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Submission to the National Inquiry into Children in Immigration Detention from
the Tasmanian Government
The Tasmanian Government recognises the Federal Government's responsibilities for the management of immigration to Australia. During the last decade a policy of mandatory detention has been established for those who enter Australia without proper authority (an appropriate visa). A period of detention allows the Commonwealth Government to ensure that those unauthorised arrivals do not have a health status, character or criminal record of concern to the Government. This period of detention is supportable on the basis of the public interest - to the limited extent necessary to make these determinations.
The above statement should not be interpreted as support for every feature of the Commonwealth Government's management of unauthorised arrivals.
There is a range of general factors that should be considered as part of this Inquiry into Children in Detention.
1. Australian domestic law recognises that the welfare of children is paramount, and that the interests of the child in family disputes should be the first focus of decision-makers. These principles should be applied equally to children of refugees, whether legally or illegally in Australia and whether in detention or not.
2. The welfare of children held in detention centres should be the paramount consideration prevailing over other rights.
3. Children in detention ought to be accorded the right to equal treatment at the hands of the law, in the same manner as adults. Having parents in custody awaiting the outcome of an application for residency should not limit a child's rights to fair and even handed treatment at law, in the same way as it is extended to all other children in Australia.
4. To ensure that the rights of children held in detention centres can be monitored it is necessary for the Commonwealth Government, and the state and territory governments where the children are situated, to publicly document a range of information. Such information should include:
- the number of children held;
- where they are held;
- whether they are together with a parent or parents or some other relative;
- their ages;
- their siblings; and
- their sex/gender.
5. Children in detention should have access to educational resources, health care and legal advice and support, in accordance with the principles established through the International Convention on the Rights of the Child. In these circumstances it is important that programs, such as that which operated at Derby allowing detainees to enter the local community to participate in education, are extended to other populations of children in detention. The trial at Woomera of allowing women and children into the community to access services should also be extended to other Detention Centres.
6. Administrative decisions about the welfare and placement of children should be subject to the principles of the International Convention on the Rights of the Child.
7. The rights of children in detention should be confirmed in statutory form under Commonwealth law, applicable to children held in all states and territories.
8. Tasmania's Office of the Commissioner for Children could be used as a model for establishing an independent statutory authority at national level to oversee the implementation of the Convention on the Rights of the Child (including issues pertaining to children held in detention) into Australian law, and with an independent 'watching brief' to ensure that the rights of children in detention or released from detention, whether with or without their parents or families, are protected and upheld.
9. Children in detention should have independent access to any new Commonwealth Office of the Commissioner for Children and to Commonwealth, state and territory human-rights/anti-discrimination commissions, and these bodies should have independent access to children who seek their advice and assistance.
10. It is difficult to reconcile the current policy of the Commonwealth Government with principles and obligations developed in international law. The concept of the 'best interests of the child' as expressed in the Convention on the Rights of the Child has been used as a justification for holding children in detention (i.e. not separating them from the family unit) but has the effect of maintaining them in an environment likely to be prejudicial to their social and intellectual development. This is a choice between two 'second-best' options for the wellbeing of the child.
11. The facilitation of legal representation, advice and support for unaccompanied minors on arrival is a key government responsibility. The Tasmanian Government understands that these people are placed under the guardianship of the Minister for Immigration, Multicultural and Indigenous Affairs in the time prior to their release from detention (should that occur). The Tasmanian Government will not accept any unaccompanied minors to Tasmania following release from detention in the absence of a Memorandum of Understanding (MOU) allowing for the transfer of guardianship to the Tasmanian Minister for Health and Human Services.
12. The Tasmanian Government understands that the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) undertook to negotiate MOUs with state governments around 18 months ago in relation to supporting unaccompanied minors upon their release from immigration detention. Currently, however, there is only one MOU in place which is between the Commonwealth and South Australian Governments.
13. An example of poor management of a child detainee was brought to the attention of the Tasmanian Government during the last 12 months when a request was received from the Hobart DIMIA office for the State to provide a wheelchair for an unaccompanied, disabled minor upon his arrival. No other information was made available about the minor. This highlighted the lack of provision and planning for children with special needs both in detention and following their release. It also highlights problems with the separation of the contract for services and infrastructure in detention and the management of asylum seekers post release.
14. The Tasmanian Government is currently providing support and services to a disabled child who has been released from detention accompanied by his father. In this case it appears there has been an adequate level of service provision for the child in detention with most current problems being related to lack of service and support in the country of origin and during the transition to Australia.
15. As with any detention system consideration should be given to separation of families/individuals who are waiting for a determination of their application for asylum from families/individuals who have already received an unfavourable determination. This may promote the wellbeing of children whilst they await the determination of asylum applications and improve their environment during this crucial period.
16. Services available post release for asylum seekers include torture and trauma counselling. Given the experiences of child asylum seekers they may require this counselling earlier. Delaying the availability of counselling until release may prolong anguish and distress and impact on the long term mental health of the child.
May 2002
Last Updated 9 January 2003.
