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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!

1.

INTRODUCTION

2. HUMAN RIGHTS IMPLICATIONS FOR MINORS OF AUSTRALIA'S

MANDATORY DETENTION

3. ADDITIONAL ISSUES FOR UNACCOMPANIED MINORS IN

DETENTION

4. ALTERNATIVES TO DETENTION

5. CONCLUSION


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.


1. INTRODUCTION

The mandatory detention

regime under the Migration Act applies to all those who arrive in Australia

(other than an offshore entry person [1]) without being

'immigration cleared' [2]. 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

.[3]

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 .[4]

The latest statistics

(as of 1 February 2002) on children detained under this regime are as

follows :[5]

  • 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;

  • education;

  • culture;

  • guardianship

    issues; and

  • security

    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.

"Child"

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

    (article 12)

  • the best interests

    of the child as a primary consideration in all actions concerning them

    (article 3(1))

  • the right of all

    children to enjoy rights of the Convention without discrimination (article

    2)

  • 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:

i. Alternatives

to mandatory detention for child asylum seekers; and

ii. Additional issues affecting unaccompanied minors in detention.

2. HUMAN RIGHTS IMPLICATIONS

FOR MINORS OF AUSTRALIA'S MANADATORY DETENTION

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

    Refugee Convention)

  • the International

    Covenant on Civil and Political Rights (ICCPR)

Australia ratified

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 .[6]

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 .[7]

  • 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' [8]

  • 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 . [9] This right extends

    to 'all deprivations of liberty, whether in criminal cases, or in other

    cases such as ... immigration control' .[10]

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.

B. Arbitrariness

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 :[11]

The term 'arbitrary'

includes not only actions which are unlawful per se but also those which

are unjust or unreasonable even if lawful. [12] In

1990, in the case of Alphen v The Netherlands, the Human Rights Committee

stated:

The drafting

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. [13]

The question

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. [14]

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:

... detention

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. [15]

This determination

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

concerned.

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 [16], 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. [17]

The Executive Committee

also

(c) Recognised

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]

(d) Stressed

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 .[18] 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 . [19] 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' .[20]

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' .[21] They

conclude that

Freedom from

arbitrary detention is a fundamental human right, and the use of detention

is in many instances, contrary to the norms and principles of international

law. [22]

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'. [23]

D. Application

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'.

[24] The United Nations Standard Minimum Rules for the

Administration of Juvenile Justice (the Beijing Rules) (1985) reiterate

that any detention should be brief [25] and state this

should only occur where the child has committed "a serious act involving

violence". [26]

The UNHCR states

in its Guidelines on Detention that 'minors who are asylum seekers

should not be detained'.

Their application

to child asylum seekers is further reinforced by the CROC. Article 22

specifically provides that:

States Parties

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

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

international or domestic law and procedures shall, whether unaccompanied

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

appropriate protection and humanitarian assistance in the enjoyment

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

international human rights or humanitarian instruments to which the

said States are Parties.

As the HREOC Submission

to the Senate Legal and Constitutional References Committee inquiry into

Australia's refugee and humanitarian program [27] states:

The detention

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.

Australian law

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 .[29] 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:

Unfortunately

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'. [30]

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:

If children

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. [31]

\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

    2)

  • the best interests

    of the child as a primary consideration in all actions concerning children

    (article 3(1))

  • 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

    16)

  • 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

    (article 31)

  • a standard of

    living adequate for physical, mental, spiritual, moral and social development

    (article 27)

  • 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

law.

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 [32], 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. [33]

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' . [34] 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

Act:

785.21 Criteria

to be satisfied at time of application

785.211 The

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.

785.22 Criteria

to be satisfied at time of decision

785.221 The

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:

… make

a determination under paragraph (1)(c) that a non-citizen is an eligible

non-citizen if:

(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;

and

(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

interest.

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

Act; and

(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;

and

(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 [36],

only 2 children were granted these visas in the period from 1 September

1994 to May 1998 [37]. Information on the DIMIA website

[38] states:

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

    possible period.

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: [39]

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 . [40]

ii. Discrimination

because of immigration status (Article 2)

The 'non-discrimination'

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.

The non-discrimination

requirement raises issues for the Inquiry in relation to the mandatory

detention of children in Australia on account of their unauthorised arrival

because:

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 .[41]

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

also breached.

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

.[42]

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

body.

Unaccompanied minors

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.

  • Unaccompanied

    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 .[43]

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.

Note

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 . [44]

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 :[45]

The Committee

is concerned about the treatment of asylum seekers and refugees and

their children, and their placement in detention centres. (Concluding

Observation 20).

In 2000, the Human

Rights Committee stated :[46]

The Committee

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.

The Committee

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

development' .[47]

We endorse the HREOC

Immigration Detention Guidelines [48] and submit that

the Government should be again urged to adopt these guidelines.

v. Right to challenge

detention (Article 37(d))

Judicial oversight

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

convenience.

Article 37(d) of

CROC states:

(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. [50]

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.

vi. Implications

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:

The definition

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.

Such additional

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

Refugee Convention.

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:

46A Visa

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

Australia; and

(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

personally.

(4) If the Minister makes a determination under subsection (2), the

Minister must 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 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

who:

(a) is in Australia;

and

(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:

198A Offshore

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

(3).

(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

may:

(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;

and

(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 :[52]

Australia will

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

obligations; and

(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

these laws.

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

MINORS IN DETENTION

A. Guardianship

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 :[53]

(1) Subject to subsections

(2) and (3), a person (the 'child') is a non-citizen child if the child:

(a) has not turned

18; and

(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)

Act: [54]

4.10 The IGOC

Act and Protection visa applicants

4.10.1 Together,

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.

4.10.3 Although

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.

Any organisations

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

On arrival

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

be considered.

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

special needs.

C. Unaccompanied

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

to Australia.

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.

The educational,

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.

4. ALTERNATIVES TO DETENTION

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

visas.

Again, on these issues

we endorse the attached submission made by QPAST and Youth Advocacy Centre

(Qld) to the Inquiry.

5. CONCLUSION

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.


1.

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.

2. s.189 of the Migration Act: to be immigration cleared

a person must present themselves to Australian immigration officials at

an airport or port in Australia.

3. See discussion below. Only two children were released

from detention under this provision in the period from 1 September 1994

to May 1998.

4. According to the Minister in a Ministerial Press Statement

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

6. Article 2 of CROC

7. Article 22 of CROC

8. Article 31 of the Refugees Convention

9. Under Article 9.1 of the ICCPR

10. Human Rights Committee, General Comment No. 8 (1982),

paragraph 1.

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

12. Documentary references and a summary of these debates

are given in M Bossuyt, Guide to the Travaux Preparatoires of the International

Covenant on Civil and Political Rights, Martinus Nijhoff, Dordrecht, 1987,

page 343.

13. Communication No. 305/1988, Human Rights Committee

Report 1990, Volume II: UN Doc. A/45/40, paragraph 5.8 (emphasis added).

14. In A v Australia, Communication No. 560/1993, the

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.

15. Id, page 24 (emphasis added).

16. (1986) (ExComm Conclusion 44), UN Doc. A/AC.96/688,

paragraph 128.

17. See also Note on International Protection, 15 August

1988: UN Doc. A/AC.96/713, paragraph 19.

18. The 1995 Guidelines were replaced early in 1999 and

clarify the scope of application of ExComm Conclusion 44.

19. Guideline 1: Scope of the Guidelines. This definition

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

25.

20. 'Introduction', paragraph 1.

21. Ibid.

22. Ibid.

23. Ibid.

24. Rules 1 and 2, United Nations Rules for the Protection

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".

25. Guideline 6, UNHCR Guidelines on Detention (emphasis

retained).

26. Rule 17(b) of the United Nations Standard Minimum

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

minimum".

27. See footnote 10 for reference.

28. The Department of Immigration and Multicultural Affairs

has advised the Commission that two minors have been released from detention

on bridging visas 'since May 1998'.

29. Guideline 6: Detention of Persons under the Age of

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.

30. UNHCR Refugee Children: Guidelines on Protection

and Care (UNHCR Guidelines on Protection and Care), (1994) chapter 7

31. Guideline 6.

32. Minister for Immigration and Ethnic Affairs v Ah

Hin Teoh (1995) 183 CLR 273.

33. Since 1995, three Bills seeking to reverse the Teoh

decision have passed the House of Representatives but have been defeated

in the Senate.

34. Article 4, CROC.

35. See also subregs 2.20

36. See footnote 3

37. HREOC Submission to the Senate Legal and Constitutional

References Committee inquiry into Australia's refugee and humanitarian

program, pp.6-7.

38. See report Women and Children in Detention at http://www.minister.immi.gov.au/detention/women_&_children.htm

39. at p.10. The full submission can be accessed on the

Inquiry website at http://www.aph.gov.au/senate/committee/clac_ctte/child_migrat/submissio…

40. see footnote 10 for reference

41. See the comments of the UN Committee on the Rights

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.

42. Clause 866.228 of Schedule 2 of the Migration Regulations

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.'

43.

UNHCR used a similar model in the refugee camps in Hong Kong established

under the Comprehensive Plan of Action

44. Rule 94, Standard Minimum Rules for the Treatment

of Prisoners.

45. CRC, Concluding Observations of the Committee on

the Rights of the Child: Australia, UN Doc CRC/C/15/Add. 79, 10 October

1997.

46. HRC, Concluding Observations of the Human Rights

Committee : Australia, paras 498-528

47. CROC, Article 27

48. See the HREOC website at http://www.hreoc.gov.au/human_rights/asylum_seekers/index.html#idc_guid…

49. This provision mirrors article 9(4) of the ICCPR

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.

50. See the discussion of the case of Berry v Jamaica,

of the Human Rights Committee, Communication No. 330/1988, 16 October

1992, at footnote 53 to the Background Paper.

51. See s.417, Migration Act

52. See Departmental Fact Sheet 90, New Measures to Strengthen

Border Control, Public Affairs Section, Department Immigration and Multicultural

Affairs, Canberra, 28 September 2001.

53. see Section 4AAA

54. see para 4.6.2 of the DIMIA Procedures Advice Manual

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Updated 9 January 2003.