Commission Website: National Inquiry into Children in Immigration Detention
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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.
