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Submission to the National Inquiry into Children in Immigration Detention from

the National Children's and Youth Law Centre

Children's Rights Overboard!

1. INTRODUCTION
2. HUMAN RIGHTS IMPLICATIONS FOR MINORS OF AUSTRALIA'S MANDATORY DETENTION
 3. ADDITIONAL ISSUES FOR UNACCOMPANIED MINORS IN DETENTION
 4. ALTERNATIVES TO DETENTION
5. CONCLUSION

The National Children's and Youth Law Centre (NCYLC) remains the only Australian national community legal centre working exclusively for, and with children and young people. It is a joint project of the University of New South Wales, the University of Sydney and the Public Interest Advocacy Centre, initially funded by the Australian Youth Foundation.

The intention of the NCYLC is to provide advocacy, education and information services for Australia's children and young people. The touchstone of the NCYLC's efforts is the United Nations Convention on the Rights of the Child, and its mandate in promoting understanding and adherence to children's rights as fundamental human rights. A natural corollary to these developments is the ability to hold governments accountable in meeting both the spirit and the letter of Australia's commitment to the Convention.

The NCYLC promotes the rights and interests of all Australia children and young people by advocacy, lobbying, test case litigation, information collection and dissemination and research. Since its inception in 1993, the NCYLC has made over 150 public submissions on law and policy affecting children and young people and handled over 10,000 inquiries.

The NCYLC seeks to empower children and young people, providing them with the informational and support tools necessary to assist them to make informed personal choices. The NCYLC espouse that all levels of society realise that the views of children and young people are important, requiring protection and freedom.

As Australia's only national community legal centre for children and young people, the NCYLC is a frontline for children's issues. In response to this position, the NCYLC actively undertake community legal education, policy work, casework and test case litigation aimed at increasing young people's access to legal assistance and improving the legal status of children and young people in Australia.

1. INTRODUCTION

The mandatory detention regime under the Migration Act applies to all those who arrive in Australia (other than an offshore entry person [1]) without being 'immigration cleared' [2]. The combined effect of a number of provisions of the Act and Regulations is that such arrivals can be released only upon being granted a temporary protection visa. The only exception is that detainees under 18 may be granted a bridging visa if they satisfy the requirements of reg.2.20(5) of the Migration Regulations .[3]

The area of greatest controversy under these provisions is their application to asylum seekers who arrive in Australia in boats. Such arrivals are not immigration cleared, and must therefore be detained, although the Minister's own statistics indicate that they are far more likely to be assessed as genuine refugees than are those who arrive by other means .[4]

The latest statistics (as of 1 February 2002) on children detained under this regime are as follows :[5]

The terms of reference for this Inquiry announced by the Human Rights Commissioner provide for the Inquiry to consider the following matters:

1. The provisions made by Australia to implement its international human rights obligations regarding child asylum seekers, including unaccompanied minors.

2. The mandatory detention of child asylum seekers and other children arriving in Australia without visas, and alternatives to their detention.

3. The adequacy and effectiveness of the policies, agreements, laws, rules and practices governing children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention, with particular reference to:

  • the conditions under which children are detained;
  • health, including mental health, development and disability;
  • education;
  • culture;
  • guardianship issues; and
  • security practices in detention.

4. The impact of detention on the well-being and healthy development of children, including their long-term development.

5. The additional measures and safeguards which may be required in detention facilities to protect the human rights and best interests of all detained children.

6. The additional measures and safeguards which may be required to protect the human rights and best interests of child asylum seekers and refugees residing in the community after a period of detention.

"Child" includes any person under the age of 18.

We will argue in this submission that the mandatory detention of child asylum seekers causes Australia to fail to meet its obligations to children under the Convention on the Rights of the Child (CROC). With regard to the legal and human rights implications for children, this policy ignores the following four general principles enshrined in articles of CROC, for the purpose of guiding interpretation and assisting parties' implementation:

Because of the mandate of our organisation, this submission will focus on the human rights obligations Australia has under international law to child asylum seekers. We will also comment on issues of:

i. Alternatives to mandatory detention for child asylum seekers; and
ii. Additional issues affecting unaccompanied minors in detention.

2. HUMAN RIGHTS IMPLICATIONS FOR MINORS OF AUSTRALIA'S MANADATORY DETENTION

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

Australia ratified CROC in December 1990. Accordingly, all children, regardless of their immigration status, are entitled to the full enjoyment of the rights outlined in the Convention .[6]

A. The requirements of international law

The background papers to the Inquiry provide a very good analysis of Australia's international obligations to children in detention. Rather than repeat that material here, we will instead begin by noting our support for the following basic principles identified in the background papers:· CROC provides that children seeking asylum shall have access to the same rights and protections in Australia as do other children .[7]

CROC similarly protects children in particular from arbitrary deprivation of liberty. Article 37(b) provides in part:

No child shall be deprived of his or her liberty unlawfully or arbitrarily.

In addition, the detention of a child is to be used only as a measure of last resort and, when it is used, only for the shortest appropriate period of time (article 37(b)). In assessing what would be an appropriate period, the decision-maker must take into account the best interests of the child (article 3(1)).

From these basic principles, it is clear that it is a basic human right that child asylum seekers are entitled not be detained arbitrarily or unlawfully.

B. Arbitrariness in international law
 We endorse the discussion of this issue in the HREOC Submission to the Senate Legal and Constitutional References Committee inquiry into Australia's refugee and humanitarian program :[11]

The term 'arbitrary' includes not only actions which are unlawful per se but also those which are unjust or unreasonable even if lawful. [12] In 1990, in the case of Alphen v The Netherlands, the Human Rights Committee stated:

The drafting history of article 9, paragraph 1, confirms that 'arbitrariness' is not to be equated with against the law, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence, or the recurrence of crime. [13]

The question whether a particular restriction on liberty is necessary and reasonable or arbitrary for the purposes of the ICCPR is not a matter of purely subjective judgment. The jurisprudence of the Human Rights Committee indicates that, to avoid the taint of arbitrariness, detention must be a proportionate means to achieve a legitimate aim, having regard to whether there are alternative means available which are less restrictive of rights. [14]

Indeed, the Australian practice of mandatory detention of asylum seekers was considered by the Human Rights Committee of the United Nations on a communication in 1993. Australia sought to justify the prolonged detention on the basis that the complainant entered Australia unlawfully and may have absconded if not detained. The Committee concluded:

... detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal. In the instant case, the State Party has not advanced any grounds particular to the author's case, which would justify his continued detention ... The Committee therefore concludes that the author's detention ... was arbitrary within the meaning of Article 9, paragraph 1. [15]

This determination clearly applies with equal force to the children detained in various immigration detention centres in Australia today. The only real difference between their situation and that of the complainant in A v Australia is that the government no longer maintains even the pretence that detention is necessary to prevent these children from absconding. The only justification now advanced for mandatory detention is its deterrence value.

To operate effectively as a deterrent, however, the practice must both be worse than the alternatives faced by asylum seekers and be known to be worse. This ignores the reality of the situations from which these asylum seekers are fleeing. In the cases of the Afghan and Iraqi arrivals over recent years, for example, it cannot be forgotten that those people were fleeing from regimes guilty of extreme crimes against their own populations. In both of these cases the Australian government has seen fit to join in US-led expeditionary forces with the expressed objective of removing those regimes from power. The justification for these actions was the criminal nature of the regime concerned.

Against this background, is it meaningful to talk of 'deterring' such asylum seekers from coming to Australia? Even aside from the inhumanity of such a policy and the denial of our obligations under international law that it entails, it surely has no prospect of success.

Conclusion No. 44 of the Executive Committee of the High Commissioner for Refugees, Detention of Refugees and Asylum Seekers [16], states that where the detention of asylum seekers is deemed to be necessary it should only be used for 4 purposes:

In relation to asylum seekers using fraudulent documents or travelling with no documents at all, the Conclusion recognises that detention is permissible only where there is an intention to mislead the authorities. Asylum seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason. [17]

The Executive Committee also

(c) Recognised the importance of fair and expeditious procedures for determining refugee status or granting asylum in protecting refugees and asylum seekers from unjustified or unduly prolonged detention [and]

(d) Stressed the importance for national legislation and/or administrative practice to make the necessary distinction between the situation of refugees and asylum seekers and that of other aliens.

We submit that there is no basis for the Australian government to argue that this communication should not apply here.

C. UNHCR Guidelines on Detention of Asylum Seekers
 The UNHCR Guidelines on Detention of Asylum Seekers (the Guidelines) are designed to assist governments in developing and implementing detention policies and practices .[18] The Guidelines apply to all asylum seekers who are in detention or in detention-like situations. They apply to all persons who are confined within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory . [19] While they do not have the force of law, then, the Guidelines provide appropriate standards for the operation of Australia's immigration detention centres.

The Guidelines, like ExComm Conclusion 44, state that the right to liberty is a fundamental right, recognised in all the major human rights instruments, both at global and regional levels, and that therefore 'the detention of asylum-seekers is in the view of UNHCR inherently undesirable' .[20] The Guidelines state that detention is especially undesirable for vulnerable people 'such as single women, children, unaccompanied minors and those with special medical or psychological needs' .[21] They conclude that

Freedom from arbitrary detention is a fundamental human right, and the use of detention is in many instances, contrary to the norms and principles of international law. [22]

The Guidelines affirm that the only permissible grounds for detention are the four grounds provided in ExComm Conclusion 44. Detention of asylum seekers for any other purpose, 'for example, as part of a policy to deter future asylum seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law'. [23]

D. Application of these principles to children in detention
 The principles outlined above relate to asylum seekers generally. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) states that detention 'should be used as a last resort" and "be limited to exceptional cases'. [24] The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1985) reiterate that any detention should be brief [25] and state this should only occur where the child has committed "a serious act involving violence". [26]

The UNHCR states in its Guidelines on Detention that 'minors who are asylum seekers should not be detained'.

Their application to child asylum seekers is further reinforced by the CROC. Article 22 specifically provides that:

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.

As the HREOC Submission to the Senate Legal and Constitutional References Committee inquiry into Australia's refugee and humanitarian program [27] states:

The detention of the children of asylum seekers is complicated by the apparently competing factors affecting their interests. On the one hand, detention, especially for prolonged periods, stifles their development and can cause actual harm. CROC acknowledges this by requiring that any detention of a child be a measure of last resort and for the shortest appropriate period of time (article 37(b)). In addition, CROC imposes the positive obligation upon States Parties to take appropriate measures to ensure to every child a standard of living adequate for his or her physical, mental, spiritual, moral and social development (article 27). On the other hand, children have a right to live with and enjoy the protection and assistance of their parents. The Preamble to CROC acknowledges that 'the child, for the full and harmonious development of his or her personality, should grow up in a family environment'. CROC article 9.1 obliges States Parties to ensure that children are not separated from their parents against their will except when it is necessary in their best interests. These provisions clearly apply to children and their families seeking asylum and deprived of their liberty under the Migration Act.

Australian law provides that the Minister may grant a bridging visa to a child under the age of 18 who comes within the guidelines prescribed in Migration Regulation 2.20. The bridging visa allows the child to be released from detention pending consideration of an application to remain in Australia (Migration Act section 73). The Minister has no discretion, however, to grant a bridging visa to release the child's parents. A child released from detention would therefore be denied the protection and assistance of his or her parents. This may lead to a breach of article 9.1 of CROC. Only two children of a possible total of 581 were released on Bridging Visas between 1 September 1994 and May 1998. Australian law, therefore, purports to permit the release of children while in fact making that effectively impossible and undesirable. As a result, whether a child is detained with his or her parents or released without them, Australia is in breach of its human rights commitments.

The UNHCR's Guidelines resolve the seeming conflict by directing that minors who are asylum seekers should not be detained .[29] In almost all circumstances, therefore, unless there is good reason to the contrary related to the particular circumstances of the particular family, children and their parents should not be detained during the determination of a claim for refugee status. The Guidelines state:

Unfortunately refugee children are sometimes detained or threatened with detention because of their own, or their parents', illegal entry into a country of asylum. Because detention can be very harmful to refugee children, it must be 'used as a measure of last resort and for the shortest appropriate period of time'. [30]

Where children are detained, however, CROC article 37(b) requires that it be a measure of last resort and for the shortest appropriate period of time. The UNHCR Guidelines direct States to take steps to ensure an appropriate environment for children who are detained. Conditions akin to a prison are to be avoided:

If children who are asylum seekers are detained in airports, immigration-holding centres or prisons, they must not be held under prison-like conditions. All efforts must be made to have them released from detention and placed in other accommodation. [31]

\So what are the rights to which children seeking asylum in Australia are entitled? The background papers to this Inquiry summarise the key rights guaranteed to children in Australian detention centres under the Convention:

We shall now address the current situation concerning some of these basic rights for child asylum seekers in detention in Australia, focusing on the legal issues which arise as a result of Australia's obligations under international law.

i. The best interests of the child (Article 3(1))

The policy decision to detain children, particularly unaccompanied children, clearly does not actively take into account the best interests of the child. As indicated above, child asylum seekers who arrive in Australia unauthorised are subject to mandatory detention unless and until they are granted either a temporary protection visa or a bridging visa. The criteria for these visas, which are found in the Migration Regulations, contain no reference to 'the best interests of the child'. The Migration Act provides, in s.65(1), that the Minister may only grant a visa if the relevant criteria prescribed by the Act and the Regulations for that class of visa are satisfied. The failure to specify the best interests of children involved in these applications for either a temporary protection visa or a bridging visa means that this is not a consideration that decision-makers can take into account on these applications.

It is important to note that under the Teoh principle [32], elaborated by the High Court in 1995, administrative decision-makers are required to take rights under CROC into account in decision making where the right in question is not clearly excluded by domestic law. [33] Courts may interpret federal legislation as complying with the provisions of the Convention where the meaning of the legislation is ambiguous. This principle of the common law does not satisfy the requirement of the Convention that 'State Parties … undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention' . [34] Teoh can only be applied by decision-makers where the relevant law contains a broad discretion, the exercise of which can be influenced by principles such as the 'best interests of the child'. The temporary protection visa criteria, for example, contain no such general discretion.

The key criteria for the temporary protection visa are found in Schedule 2 of the Migration Act:

785.21 Criteria to be satisfied at time of application

785.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
(a) makes specific claims under the Refugees Convention; or
(b) claims to be a member of the same family unit as a person who:
(i) has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class XA) visa.

785.22 Criteria to be satisfied at time of decision

785.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

S.72(2) of the Migration Act allows the Minister to:

… make a determination under paragraph (1)(c) that a non-citizen is an eligible non-citizen if:
(a) the non-citizen was an unlawful non-citizen when he or she entered the migration zone; and
(b) the non-citizen made a valid application for a protection visa after he or she arrived in Australia; and
(c) the non-citizen has been in immigration detention for a period of more than 6 months after the application for a protection visa was made; and
(d) the Minister has not made a primary decision in relation to the application for a protection visa; and
(e) the Minister thinks that the determination would be in the public interest.

An 'eligible non-citizen' can apply for a bridging visa. S.72 goes on to provide:

(3) The power to make a determination under paragraph (1)(c) may only be exercised by the Minister personally.

(4) If the Minister makes a determination under paragraph (1)(c), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
…
(7) The Minister does not have a duty to consider whether to make a determination under paragraph (1)(c) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or any other person, or in any other circumstances.

A bridging visa can be granted to a child in detention under reg.2.20 of the Migration Regulations . Subreg.2.20(5) provides:

(5) This subregulation applies to a non-citizen:
(a) who is in immigration detention under Division 6 of Part 2 of the Act; and
(b) who has not turned 18; and
(c) in respect of whom a child welfare authority of a State or Territory has certified that release from detention is in the best interests of the non-citizen; and
(d) in respect of whom the Minister is satisfied that:
(i) arrangements have been made between the non-citizen and an Australian citizen, Australian permanent resident or eligible New Zealand citizen for the care and welfare of the non-citizen; and
(ii) those arrangements are in the best interests of the non-citizen; and
(iii) the grant of a visa to the non-citizen would not prejudice the rights and interests of any person who has, or may reasonably be expected to have, custody or guardianship of, or access to, the non-citizen.

This provision does, therefore, allow for the best interests of the child to be considered on an application for a bridging visa. In practice, however, such bridging visas are very rarely granted. As indicated above [36], only 2 children were granted these visas in the period from 1 September 1994 to May 1998 [37]. Information on the DIMIA website [38] states:

Children in detention

Number of women and children in detention

It is interesting to contrast this statement with a submission made by the Department to the Senate Inquiry into Lost Innocents: Righting the Record - Report on Child Migration - 30 August 2001. That Inquiry, of course, related to the practice of bringing child migrants from the UK to Australia in the 1950s. It seems that institutionalisation is different for British children as opposed to child asylum seekers: [39]

It was not until the 1960s that attitudes to child care and child rearing in Australia began to change in the community at large. Existing practices were questioned and alternative types of care outside the institutional context were explored more widely. The emergence of social work as a profession appears to have had a significant impact on the treatment of children in care, with a greater reliance by governments and institutions on their guidance in establishing and maintaining appropriate standards. The trend away from institutional care in Australia was gradual and there were still over 20,000 children in institutions in 1972. This number had halved by 1981 and has fallen to just over 1,000 today.

Some children are more equal than others, it seems.

In practice, then, the overwhelming majority of child asylum seekers are subject to mandatory detention without regard to whether that detention is in their best interests. Detention denies all the children access to essential facilities, such as health, education and welfare, available to children in the general community. In our submission, detaining child asylum seekers is in many instances specifically counter to the best interests of the child. The practice of mandatory detention indicates that the child's best interests are the last rather than the primary consideration of government.

In particular, it is noted that the best interests of unaccompanied children can never be served by being detained as they are vulnerable to mistreatment and victimisation by both fellow inmates and the prison authorities.

There seems no good reason - notions of deterence aside - why families arriving in Australia with children should not be allowed to live in the community once basic procedures for confirming family members' identity and health assessments are complete. In that regard we support the Alternative Detention Models proposed by HREOC in its Submission to the Senate Legal and Constitutional References Committee inquiry into Australia's refugee and humanitarian program . [40]

ii. Discrimination because of immigration status (Article 2)

The 'non-discrimination' principle prohibits discrimination on the grounds of 'other status', including immigration status. Article 2 provides:

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.

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 because:

1. 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 CROC 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 .[41]

2. 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 under the migration legislation itself, as their rights to make visa applications in Australia are determined solely by their immigration status. Further, to the extent that these children's status is itself dependent on their parents' actions, Article 2(2) is also breached.

As indicated above, children who are 'unauthorised arrivals' can apply only for a temporary protection visa or bridging visa. Once they are granted a temporary protection visa, they can only apply for a protection visa - regardless of any relationships they may form with Australian citizens - and even that application can only be made after 30 months unless the Minister gives permission earlier .[42]

No such restrictions apply to children who are not 'unauthorised arrivals'.

As is clear from the above discussion, there are no special 'legislative, administrative and other measures' in place to ensure the protection of the rights set out in CROC during the process for determination of refugee status. Children in detention are not considered as a matter of policy to be wards of the Minister under the Immigration (Guardianship of Children) Act 1946. There are no special procedures in place for processing them or their applications.

iii. Right to meaningful participation in decision-making (article 12)

A child's right to participate meaningfully in all matters concerning him or her, personally or through a parent or guardian includes 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.

Unaccompanied minors are particularly vulnerable to not having their case properly heard because they are likely to have a lack of understanding of the process and an inability to access a legal representative or appropriate body.

To enable unaccompanied minors, and children accompanied by adults who have an asylum claim in their own right, to participate in the decision concerning their claim, they must first understand the process so they may properly provide the necessary information for making the claim.

It is our submission that to ensure that children, particularly unaccompanied minors, understand the process and are given an opportunity to provide the information required to properly determine their claim for asylum:

We urge the establishment of an Unaccompanied Minors and Vulnerable Persons Program comprising a multi-disciplinary team of professionals and legal advocates to properly assist unaccompanied minors and other vulnerable persons to properly present their claim for refugee status before the authorities .[43]

At the very least all minors, but particularly unaccompanied minors, must have access to legal advocacy to represent their case for asylum to the decision-makers.

Note
 As indicated above, we have sought in this submission to focus on the international law and human rights issues raised by the mandatory detention of child asylum seekers. For the views of the children themselves on their treatment in detention, we commend the joint submission of the Queensland Program of Assistance to Survivors of Torture and Trauma (QPAST) and the Youth Advocacy Centre (Qld) (YACQ) which is attached to this submission.

iv. Right to humane detention (Article 37(c))

Child asylum seekers in detention have not been arrested or charged with any criminal offence. Accordingly, their treatment should be as favourable as possible and in no way less favourable than that of untried or convicted prisoners . [44] The other 'civil, economic, political, social or cultural rights' of the child under national or international law should always be ensured, provided they are compatible with provisions on the deprivation of liberty. There should normally be a presumption that this is the case, unless serious security issues such as imminent escape or riots require the temporary restrictions of such rights.

In designing and delivering detention programs, Australia should always seek to minimise differences between life in detention and life at liberty and strive to meet the individual needs of each detainee; taking into account her or his history and experiences, age, gender and cultural, religious and linguistic identity. This is particularly important for detained children.

Both the Committee on the Rights of the Child and the Human Rights Committee have expressed concern about Australia's detention of asylum seekers in their Concluding Observations on Australia's periodic reports under both Conventions.

In 1997, the Committee on the Rights of the Child stated :[45]

The Committee is concerned about the treatment of asylum seekers and refugees and their children, and their placement in detention centres. (Concluding Observation 20).

In 2000, the Human Rights Committee stated :[46]

The Committee considers that the mandatory detention under the Migration Act of 'unlawful non-citizens', including asylum-seekers, raises questions of compliance with article 9, paragraph 1, of the Covenant, which provides that no person shall be subjected to arbitrary detention. The Committee is concerned at the State party's policy, in this context of mandatory detention, of not informing the detainees of their right to seek legal advice and of not allowing access of non-governmental human rights organizations to the detainees in order to inform them of this right.

The Committee urges the State party to reconsider its policy of mandatory detention of 'unlawful non-citizens' with a view to instituting alternative mechanisms of maintaining an orderly immigration process. The Committee recommends that the State party inform all detainees of their legal rights, including their right to seek legal counsel. (Concluding Observations 18, 19).

If child asylum seekers are to be detained in Australia, their detention conditions must meet minimum international standards on humane detention of children, which prohibits the ill-treatment of children. Australia is obliged to ensure to all child asylum seekers 'appropriate protection and humanitarian assistance' under article 22 of CROC. Appropriate protection and humanitarian assistance includes, as a minimum, providing every child with 'a standard of living adequate for the child's physical, mental, spiritual, moral and social development' .[47]

We endorse the HREOC Immigration Detention Guidelines [48] and submit that the Government should be again urged to adopt these guidelines.

v. Right to challenge detention (Article 37(d))

Judicial oversight of all forms of detention is a fundamental guarantee of liberty and freedom from arbitrariness. Without judicial oversight, administrative detention may be indeterminate, being decided on grounds of administrative or other convenience.

Article 37(d) of CROC states:

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority and to a prompt decision on any such action.

Again, we endorse the comments in the HREOC Background Paper 8 Deprivation of Liberty and Humane Detention on the scope of article 37(d). While both the Convention and ICCPR articles apply to all children held in detention, including child asylum seekers, article 37(d) of the Convention also provides the child with the right to 'prompt access to legal and other appropriate assistance' before a court or similar authority. Where a child does not have access to legal and other assistance to challenge her or his detention, there will be a violation of the Convention. [50]

The Human Rights Committee has determined that the lack of provision for review of the detention of an alien for a period of three days because of his incommunicado detention amounted to a breach of article 9(4) of the ICCPR.

Judicial review of detention in Australia remains very limited. As discussed above, the scheme of the legislation is to make non-citizens - including child asylum seekers - without a valid visa liable to detention by operation of law. They cannot be released unless they are granted a visa. Thus any legal challenge to their detention will be 'merely formal' and unable to succeed.

At present, there is no court in Australia in which child asylum seekers can take proceedings to determine whether their detention is arbitrary and therefore in contravention of the Convention. Accordingly, Australia would appear to be in breach of article 37(d) of the Convention and article 9(4) of the ICCPR.

vi. Implications of the detention policy on the non-refoulement obligation

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 as a result of Article 22 of CROC. We endorse the following passage from the HREOC Background Paper 7 Legal Status:

The definition of a refugee in the Refugee Convention provides the grounds upon which decisions can be made as to whether adults and children are refugees. Some States have adopted a wider definition of refugee, while others have introduced an additional humanitarian visa category to cover situations where an individual may not fall within the Refugee Convention but may face serious harm in another country and require international protection.

Such additional measures may assist States in ensuring their non-refoulement obligations under a number of international treaties, including article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and articles 6 and 7 of the ICCPR, are capable of being met. The non-refoulement obligation, which prohibits the forcible return of any person to a country where she or he risk persecution or serious harm, is a core legal obligation on Australia and arguably a peremptory norm of international law. In order for Australia to fulfil its obligation of non-refoulement, a number of positive actions are required, including the presence of an effective procedure to determine the validity of an asylum seeker's claim to be a refugee and of any risk of serious harm to the individual if returned to a third country.

As is pointed out in the Background Paper, asylum claims determined to fall outside the scope of the Refugee Convention definition are considered for non-refoulement risks only under a non-compellable, non-reviewable Ministerial humanitarian discretion. This does not satisfy Australia's obligations under the Refugee Convention.

E. Boat arrivals under the current regime
 A major issue in relation to Australia's obligations under the Refugee Convention arises in relation to those people affected by the amendments made to the migration legislation on 21 September 2001. Asylum seekers affected by those changes made in the wake of the Tampa affair last year are now subject to the new s.46A:

46A Visa applications by offshore entry persons
 (1) An application for a visa is not a valid application if it is made by an offshore entry person who:

(a) is in Australia; and
(b) is an unlawful non?citizen.

(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
(4) If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:

(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that the Minister's actions are in the public interest.

(5) A statement under subsection (4) must not include:

(a) the name of the offshore entry person; or
(b) any information that may identify the offshore entry person; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned-the name of that other person or any information that may identify that other person.

(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:

(a) if the determination is made between 1 January and 30 June (inclusive) in a year-1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year-1 January in the following year.

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

S.46A makes any application for a visa invalid (and therefore DIMIA is not required to even accept it for lodgment) if the application is made by an offshore entry person who:

(a) is in Australia; and
(b) is an unlawful non-citizen.

The Minister has power to personally waive the s.46A ban and allow an application to be lodged if it is in the public interest. This is a non-compellable ministerial discretion and there are not, at present, any policy directions or guidelines for the exercise of this Ministerial discretion.

The key provision in this new offshore entry person regime is s.198A:

198A Offshore entry person may be taken to a declared country
 (1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).

(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and

(b) in writing, revoke a declaration made under paragraph (a).

(4) An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).

(5) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

The Department says :[52]

Australia will meet its international protection obligations under the UN Refugees Convention by making an assessment for refugee status for any asylum seekers. For people who are found to be refugees, the Minister is able to use his non-compellable discretionary power to allow an application for a visa to be made. Alternatively, third country resettlement may be the preferred outcome.

Exactly (how or where) the Government intends to 'meet its international protection obligations' is unclear. Sooner or later we will run out of willing Pacific Island states on which to dump these asylum-seekers. Not only are the provisions for arbitrary detention and forced removal objectionable, it is not clear how these asylum seekers are going to be given any fair assessment process at all given that being outside Australia these procedures are not required to comply with Australian law.

None of these provisions, of course, contain any reference to the fact that some of these 'offshore entry persons' are in fact children. Again, there is no provision made for the interests of the children to be considered at all in any of these processes. In no sense can it be argued that the 'best interests' of these children are even a consideration in this scheme, let alone a primary consideration. Unlike the children themselves, their rights seem to have been thrown overboard.

The provisions of subsection 198A(3) are of concern. There is no requirement, for example, for the country to which 'offshore entry persons' are removed to be a signatory to the Refugees Convention. Further, the declarations are entirely at the discretion of the Minister without, for example, the safeguard which exists in s.91N(3) of the Act which also deals with questions of residence in a third country:

(3) The Minister may, after considering any advice received from the Office of the United Nations High Commissioner for Refugees:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection to persons to whom that country has protection obligations; and
(iii) meets relevant human rights standards for persons to whom that country has protection obligations; or
(b) in writing, revoke a declaration made under paragraph (a).

No explanation has been provided as to why this procedure is not acceptable under the new regime for offshore entry persons. Again, there is no requirement for any consideration to be given to the interests of children affected by these laws.

Clearly these new provisions are designed to ensure that Australia does not have to recognise its protection obligations under the Refugee Convention in respect of those boat arrivals. The legal fiction that Christmas Island and the other territories are not part of Australia for the purposes of the Migration Act may be valid under Australian law, but it cannot operate to excuse Australia from its obligations under international law. Australia is therefore in breach of its protection obligations under the Convention in respect of all of these boat arrivals including the children.

3. ADDITIONAL ISSUES FOR UNACCOMPANIED MINORS IN DETENTION

A. Guardianship of unaccompanied minors
 In relation to unaccompanied minors, the Immigration (Guardianship of Children) Act provides for the Minister to act as the guardian of children in the following circumstances :[53]

(1) Subject to subsections (2) and (3), a person (the 'child') is a non-citizen child if the child:

(a) has not turned 18; and
(b) enters Australia as a non-citizen; and
(c) intends, or is intended, to become a permanent resident of Australia

(2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:

(a) a parent of the child; or
(b) a relative of the child who has turned 21; or
(c) an intending adoptive parent of the child

The application of this provision is explained in the following extract from the DIMIA policy concerning the application of the Immigration (Guardianship of Children) Act: [54]

4.10 The IGOC Act and Protection visa applicants

4.10.1 Together, s4AA and other provisions of the IGOC Act and Regulations ensure that, unless paragraph 4.10.2 applies, minors who are Protection visa applicants fall within the IGOC Act. It follows that, unless paragraph 4.10.2 applies,

4.10.2 The IGOC Act does not apply

4.10.3 Although not defined for the purposes of the exemption provisions of s4AAA(2)(b) of the IGOC Act, it is policy (consistent with that for unaccompanied humanitarian minors) that 'relative' is limited to meaning a 'close adult relative', namely a grandparent, brother, sister, uncle or aunt (of an unaccompanied humanitarian minor) who is 21 or over.

Accordingly it is policy that the Minister does not accept responsibility for the guardianship of unaccompanied minors in detention centres. It is not clear how this policy conclusion is reached. Section 4AAA does not appear to exempt children in detention from the operation of the Act. The key issue is whether they intend to remain permanently in Australia - not their 'immigration status' or whether they are in detention. This policy again appears to breach the prohibition against discrimination in Article 2 of CROC.

We submit that unaccompanied minor's interests would be best served by not being placed in detention at any time but by being placed under the guardianship of the relevant state welfare authorities and/or community organisations or individuals who could properly care for the child's needs for survival and development (Article 6) while the application is processed. The guardian/care-provider would be responsible for ensuring that the best interests of the child are respected throughout the status determination procedure and in all care and welfare decisions concerning the child.

Any organisations or individuals volunteering to care for children would need to be subject to assessment similar to foster application assessments for the general community to ensure that unaccompanied minors are cared for to the same standard expected for other children in the community who are not under the care and guardianship of their own family.

B. New arrivals
 On arrival in Australia, unaccompanied children should:

1. Have immediate access to the relevant authorities and be registered as asylum claimants through interviews to obtain biographical details and social history.
2. Be placed in the guardianship of the Minister for Immigration for the period required for the relevant state welfare authority to assume guardianship of the child.
3. Be placed in appropriate alternative care in the community - consideration would need to be given to the age, sex, culture and language and psychological and physical health of the child. For example, young children should be placed in a family unit while it may be appropriate to place an adolescent in a more independent style of accommodation such as hostel. Where possible, particularly for older children, the child's view on placement should be considered.
4. Have access to all education, health and welfare facilities and resources that are available to other children in alternative care in the community, including any facilities or resources required for an individual child's special needs.

C. Unaccompanied minors currently detained
 There may be unaccompanied minors in the detention centres of which the decision makers are unaware because they have claimed to be the children of adult detainees. This may be for a variety of reasons such as fear for their safety in the centres or that their applications will be unsuccessful or because they have been cared for by a particular family when en route to Australia.

A program needs to be put in place to properly locate all the unaccompanied minors in the detention centres and to document their biographical details and social history. A decision may then need to be made in consultation with the child, significant others and relevant professionals as to whether the child should remain with the people caring for him/her or a guardianship arrangement is needed while the child's application is being processed.

The educational, health and welfare facilities and resources mentioned above should also be available to these children.

D. Children arriving with their families
 We submit that the best interests of children arriving with their families would also be served by allowing the families to live in the community once basic procedures for confirming family members identity and health assessments are complete.

These children should have access to all education, health and welfare facilities and resources that are available to other children in the community, including any facilities or resources required for an individual child's special needs.

4. ALTERNATIVES TO DETENTION

Detention is part of a policy of deterrence on the part of the Australian government. As discussed above, the detention of child asylum seekers in circumstances where other children in Australia are not detained raises issues under the non-discrimination provision of the Convention.

Under bridging visa requirements, child asylum seekers cannot be released from immigration detention unless a State or Territory child welfare authority certifies that a release from detention is in the child's best interests and the Minister for Immigration and Multicultural and Indigenous Affairs is satisfied that appropriate arrangements have been made for the care and welfare of the child outside of detention. As it is usually in a child's best interests to remain with her or his family, and there is no provision for release of families from detention, children are rarely granted bridging visas.

Again, on these issues we endorse the attached submission made by QPAST and Youth Advocacy Centre (Qld) to the Inquiry.

5. CONCLUSION

As will be clear from the above comments, our overriding concern with the current 'regime' for mandatory detention of asylum-seekers is that the regulatory scheme does not contain any reference to the fact that some of these asylum seekers are in fact children.

That regulatory scheme accordingly contains no provision for the interests of the children to be considered at all in any of these processes. In no sense can it be argued that the 'best interests' of these children are a real consideration in this scheme, let alone a primary consideration as is required by CROC.

The bridging visa scheme that is supposed to enable consideration to be accorded to the rights of the children concerned has to be seen in the context of the scheme as a whole. So long as the law requires their parents to be detained, a policy which states that it is always in the children's best interests to be with their parents ensures that no real consideration is given to the interests of the children in each case.

Unlike the children themselves, their rights seem to have been thrown overboard.

As HREOC has argued before, the only solution in keeping with our international obligations is to abandon the regime of mandatory detention altogether.

1. See 5(1) Migration Act, essentially boat arrivals who arrived at an excised offshore place after the amendments to the Act made last September. At present the territories of Christmas Island, Cocos (Keeling) Islands, Ashmore and Cartier Islands and Australian sea and resource installations (also defined in the Act) are excised offshore places.
2. s.189 of the Migration Act: to be immigration cleared a person must present themselves to Australian immigration officials at an airport or port in Australia.
3. See discussion below. Only two children were released from detention under this provision in the period from 1 September 1994 to May 1998.
4. According to the Minister in a Ministerial Press Statement of 7 August 2001, 'Of the unauthorised boat arrivals who came to Australia in 1999-2000, there was an average approval rate of 94 per cent. That figure dropped significantly for unauthorised boat arrivals in the July - December 2000 period, where the overall grant rate had fallen to an average of 75 per cent'.
5. Drawn from DIMIA website at http://www.immi.gov.au/detention/women.htm
6. Article 2 of CROC
7. Article 22 of CROC
8. Article 31 of the Refugees Convention
9. Under Article 9.1 of the ICCPR
10. Human Rights Committee, General Comment No. 8 (1982), paragraph 1.
11. The submission is on the HREOC website at: http://www.hreoc.gov.au/human_rights/asylum_seekers/#submission. See also the Report of the Committee, Inquiry into the operation of Australia's refugee and humanitarian program, 28 June 2000, at http://www.aph.gov.au/senate/committee/legcon_ctte/refugees/contents.htm
12. Documentary references and a summary of these debates are given in M Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on Civil and Political Rights, Martinus Nijhoff, Dordrecht, 1987, page 343.
13. Communication No. 305/1988, Human Rights Committee Report 1990, Volume II: UN Doc. A/45/40, paragraph 5.8 (emphasis added).
14. In A v Australia, Communication No. 560/1993, the Committee stated 'remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context': Views of the Human Rights Committee, 30 April 1997: UN Doc. CCPR/C/59/D/560/1993.
15. Id, page 24 (emphasis added).
16. (1986) (ExComm Conclusion 44), UN Doc. A/AC.96/688, paragraph 128.
17. See also Note on International Protection, 15 August 1988: UN Doc. A/AC.96/713, paragraph 19.
18. The 1995 Guidelines were replaced early in 1999 and clarify the scope of application of ExComm Conclusion 44.
19. Guideline 1: Scope of the Guidelines. This definition of detention is based on the Note of the Sub-Committee of the Whole on International Protection of 1986, 37th Session, UN Doc. EC/SCP/44, paragraph 25.
20. 'Introduction', paragraph 1.
21. Ibid.
22. Ibid.
23. Ibid.
24. Rules 1 and 2, United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Rule 2 provides "[d]eprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release".
25. Guideline 6, UNHCR Guidelines on Detention (emphasis retained).
26. Rule 17(b) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) provides: "Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum".
27. See footnote 10 for reference.
28. The Department of Immigration and Multicultural Affairs has advised the Commission that two minors have been released from detention on bridging visas 'since May 1998'.
29. Guideline 6: Detention of Persons under the Age of 18. Reference is also made to CROC articles 3, 9, 20, 22 and 37, the UN Rules for Juveniles Deprived of their Liberty and the UNHCR Guidelines on Refugee Children, 1994.
30. UNHCR Refugee Children: Guidelines on Protection and Care (UNHCR Guidelines on Protection and Care), (1994) chapter 7
31. Guideline 6.
32. Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
33. Since 1995, three Bills seeking to reverse the Teoh decision have passed the House of Representatives but have been defeated in the Senate.
34. Article 4, CROC.
35. See also subregs 2.20
36. See footnote 3
37. HREOC Submission to the Senate Legal and Constitutional References Committee inquiry into Australia's refugee and humanitarian program, pp.6-7.
38. See report Women and Children in Detention at http://www.minister.immi.gov.au/detention/women_&_children.htm
39. at p.10. The full submission can be accessed on the Inquiry website at http://www.aph.gov.au/senate/committee/clac_ctte/child_migrat/submissions/sub42%20.doc
40. see footnote 10 for reference
41. See the comments of the UN 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.
42. Clause 866.228 of Schedule 2 of the Migration Regulations provides that 'If the applicant holds a Subclass 785 (Temporary Protection) visa, the applicant has held that visa for the lesser of:
(a) a continuous period of 30 months; and
(b) a shorter period specified in writing by the Minister in relation to the applicant.'
43. UNHCR used a similar model in the refugee camps in Hong Kong established under the Comprehensive Plan of Action
44. Rule 94, Standard Minimum Rules for the Treatment of Prisoners.
45. CRC, Concluding Observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/15/Add. 79, 10 October 1997.
46. HRC, Concluding Observations of the Human Rights Committee : Australia, paras 498-528
47. CROC, Article 27
48. See the HREOC website at http://www.hreoc.gov.au/human_rights/asylum_seekers/index.html#idc_guidelines
49. This provision mirrors article 9(4) of the ICCPR which provides that Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
50. See the discussion of the case of Berry v Jamaica, of the Human Rights Committee, Communication No. 330/1988, 16 October 1992, at footnote 53 to the Background Paper.
51. See s.417, Migration Act
52. See Departmental Fact Sheet 90, New Measures to Strengthen Border Control, Public Affairs Section, Department Immigration and Multicultural Affairs, Canberra, 28 September 2001.
53. see Section 4AAA
54. see para 4.6.2 of the DIMIA Procedures Advice Manual 3

Last Updated 9 January 2003.