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Submission to National Inquiry

into Children in Immigration Detention from

Mr Krishna Rajendra


Executive Summary

Article 3(1) of the

United Nations Convention on the Rights of the Child provides that

a child's best interests are to be a primary consideration in all actions

concerning them. The Australian system, whereby the guardian of unaccompanied

child asylum seekers is the Minister for Immigration and Multicultural

and Indigenous Affairs, rather than an authoritative, independent statutory

body, does not ensure that the requirements of article 3(1) are met. Broad

discretionary powers, limited review mechanisms and a general lack of

political independence undermine Australia's ability to meet its international

obligations.

Context

Under the Immigration

(Guardianship of Children) Act 1946 (Cth) (IGOC), the Minister

for Immigration and Multicultural and Indigenous Affairs ("the Minister")

is the custodian [1] of unaccompanied children . [2]

The Minister's duties

as guardian are regulated by IGOC. Section 6 provides that:

(1) A custodian

shall provide for the welfare and care of every non-

citizen child, of whom he is the custodian.

(2) The duties and obligations of a custodian in relation to any such

non-citizen child shall be… in pursuance of the Child Welfare laws

of the State in which the custodian is resident.

The Minister has

the power to delegate responsibilities relating to the welfare of unaccompanied

minors to relevant state authorities, and private enterprise as outlined

in memorandums of understanding. [3] At present, all

six operational detention centres in Australia are managed by the Department

of Immigration and Multicultural and Indigenous Affairs ("DIMIA")

and operated under contract by Australasian Correctional Management ("ACM").

[4] The performance of detention centre operators is

monitored by DIMIA in accordance with Immigration Detention Standards

("IDS").[5] Clause 9.2 of the IDS relates specifically

to unaccompanied minors. It reads:

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.

These domestic obligations

must be viewed within the context of international instruments, and in

particular the United Nations Convention on the Rights of The Child

("UNCROC" or "the Convention"). For all matters

not explicitly covered by the positive rights set out in the Convention,

[6] article 3(1) is the central tool with which to evaluate

the laws and practices of the States Parties. [7] Article

3(1) sets out a principled interpretative framework with which to consider

all actions concerning children.[8] It provides that:

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.

UNCROC is not part

of domestic law. However as a result of the High Court decision Minister

of State for Immigration and Ethnic Affairs v Ah Hin Teoh [9]

("Teoh"), unaccompanied children have a legitimate expectation

that administrative decision-makers will consider Australia's obligations

under UNCROC.

The "Best Interests"

Principle

Whilst UNCROC does

not define "best interests", at international law this concept

is not as indeterminate as some commentators believe. [10]

The flexibility which results from the provision that a child's best interests

are to be "a primary consideration" [11]

rather than "the primary consideration" (emphasis added)

suggests that what constitutes "best interests" must be considered

in the context of the Preamble and all positive rights in UNCROC.[12]

In Teoh, Chief Justice Mason and Justice Deane stated that a decision-maker

must engage in a calculation of relevant factors, basing the final assessment

upon whether any consideration outweighed the best interests of the child.

[13]

However, the Convention

does not indicate what priority competing rights should be accorded, which

factors are capable of overriding the best interests principle, or whether

external considerations are permissible. [14] Thus,

interpretive difficulties may arise when considering whether collective

interests outweigh the interests of an individual or whether article 3(1)

refers to long-term or short-term interests. [15]

Australia and

Article 3

The use of the term

"a primary consideration" rather than "the primary consideration"

in article 3 has had serious implications for the practical effectiveness

and legitimacy of "best interests". It enables other perceived

primary considerations such as national or economic interests to compete

as a relevant factor, [16] often to the detriment of

the best interests of a child . [17]

The utilitarian nature

of Australia's contemporary approach is demonstrated by the language of

the IDS [18], and encapsulated by the current Minister,

Philip Ruddock's statement, that:

What this government

[is] about [is] managing the Immigration Program so that it deliver[s]

outcomes that [are] in the best interest of all of us. [19]

Under article 3,

the Commonwealth is able to argue that the Australian interests outweigh

the best interests of unaccompanied children, regardless of international

opinion. [20]

Discretion

The IDS, which are

directed toward private operators, are the only domestic guidelines that

assist in the assessment of the best interests of a child. As recognised

by Justice Brennan:

[T]he best interests

approach depends upon the value system of the decision-maker. Absent

any rule or guideline, that approach simply creates an un-examinable

discretion in the repository of the power. [21]

Thus, in the absence

of comprehensive guidelines, the Minister is afforded considerable discretion

when determining the scope of "best interests". This lack of

guidance significantly undermines the ability of the Minister, or his

or her delegate, to accurately assess what is in the best interests of

a child, and thus undermines Australia's ability to meet its obligations

under UNCROC. Although the Commonwealth has established the Immigration

Detention Advisory Group ("IDAG"), this body focuses upon policy

and its recommendations are non-binding. [22]

Recommendation

1

That the Australian

government implement measures recognising the unique and vulnerable position

of unaccompanied minors, by:

  • The statutory

    implementation of UNCROC.

  • The development

    and publication of detailed guidelines (incorporating UNHCR guidelines)

    that set out the how the best interests of the child shall be determined

    and the procedures by which unaccompanied minors will be processed as

    asylum seekers.

  • The establishment

    of a statutory investigatory body that is responsible for ensuring compliance

    with guidelines and that has binding force.

Structural Impediments

A number of structural

impediments limit the Minister's ability to ensure that the "best

interests" of each child are met.

1. As at November

2001, the Minister was the guardian of 53 unaccompanied children.[23]

Due to the Minister's onerous workload, he cannot satisfactorily fulfil

his duties to each individual detainee.

2. Under the Migration

Act 1958 (Cth) ("the Migration Act"), DIMIA is responsible

for the apprehension, detention and deportation of unaccompanied children,

in addition to their care, placement and legal protection, and processing

of claims. Vesting all such administrative functions in the one body

creates tension between the child's best interests as a primary consideration

and other ministerial responsibilities.

3. The Minister's

ability to delegate his or her responsibilities to private enterprise

is problematic. Under contract, ACM is subject to a system of monetary

fines for "incidents" inside their camps. A common criticism

is that ACM treats the needs of detainees as a commercial rather than

humanitarian interest. [24] Private enterprise may

not be willing to act in the best interests of the child where this

compromises profit.

Recommendation

2

  • That the Minister

    be prevented, by enactment, from delegating his or her responsibilities

    as guardian to state governments or private enterprise.

  • Alternatively,

    that the role of guardian be transferred from the Minister to an independent

    body ("the body"). This would mitigate potential conflicts

    of interest and prevent politicisation of the refugee determination

    process. [25]

  • That each unaccompanied

    child be appointed an advocate (chosen by the body) responsible for

    ensuring that the child's individual best interests are a primary consideration.

    [26] A ratio of four children to one advocate would

    be appropriate.

Accountability

In order to ensure

that the requirements of the best interests principle are met, it must

be possible to call a decision-maker to account. Theoretically, in Australia,

detention services are subject to both administrative and judicial review

and full parliamentary scrutiny and accountability. In X v Minister

for Immigration and Multicultural Affairs [27] ,

Justice North held that section 6 of the Migration Act and section 39B(1A)(c)

of the Judiciary Act (1903) (Cth) conferred on the Court a jurisdiction

to supervise the Minister's functions. [28] However,

a number of factors indicate that the current system of accountability

in Australia undermines the operation of the best interests principle:

1. Ministerial

attempts have been made to avoid the supervisory functions under section

6 of IGOC by the use of legislative and procedural impediments. [29]

2. The grounds

for judicial review relating to the detention of unaccompanied minors

in Australia are limited. Courts lack the power to review the Minister's

discretion relating to detention of unaccompanied minors. [30]

3. Although various

investigative and advisory commissions [31] have visited

detention centres to investigate complaints and conduct inquiries, their

recommendations are not binding regardless of whether practices violate

the best interests principle.

4. The grounds

for administrative review are extremely limited. In the Administrative

Appeals Tribunal ("AAT"), merit review involves the assessment

only of whether the Minister has met statutory requirements [32]

. This process does not take into account the best interests of the

child as there is no statutory requirement that these are to be a primary

consideration.

Recommendation

3

  • That appropriate

    review mechanisms are established in order to ensure transparency and

    accountability.

  • That UNCROC is

    statutorily implemented and therefore the best interests of the child

    is a ground for review in the AAT.

Conclusion

Close examination

of the UNCROC and UNHCR guidelines reveal a number of flaws in the Australian

system. The current guardianship arrangements do not ensure that the best

interests of the child are a primary consideration in all actions concerning

them, as required by article 3(1) of UNCROC. In order to rectify the inadequacies

of the Australian system it is vital that the following recommendations

be considered:

  • That UNCROC be

    statutorily implemented.

  • That detailed

    guidelines be developed and published (incorporating UNHCR guidelines),

    setting out the how the best interests of the child shall be determined

    and the procedures by which unaccompanied minors will be processed as

    asylum seekers.

  • That a statutory

    investigatory body responsible for ensuring compliance with guidelines

    be established that has binding force.

  • That the Minister

    be prevented, by enactment, from delegating his or her responsibilities

    as guardian to state governments or private enterprise. Alternatively,

    that the role of guardian be transferred from the Minister to an independent

    body ("the body").

  • That each unaccompanied

    child be appointed an advocate (chosen by the body) responsible for

    ensuring that the child's individual best interests are a primary consideration.

    A ratio of four children to one advocate would be appropriate.

  • That appropriate

    review mechanisms are established in order to ensure transparency and

    accountability.

  • That the best

    interests of the child be a ground for review in the AAT.


Bibliography

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Equal Opportunity Commission (1999), Human Rights Brief - The Best Interests

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Parker, S. (1994),

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Minister of State

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X v Minister for

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A v Australia, Communication

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QwwBmetFMl_wwwwrwwwwwwwhFqA72ZR0gRfZNtFqrpGdBnqBAFqA72ZR0gRfZNcFqAt1omncoDn5Dzmxwwwwwww/opendoc.pdf]

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acc. 10 April, 2002.

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& Multicultural & Indigenous Affairs Website (2001), IDAG - The

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1.

For the purposes of this submission it will be assumed that the terms

'guardian' and 'custodian' are interchangeable.

2. See UNHCR Guidelines on Unaccompanied Children, para

3.1 [www.asylumsupport.info/publications/unhcr/1997.htm]. See also article

5 of UNCROC which defines "family" broadly. Article 20(1) of

the Convention states that unaccompanied children are entitled to "special

protection and assistance provided by the State".

3. Section 5, IGOC.

4. Human Rights and Equal Opportunity Commission (2000),

Immigration Detention Centre Guidelines [http://www.hreoc.gov.au/human_rights/asylum_seekers/index.html#idc_guid…],

acc. 4 April, 2002.

5. Department of Immigration & Indigenous & Multicultural

Affairs (2001), Fact Sheet 82. Immigration Detention, [http://www.immi.gov.au/facts/82detention.htm],

acc. 10 April, 2002.

6. For example: article 29.1(b), article 9.3, and article

12 of UNCROC. For further discussion see Human Rights and Equal Opportunity

Commission (1999), Human Rights Brief - The Best Interests of the Child,

Human Rights and Equal Opportunity Commission, Sydney. p. 3.

7. S. Parker (1994), 'The Best Interests of the Child

- Principles and Problems', International Journal of Law and the Family,

vol. 8. pp 26-7.

8. G. Van Bueren, (1995), The International Law on the

Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 46.

9. (1995) 183 CLR 273

10. See, for example, Stephen Parker's discussion of

indeterminacy in S. Parker, (1994), 'The Best Interests of the Child -

Principles and Problems', International Journal of Law and the Family,

vol. 8.

11. Article 3(1) UNCROC.

12. New South Wales Law Reform Commission (1997), Research

Report 7 - The Aboriginal Child Placement Principle, [http://www.agd.nsw.gov.au/lrc.nsf/pages/RR7CHP6],

acc. 5 April, 2002.

13. Human Rights and Equal Opportunity Commission (1999),

Human Rights Brief - The Best Interests of the Child, Human Rights and

Equal Opportunity Commission, Sydney. p. 2.

14. G. Van Bueren, (1995), The International Law on the

Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 48.

15. See, for example, S. Parker (1994), 'The Best Interests

of the Child - Principles and Problems', International Journal of Law

and the Family, vol. 8. p. 30.

16. G. Van Bueren, (1995), The International Law on the

Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 46.

17. A relevant example is Australia's reaction to the

Tampa incident.

18. The introduction of the IDS reads: "These standards

must be met in all circumstances except where it is demonstrated that

the security and good order of the detention facility would otherwise

be compromised." See Department of Immigration & Indigenous &

Multicultural Affairs (2001), Immigration Detention Standards: Principles

Underlying Care and Security [http://www.immi.gov.au/illegals/det_standards.htm],

acc. 10 April, 2002.

19. P. Ruddock, (1998), Australia's Immigration Policies

- An International Perspective, [http://www.minister.immi.gov.au/transcripts/transcripts00/taproom.htm],

acc. 7 April, 2002. (emphasis added)

20. For example, Minister Ruddock argues that the mandatory

detention of all asylum seekers is for their own protection. This language

implies that it is in their best interests. (see Law Institute of Victoria

(2002), All Unaccompanied Minors must be Released from Immigration Detention,

[http://www.liv.asn.au/news/media/20020125_aummbrfid.html], acc. 7 April,

2002.)

21. The Secretary, Department of Health and Community

Services v JWB and SMB FLC (1992) per Brennan J at 92-3.

22. Department of Immigration and Multicultural and Indigenous

Affairs (2001), IDAG - The Background [http://www.immi.gov.au/detention/idag/index.htm],

acc. 8 April 2002.

23. Refugee Council of Australia, (2001), Number of Children

and Adults in Detention as at November 20, 2001 [http://www.refugeecouncil.org.au/ngraphnoindetention.htm],

acc. 8 April 2002.

24. Joint Standing Committee on Foreign Affairs, Defence

and Trade (2001), A Report on Visits to Immigration Detention Centres

- chapter 6 [http://www.aph.gov.au/house/committee/jfadt/IDCVisits/IDCchap6.pdf],

acc. 8 April 2002.

25. European Council on Refugees and Exiles, (1999),

Guidelines on Fair and Efficient Procedures for Determining Refugee Status

[http://www.ecre.org/research/legalassistance/shtml], acc. 8 April 2002.

26. See, The Parliament of the Commonwealth of Australia

- Joint Standing Committee on Treaties (1998), United Nations Convention

on the Rights of the Child - 17th Report, Parliament of Australia, p.

27. 59.

28. (1999) 164 ALR 583.

29. X v Minister (1999) 164 ALR 583.

30. See, for example, Jaffari v Minister for Immigration

& Multicultural Affairs [2001] FCA 985.

31. A v Australia, Communication No. 560/1993 at 24;

Submission to the Senate Legal and Constitutional References Committee

inquiry into Australia's Refugee and Humanitarian Program. HREOC, [www.hreoc.gov.au]

acc 12 April 2002.

32. HREOC, IDAG and the Commonwealth Ombudsman; see section

15(1) Ombudsman Act 1976 (Cth) in relation to maladministration.

Last

Updated 9 January 2003.