11:24am Thursday 23 November 2017

Protecting children from abuse in detention requires more than mandatory reporting

The best way to ensure that children are not subjected to abuse in detention is to not have them in detention in the first place.

Protecting children from abuse in detention requires more than mandatory reporting

Khanh Hoang, Australian National University

The shadow immigration minister, Richard Marles, introduced the Migration Amendment (Mandatory Reporting) Bill into the House of Representatives earlier this week. Labor’s bill seeks to amend the Migration Act to require that Australian Border Force (ABF) employees working in detention centres report child abuse.

If passed, employees will be required to notify the ABF commissioner, in writing, within 24 hours of forming a belief that a minor has suffered or is suffering sexual or physical abuse. The commissioner must then pass on the information to the Australian Federal Police or relevant police and child welfare authorities in Papua New Guinea or Nauru.

The bill’s intention is to “enhance the safety of children in detention”. Its mandatory reporting provisions are modelled on Victoria’s Children, Youth and Families Act.

The bill comes amid allegations of abuse in offshore detention centres. These have been the subject of Senate inquiries, most recently into allegations of abuse on Nauru. It also aims to counteract the secrecy provisions of the Border Force Act, which imposes a two-year jail sentence for employees who disclose protected information.

According to Marles:

There should be absolutely no doubt that staff, including medical contractors working in these facilities, not only have the freedom to report abuse, but have a legal obligation to do so.

Interaction with the Border Force Act

The Border Force Act came into force on July 1 this year. This made it an offence for an employee to record or disclose protected information. There are a number of exceptions, including where the:

… record or disclosure is required or authorised by or under a law of the Commonwealth, a state or a territory.

If passed, Marles’ bill will ensure that employees who report child abuse to the ABF commissioner are protected from prosecution. However, there are reasons to query whether, in practice, the proposed legislation is necessary.

It is hard to imagine anyone witnessing child abuse who would not want to report it. ABF employees are already protected from criminal prosecution for disclosing child abuse internally within the ABF. The Public Interest Disclosures Act provides protection for the reporting of “disclosable conduct”, which includes conduct that contravenes a law of the Commonwealth, state or territory, or conduct that results in danger to the health and safety of individuals.

The Border Force Act’s big problem is not the way it regulates internal disclosures, but the way it restricts disclosures outside government in the public interest.

It remains the case that whistleblowers who seek to report child abuse to the media or other organisations must seek protection within the limited exceptions under the Border Force Act or the Public Interest Disclosure Act.

Will Marles’ bill make a practical difference?

While the bill requires the ABF commissioner to pass allegations onto relevant local authorities, this does not guarantee adequate investigation or prosecution of abuses. In relation to allegations of abuse on Nauru, the Senate committee report on the circumstances on Nauru expressed concern about:

… the state of the rule of law there, and the absence of a comprehensive legal and policy framework for child protection.

There is no child protection agency or legislation in Nauru.

Peter Law, the former resident magistrate on Nauru, submitted to the Senate committee that there was an:

… apparent failure of the NPF [Nauruan Police Force] to properly investigate and charge perpetrators of incidents reported at the Processing Centre concerning allegations of physical and sexual assaults against women and children identified in the Moss Report.

Of the 50 cases that have been referred to the Nauruan police over the last two-and-a-half years, only five charges have been laid. Only two convictions have been recorded.

Requiring mandatory reporting of child abuse is good. It reinforces a culture of moral responsibility. But disclosure to police will count for little if, as reported, Nauruan and PNG police are underresourced, unable or unwilling to prosecute the crimes.

Australia’s continued reliance on the legal system and police force in Nauru in the face of allegations of child abuse is an unjustifiable attempt to avoid accountability and responsibility.

Rethinking our approach

The serious allegations of child abuse in offshore detention centres should cause a rethink. This bill is, in one sense, welcome. But it is a reactionary measure. It seeks to compel disclosure during or after the incidents of child abuse.

A proactive policy is needed. The best way to ensure that children are not subjected to abuse in detention is to not have them in detention in the first place.

Reform should start with implementing recommendations made by the Human Rights Commission in its Forgotten Children report. These include that:

  • children in Australian detention centres should be released into the community;

  • no child should be taken to a regional processing country where they will be detained unless that country can provide a rule-of-law regime and conditions that meet international standards;

  • the Migration Act should be amended to provide that children should only be detained for strictly limited periods necessary to conduct health, identity and security checks; and

  • children currently and previously detained, at any time since 1992, have appropriate access to government-funded health support.

As of August 31, 93 children were still held in detention centres on Nauru. If Australia is serious about ending child abuse in detention centres, that is 93 too many.

Further reading: Are doctors ethically obliged to keep at-risk children out of detention?

Khanh Hoang, Associate Lecturer, ANU College of Law – Migration Law Program, Australian National University

This article was originally published on The Conversation. Read the original article.

The Australian National University, Canberra


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