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Submission to the National

Inquiry into Children in Immigration Detention from

Amnesty International Australia


Introduction

Amnesty

International's work on refugees

The

Convention on the Rights of the Child

Health

Concerns

Education

of Children in Australia's Immigration Detention Centres

Mandatory

Detention

Provision

for the Release of Children Held In Immigration Detention

Alternatives

to detention: Towards the goal of a more humane asylum system

Conclusion

Introduction

This is a paper prepared

by Amnesty International for the HREOC Inquiry into children in immigration

detention centres. In particular, this paper sets out Amnesty International's

concerns with the detention of children, having regard to the international

human rights treaties to which Australia has committed itself.

In this submission

Amnesty International examines:

1. Amnesty International's

concerns with regard to Australia's obligations under the Convention

on the Rights of the Child

2. Specific health concerns

3. Specific educational concerns

4. Mandatory detention

5. Case studies highlighting our concerns

6. Provisions for release from detention

7. Alternatives to detention

Amnesty International

welcomes the opportunity to make this submission to HREOC. The mandatory

detention of asylum seekers generally is of concern to Amnesty International.

However, the issues that arise in relation to the detention of children,

including the fact of detention, the length of detention, the conditions

of detention and the long term impact of detention are of particular concern.

Children represent a vulnerable group in society deserving of special

protection. Children asylum seekers, many of whom have experienced persecution

in their homeland and who have undergone the trauma of fleeing their homes

represent an even more vulnerable group deserving of special protection

from abuse and exploitation. Amnesty International is concerned that the

mandatory institutionalization of these children poses significant risks

to their emotional, physical, psychological, social and intellectual well-being

and development. Their detention is, in the view of Amnesty International

contrary to Australia's international law obligations.

Amnesty International

has grave concerns about the parameters of the current political rhetoric

that publicly blames parents for the detention of children without due

consideration to the deleterious impact that this has on entire families

waiting powerlessly in detention unable to challenge in any way, the lawfulness

of their detention. Amnesty International strongly advocates the consideration

of alternatives to detention. Detention of children should not be automatic.

It should only be applied in exceptional cases, and each case should be

considered on an individual basis, having regard to such considerations

as security and health risks. Further, when considering the release of

children from detention a non-discriminatory treatment must be applied

equally to accompanied and non-accompanied minors.

In making our submission

we examine the following:

  • The Convention

    on the Rights of the Child (CROC).

  • The Convention

    Relating to the Status of Refugees

  • Universal Declaration

    of Human Rights (UDHR)

  • International

    Covenant on Civil and Political Rights

  • International

    Covenant on Economic, Social and Cultural Rights

While not dealt with

in detail below, the Inquiry should also be aware of other international

standards on detention, including the UN Standard Minimum Rules for the

Treatment of Prisoners (the Standard Minimum Rules) and the Body of Principles

for the Protection of All Persons under Any Form of Detention or Imprisonment.

Amnesty

International's work on refugees

Amnesty International

aims to contribute to the worldwide observance of human rights as set

out in the Universal Declaration of Human Rights and other internationally

recognised standards. We oppose grave violations of the rights of every

person, and support the right of people freely to hold and express their

convictions and to be free from persecution by reason of their ethnic

origin, sex, colour or language, and the right of every person to physical

and mental integrity. We oppose abuses by state and non-state actors -

such as opposition groups. Refugee rights are a fundamental tenet of human

rights.

When examining refugee

rights, as set out in the 1951 Refugee Convention:

Article 1A(2) sets

out the definition of a refugee as applying to a person whom:

"…owing

to a well-founded fear of being persecuted for reasons of race, religion,

nationality, membership of a particular social group or political opinion,

is outside the country of his nationality and is unable or, owing to

such fear, is unwilling to avail himself of the protection of that country;

or who, not having a nationality and being outside the country of his

former habitual residence, is unable or, owing to such fear is unwilling

to return to it."

The fundamental principle

of the Refugee Convention is contained in Article 33 which prescribes

'non-refoulement', and states:

"(1) No

Contracting State shall expel or return ("refouler") a refugee

in any manner whatsoever to the frontiers of territories where his life

or freedom would be threatened on account of his race, religion, nationality,

membership of a particular social group or political opinion…"

This Article mirrors

the customary international law principle of non-refoulement, which law

is binding on all states.

The Refugee Convention

also addresses other obligations that are imposed on the Contracting State

with respect to refugees in its territory. These include:

  • That the provisions

    of the Refugee Convention be applied without regard to race, religion

    or country of origin (Article 3);

  • Refugees' rights

    to practise religion (Article 4);

  • That the Contracting

    State affords refugees free access to the courts of law of the Contracting

    State; and any other benefits accorded to the nationals of the Contracting

    State (Article 16);

  • Refugees' rights

    to welfare, including the right to housing (Article 21);

  • Refugees' rights

    to freedom of movement within the territory (Aritcle 26); and

  • Refugees' rights

    to be issued identity papers in the absence of valid travel documents

    (Article 27).

Amnesty International

works to prevent the human rights violations that cause refugees to flee

their homes. At the same time, Amnesty International opposes the forcible

return of any individual to a country where he or she faces serious human

rights violations on return. We therefore seek to ensure that states provide

individuals with effective and durable protection from being sent against

their will to a country where they risk such violations, or to any third

country where they would not be afforded effective and durable protection

against such return.

1.

The Convention on the Rights of the Child

Article 25 of the

UDHR declares that childhood is "entitled to special care and assistance".

The particular vulnerability of children is also recognised in the Declaration

of the Rights of the Child: "the child, by reason of his [sic]

physical and mental immaturity, needs special safeguards and care, including

appropriate legal protection, before as well as after birth". Building

on these two documents, the Convention on the Rights of the Child

('CROC') [1] was negotiated in order to provide special

protection for the human rights of the world's children. Adopted unanimously

by the UN General Assembly on 20 November 1989 the CROC has been ratified

by 191 states. The unanimous support for the CROC in the General Assembly

and the near universality of ratification [2] reflects

global recognition of the vulnerability of children to human rights violations.

Australia ratified

the CROC in 1990, with reservations to Article 37(c). The CROC has not

been incorporated into Australian law. Consequently the CROC is not enforceable

in Australian law, although it is binding on Australia in international

law. It is important to note the decision of the High Court of Australia

in Minister for Immigration and Ethnic Affairs v Teoh ('Teoh'),

[3] in which the Court discussed Australia's ratification

of the CROC and held that:

… ratification

by Australia of an international convention ... is a positive statement

by the executive government of this country to the world and to the

Australian people that the executive government and its agencies will

act in accordance with the Convention. That positive statement is an

adequate foundation for a legitimate expectation, absent statutory or

executive indications to the contrary, that administrative decision-makers

will act in conformity with the Convention and treat the best interests

of the children as a 'primary consideration'…

The CROC is monitored

by the Committee on the Rights of the Child, established by Article 43

of the CROC. The Committee on the Rights of the Child has expressed its

concern "about the treatment of asylum seekers and refugees and their

children, and their placement in detention centres" in Australia.

[5]

"Child"

is defined in Article 1 of the CROC as being "every human being below

the age of eighteen years unless under the law applicable to the child,

majority is attained earlier". Having ratified the CROC Australia

thus has obligations vis-a-vis all children within its jurisdiction, including

child refugees and asylum seekers.

Article 22 deals

specifically with child asylum seekers. Article 22(1) provides that:

States 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, receive

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 . (emphasis added)

However, in contravention

of Article 22(1) the policy of mandatory detention of child asylum seekers

certainly does not represent "appropriate measures to ensure"

that child asylum seekers enjoy the human rights set out elsewhere in

CROC and in other human rights convention. On the contrary, the policy

has the effect of denying many important human rights to detained children.

Mandatory, arbitrary, non-reviewable and open-ended detention of child

asylum seekers is clearly inconsistent with the provisions of CROC.

A fundamental obligation

imposed by the CROC on States Parties is to ensure that in all actions

concerning children the best interests of the child shall be a primary

consideration. [6] Amnesty International believes that

the mandatory detention of child asylum seekers is not in their best interest.

Furthermore the policy of mandatory detention is clearly contrary to Article

37 of the CROC, which relevantly requires Australia to ensure that:

(a) No child

shall be subjected to torture or other cruel, inhuman or degrading treatment

or punishment ...

(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';

(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;

(d) 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.

Amnesty International

is concerned that child asylum seekers in detention are not being 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". Articles 37(a) and 37(c) are parallel to Articles

7 and 10, respectively, of the International Covenant on Civil and

Political Rights ('ICCPR') [7]. The interpretation

of Articles 7 and 10 of the ICCPR is therefore relevant when considering

the parallel articles of the CROC. The UN Human Rights Committee considered

what could amount to a breach of Articles 7 and 10 in its General Comments

20 and 21. In a summary of these 'comments' by Savitri Taylor she

states that examples include:

infliction of

corporal punishment, unnecessary use of force, prolonged solitary confinement,

accommodation which is overcrowded, unsanitary, poorly ventilated or

otherwise injurious to health, failure to provide adequate medical,

educational and other such facilities, and withholding of outside contact.

[8]

Amnesty International

considers the mandatory detention of child asylum seekers can quickly

become arbitrary due to the fact it is automatic, open ended and lacks

judicial review. The Working Group on Arbitrary Detention of the UN Commission

on Human Rights has a mandate of investigating alleged cases of arbitrary

deprivation of liberty. [9] The Working Group has developed

a set of guarantees, the absence of some (or all) of which indicates that

detention is arbitrary. These guarantees are as follows:

Guarantee 1:

To be informed, at least orally, when held for questioning at the border,

or in the territory concerned if he [sic] has entered illegally, in

a language which he [sic] understands, of the nature of and grounds

for the measure refusing admission at the border, or permission for

temporary residence in the territory, that is being contemplated with

respect to him [sic].

Guarantee 2: Decision involving administrative custody taken

by a duly authorized official with a sufficient level of responsibility

in accordance with the criteria layed down by law and subject to guarantees

3 and 4.

Guarantee 3: Determination of the lawfulness of the administrative

custody pursuant to legislation providing to this end for:

(a) The person

concerned to be brought automatically and promptly before a judge

or a body affording equivalent guarantees of competence, independence

and impartiality;

(b) Alternatively, the possibility of appealing to a judge or to such

a body;

Guarantee 4:

To be entitled to have the decision reviewed by a higher court or an

equivalent competent, independent and impartial body.

Guarantee 5: Written and reasoned notification of the measure

of custody in a language understood by the applicant.

Guarantee 6: Possibility of communicating by an effective medium

such as the telephone, fax or electronic mail, from the place of custody,

in particular with a lawyer, a consular representative and relatives.

Guarantee 7: To be assisted by counsel of his [sic] own choosing

...

Guarantee 8: Custody effected in public premises intended for

this purpose ......

Guarantee 10: Not to be held in custody for an excessive or unlimited

period, with a maximum period being set, as appropriate, by the regulations.

Guarantee 13: Possibility for the alien to benefit from alternatives

to administrative custody.

Guarantee 14: Possibility for the Office of the United Nations

High Commissioner for Refugees, the International Committee of the Red

Cross and specialized non-governmental organizations to have access

to places of custody. [10]

As it is mandatory,

detention of child refugees and asylum seekers is clearly not being used

as a measure of last resort. Amnesty International is also concerned by

the fact that child asylum seekers are being detained for extended periods

of time. The difficulty of access to lawyers and the non-reviewable nature

of the detention of child asylum seekers constitute further breaches of

Article 37.

Many asylum seekers

and refugees detained in Australian detention centres have suffered torture

or other abusive treatment prior to reaching our shores. Pursuant to Article

39 of the CROC Australia is obliged to:

take all appropriate

measures to promote physical and psychological recovery and social reintegration

of a child victim of: any form of neglect, exploitation, or abuse; torture

or any other form of cruel, inhuman or degrading treatment or punishment;

or armed conflicts. Such recovery and reintegration shall take place

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

of the child.

Amnesty International

is concerned that Australia's detention centres do not constitute "an

environment which fosters the health, self-respect and dignity of the

child". The detention of children who have suffered any form of the

above mistreatment is clearly a breach of the spirit if not the letter

of the CROC.

The special vulnerability

of children who are deprived of their family environment is recognised

in Article 20 of the CROC, which states that such children are "entitled

to special protection assistance provided by the State". This article

extends to unaccompanied child asylum seekers, who Amnesty International

considers to be particularly at risk in immigration detention. UNICEF

states that:

the loss of

family attachments and identity together with the instabilities and

disruptions of a new placement can impede [children's] physical, intellectual

and emotional development; children in such circumstances are also vulnerable

to abuse and exploitation. [11]

Article 20 implies

that placement in "suitable institutions for the care of children"

is the last resort. It is more preferable for a child to be placed with

an alternative family. [12] A decision to place a child

in an institution should only occur "if necessary". [13]

If a child is placed in an institution, then the State must "take

measures to ensure that they are provided with well-trained staff, that

the children's needs are met and their quality of life is good and they

are protected from abuse." [14]

Australia is also

obliged to ensure that the "institutions, services and facilities

responsible for the care or 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." [15] Importantly,

the Australian Government can not abrogate its responsibilities under

human rights treaties by outsourcing immigration detention centres. [16]

Children are entitled

to enjoy all the rights contained in the CROC without discrimination of

any kind. [17] Accordingly, children should not be discriminated

against on the basis of their immigration status. In contrast to child

asylum seekers who arrive without a valid visa, child asylum seekers who

arrive in Australia with valid visas and who subsequently apply for asylum

are not detained. Amnesty International is very concerned about this breach

of Article 2 of the CROC. Of great concern to Amnesty International is

the fact that child asylum seekers who arrive without a valid visa can,

at best, obtain a three year temporary protection visa, whereas "authorised"

child asylum seekers who are accepted as refugees are eligible for permanent

residency. Amnesty International considers this to be a clear breach of

Article 2.

Amnesty International

is also concerned that child asylum seekers are being denied various civil

rights provided for in the CROC. Under Article 12, children have the right

to participate meaningfully in all matters affecting them. Children are

also entitled to freedom of expression, [18] thought

and conscience, [19] and association [20].

Children are also entitled to privacy.

Social rights which

child asylum seekers may be denied include the right to a standard of

living adequate for physical, mental, spiritual, moral and social development,[22]

and the special right to rest and play. [23]

In summary Amnesty

International is concerned that Australia's policy of mandatory, non-reviewable,

open-ended detention of child refugees and asylum seekers does not fulfil

the requirement of Article 22 to provide appropriate measures to ensure

that such children receive appropriate protection of their other human

rights, which are contained in the CROC and in other treaties. The mandatory

detention of child asylum seekers is not in their best interest. The policy

breaches Article 37, because of its arbitrary, non-reviewable and open-ended

nature and because it is not being utilised as a measure of last resort.

The Government is failing to treat children with humanity and respect

for their inherent dignity. Immigration detention does not constitute

a means of promoting the recovery of child asylum seekers who have suffered

abuse. Of great concern to Amnesty International is the discriminatory

treatment of unauthorised child refugees and asylum seekers, which clearly

breaches Article 2. Amnesty International is also concerned that detained

child asylum seekers are being denied various other civil and social rights

contained in the CROC.

2. Health

Concerns

2.1. Introduction

Amnesty International

is concerned that the provision and standards accorded by Australia to

ensure, protect and promote the health and well-being of children in immigration

detention do not meet its international obligations.

Amnesty International

believes that the mandatory detention of children in Australia raises

specific issues in regard to both the physical and mental health and development

of those children. Many children in detention will have experienced differing

levels of trauma following events in their country of nationality prior

to arrival in Australia. These experiences may have a significant impact

on the child's mental health and development. Amnesty International is

concerned that the provisions, standards and practices adopted by Australia

do not meet its international obligations and are not adequate to respond

to the health needs of children being held in immigration detention centres

around Australia.

There are two international

instruments that impose obligations on Australia in relation to the protection

and promotion of the health of children in its territory: the CROC and

the International Covenant on Economic, Social and Cultural Rights

("ICESCR").

The CROC is the primary

instrument outlining Australia's obligations in this regard. As stated

above, in every action or decision made concerning children, the best

interests of the child are to be a primary consideration (Article 3).

This is one of the general, fundamental principles of the CROC. The relevant

Articles of the CROC under which Australia has obligations with regard

to the protection and promotion of the health of children in immigration

detention are as follows:

Article 6 of the

CROC recognises that every child has the inherent right to life and that

State Parties are to "ensure to the maximum extent possible the survival

and development of the child."

Article 24 of the

CROC obliges Australia to recognize "the right of the child to the

enjoyment of the highest attainable standard of health and to facilities

for the treatment of illness and rehabilitation of health. States Parties

shall strive to ensure that no child is deprived of his or her right of

access to such health care services." Article 24(2)(f) imposes an

obligation to pursue full implementation of this right and to take appropriate

measures to develop preventative health care.

Pertaining to children

arriving unaccompanied in Australia, Article 22 of the CROC recognises

the vulnerability of this group and imposes obligations to ensure that

appropriate measures are taken to ensure the child receives appropriate

protection and humanitarian assistance.

Article 39 of the

CROC provides that signatory States are to take all appropriate measures

to promote the physical and psychological recovery of a child victim of

any form of "neglect, exploitation, or abuse; torture or any other

form of cruel, inhuman or degrading treatment or punishment; or armed

conflicts." Importantly, this recovery is to take place 'in an

environment which fosters the health.....of the child."

Article 12 of the

ICESCR recognises the right of everyone to the enjoyment of the highest

attainable standard of physical and mental health. To fully realise this

right, States are to take steps to ensure the health development of the

child.

Other Articles of

the CROC that need to be taken into account when examining whether or

not Australia is meeting its obligations to children under this treaty

include Article 19 and Article 20.

2.1.1 Article

19 of CROC concerns a child's right to protection from all forms of violence

Article 19 states

that all children have a right to protection from all forms of violence;

including physical and mental violence, injury or abuse, neglect or negligent

treatment, maltreatment or exploitation, including sexual abuse, whilst

in the care of parent(s), legal guardian(s), or any other person who has

the care of the child. State parties must take all appropriate measures

to ensure such protection.

There have been allegations

of child abuse in Australia's detention centres. There have also been

reports of physical violence that has erupted in context of protest, including

acts of self- harm. Children have either been involved in many of these

acts or they have witnessed these acts. As such, Amnesty International

is concerned that the rights of the child, to be protected from violence

as stipulated in CROC, are not being upheld by the state party.

2.1.2 Article

20

Article 20 implies

that placement in suitable institutions for the care of children is the

last resort. It is more preferable for a child to be placed with an alternative

family. If it is necessary to put a child in an institution, then the

State must "...take measures to ensure that they are provided with

well-trained staff, that the children's needs are met and their quality

of life is good and they are protected from abuse." [24]

Article 3(3) also

provides that 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,

the number and suitability of their staff, as well as competent supervision.

Amnesty International

is concerned that detention centres fail to provide minors with the protection

established by competent authorities in the areas of safety or health.

Further, Amnesty International has received allegations which questions

the suitability of child welfare staff in at least one of Australia's

detention camps. With regards to competent supervision, Amnesty International

has concerns that unaccompanied minors are neither being properly housed

nor properly supervised in the detention centres, this could have serious

consequences.

2.2 Refugee Children as Particularly

Vulnerable Individuals

The CROC has also

identified the particular vulnerability of refugee children in Article

20.

Article 20 stipulates

that: "The loss of family attachments together with the instabilities

and disruptions of a new placement can impede their physical, intellectual

and emotional development; children in such circumstances are also vulnerable

to abuse and exploitation." [25]

Notwithstanding the

legal implications of the detention of children, there have been many

independent studies from human rights organisations, welfare groups, medical

bodies and health professionals concerning the effects of detention on

children. Considerable evidence has shown that detention centre environments

are inadequate to meet the special needs of any child, let alone children

who have suffered human rights abuses and the trauma of fleeing their

home. There are also fears that children housed in detention centres may

be at heightened risk of abuse.

Refugee children

are particularly vulnerable as they can suffer acutely from the following:

  • The persecution

    of family members, the parental anxiety and distress, or the generalised

    violence that is associated with refugee flight;

  • The very act

    of leaving home, usually suddenly and incomprehensibly;

  • Leaving behind

    family, friends and all that is familiar to them;

  • Separation from

    one or both parents during flight;

  • The assumption

    of adult responsibilities if one parent is missing;

  • A forced interruption

    of education;

  • A lack of time

    or place for play;

  • Pressure from

    the military or armed groups who want to recruit them.

2.3 The impact of detention

on children

Terry Smith of the

Refugee Council UK found in the report, Children and Asylum (2000),

concerning the effects of detention on children in the UK, that:

Isolation, together

with the trauma of having fled the threat of persecution, can cause

extreme psychological stress and this is likely to be exacerbated for

children who probably do not understand the reasons for detention. Detained

children will rarely if ever have access to appropriate education and

there are real dangers that they will not receive adequate health care

or be free to practice their religion or celebrate their culture. Unless

detention centres are subject to the rigorous employment checks applicable

to all employees who have substantial access to children, situations

could arise where children are exposed to the risk of abuse. [27]

Dr Aamer Sultan,

identified and studied the effects of what he has called immigration detention

stress syndrome (IDSS), and is completing research which he will submit

to the Medical Journal of Australia. The research details the stages of

an illness, which leads to an almost catatonic depressive state, suffered

by some detainees (including himself, claims Dr Sultan). Some of these

individuals, claim solicitor Jaqueline Everett, are children. The account

and the effects of Dr Sultan's syndrome on detainees was published in

the British Medical magazine, the Lancet in an article co-authored by

Australian clinical psychologist Zachary Steele. [28]

Further, five separate scientific studies all summarised by Zachary Steele

and another Sydney psychologist Derrick Silove, have shown extremely high

levels of serious mental breakdowns. Robert Manne, associate professor

of politics at La Trobe University, states that these levels are "[f]ar

higher, for example than among asylum seekers living in the community".

[29]

In response to the

numerous reports and claims outlining the negative impact of detention

on children, such as those listed above, there have been many requests

for the DIMIA to employ alternatives for minors. Despite growing pressure

however, the Minister of Immigration has maintained that separation of

a child from his or her family would not be in the interests of the child

and thus the family unit must be detained together in IDC's as stipulated

by the Migration Act. However, following the release of the Flood and

the Ombudsman's reports that scrutinised the IDC's, [30]

DIMIA initiated a trial involving the housing of some women and children

in the Woomera community. These asylum seekers, however, are under 24-hour

supervision by ACM staff, the correctional company running the detention

centres, with no unaccompanied movements beyond the house and yard.

Amnesty International

is concerned that the presence of ACM guards (this is excessive in itself)

in this trial will most likely hinder or eliminate many potentially positive

outcomes. The women and children involved with the trial, for instance,

could be constantly reminded of any disturbing experiences from the detention

centres that they may have witnessed by the presence of the guards. Further,

the lack of unaccompanied movements and constant surveillance by the guards

is comparable with the supervision and confinement of a detention centre.

The trial as of November 2001 had only incorporated 8 children and 4 adults.

Hundreds of children

have been detained in Australia in the last 12 months and children continue

to be detained if they arrive in Australia without proper documentation.

As of 2 May there

were 153 children in Australian detention centres, including 12 in the

Woomera Housing Project and 8 on Christmas Island. Added to this number

were the 15 in "alternative detention" in Adelaide. Amnesty

International has also been informed that there were approximately 243

children on Nauru and 125 children on Manus Island.

2.4. Child Development

Amnesty International

has serious concerns about the impact of immigration detention on the

development of children. It is important for those involved in a decision

to detain a child to be able to answer the questions: What is required

to maintain a 'normal' and healthy child development? What if anything

within the environment of a detention centre may hinder or eliminate this

development process? These questions must be addressed when determining

whether or not to detain a child if a serious determination as to 'the

best interests of the child' is to be made.

Derek Somerfield,

on refugee children, states:

Should the bad

memories of their traumas be worked through? If not they could be vulnerable

both in the short term and the long term to suffering a mental illness.

[31]

The impact of trauma

on children and young people must be recognised, both for its effects

on their development and for the possible long term effects, for example,

anxiety, depression, suicidality, substance use, self-harming and self-destructive

behaviour, and problems with anger management in later life.

It has been psychologically

accepted that refugee children are an extremely vulnerable group. F. L.

Ahearn and J. L. Atley, in their report "Refugee Children: Theory,

Research and Services", discussed the needs of refugee children,

specifically unaccompanied minors, on three levels, societal, community

and individual needs. Relative to the individual needs, a child suffers

trauma through loss or deprivation which could be physical or emotional.

In terms of the societal and community needs of the child, it is stated

that everyone must possess an identity, they must know where they fit

into society. [32]

Amnesty International

believes that in the environment of a detention centre there are inadequate

provisions for the maintenance and practice of a child's language, religion

or culture. If these needs are not met this could undoubtedly have a negative

impact on their social integration skills and sense of identity, which

may lead to emotional problems.

Winnicott D. stated

the following regarding the key needs of a child:

Emotional well-being

in childhood is based in a number of key needs being met. Children need

to feel safe, to have a secure and stable sense of self, to love and

to be able to relate to others, to play, and to be productive. Secure

attachment relationships and a sense of meaning, which derive from community

cultural and spiritual life, are a key part of children achieving this.

[33]

Dr Louise Newman,

Chair of the Faculty of Child and Adolescent Psychiatry of the Royal Australian

and New Zealand College of Psychiatry, comments on child development:

Consistent and

empathic care and stable attachment relationships, opportunities for

learning and play and adequate nutrition, are all required in order

to maintain a normal and healthy child development. In the context of

a detention centre the fundamentals needed for health development are

not available. The main problem is that they (the children) have traumatised

parents who are emotionally unavailable to them, also they are exposed

to traumatic events. What we are observing are signs of social and emotional

delay and attachment disorders. [34]

Amnesty International

is concerned that children in detention centres have inappropriate access

to a stable group of peers with whom they know they will form and maintain

both social and educational relationships.

2.5 Unaccompanied minors

Australia houses

unaccompanied minors in detention centres, places that are subject to

frequent riots, violence and psychological trauma. Without parents or

relatives to protect them, these children can be prone to incidents of

abuse, emotional trauma and psychological damage. The negative impact

of such psychological damage is accentuated by the delays in processing

and the effects flowing from the initial incommunicado detention. Amnesty

International objects to the detention of unaccompanied minors as unlike

accompanied children, where the government argues it is in the best interest

of the child to keep them with their parents, there is no justification

to keep these children in detention. The Minister for Immigration states

that it is in the best interests of the accompanied child to remain in

detention with their parents; yet without parents, it can not be in the

interests of the child to be detained unaccompanied.

Amnesty International

welcomes recent developments in relation to the release of unaccompanied

minors. However, there is no adequate reason why minors who are accompanied

by a detained person or guardian should be treated differently from unaccompanied

minors. Release of unaccompanied minors represents a clear acknowledgement

that detention is inherently undesirable. Release should be assessed on

an individual basis, irrespective of the distinction as to whether the

child is accompanied or unaccompanied. Where it is established that an

accompanied minor should be released there must also be provisions for

his or her family to be released.

In November 28, 2001,

Dr Ozdowski stated "As of December 2001, there were 582 children

in immigration detention centres and (that he was) particularly concerned

about the welfare of 53 of them being held without their parents."

He continued "I heard of an eight year old boy...an unaccompanied

minor ...who was detained for six months". [35]

Also, the executive director of the Refugee Council of Australia, Margaret

Piper, stated "many of the unaccompanied minors were 16-or 17-year-old

males form the Hazara religious minority group in Afghanistan, who had

been persecuted by the Taliban." [36]

Unaccompanied minors

who arrive in Australia are the responsibility of the Minister of Immigration.

This is provided in the Immigration (Guardianship of Children)

Act, 1946 (IGOC Act). The regulatory definition of guardian does not,

in law apply to the IGOC Act. However for minors claiming refugee status

on arrival, minors entering Australia for adoption and unaccompanied humanitarian

minors, officers in immigration clearance are required to have regard

to the provisions of the IGOC Act in accessing visa applications. Minors

who are not in the care of, or joining a parent, or relative over 21 are

said to be 'entering Australia under the IGOC Act'.

While the minor is

held in an immigration detention however, officers are to ensure that

the relevant State/Territory child welfare agency has undertaken to accept

responsibility for the minor's guardianship.

As guardian of the

child, the Minister (or relevant authority) shall have the same rights,

powers, duties, obligations and liabilities as a natural guardian of the

child would have, until the child reaches the age of 18 years or leaves

Australia permanently, or becomes an Australian citizen. For the purposes

of section 4AA of the Act there are principles to be observed when considering

whether or not to give a direction under that section in relation to a

person. Purposes included in this are the following: To protect the person

from risk or injury or danger or impairment of health; protect the person

from moral danger; or enable the person to have the benefit of adequate

direction or guidance.

In theory then, according

to the IGOC Act, unaccompanied children in Australia's IDC's and IRPC's

are protected from risk of harm as a child and are to be provided with

adequate direction and guidance. In reality however, this would not appear

to be the case. There have been allegations made to Amnesty International

that there is a lack of supervision and monitoring of unaccompanied minors

in IDC' s and as such Amnesty International is concerned that they are

not being granted the legal protections of a guardian. Further, where

unaccompanied minors have witnessed disturbing sights, or experienced

negative effects of detention as alleged in the case studies that follow,

Amnesty International believes that this is a breach of the IGOC Act which

requires the protection of a child from risk or injury, danger, impairment

of health.

As unaccompanied

minors in detention are the responsibility of the relevant state or territory

child welfare agency, this transference of responsibility must be upheld

appropriately. Unaccompanied minors must be provided with the benefit

of 'obligations and liabilities of a natural guardian' if they are to

be detained in IDC' s. Sev Ozdowski, the Human Rights Commissioner, has

stated that having the Minister for Immigration responsible for detaining

a child and being responsible for the child's welfare (the unaccompanied

minor) is a conflict of interests. [37]

Amnesty International

is also of the view that the Minister for Immigration has an acute conflict

of interest as the Minister responsible for the detention of asylum seekers

and with his statutory responsibilities for guardianship of unaccompanied

minors requiring him to have regard to the best interests of the child.

It is worth noting,

in comparison, the proposed Unaccompanied Alien Child Protection Act

of 2001 which establishes within the US Department of Justice (DOJ)

the Office of the Children's Services. It is to be responsible for coordinating

and implementing law and policy for unaccompanied alien children. The

proposals set forth by the Bill are, amongst others, the following:

  • Establishes an

    Inter Agency Task Force on Unaccompanied Alien Children.

  • Prohibits with

    an exception for violent children, detention in adult or delinquent

    children facilties

  • Prohibits an unaccompanied

    alien child from being repatriated to a country unless an appropriate

    voluntary agency has conducted an assessment of the country conditions

    and the Office has conducted an assessment of the suitability of placement

    of the child

  • Directs the Office

    to provide that each unaccompanied child have counsel and guardian ad

    litem.

  • Amends the Act

    to exempt unaccompanied alien children from certain removal and asylum

    filing provisions.

Amnesty International

would welcome, at a minimum, the creation of a similar Office of the Children's

Service within the appropriate Department. It is important to note that

the Committee on the Rights of the Child also advocates that the conditions

in institutions in which children are placed should be supervised and

monitored, including by an independent mechanism. [38]

This would ensure accountability and supervision of unaccompanied minors

in adherence to a national standard of guidelines to be maintained within

the immigration detention centres. As such, if unaccompanied minors are

to be detained in Australia, the creation of such a body would take responsibility

for monitoring IDC's and where necessary implementing procedural amendments

to prevent incidents such as abuse, increased psychological damage or

in the worst case, the death of an unaccompanied minor. Further, in the

event of these occurrences, there would be an appropriate inquiry by a

body independent from the Department of Child Services (DOCS) or the DIMIA.

3.

Education of Children in Australia's Immigration Detention Centres

Amnesty International

is concerned that the standard of education accorded by Australia to children

in immigration detention is in breach of its international obligations

and minimum domestic standards of education.

This section outlines

those international obligations and domestic standards and to demonstrates

how the provision of education for children in detention is seriously

inadequate, with regards to these obligations.

3.1 Australia's obligations

to educate asylum seeker/refugee children under international law

Several international

conventions impose obligations on Australia in relation to the education

of children in its territory. These are examined below.

3.1.1 The 1951

Convention relating to the Status of Refugees and its 1967 Protocol ("the

Refugee Convention") [39]

Australia's obligations

to refugees and asylum seekers are contained in the Refugee Convention.

As a signatory, or "Contracting State", as defined in the Refugee

Convention and its Protocol, they are binding on Australia at international

law.

Significantly, Article

22 of the Refugee Convention imposes upon Contracting States the obligation

to provide elementary education of a standard equivalent to that enjoyed

by nationals:

"Public

Education

(1) The Contracting

States shall accord to refugees the same treatment as is accorded to

nationals with respect to elementary education.

(2) The Contracting States shall accord to refugees treatment as favourable

as possible, and, in any event, not less favourable than that accorded

to aliens generally in the same circumstances, with respect to education

other than elementary education and, in particular, as regards access

to studies, the recognition of foreign school certificates, diplomas

and degrees, the remission of fees and charges and the award of scholarships."

The Refugee Convention

applies to both adults and children alike, as can be seen in the explicit

reference to the necessity for elementary education in Article 22.

Therefore, Australia

has an obligation to provide refugee children of elementary school age

with an education of the same standard as offered to its nationals, and

persons over the elementary school age with a standard of education and

training as is afforded to aliens in the Contracting State's territories.

This standard is contained in various Australian state's legislation,

for example in the Education Act 1990 (NSW). Aspects of this legislation

will be discussed below.

3.1.2 The Convention

on the Rights of the Child ("CROC")

This Convention was

adopted and opened for signature, ratification and accession by the General

Assembly resolution 44/25 of 20 November 1989. It entered into force on

2 September 1990. This treaty is acknowledged by UNICEF [40]

as being the most widely signed human rights treaty ever with 140 signatories

and 191 parties. Australia signed the treaty on 22 August 1990 and ratified

it on 14 December 1990.

As with the Refugee

Convention, in signing this treaty, Australia undertakes to "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… or

other status" (Article 2(1)). Clearly then these principles apply

to all children in Australia's territory whether they have been accorded

refugee status or otherwise, and irrespective of whether they are in immigration

detention or otherwise.

A child is defined

in the treaty as every human being under the age of 18 (Article 1).

Articles 28 and 29

of CROC refer to a child's right to education and state:

"Article

28

1. States Parties

recognize the right of the child to education and with a view to achieving

this right progressively and on the basis of equal opportunity, they

shall, in particular:

(a) make primary

education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education,

including general and vocational education, make them available and

accessible to every child and take appropriate measures such as the

introduction of free education and offering financial assistance in

the case of need;

(c) Make higher education accessible to all on the basis of capacity

by every appropriate means;

(d) Make educational and vocational information and guidance available

and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the

reduction of drop-out rates.

2. States Parties shall take all appropriate measures to ensure that

school discipline is administered in a manner consistent with the child's

human dignity and in conformity with the present Convention.

…

Article 29

1. States Parties

agree that the education of the child shall be directed to:

(a) The development

of the child's personality, talents and mental and physical abilities

to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms,

and for the principles enshrined in the Charter of the United Nations;

(c) The development of 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 civilizations different from his or her own;

(d) The preparation of 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 origin;

(e) The development of respect for the natural environment.

2. No part of

the present article or article 28 shall be construed so as to interfere

with the liberty of individuals and bodies to establish and direct educational

institutions, subject always to the observance of the principle set

forth in paragraph 1 of the present article and to the requirements

that the education given in such institutions shall conform to such

minimum standards as may be laid down by the State."

Therefore, Australia

has agreed to and undertaken to ensure that primary education is compulsory,

is directed towards the child's development of his or her personality,

talents and mental and physical abilities to their fullest potential and

that the interests of the child are paramount in accordance with Article

3 (1) [41]. This obligation extends to children in immigration

detention.

3.1.3 Other international

law obligations

Several other international

conventions and statements (which do not carry the force of law but nevertheless

represent a consensus of opinion in the international community) entrench

the rights of children to an education regardless of their, amongst other

things, immigration status and whether or not they are in immigration

detention.

The International

Covenant on Economic, Social and Cultural Rights 1966 ("ICESCR"),

which entered into force on 3 January 1976 and to which Australia is a

party, sets out the principles necessary to ensure the protection of people

as full persons "based on a perspective in which people can enjoy

rights, freedoms and social justice simultaneously" [42]

Included in this

Convention is recognition by Contracting States of the right of everyone

to education (Article 13), and agreement that "education shall be

directed to the full development of the human personality and the sense

of its dignity, and shall strengthen the respect for human rights and

fundamental freedoms" (Article 13 (1)). In order to achieve this,

the Contracting States recognized that primary education shall be compulsory

and available to all (Article 13(2)(a)), secondary education, including

technical and vocational secondary education, "shall be made generally

available and accessible to all by every appropriate means" (Article

13(2)(b)) and higher education "shall be made equally accessible

to all, on the basis of capacity, by every appropriate means" (Article

13 (2)(c)).

Furthermore, in the

United Nations High Commissioner for Refugees ("UNHCR") Revised

Guidelines on Applicable Criteria and Standards Relating to the Detention

of Asylum Seekers, February 1999, it is stated that "[a]sylum-seekers

are entitled to benefit from the protection afforded by various International…

Human Rights instruments" [43]. Additionally, it

states that there should be recognition of the applicable norms set forth

by such documents as the 1988 UN Body of Principles for the Protection

of all Persons under any form of Detention or Imprisonment, 1955 Standard

Minimum Rules for the Treatment of Prisoners and the 1990 UN Rules for

the Protection of Juveniles Deprived of their Liberty [44].

These Guidelines refer specifically to "the opportunity to continue

further education or vocational training". [45]

3.1.4 Conclusion

As demonstrated,

there is a large body of international law that imposes on Australia a

very clear obligation to provide education to all children in a non-discriminatory

manner and, relevantly, irrespective of a child's immigration status.

Furthermore, the

standard of that education must be addressed to the proper development

of every child's personality, with respect for fundamental rights and

freedoms and at a level commensurate with standards of education enshrined

in domestic law.

3.2 Standards of Education

in Domestic Law

Each Australian State

and Territory has legislation in place that sets out standards and minimum

levels of education. [46]

For the purpose of

this section, an examination of the legislation in New South Wales is

instructive. This legislation reflects many of the principles relating

to the rights of children to education contained in the international

instruments set out above, as do its counterparts in the other Australian

states and territories.

3.2.1 Compulsory

education of all children of compulsory school-age, principles applicable

in the provision of education and minimum standards of curricula

The Education

Act 1990 (NSW) ("the Act") provides that children of "compulsory

school-age" are children of or above 6 years and below 15 years [47].

The Act goes on to enumerate principles, objects for administration of

the Act or of education, key learning areas for primary and secondary

education (until year 10), and for the school and higher school certificates,

and minimum curricula for primary and secondary education (until year

10), and for the school and higher school certificates.

These principles

are set out in Section 4 of the Act which provides relevantly:

"In enacting

this Act, Parliament has had regard to the following principles:

(a) every child has the right to receive an education[emphasis added];

(c) it is the duty of the State to ensure that every child receives

an education of the highest quality,… "

Section 6 of the

Act sets out certain objects to which all administrators of the Act or

of education must have regard. These include, relevantly:

"(a) assisting

each child to achieve his or her educational potential,

(b) promotion of a high standard of education in government schools

which is provided free of charge for instruction and without discrimination

on the grounds of sex, race or religion,

…

(d) provision of an education for children that gives them access to

opportunities for further study, work or training,

(e) mitigating educational disadvantages arising from the child's gender

or from geographic, economic, social, cultural, lingual or other causes

[emphasis added].

….

(h) provision of an education for children from non-English speaking

backgrounds that has regard to their special needs,

….

(n) provision of an education for children that promotes family and

community values."

In terms of "key

learning areas" [48] and minimum curriculum for

primary education [49], these include English, mathematics,

science and technology, human society and its environment (including courses

of study relating to Australia [50]), creative and practical

arts (including the study of art and music [51]) and

personal development, health and physical education. Each of the key learning

areas are to be provided to each child every year [52]

and the requirements set out in these key learning areas "constitute

the minimum curriculum for schools providing primary education".

[53]

"Key learning

areas" for secondary education (years 7 to 10) are enumerated in

Section 9. These include English, mathematics, science, human society

and its environment (all of which are courses of study that must be provided

to each child during each year [54]), languages other

than English, technological and applied studies, creative arts and personal

development, health and physical education. Courses of study in the key

learning areas are "to be appropriate to the children concerned having

regard to their level of achievement and needs". [55]

All teachers must

be professional, appropriately trained and of the highest standard.

Similar requirements

for courses of study in key learning areas are to form the basis of the

curricula required for the award of the School Certificate and Higher

School Certificate.

3.2.2 Conclusion

Each state and territory

in Australia has enacted laws reflecting the fundamental principles relating

to the education of children contained in international law and reproduced

above.

The legislation includes

express recognition of the non-discriminatory right of every child between

the ages of 6 and 15 to receive (compulsorily) an education. It ensures

the promotion of community values and respect for human rights in that

education. It prescribes recognition of special needs of certain children

(including children from a non-English speaking backgrounds). It seeks

to mitigate educational disadvantages suffered by children due to "other

causes" (for example fleeing persecution) [57]

and provides guidelines for minimum standards for courses of study. There

is explicit reference to the development of a child's personality and

education to its fullest potential.

There is nothing

in this legislation that allows for the education of a child asylum-seeker

or refugee in immigration detention to fall short of the standards and

principles contained in the law of each state. Nor does the law prohibit

the proper education of a child who is not an Australian national.

Under the Refugee

Convention, CROC and ICESCR, Australia is obliged to provide all children

within its territory with an education of the same standard contained

in domestic legislation, irrespective of immigration status.

3.3 Standards of Education

in Australia's Immigration Detention Centres

Amnesty International

is aware that the standards set out in domestic legislation are far from

being implemented in Australia's immigration detention centres.

Amnesty International

has been informed by [words deleted] former teachers ("the

Teachers") at the Port Hedland Immigration Detention Centre that:

[58]

  • The Teachers

    were employed on contract at Port Hedland immigration detention centre,

    which contracts usually had a term of 6 weeks, which could be extended

    by invitation of the company running the detention centre, ACM;

  • The Teachers were

    not given any training specific to the needs of children in detention

    and specific to children of their background and experience;

  • No assessment

    files relating to the standard of education reached by each child or

    whether any individual child had special needs were kept, as is the

    usual practice in schools;

  • The number of

    students in classes varied from time to time - from 1 to 26. For example,

    the Teachers noted that there were 26 students in a room with a capacity

    of 15;

  • There is no set

    curriculum provided in respect of the education of detainees, other

    than curricula devised by the Teachers themselves;

  • The Teachers

    believed that the combination of the short term of the contracts of

    employment and high staff turnover made consistency of education almost

    impossible to ensure, compounded by the lack of education assessment

    files on each child detainee;

  • Resources for

    teachers consisted of textbooks the Teachers brought themselves to class.

    The Teachers observed only old children's books and a few games available

    for children to use. Chairs and desks for children to use were completely

    inadequate - desks were extremely old and without drawers for students'

    exercise books, chairs were stacked upon each other to reach the proper

    height for the child to reach the desk, paper and craft items were scarce

    and access to photocopying machines by the Teachers was made very difficult

    by ACM staff. The classrooms themselves were bereft of natural light

    and windows were grimy and grilled. Outside the play area was almost

    completely unshaded from the extremely hot sun. In the case of classes

    for children held in separation detention, there was no blackboard or

    whiteboard provided;

  • The Teachers

    stated that only 2 computers were available for educational use, and

    these computers were available only after 2.30pm (thereby excluding

    children in earlier classes from their use);

  • The Teachers

    stated that classes were supposedly divided into 4 discrete levels;

    pre-primary (between 3 and 5 years old approximately), primary (between

    6 and 10 years old approximately), upper primary and high school. One

    of the Teachers taught a class of students in separation detention which

    consisted of 24 students consisting of 10 women and 14 children ranging

    in age from 2 years to 15 years old. Only 12 of these children were

    of teachable age. Furthermore, often women and children in separation

    received only 1.5 hours teaching a day. The other Teacher taught upper

    primary which consisted of students whose ages ranged from 8 to 15 years

    old;

  • For one of the

    Teachers, her daily teaching schedule consisted of: 9am to 10.30am -

    women and children in separation detention; 11am to 12pm - men in separation

    detention; 1pm to 2.30pm - unaccompanied minors (this class was cancelled

    after her departure on 25 February 2002); 3pm to 4.30pm - men (aged

    from approximately 22 years old to 38 years old). The other Teacher

    did not teach any classes in separation detention. Her day consisted

    of; 9am to 10.30am - upper primary (ages 8-15 years old) which class

    she taught each day; 10.30am to 11am - recess; 11am to 12pm - upper

    primary class; 12 to 1pm lunch; 1pm to 2.30pm upper primary (often students

    were late back from lunch as they had to wait for a long time until

    they received their lunch); 3pm to 5pm - male adult students (18 years

    and over);

  • The Teachers state

    that the curriculum consisted of teaching English as a priority. Individual

    teachers set the curricula from time to time at the commencement of

    their employment. A very small proportion of classes involved mathematics,

    geography, Australian history art and music. The Teachers noted that

    whilst learning English was a priority, it should have been supplemented

    on a daily basis with mathematics, society and environment, lessons

    in the native language of the children, art and craft, music and most

    importantly, physical activity. One of the Teachers noted some students

    had poorly developed co-ordination due to the uncomfortable nature of

    play areas in extreme heat and lack of physical education classes;

  • The Teachers advised

    that ACM staff actively discouraged contact after class with individual

    students by the Teachers. The Teachers explained that contact with students

    in educational institutions is a norm and is strongly encouraged in

    order to meet the specific educational needs of individual students;

  • The Teachers

    advised that the current theory of teaching is "student-centred

    learning" which involves the setting of assignments and projects

    to be completed by students. In the detention centre teaching environment,

    this mode of teaching was impossible due to the lack of resources, language

    barriers, lack of enforcement, and lack of motivation and concentration

    of children (due to the conditions of detention). As such, the mode

    of teaching which had to be adopted by the Teachers was the outdated

    "teacher-centred learning" which involves instruction by the

    teacher to be followed by the student thereby denying any autonomy of

    thought on the part of the student; and

  • The Teachers also

    observed that ACM staff generally addressed children not by name but

    by number. The Teachers each overheard certain ACM staff threaten children

    with words to the effect that the child would not get a visa, or would

    never be released from the detention centre if that child did not behave.

Amnesty International

has obtained a copy of a speech entitled "Standards and Accountability

in the Administration of Prisons and Immigration Detention Centres: A

Description of the Role of the Western Australian Inspector of Custodial

Services and a Proposal for Bringing Equity and Decency to the Operation

of Australia's Immigration Detention Centres" made by Professor Richard

Harding, inspector of custodial services of Western Australia [59],

who inspected Curtin Detention Centre for 9 hours on 25 June 2001. Professor

Harding states that immigration detention centres in Australia "are

an absolute disgrace in terms of the conditions and standards that are

applied". [60]

In relation to his

observation of the education being provided to detainee children he states:

"ACS/DIMA

[sic] had been very anxious that one should arrive before 9am so as

to be able to see the Centre's education classes in progress. They were

evidently very proud of this initiative. A glossy brochure indicated

that children were receiving 5 hours' daily education in four different

groups. In reality, they were receiving one hour's education. Teaching

took place between 9.00am and 10.00am; thereafter, the children stayed

in the teaching area until 11.00am, during which time some contact with

the teachers might occur; then there was a lunch break until 1.00pm;

and after that so called 'homework', if the children felt like doing

it, occurred in the classroom area until about 2.00pm. The so called

'education program' was largely a charade - though doubtless five hours'

full education was being paid for and signed off by the Canberra-based

'monitors' [referring to the Department of Immigration, Multicultural

and Indigenous Affairs (DIMIA)]." [61]

These accounts indicate

that the level of education being provided in these two immigration detention

centres are well below the standards mandated by both domestic and international

law.

3.4 Conclusion

Australia has undertaken

obligations at international law to provide education of a certain standard

to refugees under the Refugee Convention and to ensure the proper education

of children under CROC and ICESCR. Furthermore, the interests of children

in respect of their physical, mental and educational well-being and personal

development are to be a paramount concern under these Conventions.

Standards of education

to be afforded to children, irrespective of immigration status and without

discrimination generally are set by domestic standards enshrined in each

Australian state's law. Education is compulsory for children between the

ages of 6 and 15 years old and minimum key learning areas should be covered

in courses of study, which are set out above, according to the level of

education of individual students.

It is apparent from

the accounts reproduced above that these minimum standards for curricula

of primary and secondary education are not being met.

As such, Amnesty

International is concerned that children in immigration detention centres

are being denied their rights to a proper education mandated by international

and domestic law.

Education is a fundamental

part of a child's healthy development into adulthood. Children in immigration

detention centres are often victims of exceptionally traumatising experiences

prior to their arrival in Australia. These terrible experiences are compounded

by Australia's policy of mandatory detention, the length of time of detention

and the appalling conditions within the immigration detention centres

themselves.

4.

Mandatory Detention

Under the Migration

Act 1958 (Cth) ('Migration Act') all unlawful non-citizens

who are in Australia's migration zone must be detained.[62]

Unlawful non-citizens are non-citizens who do not hold a valid visa. [63]

The Australian Government

justifies the policy of mandatory detention on several grounds. The practice

is asserted to be a reflection of Australia's status as a sovereign state,

in that Australia has the right to determine which non-citizens may enter

or remain in Australia. Amnesty International does not question Australia's

right to control immigration. However, Amnesty International does not

consider a policy of mandatory detention to be a necessary and appropriate

means of achieving this objective.

Amnesty International

does not reject the detention of asylum seekers per se; there may be exceptional

circumstances in which detention is justified, although it is difficult

to envisage such circumstances in relation to children. However, Australia's

mandatory detention regime cannot be seen as consistent with these exceptional

circumstances. Amnesty International believes that the current policy

of mandatory, non-reviewable, indefinite detention is clearly in breach

of international law.

The Office of the

United Nations High Commissioner for Refugees ('UNHCR') describes the

detention of asylum seekers as 'inherently undesirable', emphasising that

this is even more the case in relation to children and unaccompanied minors.

[65] Under the UNHCR's Guideline 2, the general principle

is that asylum seekers should not be detained. Article 14 of the UDHR

grants to all human beings the fundamental human right to seek and to

enjoy asylum. The UNHCR appropriately advises that the position of asylum

seekers is fundamentally different from that of other immigrants;[66]

it is not always possible for asylum seekers to comply with Australia's

immigration requirements.

The UNHCR states

further that '[i]n accordance with the general principle stated at Guideline

2 and the UNHCR Guidelines on Refugee Children, minors who are asylum-seekers

should not be detained.' [67] (emphasis added).

Detention of asylum

seekers is only condoned by the UNHCR if there are exceptional grounds

for detention. [68] The UNHCR recommends a 'presumption

against detention' and emphasises that alternatives to detention should

generally be applied first. [69] The UNHCR states that:

[i]n assessing

whether detention of asylum-seekers is necessary, account should be

taken of whether it is reasonable to do so and whether it is proportionate

to the objectives to be achieved. If judged necessary it should only

be imposed in a non discriminatory manner for a minimal period. [70]

4.1 Treaty Provisions Relevant

to the Detention of Child Asylum Seekers

Amnesty International

is concerned that Australia's policy of mandatory, non-reviewable and

indefinite detention of child asylum seekers violates international law

in a number of respects. In particular the policy is in breach of Article

31 of the Convention Relating to the Status of Refugees, [71]

which prohibits States Parties from imposing penalties on refugees on

account of their illegal entry or presence, as long as they 'present themselves

without delay to the authorities and show good cause for their illegal

entry or presence'. Furthermore, Article 31 also prohibits States Parties

from applying 'to the movements of such refugees restrictions other than

those which are necessary'. As the refugee determination process is declarative,

rather than constitutive, Article 31 applies to asylum seekers as well

as to refugees.

As set out above,

Amnesty International believes that Australia's policy of mandatory, non-reviewable

and indefinite detention of child asylum seekers is also in breach of

several provisions contained in the CROC [72], including

Article 37 of the CROC.

Child asylum seekers

are entitled, like all other human beings, to the rights accorded to them

by various international and regional human rights treaties. Freedom from

arbitrary detention is one of these rights. It is contained in Article

9 of the ICCPR, [73] which provides that:

[e]veryone has

the right to liberty and security of person. No one shall be subjected

to arbitrary arrest or detention. No one shall be deprived of his liberty

except on such grounds and in accordance with such procedure as are

established by law.

4.2 Arbitrary Detention

The UNHCR considers

detention to be arbitrary where that detention is not subject to either

administrative or judicial review. [74] The UNHCR is

of the view that 'there should be prompt, mandatory and periodic review

of all detention orders before an independent and impartial body'. Australia

can be seen to be in breach of both Article 37(d) of the CROC and Article

9(4) of the ICCPR. Article 9(4) of the ICCPR provides that:

[a]nyone who is

deprived of his [sic] liberty by arrest or detention shall be entitled

to take proceedings before a court, in order that that court may decide

without delay on the lawfulness of his [sic] detention and order his

[sic] release if the detention is not lawful.

In A v Australia

the UN Human Rights Committee upheld A's submission that there was no

effective review of the grounds for detention of asylum seekers in Australian

courts in breach of Article 9(4) of the ICCPR. Importantly, the Committee

held that the test of 'lawfulness' under Article 9(4) means lawfulness

under the ICCPR, not under domestic law. It found that Article 9(4) requires

judicial review of the lawfulness of detention that is not merely formal,

with the power to order release if the detention is incompatible with

the requirements of Article 9(1), or in other provisions of the ICCPR.

The Human Rights

Committee criticised Australia in its Concluding Observations on Australia's

Third and Fourth reports to the Committee:

The Committee is

concerned over the approach of the State party to the Committee's Views

in Communication No 560/1993 (A. v. Australia). Rejecting the Committee's

interpretation of the Covenant when it does not correspond with the

interpretation presented by the State party in its submissions to the

Committee undermines the State party's recognition of the Committee's

competence under the Optional Protocol to consider communications. [75]

The fact that the

provisions of the Migration Act have been found to breach Article 9 of

the ICCPR is of concern to Amnesty International for various reasons.

Firstly, detention should only occur if it is in accordance with both

domestic and international law. A decision to detain an asylum seeker

should be on the basis that it is necessary, appropriate and not arbitrary.

The particular circumstances of the asylum seeker should be considered.

Secondly, whether or not an asylum seeker's continuing detention is reasonable

should be a matter for the courts to decide. Courts should be able to

order the release of a detained asylum seeker. Australia's human rights

obligations towards detained asylum seekers, particularly children, are

not given adequate effect by the few exceptions allowing for temporary

release from immigration detention. These exceptions are set out in section

6 below.

Also of great concern

to Amnesty International is the indefinite nature of the detention of

child asylum seekers. Article 37 of the CROC states that detention is

to be 'used only as a matter of last resort and for the shortest appropriate

period of time'. Not only is detention clearly not being used as a matter

of last resort, but many child asylum seekers are being detained for substantial

periods of time. The length of detention is one factor which may render

it arbitrary in a particular case. The UNHCR states that detention may

be arbitrary if it is 'disproportionate, or indefinite'. [76]

The Australian Government

seeks to blame asylum seekers for the length of their detention. In the

case of A v Australia, for example, the Australian Government partially

blamed the 'many layers of review utilised by Mr. A' for his prolonged

detention. Amnesty International believes that delays in processing an

application for protection, even when caused by appeals, are inadequate

reason to continue the detention of an asylum seeker.

4.3 Conclusion

Amnesty International

strongly condemns Australia's policy of mandatory detention of asylum

seekers, finding its application to children to be of particular concern.

Australia's policy of mandatory, non-reviewable, indefinite detention

is simply indefensible with regard to a number of Australia's international

treaty obligations.

Amnesty International

remains gravely concerned that mandatory detention in Australia has been

recognised as amounting to arbitrary detention. It is arbitrary because

it is applied on the basis of how an asylum seeker entered the country,

without the asylum seeker's particular circumstances being considered.

Mandatory detention is also arbitrary because of the lack of judicial

review of detention. Furthermore, detention is arbitrary because of its

indefinite length and as such can quickly become disproportionate to state

concerns regarding mode of arrival.

NOTE: CASE STUDIES

ORIGINALLY FORMING SECTION 5 HAVE BEEN PLACED IN A SEPARATE CONFIDENTIAL

SUBMISSION

5.

Provision for the Release of Children Held In Immigration Detention

There are provisions

for the release of children held in immigration detention, which are set

out below. However, such provisions are woefully inadequate to address

the multitude of humanitarian concerns in relation to the detention of

children, particularly given that their adoption lies wholly within the

discretion of the Minister. In any event, on a practical level, the provisions

have been rarely used. A HREOC report into the immigration detention system

noted that in a four year period since the inception of the "bridging

visa" program only two children had been released from immigration

detention of a possible 581 child detainees. [77]

The reluctance or

inability to utilise the current provisions for release of children may

have more to do with the effect the construction of the legislation has

on the provision of practical and emotional support for children once

released. For example, a child released on a bridging visa ordinarily

has no authority to work and requires the concerted support of an Australian

citizen. Most substantially, there is no provision for the release of

a child's parents at the same time. This means that often a child welfare

authority will weigh up the conflicting interest of a separating a child

from its parents and determine that it is in the best interests of the

child that the family unit remain intact, despite the proven adverse effects

of immigration detention on all concerned.

Children and all

other persons who arrive in Australia and are determined to be "unlawful

non-citizens" must be automatically sent to an immigration detention

centre under the current migration system. However, the legislation allows

for the provisional release of a person under the age of 18 years on a

Bridging Visa until such time as the child's immigration detention has

been determined.

Section 73 of the

Migration Act 1958 provides for the granting of bridging visas

to persons of a specified class as set out in regulation 2.20 of the Migration

Regulations 1994. The criteria in reg.2.20(4) and (7) set out the

requirements for a "child" to be deemed an "eligible non-citizen"

and therefore granted temporary release from immigration detention. These

criteria are:

Reg 2.20(7)

A non- citizen who:

  • was refused immigration

    clearance or found to be an unlawful non-citizen and held in an immigration

    detention centre

  • has applied for

    the grant, determination or review of a Protection Visa

  • the Minister

    has applied for judicial review of a decision in relation to the granting

    of the child's Protection Visa

  • a child welfare

    authority of a State or Territory has certified that release from detention

    is in the best interests of the child

  • the Minister is

    satisfied that:

    • an Australian

      citizen or permanent resident has arranged for the care and welfare

      of the child

    • that those

      arrangements are in the best interests of the child

    • that release

      would not prejudice the rights and interests of the child's parents

      or guardian.

Reg 2.20 (4)

This sub-regulation

retains the criteria set out above and makes provision for a non-citizen

under 18 who is a member of the family unit of a person applying

for a bridging visa on the grounds that they are the spouse of an Australian

citizen, permanent resident or eligible New Zealand.

Amnesty International

remains deeply concerned at both the limited application of the provisions

for release of children to date (even taking into account the release

in to alternative detention of a small number of children from the Woomera

IRPC this year) and the discretionary nature under which they operate.

The fact that the Minister does not have to look at the case of a child

in detention nor explain why a bridging visa has not been granted raises

concerns as to the government's commitment to a number of elements of

the CROC (as set out above), as does the provision that in practice the

parents, or a parent, must remain in detention and hence be separated

from their child. Also, as highlighted by the case studies above, Amnesty

International believes that the importance in providing children, especially

those whose deteriorating mental state can be directly attributed to their

ongoing detention, with prompt access to bridging visas should be of paramount

concern to the Australian government.

While Amnesty International's

health concerns for children in detention have been outlined in greater

detail above it is worth noting that for the first time virtually every

independent medical body in Australia has united to call on the Federal

Government to get children and their families out of the detention centres.

The Minister's response on the ABC "Lateline" program (19 March

2002) however, made it very clear that any parent in detention, whose

child is diagnosed as increasingly suffering mental health problems due

to their ongoing detention, has one of three choices. They can either:

agree to be separated from their child; stay with their child in detention

and watch them suffer the psychological damage it is causing; or, return

to their home country where many fear persecution. This commitment to

either separate families or keep children in situations where their health

will continue to deteriorate, or force families to return home where their

lives may be at risk, due to an unwillingness not to "unwind"

mandatory detention, raises serious concerns about Australia's commitment

to both the 1951 Refugee Convention and the CROC.

7.

Alternatives to detention: Towards the goal of a more humane asylum system

Amnesty International

recognises the need to move beyond a mere critique of the status quo and

focus resources on the development of viable alternatives. To be feasible

any such model must satisfy the legitimate concerns of the government

while upholding Australia's human rights obligations. It is important

to note that while Amnesty International does not propose a specific alternative,

none-the-less more appropriate alternatives do exist and Amnesty International

would certainly support alternatives that are in keeping with Australia's

human rights obligations.

Following from the

presumption against detention, alternatives should be considered and where

viable alternatives exist these should be applied first, unless relevant

mitigating circumstances have been identified. Consistent with the individual

focus of international human rights law, the choice of alternative should

be "influenced by an individual assessment of the personal circumstances

of the asylum-seeker concerned" [78], taking into

account prevailing local conditions.

In a pointed statement

released late last year, Kenneth Rivett a life-time member of the Refugee

Council Of Australia (RCOA), observed that:

"…, other

organisations have failed again and again to end Mandatory Detention.

We will keep failing until we can give sensible answers to the plain

man's question: What is your alternative?" [79]

This is a point well-made,

and one Amnesty International is acutely aware of. The models canvassed

below represent concerted efforts to articulate comprehensive, viable

answers to the "plain man's" question. In a recent defence of

Australia's policy of mandatory detention, Prime Minister Howard acknowledged

that:

"Nobody likes

the present situation. We don't like having to detain people but there

is no alternative if we are to keep control of the flow of people into

this country." (emphasis added) [80]

Only mandatory detention,

it is argued, fulfils the dual function of deterrence (discouraging further

unauthorised entry), and border integrity (preventing arrivals from absconding

into the community). Even ignoring the many constructive alternatives

mooted in the Australian context, Amnesty International stresses that

global conduct offers nothing but alternatives, Australia being the only

country in the world that practises mandatory detention.

7.1 The plight of children

One of the key points

established in The Guidelines [81] is the recognition

that not all asylum seekers are the same. This principle assumes the greatest

moral weight in the case of children, but applies equally to all vulnerable

groups. It seems only reasonable that such consideration be extended to

family groups, both in light of the principle of family unity and the

fact that women and children comprise integral parts of family unit.

For detention of

these groups to be justifiable it must not merely be shown to be necessary,

but enforced only as a measure of last resort. Authorities are required

to examine all possible alternatives before imposing detention on such

vulnerable groups. Moreover detention must still be for the shortest possible

time. Therefore states, in the short term, are required to examine the

viability of community release in some form or other.

However, practical

dangers accompany any special pleading for children. With respect to the

current regime there is a demonstrable tension between the best interests

of the child and the principle of family unity [82],

which in practice is consigning children to continuing incarceration in

the company of their parents. Why? Because in most cases the 'best interests

of the child' are deemed best served by maintaining the integrity of the

family unit. As HREOC has pointed out in Briefing Paper 8:

"Under bridging

visa requirements, child asylum seekers cannot be released from immigration

detention unless a State or Territory child welfare authority certifies

that a release from detention is in the child's best interests and the

Minister for Immigration and Multicultural and Indigenous Affairs is

satisfied that appropriate arrangements have been made for the care

and welfare of the child outside of detention. [20] As it is usually

in a child's best interests to remain with her or his family, and there

is no provision for release of families from detention, children are

rarely granted bridging visas."

And not without justification,

for what impact would such separation have on the child, not to mention

the one or both parents left in detention? Ironically, under mandatory

detention the principle upholding the 'best interests of the child' merely

compounds the child's trauma. Mandatory detention places even the most

well-meaning decision maker on the horns of a dilemma. What is the kindest

form of cruelty that can be imposed on the child - an indefinite stay

in detention or separation from the family?

It is Amnesty International's

considered position that any selective alternative to detention, whereby,

children alone, or children with their mothers are removed from detention,

would be inherently problematic. A more appropriate alternative would

be to release all families, thus preserving the family unit and ensuring

the best interests of the child. For others however, this would serve

only to legitimate 'mandatory' detention by default, and hence would still

consign those detained contrary to international standards - that is unnecessarily

- to automatic, non-reviewable and indefinite detention.

7.2 The importance of a workable

alternative model

Amnesty International

believes that the only appropriate solution, therefore, lies with the

institution of a comprehensive alternative detention model, founded on

the principle of case-by-case assessment consistent with international

standards. Such a model would resolve a number of the identified tensions

because consideration of mitigating factors would be built into the process

of case-by-case assessment. Several alternative models, tailored to the

Australian context, already exist. Chief among them are those developed

by the RCOA, HREOC, and more recently the Justice for Asylum Seekers (JAS)

coalition. [83]

Essentially, such

models prescribe not an alternative but rather several alternative

arrangements fulfilling different imperatives and existing side-by-side.

It is useful to imagine these alternatives occupying consecutive points

along a continuum representing progressively greater restrictions on an

asylum seeker's movement. They presuppose a release screening process,

although the exact details remain undefined. Nevertheless, the intent

is clear, a flexible system in which the level of restriction imposed

on each individual asylum seeker can be linked directly to the level of

risk identified via screening. No explicit dispensation is extended on

the basis of age or sex because all models accord with relevant UNHCR

prescription and proceed on a case-by-case rather than categorical basis.

That is, special provision for vulnerable categories of asylum seeker,

i.e. progressively higher thresholds for women, and children, are built

into the proposed community release assessment procedures.

From Amnesty International's

perspective, all the proposed alternatives share the following positive

features:

  • A more humane

    regime;

  • Greater flexibility;
  • Enhanced equity

    in the treatment extended to community and irregular asylum seekers

    respectively;

  • Reduced economic,

    social and political costs in processing;

  • Increased harmony

    with international human rights instruments.

The JAS coalition's

model incorporates many of the features of its contemporaries, but in

a key innovation places the person of the case-officer at the nexus of

its proposed framework. The case-officer mediates between the community

and department, and monitors the progress of the individual applicants

throughout the reception and determination process. Notably, the status

of the case-officer reflects inter alia, reservations that DIMIA

determination officers may not have the resources necessary to make comprehensive

risk assessments. [84]

A feature as yet

absent from all such models, and one that Amnesty International believes

to be a significant obstacle to the ultimate implementation of any of

them, is a mechanism that explicitly addresses legitimate government concerns

with respect to absconding. Amnesty International hopes that what follows

might serve not only as a spur to constructive debate, but as a first

rudimentary step towards the goal of answering government disquiet.

7.3 Absconding:

"It has been

said that the supporters of Mandatory Detention are not raising the

question of absconding. If that's the case, then so much the worse for

its opponents, who have evidently not pushed them until they were forced

to have recourse to this, much the most plausible of all the arguments

for detaining asylum seekers at all. The people one talks to outside

refugee circles can see that there is a problem of absconding. They

want to know how we'd handle it." Kenneth Rivett, Detention

Proposals

Amnesty International

acknowledges that the risk of absconding may be a legitimate factor in

any decision to detain, and on the flipside, in any subsequent decision

with respect to when and if an individual should be released from detention.

[85]

Given that detention

is mandatory for all unauthorised arrivals it must be assumed that this

presumption of abscondment extends to all unauthorised arrivals without

distinction. This orientation is contrary to the prescription of international

law, which places the onus on governments to demonstrate this risk on

a case-by-case basis. [86] No such universal assessment

framework exists in Australia, because the government countenances no

widely applicable alternatives to mandatory, indefinite detention.

Those that enter

Australia on valid visas remain free in the community. Conversely, unauthorised

entrants who apply for asylum are detained for the entirety of the determination

process. The inequities and absurdities of this absolute differentiation

become clear upon examination

Minister Ruddock

has explained this disparity with the suggestion that since we can be

certain of the identity of visa-holding asylum seekers we do not need

to detain them. [87] But once the identity of irregular

entrants has been established what differentiates the two? Where is the

evidence that 'irregular' asylum seekers are any more likely to abscond

than those housed in the community? Attention would no doubt then be drawn

to the negative inferences arising from unauthorised entry. Amnesty International

believes however that little can be inferred from this factor in isolation.

Experience shows that the current 'wave' of 'boatpeople' do not employ

irregular channels as a means of infiltrating the community undetected

- as a means of achieving a 'migration' outcome, but as a means of obtaining

legitimate access to the refugee determination process. Far from seeking

to avoid official scrutiny, these people actively seek to engage it. The

vast majority of those arriving by such means are subsequently determined

to be Convention refugees. Indeed, the comparative success of such arrivals

relative to that of 'community' asylum seekers casts further doubt on

the logical basis for current detention practice. Generally speaking the

currently detained asylum seekers have greater incentive not to abscond

because they are far more likely to win official leave to remain (albeit

grudging and temporary).

Conclusion

Any alternative model

to the current mandatory regime must take into account Australia's obligation

under the CROC. The CROC clearly states that children should be detained

only 'as a measure of last resort and for the shortest appropriate period

of time', while UNHCR guidelines clearly articulate a presumption against

detention. Any decision to detain needs to be made on an individual basis

and if fears of absconding are a primary reason given by the government

for detention then when a children is to be detained the Australian authorities

must demonstrate why, for example, a two year old, or a five year old,

or an eleven year old, etc, is likely to abscond. The presumption that

someone is likely to abscond simple because of their "unauthorised"

arrival must be seen as inconsistent with Australia's obligations under

article 31(1) of the 1951 Refugee Convention.

Children represent

a vulnerable group in society deserving of special protection. Children

asylum seekers, many of whom have experienced persecution in their homeland

and who have undergone the trauma of fleeing their homes represent an

even more vulnerable group deserving of special protection from abuse

and exploitation. As outlined in this submission there are a number of

specific issues that arise in relation to the detention of children, including

the fact of detention, the length of detention, the conditions of detention

and the long term impact of detention, which are all of particular concern.

Amnesty International is concerned that the mandatory institutionalization

of these children poses significant risks to their emotional, physical,

psychological, social and intellectual well-being and development. Their

detention is, in the view of Amnesty International, contrary to Australia's

international law obligations.

Australia has an

international legal obligation to ensure that the detention of a child

shall be used only as a "measure of last resort" and for the

"shortest period of time". If a child is placed in an institution,

Australia has an obligation to "..take measures to ensure that they

are provided with well-trained staff, that the children's needs are met

and their quality of life is good and they are protected from abuse."

[88]

In order for Australia

to meet its obligations to child asylum seekers Amnesty International

recommends:

  • The introduction

    of alternatives to mandatory detention.

  • In particular,

    the detention of children should not be automatic.

  • It should only

    be applied in exceptional cases, and each case should be considered

    on an individual basis, having regard to such considerations as security

    and health risks in accordance with the prescriptions of international

    law.

  • Further, when

    considering the release of children from detention a non-discriminatory

    treatment must be applied equally to accompanied and unaccompanied minors.

  • This would include

    a provision enabling children to be released with their families, in

    the best interests of the child.

  • Legislation needs

    to be put in place to establish an independent body responsible for

    the guardianship of any unaccompanied minor held in detention in order

    to ensure there can be no conflict of interest.

  • A more formalised

    mechanism of federal/state assistance for unaccompanied minors released

    from detention needs to be initiated.

  • There needs to

    be a long-term impact study which monitors psychological and social

    development over an extended period of time of children in detention.

  • The study should

    be entirely independent of the government and should monitor the psychological

    and social development of children while they are in detention and after

    they have been released. (There would need to be unrestricted access

    to detention centres for this purpose).

  • Prior to this

    study, further mechanisms need to be put in place to ensure the educational

    and health needs of children in detention meet Australia's international

    obligations.

It is imperative

that the human rights of all children in this country are respected. Amnesty

International urges the Australian government to honour and fulfil its

international law obligations.


1. Opened

for signature 20 November 1989, 1577 UNTS 44, 28 ILM 1457 (entered into

force 2 September 1990).

2. Only the United States of America and Somalia have

not ratified.

3. (1995) 183 CLR 273.

4. Ibid. at 291 per Mason CJ and Deane J.

5. Committee on the Rights of the Child, Concluding Observations

of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/15/Add.79

(10 October 1997).

6. CROC, article 3(1).

7. Opened for signature 16 December 1966, 999 UNTS 171,

6 ILM 368 (entered into force 23 March 1976).

8. Savitri Taylor, 'Protecting the Human Rights of Immigration

Detainees in Australia: An Evaluation of Current Accountability Mechanisms'

(2000) 22 Sydney Law Review 50, 55.

9. Office of the High Commissioner for Human Rights, Fact

Sheet No 26, The Working Group on Arbitrary Detention at <http://www.unhchr.ch/html/menu6/2/2/fs26.htm&gt;;

Henry Steiner and Philip Alston, International Human Rights in Context:

Law Politics Morals (2nd edn, 2000) 642.

10. Working Group on Arbitrary Detention, Civil and Political

Rights, Including Questions of Torture and Detention: Report of the Working

Group on Arbitrary Detention, UN Doc E/CN.4/1999/63 (18 December 1998)

para 69. See also Henry Steiner and Philip Alston, International Human

Rights in Context: Law Politics Morals (2nd edn, 2000) 644-5.

11. UNICEF, United Nation's Children's Fund, Implementation

Handbook for the Convention on the Rights of the Child (1998, Geneva)

p259.

12. Ibid. p260.

13. CROC, article 20.

14. UNICEF, United Nation's Children's Fund, Implementation

Handbook for the Convention on the Rights of the Child (1998, Geneva),

262.

15. CROC, article 3(3).

16. Nigel Rodley, The Treatment of Prisoners under International

Law (2nd edn, 1999) at 304-5; Taylor, Op. Cit., 56.

17. CROC, article 2.

18. CROC, article 13.

19. CROC, article 14.

20. CROC, article 15.

21. CROC, article 16.

22. CROC, article 27.

23. CROC, article 31.

24. Hodgkin, R. and Newell, P. (1998) Implementation

Handbook for the Convention on the Rights of the Child, United Nations

Children's Fund, USA, p257

25. Ibid, p259

26. UNHCR, "Protecting Refugees: A Field Guide for

NGO' s", 1999, Geneva at p94

27. 2000-2001 Cambridgeshire Against Refugee Detention,

c/o CUSU, 11-12 Trumpington Street, Cambridge, CB2 1QA.

28. Suffer the Children, an article by Jaqueline Everett,

The Sydney Morning Herald, August 1, 2001.

29. Parents face Sophie' s Choice at Villawood, an article

by Robert Manne, The Sydney Morning Herald, August 13, 2001.

30. Report of Inquiry into Immigration Detention Procedures.

Philip Flood AO, February, 2001 and

31. Report of an Own Motion Investigation into The Department

of Immigration and Multicultural Affairs' Immigration Detention Centres

(Report under section 35a of the Ombudsman's Act 1976) March 2001.

32. Transcultural Psychiatry, Vol 37 (3), Sept 2000.

33. F. L. Ahearn and J. L. Atley (eds), Refugee Children:

Theory, Research and Services. Baltimore; The John Hopkins University

Press.

34. Winnicott D. The child, the family and the outside

world. Harmondsworth, Penguin, 1964. And Cassidy J. "The nature of

the child's ties." In J. Cassidy and P. Shaver, Handbook of Attachment:

Theory, Research and Clinical Application. The Guilford Press, New York,

pp3-20.

35. Statement taken from telephone interview with Dr.

Louise Newman, Chair of the Faculty of Child and Adolescent Psychiatry

of the Royal Australian and New Zealand College of Psychiatry, Sydney,

NSW.

36. "The children alone behind the wire", by

Mathew Moore. Sydney Morning Herald. November 28, 2001.

37. Ibid.

38. Dr Ozdowski quoted in Ibid.

39. UNICEF, United Nations Children's Fund, Implementation

Handbook for the Convention on the Rights of the Child, 1998, Geneva at

p490

40. Australia acceded to the Refugee Convention on 22

January 1954, and its Protocol on 13 December 1973. Australia was in fact

the sixth signatory of the Convention, thus activating the operation of

Article 43 and bringing the Refugee Convention into operation on that

date in 1954.

41. UNICEF, the United Nations Children's Fund, was created

by the United Nations General Assembly in 1946 and seeks to promote the

rights of children worldwide. Australia is one of the 36 members currently

on the Executive Board.

42. Article 3 (1) of CROC states that "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 the primary consideration".

43. http://untreaty.un.org/English/TreatyEvent2001/8.htm

44. at page 2, paragraph 5.

45. Guideline 10: "Conditions of Detention"

46. Ibid. point (vii)

47. Education Act 1937 (ACT); Education Act 1979 (NT);

Education (General Provisions) Act 1989 (Qld); Education Act 1972 (SA);

Education Act 1994 (Tas); Education Act 1958 (Vic); and School Education

Act 1999 (WA).

48. Section 3 (1).

49. Section 7 of the Act

50. Section 8 of the Act

51. Section 8 (1) (b) of the Act

52. Section 8 (1) (c) of the Act

53. Section 8 (1) (a) of the Act

54. Section 8 (2) of the Act

55. Section 10 (1) (b) of the Act

56. Section 10 (1) (c) of the Act

57. Sections 11 and 12 of the Act

58. Section 6 (e) of the Act

59. [The teachers were] interviewed by [words deleted]

Amnesty International Australia on 15 March 2002, and during the period

from 5 April 2002 to 13 April 2002, [respectively].

60. Paper delivered to the International Corrections

and Prisons Association Conference, held in Perth on 30 October 2001

61. Ibid. p7

62. Ibid. p10

63. Migration Act 1958 (Cth) s 189.

64. Migration Act 1958 (Cth) ss 13 and 14.

65. Department of Immigration and Multicultural and Indigenous

Affairs ('DIMIA'), Immigration Detention, Fact Sheet 82, at <http://www.immi.gov.au/facts/82detention.htm&gt;.

66. Office of the United Nations High Commissioner for

Refugees, UNHCR Revised Guidelines on Applicable Criteria and Standards

Relating to the Detention of Asylum Seekers (February 1999), para 1.

67. Ibid.

68. Ibid para 6, Guideline 6. Emphasis in original.

69. Ibid, para 6, Guideline 3.

70. Ibid.

71. Ibid.

72. Opened for signature 28 July 1951, 189 UNTS 150,

ATS 1954 No 5 (entered into force 22 April 1954) ('Refugee Convention').

The Refugee Convention was amended by the Protocol Relating to the Status

of Refugees, opened for signature 31 January 1967, 606 UNTS 267, 6 ILM

78 (entered into force 4 October 1967).

73. Opened for signature 20 November 1989, 1577 UNTS

44, 28 ILM 1457 (entered into force 2 September 1990) ('CROC').

74. Opened for signature 16 December 1966, 999 UNTS 171,

6 ILM 368 (entered into force 23 March 1976) ('ICCPR'). Similar provisions

are contained in Article 9 of the Universal Declaration of Human Rights;

Article 6 of the African Charter on Human and People's Rights; Article

XXV of the American Declaration; Articles 7(2) and 7(3) of the American

Convention on Human Rights; Article 5(1) of the European Convention for

the Protection of Human Rights and Fundamental Freedoms; Article 55(1)(d)

of the Statute of the International Criminal Court; and Article 37 of

the Convention on the Rights of the Child.

75. UNHCR, UNHCR Revised Guidelines on Applicable Criteria

and Standards Relating to the Detention of Asylum Seekers (February 1999),

para 16.

76. Human Rights Committee, Concluding Observations of

the Human Rights Committee: Australia, UN Doc A/55/40 (28 July 2000),

paras 498-528.

77. Standing Committee of the Executive Committee of

the United Nations High Commissioner for Refugees' Programme, Detention

of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended

Practice, UN Doc EC/49/SC/CRP.13, para 10.

78. HREOC, Those who've come across the seas Detention

of unauthorised arrivals, Commonwealth of Australia, 1998, p22

79. Guideline 4 of the UNHCR revised guidelines on applicable

criteria and standards relating to the detention of asylum seekers, UNHCR,

(February 1999).

80. Detention proposals, K. Rivett, 10 September 2001,

(http://www.refugeecouncil.org.au/Rivettmodel.htm)

81. "Howard stands by policies", AAP, 25/1/2002.

82. UNHCR revised guidelines on applicable criteria and

standards relating to the detention of asylum seekers, UNHCR, (February

1999).

83. Consider for example this from UNHCR's Refugee Children:

Guidelines on Protection and Care, 1 January 1994, (http://www.asylumsupport.info/publications/unhcr/refugeechildren.htm):

"Families must be kept together at all times, which includes their

stay in detention as well as being released together".

84. Both the HREOC and RCOA models have previous been

displayed on their websites, the JAS, Detention Reform Group, "Reception

and Transitional Processing System" model has been included as part

of the JAS submission to this inquiry.

85. Personal conversation with Grant Mitchell (5 April,

2002), Project Coordinator, Hotham Mission, Aslum Seeker Project

86. See for example Australia - A continuing shame: the

mandatory detention of asylum seekers, Amnesty International, 1998 (http://www.amnesty.org.au/whatshappening/refugees/index-16.html):

"It is internationally accepted that protecting national security

and preventing illegal immigration can be legitimate grounds for exceptional,

temporary detention of unauthorised asylum-seekers in individually determined

cases. (See UNHCR EXCOM Conclusion No. 44, paragraph b, outlined in Chapter

2.1, supra.) Amnesty International acknowledges Australia's right to control

entry into the country and that there is a possibility that some asylum-seekers

may abscond into the community if released from initial detention. However,

this possibility should be assessed case by case."

87. See Amnesty International's response to the White

Paper on asylum and immigration (UK) (www.amnesty.org.uk/action/camp/refugees/asylum.shtml)

and Australia - A continuing shame: the mandatory detention of asylum

seekers, Amnesty International, 1998.

88. This argument has been put forward by the Minister

for Immigration in a number of meetings with representatives of Amnesty

International.

89. UNICEF, United Nations Children's Fund, Implementation

Handbook for the Convention on the Rights of the Child, 1998, Geneva at

262

Last

Updated 9 January 2003.