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Commission Website: National Inquiry into Children in Immigration Detention

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Submission to the National

Inquiry into Children in Immigration Detention from

United

Nations Association of Australia, Victoria Division


Australia is a signatory to a number of International

Conventions, which are relevant to mandatory detention of children in

Australia’s immigration detention centres. Under International law,

each of the conventions that Australia has ratified is binding on the

Australian state, which is obliged to bring its domestic laws into conformity

with their stipulations. In Australia, International Conventions do not

have legal force in domestic law, and cannot be directly applied by the

domestic courts in Australia, unless the Australian Parliament enacts

them into legislation.

This is not to say that the International conventions

ratified by Australia are without force in domestic law. It is established

precedent that courts interpreting domestic laws that are ambiguous should

favour an interpretation that accords with Australia’s international

law obligations. In this regard we refer to the decision of the majority

in the case of Teoh v Immigration and Ethnic Affairs, in which

the High Court of Australia held that, Australia’s ratification

of the Convention of the Rights of the Child creates a ‘legitimate

expectation’ that administrative decision makers would act in conformity

with the Convention and treat the ‘ best interests of the child’

as a primary consideration.

The practical significance of this however is that child

asylum seekers in Australia’s immigration centres cannot seek refuge

under international conventions as a direct source of rights in Australian

domestic law. However, as noted by the High Court in Teoh, binding

international obligations and other international standards are not of

no effect. They provide a set of universal standards to be adhered to

in the treatment of child asylum seekers. Mason CJ and Deane J in Teoh

interpreted the requirement that a child’s best interest be

a “primary consideration” as requiring a decision maker to

look “to the best interest of the children as a primary consideration,

asking whether the force of any other consideration outweighed it”.

Hence, the relevant question to be addressed by the Australian government,

in implementing its mandatory detention policy of unlawful non-citizen

children should be whether the mandatory detention of child asylum

seekers is in the child’s best interests? As the ensuing discussion

may highlight, Australia’s policy of mandatory detention of asylum

seekers violates most of the basic human rights and fundamental international

standards provided under the various Conventions, ratified by the Australian

state. Australia’s mandatory detention policy of unlawful non-citizens

has not been adopted by taking into account the ‘best interests’

of children in immigration detention as a primary consideration.

The Preamble of the Convention of the Rights of the

Child (‘CRC’) provides that children are bearers and

subjects of human rights and that the family is the fundamental group

unit of society, that children are best served living in supportive family

environments. It recognises a child’s vulnerability and the need

to special protection, when unaccompanied by an adult relative. In pursuance

of these objectives, the CRC creates a series of specific obligations

towards children, which must not be derogated by Australia with respect

to children within its’ territory. Among these obligations, Article

22 of the Convention states that all of the rights and obligations provided

for in the convention are to be enjoyed by children seeking asylum, without

any discrimination whatsoever.

Article 22 (1) of CRC provides comprehensive and special

protection for children who are refugees or who are seeking refugee status:

“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 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.”

This Article applies both to accompanied and unaccompanied minors and

provides that children are to receive appropriate protection and humanitarian

assistance in the enjoyment of applicable rights set forth in CRC

as well as other international human rights or humanitarian instruments

to which the said States are parties.

Article 22 of CRC explicitly includes Australia’s

obligations to asylum seeker children under the United Nations Convention

on the Status of Refugees (as amended by its 1967 Protocol) (‘Refugees

Convention’) [1] , International Covenant

on Economic, Social and Cultural Rights (ICESCR), International

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

and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (CAT)[3] . Australia must therefore

have an effective procedure to determine the validity of an asylum seeker

child’s claims, which provides protection for both unaccompanied

and accompanied minors. These procedures must take into account all rights

provided for in CRC, ICCPR, ICESCR, CAT and the Refugees

Convention.

As a State that has ratified the CRC, Australia

has a positive obligation to undertake “all appropriate legislative,

administrative, and other measures” to implement the rights recognised

in the CRC , when dealing with child asylum seekers. Not only

does this obligation bind Australia to undertake appropriate legislative,

administrative and other measures with respect to Article 22(1), but also

to all rights provided for in CRC. Not only must Australia provide

protection for children seeking refugee status, but in doing so it must

consider its other international human rights and humanitarian obligations

and must ensure that all rights in the CRC are guaranteed for asylum seeker

children within its territorial jurisdiction.

Article 20 of the CRC requires that children

who are temporarily or permanently deprived of their family environment

shall be entitled to special protection and assistance provided by the

State. This provision has direct application to unaccompanied minors in

immigration detention. Guideline 8 of the UNHCR Guidelines on Child

Asylum Seekers make provision for the needs of unaccompanied minors

seeking asylum, that they:

“should

be represented by an adult who is familiar with the child’s background

and who would protect his or her interests. Access should also be given

to a qualified legal representative.”

“The

interviews should be conducted by specially qualified and trained representative

of the refugees determination authority who will take into account the

special situation of unaccompanied children in order to carry out the

refugee states assessment…”

An unaccompanied minor is a person who is under 18 years

of age and intends to reside permanently in Australia but arrives in Australia

without his or her parents, and does not have parents in Australia. [5]

There are unaccompanied minors who arrive in Australia under the “off-shore”

humanitarian program (and are therefore known as unaccompanied humanitarian

minors). Then there are those who arrive in Australia either unlawfully,

or with some sort of temporary visa and subsequently apply for a Protection

visa, and seek settlement in Australia. An unaccompanied humanitarian

minor who arrives in Australia falls into two categories – ‘unattached

minor’ or ‘detached minor’. ‘Unattached minors’

do not arrive in Australia in the care of a ‘close adult relative’

[6] or have a ‘close adult relative’ in Australia

to care for them. Therefore, “unattached” unaccompanied humanitarian

minors become wards of the Minister for Immigration and Multicultural

Affairs under the provisions of the Immigration (Guardianship of Children)

Act 1946 (IGOC Act).[7] ‘Detached humanitarian

minors’ enter Australia with a close adult relative for the purpose

of living in Australia under the care of a close adult relative. The Minister

therefore has no legal responsibility for “detached” humanitarian

minors.

Generally, before any decision is made to grant any class

of visa to a minor, departmental officers (both “on-shore”

and “off-shore”) are expected to assess whether the minor

will fall within the IGOC Act, and if so, ensure that the relevant

State Territory child welfare agency has undertaken to accept responsibility

for the minor’s guardianship. Under the IGOC Act, the Minister

shall be the guardian of every ‘non-citizen child’ who arrives

in Australia. [8] Any child who arrives in Australia

as a non-citizen and is under 18 and intends to become a permanent resident

of Australia becomes a ward of the Minister pursuant to the IGOC Act.

[9] All unaccompanied minors remain under the guardianship

of the Minister until they turn 18, leave Australia permanently or become

an Australian citizen. Until such time, they remain to be wards of the

Minister.

If an unattached minor to whom the Minister owes guardianship

obligations arrive in Australia without any authorisation, that minor

becomes subject to mandatory detention. The IGOC Act applies

to an “unlawful non-citizen child” who also becomes a ward

of the Minister. However, he or she becomes subject to mandatory detention

as a result of his or her “unlawful” status. Under

Article 20 of the CRC, Australia owes an obligation to provide special

protection and assistance to all unaccompanied minors within

its jurisdiction (without discrimination of any kind, irrespective of

the child’s unlawful status (Article 2 (1) of CRC). Under Australian

immigration policy, an unlawful non-citizen child is subject

to detention while a lawful non-citizen child is able to enjoy

the “special protection” he or she is provided as a result

of being a ward of the Minister to the full extent possible. It can therefore

be argued that Australia is in breach of Article 20 in that it fails to

provide “special protection” to unlawful non-citizens.

By providing for lawful unaccompanied minors to enjoy the benefits associated

with being wards of the Minister and restricting that “special protection”

for unaccompanied minors who arrive in Australia unlawfully (and making

them subject to mandatory detention), Australia’s immigration policy

discriminates between lawful and unlawful unaccompanied minors within

its jurisdiction and therefore, is in contravention of Article 2(1) of

the CRC.

An underlying objective of international law relating

to children is the recognition of their special vulnerability and their

susceptibility to be permanently damaged by their childhood events. [11]

It has been considered by the UNHCR, that detention environments are undesirable

for vulnerable groups such as women, children and unaccompanied minors.

[12] Australia’s Migration Act 1958 (Cth)

requires that asylum seekers who arrive without valid authorisation are

“unlawful non-citizens ” [13] pursuant to

s189 of the Act and are therefore subject to mandatory detention. Such

“unlawful non-citizens’ are then required under the Migration

Act 1958 (Cth) [14], to be kept in immigration

detention until they are removed from Australia, deported or granted a

visa. The effects of children growing up in detention and the effects

of prolonged detention on their survival and development are a grave concern,

especially when one considers the substandard conditions and the frequently

reported violence in Australian detention centres.

It is considered that detention for purposes of establishing

the identity of an asylum seeker, or for security tests, is acceptable.

[15] ExCom Conclusion 44, states that detention of asylum

seekers is deemed necessary only to verify the identity of a

person, and determine the elements on which the claim for refugee status

or asylum is based, to deal with situations where asylum seekers have

destroyed their travel or identity documents to mislead the authorities

of the state in which they intend to claim asylum (i.e. Australia). Australia’s

detention of asylum seekers (including both accompanied and unaccompanied

minors) is mandatory and applies to all unauthorised arrivals until their

claims for protection are finally determined. It seems that Australia’s

present detention policy goes well beyond what ExComm Conclusion 44 deems

as necessary. The detention of persons (including children) for the entire

duration of a prolonged asylum procedure is not justified in whatever

circumstances. Australia’s system of mandatory detention has also

come under criticism by the Committee on the Rights of the Child, which

has expressed concern “about the treatment of asylum seekers and

refugees and their children, and their placement in detention centers.”

[16]

Australia’s mandatory detention policy is in clear

breach of Article 37(b) of CRC, which provides that “no child

shall be deprived of his or her liberty unlawfully or arbitrarily”.

Such arbitrary deprivation of liberty is also prohibited by Article 9(1)

of ICCPR, which guarantees that everyone has the right to ‘liberty’

and any deprivation of liberty must be on grounds and in accordance with

procedures established by law. However, the United Nations Human Rights

Committee has considered Australia’s policy of detaining unauthorised

arrivals in the case of A v Australia and concluded that the

policy was not in breach of the ICCPR. [17] However,

it is important to note that Article 37 (b) of CRC takes the prohibition

of arbitrary detention one step further than Article 9(1) of ICCPR

and requires that the detention of a child is to be used only as

a measure of last resort and for the shortest period of time.[18]

The recent Federal Court case of Jaffari v Minister for Immigration

and Multicultural Affairs (2001) FCA 1516 (26 October 2001), similarly

rejected the detention of minors. The Court further added that if children

are to be detained, they should be detained only as a last resort and

for the shortest appropriate period of time. It was held that while in

detention children should have the benefit of special arrangement which

are oriented towards “care; not “detention”. Prison-like

conditions must be avoided, and facilities “should not be located

in isolated areas where culturally appropriate community resources and

legal access may be unavailable.”

An assessment of the shortest appropriate period of time

is to be made in consideration of the ‘best interests’ of

the child as provided by Article 3 of CRC. By ratifying the CRC,

Australia has undertaken to ensure that where an administrative decision

is being made as to whether or not to arbitrarily detain a child, that

decision will be made in conformity with the Convention and the best interests

of the child will be a primary consideration. Australia’s regime

of mandatory detention (for adults and children both) which can sometimes

prolong for over periods of five years is in clear breach of Article 3

of CRC as it is clearly not in the best interests of a child.

Mandatory detention could also amount to a breach of

Article 22 of CRC, as it does not provide appropriate protection and

assistance for minors seeking asylum by upholding the rights enshrined

in the CRC. Children require a special measure of protection. In particular,

freedom from arbitrary detention is a fundamental human right and the

use of detention is in many instances, contrary to the norms and principles

of international law. [19]

Australian law does not allow individual circumstances

of detention of non-citizens and the reasonableness and appropriateness

of detaining individuals to be determined by courts. [20]

This in turn amounts to a breach of Article 37 (d) of CRC, which

provides that “every child deprived of his or her liberty has

a right to prompt access to legal and other appropriate assistance as

well as a right to challenge the legality of the deprivation of liberty

before a court or other competent, independent and impartial authority”.

[21] In the case of Chu Kheng Lim v Minister

for Immigration, Local Government and Ethnic Affairs [22]

it was held that domestic courts had no power to release asylum seekers

lawfully held in detention. Nevertheless, it should be borne in mind that

the current immigration laws are an improvement of the law in force at

the time Lim was decided. In any event, judicial review of detention

in Australia remains limited.

Under the Migration Act 1958 (Cth), children

in detention (including unaccompanied minors) are provided release for

a Bridging visa E, sub class 050 only on extremely restrictive criteria.

[23] An unlawful non-citizen child under 18 years of

age who comes within regulation 2.20 can be released from detention pending

consideration of an application to remain in Australia, where it is considered

to be in the ‘best interests’ of the child to be released

into the care of an Australian citizen, Australian permanent resident

or New Zealand citizen. The grant of such a visa should not prejudice

the rights and interests of a person who has custody, guardianship or

access to the non-citizen child. Further, a child welfare authority of

a State or Territory needs to certify that the release from detention

is in the best interests of the non-citizen child. [24]

Keeping in mind the principle of family unity (provided in the Preamble

of the CRC) and the best interests of the child, it should also be considered

whether the release of a child from detention (when his or her parents

or legal guardian remain in detention) is really an appropriate option

in light of the requirements of the CRC.

A child released from detention would be denied the protection

and assistance of his or her parents and would amount to a breach of Article

9(1) of CRC, which requires that states parties ensure that a

child shall not be separated from his or her parents against their will.

Not only does Australia subject those accompanied and unaccompanied children

to mandatory detention when they arrive at its shores unlawfully but it

permits the release of accompanied detainee children in a manner which

makes it effectively impractical and undesirable. In effect, , whether

a child is detained (with his or her parents) or is released to the community

(whilst the parents remain in detention), Australia remains to be in breach

of its obligations under the CRC.

In recent times there has been much media publicity about

sexual harassment allegations of children by other male detainees and

detention centre staff, suicide attempts and riots in detention centers.

The general environment in immigration detention centers and recurring

themes are overcrowding, frustrations from delays in processing and problems

associated with co-location of a large number of single males with families.

The distress in detainees is evident in the number of reports of self-harm,

suicide attempts and the damage to detention center equipment as well

as self-imposed hunger strikes and tensions between the different ethnic

groups. Children who live in detention environments are undoubtedly exposed

to these tensions. The reported incidents of violence inflicted on children

points to a clear breach of Article 37(c) of CRC, which requires

that every child deprived of his or her liberty be treated with humanity

and respect for the inherent dignity of the human person. [25]

A child’s psychological well-being during detention

is often threatened and incapacitated with many children being subject

to depression and anxiety. Children go about their daily lives being sad,

lacking in energy and being apathetic of their surroundings. It has been

concluded by psychologists that children in detention suffer from psychosomatic

symptoms of anxiety and are restless and have problems concentrating and

most often they are filled with memories of distressing events they have

experienced in their home country. A failure to treat torture or trauma

promptly and effectively in detention centers violates detainee children’

rights under Article 39 of CRC. A primary issue affecting the

welfare of children is the length of time spent in detention (until the

whole refugee determination process is completed). The attempted suicides,

hunger strikes, violence and sedation of detainees prior to being removed

affects children in whose presence it occurs and this has led to anxiety,

profound depression and helplessness which are common psychological states

in child detainees. Prolonged detention stifles a child’s development

and clearly hinders on the child’s right to survival and development

provided by Article 6 of CRC.

Children have a right to education and this right should

continue without interruption during detention. (Refer to Appendix 1 –

Recommendations on the Provision of Education to Children in Immigration

Detention Centres) Contrary to Australia’s obligations under Article

28 of the CRC, school attendance is not compulsory in immigration

detention centers. Article 28 requires that states parties recognise the

right of the child to education. State schools are unwilling to accept

asylum seeker children as government funding is not allocated to such

children. Further they have difficulty in integrating to mainstream community

activities such as schooling as a result of them being frequently referred

to as living “in jail.” [26] A failure to

provide an education which aims to develop respect for the child’s

cultural identity, language and values during detention further amounts

to a contravention of Article 29 of CRC. Limited access to education negatively

impacts upon a child’s development and ability to integrate and

also leads to a hindrance of a child’s right to survival and development

(Article 6(2)) of the CRC.

Further, a failure to provide a standard of living, which

ensures physical, mental and social development, in light of the abovementioned

conditions in detention, breaches Article 27 of CRC. Article

27 of CRC, requires Australia to take appropriate measures which

ensures a standard of living which is adequate for a child’ physical,

mental, spiritual, moral and social development. By taking measures to

ensure such a standard of living, Article 6 of CRC, which requires

states parties to ensure to the “maximum extent possible the survival

and development of the child” is also upheld. There have been further

concerns with respect to the lack of appropriate health standards in detention

centres and many writers have argued that these conditions are also in

contravention of Articles 24 and 31 of the CRC. [27]

The CRC’s protection extends to every

child within the jurisdiction of a State Party to the Convention. Article

2(1) of CRC requires that each child within the State’s

jurisdiction should be treated “without discrimination of any kind,

irrespective of the child’s or his or her parent’s or legal

guardian’s …status”. Further, Article 2(2)

states that children should be protected “against all forms of discrimination

or punishment on the basis of the status, activities, expressed opinions,

or beliefs of the child’s parents, legal guardians or family

members”.[28] Hence, a child should not be

penalised (as in the case of mandatory detention) due to exigencies of

the status of his or her family, expressed opinions (including political

opinion) or beliefs and decisions of his or her parents. As all children

within the Australian jurisdiction, asylum seeker children should not

be discriminated (and therefore be subject to mandatory detention) as

a result of either their or their parents’ and legal guardians’

unlawful non-citizen” status.

It is clearly evident from the above discussion that

Australia’s mandatory detention of unauthorised arrivals is in absolute

breach of its international human rights obligations, in particular the

CRC. Australia’s policy of mandatory detention and the

environment of the detention centres are in contravention of most of the

positive obligations imposed on the State by the Convention. There should

be a presumption against detention and detention should only take place

after a full consideration of all possible alternatives or when monitoring

mechanisms have been demonstrated not to have achieved their lawful and

legitimate purpose. [29] The UNHCR Guidelines pertaining

to the detention of asylum seekers provide various alternatives to detention.

It provides for an alternative for asylum seekers to live in mainstream

community as long as they comply with periodic reporting requirements

during the status determining procedures. [30] Alternatively,

asylum seekers could be released out of detention provided that they reside

at a specific address or within a particular administrative region until

their status has been determined. However, this alternative has potential

difficulties with respect to an individual’s choice of residence,

where proximity to work, relatives (especially in the event of family

reunification) could pose a problem. [31] A further

alternative is where asylum seekers would be required to provide a guarantor

who would be responsible for ensuring their attendance at official appointments

and hearings, failure of which would result in a penalty, most likely

the forfeiture of a sum of money, levied against the guarantor. [32]

Article 22 of the CRC offers wide protection

for asylum seeker children by providing for protection through a State’s

refugee determination process as well as the state’s other international

human rights and humanitarian obligations. It is important to note that

this submission does not conclude that detention per se is in breach of

Australia’s international obligations. Rather, it is the issue of

prolonged detention of children and families in Australia’s immigration

detention centres that needs to be addressed. The lengthy processing times

is a factor which results in prolonged detention of asylum seekers. Although

this submission does not consider alternatives to detention, a possible

suggestion to ameliorate the issue of prolonged detention could be that

the Australian Immigration procedures adopt a system, which requires character

and health checks of asylum seekers to be completed before a decision

is made on whether an applicant satisfies the relevant visa criteria to

be granted a Protection visa.

Further, the under Australia’s present immigration

system, Protection visas are granted on the basis that an applicant satisfies

the definition of a “refugee” as found in Article 1 of the

Refugees Convention. The broader humanitarian obligations provided

under the CAT, ICCPR or CRC are incorporated into Australia’s

refugee determination process only at the stage of ministerial intervention.

Therefore applicants who do not fall within the definition of

“refugee’ still go through this channel of applying for ‘refugee

status’ (and be rejected) before they can apply for Ministerial

Intervention pursuant to section 417 of the Migration Act 1958.

The lengthy processing times in such instances suggest that it could well

be three to four years before the claims of such an applicant who does

not come under the Refugees Convention (but falls within the

broader humanitarian obligations), would be heard. Under the present system,

even if a child clearly does not come within the refugee determination

process he or she needs to go through the refugee determination channel

to apply for Ministerial intervention. Once the Minister refuses, there

is no review right for a child asylum seeker applicant and therefore the

Migration Act 1958 (Cth), needs to be amended so that it incorporates

Australia’s wider humanitarian obligations as a separate ground

for protection, so that both child and adult asylum seekers could

access this ground in the first instance. It is perhaps time

to introduce a separate visa sub class dealing with ‘non-refugee

humanitarian obligations’ into the Migration Regulations,

which takes into consideration the Torture Convention, CRC and

the ICCPR. This in turn would result in shorter processing times

for those asylum seekers (and their children) or unaccompanied minors

whose broader humanitarian claims under CAT, ICCPR or CRC, being

heard at the primary level

As noted above, the area in Australia’s immigration

policy, which attracts most criticism in its mandatory detention policy.

The punitive treatment of unauthorised asylum seekers who become subject

to mandatory detention combined with the conditions in detention amounts

to a wide range of breaches of Australia’s CRC obligations.

Punishment is clearly at odds in an environment of children seeking asylum.

Through punitive measures such as mandatory detention, Australia tries

to curtail the increasing number of unauthorised asylum seekers. As Phillips

argues “detention objectifies the individual who is then used to

‘send a message’ back home that is rarely listened to by other

desperate people who continue to look for wards to find safety from danger.”

[33] In light of the extensive breaches of the CRC

and the effects of detention on children’s’ psychological

development, it is clearly evident that alternatives to detention need

to be considered and implemented.

Prepared by:

STUART J. WHITMAN & UDARA JAYASINGHE

Human Rights Committee

United Nations Association of Australia (Victoria Branch)

Appendix 1

Recommendations on the Provision of Education to Children in Immigration

Detention Centres

The Right to an Education – A National Commitment

In 1999 the 10th Ministerial Council of Education produced a Declaration

on National Goals for School in the Twenty-First Century (the Adelaide

Declaration). Through this document the State and Commonwealth governments

not only provide broad directions for schooling but also express a common

set of educational principles to which Australia is committed.

Article 3 of the Declaration commits Australia to schooling that is “socially

just”. It states explicitly under section 3.1 that, “student’

outcomes from schooling are free from the effects of negative forms of

discrimination based on sex, language, culture and ethnicity, religion

or disability; and of differences arising from students’ socio-economic

background or geographic location.”

While the Adelaide Declaration Preamble affirms that ‘each citizen’

develop ‘knowledge, skills and values for a productive and rewarding

life in an educated, just and open society’ it is arguable that

the Declaration’s commitment to anti-discrimination extends this

requirement to all minors under the care of the State regardless of citizenship

(refer to Immigration (Guardianship of Children) Act 1946 on pages 4-5

of this submission).

Article 26 (1) of the Universal Declaration of Human Rights establishes

the right to education for everyone while Article 26 (2) states that education

‘shall be directed to the full development of the human personality

and to the strengthening of respect for human rights…’ The

prison-like environment of the Immigration Detention Centres is not conducive

to producing an education that fully develops human personality or strengthens

respect for human rights.

American educationalist John Dewey argued against the military regimentation

of pupils. [34] A schooling environment that asserts

conformity in its pupils restricts an individual’s freedom to learn

and express themselves. Concerns about the psychological impact of the

long-term confinement of children in the Immigration Detention Centres

aside, the provision of schooling inside these regimented facilities is

unable to fulfil the needs of the children to “frame purposes, to

judge wisely, to evaluate desires by the consequences that will result

from acting upon them…[35] ” The restrictions

placed upon freedom of movement, judgment and expression in the Detention

Centres are directed toward social control and not the development of

self-control or self-awareness in the children. It is difficult to see

how Article 13 of the Convention on the Rights of the Child can be realised

in this kind of environment.

This article states that, “The child shall have the right to freedom

of expression; this right shall include freedom to seek, receive and impart

information and ideas of all kinds, regardless of frontiers, either orally,

in writing or in print, in the form of art, or through any other media

of the child's choice.” The ability to make choices is very important

in the development of human personality. It has increasingly become a

guiding value in teaching and learning methodology in Australian schools.

The student’s ability to make choices in his or her learning is

critical to engaging a student’s interest and developing effective

and independent learning skills through reflection. The capacity to make

informed choices and to express those choices is an integral human quality.

Paulo Freire refers to this as the process of ‘humanisation’.

[36] Human beings become responsible for their decisions

and are not treated as objects of decisions by those in power. [37]

Freedom, he argues, is the ‘indispensable condition’ required

for the realisation on one’s humanity. [38] The

curtailment of the freedoms of the children in detention with respect

to their education only serves to dehumanise them further in addition

to the psychological impact of their confinement.

The Human Rights Committee of the United Nations Association (Victoria

Division) is gravely concerned that the most fundamental right of children

to learning and personal development through self-expression is not being

met in the Immigration Detention Centres. These Centres are dehumanising

environments detrimental to the psychological health and growth of the

children. The provision of an anti-discriminatory, relevant and engaging

curriculum based on nationally agreed standards and taught by qualified

teachers supported with adequate resources will contribute to the skills,

self-esteem and dignity of the children. While it would not alleviate

all problems associated with detention, it would help to lessen the distress,

boredom and alienation of the children while in detention and meet Australia’s

international convention obligations. The Human Rights Committee of the

United Nations Association (Victoria Division) calls upon the appropriate

State and Commonwealth authorities to implement the following recommendations.

Recommendations

1) That minors in Immigration Detention Centres be afforded free and

equitable access to schooling as all children in Australia and that

this schooling be based upon the curriculum standards and framework

of the state within which they reside.

2) That emphasis is placed upon the development of literacy and numeracy

skills under a modified English as a Second Language program.

3) That children be given the opportunity for self-expression through

lessons in music, art and story-telling in their own language, empowered

to express their ideas through media of their choice.

4) That time is allocated for play, sport and games.

5) That this schooling shall take place externally to the Immigration

Detention Centre either using the facilities of a local school or community

centre.

6) That qualified teachers with expertise in ESL or multicultural education

undertake the lessons working in partnership with a number of suitably

qualified parents to act as teacher’s aides.

7) That the Ministerial Council on Education, Employment, Training and

youth Affairs (MCEETYA) establish a Taskforce on Education of Children

in Immigration Detention Centres to develop a national strategy to provide

effective and relevant education to minors detained in these centres

and to oversee the strategy’s implementation.

8) That this task be undertaken in consideration of Australia’s

international obligations under the Universal Declaration of Human Rights

and the Convention on the Rights of the Child, in the spirit of the

Adelaide Declaration on National Goals for School in the Twenty-First

Century and to incorporate the other recommendations of this submission.

1.

Australia ratified the Refugees Convention on 22 January 1954 and its

Optional Protocol on 13 December 1973. See http://www.unhcr.ch

2. Australia acceded to the ICCPR on 13 November 1980.

See http://www.unhcr.ch

3. Australia ratified CAT on 7 September 1989. See http://www.unhcr.ch

4. Article 4, CRC

5. DIMA, Procedures Advise Manual, division 12, LBC Legend

Series (in effect from 10/08/01)

6. A close adult relative is a grandparent, brother, sister,

uncle or aunt of the unaccompanied humanitarian minor

7. DIMA, Procedures Advice Manual at 12.2.5, LBC Legend

Series (in effect from 10/08/01)

8.

Section 6 of the IGOC Act 1946 as the guardian, the Minister has 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.

9. Section 4AA(1) states: “subject to subsections

(2) and (3), a person is a non-citizen child if the child: (a) has not

turned 18; and (b) enters Australia as a non-citizen; and (c) intends

or is intended, to become a permanent resident of Australia.

10. DIMA, Procedures Advice Manual, Part 1, Division

1.2 at 4.11.2, LBC Legend Series (in effect from 10/08/01)

11. see ‘Introduction – paragraph 1of the

UNHCR Guidelines on applicable Criteria and Standards relating to the

Detention of Asylum Seekers – found at

12. Ihttp://www.unhcr.ch/issues/asylum/guidasyl.htmbid

13. Migration Act 1958 s 14(1) states that a non citizen

in the migration zone who is not a lawful non-citizen is an unalwful non

citizen.

14. Section 196 of the Migration Act 1958

15. Guideline 3, “UNHCR’s Guidelines on Applicable

criteria and Standards relating to the Detention of Asylum Seekers.”

- found at http://www.unhcr.ch/issues/asylum/guidasyl.htm

16. CRC/C/15/Add.79 (10 October 1997)

17. Flood Phillip, “Report of Inquiry into Immigration

Detention Procedures” (February 2001) – commonly known as

the ‘Flood Report”,p 5

18. Article 37(b) of CRC has an equivalent provisions

in the Refugees Convention – Article 31(2) which prohibits the placing

of restrictions on the movement of refugees other than those necessary,

until a person’s status is regularised or they obtain admission

to another country.

19. see ‘Introduction – paragraph 1of the

UNHCR Guidelines on applicable Criteria and Standards relating to the

Detention of Asylum Seekers – found at http://www.unhcr.ch/issues/asylum/guidasyl.htm

20. Catholic Commission for Justice, Development and

Peace “Hordes or Human Beings?” Discussion Paper, 8 March

2000, p 19

21. Article 37(d) of CRC has equivalent content in Article

9(4) of ICCPR

22. (1993) 110 ALR 97

23. According to regulation 2.20, detainees can access

a Bridging Visa E (051) and be granted such a visa if an exceptional circumstance

exists and they: are under 18 years old (including unaccompanied minors)

and it is considered to be in their best interests; or are over 75 years

old; or have a medical condition which cannot be adequately treated in

detention; or are a spouse of an Australian citizen, see also s 73 of

the Migration Act 1958 (Cth)

24. Regulation 2.20 (5) of Migration Regulations 1994.

The relevant Child Welfare Authority in Victoria is the Department of

Human Services, - see X v Minister for Immigration and Multicultural Affairs

(1999) FCA 995 (23 July 1999)

25. Article 37 (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”

26. Tashkoff, Stephanie “Children as Asylum Seekers

in Australia, (December 2000) Rights Now, p 7

27. Ibid at 8

28. This non-discrimination provision is also mirrored

at Article 26 of ICCPR: “All persons are equal before the law and

are entitled without any discrimination to the equal protection of the

law. In this respect, the law shall prohibit any discrimination and guarantee

to all persons equal and effective protection against discrimination on

any ground such as race, color, sex, language, religion, political or

other opinion, national or social origin, property, birth or other status.”

29. Guideline 4, UNHCR guidelines on applicable criteria

and standards relating to the detention of Asylum Seekers (1997)

30. Ibid: “Alternatives to Detention”. An

NGO or community group could be expected to ensure that the asylum seeker

reports to the authorities periodically and complies with the status determination

procedures and keeps up with appointments

31. Ibid

32. Of course, when there is evidence to show that the

asylum seeker has criminal antecedents and affiliations, which are likely

to pose a risk to public order or national security, then detention may

be a reasonable option until the appropriate security checks are performed.

33. Phillips (Above n 80) p 301

34. John Dewey “Experience and Education”

Simon & Schuster New York 1938 p.61

35. Ibid 1938 p.64

36. Paulo Freire “Pedagogy of the Oppressed”

Continuum New York 1970 pp.25-26

37. Ibid 1970 pp.25-26

38. Ibid 1970 p.29

Last

Updated 14 July 2003.