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Submission to the National
Inquiry into Children in Immigration Detention from
the National Children's and
Youth Law Centre
Children's Rights Overboard!
The National Children's
and Youth Law Centre (NCYLC) remains the only Australian national community
legal centre working exclusively for, and with children and young people.
It is a joint project of the University of New South Wales, the University
of Sydney and the Public Interest Advocacy Centre, initially funded by
the Australian Youth Foundation.
The intention of
the NCYLC is to provide advocacy, education and information services for
Australia's children and young people. The touchstone of the NCYLC's efforts
is the United Nations Convention on the Rights of the Child, and its mandate
in promoting understanding and adherence to children's rights as fundamental
human rights. A natural corollary to these developments is the ability
to hold governments accountable in meeting both the spirit and the letter
of Australia's commitment to the Convention.
The NCYLC promotes
the rights and interests of all Australia children and young people by
advocacy, lobbying, test case litigation, information collection and dissemination
and research. Since its inception in 1993, the NCYLC has made over 150
public submissions on law and policy affecting children and young people
and handled over 10,000 inquiries.
The NCYLC seeks to
empower children and young people, providing them with the informational
and support tools necessary to assist them to make informed personal choices.
The NCYLC espouse that all levels of society realise that the views of
children and young people are important, requiring protection and freedom.
As Australia's only
national community legal centre for children and young people, the NCYLC
is a frontline for children's issues. In response to this position, the
NCYLC actively undertake community legal education, policy work, casework
and test case litigation aimed at increasing young people's access to
legal assistance and improving the legal status of children and young
people in Australia.
The mandatory detention
regime under the Migration Act applies to all those who arrive in Australia
(other than an offshore entry person ) without being
'immigration cleared' . The combined effect of a number
of provisions of the Act and Regulations is that such arrivals can be
released only upon being granted a temporary protection visa. The only
exception is that detainees under 18 may be granted a bridging visa if
they satisfy the requirements of reg.2.20(5) of the Migration Regulations
The area of greatest
controversy under these provisions is their application to asylum seekers
who arrive in Australia in boats. Such arrivals are not immigration cleared,
and must therefore be detained, although the Minister's own statistics
indicate that they are far more likely to be assessed as genuine refugees
than are those who arrive by other means .
The latest statistics
(as of 1 February 2002) on children detained under this regime are as
- The total number
of children in mainland Australian Immigration Detention Centres is
365, 224 male and 141 female.
- Of these, 13
were unaccompanied minors.
- There are another
9 unaccompanied minors placed into alternative care of the South Australian
Department of Human Services provided through Family and Youth Services.
- There is also
one unaccompanied minor issued with a bridging visa who has been placed
in foster care arrangements in the community.
The terms of reference
for this Inquiry announced by the Human Rights Commissioner provide for
the Inquiry to consider the following matters:
1. The provisions
made by Australia to implement its international human rights obligations
regarding child asylum seekers, including unaccompanied minors.
2. The mandatory
detention of child asylum seekers and other children arriving in Australia
without visas, and alternatives to their detention.
3. The adequacy
and effectiveness of the policies, agreements, laws, rules and practices
governing children in immigration detention or child asylum seekers
and refugees residing in the community after a period of detention,
with particular reference to:
- the conditions
under which children are detained;
- health, including
mental health, development and disability;
practices in detention.
4. The impact
of detention on the well-being and healthy development of children,
including their long-term development.
5. The additional
measures and safeguards which may be required in detention facilities
to protect the human rights and best interests of all detained children.
6. The additional
measures and safeguards which may be required to protect the human rights
and best interests of child asylum seekers and refugees residing in
the community after a period of detention.
includes any person under the age of 18.
We will argue in
this submission that the mandatory detention of child asylum seekers causes
Australia to fail to meet its obligations to children under the Convention
on the Rights of the Child (CROC). With regard to the legal and human
rights implications for children, this policy ignores the following four
general principles enshrined in articles of CROC, for the purpose of guiding
interpretation and assisting parties' implementation:
- the right of
all children to participate meaningfully in all matters affecting them
- the best interests
of the child as a primary consideration in all actions concerning them
- the right of all
children to enjoy rights of the Convention without discrimination (article
- the right to survival
and development (article 6).
Because of the mandate
of our organisation, this submission will focus on the human rights obligations
Australia has under international law to child asylum seekers. We will
also comment on issues of:
to mandatory detention for child asylum seekers; and
ii. Additional issues affecting unaccompanied minors in detention.
2. HUMAN RIGHTS IMPLICATIONS
Child asylum seekers
are protected by a number of international treaties and standards. The
main treaties are:
- the Convention
on the Rights of the Child (1989) (CROC)
- the Convention
relating to the Status of Refugees (1951) and its 1967 Protocol (the
- the International
Covenant on Civil and Political Rights (ICCPR)
CROC in December 1990. Accordingly, all children, regardless of their
immigration status, are entitled to the full enjoyment of the rights outlined
in the Convention .
A. The requirements
of international law
The background papers
to the Inquiry provide a very good analysis of Australia's international
obligations to children in detention. Rather than repeat that material
here, we will instead begin by noting our support for the following basic
principles identified in the background papers:·
CROC provides that children seeking asylum shall have access to the same
rights and protections in Australia as do other children .
- The Refugee Convention
does not permit 'restrictions other than those which are necessary and
such restrictions shall only be applied until their status in the country
is regularized' 
- Even if detention
is 'necessary', the rights of the children detained under the ICCPR
must be fully respected at all times.
- Any deprivation
of liberty must be on grounds and in accordance with procedures established
by law and must not be arbitrary .  This right extends
to 'all deprivations of liberty, whether in criminal cases, or in other
cases such as ... immigration control' .
CROC similarly protects
children in particular from arbitrary deprivation of liberty. Article
37(b) provides in part:
No child shall
be deprived of his or her liberty unlawfully or arbitrarily.
In addition, the
detention of a child is to be used only as a measure of last resort and,
when it is used, only for the shortest appropriate period of time (article
37(b)). In assessing what would be an appropriate period, the decision-maker
must take into account the best interests of the child (article 3(1)).
From these basic
principles, it is clear that it is a basic human right that child asylum
seekers are entitled not be detained arbitrarily or unlawfully.
in international law
We endorse the discussion of this issue in the HREOC Submission to
the Senate Legal and Constitutional References Committee inquiry into
Australia's refugee and humanitarian program :
The term 'arbitrary'
includes not only actions which are unlawful per se but also those which
are unjust or unreasonable even if lawful.  In
1990, in the case of Alphen v The Netherlands, the Human Rights Committee
history of article 9, paragraph 1, confirms that 'arbitrariness' is
not to be equated with against the law, but must be interpreted more
broadly to include elements of inappropriateness, injustice and lack
of predictability. This means that remand in custody pursuant to lawful
arrest must not only be lawful but reasonable in all the circumstances.
Further, remand in custody must be necessary in all the circumstances,
for example, to prevent flight, interference with evidence, or the recurrence
of crime. 
whether a particular restriction on liberty is necessary and reasonable
or arbitrary for the purposes of the ICCPR is not a matter of purely
subjective judgment. The jurisprudence of the Human Rights Committee
indicates that, to avoid the taint of arbitrariness, detention must
be a proportionate means to achieve a legitimate aim, having regard
to whether there are alternative means available which are less restrictive
of rights. 
Indeed, the Australian
practice of mandatory detention of asylum seekers was considered by the
Human Rights Committee of the United Nations on a communication in 1993.
Australia sought to justify the prolonged detention on the basis that
the complainant entered Australia unlawfully and may have absconded if
not detained. The Committee concluded:
should not continue beyond the period for which the State can provide
appropriate justification. For example, the fact of illegal entry may
indicate a need for investigation and there may be other factors particular
to the individual, such as the likelihood of absconding and lack of
cooperation, which may justify detention for a period. Without such
factors detention may be considered arbitrary, even if entry was illegal.
In the instant case, the State Party has not advanced any grounds particular
to the author's case, which would justify his continued detention ...
The Committee therefore concludes that the author's detention ... was
arbitrary within the meaning of Article 9, paragraph 1. 
clearly applies with equal force to the children detained in various immigration
detention centres in Australia today. The only real difference between
their situation and that of the complainant in A v Australia is
that the government no longer maintains even the pretence that detention
is necessary to prevent these children from absconding. The only justification
now advanced for mandatory detention is its deterrence value.
To operate effectively
as a deterrent, however, the practice must both be worse than the alternatives
faced by asylum seekers and be known to be worse. This ignores the reality
of the situations from which these asylum seekers are fleeing. In the
cases of the Afghan and Iraqi arrivals over recent years, for example,
it cannot be forgotten that those people were fleeing from regimes guilty
of extreme crimes against their own populations. In both of these cases
the Australian government has seen fit to join in US-led expeditionary
forces with the expressed objective of removing those regimes from power.
The justification for these actions was the criminal nature of the regime
Against this background,
is it meaningful to talk of 'deterring' such asylum seekers from coming
to Australia? Even aside from the inhumanity of such a policy and the
denial of our obligations under international law that it entails, it
surely has no prospect of success.
Conclusion No. 44
of the Executive Committee of the High Commissioner for Refugees, Detention
of Refugees and Asylum Seekers , states that
where the detention of asylum seekers is deemed to be necessary it should
only be used for 4 purposes:
- to verify identity;
- to determine the
elements on which the claim for refugee status or asylum is based;
- to deal with cases
where asylum seekers have destroyed their travel and/or identity documents
or have used fraudulent documents to mislead the authorities of the
State in which they intend to claim asylum; or
- to protect national
security and public order.
In relation to asylum
seekers using fraudulent documents or travelling with no documents at
all, the Conclusion recognises that detention is permissible only where
there is an intention to mislead the authorities. Asylum seekers who arrive
without documentation because they are unable to obtain any in their country
of origin should not be detained solely for that reason. 
The Executive Committee
the importance of fair and expeditious procedures for determining refugee
status or granting asylum in protecting refugees and asylum seekers
from unjustified or unduly prolonged detention [and]
the importance for national legislation and/or administrative practice
to make the necessary distinction between the situation of refugees
and asylum seekers and that of other aliens.
We submit that there
is no basis for the Australian government to argue that this communication
should not apply here.
C. UNHCR Guidelines
on Detention of Asylum Seekers
The UNHCR Guidelines on Detention of Asylum Seekers (the Guidelines)
are designed to assist governments in developing and implementing detention
policies and practices . The Guidelines apply to
all asylum seekers who are in detention or in detention-like situations.
They apply to all persons who are confined within a narrowly bounded or
restricted location, including prisons, closed camps, detention facilities
or airport transit zones, where freedom of movement is substantially curtailed,
and where the only opportunity to leave this limited area is to leave
the territory .  While they do not have the force
of law, then, the Guidelines provide appropriate standards for the operation
of Australia's immigration detention centres.
The Guidelines, like
ExComm Conclusion 44, state that the right to liberty is a fundamental
right, recognised in all the major human rights instruments, both at global
and regional levels, and that therefore 'the detention of asylum-seekers
is in the view of UNHCR inherently undesirable' .
The Guidelines state that detention is especially undesirable for vulnerable
people 'such as single women, children, unaccompanied minors and those
with special medical or psychological needs' . They
arbitrary detention is a fundamental human right, and the use of detention
is in many instances, contrary to the norms and principles of international
The Guidelines affirm
that the only permissible grounds for detention are the four grounds provided
in ExComm Conclusion 44. Detention of asylum seekers for any other purpose,
'for example, as part of a policy to deter future asylum seekers, or to
dissuade those who have commenced their claims from pursuing them, is
contrary to the norms of refugee law'. 
of these principles to children in detention
The principles outlined above relate to asylum seekers generally.
The United Nations Rules for the Protection of Juveniles Deprived of
their Liberty (1990) states that detention 'should be used as a
last resort" and "be limited to exceptional cases'.
 The United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (the Beijing Rules) (1985) reiterate
that any detention should be brief  and state this
should only occur where the child has committed "a serious act involving
The UNHCR states
in its Guidelines on Detention that 'minors who are asylum seekers
should not be detained'.
to child asylum seekers is further reinforced by the CROC. Article 22
specifically 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.
As the HREOC Submission
to the Senate Legal and Constitutional References Committee inquiry into
Australia's refugee and humanitarian program  states:
of the children of asylum seekers is complicated by the apparently competing
factors affecting their interests. On the one hand, detention, especially
for prolonged periods, stifles their development and can cause actual
harm. CROC acknowledges this by requiring that any detention of a child
be a measure of last resort and for the shortest appropriate period
of time (article 37(b)). In addition, CROC imposes the positive obligation
upon States Parties to take appropriate measures to ensure to every
child a standard of living adequate for his or her physical, mental,
spiritual, moral and social development (article 27). On the other hand,
children have a right to live with and enjoy the protection and assistance
of their parents. The Preamble to CROC acknowledges that 'the child,
for the full and harmonious development of his or her personality, should
grow up in a family environment'. CROC article 9.1 obliges States Parties
to ensure that children are not separated from their parents against
their will except when it is necessary in their best interests. These
provisions clearly apply to children and their families seeking asylum
and deprived of their liberty under the Migration Act.
provides that the Minister may grant a bridging visa to a child under
the age of 18 who comes within the guidelines prescribed in Migration
Regulation 2.20. The bridging visa allows the child to be released from
detention pending consideration of an application to remain in Australia
(Migration Act section 73). The Minister has no discretion, however,
to grant a bridging visa to release the child's parents. A child released
from detention would therefore be denied the protection and assistance
of his or her parents. This may lead to a breach of article 9.1 of CROC.
Only two children of a possible total of 581 were released on Bridging
Visas between 1 September 1994 and May 1998. Australian law, therefore,
purports to permit the release of children while in fact making that
effectively impossible and undesirable. As a result, whether a child
is detained with his or her parents or released without them, Australia
is in breach of its human rights commitments.
The UNHCR's Guidelines
resolve the seeming conflict by directing that minors who are asylum seekers
should not be detained . In almost all circumstances,
therefore, unless there is good reason to the contrary related to the
particular circumstances of the particular family, children and their
parents should not be detained during the determination of a claim for
refugee status. The Guidelines state:
refugee children are sometimes detained or threatened with detention
because of their own, or their parents', illegal entry into a country
of asylum. Because detention can be very harmful to refugee children,
it must be 'used as a measure of last resort and for the shortest appropriate
period of time'. 
Where children are
detained, however, CROC article 37(b) requires that it be a measure of
last resort and for the shortest appropriate period of time. The UNHCR
Guidelines direct States to take steps to ensure an appropriate environment
for children who are detained. Conditions akin to a prison are to be avoided:
who are asylum seekers are detained in airports, immigration-holding
centres or prisons, they must not be held under prison-like conditions.
All efforts must be made to have them released from detention and placed
in other accommodation. 
\So what are the
rights to which children seeking asylum in Australia are entitled? The
background papers to this Inquiry summarise the key rights guaranteed
to children in Australian detention centres under the Convention:
- to enjoy all
the rights of the Convention without discrimination of any kind (article
- the best interests
of the child as a primary consideration in all actions concerning children
- to survival and
development (article 6)
- to participate
meaningfully in all matters affecting them (article 12)
- to family life
(articles 5, 9, 18)
- to privacy (article
- the highest attainable
standard of health (article 24)
- education (articles
28 and 29)
- practise their
culture, language and religion (article 30)
- freedom from torture,
ill-treatment and abuse (article 37)
- protection from
all forms of physical or mental violence, sexual abuse and exploitation
(articles 19 and 34)
- freedom of expression,
thought, conscience (articles 13, 14, 15)
- protection as
an asylum seeking child (article 22)
- recovery from
the effects of neglect, exploitation, abuse, torture or ill-treatment,
or armed conflicts (article 39)
- not be deprived
of liberty unlawfully or arbitrarily, with detention only in conformity
with the law, as a measure of last resort and for the shortest appropriate
period of time (article 37)
- access to legal
assistance and the right to challenge their detention (article 37)
- rest and play
- a standard of
living adequate for physical, mental, spiritual, moral and social development
- if detained,
be treated with humanity and respect for their inherent dignity and
in a manner which takes into account their age (article 37).
We shall now address
the current situation concerning some of these basic rights for child
asylum seekers in detention in Australia, focusing on the legal issues
which arise as a result of Australia's obligations under international
i. The best interests
of the child (Article 3(1))
The policy decision
to detain children, particularly unaccompanied children, clearly does
not actively take into account the best interests of the child.
As indicated above, child asylum seekers who arrive in Australia unauthorised
are subject to mandatory detention unless and until they are granted either
a temporary protection visa or a bridging visa. The criteria for these
visas, which are found in the Migration Regulations, contain no reference
to 'the best interests of the child'. The Migration Act provides, in
s.65(1), that the Minister may only grant a visa if the relevant criteria
prescribed by the Act and the Regulations for that class of visa are satisfied.
The failure to specify the best interests of children involved in these
applications for either a temporary protection visa or a bridging visa
means that this is not a consideration that decision-makers can take into
account on these applications.
It is important to
note that under the Teoh principle , elaborated
by the High Court in 1995, administrative decision-makers are required
to take rights under CROC into account in decision making where the right
in question is not clearly excluded by domestic law. 
Courts may interpret federal legislation as complying with the provisions
of the Convention where the meaning of the legislation is ambiguous. This
principle of the common law does not satisfy the requirement of the Convention
that 'State Parties undertake all appropriate legislative, administrative
and other measures for the implementation of the rights recognised in
the present Convention' .  Teoh can only
be applied by decision-makers where the relevant law contains a broad
discretion, the exercise of which can be influenced by principles such
as the 'best interests of the child'. The temporary protection visa criteria,
for example, contain no such general discretion.
The key criteria
for the temporary protection visa are found in Schedule 2 of the Migration
to be satisfied at time of application
applicant claims to be a person to whom Australia has protection obligations
under the Refugees Convention and:
(a) makes specific claims under the Refugees Convention; or
(b) claims to be a member of the same family unit as a person who:
(i) has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class XA) visa.
to be satisfied at time of decision
Minister is satisfied that the applicant is a person to whom Australia
has protection obligations under the Refugees Convention.
S.72(2) of the Migration
Act allows the Minister to:
a determination under paragraph (1)(c) that a non-citizen is an eligible
(a) the non-citizen was an unlawful non-citizen when he or she entered
the migration zone; and
(b) the non-citizen made a valid application for a protection visa after
he or she arrived in Australia; and
(c) the non-citizen has been in immigration detention for a period of
more than 6 months after the application for a protection visa was made;
(d) the Minister has not made a primary decision in relation to the
application for a protection visa; and
(e) the Minister thinks that the determination would be in the public
An 'eligible non-citizen'
can apply for a bridging visa. S.72 goes on to provide:
(3) The power
to make a determination under paragraph (1)(c) may only be exercised
by the Minister personally.
(4) If the Minister
makes a determination under paragraph (1)(c), he or she is to cause
to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular
to the Minister's reasons for thinking that his or her actions are in
the public interest.
(7) The Minister does not have a duty to consider whether to make a
determination under paragraph (1)(c) in respect of any non-citizen,
whether he or she is requested to do so by the non-citizen or any other
person, or in any other circumstances.
A bridging visa can
be granted to a child in detention under reg.2.20 of the Migration Regulations
. Subreg.2.20(5) provides:
(5) This subregulation
applies to a non-citizen:
(a) who is in immigration detention under Division 6 of Part 2 of the
(b) who has not turned 18; and
(c) in respect of whom a child welfare authority of a State or Territory
has certified that release from detention is in the best interests of
the non-citizen; and
(d) in respect of whom the Minister is satisfied that:
(i) arrangements have been made between the non-citizen and an Australian
citizen, Australian permanent resident or eligible New Zealand citizen
for the care and welfare of the non-citizen; and
(ii) those arrangements are in the best interests of the non-citizen;
(iii) the grant of a visa to the non-citizen would not prejudice the
rights and interests of any person who has, or may reasonably be expected
to have, custody or guardianship of, or access to, the non-citizen.
This provision does,
therefore, allow for the best interests of the child to be considered
on an application for a bridging visa. In practice, however, such bridging
visas are very rarely granted. As indicated above ,
only 2 children were granted these visas in the period from 1 September
1994 to May 1998 . Information on the DIMIA website
Children in detention
- The vast majority
of children in detention arrived with their families and remain with
their families in detention.
- It is the Department's
considered view that it is in the best interests of the child for them
to remain with their parents, family or fellow country persons.
- As such, children
are held in detention with their parents so that they can remain in
family groups. The department's facilities enable families to be housed
together in all of its detention centres.
- The Department
is committed to ensuring that children held in immigration detention
receive appropriate care. A permanent working party of senior departmental
officers meets on a fortnightly basis to review all detention cases
and, in particular, cases of concern such as children.
- All efforts are
made to ensure detention of children is a last resort and for the shortest
Number of women
and children in detention
- As of 1 February
2002, the total number of women and children in mainland Australian
Immigration Detention Centres is 637.
- This number comprises
of 259 adult women, 224 male children, 141 female children.
- As at 1 February
2002, there were 13 unaccompanied minors (UAMs) in detention.
- In addition, there
are 9 unaccompanied minors (UAMs) placed into alternative care of the
South Australian Department of Human Services provided through Family
and Youth Services.
- There is also
one unaccompanied minor issued with a bridging visa who has been placed
in foster care arrangements in the community.
It is interesting
to contrast this statement with a submission made by the Department to
the Senate Inquiry into Lost Innocents: Righting the Record - Report
on Child Migration - 30 August 2001. That Inquiry, of course, related
to the practice of bringing child migrants from the UK to Australia in
the 1950s. It seems that institutionalisation is different for British
children as opposed to child asylum seekers: 
It was not until
the 1960s that attitudes to child care and child rearing in Australia
began to change in the community at large. Existing practices were questioned
and alternative types of care outside the institutional context were explored
more widely. The emergence of social work as a profession appears to have
had a significant impact on the treatment of children in care, with a
greater reliance by governments and institutions on their guidance in
establishing and maintaining appropriate standards. The trend away from
institutional care in Australia was gradual and there were still over
20,000 children in institutions in 1972. This number had halved by 1981
and has fallen to just over 1,000 today.
Some children are
more equal than others, it seems.
In practice, then,
the overwhelming majority of child asylum seekers are subject to mandatory
detention without regard to whether that detention is in their best interests.
Detention denies all the children access to essential facilities, such
as health, education and welfare, available to children in the general
community. In our submission, detaining child asylum seekers is in many
instances specifically counter to the best interests of the child. The
practice of mandatory detention indicates that the child's best interests
are the last rather than the primary consideration of government.
In particular, it
is noted that the best interests of unaccompanied children can never be
served by being detained as they are vulnerable to mistreatment and victimisation
by both fellow inmates and the prison authorities.
There seems no good
reason - notions of deterence aside - why families arriving in Australia
with children should not be allowed to live in the community once basic
procedures for confirming family members' identity and health assessments
are complete. In that regard we support the Alternative Detention Models
proposed by HREOC in its Submission to the Senate Legal and Constitutional
References Committee inquiry into Australia's refugee and humanitarian
program . 
because of immigration status (Article 2)
principle prohibits discrimination on the grounds of 'other status', including
immigration status. Article 2 provides:
1. States Parties
shall respect and ensure the rights set forth in the present Convention
to each child within their jurisdiction without discrimination of any
kind, irrespective of the child's or his or her parent's or legal guardian's
race, colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that
the child is protected against all forms of discrimination or punishment
on the basis of the status, activities, expressed opinions, or beliefs
of the child's parents, legal guardians, or family members.
requirement raises issues for the Inquiry in relation to the mandatory
detention of children in Australia on account of their unauthorised arrival
1. Children who
arrive in Australia with their families on a tourist or other temporary
visa and subsequently apply for refugee status are not detained. One
issue this raises is whether Australia is in breach of article 2 of
the CROC on the ground of its different treatment of child asylum seekers
arriving without visas and children who arrive on a tourist or temporary
visa and subsequently seek asylum .
2. Child asylum
seekers who arrive without authorisation and are detained may only receive
a three-year temporary protection visa when recognised as a refugee,
whereas those who arrive with authorisation and are subsequently recognised
as a refugee receive permanent residency.
The different legal
status deriving from these refugee visas translates into different rights
and benefits for children under the migration legislation itself, as their
rights to make visa applications in Australia are determined solely by
their immigration status. Further, to the extent that these children's
status is itself dependent on their parents' actions, Article 2(2) is
As indicated above,
children who are 'unauthorised arrivals' can apply only for a temporary
protection visa or bridging visa. Once they are granted a temporary protection
visa, they can only apply for a protection visa - regardless of any relationships
they may form with Australian citizens - and even that application can
only be made after 30 months unless the Minister gives permission earlier
No such restrictions
apply to children who are not 'unauthorised arrivals'.
As is clear from
the above discussion, there are no special 'legislative, administrative
and other measures' in place to ensure the protection of the rights set
out in CROC during the process for determination of refugee status. Children
in detention are not considered as a matter of policy to be wards of the
Minister under the Immigration (Guardianship of Children) Act 1946. There
are no special procedures in place for processing them or their applications.
iii. Right to
meaningful participation in decision-making (article 12)
A child's right to
participate meaningfully in all matters concerning him or her, personally
or through a parent or guardian includes the right for a child to be heard
in any judicial or administrative proceedings affecting the child. The
right to be heard may be direct, or through a representative or an appropriate
are particularly vulnerable to not having their case properly heard because
they are likely to have a lack of understanding of the process and an
inability to access a legal representative or appropriate body.
To enable unaccompanied
minors, and children accompanied by adults who have an asylum claim in
their own right, to participate in the decision concerning their claim,
they must first understand the process so they may properly provide the
necessary information for making the claim.
It is our submission
that to ensure that children, particularly unaccompanied minors, understand
the process and are given an opportunity to provide the information required
to properly determine their claim for asylum:
- The Interviewers
must be skilled and/or trained in refugee issues to ensure the particular
information is obtained from the children to determine if they entitled
to refugee status as part of a group, on the basis of their parents'
entitlement or in their own right.
- Children must
have access to interpreters of the same cultural background and native
language. At times it may be necessary for a child to have an interviewer
and/or interpreter who is the same sex as the child.
- Children need
to be interviewed by people trained and experienced in child interview
techniques and in working with interpreters. The information needs to
be obtained from children in a manner that will elicit the most information
from them. The method of obtaining information from children should
be different from that applied to adults.
- Children must
have access to a qualified legal representative who has experience in
refugee law to ensure that the child's case is adequately presented
to decision-makers. These representatives must be experienced both in
refugee applications and in properly representing the interests of children.
- Where a child
is not able to provide information because of age or some other vulnerability,
advice needs to be obtained (either from the child or some other source)
as to whether there are any relatives, family, friends or fellow detainees
who could provide the information.
minors must have a guardian appointed, other than the Minister for Immigration
as there is a conflict in his being the guardian as well as the person
who will determine if the child is entitled to claim asylum.
We urge the establishment
of an Unaccompanied Minors and Vulnerable Persons Program comprising a
multi-disciplinary team of professionals and legal advocates to properly
assist unaccompanied minors and other vulnerable persons to properly present
their claim for refugee status before the authorities .
At the very least
all minors, but particularly unaccompanied minors, must have access to
legal advocacy to represent their case for asylum to the decision-makers.
As indicated above, we have sought in this submission to focus on
the international law and human rights issues raised by the mandatory
detention of child asylum seekers. For the views of the children themselves
on their treatment in detention, we commend the joint submission of the
Queensland Program of Assistance to Survivors of Torture and Trauma (QPAST)
and the Youth Advocacy Centre (Qld) (YACQ) which is attached to this submission.
iv. Right to humane
detention (Article 37(c))
Child asylum seekers
in detention have not been arrested or charged with any criminal offence.
Accordingly, their treatment should be as favourable as possible and in
no way less favourable than that of untried or convicted prisoners . 
The other 'civil, economic, political, social or cultural rights' of the
child under national or international law should always be ensured, provided
they are compatible with provisions on the deprivation of liberty. There
should normally be a presumption that this is the case, unless serious
security issues such as imminent escape or riots require the temporary
restrictions of such rights.
In designing and
delivering detention programs, Australia should always seek to minimise
differences between life in detention and life at liberty and strive to
meet the individual needs of each detainee; taking into account her or
his history and experiences, age, gender and cultural, religious and linguistic
identity. This is particularly important for detained children.
Both the Committee
on the Rights of the Child and the Human Rights Committee have expressed
concern about Australia's detention of asylum seekers in their Concluding
Observations on Australia's periodic reports under both Conventions.
In 1997, the Committee
on the Rights of the Child stated :
is concerned about the treatment of asylum seekers and refugees and
their children, and their placement in detention centres. (Concluding
In 2000, the Human
Rights Committee stated :
considers that the mandatory detention under the Migration Act of 'unlawful
non-citizens', including asylum-seekers, raises questions of compliance
with article 9, paragraph 1, of the Covenant, which provides that no
person shall be subjected to arbitrary detention. The Committee is concerned
at the State party's policy, in this context of mandatory detention,
of not informing the detainees of their right to seek legal advice and
of not allowing access of non-governmental human rights organizations
to the detainees in order to inform them of this right.
urges the State party to reconsider its policy of mandatory detention
of 'unlawful non-citizens' with a view to instituting alternative mechanisms
of maintaining an orderly immigration process. The Committee recommends
that the State party inform all detainees of their legal rights, including
their right to seek legal counsel. (Concluding Observations 18, 19).
If child asylum seekers
are to be detained in Australia, their detention conditions must meet
minimum international standards on humane detention of children, which
prohibits the ill-treatment of children. Australia is obliged to ensure
to all child asylum seekers 'appropriate protection and humanitarian assistance'
under article 22 of CROC. Appropriate protection and humanitarian assistance
includes, as a minimum, providing every child with 'a standard of living
adequate for the child's physical, mental, spiritual, moral and social
We endorse the HREOC
Immigration Detention Guidelines  and submit that
the Government should be again urged to adopt these guidelines.
v. Right to challenge
detention (Article 37(d))
of all forms of detention is a fundamental guarantee of liberty and freedom
from arbitrariness. Without judicial oversight, administrative detention
may be indeterminate, being decided on grounds of administrative or other
Article 37(d) of
(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.
Again, we endorse
the comments in the HREOC Background Paper 8 Deprivation of Liberty and
Humane Detention on the scope of article 37(d). While both the Convention
and ICCPR articles apply to all children held in detention, including
child asylum seekers, article 37(d) of the Convention also provides the
child with the right to 'prompt access to legal and other appropriate
assistance' before a court or similar authority. Where a child does not
have access to legal and other assistance to challenge her or his detention,
there will be a violation of the Convention. 
The Human Rights
Committee has determined that the lack of provision for review of the
detention of an alien for a period of three days because of his incommunicado
detention amounted to a breach of article 9(4) of the ICCPR.
Judicial review of
detention in Australia remains very limited. As discussed above, the scheme
of the legislation is to make non-citizens - including child asylum seekers
- without a valid visa liable to detention by operation of law. They cannot
be released unless they are granted a visa. Thus any legal challenge to
their detention will be 'merely formal' and unable to succeed.
At present, there
is no court in Australia in which child asylum seekers can take proceedings
to determine whether their detention is arbitrary and therefore in contravention
of the Convention. Accordingly, Australia would appear to be in breach
of article 37(d) of the Convention and article 9(4) of the ICCPR.
of the detention policy on the non-refoulement obligation
As Australia is a
State Party to the Refugee Convention, it is obliged to ensure the rights
outlined in its provisions are afforded to child asylum seekers as a result
of Article 22 of CROC. We endorse the following passage from the HREOC
Background Paper 7 Legal Status:
of a refugee in the Refugee Convention provides the grounds upon which
decisions can be made as to whether adults and children are refugees.
Some States have adopted a wider definition of refugee, while others
have introduced an additional humanitarian visa category to cover situations
where an individual may not fall within the Refugee Convention but may
face serious harm in another country and require international protection.
measures may assist States in ensuring their non-refoulement obligations
under a number of international treaties, including article 3(1) of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT) and articles 6 and 7 of the ICCPR, are
capable of being met. The non-refoulement obligation, which prohibits
the forcible return of any person to a country where she or he risk
persecution or serious harm, is a core legal obligation on Australia
and arguably a peremptory norm of international law. In order for Australia
to fulfil its obligation of non-refoulement, a number of positive actions
are required, including the presence of an effective procedure to determine
the validity of an asylum seeker's claim to be a refugee and of any
risk of serious harm to the individual if returned to a third country.
As is pointed
out in the Background Paper, asylum claims determined to fall outside
the scope of the Refugee Convention definition are considered for non-refoulement
risks only under a non-compellable, non-reviewable Ministerial humanitarian
discretion. This does not satisfy Australia's obligations under the
E. Boat arrivals
under the current regime
A major issue in relation to Australia's obligations under the Refugee
Convention arises in relation to those people affected by the amendments
made to the migration legislation on 21 September 2001. Asylum seekers
affected by those changes made in the wake of the Tampa affair last year
are now subject to the new s.46A:
applications by offshore entry persons
(1) An application for a visa is not a valid application
if it is made by an offshore entry person who:
(a) is in
(b) is an unlawful non?citizen.
(2) If the Minister
thinks that it is in the public interest to do so, the Minister may,
by written notice given to an offshore entry person, determine that
subsection (1) does not apply to an application by the person for a
visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister
(4) If the Minister makes a determination under subsection (2), the
Minister must cause to be laid before each House of the Parliament a
(a) sets out
the determination; and
(b) sets out the reasons for the determination, referring in particular
to the Minister's reasons for thinking that the Minister's actions
are in the public interest.
(5) A statement
under subsection (4) must not include:
(a) the name
of the offshore entry person; or
(b) any information that may identify the offshore entry person; or
(c) if the Minister thinks that it would not be in the public interest
to publish the name of another person connected in any way with the
matter concerned-the name of that other person or any information
that may identify that other person.
(6) A statement
under subsection (4) must be laid before each House of the Parliament
within 15 sitting days of that House after:
(a) if the
determination is made between 1 January and 30 June (inclusive) in
a year-1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive)
in a year-1 January in the following year.
(7) The Minister
does not have a duty to consider whether to exercise the power under
subsection (2) in respect of any offshore entry person whether the Minister
is requested to do so by the offshore entry person or by any other person,
or in any other circumstances.
S.46A makes any application
for a visa invalid (and therefore DIMIA is not required to even accept
it for lodgment) if the application is made by an offshore entry person
(a) is in Australia;
(b) is an unlawful non-citizen.
The Minister has
power to personally waive the s.46A ban and allow an application to be
lodged if it is in the public interest. This is a non-compellable ministerial
discretion and there are not, at present, any policy directions or guidelines
for the exercise of this Ministerial discretion.
The key provision
in this new offshore entry person regime is s.198A:
entry person may be taken to a declared country
(1) An officer may take an offshore entry person from Australia to
a country in respect of which a declaration is in force under subsection
(2) The power under
subsection (1) includes the power to do any of the following things within
or outside Australia:
(a) place the person
on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) The Minister
(a) declare in writing
that a specified country:
(i) provides access,
for persons seeking asylum, to effective procedures for assessing their
need for protection; and
(ii) provides protection for persons seeking asylum, pending determination
of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending
their voluntary repatriation to their country of origin or resettlement
in another country; and
(iv) meets relevant human rights standards in providing that protection;
(b) in writing, revoke
a declaration made under paragraph (a).
(4) An offshore entry
person who is being dealt with under this section is taken not to be in
immigration detention (as defined in subsection 5(1)).
(5) In this section,
officer means an officer within the meaning of section 5, and includes
a member of the Australian Defence Force.
The Department says :
meet its international protection obligations under the UN Refugees
Convention by making an assessment for refugee status for any asylum
seekers. For people who are found to be refugees, the Minister is able
to use his non-compellable discretionary power to allow an application
for a visa to be made. Alternatively, third country resettlement may
be the preferred outcome.
Exactly (how or where)
the Government intends to 'meet its international protection obligations'
is unclear. Sooner or later we will run out of willing Pacific Island
states on which to dump these asylum-seekers. Not only are the provisions
for arbitrary detention and forced removal objectionable, it is not clear
how these asylum seekers are going to be given any fair assessment process
at all given that being outside Australia these procedures are not required
to comply with Australian law.
None of these provisions,
of course, contain any reference to the fact that some of these 'offshore
entry persons' are in fact children. Again, there is no provision made
for the interests of the children to be considered at all in any of these
processes. In no sense can it be argued that the 'best interests'
of these children are even a consideration in this scheme, let alone a
primary consideration. Unlike the children themselves, their rights seem
to have been thrown overboard.
The provisions of
subsection 198A(3) are of concern. There is no requirement, for example,
for the country to which 'offshore entry persons' are removed to be a
signatory to the Refugees Convention. Further, the declarations are entirely
at the discretion of the Minister without, for example, the safeguard
which exists in s.91N(3) of the Act which also deals with questions of
residence in a third country:
(3) The Minister
may, after considering any advice received from the Office of the United
Nations High Commissioner for Refugees:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures
for assessing their need for protection; and
(ii) provides protection to persons to whom that country has protection
(iii) meets relevant human rights standards for persons to whom that
country has protection obligations; or
(b) in writing, revoke a declaration made under paragraph (a).
No explanation has
been provided as to why this procedure is not acceptable under the new
regime for offshore entry persons. Again, there is no requirement for
any consideration to be given to the interests of children affected by
Clearly these new
provisions are designed to ensure that Australia does not have to recognise
its protection obligations under the Refugee Convention in respect of
those boat arrivals. The legal fiction that Christmas Island and the other
territories are not part of Australia for the purposes of the Migration
Act may be valid under Australian law, but it cannot operate
to excuse Australia from its obligations under international law. Australia
is therefore in breach of its protection obligations under the Convention
in respect of all of these boat arrivals including the children.
3. ADDITIONAL ISSUES FOR UNACCOMPANIED
of unaccompanied minors
In relation to unaccompanied minors, the Immigration (Guardianship
of Children) Act provides for the Minister to act as the guardian of children
in the following circumstances :
(1) Subject to subsections
(2) and (3), a person (the 'child') is a non-citizen child if the child:
(a) has not turned
(b) enters Australia as a non-citizen; and
(c) intends, or is intended, to become a permanent resident of Australia
(2) Subsection (1)
does not apply if the child enters Australia in the charge of, or for
the purposes of living in Australia under the care of:
(a) a parent of
the child; or
(b) a relative of the child who has turned 21; or
(c) an intending adoptive parent of the child
The application of
this provision is explained in the following extract from the DIMIA policy
concerning the application of the Immigration (Guardianship of Children)
4.10 The IGOC
Act and Protection visa applicants
s4AA and other provisions of the IGOC Act and Regulations ensure that,
unless paragraph 4.10.2 applies, minors who are Protection visa applicants
fall within the IGOC Act. It follows that, unless paragraph 4.10.2 applies,
- before a Protection
visa is granted; or
- if applicable,
before a minor is released from immigration detention holding a Bridging
visa in connection with their Protection visa application;
officers are to ensure that the relevant State/Territory child welfare
agency has undertaken to accept responsibility for the minor's guardianship.
4.10.2 The IGOC
Act does not apply
- if the minor
travelled to Australia in the care of a parent (or to join a parent
in Australia); or
- if the minor
travelled to Australia in the care of a close adult relative (or to
join a close adult relative in Australia); or
- while the minor
is held in immigration detention; or
- if the minor is
released from immigration detention into the care of a close adult relative.
not defined for the purposes of the exemption provisions of s4AAA(2)(b)
of the IGOC Act, it is policy (consistent with that for unaccompanied
humanitarian minors) that 'relative' is limited to meaning a 'close
adult relative', namely a grandparent, brother, sister, uncle or aunt
(of an unaccompanied humanitarian minor) who is 21 or over.
Accordingly it is
policy that the Minister does not accept responsibility for the guardianship
of unaccompanied minors in detention centres. It is not clear how this
policy conclusion is reached. Section 4AAA does not appear to exempt children
in detention from the operation of the Act. The key issue is whether they
intend to remain permanently in Australia - not their 'immigration status'
or whether they are in detention. This policy again appears to breach
the prohibition against discrimination in Article 2 of CROC.
We submit that unaccompanied
minor's interests would be best served by not being placed in detention
at any time but by being placed under the guardianship of the relevant
state welfare authorities and/or community organisations or individuals
who could properly care for the child's needs for survival and development
(Article 6) while the application is processed. The guardian/care-provider
would be responsible for ensuring that the best interests of the child
are respected throughout the status determination procedure and in all
care and welfare decisions concerning the child.
or individuals volunteering to care for children would need to be subject
to assessment similar to foster application assessments for the general
community to ensure that unaccompanied minors are cared for to the same
standard expected for other children in the community who are not under
the care and guardianship of their own family.
B. New arrivals
in Australia, unaccompanied children should:
1. Have immediate
access to the relevant authorities and be registered as asylum claimants
through interviews to obtain biographical details and social history.
2. Be placed in the guardianship of the Minister for Immigration for
the period required for the relevant state welfare authority to assume
guardianship of the child.
3. Be placed in appropriate alternative care in the community - consideration
would need to be given to the age, sex, culture and language and psychological
and physical health of the child. For example, young children should
be placed in a family unit while it may be appropriate to place an adolescent
in a more independent style of accommodation such as hostel. Where possible,
particularly for older children, the child's view on placement should
4. Have access to all education, health and welfare facilities and resources
that are available to other children in alternative care in the community,
including any facilities or resources required for an individual child's
minors currently detained
There may be unaccompanied minors in the detention centres of which
the decision makers are unaware because they have claimed to be the children
of adult detainees. This may be for a variety of reasons such as fear
for their safety in the centres or that their applications will be unsuccessful
or because they have been cared for by a particular family when en route
A program needs to
be put in place to properly locate all the unaccompanied minors in the
detention centres and to document their biographical details and social
history. A decision may then need to be made in consultation with the
child, significant others and relevant professionals as to whether the
child should remain with the people caring for him/her or a guardianship
arrangement is needed while the child's application is being processed.
health and welfare facilities and resources mentioned above should also
be available to these children.
D. Children arriving
with their families
We submit that the best interests of children arriving with their
families would also be served by allowing the families to live in the
community once basic procedures for confirming family members identity
and health assessments are complete.
These children should
have access to all education, health and welfare facilities and resources
that are available to other children in the community, including any facilities
or resources required for an individual child's special needs.
Detention is part
of a policy of deterrence on the part of the Australian government. As
discussed above, the detention of child asylum seekers in circumstances
where other children in Australia are not detained raises issues under
the non-discrimination provision of the Convention.
Under bridging visa
requirements, child asylum seekers cannot be released from immigration
detention unless a State or Territory child welfare authority certifies
that a release from detention is in the child's best interests and the
Minister for Immigration and Multicultural and Indigenous Affairs is satisfied
that appropriate arrangements have been made for the care and welfare
of the child outside of detention. 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
Again, on these issues
we endorse the attached submission made by QPAST and Youth Advocacy Centre
(Qld) to the Inquiry.
As will be clear
from the above comments, our overriding concern with the current 'regime'
for mandatory detention of asylum-seekers is that the regulatory scheme
does not contain any reference to the fact that some of these asylum seekers
are in fact children.
That regulatory scheme
accordingly contains no provision for the interests of the children to
be considered at all in any of these processes. In no sense can it be
argued that the 'best interests' of these children are a real consideration
in this scheme, let alone a primary consideration as is required by CROC.
The bridging visa
scheme that is supposed to enable consideration to be accorded to the
rights of the children concerned has to be seen in the context of the
scheme as a whole. So long as the law requires their parents to be detained,
a policy which states that it is always in the children's best
interests to be with their parents ensures that no real consideration
is given to the interests of the children in each case.
Unlike the children
themselves, their rights seem to have been thrown overboard.
As HREOC has argued
before, the only solution in keeping with our international obligations
is to abandon the regime of mandatory detention altogether.
See 5(1) Migration Act, essentially boat arrivals who arrived at an excised
offshore place after the amendments to the Act made last September. At
present the territories of Christmas Island, Cocos (Keeling) Islands,
Ashmore and Cartier Islands and Australian sea and resource installations
(also defined in the Act) are excised offshore places.
a person must present themselves to Australian immigration officials at
an airport or port in Australia.
from detention under this provision in the period from 1 September 1994
to May 1998.
of 7 August 2001, 'Of the unauthorised boat arrivals who came to Australia
in 1999-2000, there was an average approval rate of 94 per cent. That
figure dropped significantly for unauthorised boat arrivals in the July
- December 2000 period, where the overall grant rate had fallen to an
average of 75 per cent'.
5. Drawn from DIMIA website at http://www.immi.gov.au/detention/women.htm
11. The submission is on the HREOC website at: http://www.hreoc.gov.au/human_rights/asylum_seekers/#submission.
See also the Report of the Committee, Inquiry into the operation of Australia's
refugee and humanitarian program, 28 June 2000, at http://www.aph.gov.au/senate/committee/legcon_ctte/refugees/contents.htm
are given in M Bossuyt, Guide to the Travaux Preparatoires of the International
Covenant on Civil and Political Rights, Martinus Nijhoff, Dordrecht, 1987,
Report 1990, Volume II: UN Doc. A/45/40, paragraph 5.8 (emphasis added).
Committee stated 'remand in custody could be considered arbitrary if it
is not necessary in all the circumstances of the case, for example to
prevent flight or interference with evidence: the element of proportionality
becomes relevant in this context': Views of the Human Rights Committee,
30 April 1997: UN Doc. CCPR/C/59/D/560/1993.
1988: UN Doc. A/AC.96/713, paragraph 19.
clarify the scope of application of ExComm Conclusion 44.
of detention is based on the Note of the Sub-Committee of the Whole on
International Protection of 1986, 37th Session, UN Doc. EC/SCP/44, paragraph
of Juveniles Deprived of their Liberty. Rule 2 provides "[d]eprivation
of the liberty of a juvenile should be a disposition of last resort and
for the minimum necessary period and should be limited to exceptional
cases. The length of the sanction should be determined by the judicial
authority, without precluding the possibility of his or her early release".
Rules for the Administration of Juvenile Justice (The Beijing Rules) provides:
"Restrictions on the personal liberty of the juvenile shall be imposed
only after careful consideration and shall be limited to the possible
has advised the Commission that two minors have been released from detention
on bridging visas 'since May 1998'.
18. Reference is also made to CROC articles 3, 9, 20, 22 and 37, the UN
Rules for Juveniles Deprived of their Liberty and the UNHCR Guidelines
on Refugee Children, 1994.
and Care (UNHCR Guidelines on Protection and Care), (1994) chapter 7
Hin Teoh (1995) 183 CLR 273.
decision have passed the House of Representatives but have been defeated
in the Senate.
References Committee inquiry into Australia's refugee and humanitarian
38. See report Women and Children in Detention at http://www.minister.immi.gov.au/detention/women_&_children.htm
Inquiry website at http://www.aph.gov.au/senate/committee/clac_ctte/child_migrat/submissio…
of the Child to Sweden: 'The Committee is also concerned by the practice
of taking foreign children into custody under the Aliens Act and notes
that this practice is discriminatory in so far as Swedish children generally
cannot be placed in custody until after the age of 18.' Concluding observations
of the Committee on the Rights of the Child: Sweden, UN Doc CRC/C/15/Add.2,
18 Feb 1993, para 9.
provides that 'If the applicant holds a Subclass 785 (Temporary Protection)
visa, the applicant has held that visa for the lesser of:
(a) a continuous period of 30 months; and
(b) a shorter period specified in writing by the Minister in relation
to the applicant.'
UNHCR used a similar model in the refugee camps in Hong Kong established
under the Comprehensive Plan of Action
the Rights of the Child: Australia, UN Doc CRC/C/15/Add. 79, 10 October
Committee : Australia, paras 498-528
48. See the HREOC website at http://www.hreoc.gov.au/human_rights/asylum_seekers/index.html#idc_guid…
which provides that Anyone who is deprived of his 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 detention
and order his release if the detention is not lawful.
of the Human Rights Committee, Communication No. 330/1988, 16 October
1992, at footnote 53 to the Background Paper.
Border Control, Public Affairs Section, Department Immigration and Multicultural
Affairs, Canberra, 28 September 2001.
Updated 9 January 2003.