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Submission to National Inquiry

into Children in Immigration Detention from

the Law Society of New South



The aim of this submission

is to inform HREOC, at the outset of its Inquiry, of the concerns held

about Children in Immigration in Detention, by members of the legal profession

in New South Wales. The focus of the submission is limited to the issue

of compliance with international and domestic legal obligations. Relevant

obligations are outlined, concerns are highlighted and finally, recommendations

to address those concerns are listed. The Law Society welcomes any future

opportunity to address any specific matters in greater detail at the request



The international

obligations imposed upon Australia in relation to this issue are derived

from various international treaties and the common law. The treaties are

not foreign documents drafted in distant lands with little relevance to

life in Australia. Rather, they reflect consensus principles of the international

community and are designed to be used as a benchmark of agreed minimum

standards. Where ratified by Australia those instruments are binding on

Australia in international law. Australia has undertaken to ensure that

the standards outlined in that treaty are applied to everyone in its territory,

and courts should interpret laws consistently with treaty provisions.

They will only create enforceable rights in Australia, however, where

they have been incorporated into Australian law (or in some cases by signing

the relevant Optional Protocol). The relevant instruments and rights outlined

within them include the following:

Convention on

the Rights of the Child, 1989 (CROC) [1]

  • Children should

    not be deprived of liberty unlawfully or arbitrarily and should only

    be detained as a matter of last resort and for shortest appropriate

    period of time (Article 37(b));

  • right to protection

    and care as necessary for well-being (Article 3(2));

  • right to prompt

    access to legal and other assistance and right to challenge their detention

    (Article 37(d));

  • right of all children

    within jurisdiction to enjoy all the rights of CROC without discrimination

    of any kind, regardless of nationality, immigration status or how the

    child arrived in Australia (Article 2);

  • the best interests

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

    (Article 3(1));

  • free expression

    of opinion in matter affecting the child (Article 12) and in particular,

    right to be heard in any judicial and administrative proceedings affecting

    the child … in a manner consistent with the procedural rules of

    national law (Article 12(2));

  • right to survival

    and development (Article 6(2));

  • child asylum seekers

    have right to receive appropriate protection and humanitarian assistance

    (Article 22(1);

  • children temporarily

    deprived of a family environment are entitled to the special protection

    and assistance of the State (Article 20);

  • right to a standard

    of living adequate for the child's physical, mental, spiritual, moral

    and social development (Article 27(1));

  • right to education

    and training (Articles 28 and 29), to privacy (Article 16), to rest,

    play and recreation facilities (Article 31);

  • right to the

    highest attainable standard of health and rehabilitation (Article 24)

    and to recover from abuse or violence (Article 39);

  • right to freedom

    negligent treatment, maltreatment or exploitation (Article 19).


Covenant on Civil and Political Rights, 1966 (ICCPR) [2]

  • children have

    the right to protection (Article 24).

  • right to liberty

    and freedom from arbitrary detention and right to challenge detention

    (Article 9);

  • right to be treated

    with humanity and respect for the inherent dignity of the human person

    (Article 10.1);

  • all persons to

    be equal before the courts and tribunals (Article 14.1);

  • right to freedom

    from torture or cruel, inhuman or degrading treatment or punishment

    (Article 7);from torture or cruel, inhuman or degrading treatment or

    punishment (Article 37(a)); and

  • protection from

    physical or mental violence, injury or abuse, neglect or


Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) [3]

  • right to highest

    attainable standard of physical and mental health (Article 12) and healthy

    development of the childe (Article 12(2)(a));

  • right to protection

    of the family (Article 10.1);

  • right to education

    (Article 13).

Convention Relating

to the Status of Refugees, 1951 (Refugee Convention) [4]

  • right to provision

    of public education for child asylum seekers, with same treatment as

    nationals with respect to primary education and as other non-nationals

    with respect to other education (Article 22);

  • prohibition against

    refoulment (Article 33(1))

Other relevant instruments

which operate in part to protect and uphold the rights of child asylum

seekers include: the Universal Declaration of Human Rights, 1948

(UNDHR); the Convention Against Torture and Other Cruel, Inhuman or

Degrading Punishment or Treatment, 1984 (CAT)[5]

; the International Convention for the Elimination of all Forms of

Racial Discrimination, 1965 (CERD)[6] ; the Convention

on the Elimination of All Forms of Discrimination Against Women, 1979

(CEDAW)[7] ; and various documents such as United Nations

High Commission Recommendation Guidelines, Notes and Policies [8]

which operate to provide a practical guide for ensuring compliance with

the standards set in the instruments above in respect of treatment of

children. Such documents are not binding on Australia as a matter of international

law but are persuasive in interpreting treaties and contain goals and

aspirations reflecting a consensus of world opinion.

In terms of the common

law interpretation of Australia's international obligations, the High

Court's decision in Teoh's case [9] gave rise

to a "legitimate expectation" that international instruments

would be considered in administrative decision making. [10]

In terms of Australia's

domestic obligations, the rule of law (granting all persons equal status

before the law) and the doctrine of separation of powers (allowing for

review by the judiciary of legislature and executive decisions) are called

into question by the current legislative regime, as are basic principles

of access to justice, presumption of innocence and free speech. More specifically,

the Minister for Immigration has certain responsibilities under the Immigration

(Guardianship of Children) Act 1946 (Cth).


The Law Society of

New South Wales has reason to believe and is concerned that:

1. Australia's

policy of mandatory and non-reviewable detention of unauthorised child

arrivals is unlawful and places Australia in breach of its international

and domestic legal obligations. [11] [12]

2. automatic mandatory

detention leads to prolonged detention.

3. unlimited detention

of asylum seekers is likely to cause further trauma to these vulnerable


4. child asylum

seekers in detention are being incarcerated despite having not been

arrested or charged with any criminal offence. [13]

5. access is being

denied to persons wishing to observe or monitor detention centre operations

or to assist asylum seekers in the migration application process.

6. the geographical

isolation of detention centres such as Woomera, Port Hedland and Curtin

results in lack of services and community interaction for asylum seekers.

7. children are

inflicting self-harm such as lip-sewing, slashing, shampoo ingestion,

attempted hanging and threats of self-hurt including suicide. [14]

8. access to education

and schooling is insufficient and inappropriate. [15]

9. detention facilities

are overcrowded and otherwise inappropriate with insufficient privacy

or recreational activities and restricted areas for movement. [16]

10. the independence

of the Refugee Review Tribunal cannot be maintained with the practice

of six-monthly 'performance reviews' of tribunal members based on remittal

rates and of appointing members on one year, renewable terms.

11. the so-called

"Pacific Solution" (introduced in August 2001) of detaining

asylum seekers (including children) on arrival or intercepting and removing

them to third countries such as Nauru and Papua New Guinea where their

asylum claims are to be determined is costly, ineffective and in breach

of Australia's legal obligations. [17]

Further, the Law

Society is concerned that it prevents independent observers and lawyers

having access to detention centres and prevents asylum seekers from having

access to appropriate health, education and other services.


In order to bring

Australia into line with its international and domestic obligations in

respect of child asylum seekers, the Law Society of New South Wales recommends


1. a humanitarian

approach be adopted in determining the status of child asylum seekers

including swift and fair processing of applications.

2. access be granted

to asylum seekers (including children and/or their parents or guardians)

to migration, legal and welfare information as well as legal advice and

representation. Measures may include, for example:

a) the assignment

of a case worker to asylum seekers who can assess their legal, health,

educational and other needs and provide support and assistance throughout

the processing of their application;

b) on-site medical staff, legal advisers and interpreters for asylum

seekers to access as necessary; and

c) the provision of an information booklet to asylum seekers (in clearly

comprehensible and relevant first language) which outlines the visa

application process and legal rights;

3. child asylum seekers

be given the same access to welfare services (health, education, accommodation)

as Australian children.

4. remote detention

centres be relocated to be closer to (and a part of) the community which

would allow for easier access to various services and supports systems.

5. there be greater

transparency and monitoring of detention centres, including access being

granted to independent persons with a legitimate interest, including legal


6. allowance be made

for independent federal judicial review of Refugee Review Tribunal, Migration

Review Tribunal and Administrative Appeals Tribunal decisions under the

Migration Act 1958 (Cth) and to this end privative clauses in relation

to judicial review of migration decisions be removed. [18]

7. an independent

and properly resourced Refugee Review Tribunal be maintained.

8. Australia should

take guidance from and seek to utilise the various international instruments

and documents referred to above as a practical way of ensuring compliance

with its international obligations in respect of child asylum seekers.


Relative to other

European and North American countries Australia receives very few asylum

seekers. [19] Australia's policy of mandatory detention

(of asylum seekers until determination of application) is inconsistent

with most other Western democracies which detain only for limited purposes

of health, character and identity checks and for a maximum of 2-4 weeks.[20]

The price Australia is paying by adopting this approach is international

condemnation for the disregard shown of internationally recognised standards.

The NSW Law Society

is concerned that Australia's international and domestic obligations are

not being met or considered by the Federal Government in the current handling

of children in detention centres. As a responsible international citizen,

Australia needs to comply with its international obligations in respect

of refugees. Domestically, Australia needs to ensure access to justice

(including the provision of legal information, advice and representation)

to those who need it most.

1. 191

countries have ratified the Convention and Australia did so on 17 December

1990. Australia has not signed the first optional protocol (on the involvement

of children in armed conflict) but did sign the second optional protocol

(on the sale of children and child prostitution and pornography) on 18

December 2001. Although not legally binding, the Convention is incorporated

in federal law as part of the human rights responsibilities of HREOC.

CROC affirms some of the most basic principles of children's rights, including

the provision of health care, housing, social security, education, and

protection from neglect, cruelty and exploitation.

2. Australia signed the ICCPR on 18 December 1972 and

ratified in 1980. Australia signed the first optional protocol to the

ICCPR (which recognised the jurisdiction of the UN Human Rights Committee

to receive and consider complaints from individuals about violations of

rights set out in the Convention by a State Party) on 25 September 1991

and the second optional protocol (which aims to abolish the death penalty)

on 2 October 1990.

3. Australia ratified the ICESCR on 10 December 1975.

4. Australia ratified the Refugee Convention on 22 January

1954 and acceded to the Protocol Relating to the Status of Refugees, 1967

on 13 December 1973.

5. Australia ratified CAT on 8 August 1989.

6. Australia ratified CERD on 30 September 1975.

7. Australia ratified CEDAW on 28 July 1983. It has not

signed the Optional Protocol to CEDAW which would allow the Committee

on the Elimination of Discrimination Against Women to receive and consider


8. These include: UNHCR (1988), Guidelines on Refugee

Children; UNHCR (1994) Refugee Children: Guidelines on Protection and

Care; UNHCR (1997) Guidelines on Policies and Procedures in dealing with

Unaccompanied Children Seeking Asylum; UNHCR (1999) Revised Guidelines

on applicable Criteria and Standards relating to the Detention of Asylum-Seekers;

Save the Children/UNHCR (2000), "Statement of Good Practice"

of the Separated Children in Europe Programme.

9. Minister of State for Immigration and Ethnic Affairs

v Teoh (1995) 183 CLR 273.

10. The decision of the High Court in Project Blue Sky

Inc and ors v Australian Broadcasting Authority (1998) 194 CLR 355 went

further to impose a legal obligation to take into account and apply international

instruments to which Australia is a party in circumstances where the governing

legislation makes even indirect reference to international instruments.

In that case, s160(d) of the Broadcasting Services Act 1992 (Cth) required

the ABA to perform its functions in a manner consistent with 'Australia's

obligations under any convention to which Australia is a party or any

agreement between Australia and a foreign country.'

11. A similar conclusion was reached in the HREOC report,

"For those who've come across the seas", May 1998.

12. Recent amendments to the Migration Act, 1958 (Cth)

operate so as to place Australia in breach of its legal obligations including

the restriction of judicial review (and thereby infringing separation

of powers doctrine) and the restriction of asylum seekers' access to justice.

13. As at 1 February 2002 DIMIA reported that there were

365 minors, including 13 unaccompanied minors, held in detention centres

and 9 unaccompanied minors in alternate care of the South Australian Department

of Human Services provided through Family and Youth Services. There is

also one unaccompanied minor issued with a bridging visa who has been

placed in foster care arrangements in the community.

14. Media Statement by President Professor Alice Tay

AM and Dr Sev Ozdowski, Human Rights Commissioner OAM, 6 February 2002.

15. Tay and Ozdowski Media Statement, supra n12.

16. HREOC report, "For those who've come across

the seas", May 1998.

17. Amnesty International Secretary General, Irene Khan,

said that diverting boatloads of people in this way "in exchange

for huge sums of money perpetuated the very trafficking of human misery

that the Australian Government claims it is seeking to prevent."

The Age, 5 March 2002. Democrats leader Natasha Stott-Despoja also commented

that "the 'solution' would not reduce asylum seeker numbers but would

cost hundreds of millions of dollars and make it harder for refugees to

settle in the community." in "Watchdog calls for time on new

laws" 24 September 2001. Similarly, former Law Council President

Anne Trimmer opposed the combined effect of the legislative package saying

they "substantially cut the rights of asylum seekers to have access

to our legal system to establish a claim as a refugee" and pointing

out that "Rights of judicial review for this category of decisions

are already very restricted." Ms Trimmer said "Australia voluntarily

accepted this obligation when it ratified the Refugee Convention and made

it part of our law. Any person within the territory of Australia, whether

an unauthorised arrival or not, must have a right of access to the courts,

in particular to have decisions of government officials which affect their

rights reviewed by the courts." in "Law Council Opposed to Migration

Legislation", 19 September 2001.

18. See Law Council of Australia's policy on Post Border

Protection Legislation.

19. UNHCR "Asylum Trends in Europe, North America,

Australia and New Zealand January-March 2002" 25 April 2002, Population

Data Unit UNHCR Geneva

20. See the Refugee Council of Australia's summary of

The Detention of Asylum Seekers in Europe Procedures


Updated 9 January 2003.