6 of the Australian Border Force Act 2015 10 Child Protection and Welfare Act 2016: http://ronlaw.gov.nr/nauru_lpms/index.php/act/view/1186 6 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 55 UNICEF Australia submission regarding serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre 6.1.
UNICEF Australia is deeply concerned about the secrecy and disclosure provisions in Part 6 of the Australian Border Force Act 2015 and the potential for these provisions to undermine Nauru’s nascent child protection system.11 6.2.

These provisions make the discloser of protected information by Commonwealth Government staff and contracted service providers a criminal act, punishable by up to 2 years in prison.

6.3.
6.3.

An effective child protection system depends on an environment of openness and transparency where professionals working in the health, education, justice and social welfare sectors are permitted, in fact required, to report incidents of child abuse.

6.4.
6.4.

The provisions in the Australian Border Force Act 2015 could discourage the disclosure of serious incidents of physical and sexual violence against women and children detained at the RCP and creates an environment of secrecy that fundamental undermines Nauru’s nascent child protection system.

7.

Child protection investigations 7.1.


Numerous reports have demonstrated the absence of child protection policies and procedures in Nauru that would are required to adequately deal with reports and the investigation of abuse and self-harm of asylum seeking children on Nauru.12 7.2.

Additionally, UNICEF has serious concerns about the capacity of the Nauruan police to investigate incidents of child abuse, particularly in relation to incidents of gender based violence and sexual assault.
The Nauruan Police have acknowledged that they currently lack adequate forensic training and equipment needed to be able to properly conduct investigations.13 8.

Recommendations 8.1 UNICEF Australia notes recommendations made through previous submissions and major reports including the At What Cost?

Report (2016).
Report (2016).

11 Australian Border Force Act 2015: https://www.legislation.gov.au/Details/C2016C00650 12 Physical and Mental Health Subcommittee of the Joint Advisory Committee for Nauru Regional Processing Arrangement of a Nauru site visit, 16–19 February 2014; Australian Human Rights Commission, 2014; Moss, 2015; Making Children Safer: The Wellbeing and protection of children in immigration detention processing centres, 2016.
13 Review of the child protection system in Nauru, 2015: https://www.unicef.org.au/Upload/UNICEF/Media/Documents/Nauru-ChildProtection-Review.pdf 7 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 55 UNICEF Australia submission regarding serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre 8.2 UNICEF Australia recommends the following measures to prevent violence, abuse, neglect and exploitation on Nauru: 1.
That the Australian Government provides technical support to finalise the national child protection policy framework and strategy with a comprehensive implementation plan including an associated monitoring and evaluation framework, comprehensive case management/referral protocols and mandatory reporting procedures.

2.
2.

That the Australian Government provides technical and financial resources to deliver quality training to members of the judiciary, lawyers, teachers, and civil society groups in Nauru on the Child Protection and Welfare Act 2016.

3.

That the Australian Government provides technical and human resources to build the capacity of the social welfare sector in Nauru, including quality training on child well-being, welfare and protection for MOHA and its divisions.

4.
4.

That the Australian Government provides technical and financial resources to assist in addressing gender based violence, and violence against children and implementing the recommendations of the Family Health and Support Study (2014).14 5.

That the Australian Government repeals or substantially revises Part 6 of the Australian Border Force Act 2015.

6.
6.

That the Australian Government considers options for redress and justice for refugee children who experienced serious abuse while under their care on Manus Island and Nauru.

9.
9.

Contact 14 Review of the child protection system in Nauru, 2015: https://www.unicef.org.au/Upload/UNICEF/Media/Documents/Nauru-ChildProtection-Review.pdf 8 Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional ProcessingCentre, and any like allegations in relation to the Manus Regional Processing CentreSubmission 55