Legal Herald - by Craig Hill

Human Rights - Legal Herald

HREOC: Programs Diverting Young Indigenous From Jail

November 24th 2008 19:18

Federal Social Justice Commissioner Tom Calma, has released a new report which calls for the 'skilling up' of existing services that work with Indigenous young people with cognitive or mental health issues, in an effort to halt their slide into the juvenile justice system. The report is from the Human Rights and Equal Opportunity Commission (HREOC).

Releasing the report, Preventing crime and promoting rights for Indigenous young people with cognitive disabilities and mental health issues, Commissioner Calma outlined the disturbing fact that Indigenous young people in juvenile justice were at least four times more likely to have an intellectual disability than the general population.

"This report details many stories of young people with cognitive disabilities or mental health issues - such as developmental disability or autism - who have fallen through the cracks of social services and ended up in custody," Mr Calma said.

"We need to strengthen early detection and assessment programs and give health workers, educators and the judiciary the tools that can help them distinguish a cognitive or mental health problem from bad behaviour," he said.

Rather than reinventing the wheel, Mr Calma said the report profiled successful holistic early intervention programs that were already making a difference in young people's lives.

The Commissioner said that promising practices such as Tirkandi Inaburra Early Intervention Program in South Western NSW should be replicated around the country.

Tirkandi, an Aboriginal community-controlled early intervention centre, provides a culturally-based residential program for 12-15 year old Aboriginal boys at risk of falling into the juvenile justice system. It is the only program of its type in Australia, providing educational, recreational, life and living skills, and cultural awareness activities to develop skills and abilities while strengthening self-worth, cultural identity and resilience.

Tirkandi Inaburra Executive Officer Colleen Murray said while they don't target young Indigenous people with cognitive disabilities or mental health issues, they make up a sizeable proportion of the Centre's clients who are achieving good results.

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Posted By: Craig Hill - Category: Human Rights

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FOI Cover Up By Immigration Department

November 22nd 2008 06:06

A tribunal has found the Immigration Department was wrong in refusing to release 282 documents, concerning Dr Mohamed Haneef. Only one document, about the Immigration Minister's actions, was exempt, as it might be "misinterpreted by the public".

The findings are by the Administrative Appeals Tribunal (AAT) under the Freedom of Information Act (FOI). The documents were from various government departments, and concerned the cancellation of the passport of Dr Haneef, a Gold Coast physician. Dr Haneef was wrongly accused of terrorism related offences, and his detention was the longest without charge in recent Australian history.

Dr Haneef's supposed crime was that he gave his phone SIM card to his cousin in Britain, which was later allegedly used to detonate a bomb at Glasgow Airport. It is interesting to note that ASIO claim that Dr Haneef was never of any interest to them, nor any other agency anywhere in the world. Yet the Immigration Minister still made such a decision, apparently with no cause.

In an application lodged under the FOI Act, Dr Haneef had sought access to documents relating to the cancellation of his visa, the decision to detain him and his ongoing detention in 2007. In his application, Dr Haneef also sought documents relating to the issue of a Criminal Justice Stay certificate in respect of him and any documents recording or relating to communications between various Government Departments concerning him.

The Department's decision-maker claimed exemptions under the FOI Act in respect of 282 documents. Subsequently, the claims for exemption were removed in relation to 141 documents and the Department stated that it would consider its position in relation to the others. Shortly before the hearing, the Department indicated that 73 documents were duplicates, and Dr Haneef did not pursue release of them. By the time the Tribunal hearing was completed, the claims for exemptions, based solely on section 36(1) of the FOI Act, applied to only six documents, described as Document 8, 38, 40, 46, 52 and 56.

Document 8

Document 8 was described as an options paper with respect to how the Minister may deal with issues raised by Dr Haneef's arrest. The Department argued that Document 8 disclosed the processes of an officer of the Department in relation to the way in which the functions of government agencies might operate in the circumstances that existed at the time that Dr Haneef was a person of interest to the Australian Government. The Department claimed that Document 8 was part of a preliminary process of eliciting views or brainstorming with the intention of formulating options which the Minister might employ with dealing with Dr Haneef's case. The Department described the contents of Document 8 as "mere musings".

The Tribunal found that Document 8 came within the scope of section 36(1)(a) as it disclosed matters in the nature of or relating to the giving of advice or opinions or recommendations for the purpose of the deliberative processes involved in the Minister's ultimate decision to cancel Dr Haneef's visa. The Tribunal found that Document 8 gathered information and expresses some very preliminary or nascent opinions about the import of that information for the purpose of formulating, at some later stage, recommendations and options to be presented to the Minister.

The Tribunal found also that the disclosure of Document 8 would be contrary to the public interest. The Tribunal found that the content of Document 8 would be misunderstood by the public and mischaracterised by those who are unacquainted with the full details of Dr Haneef's case and the way in which various Australian government agencies and officers handled it. In particular, the Tribunal found that the characteristics of Document 8 such as the preliminary nature of the views expressed, the questions which are raised but not answered, the speculation as to how events may unfold in the future and the way in which the Department might respond, demonstrate that disclosure of the document would more readily lead to its misconstruction in the public arena.

Accordingly, the Tribunal concluded that Document 8 qualified for exemption under section 36 of the FOI Act.

Document 38, 40, 46, 52 and 56

The Tribunal noted that these documents were directed to the Minister or senior members of his staff. The Tribunal found that the documents differed from Document 8 in that the information contained in them was not in any way expressed to be tentative or requiring further investigation. The documents were options papers or a draft of the Statement of Reasons explaining the decision of the Minister

The Tribunal found that the documents were clearly an important part of the deliberative process which the Department and the Minister engaged in before selecting the final course of action in respect of the cancellation of Dr Haneef's visa.

The Tribunal also found however that the disclosure of the documents would not be contrary to the public interest and that as such, the documents were not exempt under section 36 of the FOI Act. In coming to this conclusion, the Tribunal noted that no convincing evidence had been presented to it by the Department establishing any direct, significant or specific disadvantage that would be likely to flow from disclosure of the documents. In relation to the Department's argument that disclosure of the documents would lead the Department's officers to resort to a lack of candour if they were concerned that their draft opinions and the various options that they propose might later be subjected to public scrutiny, the Tribunal found that such arguments did not demonstrate that it would be contrary to the public interest for the documents to be disclosed.

The Tribunal held that the documents were not exempt from disclosure under the FOI Act pursuant to section 36(1).

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Posted By: Craig Hill - Category: Human Rights

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Down Syndrome Family Wins Six Year Visa Battle

November 19th 2008 11:20

Perth midwife Tracey Robinson and her husband, Paul, have won a six-year battle against the Immigration Department to stay in Australia with their Down syndrome son. Immigration Minister Chris Evans has foreshadowed reform of the visa process for families with disabled children after using his discretion this week to grant the Robinsons permanent residency.

Senator Evans conceded that health requirements, which reduce the chances of families with disabled children being allowed to stay because of potential costs to the taxpayer, were "a bit inflexible".

Senator Chris Evans, Australian Immigration Minister

"I don't think it gives the department enough discretion, and I have actually argued for more discretion for the department and less ministerial intervention more generally," he said.

"I will have something to say on the broader treatment of these matters some time in the short future."

The Robinsons' son, David, was eight in 2001 when Ms Robinson was granted a 457 work visa that enabled the family to move to Perth from Southport in England.

Mr Robinson is a painter and found work quickly.

Ms Robinson became emotional as she told The Weekend Australian that when she and her family decided they wanted to make their home in Perth, it became a long and stressful challenge to obtain permanent residency.

The department refused visas on the basis that David would be a burden on the Australian health system.

"It's been six years of having a feeling of not belonging," she said. "You have to be a strong family to go through that completely unscathed."

The Robinsons' good news comes after child health expert and former Australian of the Year Fiona Stanley revealed that she had advocated in the visa application process for the parents of several Down syndrome children.

This week, she told how she helped obtain permanency in Australia for petroleum engineer Mike Buchanan, his wife, Yvonne, and their Down syndrome daughter Sarah, 14, from Scotland.

The issue made national headlines this month when German doctor Bernhard Moeller told how he had been denied permanent residency in Australia because his son Lukas has Down syndrome.

Professor Stanley says the existing rules for parents such as Dr Moeller are discriminatory and shameful.

Down syndrome children were usually healthy, made a valuable contribution to Australian society and did not burden the health system, she said.

Acting pro-bono for the Robinson family, Freehills lawyers took their fight to the Federal Court and appealed twice for ministerial intervention.

The second appeal was successful, and Senator Evans overturned the department's ruling.

Freehills partner Steven Penglis said Senator Evans should be commended for assessing the Robinsons' case on its merits.

But there remained serious problems with the application process, he said.

Mr Penglis urged a review of the rules.

"The minister got it right, the department got it wrong," he said. "While it's a pleasing outcome for the Robinsons, the problem is that the department's approach still continues to be one that, until fixed, will continue to discriminate against families such as Tracey's."

Mr Penglis said applications for permanent residency by families with Down syndrome children were effectively always refused, because the medical officers assessing such requests assumed the children would be a significant cost to Australian taxpayers.

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Posted By: Craig Hill - Category: Human Rights, Government

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