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National Inquiry into Children in Immigration Detention

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Background Paper 1: Introduction

In this Background Paper

  1. National Inquiry into Children in Immigration Detention
  2. Overview of international treaties and standards on children's rights
  3. The Convention on the Rights of the Child
  4. The Convention in Australian law
  5. The Committee on the Rights of the Child
  6. UNHCR Guidelines on the Care and Protection of Refugee Children
  7. Questions for submissions
  8. Relevant standards and guidelines

1. National Inquiry into Children in Immigration Detention

In November 2001, the Human Rights Commissioner announced an Inquiry into the adequacy and appropriateness of Australia's treatment of child asylum seekers and other children who are, or have been, held in immigration detention, including:

The term "child asylum seeker" is used throughout the Background Papers. While the focus in these papers is on children who have been detained when seeking asylum in Australia, it is not intended to exclude other children who have been detained. The Inquiry relates to any child who is, or who has been, in immigration detention. "Child" refers to any person under the age of 18.

Background Papers

The Commission has written a series of Background Papers, of which this is the first, to provide an overview of international human rights standards in areas relevant to the Inquiry. These Background Papers are available as a reference and guide to individuals or organisations wishing to make a submission to the Inquiry. They should be consulted where relevant, but it is not necessary to refer to them when making a submission.

The Background Papers are:

  1. Introduction
  2. Culture and Identity
  3. Mental Health and Development
  4. Health and Nutrition
  5. Prevention, Treatment and Accommodation of Disabilities
  6. Education
  7. Legal Status
  8. Deprivation of Liberty and Humane Detention.

Treaties, Rules and Guidelines

  • Treaties that have been ratified by Australia, such as the Convention on the Rights of the Child, are binding on Australia in international law. The implementation of treaty rights of people in Australia are monitored by United Nations treaty bodies, such as the Committee on the Rights of the Child or the Human Rights Committee.

  • The fact that Australia has ratified a treaty does not automatically incorporate it into Australian domestic law. Only when treaty provisions are incorporated into Australian law do they create enforceable rights in Australia. However, courts should interpret a law to be consistent with the provisions of a treaty that Australia has ratified.

  • Other international documents and instruments such as United Nations Rules, General Comments by treaty bodies, United Nations High Commissioner for Refugees guidelines, United Nations General Assembly Declarations and publications by United Nations agencies are not binding on Australia as a matter of international law. They are, however, persuasive in interpreting treaties and contain goals and aspirations reflecting a consensus of world opinion.

The Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission (the Commission) is responsible for protecting and promoting human rights, including:

The Commission also inquires into complaints of breaches of human rights under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

One area of Commission responsibility is the rights of children under the Convention on the Rights of the Child (1989) (the Convention). Australia agreed to be bound by the Convention in December 1990 when it ratified the Convention. The Australian government has made the Convention a "relevant international instrument" under the Human Rights and Equal Opportunity Act 1986 (Cth).

In 1998, the Commission, in its report, Those who've come across the seas: Detention of unauthorised arrivals, found that Australia's policy of mandatory and non-reviewable detention of most unauthorised arrivals is in breach of its international human rights obligations. For children, the Convention not only prohibits unlawful or arbitrary detention, but requires that detention be used only "as a last resort and for the shortest appropriate period of time". [1] These Background Papers should not be taken to endorse the mandatory non-reviewable detention of unauthorised child arrivals in Australia.

Reasons for the Inquiry

As of November 2001, there were 582 children in immigration detention, 53 of them unaccompanied. [2] Most, though not all, of these children are asylum seekers, having arrived unauthorised in Australia with or without their parents. Since 1994, practically all unauthorised arrivals in Australia - both adults and children - have been subject to mandatory and non-reviewable detention. [3] This non-reviewable detention ends when the individual is either recognised as a refugee and granted a temporary protection visa or removed from the country. [4] In very limited circumstances, a person may be granted a visa on humanitarian grounds without being recognised as a refugee. [5]

Since 1999, there has been an increase of asylum seekers arriving by boat from several hundred to approximately 4000 per year. In this time, the numbers of children held in immigration detention facilities has increased substantially to approximately 550 at any one time. Detention facility populations constantly fluctuate in numbers, but it is possible to estimate that several thousand children have been held in immigration detention in Australia since 1999. [6]

Under a new policy initiated by the Australian government in late August 2001 and later grounded in a series of legislative provisions, [7] unauthorised arrivals, including children, are detained on arrival in Australia and removed to third countries, such as Nauru and Papua New Guinea, where their asylum claims are to be determined. It is unclear how many of the children detained and removed in this way, will be returned to Australia at a later date, resettled in a third country or returned to their country of origin.

2. Overview of international treaties and standards on children's rights

International treaties, developed by nation states through the United Nations, set standards for the care and protection of adults and children. These standards reflect consensus principles of the international community, across different cultural, religious and political systems. They are also international legal obligations which countries freely commit to and whose provisions they are then obliged to ensure, protect and promote. When a country ratifies an international treaty, it undertakes to ensure that the standards outlined in that treaty are applied to everyone in its territory.

Child asylum seekers are protected by a number of international treaties and standards. The main treaties are:

The Convention on the Rights of the Child

The Convention is a comprehensive treaty, covering practically all areas of a child's life. Currently, 192 countries are State Parties to the Convention. [9] All children, regardless of their immigration status, are entitled to the full enjoyment of the rights outlined in the Convention.

Key rights outlined in the Convention are:

Under the Convention, children in detention also have the right to:

The Convention recognises that the degree to which children can exercise these rights independently is influenced by their evolving maturity and capacities. [10] It also emphasises the rights and responsibilities of parents to bring up their children "in an atmosphere of happiness, love and understanding". [11]

The Convention is available at http://www.ohchr.org/english/law/pdf/crc.pdf.

The Refugee Convention

The Refugee Convention defines a refugee and establishes the principle of non-refoulement.

Who is a refugee?

A refugee is someone who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

Article 1(A)(2), Refugee Convention.

What is non-refoulement?

Non-refoulement is the principle that prohibits the forcible return of any person to a country where they risk facing persecution on return.

Article 33(1), Refugee Convention.

The Refugee Convention makes no distinction between children and adults, except in the provision of education. It provides that refugee children should receive "the same treatment" as nationals in primary education and treatment at least as favourable as non-refugee aliens in secondary education.[12]

The relationship between the Convention and the Refugee Convention

The Convention on the Rights of the Child effectively incorporates the rights set out in the Refugee Convention. Article 22 of the Convention provides that State Parties must ensure child asylum seekers "receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth … in other international human rights or humanitarian instruments to which the said States are Parties". [13] As Australia is a State Party to the Refugee Convention, it is obliged to ensure the rights outlined in its provisions are afforded to child asylum seekers under both the Refugee Convention and the Convention on the Rights of the Child by virtue of article 22.

Other relevant treaties and standards

A number of other human rights and humanitarian treaties and instruments outline relevant standards for adult and child asylum seekers. Treaty rights are binding and apply to all persons on state territory, regardless of immigration status. These treaties include the:

In addition to these treaties, all ratified by Australia, the UN has issued a number of standards concerning the detention of children. International instruments on juvenile justice are included in the Inquiry under the principle that children in immigration detention have not been arrested or charged with any crime and accordingly their treatment should be at least as favourable as that of untried or convicted prisoners. [14] These standards are listed below in "further reading".

These standards do not have the same legal status as treaty rights but assist in the interpretation of treaty rights. For example, the United Nations Committee on the Rights of the Child [15] has indicated in its general guidelines for periodic reports that State Parties to the Convention must interpret the term "deprivation of liberty" under article 37(b) of the Convention as set out in the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990).[16] Other relevant international instruments are appended at the end of this paper.

The standards outlined in these instruments are important indications of international consensus on what principles should govern the detention and treatment of children generally. [17] They also explain the applicable benchmarks in considering whether the conditions in detention meet the requirement of providing "appropriate protection and humanitarian assistance" to child asylum seekers. [18] To give effect to the provisions of the Convention, Australia is expected to have implemented these standards into its law.

3. The Convention on the Rights of the Child

There are four general principles enshrined in articles of the Convention, which guide interpretation of the Convention as a whole and assist national implementation. [19] These four principles are:

An additional right, the right to family life, is of general importance to the Inquiry and will also be discussed below.

Principle one - best interests of the child (article 3)

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 3(1), Convention on the Rights of the Child.

The requirement in article 3 of the Convention that the best interests of the child be given "primary consideration" is a fundamental principle reflected in the various provisions of the Convention. [20]

The principle relates to all actions concerning children, including "decisions by courts of law, administrative authorities, legislative bodies and both public and private social-welfare institutions". [21] Upholding the "best interests" principle requires examination of government policy formulation and individual decision-making regarding children. Article 3(1) does not require the best interests of the child to be the sole consideration in all decision-making, but it does require the child's interests to be the subject of active consideration, with evidence that children's interests have been taken into account as a primary consideration. [22]

The principle of the "best interests of the child" in article 3(1) is fundamental to understanding Australia's obligation to implement the rights in the Convention for all children. [23] The "best interests" principle should be used by all decision makers, including service providers in detention facilities, and be written into legislation in a way in which it can be invoked before the courts. [24]

The "best interests" rule can mean that in certain circumstances, such as abuse or exploitation, the "best interests" of children requires that they be separated from their parents. Usually, however, it means that their right to "grow up in a family environment, in an atmosphere of happiness, love and understanding" [25] should be respected, as is emphasised throughout the Convention. See the discussion below on the right to family life and article 5 of the Convention.

States Parties must report to the Committee on the Rights of the Child on how the "best interests" of the child are reflected in "budgetary allocations, including at the central, regional and local levels, and where appropriate at the federal and provincial levels, and within governmental departments".[26] Accordingly, budgetary constraints alone, such as in any contract or tender between the Australian government and private detention operators, should not be invoked as a reason for failing to provide children with adequate health care, education or other rights in detention facilities.

The Inquiry will examine, and welcomes submissions on, whether the detention of child asylum seekers, either with their families, or unaccompanied, is in the "best interests" of the child. It will also consider the extent to which current "legislative, administrative and other measures" (article 4) take the "best interests of the child" into account. Another avenue to be explored is how the Australian authorities consider the question of whether children should be released into the community, under bridging visas or other measures and the extent to which their family can be released with them under current law and practice.

Principle two - non-discrimination (article 2)

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 2, Convention on the Rights of the Child.

The non-discrimination principle outlined in article 2 of the Convention prohibits discrimination on the grounds of status, including immigration status.[27] Every child in Australia is entitled to all of the rights under the Convention without discrimination. Article 2 is particularly important when read in conjunction with the other provisions of the Convention, for example, the right to education and the rights to health, leisure and culture.

The non-discrimination requirement raises issues for the Inquiry in relation to the mandatory detention of children in Australia on account of their unauthorised arrival. For example, children who arrive in Australia with their families on a tourist or other temporary visa and subsequently apply for refugee status are not detained. One issue this raises is whether Australia is in breach of article 2 of the Convention on the ground of its different treatment of child asylum seekers arriving without visas and children who arrive on a tourist or temporary visa and subsequently seek asylum.

Another potential discrimination issue arises in relation to the different status that may be granted to child asylum seekers depending on their mode of arrival in Australia. Child asylum seekers who arrive without authorisation and are detained may only receive a three year temporary protection visa when recognised as a refugee, whereas those who arrive with authorisation and are subsequently recognised as a refugee receive permanent residency. The different legal status deriving from these refugee visas translates into different rights and benefits for children. [28] The Inquiry welcomes submissions on these issues, including any difference in treatment between child asylum seekers and other children in Australia. [29]

The principle of non-discrimination also requires that conditions of detention do not impact more severely on girls than on boys. The issue of equality on the basis of sex is central to the principle.

The non-discrimination principle does not mean that all child asylum seekers have a right to live indefinitely in Australia. Article 2 of the Convention does mean, however, that while they are in Australia, all child asylum seekers should enjoy the same rights under the Convention, including rights to education, health or participation rights in decisions concerning them.

Article 2(2) also obliges Australia to protect children from discrimination or punishment because of their parent's or family's activities, opinions, or beliefs.

Principle three: participation (article 12)

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

Article 12(1), Convention on the Rights of the Child.

The Convention states in article 12(1) that a child has the right to participate in all matters concerning him or her, personally or through a parent or guardian. Article 12(2) outlines the right for a child to be heard in any judicial or administrative proceedings affecting the child. The right to be heard may be direct, or through a representative or an appropriate body.

Participation in decision making may include a child's participation in play and self-expression activities, from drawing pictures to playing cricket. It can extend to sharing opinions, discussing them with adults and having the adults give the views "due weight". [30]

The right to participate in decisions raises issues in relation to detained children. How do these children participate in decisions concerning them, both in relation to their asylum claim, their ongoing detention and their daily and weekly routine in the detention facility? Who advocates for them? Who is their guardian? How does the child participate in decisions concerning their education, leisure, cultural activities? How are they involved in developing skills and expressing themselves in different ways? What processes are in place in the management of detention facilities to include children and their families in these activities?

Equally, how do the child's parents or guardians represent her or his best interests and participate in proceedings, hearings or other decision-making concerning them, where the child is too young or needs to be represented in part by parents or guardians?

In this respect, it is noteworthy that the Committee on the Rights of the Child has suggested that child asylum seekers must be allowed to participate in their asylum hearing "and to express their concerns" including through a "guardian mechanism" [31] (see also Background Paper 7: Legal status).

Principle four: survival and development (article 6)

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

Article 6, Convention on the Rights of the Child.

The principles of best interests, non-discrimination and participation have been referred to as a "triangle of rights" that reinforce each other to achieve the objective of "the survival and development" of the child as stated in article 6. Survival and development refers not only to the child's physical survival and healthy development, but to his or her mental and emotional development (see also Background Paper 3: Mental Health and Development).

The right to family life (article 5)

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 5, Convention on the Rights of the Child.

Under the Convention, all children are entitled to grow up in a healthy family environment, with parents or legal guardians of child asylum seekers having the primary responsibilities for the upbringing of their children. Australia is also obliged to ensure that unaccompanied children receive appropriate alternative care and guardianship arrangements. [32]

Only where children are in a situation "such as one involving abuse or neglect of the child by the parents" or where the parents are separated, should separation be contemplated and then only after due process where it is in the best interests of the child. [33]

Article 37(b) of the Convention provides that children should only be detained as a last resort and for the shortest appropriate period of time.[34] The provisions of article 37(b), read with the child's right to family life, would indicate that alternatives to the detention of children which involve the child remaining with her or his parents out of detention should be considered as a first resort by Australia, with detention as a last resort. The Inquiry will consider the extent to which this is correct and how Australia's current legislative and administrative arrangements conform to the Convention's requirements. Submissions are welcomed on this point.

4. The Convention in Australian law

The Convention must be implemented within Australian law and practice for the rights that it recognises to have force. There are various international bodies that assist in the interpretation and implementation of the Convention. The following sections provide an overview of the implementation and interpretation of the Convention for reference purposes and as a background to the Inquiry.

Implementation of Convention rights

Some of the Convention rights are universal civil and political rights, such as the right to be free of torture, cruel, inhuman or degrading treatment or punishment and the right not to be deprived of one's liberty unlawfully or arbitrarily (article 37(a) and (b)). These rights must be ensured in all States, regardless of local circumstances.

The Convention also provides for "progressive" economic, social and cultural rights, which will increase in accordance with a State's economic development. This recognises that some of the more costly reforms cannot be implemented immediately in all countries, but will depend on their economic development. Rights to health care (article 24) and education (articles 28, 29) may need to be achieved "progressively".[35] A developing country may not be expected to grant such rights as secondary education to all children overnight, whereas a developed country like Australia may be in a position to do so.

Implementation of the Convention in Australia

In Australia, individuals can only invoke rights under international treaties such as the Convention to the extent that those rights have been implemented into domestic law. Australia has not implemented the Convention's provisions into domestic law. However, many of the obligations Australia has willingly assumed in ratifying the Convention are reflected in an ad hoc manner under domestic law. Some rights are met under existing laws. Many rights, however, may not be guaranteed under current law and practice, such as the right of child asylum seekers to challenge their detention before a judge or a similar competent, independent and impartial authority (article 37(d), Convention).

Under the Teoh principle [36] , elaborated by the High Court in 1995, administrative decision-makers are required to take rights under the Convention into account in decision making where the right in question is not clearly excluded by domestic law. [37] Courts may interpret federal legislation as complying with the provisions of the Convention where the meaning of the legislation is ambiguous. While the Teoh principle does potentially allow for the implementation of provisions of the Convention, it does not appear to satisfy the requirement in the Convention that "State Parties … undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention". [38]

The Convention's provisions are implemented in Australia through the functions of the Human Rights and Equal Opportunity Commission. The Convention is a "relevant international instrument" under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) which means that rights and freedoms recognised in it are included in the definition of "human rights" for the purposes of the Commission's functions. [39]

The Commission's functions in relation to such human rights include:

The Commission, however, is not empowered to compel government or non-government compliance with the Convention's provisions. In addition, there is currently no national statutory authority, such as an Ombudsperson or a Commissioner for Children which oversees the implementation of the Convention into Australian law and practice as is evident in other countries. [40]

5. The Committee on the Rights of the Child

The Committee on the Rights of the Child is established under the Convention to oversee the progress made by State Parties in implementing the rights of the Convention. The Committee cannot hear individual complaints.

What is the Committee on the Rights of the Child?

The Committee on the Rights of the Child is the United Nations body that oversees implementation of the Convention by State Parties.

States Parties must report to the Committee every five years about the measures they have adopted to give effect to the Convention rights. The Committee monitors and supervises implementation and adherence to the Convention by State Parties such as Australia through examining the periodic reports of States and issuing Concluding Observations on State reports or General Comments. [41] These assist Australia, and other State Parties, in the interpretation of the Convention.

Australia's Initial Report was considered by the Committee in 1997. The Committee's Concluding Observation 20 expressed concern at the detention of child asylum seekers:

The Committee is concerned about the treatment of asylum seekers and refugees and their children, and their placement in detention facilities. [42]

To date, the Committee has issued only one general comment - on the aims of education in article 29(1) of the Convention. The general comments of other treaty bodies, such as those of the Human Rights Committee, may also prove useful in interpreting provisions in the Convention which are similar to those in other treaties, particularly the ICCPR.

Article 45 of the Convention recognises the special competence of the United Nations Children's Fund (UNICEF) and other United Nations organs "to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates". UNICEF has produced a guide to the implementation of the various provisions of the Convention, which helps explain the Convention's provisions. [43] Interpretation of the Convention's provisions is also assisted by the Committee's general guidelines on initial and periodic reports and other international instruments such as the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and relevant UNHCR guidelines on refugee and asylum seeking children, discussed below.

6. UNHCR guidelines on refugee and asylum seeking children

Who is the UNHCR?

The United Nations High Commissioner for Refugees is the United Nations body responsible for overseeing international treatment of refugees.

UNHCR is the intergovernmental body with responsibility to provide international protection to refugees and to find long term solutions to their problems. [44] Australia, as a State Party to the Refugee Convention, is obliged under article 35 of that Convention to cooperate with the UNHCR in the exercise of its functions and duty of supervising the Refugee Convention. [45]

The UNHCR has issued a series of Guidelines on the treatment of refugee and asylum seeking children. Although not all children held in immigration detention in Australia are asylum seekers, most are.

The principles enshrined in the UNHCR Refugee Children: Guidelines on Protection and Care (1994) (UNHCR Guidelines on Protection and Care) will be used in the Inquiry's Background Papers to describe which standards should be implemented in detention facilities. The UNHCR Guidelines on Protection and Care are recognised internationally as appropriate standards for the protection and assistance of refugee and asylum seeking children. The Committee on the Rights of the Child has separately reaffirmed the importance of the UNHCR Guidelines on Protection and Care, by noting that they were "fully inspired by the Convention and shaped in the light of its general principles". [46] Other UNHCR Guidelines on detention and unaccompanied children will be referred to throughout the Background Papers as relevant. [47]

Questions for submissions

The following questions may assist organisations and individuals in making submissions to the Inquiry.

  1. How does Australia meet its commitments to child detainees under the Convention and other relevant standards?
  2. What are the relevant "legislative, administrative and other measures" in place to ensure this? Where are the gaps?
  3. How are the "best interests" of children in detention decided?
  4. How is the principle of non-discrimination approached? How is this principle applied to the various rights in the Convention in practice?
  5. Can children (including through their parents or guardians) participate in decision making concerning them?
  6. How is the right to survival and development respected in detention facilities?
  7. How is the child's right to family life ensured?
  8. How are Convention rights reflected in the daily programs in place in detention facilities for children?

Relevant standards and guidelines

ENDNOTES:

1. Article 37(b) provides: "No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time".

2. Figures supplied by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).

3. S196 Migration Act 1958 (Cth) provides that "An unlawful non-citizen detained under s189 must be kept in immigration detention [and that t]o avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa." There is one exception in which children can be released. Since 1 September 1994, a "bridging visa" can be issued by the Minister for Immigration and Multicultural and Indigenous Affairs under certain guidelines. Those eligible include children, people over 75 years of age, spouses of Australian citizens or persons with a special health need or with previous experience of torture or trauma.

4. Under new regulations to deter unauthorised arrivals, introduced in 1999 and extended through new laws passed in September 2001, including the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth), children and adults who arrive in an "excised offshore place" such as Christmas Island and the Ashmore Islands are only permitted to apply for a protection visa in Australia under a non-compellable, non-reviewable Ministerial discretion to allow them to do so and the Minister must lay the reasons for doing so before Parliament; s46A Migration Act 1958 (Cth). Those allowed to apply who are subsequently recognised as refugees only receive temporary protection. The temporary protection visa subclass contains substantial visa restrictions, including the requirement that the refugee must reapply for another protection visa after 30 months and will be ineligible in most cases for permanent protection (therefore denying any possibility of full residency status or citizenship). Temporary protection visa holders also do not benefit from the same rights as other asylum seekers recognised as refugees and granted permanent protection such as access to English classes, family reunion, and the ability to leave the country and return. Further discussion of the new laws can be found in Background Paper 7: Legal Status.

5. A visa may be granted by Ministerial discretion under s417 of the Migration Act 1958 (Cth).

6. These figures are approximate only and are based on the estimated percentage of children in immigration detention relative to total immigration detention populations between 1999 and 2002, which approximates at 20 per cent. For example, on 23 January 2002, there were 236 children in Woomera detention facility and 80 children in Phospate Hill detention facility (Christmas Island). The Inquiry will inquire into the precise numbers of children in immigration detention since 1999.

7. These provisions include the Border Protection (Validation and Enforcement Powers) Act 2001, the Migration Amendment (Excision from Migration Zone) Act 2001 and the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001.

8. The 1967 Protocol lifted the temporal and geographic restrictions of the 1951 Convention, making the Convention applicable to all refugee situations post-1951.

9. http://www.ohchr.org/english/countries/ratification/11.htm.

10. See article 5, Convention.

11. Preamble, Convention.

12. UNHCR (1994), Refugee Children: Guidelines on Protection and Care (UNHCR Guidelines on Protection and Care), ch 2. Article 22, Refugee Convention provides:
"1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.
2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships."

13 Article 22(1) of the Convention provides: "States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties."

14 The Commission has asserted that the vulnerability of detained adult and child asylum seekers and the fact that they are not held as suspects or convicted offenders "argue strongly for the adoption of international minimum standards for juvenile detainees where these are more favourable than those applicable to adults, including adult prisoners. Since immigration detainees are not held as criminal suspects or because they represent a risk to community safety, the most lenient detention regime is appropriate." See Immigration Detention Guidelines, Human Rights and Equal Opportunity Commission, March 2000, available at http://www.humanrights.gov.au/human_rights/asylum_seekers.

15 See discussion of the Committee below.

16 Specifically the Committee stated that "deprivation of liberty means any form of detention or imprisonment or the placement of a person in another public or private custodial setting from which this person is not permitted to leave at will by order of any judicial, administrative or other public authority (rule 11(b))", General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted by States Parties under Article 44, paragraph 1(b) of the Convention (Guidelines for Periodic Reports) adopted by the Committee on the Rights of the Child on 11 October 1996, Part V111B(2): 20/11/96, UN Doc CRC/C/58. Similarly, the Human Rights Committee, which supervises the ICCPR, has indicated that corresponding article 9 is "applicable to all deprivations of liberty, such as…immigration control": Human Rights Committee (HRC), General Comment 8: Right to liberty and security of persons (Art. 9), 30 July 1982.

17 See UNICEF (1998), Implementation Handbook for the Convention on the Rights of the Child (UNICEF Implementation Handbook), UNICEF, New York, p500.

18 Article 22, Convention.

19 UNICEF, Implementation Handbook, p 37; Fact Sheet No.10 (Rev.1), The Rights of the Child, Vienna Declaration and Programme of Action (Part 1, para.21), adopted by the World Conference on Human Rights, Vienna, 25 June 1993, (A/CONF. 157/24 (Part 1), ch 111).

20 As UNICEF notes, the concept of "best interests" of children has been the subject of more academic analysis than any other provision of the Convention; see UNICEF, Implementation Handbook, p39.

21 Fact Sheet No.10 (Rev.1), The Rights of the Child.

22 Where the term "best interests" are used elsewhere in the Convention, the "best interests" of the child may become of paramount consideration. For example, separation from their parents in article 9(1) should only occur where "separation is necessary for the best interests of the child", UNICEF, Implementation Handbook, p41.

23 As required by article 4 of the Convention.

24 UNICEF, Implementation Handbook, p43.

25 Preamble to the Convention.

26 Committee on the Rights of the Child, Guidelines for Periodic Reports, para 35.

27 Prohibition of discrimination "of any kind, irrespective of the child's or his or her parent's or legal guardian's race … or other status", article 2, Convention.

28 See discussion on temporary protection visas above.

29 See the comments of the Committee on the Rights of the Child to Sweden: "The Committee is also concerned by the practice of taking foreign children into custody under the Aliens Act and notes that this practice is discriminatory in so far as Swedish children generally cannot be placed in custody until after the age of 18." Concluding observations of the Committee on the Rights of the Child : Sweden, UN Doc CRC/C/15/Add.2, 18 Feb 1993, para 9.

30 Article 12, Convention.

31 Concluding Observations on Norway's periodic report, Concluding Observations of the Committee on the Rights of the Child : Norway, UN Doc CRC/C/15/Add.126, 28 June 2000, paras 48-52.

32 Discussed further in Background Paper 3: Mental Health and Development.

33 See articles 5, 9(1) and 18 of the Convention. Article 9(1) provides: "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence." See also Australia's obligation to protect against child abuse in article 19 and article 34.

34 Article 37(b) provides: "No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time".

35 See Fact Sheet No.10 (Rev.1), The Rights of the Child.

36 Ah Hin Teoh: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.

37 Since 1995, three Bills seeking to reverse the Teoh decision have passed the House of Representatives but have been defeated in the Senate.

38 Article 4, Convention.

39 See ss3(1), 3(4) and 11, Human Rights and Equal Opportunity Commission Act 1986 (Cth). The Human Rights and Equal Opportunity Commission Act 1986 established the Commission in 1986 and outlines the Commission's functions and powers. Among the Commission's functions is that of monitoring the implementation of seven international human rights instruments adopted by Australia:

In addition, the Commission has responsibility for monitoring both the Racial Discrimination Act 1975, which gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, and the Sex Discrimination Act 1984, which gives effect to Australia's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women and certain aspects of the International Labour Organisation (ILO) Workers with Family Responsibilities Convention, 1981.

40 See the Committee on the Rights of the Child's recommendation to Finland: "The Committee invites the State party to seriously consider the establishment of an independent national ombudsperson for children, taking into account the positive experiences in other Nordic countries, and not to let purely financial considerations determine the decision", Concluding Observations of the Committee on the Rights of the Child : Finland, UN Doc CRC/C/15/Add.132, 16 Oct 2000, para 20. See the Recommendation in Australian Law Reform Commission & Human Rights and Equal Opportunity Commission (1997), Seen and Heard, priority for children in the legal process, Appendix D, that an Office for Children (OFC) should be established within the office of the Prime Minister and Cabinet.

41 "At the very end of the process, the Committee adopts "concluding observations", which are a statement on its consideration of a State's report. Concluding observations are meant to be widely publicised in the State party and to serve as the basis for a national debate on how to improve the enforcement of the provisions of the Convention. They therefore constitute an essential document: Governments are expected to implement the recommendations contained therein." Fact Sheet No.10 (Rev.1), The Rights of the Child.

42 Concluding Observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/15/Add.79, 10 Oct 1997.

43 UNICEF, Implementation Handbook.

44 Statute of the Office of UNHCR, Article 1.

45 Article 35 provides:
"1. The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.
2. In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:
(a) The condition of refugees,
(b) The implementation of this Convention, and
(c) Laws, regulations and decrees which are, or may hereafter be, in force relating to refugees."
See also article 11 of the 1967 Protocol to the Convention. Both Resolution 428 (V) of the UN General Assembly and the Statute of UNHCR, which was annexed thereto, called for cooperation between Governments and the High Commissioner's Office in the performance of the High Commissioner's functions.

46 Committee on the Rights of the Child, Report on the seventh session, UN Doc CRC/C/34, November 1994, p61. See also UNICEF, Implementation Handbook, p282.

47 Other UNHCR Guidelines, including the Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999), Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (1997) and Save the Children/ UNHCR, "Statement of Good Practice" of the Separated Children in Europe Programme (2000) will also be employed in considering the extent to which the detention of child asylum seekers should occur.

48 Adopted by General Assembly resolution 43/173 of 9 December 1988.

49 Adopted by General Assembly resolution 45/113 of 14 December 1990.

50 Adopted by General Assembly resolution 45/110 of 14 December 1990.

51 Adopted by General Assembly resolution 45/112 of 14 December 1990.

52 Executive Committee (EXCOM) Conclusion No. 44 (1986) - Detention of Refugees and Asylum-Seekers.