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Submission to National Inquiry into Children in Immigration Detention from
the Law Society of New South Wales
INTRODUCTION
The aim of this submission is to inform HREOC, at the outset of its Inquiry, of the concerns held about Children in Immigration in Detention, by members of the legal profession in New South Wales. The focus of the submission is limited to the issue of compliance with international and domestic legal obligations. Relevant obligations are outlined, concerns are highlighted and finally, recommendations to address those concerns are listed. The Law Society welcomes any future opportunity to address any specific matters in greater detail at the request of HREOC.
OBLIGATIONS
The international obligations imposed upon Australia in relation to this issue are derived from various international treaties and the common law. The treaties are not foreign documents drafted in distant lands with little relevance to life in Australia. Rather, they reflect consensus principles of the international community and are designed to be used as a benchmark of agreed minimum standards. Where ratified by Australia those instruments are binding on Australia in international law. Australia has undertaken to ensure that the standards outlined in that treaty are applied to everyone in its territory, and courts should interpret laws consistently with treaty provisions. They will only create enforceable rights in Australia, however, where they have been incorporated into Australian law (or in some cases by signing the relevant Optional Protocol). The relevant instruments and rights outlined within them include the following:
Convention on the Rights of the Child, 1989 (CROC) [1]
- Children should not be deprived of liberty unlawfully or arbitrarily and should only be detained as a matter of last resort and for shortest appropriate period of time (Article 37(b));
- right to protection and care as necessary for well-being (Article 3(2));
- right to prompt access to legal and other assistance and right to challenge their detention (Article 37(d));
- right of all children within jurisdiction to enjoy all the rights of CROC without discrimination of any kind, regardless of nationality, immigration status or how the child arrived in Australia (Article 2);
- the best interests of the child as a primary consideration in all actions concerning children (Article 3(1));
- free expression of opinion in matter affecting the child (Article 12) and in particular, right to be heard in any judicial and administrative proceedings affecting the child … in a manner consistent with the procedural rules of national law (Article 12(2));
- right to survival and development (Article 6(2));
- child asylum seekers have right to receive appropriate protection and humanitarian assistance (Article 22(1);
- children temporarily deprived of a family environment are entitled to the special protection and assistance of the State (Article 20);
- right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (Article 27(1));
- right to education and training (Articles 28 and 29), to privacy (Article 16), to rest, play and recreation facilities (Article 31);
- right to the highest attainable standard of health and rehabilitation (Article 24) and to recover from abuse or violence (Article 39);
- right to freedom negligent treatment, maltreatment or exploitation (Article 19).
International Covenant on Civil and Political Rights, 1966 (ICCPR) [2]
- children have the right to protection (Article 24).
- right to liberty and freedom from arbitrary detention and right to challenge detention (Article 9);
- right to be treated with humanity and respect for the inherent dignity of the human person (Article 10.1);
- all persons to be equal before the courts and tribunals (Article 14.1);
- right to freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 7);from torture or cruel, inhuman or degrading treatment or punishment (Article 37(a)); and
- protection from physical or mental violence, injury or abuse, neglect or
International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) [3]
- right to highest attainable standard of physical and mental health (Article 12) and healthy development of the childe (Article 12(2)(a));
- right to protection of the family (Article 10.1);
- right to education (Article 13).
Convention Relating to the Status of Refugees, 1951 (Refugee Convention) [4]
- right to provision of public education for child asylum seekers, with same treatment as nationals with respect to primary education and as other non-nationals with respect to other education (Article 22);
- prohibition against refoulment (Article 33(1))
Other relevant instruments which operate in part to protect and uphold the rights of child asylum seekers include: the Universal Declaration of Human Rights, 1948 (UNDHR); the Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment, 1984 (CAT)[5] ; the International Convention for the Elimination of all Forms of Racial Discrimination, 1965 (CERD)[6] ; the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW)[7] ; and various documents such as United Nations High Commission Recommendation Guidelines, Notes and Policies [8] which operate to provide a practical guide for ensuring compliance with the standards set in the instruments above in respect of treatment of children. Such documents are not binding on Australia as a matter of international law but are persuasive in interpreting treaties and contain goals and aspirations reflecting a consensus of world opinion.
In terms of the common law interpretation of Australia's international obligations, the High Court's decision in Teoh's case [9] gave rise to a "legitimate expectation" that international instruments would be considered in administrative decision making. [10]
In terms of Australia's domestic obligations, the rule of law (granting all persons equal status before the law) and the doctrine of separation of powers (allowing for review by the judiciary of legislature and executive decisions) are called into question by the current legislative regime, as are basic principles of access to justice, presumption of innocence and free speech. More specifically, the Minister for Immigration has certain responsibilities under the Immigration (Guardianship of Children) Act 1946 (Cth).
CONCERNS
The Law Society of New South Wales has reason to believe and is concerned that:
1. Australia's policy of mandatory and non-reviewable detention of unauthorised child arrivals is unlawful and places Australia in breach of its international and domestic legal obligations. [11] [12]
2. automatic mandatory detention leads to prolonged detention.
3. unlimited detention of asylum seekers is likely to cause further trauma to these vulnerable people.
4. child asylum seekers in detention are being incarcerated despite having not been arrested or charged with any criminal offence. [13]
5. access is being denied to persons wishing to observe or monitor detention centre operations or to assist asylum seekers in the migration application process.
6. the geographical isolation of detention centres such as Woomera, Port Hedland and Curtin results in lack of services and community interaction for asylum seekers.
7. children are inflicting self-harm such as lip-sewing, slashing, shampoo ingestion, attempted hanging and threats of self-hurt including suicide. [14]
8. access to education and schooling is insufficient and inappropriate. [15]
9. detention facilities are overcrowded and otherwise inappropriate with insufficient privacy or recreational activities and restricted areas for movement. [16]
10. the independence of the Refugee Review Tribunal cannot be maintained with the practice of six-monthly 'performance reviews' of tribunal members based on remittal rates and of appointing members on one year, renewable terms.
11. the so-called "Pacific Solution" (introduced in August 2001) of detaining asylum seekers (including children) on arrival or intercepting and removing them to third countries such as Nauru and Papua New Guinea where their asylum claims are to be determined is costly, ineffective and in breach of Australia's legal obligations. [17]
Further, the Law Society is concerned that it prevents independent observers and lawyers having access to detention centres and prevents asylum seekers from having access to appropriate health, education and other services.
RECOMMENDATIONS
In order to bring Australia into line with its international and domestic obligations in respect of child asylum seekers, the Law Society of New South Wales recommends that:
1. a humanitarian approach be adopted in determining the status of child asylum seekers including swift and fair processing of applications.
2. access be granted to asylum seekers (including children and/or their parents or guardians) to migration, legal and welfare information as well as legal advice and representation. Measures may include, for example:
a) the assignment of a case worker to asylum seekers who can assess their legal, health, educational and other needs and provide support and assistance throughout the processing of their application;
b) on-site medical staff, legal advisers and interpreters for asylum seekers to access as necessary; and
c) the provision of an information booklet to asylum seekers (in clearly comprehensible and relevant first language) which outlines the visa application process and legal rights;
3. child asylum seekers be given the same access to welfare services (health, education, accommodation) as Australian children.
4. remote detention centres be relocated to be closer to (and a part of) the community which would allow for easier access to various services and supports systems.
5. there be greater transparency and monitoring of detention centres, including access being granted to independent persons with a legitimate interest, including legal representatives.
6. allowance be made for independent federal judicial review of Refugee Review Tribunal, Migration Review Tribunal and Administrative Appeals Tribunal decisions under the Migration Act 1958 (Cth) and to this end privative clauses in relation to judicial review of migration decisions be removed. [18]
7. an independent and properly resourced Refugee Review Tribunal be maintained.
8. Australia should take guidance from and seek to utilise the various international instruments and documents referred to above as a practical way of ensuring compliance with its international obligations in respect of child asylum seekers.
CONCLUSION
Relative to other European and North American countries Australia receives very few asylum seekers. [19] Australia's policy of mandatory detention (of asylum seekers until determination of application) is inconsistent with most other Western democracies which detain only for limited purposes of health, character and identity checks and for a maximum of 2-4 weeks.[20] The price Australia is paying by adopting this approach is international condemnation for the disregard shown of internationally recognised standards.
The NSW Law Society is concerned that Australia's international and domestic obligations are not being met or considered by the Federal Government in the current handling of children in detention centres. As a responsible international citizen, Australia needs to comply with its international obligations in respect of refugees. Domestically, Australia needs to ensure access to justice (including the provision of legal information, advice and representation) to those who need it most.
1. 191
countries have ratified the Convention and Australia did so on 17 December
1990. Australia has not signed the first optional protocol (on the involvement
of children in armed conflict) but did sign the second optional protocol
(on the sale of children and child prostitution and pornography) on 18
December 2001. Although not legally binding, the Convention is incorporated
in federal law as part of the human rights responsibilities of HREOC.
CROC affirms some of the most basic principles of children's rights, including
the provision of health care, housing, social security, education, and
protection from neglect, cruelty and exploitation.
2. Australia signed the ICCPR on 18 December 1972 and
ratified in 1980. Australia signed the first optional protocol to the
ICCPR (which recognised the jurisdiction of the UN Human Rights Committee
to receive and consider complaints from individuals about violations of
rights set out in the Convention by a State Party) on 25 September 1991
and the second optional protocol (which aims to abolish the death penalty)
on 2 October 1990.
3. Australia ratified the ICESCR on 10 December 1975.
4. Australia ratified the Refugee Convention on 22 January
1954 and acceded to the Protocol Relating to the Status of Refugees, 1967
on 13 December 1973.
5. Australia ratified CAT on 8 August 1989.
6. Australia ratified CERD on 30 September 1975.
7. Australia ratified CEDAW on 28 July 1983. It has not
signed the Optional Protocol to CEDAW which would allow the Committee
on the Elimination of Discrimination Against Women to receive and consider
complaints.
8. These include: UNHCR (1988), Guidelines on Refugee
Children; UNHCR (1994) Refugee Children: Guidelines on Protection and
Care; UNHCR (1997) Guidelines on Policies and Procedures in dealing with
Unaccompanied Children Seeking Asylum; UNHCR (1999) Revised Guidelines
on applicable Criteria and Standards relating to the Detention of Asylum-Seekers;
Save the Children/UNHCR (2000), "Statement of Good Practice"
of the Separated Children in Europe Programme.
9. Minister of State for Immigration and Ethnic Affairs
v Teoh (1995) 183 CLR 273.
10. The decision of the High Court in Project Blue Sky
Inc and ors v Australian Broadcasting Authority (1998) 194 CLR 355 went
further to impose a legal obligation to take into account and apply international
instruments to which Australia is a party in circumstances where the governing
legislation makes even indirect reference to international instruments.
In that case, s160(d) of the Broadcasting Services Act 1992 (Cth) required
the ABA to perform its functions in a manner consistent with 'Australia's
obligations under any convention to which Australia is a party or any
agreement between Australia and a foreign country.'
11. A similar conclusion was reached in the HREOC report,
"For those who've come across the seas", May 1998.
12. Recent amendments to the Migration Act, 1958 (Cth)
operate so as to place Australia in breach of its legal obligations including
the restriction of judicial review (and thereby infringing separation
of powers doctrine) and the restriction of asylum seekers' access to justice.
13. As at 1 February 2002 DIMIA reported that there were
365 minors, including 13 unaccompanied minors, held in detention centres
and 9 unaccompanied minors in alternate care of the South Australian Department
of Human Services provided through Family and Youth Services. There is
also one unaccompanied minor issued with a bridging visa who has been
placed in foster care arrangements in the community.
14. Media Statement by President Professor Alice Tay
AM and Dr Sev Ozdowski, Human Rights Commissioner OAM, 6 February 2002.
15. Tay and Ozdowski Media Statement, supra n12.
16. HREOC report, "For those who've come across
the seas", May 1998.
17. Amnesty International Secretary General, Irene Khan,
said that diverting boatloads of people in this way "in exchange
for huge sums of money perpetuated the very trafficking of human misery
that the Australian Government claims it is seeking to prevent."
The Age, 5 March 2002. Democrats leader Natasha Stott-Despoja also commented
that "the 'solution' would not reduce asylum seeker numbers but would
cost hundreds of millions of dollars and make it harder for refugees to
settle in the community." in "Watchdog calls for time on new
laws" 24 September 2001. Similarly, former Law Council President
Anne Trimmer opposed the combined effect of the legislative package saying
they "substantially cut the rights of asylum seekers to have access
to our legal system to establish a claim as a refugee" and pointing
out that "Rights of judicial review for this category of decisions
are already very restricted." Ms Trimmer said "Australia voluntarily
accepted this obligation when it ratified the Refugee Convention and made
it part of our law. Any person within the territory of Australia, whether
an unauthorised arrival or not, must have a right of access to the courts,
in particular to have decisions of government officials which affect their
rights reviewed by the courts." in "Law Council Opposed to Migration
Legislation", 19 September 2001.
18. See Law Council of Australia's policy on Post Border
Protection Legislation.
19. UNHCR "Asylum Trends in Europe, North America,
Australia and New Zealand January-March 2002" 25 April 2002, Population
Data Unit UNHCR Geneva
20. See the Refugee Council of Australia's summary of
The Detention of Asylum Seekers in Europe Procedures http://www.refugeecouncil.org.au/alternativeEurope.htm
