1. Terms of reference

The Human Rights Commissioner, Dr Sev Ozdowski, conducted an Inquiry into children in immigration detention on behalf of the Commission.

The Commissioner inquired 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:

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.

2. Reasons for the Inquiry

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

• promoting an understanding and acceptance of human rights in Australia;
• undertaking research to promote human rights;
• examining laws relating to human rights; and
• advising the federal Attorney-General on laws and actions that are required to comply with our international human rights obligations.

The Commission also inquires into complaints of breaches of human rights under the Human Rights and Equal Opportunity Act 1986 (Cth). In the past reporting year, the Commission has received an increase in the number of complaints about human rights breaches involving children in immigration detention.

One area of Commission responsibility is the rights of children under the Convention on the Rights of the Child (1989). Australia agreed to be bound by the Convention in December 1990. The Australian government has also included the Convention in the human rights responsibilities of the Human Rights and Equal Opportunity Commission.

Key principles of the Convention are:

• The right to survival and development.
• The best interests of the child as a primary consideration in all actions concerning children.
• The right of all children to express their views freely on all matters affecting them.
• Respect for the responsibilities, rights and duties of parents and families to provide direction to a child in the exercise of their rights.
• The right of all children to enjoy all the rights of the Convention without discrimination of any kind.

The Convention applies to every child in Australia regardless of nationality or immigration status and regardless of how the child arrived in Australia.

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

• family life, and to be with their parents unless separation is in their best interests.
• the highest attainable standard of health.
• protection from all forms of physical or mental violence, sexual abuse and exploitation. They also have the right to recover and be rehabilitated from neglect, exploitation, abuse, torture or ill-treatment, or armed conflicts.
• to practise their culture, language and religion.
• to rest and play.
• to primary education, and different forms of secondary education should be available and accessible to every child.
• appropriate protection and humanitarian assistance as an asylum seeker or refugee.
• not be deprived of their liberty unlawfully or arbitrarily, with detention only in conformity with the law, as a measure of last resort and for the shortest appropriate period of time.
• be treated with humanity and respect for their inherent dignity and in a manner which takes into account their age.
• access to legal assistance and the right to challenge their detention.
• not be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
• privacy.
• a standard of living adequate for physical, mental, spiritual, moral and social development.

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

To access A Last Resort? - The Report of the National Enquiry into Children in Immigration Detention click here