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Submission to the National

Inquiry into Children in Immigration Detention from

the Office of the Tasmanian

Commissioner for Children


Dear Sir/Madam

Submissions to

National Inquiry into Children in Immigration Detention

As Commissioner for

Children in Tasmania, my Office is set up under Part 9 of the Children,

Young Persons and their Families Act 1997 ("the Act"). The

Act is informed by the United Nations Convention on the Rights of the

Child, and has been in operation in Tasmania since 1st July 2000.

This Office is uniquely

placed to independently assess the situation of children in Tasmania with

respect to their health, welfare, care, protection, education and development.

Our advocacy and advisory functions under the Act allow us to assess if

the rights of all children in Tasmania with respect to their health, welfare,

care, protection, development (and education where they are under the

custody or guardianship of the Secretary) are protected and promoted.

This includes children in Tasmania on refugee status, whether accompanied

or not.

Tasmania has shown

legislative and regulatory compliance with every Article of the Convention

on the Rights of the Child (the Convention), as shown in the Report

this Office submitted to the Committee on the Rights of the Child. Our

compliance is the first step, and effective implementation is the next.

Tasmania as a State can work together with HREOC to improve the situation

for all children in Australia. Tasmania aspires to be a leader in the

field of protecting and promoting children's rights, and with respect

to the treatment of refugees, Tasmania as a community has a commendable

record for providing a 'safe haven' for refugees in need. This was demonstrated

recently in our assistance of Kosovo refugees. We have shown support for

refugees and their children. This is a commitment shown by the entire

State, from the Premier down to the community. Such a position is unique

in Australia and we have a reputation we can justifiably be proud of,

and is one that we wish to maintain, especially with regard to children.

Should any children

be discharged from immigration detention to Tasmania, this Office would

strongly advocate that they be treated in strict accordance with the Convention

on the Rights of the Child, the Children, Young Persons and their Families

Act 1997 and all other relevant legislation in Tasmania, taking their

the best interests into account. This is the minimum we would expect,

given that we have now demonstrated

to the United Nations Human Rights Commission, Tasmania's legislative

and regulatory compliance with every article of the Convention.

This position is

supported by the Commissioner for Children's Consultative Council (CCCC),

consisting of children and youth from age 8 to 18 from various backgrounds

and cultures. The CCCC meets regularly to discuss current issues of interest

to them, and they advise the Commissioner on the position of children

and youth in Tasmania. Some of the views of the Council are as follows:

  • children in immigration

    detention should be treated properly and humanely;

  • they should be

    assisted in accordance with their right of being innocent until proven

    guilty;

  • they have not

    committed a crime to be detained;

  • unaccompanied

    minors appear to being punished for their parents matters;

  • children are treated

    as illegal immigrants which is unjust

These are also views

that this Office strongly advocates as it is a common law principle not

to detain those who are not suspected of committing a crime, or detaining

them and treating them as if they are guilty of a crime before they have

had the benefit of the due process of law. Proper procedures in accordance

with natural justice also appear to have been neglected for such children

in immigration detention. This country is committed to maintaining the

Rule of law, and this is not evident in the manner in which children (especially

unaccompanied minors) have been detained.

Policies and practices

affecting children in immigration detention, as well as those that govern

their discharge, should reflect the legal status of their not being 'prisoners'

convicted of criminal offences. They should instead be treated in accordance

with the Convention on the Rights of the Child, the Refugee

Convention and all other relevant international instruments that Australia

is a signatory to.

Best Interests

of the Child

Article 20(1) of

the Convention should be noted in particular. It states that:

A child temporarily

or permanently deprived of his or her family environment, or in whose

best interests cannot be allowed to remain in that environment, shall

be entitled to special protection and assistance provided by the State.

This Office advocates

that Article 20 is not restricted to children in the welfare system of

the States, but can be equally applicable to children in immigration detention,

as they are children deprived or their family environment. As such, they

are entitled to special protection and assistance, and should therefore

be treated accordingly. This is consistent with the concept of 'humane

governance'.

Furthermore, consistent

with Article 3 of the Convention on the Rights of the Child, this Office

strongly advocates that in all decision making processes relating to children

in immigration detention, their best interests be a primary consideration.

On their subsequent release into the community, whether they are accompanied

or not, their best interests with respect to their health, welfare, care,

protection, development and education must also be the paramount consideration.

We respectfully submit that the concept of 'humane governance' and consideration

of their best interests would require taking into account the reason that

they become refugees in the first place. Article 1(A)(2) of the Refugee

Convention is relevant in that it would be humane to give such children

the benefit of the doubt initially and consider that they undertook the

perilous journey to Australia on the grounds of:

… fear

of being persecuted for reasons for race, religion, nationality, membership

of a particular social group or political opinion, is outside the country

of his nationality and is unable, or owing to such fear, is unwilling

to avail himself of the protection of that country; or who, not having

a nationality and being outside the country of his formal habitual residence

as a result of such event, is unable or owing to such fear, is unwilling

to return to it.

It is our respectful

submission that the Department of Immigration and Multicultural Affairs,

and detention and control authorities take the above definition into account

in the formulation of policies and practices relating to refugee children.

We are concerned to ensure that practices and policies do not violate

the above Articles in Conventions and have instead the effect of scapegoating

and demonising them, whether deliberately (See evidence to the Senate

Inquiry on "The Children Overboard" allegations) or inadvertently.

Discrimination

Article 2 of the

Convention on the Rights of the Child deals with this issue, and once

again, Tasmania has the most advanced legislation in this area in the

Anti Discrimination Act 1997. This Office is also in a position

to appraise and assess any discriminatory practices or policies of Government

Departments or any other person and would refer the matter to the Anti

Discrimination Office in Tasmania. Any such discrimination could impact

on the child's health, welfare, care, protection and development and so

could also be the subject of advice to the Minister under the statutory

function of this Office. This would be especially important if it such

discriminatory conduct is not in keeping with how we would like to be

viewed as a nation that gives everyone a 'fair go'. It is our respectful

submission that it would be discriminatory to treat child refugees in

immigration detention less favourably than children in the general community.

Even children on remand in Australia for alleged criminal offences are

given recognition of their legal status of being treated as innocent until

proven guilty. As stated above, policies and practices need to reflect

these principles.

Participation

Article 12 of the

Convention requires that a child who is capable of forming his or her

own views have the right to express those views freely in matters that

affect them, and to have these views taken into account. This Office would

respectfully submit that the fact that children refugees have risked their

lives to leave their countries of birth should be taken as an expression

of their views and wishes to leave their home country for fear of being

persecuted to seek safe home here. Their views should be taken into account

to enable them to be active participants in control of their own future.

In particular, unaccompanied minors must be given this opportunity to

the full, given that they have no adults to seek advice from. Due weight

should be given to their age and maturity, and a humanitarian response

should be reflected in decisions that are made after such consultation.

The right to family

life

This Office advocates

that compliance with Article 5 of the Convention, in relation to unaccompanied

child refugees, would require consideration of whether it would be in

their best interests to be placed in foster care type arrangements whilst

they remain in Australia outside immigration detention. Appropriate arrangements

should then be made to ensure that the child's cultural identity remains

intact. Where the child refugee is accompanied by family members, keeping

them together out of detention should be a paramount consideration in

their best interests.

Yours sincerely,

Patmalar

Ambikapathy

Commissioner for Children

Last

Updated 9 January 2003.