"The human rights of vulnerable children in Australia"

Address given by Dr Sev Ozdowski OAM, Human Rights Commissioner at the 9th National Conference of the Association for the Welfare of Child Health: "Healthy Justice for Children and Young People", Thursday 10 October 2002, All Seasons Premier Menzies Hotel, Sydney

Acknowledgements

Mrs Irene Hancock, AWCH National President, distinguished guests, ladies and gentlemen, all. I would like to acknowledge the Gadigal people, the traditional custodians of the land on which we stand.

Introduction

I am very pleased to be given the opportunity to speak again this year to the members of the Association for the Welfare of Child Health. I have kept in touch with the Association since last year's conference and applaud your work. I would like to acknowledge your major contribution to both the emotional and social needs of children and young people who are in hospital and the health care system generally. Your tireless work advocating for a more child-friendly health system boosts the well-being of all sick children.

Turning for a moment to the human rights treaty over which I have jurisdiction, namely the Convention on the Rights of the Child (CROC), let me refresh your memories:

  • this treaty is the pre-eminent international human rights instrument dealing with children's rights;
  • its subject matter is wide, covering everything from the child's right to protection from sexual exploitation to the right to play;
  • it covers civil, political, economic, social and cultural rights;
  • it is the most ratified human rights treaty in history, with only Somalia and the USA to have signed but not yet ratified it;
  • Australia ratified the CROC nearly twelve years ago, in December 1990; it was scheduled to the Human Rights and Equal Opportunity Act in 1993;
  • CROC establishes the minimum benchmark for the way children are to be treated.

The main distinguishing feature of CROC is that it recognises the right of all children to participate meaningfully in all matters affecting them. This emphasis has quite profound implications in the way adult society has to negotiate its way through issues involving children.

As you know, the Human Rights Commission is a statutory body, completely independent of Government. As Human Rights Commissioner, it is my job to promote and protect the human rights of all people in Australia.

In particular, the Commission monitors implementation of the Convention on the Rights of the Child in Australia and has the capability to inquire into acts or practices by Federal Government agencies that may violate children's human rights. We can do this in two ways:

  • by investigating individual children's complaints of violations of their rights under the Convention;
  • by conducting broader inquiries into systemic violations by or on behalf of the Commonwealth, for example, my current National Inquiry into Children in Immigration Detention (more on this later).

UN Special Session on Children (8-10 May 2002)

The information obtained during my consultations with children and young people, about which I reported to you at your last national conference, proved to be very useful when I was at the UN General Assembly Special Session on Children, in New York on 8-10 May 2002 as a member of the Australian Government delegation.

I participated in its work, including representing the leader of the delegation, The Hon. Larry Anthony, Minister for Children and Youth Affairs at the Gate Foundation Concert "Turn This World Around - Leadership for Children" on 9 May 2002.

I am pleased to report that both the Australian delegation and NGOs played a positive role in negotiations on the final document, "A World Fit for Children". I was particularly pleased that an 11 year old Australian boy, Barron Hanson, handed over 95 million votes in support of child rights to UN Secretary-General Kofi Annan. Also pleasing was Minister Anthony's statement delivered on behalf of Australia to the 27th Special Session of the General Assembly on Children, which mentioned the work of HREOC.

I also represented Australia at the first meeting of Independent National Human Rights Institutions regarding the protection and promotion of the rights of the child, and gave a report on Australia's progress. This was held on 7 May 2002, prior to the UN Special Session.

Among other things, the Meeting agreed to:

  • call on the UN system to give formal recognition to independent human rights institutions to enable them to be active participants in all UN proceedings; and
  • establish a global network of independent human rights institutions for children, with regular meetings and information exchange.

The National Inquiry into Children in Immigration Detention

The Inquiry's Terms of Reference are broad and include child asylum seekers' health and education needs; legal status, mental health and development and overall treatment by staff.

The methodology is very thorough, involving:

  • over 310 written submissions received from health, education, welfare and legal professionals as well as members of the public, including refugees;
  • examination of DIMIA's submission as well as DIMIA and ACM documents we required;
  • inspections of detention centres which include interviews with detainee children and their families;
  • formal public hearings (DIMIA and ACM outstanding);
  • informal focus groups with ex-detainee children and young people.

On a number of occasions I have expressed a concern about the human rights of children in immigration detention. Clearly these children in immigration detention are among the most vulnerable in Australia today, especially those who are unaccompanied minors (almost none are still in detention centres). Many of these children have fled situations of war and persecution. They have arrived in a strange country after a long journey; for adults these are confronting and traumatic experiences, how much more so must they be for children?

Australia maintains a mandatory detention policy which requires that all those who come to our shores without authorisation are detained in immigration detention centres on arrival. This is until they are either granted visas or returned to their country of origin. In the case of people who land on the excised territories of any of the Christmas, Cocos or Cartier Islands or Ashmore Reef, they are removed to Papua New Guinea or Nauru under the colloquially named "Pacific Solution".

In contrast people arriving on, for example, tourist visas can seek asylum in Australia and do not face detention while awaiting decision on their refugee status.

Most of these people who come to our shores without authorisation see themselves as refugees and are seeking asylum in Australia. For example, people who arrived from Afghanistan, Iraq and Iran.

A substantial proportion of them will subsequently satisfy Australia's refugee assessment criteria thereby engaging our protection obligations as behoves a signatory to the 1951 Convention and 1967 Protocol relating to the Status of Refugees. In fact, for example, some 70% are recognised as refugees and about 53% of the "Pacific Solution" people were recognised as refugees. In contrast, only 15% of those authorised arrivals who applied for asylum have satisfied refugee criteria.

The first point to be made about this situation is that asylum seekers who arrive in this unauthorised fashion have not committed any crime under Australian domestic law. Father Brennan compared it to somebody escaping a bushfire and parking illegally.

The second point is that under our Migration Act, asylum seekers who arrive "unauthorised" must be detained pending resolution of their refugee status.

Rationale for Mandatory Detention

The key purpose is to undertake rudimentary health, identity and security and refugee status backgrounding checks. An initial period of mandatory detention, thereby enabling rudimentary health, identity/security and refugee status backgrounding to occur, is reasonable.

In this respect I would adopt the Swedish model which similarly imposes mandatory detention on all unauthorised arrivals, but completes first phase processing in a matter of weeks if not days. Swedish immigration authorities then permit supervised release into the general community pending final determination of refugee status. This is acceptable, in my view.

In contrast, the current Australian law requires verification and adjudication finalisation of all aspects of an asylum seeker's application within detention. This is a process that takes months on average and in some cases years. A case was reported recently of a child who had spent over 5 years in detention before the claims were recognised.

Australia's obligations towards detained children

Australia has international obligations to protect these children as outlined in the Convention on the Rights of the Child. According to CROC, the detention of a child shall only be used as a measure of last resort and for the shortest appropriate period of time (article 37(b), CROC).

Even when it is absolutely necessary to detain a child, under the Convention, Australia must ensure that the conditions and treatment of children in immigration detention respect their human rights. This includes their right to education (article 28 and 29), to the highest attainable standard of health (article 24), to practise their culture, language and religion (article 30) and their right to family life (articles 5, 9, 18).

One thing is clear, if Australia decides to detain children, it must accept that this policy brings with it certain obligations to do right by the children.

The Inquiry - emerging trends

At this stage I can make no final judgement on the outcomes of the Inquiry because I am in the middle of it and I have not yet fully considered all the evidence.

However I can report on some of the emerging themes:

  • the psychological despair of those long-term detainees who can't understand why they are being detained when they only came here for protection;
  • a lack of appropriate or timely medical and psychological care.

When I last visited two weeks ago, Woomera's population was substantially reduced, with only 19 children remaining, but that is 19 too many, and these children are permanently damaged.

  • the lack of adequate education - however I wish to acknowledge the recent move to use outside school facilities.

Attending local schools allows detained children - who otherwise spend 24 hours a day in detention centres - to socialise with Australian children. Given that many detained families are eventually recognised as refugees, it is in Australia's interests to ensure the children get an education that helps them integrate into Australian society as soon as possible.

  • the limited access to services for children with disabilities.

What I was also concerned with during the public hearings was that a number of witnesses requested in-camera hearings because of fear of speaking publicly. These included not only detainees and ex-detainees, but visitors, volunteer workers and ex ACM and DIMIA workers.

Conclusion

As Human Rights Commissioner, I have previously called for the total closure of Australia's remote site detention centres.

My detailed inspections of them have, over time, convinced me that they are "un-Australian". I happen to believe that operationally they also breach many human rights treaties.

Australia prides itself, justifiably, on being the land of the "fair go", where a spirit of mateship enabled us to flourish in a difficult and unforgiving physical environment.

It is nonsense to pretend that the integrity of our borders is threatened by the small, sad, flotilla of leaky boats with their desperately fragile cargo of asylum seekers. We can maintain a system of visas and identity, security and health checks without stomping all over our "fair go" heritage.

The current policy of long term mandatory detention in containment camps is exacting an extremely high moral toll. Future generations of Australians will undoubtedly question whether that price was worth paying.

Therefore let us, as a community, harness all the money, ingenuity and effort expended on the current detention system into a new way.

A way which will achieve the appropriate policy objectives while simultaneously drawing on the rich Australian heritage of compassion and decency.

If we can achieve this we will, almost subconsciously, be fulfilling both the letter and the "spirit" of our human rights commitments.

In order to reach this goal it will be necessary to convince a majority of our fellow Australians, who overwhelmingly support the current Government policy, that change is essential. This means that community groups such as the Association for the Welfare of Child Health must be prepared to go out among the general community and argue the case for change.

Otherwise we all run the risk of simply preaching our message to the converted.

Australia is a democratic country. Any substantial alteration to the immigration detention regime can only occur via our participation in public debate and in political process.

Last updated 16 December 2002

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