Submission to the National
Inquiry into Children in Immigration Detention from
the NSW Council for Civil
1. Opening statement
The Council for Civil
Liberties NSW (CCL) considers mandatory detention of asylum seekers to
be a breach of Australia's international obligations. The CCL is of the
view that mandatory detention of children is morally indefensible particularly
given Australia's ratification of the UN Convention on the Rights of the
2. Relevant conventions and
UN Convention and
Protocol Relating to the Status of Refugees 1951 and 1967 (Refugee Convention)
UN Convention on the Rights of the Child (1989) - ratified 1990 (CROC)
UN International Covenant on Civil and Political Rights (ICCPR)
Migration Act1958 (Cth)
Immigration (Guardianship of Children) Act 1946 (Cth).
Migration (Guardianship of Children) Regulations
DIMA Detention Standards
UNHCR Revised Guidelines on Applicable Criteria and Standards Relating
to the Detention of Asylum Seekers 1999 (UN Guidelines)
3. Mandatory Detention of
Children are detained
in Australia under s178 of the Migration Act 1958 which effectively
requires the detention of all persons who enter Australia by boat without
a valid visa.
Such detention breaches
the UN Convention and Protocol Relating to the Status of Refugees
Article 31which states:
1. The contracting
states shall not impose penalties on account of their illegal entry
or presence, on refugees who, coming directly from a territory where
their life or freedom was threatened in the sense of article 1, enter
or are present in their territory without authorisation, provided that
they present themselves without delay to the authorities and show good
cause for their illegal entry or presence.
2. The Contracting
States shall not apply to the movement of such refugees restrictions
other than those which are necessary and such restrictions shall only
be applied until their status in the country is regularised or they
obtain admission into another country. The Contracting states shall
allow such refugees a reasonable period and all the necessary facilities
to obtain admission into another country.
also breaches Article 9 of the International Covenant on Civil and
Political Rights ("ICCPR").
Every one has the
right to liberty and security of the person. No person shall be subjected
to arbitrary arrest or detention.
The UNHCR guidelines
make it clear there should be a presumption against detention of asylum
seekers, the right to seek and enjoy asylum being a basic human right
contained in article 14 of the Universal Declaration of Human Rights.
The permissible exceptions should be clearly prescribed by law. Such exceptions
should be limited to establishing identity, establishing the basis of
the claim for asylum (that is a preliminary interview not a determination
of the merits of the claim)where documents have been destroyed or falsified,
and in exceptional circumstances where there is a necessity to protect
public order and there is evidence to show a particular asylum seeker
is a risk for example having criminal antecedents. Detention should be
for the shortest possible time. The guidelines state detention for the
purpose of deterrence is contrary to the norms of refugee law. Deterrence
is the declared policy of the current government.
In particular, children
should not be detained. The detention of children breaches UN Convention
Rights of the Child ("CROC"):
(a) No child shall
be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the
law and shall be used only as a measure of last resort and for the shortest
appropriate period of time;
Other relevant articles
of CROC include article 2 against discrimination on any basis.
1. In all actions
concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.
And see article 23,
which requires the State to provide appropriate protection and assistance.
Detention is not appropriate protection or assistance.
The UN Human Rights
Committee has previously condemned Australia's practice of detention in
A v Australia 1993 where the detention was considered arbitrary.
Further, the period of detention and practice of lack of legal assistance
were identified as breaches of Australia's obligations. under articles
of the ICCPR.
The minimum legal
safeguards for those detained should include the ability to take the issue
of their detention before a court with the power to order their release
and to have access to legal advice both in regard to their detention and
other matters such as their entitlements under human rights law.
Article 9(4) of ICCPR
Anyone who is deprived
of his liberty by arrest or detention shall be entitled to take proceedings
before a court of law in order that a court may decide without delay the
lawfulness of his detention and order his release if the detention is
And again more particularly
with a child, Article 37 of the UN Convention Rights of the 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.
The Australian Government
has gone to extraordinary lengths to deny and remove such safeguards.
Detainees are now effectively held without judicial review and proper
access to the courts.
196 Period of
(1) An unlawful
non-citizen detained under section 189 must be kept in immigration detention
until he or she is:
(a) removed from
Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
(2) To avoid doubt,
subsection (1) does not prevent the release from immigration detention
of a citizen or a lawful non-citizen.
(3) To avoid doubt,
subsection (1) prevents the release, even by a court, of an unlawful non-citizen
from detention (otherwise than for removal or deportation) unless the
non-citizen has been granted a visa.
183 Courts must
not release designated persons
A court is not to
order the release from immigration detention of a designated person.
The Migration Act
by virtue of the September 1994 amendments has seriously eroded the ability
of the Federal Court to deal with applications before it by denying access
to the Judiciary Act and limiting grounds of appeal. This denies the asylum
seeker access to the courts and is contrary to the guarantee of same treatment
as a national in relation to such access provided for in article 16 of
the Refugee Convention. The Minister and the Prime Minister have both
stated the purpose of the current policy of pushing off and the Pacific
Solution is to prevent access to the Australian Court system.
4. Lack of Provision
of legal advice
The Migration Act
provides that there is no obligation on DIMA to provide legal advice or
access to advice until requested.
of law to certain non-citizens while they remain in immigration detention
(2) Apart from section
256, nothing in this Act or in any other law (whether written or unwritten)
requires the Minister or any officer to:
(aa) give a person
covered by subsection (1) an application form for a visa; or
(a) advise a person covered by subsection (1) as to whether the person
may apply for a visa; or
(b) give a person covered by subsection (1) any opportunity to apply
for a visa; or
(c) allow a person covered by subsection (1) access to advice (whether
legal or otherwise) in connection with applications for visas.
(a) a person covered
by subsection (1) has not made a complaint in writing to the Human Rights
and Equal Opportunity Commission, paragraph 20(6)(b) of the Human
Rights and Equal Opportunity Commission Act 1986 does not apply
to the person; and
(b) a person covered by subsection (1) has not made a complaint to the
Commonwealth Ombudsman, paragraph 7(3)(b) of the Ombudsman
Act 1976 does not apply to the person.
(4) This section
applies to a person covered by subsection (1) for as long as the person
remains in immigration detention.
256 Person in
immigration detention may have access to certain advice, facilities etc.
Where a person is
in immigration detention under this Act, the person responsible for his
or her immigration detention shall, at the request of the person in immigration
detention, give to him or her application forms for a visa or afford to
him or her all reasonable facilities for making a statutory declaration
for the purposes of this Act or for obtaining legal advice or taking legal
proceedings in relation to his or her immigration detention.
DIMA has a policy
of separation detention ,to keep new arrivals away from the other detainees
in part to prevent any person receiving advice about their legal rights.
The agreement between
DIMA and ACM specifically empowers ACM at their discretion to exclude
persons including unsolicited lawyers and the media
There is no distinction
under the Migration Act for children. CROC requires
1. 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.
2. For this purpose,
States Parties shall provide, as they consider appropriate, co-operation
in any efforts by the United Nations and other competent intergovernmental
organizations or non-governmental organizations co-operating with the
United Nations to protect and assist such a child and to trace the parents
or other members of the family of any refugee child in order to obtain
information necessary for reunification with his or her family. In cases
where no parents or other members of the family can be found, the child
shall be accorded the same protection as any other child permanently
or temporarily deprived of his or her family environment for any reason,
as set forth in the present Convention.
States Parties undertake
to make the principles and provisions of the Convention widely known,
by appropriate and active means, to adults and children alike.
This is as opposed
to DIMAs attempts to block contact with lawyers and HREOC and even other
detainees for initial arrivals.
The Guidelines on
procedures and criteria for determining legal status under the refugee
convention notes a child or for that matter an adolescent not having legal
independence should if appropriate have a guardian appointed whose task
would be to promote a decision that will be in the minor's best interest.
The guardian appointed
under Australian law for unaccompanied children is the Minister for immigration
under the Immigration (Guardianship of Children act 1946.
of non-citizen children
The Minister shall
be the guardian of the person, and of the estate in Australia, of every
non-citizen child who arrives in Australia after the commencement of
this Act to the exclusion of the father and mother and every other guardian
of the child, and shall have, as guardian, the same rights, powers,
duties, obligations and liabilities as a natural guardian of the child
would have, until the child reaches the age of 18 years or leaves Australia
permanently, or until the provisions of this Act cease to apply to and
in relation to the child, whichever first happens.
Given the entitlements
of children under CROC it would seem appropriate that children receive
through their guardian legal advice and assistance, and that such advice
be from lawyers throughout the entire process to ensure they are advised
of all their rights and not just those under the Migration Act.
The role of the Minister
as Guardian was explored in Jaffari v Minister for Immigration &
Multicultural Affairs  FCA 1516 (26 October 2001). The matter
related to a 15 year old asylum seeker who claimed to be from Afghanistan.
His application had been rejected on grounds of credibility; the Refugee
Tribunal had not believed he was Afghani. There was an objection to the
competency of the Federal Court on the basis that the child's application
was outside the 28 day period allowed and no extension was permissible.
This raised issues of the validity of service of the notice of rejection
on a minor. During the proceedings it became known that the Minister had
delegated his powers and responsibilities in relation to Jaffari to the
Western Australian Department for Family and Community Services later
known as the Department of Community Development. It was argued that the
guardian had obligations with respect to the child's visa application
that the WA department had obligations not limited by the delegation but
also encompassing the constitutional powers of the State. Evidence was
given by a senior legal officer from the Department who stated she was
not aware of any role taken by the department in relation to visa applications.
She agreed with the proposition that there was very little in the way
of administrative procedures or guidelines for the implementation of the
delegated power. The issue of possible conflict in duties of guardian
and border protection was raised.
His Honour held that
there was nothing in the Migration Act to say an unaccompanied
minor cannot make a valid application for a visa and the question is a
factual one. Nor was there anything to make service of notices upon a
minor ineffective. His Honour did ponder that if the child of tender years
was incapable comprehending the nature of such application the question
may arise whether a duty to facilitate an application rested on a state
delegate. His Honour noted it was unlikely children of such tender years
would be unaccompanied. With respect to His Honour, there have been children
as young as 8 unaccompanied in Australian detention. And further in this
matter it was noted by the tribunal that the applicant was unsophisticated
as one might imagine many children may be, particularly where their educational
opportunities may not have been as high as those of many in Australia.
There are no available statistics as to the literacy of these minors.
His Honour held:
my opinion, the role of the Minister as statutory guardian does not
affect his function as decision-maker in relation to the grant of visas
to non-citizen children. He is not their guardian for the purpose of
advancing applications for such visas or initiating reviews of decisions
made under such applications. The very conflict that would arise if
such a dual role were imposed on him indicates that it was not intended
by the legislation.
The Second Reading
Speech for the Immigration (Guardianship of Children) Bill 1946 reinforces
this view. The stated purpose of the Act was "... to enable the
Minister to act as legal guardian of all children who will be brought
to Australia in future as immigrants under the auspices of any governmental
or non-governmental migration organisation" (Parl Deb H of R 31.7.46
p 3369). Arrangements had been made prior to the enactment of the Act
that "...the Commonwealth Minister would be the legal guardian
of the children, and shall delegate his authority to the State departments"
(Parl Deb H of R p 4090). It is apparent that the Act did not contemplate
the possibility of unaccompanied minors making applications for visas
in circumstances which apply today."
With respect His
Honour's views that the Minister has no obligation in respect of assisting
the child applicant with visas is hard to fathom. In the Australian CROC
report section H, it was noted that the Immigration (Guardianship of
lent itself to a variety of situations, covering for example, the many
unattached refugee refugees who entered Australia after the fall of
Saigon and the evacuation of East Timor in 1975."
Surely, either the
Minister does have all the obligations of a guardian under section 6 of
the Act or alternatively there is a fall-back to State welfare departments
and their constitutional powers. Otherwise, Australia is seriously failing
in its obligations to such children. One must also question whether if
the "intention to reside permanently" which is part of the definition
of "non citizen children" relates to the intention of the child,
its parent or the Minister or some other government or welfare authority.
If this Act was never intended to apply in these circumstances, was it
intended to apply to these children ie asylum seekers.
His Honour concludes:
arrangements for the proper supervision of the welfare and protection
of unaccompanied minors seeking asylum seem to be somewhat inchoate
with a presently ill-defined role on the part of the Director of Community
Development notwithstanding that the current delegation has been in
place for nearly two years. Moreover there appears to be a significant
discrepancy between the guidelines published by the United Nations High
Commissioner on Refugees ("UNHCR") in respect of unaccompanied
minors seeking asylum and the current administration of the Migration
Act in relation to such persons."
His Honour referred
to the Guidelines and in particular regard to detention:
7.6 - children
should not be kept in detention;
7.7 - observance of article 37 CROC shortest possible time, not prison
like conditions and special arrangements for care not in isolated areas
away from community support and legal assistance; and
7.8 - right to education outside detention premises.
In regard to procedures:
8.1 - priority
to children's claims;
8.2 - possibility of appeal;
8.3 - representation by an adult who would protect his interest and
access to a legal representative;
8.4 - interviews by specially qualified and trained personnel taking
into account child's position; and
8.5 - ability to seek appeal expeditiously.
His Honour noted:
"The Act provides
little in the way of the kinds of protections contemplated by the UNHCR
guidelines. At the very least, there is a case for considering the provision
of legal advice and assistance to unaccompanied minors up to and including
the point of judicial review. It is of concern that the application
for judicial review in this case was lodged by a 15 year old non-citizen
and lodged out of time thus depriving him of such limited rights of
review as he would otherwise have enjoyed."
A concerning post
note to this case is that the child was initially rejected on grounds
of lack of credibility. It is not clear that the relevant decision-maker
has any specific training or applies any different criteria in assessing
the credibility of a minor. The issue of credit in this matter went directly
to nationality the tribunal not believing he was an Afghani national but
not being able to identify where the else he came from. Presumably, he
remains in detention awaiting deportment, legal limbo.
There are no specific
procedures for children either in respect of visa applications and reviews
or as to care whilst in detention. Minimum requirements for children's
applications should include;
(a) provision of
a guardian primarily concerned with the child's welfare if unaccompanied;
(b) provision of legal advice and assistance at all stages of the refugee
process whether accompanied or not (ie even if child's application is
attached to a parent's application);
(c) child friendly procedures with appropriately trained persons;
(d) child's best interest a primary consideration in decision making;
(e) child to have the ability to participate in procedure.
6. State Child
and Welfare Authorities
It is clear that
despite numerous recommendations, there is insufficient communication
with state welfare authorities and DIMA has been slow to reach MOUs with
the various state authorities. It is unclear whether State authorities
are notified of the presence of children and particularly unaccompanied
a senior legal officer with the Western Australian Department of Community
Development attended and gave evidence, which was not disputed, about
the implementation of the ministerial delegation. She said 'there are
at present two memoranda of understanding being negotiated between the
Department of Immigration and Multicultural Affairs ("DIMA")
and the Western Australian Department of Community Development in relation
to unaccompanied minors who are applicants for protection visas. One relates
to unaccompanied minors released into the community on temporary protection
visas. The other relates to children in detention centres and predominantly
concerns what she described as "child protection issues". By
that term she meant "...concerns expressed about the health, welfare
and safety of children in detention centres; for example allegations of
abuse". There had been an arrangement in place whereby DIMA advised
the Department of Community Development of the presence of unaccompanied
minors at the Curtin Detention Centre in Derby. That arrangement had ceased
at the instigation of DIMA in mid-May. The Department was still receiving
notification of the arrival unaccompanied minors at the Port Hedland Detention
Centre. Ms Gupta was unable to provide any information about whether any
system of reporting was in place to monitor the time spent by minors in
the detention centres. If a report were made to the Department about the
condition of a particular child in detention, the Department would make
contact with DIMA officers and make arrangements to assess the protection
issues in respect of the child. She was not aware of any role taken by
the Director or any officer of the Department in relation to applications
by unaccompanied minors for protection visas.
The various State
welfare agencies seem to restrict their view of involvement to notifications
received from DIMA or ACM. Presumably given the restriction of access
to legal advice it is unlikely many notifications would be received from
the refugee population in detention. DOCS should however have a role in
the overview of all detained children's welfare and a direct involvement
in the welfare of unaccompanied children for whom they have delegated
guardianship duties. Such arrangements should include making available
alternative arrangements for care and advocating for bridging visas for
unaccompanied children. There should be a requirement for the State authorities
to provide a report in respect of each child in detention as to whether
a bridging visa would be in the child's best interest.
The Minister announced
on 6 December 2001 that a MOU had been signed with the South Australian
Department of Human Services and states it is the first such agreement.
The press release states it covers child welfare and protection issues
and documents the procedures for identifying allegation of abuse or neglect.
Enquires with the SA Department of Human Services for a copy of the MOU
were met with the reply that it was a confidential document.
The recent case in
SA where the public advocate has been fighting the return to detention
of an 18 year old who is suffering from post traumatic stress as a result
both of events in his home country and his time in detention begs the
question of the role of the child's guardian before his 18th birthday.
Does the MOU cover neglect and abuse by detention conditions and the State's
obligations under UN conventions?
shall take all appropriate measures to promote physical and psychological
recovery and social reintegration of a child victim of: any form of
neglect, exploitation, or abuse; torture or any other form of cruel,
inhuman or degrading treatment or punishment; or armed conflicts. Such
recovery and reintegration shall take place in an environment, which
fosters the health, self-respect and dignity of the child.
The current SA Minister
appears to be taking a more proactive view. One wonders whether this will
result in more amendments to the Migration Act seeking to block
access this time to state welfare organisations.
7. Detention Standards
The provisions of
CROC apply regardless of a child's immigration status. These include:
(a) rights to development
(b) freedom of association (article15);
(c) alternative care if separated from family (article20);
(d) highest possible standard of health (artice24);
(e) periodic review of care (article 25);
(f) standard of living adequate for child's physical, mental moral and
social development (article27);
(g) education (article 28);
(h) rest and leisure (article 31); and
(i) appropriate measures for recovery from physical and psychological
trauma (article 39).
The UN guidelines
recommend segregation of children from non-related adults, the opportunity
to make regular contact with friends relatives religious social and legal
counsel and access to a complaints mechanism which should be advised.
DIMA has released
detention standards. There is little in the standards about specific standards
of care for children.
minors are detained under conditions which protect them from harmful
influences and which take account of the needs of their particular age
9.3 Infants and Young
9.3.1 The special
needs of babies and young children are met.
9.4.1 Social and
educational programs appropriate to the child's age and abilities are
available to all children in detention.
9.4.2 Detainees are responsible for the safety and care of their child(ren)
living in detention.
9.4.3 Where necessary, help and guidance in parenting skills is provided
by appropriately qualified personnel
There are no specific
provisions about the discipline or punishment of children or about the
use of restraints. There is a general reference to Australia's international
obligations in the introduction but none of the relevant instruments are
named. There is no reference to the principle of the best interests of
the child. There is nothing to require education provided be equivalent
to that received by non detainees. There is nothing in the standards to
provide for legal services or any specifics of the care of children. All
of the inspections carried out including the Flood report, the Ombudsman's
report and HEREOCs own enquires have indicated a failure to maintain even
these basic standards.
Most recently the
Social Services Minister for South Australia has indicated a report made
following an inspection by child protection officers at Easter 2002 has
led her to conclude conditions in Woomera are intolerable for children.
Of major concern
is the continued practice of detaining children along with non-family
Article 37 CROC
States Parties shall
(c) Every child
deprived of liberty shall be treated with humanity and respect for the
inherent dignity of the human person and in a manner which takes into
account the needs of persons of his or her age. In particular, every
child deprived of liberty shall be separated from adults unless it is
considered in the child's best interest not to do so and shall have
the right to maintain contact with his or her family through correspondence
and visits, save in exceptional circumstances.
DIMA should provide
separate facilities for families without separating children from their
DIMA's current alternative
detention scheme at Woomera suffers from a hostage mentality requiring
the women and children to leave behind a male relative to qualify for
the scheme. It is not necessary for such schemes to exclude fathers and
older brothers thus splitting families.
10. Bridging Visas
Children may be released
from detention on bridging visas pursuant to section 73 of the Migration
Act. The visas are not available to their parents unless they meet
one of the other exceptional criteria. Bridging Visas can be issued where
the requirements of Reg 20 are met. These provide for State welfare authorities
to certify that release from detention is in the best interest of the
child and the Minister to be satisfied that arrangements have been put
in place for the release of the child into the custody of an Australian
citizen, permanent resident or eligible New Zealand Citizen. The Minister
has to be satisfied that arrangements are in the best interest of the
child and not prejudice another person's rights to the child. It appears
DIMA has had a policy of not issuing the bridging visas ,hiding behind
arguments of the inability to find suitable placements.
The current statistics
provided by DIMA are that as at 1 February 2002 there were 363 children
in detention including 13 unaccompanied minors. This does not include
those kept in detention at Australia's behest in on Naru and Manus Island
for whom statistics are not provided. There are a further 9 unaccompanied
minors in alternate care under SA Department of Human Services and 1 minor
with a bridging visa, just one. DIMA has a policy of having unaccompanied
children cared for by other detainees in detention , claiming this to
be pursuant to the best interest principle.
Act should be amended to provide a presumption in favour of bridging
visas to all unaccompanied children. The class of persons to whose custody
they can be released should be amended to include holders of TPVs particularly
if related. The decision whether to issue such visa should be judicially
To make Bridging
Visas available to all children, the categories of persons who are eligible
to apply for such visas should include at least the family members of
visas granted to those unlawful entrants who establish refugee status
breach articles 31 and 34 of the Refugee Convention (providing that the
contracting State shall as far as possible facilitate the assimilation
and naturalisation of refugees), together with a number of articles from
CROC including being able to benefit from social security entitlements
without discrimination (article 26) and health services (article 24).
The three main complaints
against TPVs are:
(1) lack of certainty;
(2) lack of access to services and various limits on financial assistance;
(3) lack of family reunion rights.
It is argued by many
that the increase in child refugees in 1999 through 2002 was a direct
result of families who would have previously sought family reunion after
the father or eldest son had made the sea voyage having to risk themselves.
It may not be appropriate
in some cases for children travelling alone or with their mother to establish
the necessary fear of persecution to claim refugee status in their own
right. The International Covenant on Civil and Political Rights article
22(1) provides that the family is the natural and fundamental group unit
of society and as such is entitled to protection by society and the state.
The Guidelines on
Procedures and Criteria for Determining Refugee Status under the Convention,
Chapter VI - The Principle of Family Unity contains the recommendation
that the government takes the necessary measures for the protection of
the refugees family with a view to (at 182(1)) ensuring that the unity
of the refugee family is maintained particularly in cases where the head
of the household has fulfilled the necessary conditions for admission
to a particular country noting (at 186) that this principle also applies
where the family unit has been temporarily disrupted through the flight
of one or more of its members.
Of concern is that
children's applications do not appear to be dealt with in any way differently
from adults and in particular no regard is had to the child's best interest.
CCL is concerned
as to those intercepted at sea in Australian waters and denied the ability
to even make an application in Australia. When Australia removes refugees
to Pacific islands where DIMA can deny all responsibility and as a country
we lose accountability. It is almost impossible to even ascertain the
number of children in the 'Pacific solution', or the conditions in which
they are held. If there are children on the boats and they are refugees
in accordance with article 1 of the Refugees Convention we have certainly
not provided assistance in accessing the rights under CROC. A person's
status as a refugee is not dependant on a decision of DIMA. Australia
in effect seeks to excise parts of our nation not just for the purpose
of migration law but also for human rights obligations, a matter unlikely
to be referred to in any report by Australia to the UN. Noticeably our
last report as at January 2002 managed not to refer to TPVs or detention
let alone the 'Pacific solution'.
CCL deplores the
detention of children.
Detention of child
refugees, especially unaccompanied minors breaches Australia's obligations
under international law.
Minimum legal safeguards are denied. Children are denied access to legal
advice and effective access to the Courts.
The Government has
ignored numerous reports into the conditions of detention and sought to
reduce the powers of bodies such as HREOC and the Ombudsman with respect
Act 1958 has been subject to numerous amendments that move the Australian
legislative position further from international refugee law.
The Australian practice
of ratifying UN conventions without enacting them as domestic law is unsatisfactory
and casts doubt on Australia's commitment to human rights.
for guardianship of unaccompanied minors is dangerously flawed and there
is a clear conflict between the Minister's roles of guardian and in relation
to border protection policy.
There is no clear
procedure in place in respect of the state welfare authorities exercising
their delegated powers as guardian.
There has been only
one memorandum of understanding reached between DIMA and state welfare
departments (SA in December 2001). State welfare Departments have failed
to properly attend to the welfare of children in detention.
Act provides no special procedures for the making and dealing with
applications by minors in accordance with CROC.
No reference is made
by the Migration Act to the best interest of the child principle
either in regards to detention or applications (with the exception of
is made to Australia's human rights obligations in DIMA's detention standards.
No reference is made
by DIMA to the best interest of the child principle in regards to detention
standards are not sufficiently detailed in respect to the care of children.
schemes should not disrupt family unity.
Bridging visas should
be issued to all unaccompanied children and children with family members
in the community.
The bridging visa
scheme should be extended to all family members.
Children should not
be detained in the same complex as non-related adult males.
Children should always
be detained as close as possible to the residence of a close relative
in the community.
Visas should be abolished as they are discriminatory and cause distress
due to lack of certainty financial hardship and heartbreak due to lack
of family reunion rights.
Children should be
granted refugee status if a parent has established refugee status regardless
of whether they have arrived together.
Updated 9 January 2003.