No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
Convention on the Rights of the Child, article 37(b)
Preface
Executive Summary
1. Introduction
- 1.1 What power does the Commission have to hold an inquiry?
- 1.2 What are the terms of reference for the Inquiry?
- 1.3 What is the time period covered by the Inquiry?
- 1.4 Who are the Commissioners who conducted the Inquiry?
- 1.5 What is the structure of the report?
2. Inquiry Methodology
- 2.1 How did the Inquiry gather evidence?
- 2.2 How did the Inquiry assess, analyse and utilise the evidence before it?
3. Setting the Scene - Children in Immigration Detention
- 3.1 Where can children be detained?
- 3.2 How many children have been in immigration detention?
- 3.3 How many detainee children have been recognised as refugees?
- 3.4 How long have children been in immigration detention?
- 3.5 What is the background of children in immigration detention?
- 3.6 How did the children get to the detention centres?
- 3.7 What did children and their parents say about detention centres?
4. Australia's Human Rights Obligations
- 4.1 Does international human rights law threaten Australia's sovereignty?
- 4.2 How does international law become part of Australian law?
- 4.3 What are the rights of children in immigration detention in Australia?
- 4.4 What tools assist in the interpretation of treaty obligations?
- 4.5 Summary
5. Mechanisms to Protect the Human Rights of Children in Immigration Detention
- 5.1 How are children's rights protected by domestic legislation?
- 5.2 How are children's rights protected by domestic courts and the Human Rights and Equal Opportunity Commission?
- 5.3 How are children's rights protected by the Department?
- 5.4 How are children's rights protected by State authorities?
- 5.5 Summary of findings on mechanisms to protect the human rights of children in immigration detention
6. Australia's Immigration Detention Policy and Practice
- 6.1 What are the human rights relevant to the detention of children?
- 6.2 What is the history of mandatory detention in Australia?
- 6.3 When are children detained?
- 6.4 Where are children detained?
- 6.5 Is detention in the 'best interests of the child'?
- 6.6 Are children detained as 'a measure of last resort'?
- 6.7 Are children detained for the 'shortest appropriate period of time'?
- 6.8 Can courts provide effective review of the legality of detention?
- 6.9 Is the detention of children 'unlawful' and 'arbitrary'?
- 6.10 Summary of findings regarding detention of children
- 6.11 Case studies
7. Refugee Status Determination for Children in Immigration Detention
- 7.1 What are children's rights regarding refugee status determination?
- 7.2 How does the refugee status determination system work in mainland detention facilities?
- 7.3 Is there priority processing for children in detention?
- 7.4 Is there appropriate legal assistance for children in detention?
- 7.5 Is there a child-friendly environment and assessment process for children in detention?
- 7.6 Are special substantive considerations applied to children's asylum claims?
- 7.7 What special measures are taken to assess claims by unaccompanied children in detention?
- 7.8 What is the refugee status determination process for 'offshore entry persons'?
- 7.9 Summary of findings on refugee status determination for children in detention
8. Safety of Children in Immigration Detention
- 8.1 What are children's rights regarding safety in immigration detention?
- 8.2 What policies were in place to ensure the safety of children in detention?
- 8.3 What exposure have children had to riots, violence and self-harm in detention centres?
- 8.4 What exposure have children had to 'security' measures used in detention centres?
- 8.5 What exposure have children had to direct physical assault in detention centres?
- 8.6 Summary of findings regarding the safety of children in detention
- 8.7 Case Study: Shayan Badraie
9. Mental Health of Children in Immigration Detention
- 9.1 What are children's rights regarding mental health and development in immigration detention?
- 9.2 What policies were in place to prevent and treat the mental health problems of children in detention?
- 9.3 What factors contribute to the mental health and development problems of children in detention?
- 9.4 What was the nature and extent of the mental health and development problems suffered by children in detention?
- 9.5 What measures were taken to prevent and treat mental health and development problems in detention?
- 9.6 Summary of findings regarding the mental health and development of children in detention
- 9.7 Case studies
10. Physical Health of Children in Immigration Detention
- 10.1 What are children's rights regarding physical health in immigration detention?
- 10.2 What policies were in place to ensure the physical health of children in detention?
- 10.3 Did children enjoy a healthy environment in detention?
- 10.4 What health care services were available to children in detention?
- 10.5 Summary of findings regarding the right to health for children in detention
11. Children with Disabilities in Immigration Detention
- 11.1 What are the rights of children with disabilities in immigration detention?
- 11.2 What policies were in place to ensure that children with disabilities enjoyed their rights in detention?
- 11.3 Was there early identification of disabilities for children in detention?
- 11.4 Was there appropriate case management for children with disabilities in detention?
- 11.5 Was there appropriate support for parents of children with disabilities in detention?
- 11.6 Was there appropriate physical access, aids and adaptations for children with disabilities in detention?
- 11.7 Was there appropriate education for children with disabilities in detention?
- 11.8 Were there appropriate recreational activities for children with disabilities in detention?
- 11.9 Were appropriate steps taken to transfer or release children with disabilities from detention?
- 11.10 Summary of findings regarding the rights of children with disabilities in detention
12. Education for Children in Immigration Detention
- 12.1 What are children's rights regarding the provision of education in immigration detention?
- 12.2 What policies were in place regarding education for children in detention?
- 12.3 What education is provided to similar children in Australian schools?
- 12.4 What education was provided in internal detention centre schools?
- 12.5 What external education was provided to children in detention?
- 12.6 Summary of findings regarding education for children in detention
- 12.7 Case studies
13. Recreation for Children in Immigration Detention
- 13.1 What are children's rights regarding play and recreation in immigration detention?
- 13.2 What policies were in place to ensure appropriate play and recreation for children in detention?
- 13.3 What impact does detention have on the ability to enjoy the right to play and recreation?
- 13.4 What play facilities and equipment were available to children in detention?
- 13.5 What recreational programs were available to children in detention?
- 13.6 What excursions were available to children in detention?
- 13.7 Summary of findings regarding the play and recreational facilities available to children in detention
14. Unaccompanied Children in Immigration Detention
- 14.1 What are the rights of unaccompanied children in immigration detention?
- 14.2 Who was responsible for the care of unaccompanied children in detention centres?
- 14.3 What did ACM do to care for unaccompanied children in detention centres?
- 14.4 What did the Department do to care for unaccompanied children in detention centres?
- 14.5 What did State child protection authorities do to care for unaccompanied children in detention centres?
- 14.6 What care was provided to children who were temporarily separated from their parents?
- 14.7 What was done to trace the parents of unaccompanied children?
- 14.8 Summary of findings regarding the care of unaccompanied children in detention
- 14.9 Case studies
15. Religion, Culture and Language for Children in Immigration Detention
- 15.1 What are children's rights regarding religion, culture and language in immigration detention?
- 15.2 What are the languages and religions of children in detention?
- 15.3 What policies were in place to ensure children's rights to religion, culture and language while in detention?
- 15.4 How were children's rights to religion, culture and language protected in practice?
- 15.5 Summary of findings regarding the right to religion, culture and language in detention
16. Temporary Protection Visas for Children Released from Immigration Detention
- 16.1 What are children's rights when released from immigration detention?
- 16.2 What conditions are attached to temporary protection visas (TPVs)?
- 16.3 What services are provided to former detainees living in the community?
- 16.4 What care is provided to unaccompanied children released from detention?
- 16.5 What is the impact of restricted services and entitlements on families on temporary protection visas?
- 16.6 What services and entitlements are provided to children in the community on bridging visas?
- 16.7 Summary of findings regarding rights on release from detention
17. Major Findings and Recommendations of the Inquiry
- 17.1 The Inquiry's major findings
- 17.2 Reasons for the Inquiry's major findings
- 17.3 The Inquiry's recommendations
- 17.4 Reasons for the Inquiry's recommendations
- 17.5 The Department's main objections to the Inquiry's recommendations
- 17.6 Action taken by the Department and ACM in response to the Inquiry's findings and recommendations
Appendices
- Appendix 1: List of Submissions
- Appendix 2: Schedule of Public Hearings and Witness List
- Appendix 3: Action taken by the Department
- Appendix 4: Action taken by ACM
- Appendix 5: Acknowledgements
Abbreviations and Acronyms
| Abbreviation | Term |
|---|---|
| AAIMH | Australian Association for Infant Mental Health |
| ACM | Australasian Correctional Management Pty Limited |
| AFP | Australian Federal Police |
| Beijing Rules | United Nations Standard Minimum Rules for the Administration of Juvenile Justice |
| Body of Principles | United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment |
| BVE | Bridging Visa E |
| CAMHS | Child and Adolescent Mental Health Service, South Australia |
| CARAD | Coalition Assisting Refugees After Detention |
| CAT | Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment |
| CEDAW | Convention on the Elimination of All Forms of Discrimination Against Women |
| CERD | Convention on the Elimination of All Forms of Racial Discrimination |
| CERT | Centre Emergency Response Team |
| Commission | Human Rights and Equal Opportunity Commission |
| CRC | Convention on the Rights of the Child |
| DCD | Department for Community Development, Western Australia |
| Department | Department of Immigration and Multicultural and Indigenous Affairs, Commonwealth |
| DHS | Department of Human Services, South Australia |
| DIMIA | Department of Immigration and Multicultural and Indigenous Affairs, Commonwealth |
| DoCS | Department of Community Services, New South Wales |
| DSC | Disability Services Commission, Western Australia |
| ESL | English as a Second Language |
| FACS | Family and Children's Services, Department for Community Development, Western Australia |
| FAYS | Family and Youth Services, Department of Human Services, South Australia |
| HRAT | High Risk Assessment Team |
| HRC | United Nations Human Rights Committee |
| HREOC | Human Rights and Equal Opportunity Commission |
| HREOC Act | Human Rights and Equal Opportunity Commission Act 1986 (Cth) |
| IAAAS | Immigration Advice and Application Assistance Scheme |
| ICCPR | International Covenant on Civil and Political Rights |
| ICESCR | International Covenant on Economic, Social and Cultural Rights |
| IDC | Immigration Detention Centre |
| IDF | Immigration Detention Facility |
| IDS | Immigration Detention Standards 1998 |
| IGOC Act | Immigration (Guardianship of Children) Act 1946 (Cth) |
| Inquiry | National Inquiry into Children in Immigration Detention |
| IRPC | Immigration Reception and Processing Centre |
| JAS | Justice for Asylum Seekers |
| JDL Rules | United Nations Rules for the Protection of Juveniles Deprived of their Liberty |
| JSCM | Joint Standing Committee on Migration |
| Migration Act | Migration Act 1958 (Cth) |
| Migration Regulations | Migration Regulations 1994 (Cth) |
| Minister | Minister for Immigration and Multicultural and Indigenous Affairs |
| MOU | Memorandum of Understanding |
| MSI | Migration Series Instruction |
| Notice 1 (N1) | Notice to Produce 1, issued to DIMIA on 18 July 2002 |
| Notice 2 (N2) | Notice to Produce 2, issued to DIMIA on 18 July 2002 |
| Notice 3 (N3) | Notice to Produce 3, issued to DIMIA on 18 July 2002 |
| Notice 4 (N4) | Notice to Produce 4, issued to DIMIA on 24 October 2002 |
| Notice 5 (N5) | Notice to Produce 5, issued to DIMIA on 24 October 2002 |
| N1, F2, Q3 | Notice 1, Folder 2, Question 3 (example of referencing for documents provided pursuant to Notices to Produce) |
| PPV | permanent protection visa |
| PTSD | post traumatic stress disorder |
| QPASTT | Queensland Program of Assistance to Survivors of Torture and Trauma |
| RACS | Refugee Advice and Casework Service |
| Refugee Convention | Convention relating to the Status of Refugees and the Protocol relating to the Status of Refugees |
| RCOA | Refugee Council of Australia |
| RHP | Residential Housing Project |
| RILC | Refugee and Immigration Legal Centre |
| RRT | Refugee Review Tribunal |
| SCALES | Southern Communities Advocacy Legal and Education Service |
| Standard Minimum Rules | United Nations Standard Minimum Rules for the Treatment of Prisoners |
| STARTTS | Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, New South Wales |
| TIS | Translating and Interpreting Service |
| TPV | temporary protection visa |
| UAM | unaccompanied minor |
| UN | United Nations |
| UNHCR | United Nations High Commissioner for Refugees |
| UNHCR Detention Guidelines | UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers |
| UNHCR Guidelines on Refugee Children | UNHCR Refugee Children: Guidelines on Protection and Care |
| UNHCR Procedures | UNHCR Handbook on Procedures and Criteria for Determining Handbook Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees |
| UNHCR UAM Guidelines | Unaccompanied Children Seeking Asylum |
| UNICEF | United Nations Children's Fund |
| UNICEF Implementation Handbook | UNICEF Implementation Handbook for the Convention on the Rights of the Child |
| VFST | Victorian Foundation for the Survivors of Torture |
| YAC | Youth Advocacy Centre |