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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.