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Submission to the National

Inquiry into Children in Immigration Detention from

the NSW Council for Civil

Liberties


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

Child (CROC)

2. Relevant conventions and

domestic law

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)

Migration Regulations

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

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.

Mandatory detention

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"):

Article 37

(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.

Article 3

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.

Legal Safeguards

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

provides:

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

not lawful.

And again more particularly

with a child, Article 37 of the UN Convention Rights of the Child

("CROC"):

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.

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.

The Migration

Act:

196 Period of

detention

(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.

And further:

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.

193 Application

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.

(3) If:

(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

Article 22

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.

Article 42

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.

5. Guardianship

The guardian appointed

under Australian law for unaccompanied children is the Minister for immigration

under the Immigration (Guardianship of Children act 1946.

6. Guardianship

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 [2001] 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:

"… in

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

Children) Act

"… has

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:

"… that

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

children.

In Jaffari,

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?

Article 39

States Parties

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

(article 6);

(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.

9.2 Unaccompanied

Minors

9.2.1 Unaccompanied

minors are detained under conditions which protect them from harmful

influences and which take account of the needs of their particular age

and gender

9.3 Infants and Young

Children

9.3.1 The special

needs of babies and young children are met.

9.4 Children

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

adult males.

Article 37 CROC

States Parties shall

ensure that:

(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

parents.

9. Alternative

Detention Scheme

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.

The Migration

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

reviewable.

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

children.

11. Temporary

Protection Visas

Temporary protection

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;

and

(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.

12. Visas

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.

13. Interception

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'.

14 Conclusions

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

to detainees.

The Migration

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.

The arrangements

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.

The Migration

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

bridging visas).

Insufficient reference

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.

DIMA's detention

standards are not sufficiently detailed in respect to the care of children.

Alternative detention

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.

Temporary Protection

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.

Last

Updated 9 January 2003.