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 Law Institute of Victoria
Dear Mr Ozdowski,
Submissions on Children
in Immigration Detention
The Law Institute
of Victoria wishes to endorse the Legal section of the Submission
by KIDS (Kids in Detention Story) to you Inquiry into Children in
Immigration Detention.
This submission involved
contributions from many members of the Law Institute of Victoria. In our
view the submission is thoroughly researched, provides an extensive collation
of material and presents sound legal arguments.
As we have previously
advised the government, the Law Institute of Victoria believes that Australia's
current policy of prolonged mandatory detention of asylum seekers, including
children, in remote immigration detention centres and in facilities around
the Pacific is contrary to international law and human rights standards.
The Law Institute notes the breaches of international and domestic law
set out in the KIDS submission.
The Law Institute
considers that the best interests of the child, which is an acknowledged
concept under International, Commonwealth and State law, should be the
paramount consideration in the treatment of child asylum seekers and their
families.
The Law Institute
believes that the impact of Australia's mandatory detention policy is
particularly harsh on child asylum seekers, and recommends that the following
proposals be adopted:
Unaccompanied minors
The Australian government
has a duty under both international and Australian law to protect unaccompanied
minors. Accordingly, unaccompanied minors should be detained only as a
matter of last resort and for the shortest possible period of time. The
government should seek appropriate arrangement for the care and protection
of these children within the community.
Children accompanied by
their families
Children accompanied
by their families should also only be detained as a matter of last resort
and for the shortest possible period of time, in accordance with the UNHCR
Guidelines on Detention of Asylum Seekers (1999). Where possible,
family units (which should be defined taking into account cultural and
bonding issues) should be maintained.
The Law Institute
therefore recommends that after initial health, identity and security
checks are completed, child asylum seekers should be released from immigration
detention on a bridging visa pending final resolution of their claims
for refugee status. Normally, the best interests of the child will require
that family members also be released from detention on a bridging visa
in order to care for the child.
The Law Institute
believes that the initial period of detention, which should be reviewable
by a judge, should normally take a maximum period of 30 days. In the Law
Institute's view, it would be extremely rare that justifiable security
concerns could be established in relation to child asylum seekers that
would warrant their detention beyond a 30 day period.
While on a bridging
visa, child asylum seekers should be restricted by residence and reporting
requirements appropriate to the child's age and circumstances.
We would be pleased
to attend a hearing on this matter to elaborate on any of the points raised
above. In the meantime, once again, we commend the work in the Legal Section
of the KIDS submission to you.
Yours faithfully,
David Faram
President, Law Institute of Victoria
Last
Updated 9 January 2003.
