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Submission to the National

Inquiry into Children in Immigration Detention from

Unicef Australia - United

Nations Children's Fund



Background

The Australian National

Committee of the United Nation's Children's Fund, ('UNICEF Australia'),

welcomes the opportunity to present a written submission to the Human

Rights and Equal Opportunity Commission, ('HREOC'), in regard to their

national inquiry into children in immigration detention, ('the Inquiry').

UNICEF Australia

is a non-government organization established in Australia to support the

work of the United Nation's Children's Fund, ('UNICEF'). UNICEF is the

only United Nations organization dedicated exclusively to children. UNICEF

Australia is bound and guided by the United Nations Convention on the

Rights of the Child, ('the Convention'), and the Convention on

the Elimination of All Forms of Discrimination against Women, which

Australia has ratified. Article 45 of the Convention acknowledges the

special competence of UNICEF and other United Nations' organs "to

provide expert advice on the implementation of the Convention in areas

falling within the scope of their respective mandates".

Introduction

UNICEF Australia

wishes to reaffirm its uncompromising position that children should not

be detained in immigration detention centres. Australia ratified and thus

agreed to be bound by the Convention in December 1990. In accordance with

Article 37(b):

"No child

shall be deprived of his or her liberty unlawfully or arbitrarily. The

arrest, detention or imprisonment of a child shall be in conformity

with the law and shall be used only as a measure of last resort and

for the shortest appropriate period of time."

Australia is the

only Western country that has a policy of mandatory detention of all "unauthorized

arrivals", including children . [1] There are alternatives.

These children have not been detained "as a measure of last resort."

There is no legitimate justification for this policy.

UNICEF Australia

wishes to acknowledge that this submission relates to all children in

immigration detention, however, shall primarily focus on the particular

vulnerabilities of asylum seeking children. As of 1 February 2002, there

were 365 children in mainland Australian immigration detention centres,

including 13 unaccompanied minors [2]. The Department

of Immigration and Multicultural and Indigenous Affairs ('DIMIA') noted

that there has been a recent decrease in the number of children in immigration

detention centres, which, "can be attributed to:

  • Decreasing numbers

    of unauthorised air & sea arrivals to Australia;

  • Increase in persons

    being released from immigration detention, particularly unaccompanied

    minors; and

  • Minors turning

    18 years of age while in detention. [3] "

In late August 2001,

the Australian Government initiated a new policy ('the Pacific Solution')

whereby, prospective asylum seeking "unauthorised arrivals",

including children, have been diverted and detained in other countries,

including Nauru and Papua New Guinea. In effect, since September 2001,

asylum-seeking children arriving by boat, who would have otherwise been

detained in Australian immigration detention centres, are being detained

in other "declared countries." As of 26 March 2002, 1155 "unauthorised

arrivals" were detained at Nauru and 356 [4], including

over 100 children [5] , on Manus Island, Papua New Guinea.

These children are of particular concern to UNICEF Australia, given the

lack of transparency of their situation, the unpredictability of their

future [6], their limited access (if any) to legal resources

[7] and the detrimental impact of recent amendments to

the Migration Act [8]. UNICEF Australia urges

the Inquiry to visit and make recommendations in relation to the children

detained due to Australian Government immigration policy in "mainland"

Australia, "excised territories" and "declared countries."

Summary of Recommendations:

1. Release all

children from detention - an alternative system must be developed

a. Children, especially

those seeking asylum, should not be detained. Children should never be

subjected to the conditions of the current immigration detention centres.

b. The Government

must, as a matter of extreme urgency, implement an alternative. The Government

should adopt one of the range of proposed alternative models or immediately

set up a Task Force, comprising of the Government, policy makers and key

stakeholders to examine the best international practices of processing

children seeking asylum. An alternative to detention model should subsequently

be formed, that is appropriate to the Australian context and child friendly

that embraces the principle of family unity and is in the best interests

of the child.

c. Once the children

and families have been released from detention, immediate physical and

mental health assessments should be undertaken. Rehabilitative measures,

where necessary, should also be commenced. They should also have immediate

access to all necessary services. At a minimum, such services should include

language, financial, educational, health, psychosocial, rehabilitative

and other basic resettlement support.

2. Whilst the

new liberated system is developed, immediate action is required in the

detention centres

a. In the case of

an unaccompanied child, an independent, appropriately qualified guardian

must be appointed to ensure the best interests of the child.

b. The contract with

Australasian Correctional Management should be immediately aborted. Independent

and qualified inspectors should be empowered to regularly monitor and

implement the required action to cater for the specific vulnerabilities

of children in immigration detention centers. All staff that are involved

with the children in detention centers, should have culturally appropriate

child welfare training.

c. All children in

immigration detention centres should have access to independent legal,

health and educational professionals. Further, all children should be

immediately provided with culturally appropriate recreational equipment.

d. The particular

vulnerabilities of asylum seeking children should be acknowledged. Appropriate

care, in accordance with UNHCR guidelines, needs to be ensured. With regard

to the refugee determining process, child asylum applications should be

assessed swiftly, with a liberal application of the "benefit of the

doubt" principle. Decision-makers should receive specific training

in assessing child asylum applications.

e. All children should

be informed of all matters concerning their welfare and their right to

participate in the decision making process guaranteed, with due weight

given to their maturity, level of comprehension and psychological state.

3. Revise policy,

with the primary consideration being the best interests of the child

a. The Australian

Government should immediately provide a clear policy statement regarding

the viability of the "Pacific solution," including re-settlement

plans. All territories influenced by Australian Government immigration

policy, including "mainland Australia", "excised territories"

and "declared countries", should be made subject to independent

monitoring in order to ensure transparency and accountability.

b. All children in

immigration detention centres should have a guaranteed avenue for administrative

and judicial review of their detention and immigration decisions.

c. Discriminatory

policies, such as the various classes of protection visa and the detention

of "unauthorized arrivals," should be revoked. All children

in Australia, including asylum seekers and refugees, are entitled to enjoy

all of the rights under the Convention, without discrimination. As such,

all children recognized as refugees should be granted permanent protection

visas with the ability to sponsor their families and have access to all

necessary services.

UNICEF

Australia's position

It is UNICEF Australia's

view that a multitude of Articles of the Convention have been breached

by the Australian Government's policy of non-reviewable, mandatory detention

of all "unauthorized arrivals," including asylum seeking children.

Violations of particular, but not exclusive concern [9]

include:

1. Article 2 -

Non-discrimination

2. Article 3 - Best interests of the child

3. Article 6 - Survival and development

4. Article 22 - Refugees

5. Article 37(b) & (c) - Deprivation of liberty

6. Article 37(d) & Article 40 - Juvenile justice

1. Article 2 -

Non-discrimination

1. States Parties

shall respect and ensure the rights set forth in the present Convention

to each child within their jurisdiction without discrimination of any

kind, irrespective of the child's or his or her parent's or legal guardian's

race, colour, sex, language, religion, political or other opinion, national,

ethnic or social origin, property, disability, birth or other status.

2. States Parties

shall take all appropriate measures to ensure that the child is protected

against all forms of discrimination or punishment on the basis of the

status, activities, expressed opinions, or beliefs of the child's parents,

legal guardians, or family members.

Article 2 of the

Convention, prohibits discrimination on any ground, including immigration

status. As such, every child in Australia [10] is entitled

to all of the rights under the Convention free from discrimination. Australia

is obliged to protect children from any form of discrimination and to

take positive action to promote their rights.

Children in Australian

immigration detention centres are fundamentally discriminated against

and do not enjoy the same rights under the Convention as those outside

of detention. It is UNICEF Australia's considered opinion that the Australian

Government's policy is discriminatory as:

  • It discriminates

    on the grounds of the immigration status of the children upon arrival

    to Australia. Children who are deemed to hold the appropriate documentation,

    such as a visa, are able to apply for asylum whilst living in the community.

    Those without documentation are punished and mandatorily detained, usually

    for the entire period of the refugee status determining process. This

    policy disregards the particular difficulties of asylum seekers, often

    from Afghanistan and Iraq, in obtaining the necessary documentation

    .[11]

  • Different legal

    status is given to those people found to be refugees according to their

    status on entry to Australia and according to the time spent in countries

    outside their country of origin. The Australian Government admits that,

    "the new visa regime intentionally discriminates between groups

    of refugees (those fleeing directly and refugees making unnecessary

    secondary movements) in their capacity to access local integration in

    Australia [12]." The differing legal status,

    by classification of visa, translates into different rights and benefits

    for children. "Unauthorized arrivals" who are recognized as

    refugees, are entitled to only temporary protection for three years

    and are prohibited from accessing any permanent status and cannot sponsor

    their families. This policy has encouraged other family members, often

    women and children to "take to the seas" and risk their lives

    in order to be reunited with their families. They are further discriminated

    against as they receive restricted access to services and rights that

    are essential for the child's development. The Australian Government's

    policy, in this regard is irreconcilable with the best interests of

    the child, including the principle of family reunification . [13]

Recommendations:

1.1 The Australian

Government should revoke all immigration legislation that is discriminatory

to children.

1.2 The Australian

Government should ensure that all children in Australia, including asylum

seekers and refugees, are able to enjoy all rights under the Convention,

without discrimination. As such, all children recognized as refugees,

regardless of the manner in which they entered Australia or the time spent

in countries outside of their country of origin, should be granted permanent

protection visas with the ability to sponsor their families and have access

to all services. At a minimum, such services should include language,

financial, educational, health, psychosocial, rehabilitative and other

basic resettlement support.

2. Article 3 -

Best interests of the child

1. In all actions

concerning children, whether undertaken by public or private social

welfare institutions, courts of law, administrative authorities or legislative

bodies, the best interests of the child shall be a primary consideration.

2. States Parties

undertake to ensure the child such protection and care as necessary

for his or her well-being, taking into account the rights and duties

of his or her parents, legal guardians, or other individuals legally

responsible for him or her, and, to this end, shall take all appropriate

legislative and administrative measures.

Article 3(1) emphasises

that in order to ensure that the best interests of the child are a primary

consideration, government, public and private institutions must actively

ascertain the impact of their actions upon children. In accordance with

the best interests of the child, numerous areas of a child's life need

to be nurtured and sustained. As a foundation, the following three elements

must be maintained:

Preservation of

family life

The Preamble to the

Convention recognises that, "the child, for the full and harmonious

development of his or her personality, should grow up in a family environment,

in an atmosphere of happiness, love and understanding." All children

are entitled to live in a loving, family environment under the primary

care and supervision of their parents or legal guardians . [14]

All children are entitled to live with both of his or her parents unless

it is deemed to be incompatible with the child's best interests. Separation

from parents should only be contemplated in the exceptional circumstance,

"such as one involving abuse or neglect of the child by the parents

or one where the parents are living separately and a decision must be

made as to the child's place of residence." [15]

Under Article 37(c)

of the Convention, children who are deprived of their liberty must be

separated from adults "unless it is considered in the child's best

interest not to do so." The Government has considered that it is

in the child's best interest "to remain with their parents, family

or fellow country people," however the Government has used the principle

of the best interests of the child as the justification for detaining

children . [16] The preservation of the family unit

is essential for the best interests of the child. However, the devastating

and enduring ramifications of detention on children, especially as they

are detained with adults, should not be bargained against the principle

of family unity. UNICEF Australia strongly opposes the separation of children

from either or both of their parents [17]. The implications

of children and adults being detained in the same area are also not in

the best interests of the child [18]. The detention

of children is inherently undesirable for a multitude of reasons. The

only option is to release the child with their family. Alternative models

to detention must be developed that encompass all aspects of the child's

best interests, including the preservation of family unity.

Guardianship

In the case of an

unaccompanied child, Australia is obliged to provide special protection

and ensure that culturally appropriate alternative family care or institutional

placement is available [19]. In Australia, an unaccompanied

minor becomes the ward of the Minister for Immigration and Multicultural

and Indigenous Affairs. The child may then be delegated to an official

of a government welfare department [20]. UNICEF Australia

is concerned about the lack of independence of the guardian appointed

to unaccompanied children, as the guardian should advocate for the child's

best interests in all matters and a conflict of interest may arise. The

guardian should also possess the appropriate training and expertise in

child welfare issues. In accordance with the UNHCR Guidelines on Unaccompanied

Children ,[21] it is recommended that, "an

independent and formally accredited organisation appoint a guardian or

adviser as soon as the unaccompanied child is identified. The guardian/adviser

would be charged with ensuring that the best interests of the child are

respected throughout the status determination procedure and in all care

and welfare decisions concerning the child."

Independent monitoring

Article 3(3):

State Parties shall ensure that the institutions, services and facilities

responsible for the care and protection of children shall conform with

the standards established by competent authorities, particularly in

the areas of safety, health, in the number and suitability of their

staff, as well as competent supervision.

While the overall

responsibility for the detention centres, rests with the DIMIA, the day-to-day

operation of the centres has been contracted out to a private sector service

provider, Australasian Correctional Management (ACM). ACM has a background

in operating correctional facilities. UNICEF Australia believes that ACM

is an entirely inappropriate service provider to care for the needs and

special vulnerabilities of children in detention. In accordance with the

United Nations Rules for the Protection of Juveniles Deprived of their

Liberty , [22] UNICEF Australia opines that independent

qualified inspectors, should be empowered to monitor detention facilities

on a regular basis and implement the action required in the best interests

of the child. The lack of transparency and accountability of the activities

in the detention centres has to be rectified.

Recommendations:

2.1 The detention

of children in Australian immigration detention centers, in the manner

and for the prolonged period of time that they are detained is in violation

of Article 3 of the Convention. Alternatives to detention must be immediately

implemented .[23]

2.2 All children

and their families should be removed from immigration detention centers

and settled in the community with access to all necessary services .[24]

2.3 In the case of

an unaccompanied child, an independent, appropriately qualified guardian

must be appointed to ensure the best interests of the child.

2.4 Whilst alternative

liberated arrangements are being established, independent and qualified

inspectors should be empowered to regularly inspect and implement the

necessary action required to cater for the specific vulnerabilities of

children in immigration detention centers. In addition, all children in

detention should have access to necessary resources . [25]

2.5 Whilst alternative

liberated arrangements are being established, all staff that have contact

with the children in detention centers should have culturally appropriate

child welfare training.

3. Article 6 -

Survival and development

1. State Parties

recognize that every child has the inherent right to life.

2. State Parties

shall ensure to the maximum extent possible the survival and development

of the child.

Every child has an

inherent right to life, and Australia has an obligation to ensure the

child's survival and development. "Survival and development"

encompasses both the child's physical survival and healthy development

and his or her mental and emotional development. Further, the ability

of a child to participate and freely express his or her opinions is essential

to his or her development . [26]

As it is the decision

of the Australian Government to detain children, under the Convention,

it is directly responsible to:

  • ensure every

    child's survival and development.

  • protect every

    child from all forms of "physical or mental violence, injury or

    abuse, neglect or negligent treatment, maltreatment or exploitation,

    including sexual abuse," by parents or others responsible for the

    care of the child and establish appropriate social programmes for the

    prevention of abuse and the treatment of victims . [27]

  • ensure that every

    child, receives the highest standard of health and medical care attainable

    and access, "to facilities for the treatment of illness and rehabilitation

    of health ." [28]

  • ensure that every

    child, especially those suffering form torture and trauma receives appropriate

    treatment for their recovery and social integration, in an environment

    which fosters the health, self-respect and dignity of the child ."

    [29]

  • ensure that every

    child receives a standard of living adequate for his or her, "physical,

    mental, spiritual, moral and social development ."[30]

  • ensure that every

    child receives education [31] that develops, "the

    child's personality, talents and mental and physical abilities to their

    fullest potential;[32] " develops, "respect

    for human rights and fundamental freedoms; [33] "

    fosters respect for, "the child's parents, his or her own cultural

    identity, language and values, for the national values of the country

    in which the child is living, the country from which he or she may originate,

    and for civilisations different from his or her own;[34]

    " and that prepares, "the child for responsible life in

    a free society, in the spirit of understanding, peace, tolerance, equality

    of sexes, and friendship among all peoples, ethnic, national and religious

    groups and persons of indigenous origins ."[35]

  • ensure that every

    child engages in leisure, play and participation in cultural and artistic

    activities .[36]

The myriad of reports

and testimonials of the environment in the immigration detention centres,

including images of detainees throwing themselves on razor wire, evidence

of riots, suicide, lip-sewing and other self-mutilations, allegations

of sexual assault and other forms of violence, overwhelmingly confirms

that it is entirely inappropriate and unjustifiable to detain children

in these centres. In UNICEF Australia's opinion, the detention in the

manner and for the length of time suffered by children in immigration

detention centres contravenes the child's right to survival and development

and flagrantly disregards the best interests of the child.

Recommendations:

3.1 All children

and their families should be immediately removed from immigration detention

centres and settled in the community with access to all necessary services

.[37]

3.2 All children

should have immediate independent clinical assessments as to their physical

and mental health. Rehabilitative measures, where necessary, should be

undertaken.

3.3 Whilst awaiting

release, all children in detention should have access to independent health

and educational professionals. In addition, all children in detention

should have immediate access to culturally appropriate recreational equipment.

4. Article 22

- Refugee children

1. State Parties

shall take appropriate measures to ensure that a child who is seeking

refugee status or who is considered a refugee in accordance with applicable

international or domestic law and procedures shall, whether unaccompanied

or accompanied by his or her parents or by any other person, received

appropriate protection and humanitarian assistance in the enjoyment

of applicable rights set forth in the present Convention and in other

international human rights or humanitarian instruments to which the

said States are Parties.

2. For this

purpose, State parties shall provide, as they consider appropriate,

cooperation in any effort by the United Nations and other competent

intergovernmental organizations or non-governmental organizations cooperating

with the United Nations to protect and assist such a child and to trace

the parents or other members of the family of any refugee child in order

to obtain information necessary for reunification with his or her family.

In cases where no parents or other members of the family can be found,

the child shall be accorded the same protection as any other child permanently

or temporarily deprived of his or her family environment for any reason,

as set forth in the present Convention.

Refugee children

are among the most vulnerable groups in the world. Australia, as a signatory

to the Convention and of the Convention relating to the Status of Refugees,

is obliged to ensure that a refugee child or a child seeking refugee status

is granted special protection. The "appropriate protection and humanitarian

assistance" should be guided by the principle of the best interests

of the child, including respect for the principle of family unity and

due consideration to a standard of living, "adequate for the child's

physical, mental, spiritual, moral and social development ". [38]

Unaccompanied asylum seeking children are especially vulnerable and are

entitled to additional protection [39] . Further, Australia

is obliged to co-operate with the competent organizations that provide

such protection and assistance.

With regard to the

refugee status determination, particularly if the child is detained, a

fair and swift refugee determining procedure with the right to formally

appeal to an independent body [40], must be ensured.

The right of the child to participate [41] must be acknowledged

and ensured, however due weight must be given to the maturity, comprehension

of the process, educational and psychological state of the child. In this

regard, UNICEF Australia recommends that an extremely liberal approach

to the principle of "the benefit of a doubt" [42]

should be accorded to asylum seeking children. Further, access to independent

legal advisers and an independent guardian, to advocate in the child's

best interests, must be ensured.

The policy of non-reviewable,

mandatory detention, of all "unauthorized arrivals," including

children contravenes Article 22. Rather than acknowledging the exceptionally

difficult and vulnerable circumstance of asylum-seeking children and offering

due protection and humanitarian assistance, Australia penalizes asylum

seeking "unauthorized arrival" children by detaining them for

long periods of time, which further exacerbates their vulnerability and

development. Article 14(1) of the Universal Declaration of Human Rights

provides that "everyone has the right to seek and to enjoy in other

countries asylum from persecution." Asylum seeking children should

not be punished for doing so. This inflexible and arbitrary policy does

not appreciate the nature of the flight of the child asylum seeker and

their often inability to seek the formal documentation, prior to arriving

in Australia.

Recommendations:

4.1 The right to

judicial appeal should be immediately guaranteed, in order for asylum

seeking children to challenge any administrative decisions relating to

their detention.

4.2 The particular

vulnerabilities of asylum seeking children should be acknowledged. Appropriate

care, in accordance with UNHCR guidelines, needs to be ensured.

4.3 Child asylum

applications should be determined in accordance with UNHCR guidelines

and assessed swiftly, with a liberal application of the principle of the

benefit of the doubt. Decision-makers should receive specific training

in assessing child asylum applications.

4.4 Child asylum

seekers should be informed of all matters concerning their welfare and

allowed to participate in the refugee determining process, with due weight

given to their maturity and comprehension.

5. Article 37

(b) and (c) - Deprivation of liberty

States Parties

shall ensure that;…

(b) No child

shall be deprived of his or her liberty unlawfully or arbitrarily. The

arrest, detention or imprisonment of a child shall be in conformity

with the law and shall be used only as a measure of last resort and

for the shortest appropriate period of time;

UNICEF Australia's

uncompromising position is that children, especially asylum-seeking children,

should not be detained in immigration detention centres. In UNICEF Australia's

opinion, the Australian Government policy of non-reviewable, mandatory

detention of all unauthorized arrivals, including children, breaches Article

37(b) of the Convention and obligations under Article 9(1) of the International

Covenant of Civil and Political Rights, for the following reasons:

It is arbitrary

In UNICEF Australia's

view [43], the Australian Government policy of non-reviewable

mandatory detention is arbitrary as it is not a proportionate [44]

means to achieve a legitimate aim. Further, it is unjust, unpredictable

[45], for inexcusably prolonged periods and the detention

of unauthorised arrivals is not an exceptional occurrence but the norm.

It is not a measure

of last resort

Australia is the

only Western country in the world that has mandatory detention of all

"unauthorized" arrivals, including children [46].

A range of alternatives to detention models have been, and will continue

to be, presented to the Government. UNICEF Australia urges the Government

to seriously consider and implement an alternative to detention model.

In addition, if the proposed models are seen as inappropriate to the Australian

context, the Government, policy makers and key stakeholders should establish

a Task Force, instructed to examine the best international practices of

processing children seeking asylum. The information would thus be consolidated,

in order to establish an alternative to detention that is appropriate

to the Australian context, whilst embracing the importance of the family

unit [47] and in accordance with the best interests

of the child.

Detention is not

for the shortest appropriate period of time

The arbitrariness

of the detention is further supported by the prolonged periods of detention.

It is UNICEF Australia's view that children should not, as a general rule,

be detained. In Australia, unauthorised asylum seekers, including children

are detained for the entire refugee status determining period, which is

often for many months and on occasions, for years. UNICEF Australia finds

this to be entirely inappropriate, especially considering the vulnerabilities

of asylum seeking children. If a child is to be detained, UNICEF Australia

views that it should be done in accordance with UNHCR Guidelines.

The Tampa

provides a well-documented case study, of the processing of asylum seekers,

including children, by the Australian Government. Within three months,

New Zealand processed and granted refugee status and permanent residency

to all but one of the 131 asylum seekers from the Tampa [48]

. UNICEF Australia applauds the New Zealand Government for acknowledging

the specific vulnerabilities and deliberately selecting family groups

and unaccompanied minors, and processing their claims expeditiously. The

fate of the asylum seekers from the Tampa, under the responsibility

of the Australian Government, eight months on, is still unknown [49]

. Children are clearly being detained for more than 'the shortest appropriate

period of time' under the Australian system.

(c) Every child

deprived of liberty shall be treated with humanity and respect for the

inherent dignity of the human person, and in a manner which takes into

account the needs of persons of his or her age. In particular, every

child deprived of liberty shall be separated from adults unless it is

considered in the child's best interest not to do so and shall have

the right to maintain contact with his or her family through correspondence

and visits, save in exceptional circumstances;

UNICEF Australia

is deeply concerned that children are detained with adults in the immigration

detention centres. This exposes the child to an entirely inappropriate

environment that heightens the child's vulnerability and exposure to harm

including sexual abuse. Many allegations of child sexual abuse have been

noted in Australian immigration detention centres [50]

and well documented internationally in refugee camps [51]

. Children detained with adults for prolonged periods of time, are also

exposed to increased levels of violence, including self-mutilations and

physical attacks that would have incalculable ramifications upon the development

of a child. UNICEF Australia also strongly opposes the separation of children

from either or both of their parents, other than under the conditions

expressed in Article 9. The detention of children in immigration detention

centres is entirely inappropriate and to the absolute detriment of a child.

Recommendation:

5.1 The right to

liberty is recognised under international human rights law as a fundamental

human right. Further, the right to seek asylum is an inherent right [52].

A child asylum seeker should not be penalised for the manner in which

he or she entered Australia. Children should never be detained in centres

such as the immigration detention centres in Australia.

5.2 The Government

should adopt one of the range of proposed alternative models or immediately

set up a Task Force, comprising of the Government, policy makers and key

stakeholders to examine the best international practices of processing

children seeking asylum [53]. An alternative to detention

model shall thus be formed that is appropriate to the Australian context

and child friendly that embraces the family unit and the best interests

of the child.

6. Article 37

(d) and Article 40 - Administration of juvenile justice

Article 37(d) provides:

Every child

deprived of his or her liberty shall have the right to prompt access

to legal and other appropriate assistance, as well as the right to challenge

the legality of the deprivation of his or her liberty before a court

or other competent, independent and impartial authority, and to a prompt

decision on any such action.

Further, Article

40 provides:

1. States Parties

recognize the right of every child alleged as, accused of, or recognized

as having infringed the penal law to be treated in a manner consistent

with the promotion of the child's sense of dignity and worth, which

reinforces the child's respect for the human rights and fundamental

freedoms of others and which takes into account the child's age and

the desirability of promoting the child's reintegration and the child's

assuming a constructive role in society.

2. To this end,

and having regard to the relevant provisions of international instruments,

States Parties shall, in particular, ensure that: …

(b) Every child

alleged as or accused of having infringed the penal law has at least

the following guarantees:

(i) To be

presumed innocent until proven guilty according to law;

(ii) To be

informed promptly and directly of the charges against him or her,

and, if appropriate, through his or her parents or legal guardians,

and to have legal or other appropriate assistance in the preparation

and presentation of his or her defence;

(iii) To have

the matter determined without delay by a competent, independent and

impartial authority or judicial body in a fair hearing according to

law, in the presence of legal or other appropriate assistance and,

unless it is considered not to be in the best interest of the child,

in particular, taking into account his or her age or situation, his

or her parents or legal guardians;…

In Australia, detention

is mandatory for all unauthorised arrivals, including children and does

not consider the individual circumstances of cases. Further, the courts

cannot determine the reasonableness and appropriateness of the detention.

The recent amendments to the Migration Act further restricts access

to judicial review, especially in "declared countries," and

effectively gives greater weight to DIMIA assessments [54],

contrary to the rule of law [55]. The participation

of children [56] and access to the provision of legal

services is also questionable [57] and of concern to

UNICEF Australia, especially for asylum seeking children involved in the

"Pacific solution."

In UNICEF Australia's

opinion, Australia is in breach of its obligations under Article 37(d)

and Article 40(2)(b)(ii) and 40(2)(b)(iii) of the Convention and Article

9.4 and Article 14 of the International Covenant on Civil and Political

Rights (ICCPR) . [58]

Recommendations:

6.1 All children

in immigration detention centres, particularly asylum seeking children,

should have access to independent legal advice and an appropriate guardian

appointed to unaccompanied children.

6.2 All children

in immigration detention centres should have a guaranteed avenue for administrative

and judicial review of their detention and immigration decisions.

6.3 All children

should be informed of all decisions involving their welfare and their

right to participate in the refugee determining process should be guaranteed.

Conclusion

Children

in immigration detention centres must be immediately released.


1. See

Amnesty International, Alternatives to mandatory detention, Refugee Fact

Sheet July 2001: http: www.amnesty.org.au/whatshappening/refugees/ accessed

April 2002.

2.

Per DIMIA figures, accessed April 2002 from http://www.immi.gov.au/detention/women.htm.

3.

Ibid.

4. Per

DIMIA figures per http://www.immi.gov.au/facts/76offshore.htm accessed

April 2002.

5.

Per Foreign Correspondent, ABC Television, 17 April 2002, noted that a

third of 364 asylum seekers were under the age of 17. We have been unable

to ascertain the number of children on Nauru.

6.

If they are recognised as genuine refugees when and where will they be

re-settled? If they are not recognised by DIMIA to be refugees, when and

where will they go? For how long will they be detained? The impact of

the Constitutional challenges, (that the detention is unlawful) on both

Nauru and PNG? See note 5 and Oxfam report, Adrift in the Pacific: The

implications of Australia's Pacific Refugee Solution, February 2002.

7. Per

DIMIA website: www.immi.gov.au/legislation/refugee/04.htm accessed 4 May

2002: "Will offshore entry persons and individuals on a declared

country be provided with migration assistance under the Immigration Application,

Advice and Assistance Scheme (IAAAS)? No. Such persons will not have access

to IAAAS. Revised administrative procedures will ensure active exploration

of individual cases by DIMIA officers to identify any persons in need

of refugee protection. This practice accords with UNHCR operational arrangements

for refugee determination. Individuals are free to make their own arrangements

for assistance at their own expense."

8. Including

the non-compellable discretionary power of the Minister of Immigration

to allow an application for a visa, discriminatory visa classes and the

removal of any form of independent review of the refugee assessment. The

only review of the initial refugee assessment by the DIMIA officer is

made by another DIMIA officer. Further, "under s494AA of the Act

offshore entry persons will not have access to litigation to challenge

review decisions apart form the High Court under s75 of the Constitution,"

per http://www.immi.gov.au/legislation/refugee/03.htm accessed April 2002

9. The

six listed categories are not mutually exclusive and also consider various

other Articles.

10. Whether

they are an Australian citizen, a recognized refugee, an asylum-seeker

or rejected asylum seeker etc.

11. This

could also raise concerns regarding Australia's obligations under the

International Convention on the Elimination of All Forms of Racial Discrimination

and other human rights instruments to which Australia is a party.

12.

Per DIMIA website: www.immi.gov.au/legislation/refugee/01.htm accessed

April 2002.

13. Article

10, Convention on the Rights of the Child (1989).

14. Article

5, Convention on the Rights of the Child (1989).

15. Article

9, Convention on the Rights of the Child (1989).

16.

Per The Minister for Immigration and Multicultural and Indigenous Affairs

website: www.minister.immi.gov.au/faq/detention.htm accessed April 2002.

17. except

under Article 9 or if it truly is in their best interests under Article

37 (c) Convention on the Rights of the Child (1989).

18. see

later s37(c) discussion.

19.

Article 20, Convention on the Rights of the Child (1989).

20. Immigration

(Guardianship of Children) Act.

21.

UNHCR Guidelines on Unaccompanied Children, paragraph 5.7

22.

Rule 72,

23. See

later discussion under Article 37.

24.

See Recommendation 1.2

25.

See Recommendation 1.2

26. Articles

12 & 13, Convention on the Rights of the Child (1989).

27. Article

19(1), Convention on the Rights of the Child (1989).

28. Article

24, Convention on the Rights of the Child (1989).

29. Article

39, Convention on the Rights of the Child (1989).

30. Article

27, Convention on the Rights of the Child (1989).

31. Article

28, Convention on the Rights of the Child (1989).

32. Article

29 (1a), Convention on the Rights of the Child (1989).

33. Article

29 (1b), Convention on the Rights of the Child (1989).

34. Article

29 (1c), Convention on the Rights of the Child (1989).

35.

Article 29 (1d), Convention on the Rights of the Child (1989).

36. Article

31, Convention on the Rights of the Child (1989).

37. See

Recommendation 1.2

38. Article

27, Convention on the Rights of the Child (1989).

39. Article

20, Convention on the Rights of the Child (1989).

40.

See Article 40, Convention on the Rights of the Child (1989); Article

14 of the International Covenant of Civil and Political Rights and UNHCR

Guidelines on Unaccompanied Children, paragraph 8.2.

41.

Article 12 & 13, Convention on the Rights of the Child (1989).

42. UNHCR

Handbook on Procedures and Criteria for Determining Refugee Status, under

the 1951 Convention and the 1967 Protocol relating to the Status of Refugees,

paragraphs 196, 203, 204 and 219.

43.

In accordance with the reasoning in the Human Rights and Equal Opportunity

Commission report, Those who've come across the seas: detention of unauthorised

arrivals, May 1998.

44. In

assessing the balance, the best interests of the child must be the primary

consideration.

45. UNICEF

Australia draws particular concern to the situation of the asylum seekers

involved in the "Pacific Solution."

46.

See note 1.

47.

Note UNICEF Australia's earlier objection to separation of family members,

in the best interest of the child.

48.

NZ may take in Nauru refugees, The New Zealand Herald, dated 10 April

2002 accessed from www.nzherald.co.nz/storydisplay.cfm?storyID=1294166&thesection=news&th

27/4/02; Calls for refugee review after UN rejects Tampa asylum seekers,

The New Zealand Herald, dated 9 April 2002 accessed from www.nzherald.co.nz/storydisplay.cfm?storyID=1294016.

49. See

http://www.refugeecouncil.org.au/newsApr2002.htm, accessed May 2002.

50.

including a report on the UNHCR website: www.unhcr.ch, Watchdog slams

Australian immigration detention centres, dated 5 March 2001.

51.

BBC news report dated 27 February 2002, regarding the UNHCR and Save the

Children report, Sexual Violence and Exploitation: The Experience of Refugee

Children in Guinea, Liberia and Sierra Leone.

52. Article

14(1) of the Universal Declaration of Human Rights provides that "everyone

has the right to seek and to enjoy in other countries asylum from persecution."

53. As

well as other children in immigration detention centres.

54. See

note 8.

55. See

discussion, 'Illegal refugees' or illegal policy?, J. P. Fonteyne, Refugees

and the Myth of the Borderless World, National Library of Australia, Canberra

February 2002.

56. Article

12, Convention on the Rights of the Child (1989).

57. See

note 7.

58. Article

14(1), ICCPR provides: "All persons shall be equal before the courts

and tribunals. In the determination of any criminal charge against him,

or of his rights and obligations in a suit at law, everyone shall be entitled

to a fair and public hearing by a competent, independent and impartial

tribunal established by law."

Last

Updated 9 January 2003.