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A last resort? - Summary Guide: Major findings and recommendations

A Last Resort? - SUMMARY GUIDE. A Summary of the important issues, findings and recommendations of the National Inquiry into Children in Immigration Detention

A last resort?

National Inquiry into Children in Immigration Detention

Major findings and recommendations

The Inquiry has found that Australian laws that require

the mandatory immigration detention of children, and the way these laws

are administered by the Commonwealth, have resulted in numerous and repeated

breaches of the Convention on the Rights of the Child.

The Inquiry made a range of factual findings in relation

to:

  • monitoring of conditions in detention centres
  • Australia's detention laws and policy
  • Australia's refugee status determination system

    as it applies to children

  • safety and security
  • mental health
  • physical health
  • children with disabilities
  • education
  • recreation and play
  • unaccompanied children
  • religion, culture and language
  • temporary protection visas.

These factual findings, based on evidence received

by the Inquiry, were assessed against Australia's human rights obligations

under the Convention on the Rights of the Child. From this, the

Inquiry reached its major findings and recommendations.

MAJOR FINDING 1

Australia's immigration detention laws, as administered

by the Commonwealth, and applied to unauthorised arrival children, create

a detention system that is fundamentally inconsistent with the Convention

on the Rights of the Child (CRC).

In particular, Australia's mandatory detention system

fails to ensure that:

(a) detention is a measure of last resort, for the

shortest appropriate period of time and subject to effective independent

review (CRC, article 37(b), (d))

(b) the best interests of the child are a primary

consideration in all actions concerning children (CRC, article 3(1))

(c) children are treated with humanity and respect

for their inherent dignity (CRC, article 37(c))

(d) children seeking asylum receive appropriate

assistance (CRC, article 22(1)) to enjoy, 'to the maximum extent possible',

their right to development (CRC, article 6(2)) and their right to live

in 'an environment which fosters the health, self-respect and dignity'

of children in order to ensure recovery from past torture and trauma

(CRC, article 39).

MAJOR FINDING 2

Children in immigration

detention for long periods of time are at high risk of serious mental

harm. The Commonwealth's failure to implement the repeated recommendations

by mental health professionals that certain children be removed from the

detention environment with their parents amounted to cruel, inhumane and

degrading treatment of those children in detention (CRC, article 37(a)).

MAJOR FINDING 3

At various times

between 1999 and 2002, children in immigration detention were not in a

position to fully enjoy the following rights:

(a) the right to be protected from all forms of physical

or mental violence (CRC, article 19(1))

(b) the right to enjoy the highest attainable standard

of physical and mental health (CRC, article 24(1))

(c) the right of children with disabilities to 'enjoy

a full and decent life, in conditions which ensure dignity, promote

self-reliance and facilitate the child's active participation in the

community' (CRC, article 23(1))

(d) the right to an appropriate education on the

basis of equal opportunity (CRC, article 28(1))

(e) the right of unaccompanied children to receive

special protection and assistance to ensure the enjoyment of all rights

under the CRC (CRC, article 20(1)).

RECOMMENDATION 1

Children in immigration

detention centres and residential housing projects, as at the date of

the tabling of this report, should be released with their parents as soon

as possible, but no later than four weeks after tabling.

The

Minister and the Department can effect this recommendation within the

current legislative framework by one of the following methods:

(a) transfer into the community (home-based detention)

(b) the exercise of Ministerial discretion to grant

humanitarian visas pursuant to section 417 of the Migration Act

(c) the grant of bridging visas (appropriate reporting

conditions may be imposed).

If one or more parents are assessed to

be a high security risk, the Department should seek the urgent advice

of the relevant child protection authorities regarding the best interests

of the child and implement that advice.

RECOMMENDATION 2

Australia's immigration

detention laws should be amended, as a matter of urgency, to comply with

the Convention on the Rights of the Child.

In

particular, the new laws should incorporate the following minimum features:

(a) There should be a presumption against the detention

of children for immigration purposes.

(b) A court or independent tribunal should assess

whether there is a need to detain children for immigration purposes

within 72 hours of any initial detention (for example, for the purposes

of health, identity or security checks).

(c) There should be prompt and periodic review by

a court of the legality of continuing detention of children for immigration

purposes.

(d) All courts and independent tribunals should

be guided by the following principles:

(i) detention of children must be a measure of

last resort and for the shortest appropriate period of time

(ii) the best interests of the child must be a

primary consideration

(iii) the preservation of family unity

(iv) special protection and assistance for unaccompanied

children

(e) Bridging visa regulations for unauthorised arrivals

should be amended so as to provide a readily available mechanism for

the release of children and their parents.

RECOMMENDATION 3

An independent

guardian should be appointed for unaccompanied children and they should

receive appropriate support.

RECOMMENDATION 4

Minimum standards

of treatment for children in immigration detention should be codified

in legislation.

RECOMMENDATION 5

There should be

a review of the impact on children of legislation that creates 'excised

offshore places' and the 'Pacific Solution'.

Final comments

The Inquiry acknowledges

that Australia has a legitimate right to develop and maintain an immigration

system. However, Australia also has a responsibility to do so in a way

that respects the fundamental rights of children. The current mandatory

detention regime fails to meet that responsibility.

The

Department should carefully consider the conditions in which children

are detained, and the services it provides to children in detention, taking

into account the Inquiry's findings across the broad range of areas.

However, the Inquiry does not make detailed recommendations

about improving these individual areas because recommendations for improvements

within the current system fail to address the fundamental breach of children's

rights - namely, the manner and nature of mandatory detention itself.

This Inquiry does not seek to outline the precise

structure of a new immigration detention system. The Inquiry recognises

that any reform of the current system will require a broad consultation

process that takes into account a wide variety of factors, including issues

that have not been considered by this Inquiry.

Therefore,

drawing on the Convention on the Rights of the Child, the Inquiry

has set out in its recommendations the key principles that should be the

primary reference point in the development of any new migration laws and

policies.

The key principles are that:

  • children can only be detained as a measure of last

    resort and for the shortest appropriate period of time

  • the best interests of the child

    must be a primary consideration in all actions concerning children

  • unaccompanied children must receive special

    assistance so that they are in a position to enjoy the same

    rights as all other children

  • children have the right to family unity
  • children must be treated with humanity and

    respect for their inherent dignity

  • children enjoy - to the maximum extent possible

    - the right to development and recovery from past torture and

    trauma

  • asylum-seeking children must receive appropriate

    assistance to enjoy their rights - including the right to be

    protected under the Convention relating to the Status of Refugees.

A child riding a trike at Woomera

A child riding a trike at Woomera