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Children and the Law: Issues in the Asia Pacific Region

Rights Rights and Freedoms

Children and the Law: Issues in
the Asia Pacific Region

Lawasia Conference Brisbane
Address given by Dr Sev Ozdowski, OAM
Human Rights Commissioner
Friday 20 June 2003


Salutation

Firstly I would like to acknowledge the traditional custodians of the land on
which we stand and by so doing remind ourselves that Australia’s cultural
traditions stretch back many thousands of years.

Allow me also to acknowledge
World Refugee Day and in so doing welcome the recent Australian Family Court
decision that immigration detention of children may be unlawful. As I have stated
on many occasions, immigration detention of children for extended periods, contravenes
provisions of the Convention on the Rights of the Child. I call on the government
to release children and their families immediately. This inhumane treatment
has gone on for too long.

New Orleans Child
Migrant Conference

Last year I attended the first International Conference on Child Migration in
New Orleans. I thought it would be useful to share some of my thoughts from
that setting, as it gives a global perspective to the issues we are examining
in the course of this Conference.

Specifically, I want to
talk to you about unaccompanied child migrants in the wider context of current
world trends and what that tells us about threats to human rights values, even
amongst a group which logic tells us would normally attract nothing but support.

CIDI

I will then briefly deal with a couple of themes from my Inquiry into Children
in Immigration Detention. As the draft report of the Inquiry is currently under
examination by DIMIA and ACM, as required under HREOCA prior to its finalisation,
I can only talk about some more general matters, but I think you will still
find it interesting.

But first the brief global
overview.

Let us start with a definition.
Unaccompanied minors are children and young people under 18 years of age outside
their country of origin. They have been separated – voluntarily or involuntarily
- from their parents or care givers.

This is not a new problem.

From the Old Testament,
we know that the child Joseph was sold to a party of slave traffickers who took
him to Egypt where he was compelled to work as a slave. Unusually, this story
had a happy ending, because he became the Pharaoh’s (FERO) trusted adviser,
saved Egypt from famine, and ultimately was reunited and reconciled with his
family. He also provided the source material for the hit Broadway show, “Joseph
and the Amazing Technicolour Dreamcoat”!

Moving on, in 1618, a group
of 100 boy 'vagrants' (to use the vernacular of the day) were shipped from the
London area to Virginia, their passage arranged by London’s City fathers.
There they were forced to work on tobacco plantations under what must have been
shocking conditions. Arguably, this was the first example of state-sponsored
child migration.

Through to current times,
where in 2001, a 15 year old girl in Benin City, Nigeria, whom we’ll call
Sarah, is forced to take part in “voodoo” cult rituals. Terrified,
Sarah agrees to go to London where she is compelled to work as a prostitute
under slave-like conditions until rescued by British police. Incidentally this
actually happened.

So, this snapshot covering
several thousand years shows that child migration is not new. Secondly, lamentably,
these examples demonstrate that if anything, conditions are now worse than ever,
despite international legal mechanisms designed to protect unaccompanied child
migrants.

Categories of UAM
movement

But first, let us distinguish the four different categories of child movement:

1. State sponsored migration
2. Refugee
3. Humanitarian
4. Trafficking

1. Cessation of
State Sponsored Child Migration

I have already referred you to the seventeenth century example of British children
sent to Virginia. The migration of these so-called “Orphans of the Empire”
ultimately numbering 130,000 trafficked by their own government – was
mercifully halted in 1967.

Other examples include
Polish orphans settled in New Zealand post WW 2 and British so-called “orphans”
settled in Australia, already the subject of Senate condemnation.

Whatever the “humanitarian”
motives behind such policies it is now universally agreed that the negative
effects flowing from these government sponsored activities far outweigh the
alleged positives. Accordingly the practice may be deemed to have ceased.

2. Child Refugee
Movement

The unaccompanied children of today may be seeking asylum because of fear of
persecution or lack of protection due to human rights violations in their country.
In other words, children who fulfil the classical definition of “refugee”
under the Refugee Convention

3. Child Humanitarian
Movement

Or, they may be children who travel alone, seeking to escape conditions of serious
hardship, for a better life. Typically, they would qualify for humanitarian
protection, by virtue of their special vulnerability as unaccompanied children.

4. Trafficking

Or, they may be the victims of trafficking. It is important upfront to note
the essential difference between trafficking and smuggling. Trafficking is moving
children without their informed consent; it applies whether a child was taken
forcibly or voluntarily.

Smuggling, on the other
hand, is where the child or parents knowingly buy the service of a people smuggler
to move them illegally to another country. This often results in an application
for protection under either the refugee or humanitarian categories within the
target country. For example, most of the Afghan unaccompanied minors (UAMs)
in Australia would fit into this category.

The child victims of trafficking
are overwhelmingly girls, whereas unaccompanied smuggled children may be of
either sex but are usually boys. A variation which may require the international
community to look at “gender specific” solutions that recognise
the subtle, but important, variations at work here.

Current UAM Numbers
and Destination

Notwithstanding those numbers just mentioned, the current figures of unaccompanied
children crossing international borders dwarf all previous figures of child
migration.

During 1999 alone, the
most recent year for which UNHCR has some numbers on this, more than 20,000
unaccompanied children applied for protection in Western Europe, North America
or Australia. The 2002 unconfirmed reports indicate that this figure has risen
to some 30-40,000.

To amplify, separated children
crossing borders may be refugees, humanitarian asylum seekers, trafficked girls
like Sarah forced to work as prostitutes, or simply children lost in the aftermath
of war. Their relatives may have paid a people smuggler to transport them to
a place where they believed the child would be safe. They can be from all corners
of the globe, but in general, the flows are from south to north and from east
to west.

The globalisation of the
world economy, including much improved communication and transportation, has
increased flows of people across borders. Transnational organised criminals
have taken advantage of the freer movement to open new markets for their trade.
So today, children can literally travel across the world undetected

There are also many more
wars now, creating large numbers of displaced or orphaned children. At the end
of 2001, there were 37 civil wars in 30 countries, with 38% in Africa and 41%
in Asia. The number of persons of concern to UNHCR, or refugees, from armed
conflicts worldwide increased from 2.4 million in 1974 to a peak of more than
27.4 million in 1996. In 2003 the figure was down to 20 million of refugees
as outflows from Afghanistan and more recently Iraq has stopped. It is important
to note that according to UNHCR figures, 41% of refugees were under the age
of 18 and 12% under 5 years old.

The majority of unaccompanied
refugee and humanitarian asylum seeker children who make it to the
west go to Western Europe (especially the Netherlands, the Nordic countries
and Switzerland), the USA and Canada. A small number end up in Australia and
New Zealand.

The majority of trafficking
victims
, on the other hand, are sent to Western Europe, the Middle East,
Thailand and India – and also to the US. The majority are girls, trapped
in debt bondage and forced to work as unpaid prostitutes. Every year, 300,000
women and girls are trafficked into Thailand alone, to be exploited in the commercial
sex trade.

They come from Burma, Laos,
Cambodia and southern China (reputedly a major element of Triad commerce). Every
year, between 5,000 and 7,000 Nepali girls are trafficked to India. Most of
them are deceived into a life as sex workers. According to UNICEF, approximately
200,000 Nepali women, most of them girls under 18, work in Indian cities.

Also, child trafficking
from the former Soviet Union has reached epidemic proportions. From Ukraine
alone, in the first decade after the collapse of communism, 400,000 women and
girls were trafficked into international commercial sex markets (Western Europe,
Israel, the US). That is the Ukrainian Interior Ministry estimate; NGOs and
independent researchers believe the number could be much higher.

Further, from the African
continent, children are trafficked to Western Europe and the Middle East as
sex slaves. I think this little snapshot unhappily demonstrates the extent of
“cultural pluralism” at work here!!!

To conclude this point
– movements by unaccompanied children, either refugees or victims of trafficking,
are global and impact on many different countries.

CRC

I now want to turn to the formal international instruments dealing with the
protection of unaccompanied child migrants. In 1989, the adoption of United
Nations Convention on the Rights of the Child (CRC) formally established children’s
legal rights to special protection and assistance.

The genesis of this treaty
was recognition by the world community that the existing legal framework failed
to adequately recognise child-specific human rights. The adoption of the CRC
was a watershed in UN-inspired painstaking negotiation. It became the most ratified
human rights treaty in history, with only Somalia the USA and East Timor yet
to ratify.

Its subject matter is wide,
covering everything from the child's right to protection from sexual exploitation
to the right to play. It covers the child’s civil, political, economic,
social and cultural rights.

In addition, the UNHCR
has developed a set of Guidelines on Policies and Procedures in Dealing
with Unaccompanied Children Seeking Asylum.

However, despite the existence
of CRC, current national and international legal structures are still inadequate
in dealing with today’s movement of children across borders.

While this deficiency is
partially evident in relation to the refugee and humanitarian categories (because
host countries’ national laws do not fully reflect the CRC), it is starkly
evident in the trafficking category. These children are just not adequately
protected by either international or national laws.

Need to Incorporate
CRC into Domestic Law

We know from experience with the Convention on the Rights of the Child that
governments must improve their domestic laws in order to breathe life
into the treaty. It is all very well to set up an international protection system
for unaccompanied children, but it is largely ineffectual unless countries enforce
it via their domestic laws and policies.

CIDI

Which seems the natural spot to turn briefly to some observations arising out
of my Inquiry into Children in Immigration Detention. For reasons mentioned
earlier I will confine myself to three broad comments.

Two of these relate to
Departmental reluctance to fully utilise “safety-valve” mechanisms
provided by Federal Parliament and the third relates to a failure by the Executive
to properly provide for Parliament’s oversight requirements.

Under s.5 of the Migration
Act the Parliament has defined “immigration detention” in a way
that provides scope for DIMIA to “detain” children in any place
so designated by the Minister. This could be someone’s home or a motel
for example.

Broadly DIMIA has been
slow to avail itself of such alternatives. Instead it prefers to use remote
location detention centres such as Baxter or Port Hedland. While “alternate
detention” is not the perfect solution – it is still “detention”,
such placements would be infinitely preferable to the razer wire option.

Secondly the Parliament
in 1994/95 introduced s.72 of the Migration Act and Regulation 2.20 (7) and
(9) of the Migration Regulations, amongst others, which set out circumstances
in which children in detention might be eligible to apply for a Bridging Visa
E (051).

However to the Inquiry’s
knowledge, no bridging visa has ever been granted to a family that has arrived
in Australia without a visa and therefore mandatorily detained, invariably behind
razer wire.

Immigration Detention
Act (Cth)

Finally, it is unclear to me why after 10 years of mandatory detention and operation
of detention centres, the primary guidance for the Parliament concerning detention
is ss.189 & 196 of the Migration Act which simply require the detention
and release of persons in specified circumstances. There is no Commonwealth
legislation – say an Immigration Detention Act (Cth.) setting minimum
standards of treatment of children while in detention and no legislative guidance
as to what the content of any standards should be.

This stands in stark contrast
to the legislative prescription of standards applicable to the operation of
State Government juvenile gaols.

Arguably these three examples
demonstrate a failure by Australia to fully implement CRC into its domestic
affairs.

Unless a country has done
this, or submitted itself to the jurisdiction of an external court (e.g. Britain
is bound by decisions of the European Court of Justice in Strasbourg), the rights
enshrined in the treaty cannot actually be legally enforced. This is the “worm”
at the heart of the international treaty system: there is no international enforcement
method, no “international crimes against children” tribunal to make
findings on violations of international treaties to which a country is a party.

My brief overview today
is designed to make you reflect on how truly difficult it is to breathe life
into the words: “children and the law”.

It is so easy for people
such as us to take refuge in the high flown language of international conventions
and treaties and forget that in the real world, little has changed. Unless these
fine words and ideals translate into real “value” at the coal face
of human rights then we have achieved next to nothing.

For those of you who might
be overwhelmed by the sternness of this message, let us take heart from one
of the good lessons in “human rights values” that history provides
us.

Abolition of the
Slave Trade

I refer here to Wilberforce’s eighteenth century campaign to abolish the
slave trade which led to the abolition of slavery itself in British overseas
possessions.

That campaign surmounted
hurdles similar to those we now face: the immensity of the slave trade, the
substantial economic interests that were dependent on its continuation, its
international nature, and the difficulty confronting existing resources (transport,
communications) to effect its abolition.

Surely the success of that
campaign is an inspiration to us all. Even the biggest international challenges
can be successfully tackled if sufficient numbers of people work towards the
desired outcome.

Conclusion

The movement of unaccompanied children is a reality that cannot be swept under
the carpet. If we are to learn anything from the past, it is that unaccompanied
child migrants must not be allowed to become someone else’s problem. An
outcome from the New Orleans Conference was to call on the UN to establish a
“Child Migrant Day”.

They are the world’s
children and we all share collective responsibility for turning the values of
the Convention on the Rights of the Child into a living dynamic “human
right”.

Thank you.

Last
updated 10 September 2003

See Also