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Submission to the National Inquiry into Children in Immigration Detention from
the Law Institute of Victoria
Dear Mr Ozdowski,
Submissions on Children in Immigration Detention
The Law Institute of Victoria wishes to endorse the Legal section of the Submission by KIDS (Kids in Detention Story) to you Inquiry into Children in Immigration Detention.
This submission involved contributions from many members of the Law Institute of Victoria. In our view the submission is thoroughly researched, provides an extensive collation of material and presents sound legal arguments.
As we have previously advised the government, the Law Institute of Victoria believes that Australia's current policy of prolonged mandatory detention of asylum seekers, including children, in remote immigration detention centres and in facilities around the Pacific is contrary to international law and human rights standards. The Law Institute notes the breaches of international and domestic law set out in the KIDS submission.
The Law Institute considers that the best interests of the child, which is an acknowledged concept under International, Commonwealth and State law, should be the paramount consideration in the treatment of child asylum seekers and their families.
The Law Institute believes that the impact of Australia's mandatory detention policy is particularly harsh on child asylum seekers, and recommends that the following proposals be adopted:
Unaccompanied minors
The Australian government has a duty under both international and Australian law to protect unaccompanied minors. Accordingly, unaccompanied minors should be detained only as a matter of last resort and for the shortest possible period of time. The government should seek appropriate arrangement for the care and protection of these children within the community.
Children accompanied by their families
Children accompanied by their families should also only be detained as a matter of last resort and for the shortest possible period of time, in accordance with the UNHCR Guidelines on Detention of Asylum Seekers (1999). Where possible, family units (which should be defined taking into account cultural and bonding issues) should be maintained.
The Law Institute therefore recommends that after initial health, identity and security checks are completed, child asylum seekers should be released from immigration detention on a bridging visa pending final resolution of their claims for refugee status. Normally, the best interests of the child will require that family members also be released from detention on a bridging visa in order to care for the child.
The Law Institute believes that the initial period of detention, which should be reviewable by a judge, should normally take a maximum period of 30 days. In the Law Institute's view, it would be extremely rare that justifiable security concerns could be established in relation to child asylum seekers that would warrant their detention beyond a 30 day period.
While on a bridging visa, child asylum seekers should be restricted by residence and reporting requirements appropriate to the child's age and circumstances.
We would be pleased to attend a hearing on this matter to elaborate on any of the points raised above. In the meantime, once again, we commend the work in the Legal Section of the KIDS submission to you.
Yours faithfully,
David Faram
President, Law Institute of Victoria
