here to return to the Submission Index
Submission to the National
Inquiry into Children in Immigration Detention from
Amnesty International Australia
International's work on refugees
Convention on the Rights of the Child
of Children in Australia's Immigration Detention Centres
for the Release of Children Held In Immigration Detention
to detention: Towards the goal of a more humane asylum system
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
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.
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)
Covenant on Civil and Political Rights
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.
International's work on refugees
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
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:
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:
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
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.
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')  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  reflects
global recognition of the vulnerability of children to human rights violations.
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'),
 in which the Court discussed Australia's ratification
of the CROC and held that:
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.
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:
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.  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.
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') . 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:
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.
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.  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:
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
(b) Alternatively, the possibility of appealing to a judge or to such
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. 
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
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.
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
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. 
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.  A decision to place a child
in an institution should only occur "if necessary". 
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." 
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."  Importantly,
the Australian Government can not abrogate its responsibilities under
human rights treaties by outsourcing immigration detention centres. 
Children are entitled
to enjoy all the rights contained in the CROC without discrimination of
any kind.  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
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,  thought
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,
and the special right to rest and play. 
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.
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.
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
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
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
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.
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.
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." 
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.
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
2.2 Refugee Children as Particularly
The CROC has also
identified the particular vulnerability of refugee children in Article
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." 
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.
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
- 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
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:
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. 
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. 
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".
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, 
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.
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
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.
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.
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. 
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:
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.
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:
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. 
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
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.
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". 
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." 
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
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. 
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
- 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
- Amends the Act
to exempt unaccompanied alien children from certain removal and asylum
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. 
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.
Education of Children in Australia's Immigration Detention Centres
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
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") 
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
22 of the Refugee Convention imposes upon Contracting States the obligation
to provide elementary education of a standard equivalent to that enjoyed
(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.
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 
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:
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.
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."
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) . This obligation extends to children in immigration
3.1.3 Other international
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
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" 
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
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" . 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 .
These Guidelines refer specifically to "the opportunity to continue
further education or vocational training". 
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.
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. 
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.
education of all children of compulsory school-age, principles applicable
in the provision of education and minimum standards of curricula
Act 1990 (NSW) ("the Act") provides that children of "compulsory
school-age" are children of or above 6 years and below 15 years .
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.
are set out in Section 4 of the Act which provides relevantly:
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:
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
(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
In terms of "key
learning areas"  and minimum curriculum for
primary education , these include English, mathematics,
science and technology, human society and its environment (including courses
of study relating to Australia ), creative and practical
arts (including the study of art and music ) and
personal development, health and physical education. Each of the key learning
areas are to be provided to each child every year 
and the requirements set out in these key learning areas "constitute
the minimum curriculum for schools providing primary education".
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 ), 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". 
All teachers must
be professional, appropriately trained and of the highest standard.
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
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
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) 
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
is aware that the standards set out in domestic legislation are far from
being implemented in Australia's immigration detention centres.
has been informed by [words deleted] former teachers ("the
Teachers") at the Port Hedland Immigration Detention Centre that:
- 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
- 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
- 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
- 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
- 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.
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 ,
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
In relation to his
observation of the education being provided to detainee children he states:
[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)]." 
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
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
Under the Migration
Act 1958 (Cth) ('Migration Act') all unlawful non-citizens
who are in Australia's migration zone must be detained.
Unlawful non-citizens are non-citizens who do not hold a valid visa. 
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.
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.
 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;
it is not always possible for asylum seekers to comply with Australia's
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.'  (emphasis added).
Detention of asylum
seekers is only condoned by the UNHCR if there are exceptional grounds
for detention.  The UNHCR recommends a 'presumption
against detention' and emphasises that alternatives to detention should
generally be applied first.  The UNHCR states that:
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. 
4.1 Treaty Provisions Relevant
to the Detention of Child Asylum Seekers
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, 
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 , 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,  which provides that:
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.  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. 
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
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'. 
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.
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
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
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. 
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
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
A non- citizen who:
- was refused immigration
clearance or found to be an unlawful non-citizen and held in an immigration
- 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
- 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
- an Australian
Reg 2.20 (4)
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.
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.
Alternatives to detention: Towards the goal of a more humane asylum system
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" , 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?" 
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
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) 
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  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.
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 ,
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:
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.  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
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)
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
- A more humane
- Greater flexibility;
- Enhanced equity
in the treatment extended to community and irregular asylum seekers
- 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. 
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.
"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
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.
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.  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
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.  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).
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.
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."
In order for Australia
to meet its obligations to child asylum seekers Amnesty International
- 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
- 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
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.
for signature 20 November 1989, 1577 UNTS 44, 28 ILM 1457 (entered into
force 2 September 1990).
of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/15/Add.79
(10 October 1997).
6 ILM 368 (entered into force 23 March 1976).
Detainees in Australia: An Evaluation of Current Accountability Mechanisms'
(2000) 22 Sydney Law Review 50, 55.
Sheet No 26, The Working Group on Arbitrary Detention at <http://www.unhchr.ch/html/menu6/2/2/fs26.htm>;
Henry Steiner and Philip Alston, International Human Rights in Context:
Law Politics Morals (2nd edn, 2000) 642.
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.
Handbook for the Convention on the Rights of the Child (1998, Geneva)
Handbook for the Convention on the Rights of the Child (1998, Geneva),
Law (2nd edn, 1999) at 304-5; Taylor, Op. Cit., 56.
Handbook for the Convention on the Rights of the Child, United Nations
Children's Fund, USA, p257
NGO' s", 1999, Geneva at p94
c/o CUSU, 11-12 Trumpington Street, Cambridge, CB2 1QA.
The Sydney Morning Herald, August 1, 2001.
by Robert Manne, The Sydney Morning Herald, August 13, 2001.
Philip Flood AO, February, 2001 and
of Immigration and Multicultural Affairs' Immigration Detention Centres
(Report under section 35a of the Ombudsman's Act 1976) March 2001.
Theory, Research and Services. Baltimore; The John Hopkins University
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,
Louise Newman, Chair of the Faculty of Child and Adolescent Psychiatry
of the Royal Australian and New Zealand College of Psychiatry, Sydney,
Mathew Moore. Sydney Morning Herald. November 28, 2001.
Handbook for the Convention on the Rights of the Child, 1998, Geneva at
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.
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.
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".
Education (General Provisions) Act 1989 (Qld); Education Act 1972 (SA);
Education Act 1994 (Tas); Education Act 1958 (Vic); and School Education
Act 1999 (WA).
Amnesty International Australia on 15 March 2002, and during the period
from 5 April 2002 to 13 April 2002, [respectively].
and Prisons Association Conference, held in Perth on 30 October 2001
Affairs ('DIMIA'), Immigration Detention, Fact Sheet 82, at <http://www.immi.gov.au/facts/82detention.htm>.
Refugees, UNHCR Revised Guidelines on Applicable Criteria and Standards
Relating to the Detention of Asylum Seekers (February 1999), para 1.
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).
44, 28 ILM 1457 (entered into force 2 September 1990) ('CROC').
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.
and Standards Relating to the Detention of Asylum Seekers (February 1999),
the Human Rights Committee: Australia, UN Doc A/55/40 (28 July 2000),
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.
of unauthorised arrivals, Commonwealth of Australia, 1998, p22
criteria and standards relating to the detention of asylum seekers, UNHCR,
standards relating to the detention of asylum seekers, UNHCR, (February
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".
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.
2002), Project Coordinator, Hotham Mission, Aslum Seeker Project
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."
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.
for Immigration in a number of meetings with representatives of Amnesty
Handbook for the Convention on the Rights of the Child, 1998, Geneva at
Updated 9 January 2003.