- 1.1 A snapshot of children in detention
- 1.2 Australian law and the detention of children
- 1.3 Does the Government owe a duty of care to children in detention?
- 1.4 International law and the detention of children
My hope finished now. I don’t have any hope. I feel I will die in detention.
(Unaccompanied 17 year old, Phosphate Hill Detention Centre, Christmas Island, 4 March 2014)
Drawing by primary school aged child, Darwin detention centre, 2014.
Asylum seeker issues are among the most hotly debated in Australian politics. They divide opinion and evoke strong emotional responses across the community.
The issues involved are complex and challenging.
We know that asylum seekers are often vulnerable people, desperately fleeing civil unrest, warfare and persecution from across the world.
We know that Australia is a destination of choice for many people seeking to embark on a new life in safety.
And we know that there are people who will exploit the vulnerability of asylum seekers by offering them unsafe passage by sea to our shores.
How we treat asylum seekers goes to the core of our identity as a nation:
In what circumstances are we prepared to provide safe haven to those in need?
What relationship do we aspire to have with our regional neighbours?
How do we respond to those who ask for our help?
Ten years ago, the Australian Human Rights Commission published its landmark report: A last resort? This was the report of an extensive three year national inquiry that investigated the circumstances of children and their families in Australia’s immigration detention centres.
The Commission conducted the previous inquiry in response to concerns about the significant number of children in immigration detention. Numbers of children in detention reached 842 at the highest point. The inquiry found detention had a deleterious impact on their wellbeing; particularly their mental health.
At the time, the Commission was subject to intense scrutiny and hostility regarding the inquiry. The Howard Government was initially dismissive of its findings.
But over subsequent years, we began to see significant improvements in the treatment of asylum seeker children and their families. By mid-2005, the Howard Government had removed all asylum seeker children from immigration detention centres.
Ten years on, the situation has changed dramatically.
By July 2013, under the Labor government, a record number of 1,992 children were in detention. The numbers of children in detention remained relatively constant at approximately 1,100 children from September 2013 to February 2014 under the new Coalition Government led by Prime Minister Tony Abbott.
This significant increase in numbers created substantial pressures on the Department of Immigration and Border Protection. Particularly with the provision of services in detention centres on Christmas Island.
By August 2014 there were 869 children in detention, including 222 children detained on Nauru. This was a significant reduction on the 2013 figures, but still in excess of the figures in the early 2000s.
How have the gains that were so hard-fought, and of which the Howard Government was so rightly proud, disappeared?
How did we move so far away from the explicit guarantee in section 4AA of the Migration Act 1958 (Cth) that ‘a minor shall only be detained as a measure of last resort’? How had we reached the situation where Prime Minister Rudd had declared that any person (including children) who arrived by boat would enjoy ‘no advantage’ and never be settled in Australia?
There are complex reasons why people choose to seek asylum and there are certainly global factors at play. The increased number of people seeking to arrive in Australia by boat in recent years has coincided with a global rise in the number of asylum seekers, predominately as a result of civil unrest in the Middle East that has continued since the ‘Arab Spring’.
Indeed, the Office of the United Nations High Commissioner for Refugees has noted that 2013 saw the largest number of asylum seekers worldwide in a decade. Despite this, Australia’s share of refugee applications at the end of 2013 was only one percent of the global total for the year.
This significant increase in the number of asylum seekers in Australia was accompanied by tragedy. 1072 people, including at least 15 children lost their lives at sea between 2008 and 2013 while attempting to make the journey to Australia by boat.
Images of shipwrecked boats off Christmas Island remain etched in the memories of many Australians. These memories have often been cited by the Abbott Government as informing its steely determination to ‘stop the boats’. This has been a priority of the Abbott Government since coming to office with its Operation Sovereign Borders policy.
And ‘stop the boats’ it has. The flow of boat arrivals has steadily decreased over the past year. There have been no recorded deaths at sea since the start of 2014.
But this is not the whole story.
While 2012 and 2013 saw the largest number of boat arrivals and people in detention, these years also saw the progressive tightening of asylum seeker policy, the re-introduction of offshore transfers and a lack of processing of asylum claims.
In August 2012, the Labor Government adopted a recommendation from its specially convened Expert Panel to apply a ‘no advantage’ principle. A range of associated and inter-connected recommendations by the Expert Panel were not, however, implemented. The ‘no advantage’ principle stipulated that refugees arriving by boat should not receive an ‘advantage’ over refugees overseas who are waiting to be resettled.
The Labor Government’s implementation of the ‘no advantage’ principle resulted in the suspension of processing for asylum seekers who had arrived by boat, on or after, 13 August 2012.
Further announcements tightening asylum seeker policy by Prime Minister Rudd on 19 July 2013 left the vast majority of asylum seekers in detention in limbo. The policy implemented by the Labor Government and continued by the Coalition Government, specifies that anyone who arrives by boat without a visa since this date in July is liable to transfer to Nauru or Manus Island and will never be settled in Australia. The claims of these asylum seekers have not been processed and they face uncertainty as to their future.
The suspension of processing has had a profound impact on the time that people have waited to have their refugee claims assessed. It has also prolonged the detention of children in onshore and offshore facilities.
By 2014, this has resulted in a significant lengthening of time that asylum seekers have spent in detention. In March 2014, children had been detained for 231 days on average.
At the time of writing this report, children and adults have been detained for over a year and two months on average – over 413 days. There are currently over 100 babies who have been born in detention – with no life experience outside the confines of the detention centres.
It is in this context that the President of the Australian Human Rights Commission launched a national inquiry into children in immigration detention on 3 February 2014.
The decision to conduct this Inquiry was part of the Commission’s regular annual planning processes in mid-2013. This was during the lead up to the federal election at which asylum seeker policies were high profile.
The Commission waited until six months after the election to observe any changes to the policies and the situation affecting asylum seekers under the new Government.
While the number of people in detention started to drop from its peak numbers in mid-2013, the Commission had significant concerns at the increasing time periods that children were spending in detention.
The purpose of this Inquiry is to investigate the impact of immigration detention on the health, wellbeing and development of children and assess whether laws, policies and practices relating to children in immigration detention meet Australia’s international human rights obligations.
Asylum seeker issues have been a focus of the Commission’s work over the past ten years. The findings from this work also informed the decision to conduct this Inquiry.
The Commission has made annual detention centre inspections from 2004 to 2012. The Commission has provided reports to federal Parliament emanating from our complaint-handling jurisdiction. The Commission has been involved in litigation, including in the High Court as intervenor. The Commission has made a multitude of submissions to inquiries related to asylum seeker matters. In 2013, the Commission produced a ‘state of the nation’ report on the asylum seeker system – Asylum seekers, refugees and human rights: Snapshot report 2013.
In 2012 the Commission conducted a national inquiry into the methods used to determine the ages of Indonesian crew members who were working on boats bringing asylum seekers to Australia. The inquiry report was entitled: An age of uncertainty: Inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children.
But a national inquiry of this current scope is different. Most significantly, it is a process aimed at giving voice to the otherwise unheard - and now largely unseen - the asylum seekers detained in remote parts of Australia.
Ultimately, it is the Commission’s hope that this report contributes to an understanding that children are suffering harm in detention - and that their detention is not part of a policy which is used to ‘stop the boats’.
All sides of politics have emphasised that mandatory detention in Australia’s immigration detention centres is not designed to operate as a deterrent to asylum seekers. It does not stop people from coming to Australia to seek asylum.
What then is the purpose of detaining children for over a year?
Australia is the only country in the world with a policy that imposes mandatory and indefinite immigration detention on asylum seekers as a first action. While other countries detain children for matters related to immigration, including Greece, Israel, Malaysia, Mexico, South Africa and the U.S.; detention in these countries is not mandatory and does not occur as a matter of course.
In fact there are other options to detention in Australia. What is not well recognised by the public is that the majority of asylum seekers are not in locked detention, they are living in community arrangements. These people reside in the Australian community and are subject to some restrictions while they wait to have their refugee status assessed. Only some asylum seekers are detained in locked detention facilities. And only the Minister for Immigration and Border Protection has the power to release children and their families into community arrangements.
There is minimal risk to the community from having a more humane, less restrictive form of detention while the refugee status of asylum seekers is assessed. There are limited reports of community disharmony and almost no incidents of absconding from Community Detention.
It is time to return to bipartisan support for the humane treatment of asylum seeker children and their families. Successive governments have failed children in locking them in immigration detention for prolonged periods.
This is the report of the Commission’s national Inquiry.
This report is different to most reports you will read about immigration detention. It is focused on the impact that long term and indefinite detention has on children as told by those who have first-hand experience of life in immigration detention facilities.
It considers children at their different life stages and it records their voices and their experiences of detention.
This report looks firstly into the situation of babies in detention. It describes the impact of detention on the key determinants of their wellbeing; namely the ability to ensure:
- responsive and sensitive parenting;
- appropriate motor, sensory and language stimulation;
- adequate nutrition and health care; and
- protection from physical danger.
When looking at the situation of teenagers in detention, the Commission has inquired into how it impacts on their emotional maturation and the key developmental needs that they have to a safe environment where they can explore themselves and their place in wider society.
Similar questions have been asked about the impact of the detention environment on the key developmental elements for preschoolers and primary school aged children.
In undertaking this analysis we have been assisted by professionals from many fields – including paediatricians and child psychiatrists.
Ultimately we found that locked detention environments harm children, and children need to be removed from these environments as soon as possible. This is an urgent requirement for the health and wellbeing of these children.
It is our sincere hope that the evidence, stories and ultimately the findings and recommendations of this report can contribute to this end.
(a) The global context
The numbers of asylum seekers arriving on Australian shores reached a peak in 2013. This reflected a global increase in refugees, with unrest in a number of countries contributing to increasing numbers of people fleeing Syria, Iran, Afghanistan and Somalia. The United Nations High Commissioner for Refugees reports that there were 16.7 million refugees globally by the end of 2013. Half of these refugees were children, the highest figure in ten years. In the 2012-13 financial year, Australia resettled 12,515 refugees.
Australia receives a proportionally small number of asylum seekers when compared with other countries. In fact, the 13,559 asylum seeker applications that Australia had by the end of 2013, constituted just over one percent of more than a million applications for asylum submitted worldwide in that year.
By comparison, Pakistan a relatively less resourced country, hosts the largest number of refugees in the world.
(b) The Australian context
There were 584 children detained in immigration detention centres on mainland Australia and 305 children on Christmas Island. A further 179 children were detained on Nauru as at 31 March 2014.
Chart 1: Children in detention by location, 31 March 2014
Chart 1 description: Map showing children held in detention around Australia and offshore. Christmas Island - 305, darwin - 311, perth - 10, inverbrackie - 132, brisbane - 16, sydney -17, melbourne - 98, nauru - 179.
Source: Adapted from Department of Immigration and Border Protection map
Almost all children in Australian detention centres either travelled to Australia by boat without a visa or were born in detention. The number of people arriving by boat rose substantially from 2011 and peaked in 2013.
Chart 2: Number of people arriving by boat to Australia since 2004
Chart 2 description: Number of people arriving by boat from 2004-2008 was close to 0, the number peaked at over 20,000 in 2013 before substantially decreasing in 2014.
Source: J Phillips and H Spinks, Boat arrivals in Australia since 1976, Parliamentary Library Research Paper
Chart 3: Number of children in detention, July 2004 to January 2014
Chart 3 description: Children in detention was 100 or less from 2004 to 2009. There was then an increase in the number of children peaking at over 1500 in July 2013 before decreasing in 2014.
Source: Australian Human Rights Commission analysis of data from the Department of Immigration and Border Protection
They came from over 20 different countries:
- the largest group of children were born in Iran;
- the second largest group are identified as ‘stateless’ and were predominantly of Rohingya ethnic origin; and
- other major groups of children were from Sri Lanka, Vietnam, Iraq, Afghanistan and Somalia.
Many children in detention have experienced significant trauma before arriving in Australia.
The children in detention in Australia (as at 31 March 2014) are by age group:
- 153 babies
- 204 preschoolers (aged 2 to 4 years old)
- 336 primary school aged children
- 196 teenagers
From January 2013 to March 2014, there were 128 babies born to mothers in detention centres in Australia.
In March 2014 there were 56 unaccompanied children in detention centres in Australia. A further 27 unaccompanied children were detained on Nauru. The majority of unaccompanied children came from Afghanistan, Myanmar, Somalia and Iran. All are teenagers aged between 15 years and 17 years.
Most children in detention arrived between June 2013 and September 2013. Under current Government policy all asylum seekers who arrived by boat on or after 19 July 2013 are to be transferred to detention centres on Nauru or Manus Island, unless the Minister determines otherwise. Approximately 523 children, including 48 unaccompanied children arrived on or after 19 July 2013 and are subject to possible transfer to Nauru.
At the time of the Inquiry, the number of children in detention facilities on mainland Australia and Christmas Island was reducing as a result of children being released on bridging visas, being moved into Community Detention; or being transferred to detention on Nauru.
Chart 4: Numbers of children in detention in Australia, on Bridging Visa E, in Community Detention and in detention on Nauru by month, February 2014 to August 2014
Chart 4 description: The number of children on Bridging Visas Es has increased as the number of children in detention has decreased. The number of children in community detention and on Nauru have increased slightly.
Source: Australian Human Rights Commission analysis of data from the Department of Immigration and Border Protection
The average length of detention of children at March 2014 was almost 8 months; 231 days.
Seventy-one percent of children and parents in detention reported that they had been moved between different detention centres at least once. Children are moved for many reasons, including access to healthcare, or for other services that are not available in their current centre.
Twenty-eight children in detention were assessed as having a disability. These children have spent 11 months in detention on average and are aged between 2 and 17 years old. Thirty-six children in detention have been diagnosed with a mental health disorder.
On 19 August 2014, the Minister for Immigration and Border Protection announced that the Australian Government will release all children under 10 and their families from detention into the community on bridging visas. This will not include children who arrived on or after 19 July 2013.
Australia’s system of mandatory immigration detention was introduced by the Labor Government in 1992. This system has been maintained by successive Australian governments - meaning that over the past 22 years, non-citizens who arrive in Australia without a valid visa must be detained. The Migration Act 1958 (Cth) (‘the Migration Act’) refers to such people as ‘unlawful non-citizens’. Unlawful non-citizens may have arrived in Australia without a visa, or they may have arrived in Australia with a visa that has later expired.
If unlawful non-citizens arrive in Australia by sea, they are referred to as ‘unauthorised maritime arrivals’. Unlawful non-citizens (including unauthorised maritime arrivals) who are detained may only be released from immigration detention if they are granted a visa, if they are moved into Community Detention, or if they are being removed from Australia.
In the case of people who are detained after arriving in Australia by boat, the first two options are only available at the personal discretion of the Minister for Immigration and Border Protection. Asylum seekers who have arrived by boat may not apply for any visa unless the Minister considers that it would be in the public interest to allow such an application. The Minister generally has the power to grant a visa of any class to a person who is in immigration detention. However, the Migration Act provides that the Minister does not have a duty to consider whether to exercise this power, even if a request is made by a person in immigration detention.
The Minister also has the power to make a residence determination in favour of a person in immigration detention. The residence determination scheme is more commonly referred to as Community Detention. Again, this is a power that may only be exercised by the Minister. The Migration Act provides that the Minister does not have a duty to consider whether to exercise this power, even if a request is made by a person in immigration detention.
Under current legislation, asylum seekers who arrive by boat must be taken ‘as soon as reasonably practicable’ to a Regional Processing Country unless the Minister determines otherwise. This scheme of offshore processing applies to all people who arrived by boat; on or after 19 July 2013. This date represents the day on which former Prime Minister Rudd implemented new policies to prevent the settlement in Australia of any person who was an unauthorised maritime arrival.
If a person in immigration detention is not granted a visa or a Community Detention placement, then they may continue to be detained while arrangements are made to remove them from Australia.
The High Court has held in Al-Kateb v Godwin that it is not contrary to Australian law to keep a person in immigration detention even if the removal of that person from Australia is not reasonably practicable in the foreseeable future. The Department of Immigration and Border Protection submitted to the Inquiry that, as a result of this decision, ‘there is no time limit on the lawfulness of detention under Australian law’.
However, a more recent unanimous judgment of the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection casts some doubt on indefinite detention. In this case, the Court confirmed that the Migration Act does not authorise detention at the unconstrained discretion of the Executive. Rather, detention under the Migration Act can only be for the purposes identified in the Act.
The Department of Immigration and Border Protection recognises that it has a duty of care to all people in immigration detention facilities. The Department has undertaken the care, supervision or control of people in detention in circumstances where those people might reasonably expect that due care will be exercised.
The Commonwealth Ombudsman and New South Wales Coroner have separately argued that due to the particular vulnerability of detainees, as well as the high degree of control exercised by the Department over detainees, the scope of this duty of care should be set at a high level and extends to a positive duty to take action to prevent harm from occurring.
International human rights law sets out a number of requirements which must be satisfied if a government decides that there are no acceptable alternatives and that detention is necessary. The Convention on the Rights of the Child states clearly that:
- The detention of a child must only be a measure of last resort.
- Detention must not be arbitrary.
To avoid being arbitrary, detention must be necessary and reasonable in all the circumstances of the case, and a proportionate means of achieving a legitimate aim. If that aim could be achieved through less invasive means than detaining a person, then that person’s detention will be arbitrary.
The Commission acknowledges that use of immigration detention may be legitimate in some circumstances for a strictly limited period of time. For example, in particular cases a brief period of detention may be necessary to conduct health, security and identity checks.
In order to avoid detention being arbitrary, however, there must be an individual assessment of the necessity of detention for each person, taking into consideration their individual circumstances. A person should only be held in an immigration detention facility if they are individually assessed as posing an unacceptable risk to the Australian community, and if that risk cannot be mitigated in a less restrictive way. Otherwise, they should be permitted to reside in the community while their immigration status is resolved – if necessary, with appropriate conditions imposed to mitigate any identified risks. According to the Convention on the Rights of the Child:
- Any child deprived of their liberty should be able to challenge the lawfulness of their detention.
For detention to be ‘lawful’, it must not only comply with domestic law but also international law. This requires that a court must have the authority to order the person’s release if the detention is found to be arbitrary.
Currently, Australia does not provide access to such review. While people in immigration detention may be able to seek judicial review of the domestic legality of their detention, Australian courts have no authority to order that a person be released from detention on the grounds that the person’s continued detention is arbitrary. This is in breach of the Convention on the Rights of the Child. The Convention also states:
- If detention of children is necessary in order to achieve a particular aim, then the length of detention should be the shortest appropriate period for the achievement of that aim.
In instances where children are detained, a review process is required to monitor detention effectively and assess whether it is justified. The Commission has previously recommended that this review process should occur within 72 hours of being detained and be conducted by an independent body, consistent with the Convention on the Rights of the Child.
- In all actions concerning children, the best interests of the child shall be a primary consideration.
The best interests of the child should be a primary consideration in individual decision making about a child and when developing legal frameworks and policies affecting children. If laws or policies lead to results that are not in the child’s best interests, review is necessary.
Aspects of Australia’s migration policy therefore sit at odds with the Convention on the Rights of the Child. Examples include the requirement to detain child asylum seekers on arrival in Australia, and the requirement to transfer children who are unauthorised maritime arrivals to a Regional Processing Country. Officers are required by the Migration Act to carry out these tasks, regardless of whether it would be in the child’s best interests. The Convention on the Rights of the Child provides:
- Refugee children and unaccompanied children are likely to be vulnerable and require particular assistance.
Article 22 of the Convention on the Rights of the Child requires that governments ensure that children seeking refugee status are provided with appropriate protection and humanitarian assistance. Article 20 of the Convention on the Rights of the Child provides that special protection and assistance be available for unaccompanied children.
Minimum standards for the protection of children in detention are set out in the Convention on the Rights of the Child. These standards include:
- Children in detention should be treated with humanity and respect;
- Children have a right to remain with their parents (unless contrary to their best interests), and to have their family protected from arbitrary or unlawful interference;
- Children should not suffer torture or cruel, inhuman or degrading treatment or punishment; and
- Children should be protected from all forms of physical or mental violence, injury or abuse while in the care of parents, legal guardians or any other person that has the care of the children.
There are a range of international obligations on countries to ensure that children can develop and thrive. Key rights contained in the Convention on the Rights of the Child are:
- the right to life, survival and development;
- the right to health and access to healthcare services, including pre- and post-natal healthcare for their mothers;
- the right to education, and to play and engage in recreational activities; and
- respect for the child’s rights without discrimination.
Australian Government, Report of the Expert Panel on Asylum Seekers (2012), pp26-29, 59-70. At http://expertpanelonasylumseekers.dpmc.gov.au/sites/default/files/report... (viewed 3 October 2014).
Department of Immigration and Border Protection, Children in detention as at 31 March 2014, Item 1, Document 1.1, Schedule 2, First Notice to Produce, 31 March 2014.
 J Phillips and H Spinks, Boat arrivals in Australia since 1976, Parliamentary Library Research Paper (2013), p 22. At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliam... (viewed 2 October 2014).
Department of Immigration and Border Protection, Historical data on children in detention 2004 - 2014, Item 25, Document 25.1, Schedule 2, First Notice to Produce 31 March 2014.
 Department of Immigration and Border Protection, Immigration Detention Statistics. At http://www.immi.gov.au/About/Pages/detention/about-immigration-detention.aspx (viewed 30 September 2014).
Convention on the Rights of the Child, 1989. At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 13 October 2014).