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Submission to National Inquiry

into Children in Immigration Detention from

The International Commission

of Jurists, Australian Section

The International

Commission of Jurists is dedicated to the primacy, coherence and implementation

of international law and principles that advance human rights. Its aim

is to promote human rights through the rule of law by ensuring that developments

in international law adhere to human rights principles and that international

standards are implemented at the national level. The Commission was founded

in Berlin in 1952 and its members are jurists representing different legal

systems of the world. It is based in Geneva, and has a network of autonomous

national sections and affiliated organisations located in all continents.

The Australian Section

of the ICJ was established in 1952, and has branches in most of the Australian

States and Territories. The Section pursues the mandate of the ICJ by

monitoring and reporting on human rights in Australia and in this region,

to ensure compliance with the rule of law.

This submission draws

on the knowledge and experience of several members of the Australian section

of the ICJ who are familiar with the laws and policies applicable to asylum

seekers and to the conditions of detention. Its focus is on legal issues

rather than case studies.

Summary

of proposals

basic position

of ICJ

The position of the

ICJ is that there is no place in Australian law or practice for the non-appealable

detention of children solely on the basis of their arrival status. Such

detention is in clear violation of many international treaties to which

Australia is a party.

To justify this detention

on the basis that, as parents who have arrived without authorisation must

be detained, the children should remain with them, rather than being separated,

is a travesty, since adult detention is also incompatible with Australia's

international obligations.

In addition to being

contrary to accepted international standards, the detention of children

for lengthy periods exposes them to conditions and experiences which are

harmful to their health and well-being and may result in long term psychological

damage. It deprives them of their right to education, to health services

and to cultural activities , all of which are internationally protected

rights of children.

In summation, the

policies of the Australian government in placing children in detention

for long periods are in total disregard of international obligations,

and of the commitment which Australia has made to make the best interests

of the child a primary consideration and to ensure that every child enjoys,

without any discrimination, the right to such measures of protection as

are required by his status as a minor.

general obligations

The principle that

the best interests of the child shall be a primary consideration should

be incorporated into the relevant legislation, regulations and administrative

directives concerning the treatment of child asylum seekers; the provisions

of article 22 (1) of the Convention on the Rights of the Child should

be a legal obligations of the relevant authorities.

Steps should be taken

to ensure that children are able to put forward their own views and to

have those views considered before any decision is taken as to the status,

custody or care of that child by the State or its agencies, including

the managers of detention facilities.

detention and

release

After a reasonable

period for necessary screening (identity, health, etc), accompanied children

should be released into the community with their parent or parents. Where

appropriate, such release may place the family in the care of a responsible

individual or organisation, or be subject to reporting obligations.

After a reasonable

period for screening, unaccompanied children should be released into the

care of a responsible individual or organisation.

The processing of

claims of children under 18 and their accompanying families should be

given priority.

claims for refugee

status

The importance of

maintaining family unity as a measure of protection for children should

be adopted as a policy to guide decisions about detention and recognition

of refugee claims by children and their parents. The role and responsibility

of parents in the upbringing and development of their children should

be recognised in policy and in practice.

The claims of spouses

and dependent children of recognised refugees for refugee status should

be granted, whether or not they have travelled together to Australia,

in order to ensure protection of the family, and the rights of children

not to be separated from their parents.

Persons whose refugee

status has been recognised should be entitled to seek family reunion and

the applications of their parents or dependent children to enter Australia

for that purpose should be considered positively.

entitlements while

in detention

An independent Special

Visitor should be appointed to monitor the treatment of children in detention,

with unrestricted access to facilities, staff and detainees.

The responsibilities

of the Minister as guardian of children in detention should be clearly

defined and their implementation subject to scrutiny.

The welfare of children

in detention should be subject to the supervision of State and Territory

Welfare Departments.

Detention centres

should be located close to centres of habitation, and in an environment

comparable with that available to the Australian community.

Children in detention

should be entitled to a diet acceptable to their family, and to have their

meals prepared by their family. Cooking facilities should be made available

for this purpose.

ACM should be required

to ensure that child detainees have early and regular access to all necessary

medical and dental services, and that no artificial barriers are imposed

to restrict access to such services by children and their parents.

ACM should be required

to ensure that specialised trauma counselling services have access to

detention centres and that those children needing specialist medical attention

have access to such services when required.

The Department of

Immigration and ACM should provide safe and secure accommodation for unaccompanied

children, and ensure that they are not exposed to other detainees who

may be a danger to themselves or others.

Day release should

be available to children and their parents on a reasonable basis, eg for

medical or dental attention, for educational or vocations purposes, or

to participate in community activities, organised excursions.

English language

teaching should be provided as a priority to children in detention. Children

in detention should also have access to vocational training.

Teachers who educate

children in detention centres should be provided with adequate curriculum

support, and with appropriate resources and equipment to ensure that children

have equal and non-discriminatory access to educational opportunities.

Children who are

in detention (for more than 4 weeks) should be entitled to day release

to attend schools in the community where arrangements can be made for

that purpose.

Children in detention

should have access to play, games, sports and leisure facilities appropriate

to age, and with appropriate supervision on a daily basis. Equipment and

toys should be provided to put these children on an equal footing with

others in the community.

other issues

The Alternative Detention

Model proposed by the Refugee Council of Australia should be adopted and

implemented.

The alternative detention

program should be extended and should permit husbands and fathers to join

their families. Relocating detention facilities nearer to population centres

would enable greater use of this option.

Background

to inquiry

terms of reference

Under the terms

of reference, the Human Rights Commissioner will inquire into the adequacy

and appropriateness of Australia's treatment of child asylum seekers and

other children who are, or have been, held in immigration detention. It

will consider Australia's international human rights obligations regarding

child asylum seekers; mandatory detention of child asylum seekers and

alternatives to their detention; and the impact of laws, policies and

practice in regard to children in immigration detention or child asylum

seekers and refugees residing in the community after a period of detention

defining child

asylum seekers

Under the Convention

on the Rights of the Child, children are, for most purposes,[1]

those who are under 18.

Child asylum seekers

and refugees include unaccompanied minors as well as those who are with

a parent. They include babies born in detention in Australia.

Under the Convention

Relating to the Status of Refugees, 1951(the Refugee Convention) and the

1967 Protocol (Relating to the Status of Refugees) a refugee is a person

who "owing to a well-founded fear of being persecuted for reasons

of 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 being outside the country of his former habitual

residence as a result of such events, is unable or, owing to such fear,

is unwilling to return to it. [art 1]

These provisions

apply to children in the same way as to adults. A child who has a "well-founded

fear of being persecuted" for one of the stated reasons is a "refugee".

Children who hold refugee status cannot be forced to return to the country

of origin (non-refoulement).

Children who are

part of a family group on arrival are considered as part of the family

of the member who can establish refugee status. If the child does not

arrive with the relevant family member who is recognised as a refugee,

the claims of that child may be rejected.

right to seek

asylum

The right to seek

asylum is recognised by article 14 of the Universal Declaration of Human

Rights:

14 (1). Everyone

has the right to seek and to enjoy in other countries asylum from persecution.

(2.) This right

may not be invoked in the case of prosecutions genuinely arising from

non-political crimes or from acts contrary to the purposes and principles

of the United Nations.

General

human rights obligations towards children

child's best

interests must be a primary consideration

In accordance with

its obligations under article 3 of the Convention on the Rights of the

Child, Australia must make the best interests of the child a primary

consideration in all actions and decisions concerning that child:

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.

2. States Parties

undertake to ensure the child such protection and care as is necessary

for his or her well-being, taking into account the rights and duties

of his or her parents, legal guardians, or other individuals legally

responsible for him or her, and, to this end, shall take all appropriate

legislative and administrative measures.

The UNHCR advocates

the observance of CRC standards by all States, international agencies

and non-governmental organizations. The UNHCR Policy on Refugee Children

draws upon the Convention on the Rights of the Child by stating, in its

guiding principles, that, "In all actions taken concerning refugee

children, the human rights of the child, in particular his or her best

interests, are to be given primary consideration" (para. 26 (a)).

the Teoh principle

applies in Australia

In the Teoh

case, 1995, the High Court decided that when Australia ratified

the Convention on the Rights of the Child, this gave rise to a legitimate

expectation on the part of people in this country that government decision-makers

would exercise their discretion in matters affecting children in conformity

with that Convention, even in the absence of legislation to give effect

to it. [2] In that case, as there was no indication that

the best interests of the children were treated as a primary consideration.

there was a want of procedural fairness.

Legislation was introduced

almost at once to overrule the High Court and to make it clear that no

one should expect the government to honour treaty obligations in making

administrative decisions. The Bill lapsed, but is still pending. The effect

of Teoh may be short lived, and is in any event limited, as a procedural

guarantee. Nevertheless, until overruled, it should guide individual decisions

as well as the development of laws and policies.

Regrettably there

is little evidence that the Convention on the Rights of the Child and

the Teoh principle are considered in setting policies in regard to asylum

seekers.

Covenant obligations

Under the International

Covenant on Civil and Political Rights, article 24 (1), a child is entitled

to such measures of protection as 'are required by his status as a minor,

on the part of his family, society and the State. [3]

Measures of protection required of the State are not defined, but would

certainly extend to ensuring that the best interests of the child guide

decision making regarding that child.

obligations

towards child asylum seekers

The Convention on

the Rights of the Child provides that States have particular obligations

towards children who are seeking refugee status. Under article 22 (1),

States Parties are required to take appropriate measures to ensure that

a child who is seeking refugee status or who is considered a refugee shall

receive appropriate protection and humanitarian assistance in the enjoyment

of rights.

The HCR guidelines

on child refugees point out the special needs of children in this situation:

"Refugee

children face far greater dangers to their safety and well being than

the average child. The sudden and violent onset of emergencies, the

disruption of families and community structures as well as the acute

shortage of resources with which most refugees are confronted, deeply

affect the physical and psychological well being of refugee children.

It is a sad fact that infants and young children are often the earliest

and most frequent victims of violence, disease and malnutrition which

accompany population displacement and refugee outflows. In the aftermath

of emergencies and in the search for solutions, the separation of families

and familiar structures continue to affect adversely refugee children

of all ages. Thus, helping refugee children to meet their physical and

social needs often means providing support to their families and communities.

proposals

The Commission

should recommend that the principles of the Convention on the Rights

of the Child referred to should be incorporated into the relevant legislation,

regulations and administrative directives concerning the treatment of

chid asylum seekers.

Detention

of children incompatible with human rights standards

current laws

and policies

Australian law protects

people against unlawful detention by ensuring that a person who has been

detained can apply to a court to test the legality of the detention. In

the absence of any other specific provision, application can be made for

a writ of habeas corpus.

Under the Migration

Act, as amended in 1992, unauthorised asylum seekers who arrive without

a valid visa are defined as "designated persons" whose detention

is not subject to court review, other than to determine whether they fall

within the definition. To this mandatory detention regime was added a

system of temporary protection visas instead of permanent protection to

asylum seekers arriving in this way whose refugee status was later recognised

. The Border Protection laws of 2001 have restricted even more severely

the access of asylum seekers to Australian courts by excising external

territories from the application of migration laws.

asylum seeker

detention policy incompatible with Australia's international obligations

The Human Rights

Committee has determined that Australia's laws and policies on mandatory

detention of asylum seekers violate its obligations under article 9 of

the International Covenant on Civil and Political Rights. [4]

The Committee's view was that every decision to keep a person in detention

should be open to review periodically so that the grounds justifying the

detention can be assessed, and that the detention of an individual should

not continue beyond the period for which the State can provide appropriate

justification. Australia did not advance any grounds particular to the

author's case, which would justify his continued detention for a period

as long as four years. The Committee concluded that the author's detention

for a period of over four years was arbitrary within the meaning of article

9, paragraph 1.

As the court review

available to A was limited to a formal assessment of the self-evident

fact that he was indeed a "designated person" within the meaning

of the Migration Amendment Act, the Committee concluded that the author's

right, under article 9, paragraph 4, to have the lawfulness of his detention

reviewed by a court, was violated.

When the Human Rights

Committee reviewed Australia's report under the ICCPR in 2000, it expressed

its concern at Australia's rejection of its views in the A case,

indicating that it undermined Australia's recognition of the Committee's

competence under the Optional Protocol. It reiterated its concerns about

the mandatory detention of "unlawful non-citizens", including

asylum seekers, and about the policy of not informing the detainees of

their right to seek legal advice and of not allowing access of non-governmental

human rights organizations to the detainees in order to inform them of

this right. Australia was urged to reconsider these policies.

The position, which

is not accepted by the Australian government, is that mandatory detention

of asylum seekers extending beyond the period which can be justified for

legitimate purposes violates our obligations under the ICCPR.

Under article 24

(1) of the Covenant, a child is entitled to such measures of protection

as 'are required by his status as a minor, on the part of his family,

society and the State. This provision reinforces the prohibition on arbitrary

Such measures would certainly weigh heavily against the detention of a

child.

detention of

children violates the CRC

The provisions of

the ICCPR apply with equal force to the detention of child asylum seekers.

The mandatory detention of child asylum seekers also violates provisions

of the Convention on the Rights of the Child which are parallel to article

9 of the Covenant.:

CRC art 37 . .

. . . (b) 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;

(d) 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.

Mandatory detention

of child asylum seekers clearly violates these provisions for the reasons

outlined above.

detention of

children is discriminatory under CRC article 2

Detention of children

who are classified as 'unauthorised entrants' violates the anti-discrimination

provisions of international human rights treaties. Children who enter

Australia lawfully, with a visitors visa or otherwise and who then apply

for asylum are not subjected to detention. As the majority of children

have no choice as to the means by which they are brought to Australia,

this distinction violates article 2 of CRC. Paragraph (2) of article 2

requires States to ensure that children protected against all forms of

discrimination or punishment on the basis of the activities of the child's

parents, legal guardians, or family members.

The distinction men

tioned is also incompatible with article 2 (1) of CRC and with article

26 of the ICCPR in that it makes a distinction on the ground of these

children's status. Such a distinction is not reasonable or justifiable

in respect of children who had no freedom of choice as to how they came

to Australia.

detention of

children incompatible with accepted UN standards

The detention of

children is incompatible with two important instruments adopted by the

General Assembly. Under these widely accepted United Nations standards,

deprivation of the liberty of a juvenile should be a disposition of last

resort and for the minimum necessary period and should be limited to exceptional

cases. United Nations Rules for the Protection of Juveniles Deprived of

their Liberty (GA Res 45/113, 14 December 1990) article 2; United Nations

Standard Minimum Rules for the Administration of Juvenile Justice (the

Beijing Rules, GA Res 40/33 29 November 1985) article 19.

Under the Beijing

Rules, article 17.1 (c) deprivation of personal liberty shall not be imposed

unless the juvenile is adjudicated of a serious act involving violence

against another person or of persistence in offending and there is no

other appropriate response. The well-being of the juvenile shall be the

guiding factor in the consideration of the case (art 17.1 (d)). Detention

pending trial is a measure of last resort and for the shortest possible

period.

Clearly, the deprivation

of liberty for lengthy periods and in circumstances where there may have

been no offence committed whatsoever, is incompatible with the letter

and the spirit of these provisions.

detention may

be an improper penalty

Depending on the

circumstances of the case, the detention of child asylum seekers may also

be in violation of article 31 (1) of the Refugee Convention, which prohibits

the imposition of penalties on refugees on account of their illegal entry

or presence when they have come directly from a territory where their

life or freedoms were threatened.

proposals

It is submitted

that Australia's detention policies and practices applied to child asylum

seekers are incompatible with Australia's commitments under international

human rights treaties and the Convention on Refugees.

It is proposed

that after a reasonable period for necessary screening (identity, health,

etc), child asylum seekers who are accompanied should be released into

the community with their parent or parents. Where appropriate, such

release may place the family in the care of a responsible individual

or organisation, or be subject to reporting obligations.

After a reasonable

period for screening, unaccompanied child asylum seekers should be released

into the care of a responsible individual or organisation.

The processing

of claims of children under 18 and their accompanying families should

be given priority.

Arbitrary

separation of child from family violates standards

Both the Covenant

and the CRC include provisions requiring States to protect individuals

and children against arbitrary interference with the family. [5]

Article 23 (1) of the ICCPR provides that "the family is the natural

and fundamental group unit of society and is entitled to protection by

society and the State." Article 9 of the Convention on the Rights

of the Child, which requires States not to separate children from parents

unless that is in the best interests of the child. Article 18 requires

States to recognise the primary responsibility of parents for the upbringing

and development of the child, in accordance with their best interests.

States are called on to render assistance to parents in carrying out those

responsibilities.

It is incompatible

with these provisions for States to take action which arbitrarily separates

children from their parents and family members without justification,

eg, where family abuse of children requires that they be removed in their

best interests.

The provisions apply

even if the separation of the child from its parents is part of the enforcement

of immigration laws. In Winata v Australia, [6]

the Human Rights Committee found that the deportation of parents whose

child had been born in Australia and who had become an Australian citizen

was incompatible with articles 17, 23 and 24 of the Covenant. The Committee's

view was that in view of the length of time that had elapsed (13 years)

and the social relationships that had been developed by the child in Australia

[and the consequent hardship to the child of being forced to leave Australia],

it was incumbent on the State to demonstrate additional factors justifying

the removal of both parents that go beyond a simple enforcement of its

immigration law in order to avoid a characterisation of arbitrariness.

In that case, it was primarily the rights of the child which were put

in jeopardy by the threatened deportation of the parents.

The provisions protecting

the family and precluding arbitrary interference with the family are individual

rights which apply to child asylum seekers and to all persons under Australian

jurisdiction, whether or not they have a right to reside in Australia.

parental responsibility,

autonomy stripped,

The CRC , article

18 requires States to recognise the primary responsibility of parents

for the upbringing and development of the child, in accordance with their

best interests. States are called on to render assistance to parents in

carrying out those responsibilities. In practice, the system of detention,

and the limits on family reunion, mean that parents may be stripped of

their role and responsibilities, and be left with no control or input

whatsoever into important decisions concerning the future of their children,

such as those concerning education, diet, health, recreation. In the detention

conditions which prevail control over family life is taken away from detainees,

depriving children of the guidance of their parents in their upbringing

and development.

family protection

and detention

The obligation to

protect and support the family and to ensure that children are not removed

from their families, requires that children and their parents should be

released from detention unless there are special factors applicable, in

order to ensure that family protection is ensured and that the child is

neither detained nor deprived of family support.

assessment

practice incompatible with protection of family

Under current Australian

law and practice if family members who are unauthorised non-citizens do

not arrive in Australia together, their claims for asylum may be assessed

independently from each other. The result may be that the claims of a

wife or child of a recognised refugee may not be accepted, as their claim

is essentially bound up with the member of the family who is or has been

recognised. This policy may prolong the detention of a child or other

family members, and thus tend to perpetuate family separation, contrary

to human rights obligations.

temporary protection

visa policy incompatible with family reunion

The policy of granting

temporary protection visas with no right to sponsor family members has

the same effect. Children granted such visas are thus denied the opportunity

of family reunion. This is incompatible with the obligation under human

rights instruments to protect the family and contrary to article 10 of

the Convention on the Rights of the Child, which provides that applications

by a child or his or her parents to enter or leave a State Party for the

purpose of family reunification shall be dealt with by States Parties

in a positive, humane and expeditious manner.

proposals

The importance

of maintaining family unity as a measure of protection for children

should be adopted as a policy to guide decisions about detention and

recognition of refugee claims by children and their parents. The role

and responsibility of parents in the upbringing and development of their

children should be recognised in policy and in practice.

The claims of spouses

and dependent children of recognised refugees for refugee status should

be granted, whether or not they have travelled together to Australia,

in order to ensure protection of the family, and the rights of children

not to be separated from their parents.

Persons whose refugee

status has been recognised should be entitled to seek family reunion

and the applications of their parents or dependent children to enter

Australia for that purpose should be considered positively.

Personal

and family autonomy

participation

by children in decisions

The Convention states

in article 12(1) that a child has the right to express his or her views

freely in all matters concerning him or her, and to have appropriate weight

given to his views. Under article 12 (2) the child has the right to be

heard in any judicial or administrative proceedings affecting the child,

either directly, or through a representative or an appropriate body. This

right entitles child asylum seekers to participate in the hearing of their

claim to asylum "and to express their concerns" directly or

through their representative, parent or guardian. It extends to all decisions

concerning the treatment of the child while in the control of the State.

The purpose of this

provision is partly to ensure the developmental needs of the child, and

partly to ensure that the best possible decisions are taken.

proposals

Steps should be

taken to ensure that children are able to put forward their own views

and to have those views considered before any decision is taken as to

the status, custody or care of that child by the State or its agencies,

including the managers of detention facilities.

General

conditions of detention for child asylum seekers

relevant general

standards

The Convention on

the Rights of the Child includes several provisions relevant to the conditions

and treatment of children in detention: Article 19 (1): obliges the State

to protect the child from all forms of physical or mental violence, injury

or abuse, neglect or negligent treatment, maltreatment or exploitation,

including sexual abuse. Article 20, calls for special protection for children

who are temporarily or permanently deprived of their family. Article 22,

requires States to provide appropriate protection and humanitarian assistance

to children seeking refugee status in the enjoyment of applicable rights.

Under the ICCPR,

article 10 (1), all persons deprived of their liberty shall be treated

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

Under article 7, "no one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment."

The Convention Against

Torture has comparable provisions in article 2, which prohibits torture

and article 16 which precludes acts of cruel, inhuman or degrading treatment

or punishment.

The United Nations

Rules for the Protection of Juveniles Deprived of their Liberty (GA Res

45/113, 14 December 1990) sets out the minimum standards for the treatment

of juveniles in detention. These minimum standards apply to all persons

under the age of 18 and to all types of detention facility. Under these

rules, any deprivation of liberty should be effected in conditions and

circumstances which ensure respect for the human rights of juveniles (article

12). Juveniles in detention should be provided with meaningful activities

and programmes which would serve to promote and sustain their health and

self-respect (art 12). There are specific provisions, mentioned later,

covering such issues as education, health, recreation.

An important provision

of the UN Rules calls for juveniles to be allowed communication with the

outside world, to leave facilities for family visits and for educational

or vocational purposes (article 59 ff)

actual situation

Most immigration

detention centres are in remote areas subject to inhospitable landscape

and climate. For example, the Woomera Detention Centre is over 500 miles

from the nearest major urban centre in a semi-desert environment. Children

in that centre as in Curtin and Port Hedland have very limited access

to visitors from their own communities; moreover they are deprived of

seeing other children who would normally attend to visit other detainees

in the detention centre. Their access with non detainee children is very

limited.

The harsh environment

in Woomera, Curtin and Port Hedland means the children have no access

to playing n areas where there is shade, water and decorative plant live.

Therefore children, who spend significant amount of time in detention,

are being deprived of pleasant sensory stimulation for the natural environment.

This should be put

in the context of the children's experience in their country of origin

and their voyage to Australia. For example, a child fleeing persecution

in Afghanistan may have fled across inhospitable wastelands and mountainous

country to reach an urban centre in Pakistan. From Pakistan, they would

have been transported in a state of fear and dislocation to Indonesia

to be placed on a crowded vessel. Following arrival n Australia, they

are taken again into a desolate landscape. The only sight that such children

may experience for six to eight months, is harsh environment without any

aspect of flowers, small animals and hospitable environment for play.

Conditions in immigration

detention centres are not suitable for children as little appropriate

furniture or recreational equipment is provided for them. As there is

no adequate sleeping accommodation for toddlers, they are often forced

to sleep with older children or their parents. Living conditions in detention

centres are often overcrowded and tense and anxious. This is prevalent

in the initial screening process when asylum seekers are crowded together

in an area segregated from other detainees.

It is reported that

children also face difficulties in accessing food in immigration detention

centres. An example is that if small children do not want to eat at the

fixed mealtime, there is no provision for them to be fed outside set hours.

In addition, detainees do not have a fridge or access to food heating

equipment so that parents could feed their children at other times. This

becomes essential when children are ill.

In addition, food

is generally cooked by other detainees, not specialized kitchen staff.

Therefore, the dietary needs of children may be overlooked. One detainee

complained that his 18 month old child could not eat the food provided

at Villawood Detention Centre because it was very heavily spiced by the

Afghan detainee cook.

These conditions

of detention have a negative impact on the well being of children asylum

seekers and are n ot consistent with human rights obligations to provide

adequate standards of treatment and care for children.

proposals

Detention centres

should be located close to centres of habitation, and in an environment

comparable with that available to the Australian community.

Children in detention

should be entitled to a diet acceptable to their family, and to have

their meals prepared by their family. Cooking facilities should be made

available for this purpose.

All children in

detention should have access to play, games, sports and leisure facilities

appropriate to age, and with appropriate supervision on a daily basis.

Day release should

be available to children and their parents on a reasonable basis, eg

for medical or dental attention, for educational or vocations purposes,

or to participate in community activities, organised excursions.

Monitoring

of conditions and treatment of children in detention

situation and

standards

There is at present

no provision for the independent monitoring of conditions in detention

centres. The government has agreed to accept visits from a representative

of the UN High Commissioner for Human Rights and from the Committee on

Arbitrary Detention. These visits are not, however, an adequate substitute

for on-going supervision by an independent body established in Australia.

The UN Rules for

the Protection of Juveniles Deprived of their Liberty provide that there

should be independent inspectors appointed to conduct inspections on a

regular basis of facilities where juveniles are held in detention, and

with unrestricted access to all persons employed there and to the juveniles

(article 72 ff).

proposals

An independent

Special Visitor should be appointed to monitor the treatment of children

in detention, with unrestricted access to facilities, staff and detainees.

The welfare of

children in detention should be subject to the supervision of State

and Territory Welfare Departments.

The responsibilities

of the Minister as guardian of children in detention should be clearly

defined and their implementation subject to scrutiny.

Health,

including mental health, development and disability

relevant standards

Under article 24

(1) of the Convention on the Rights of the Child, States Parties recognize

the right of the child to the enjoyment of the highest attainable standard

of health and to facilities for the treatment of illness and rehabilitation

of health. States Parties shall strive to ensure that no child is deprived

of his or her right of access to such health care services. The remainder

of article 24 elaborates on this principle.

Article 12 of the

Covenant on Economic, Social and Cultural Rights requires States to recognize

the right of everyone to the enjoyment of the highest attainable standard

of physical and mental health. Steps to be taken to that end include creating

conditions which would assure to all medical service and medical attention

in the event of sickness. The UN Rules for the Protection of Juveniles

Deprived of their Liberty requires the provision of medical and health

care. (articles 49 ff).

All the rights outlined

are to be ensured on the basis of equality, without discrimination. That

means that, in principle, children who are detained must have access to

the same level of services as are available to the general community.

In the case of children, there can be no justifiable grounds for making

a distinction between those in asylum detention and other children.

actual situation

There have been frequent

reports that the health care of children in detention is constantly ignored

by ACM. In detention centres where there are a large number of families

in isolated areas such as Woomera and Curtin, there are no specialised

doctors available to provide for the care of children.

There is no ongoing

nursing or medical process to supervise children's physical and mental

well-being. This is essential in environments where children are traumatised

on arrival and witness traumatic incidents while in detention. They are

unwilling participants in disturbances in detention centres and often

are aware of hunger strikes and other attempts at self-harm. For many

older children, self-harm becomes a desperate call for assistance or recognition

of their plight. The lack of medical services must be seen in the context

of the lengthy periods of detention which many children experience.

There are numerous

specialist trauma torture counselling services in Australia which could

provide ongoing supervision of the mental health needs of children. In

addition, children may have specialist health complaints requiring a paediatrician's

care.

Unaccompanied minors,

who travel to Australia without family support, are in a particularly

vulnerable position. Their mental health and physical well-being is put

at risk soon after arrival when they are placed into solitary confinement.

There have been reports that this solitary confinement may last months.

Unaccompanied children

are often placed in maximum security areas of immigration detention centres

supposedly to protect them from sexual abuse or other forms of harm from

other detainees. However, these maximum security areas also house people

facing deportation and people at serious risk of self-harm. Exposing children

to such threatening and traumatic environments is contrary to ordinary

child welfare standards.

The negative effects

of detention on the physical and mental health of children is likely to

be compounded by a deterioration in the quality of parenting caused by

the same conditions and by the fact that parents are deprived of their

autonomy in carrying out their supervisory and caring functions. The longer

the detention the more adverse are the effects likely to be.

proposals

ACM should be required

to ensure that child detainees have early and regular access to medical

services, and that no artificial barriers are imposed to restrict access

to such services by children and their parents.

ACM should be required

to ensure that specialised trauma counselling services have access to

detention centres and that those children needing specialist medical

attention have access to such services when required.

The Department

of Immigration and ACM should provide safe and secure accommodation

for unaccompanied children, and ensure that they are not exposed to

other detainees who may be a danger to themselves or others.

Education

standards

The Convention on

the Rights of the Child, article 28, recognises the right of the child

to education on the basis of equal opportunity. Article 13 of the ICESCR

recognises the right of everyone to education; it is to be directed to

the full development of the human personality and the sense of its dignity,

and shall strengthen the respect for human rights and fundamental freedoms.

As in the case of

health, the right to education under both instruments is to be ensured

on the basis of equality, without discrimination. Under the Refugee Convention,

refugees must receive the "same treatment" as nationals in primary

education, and treatment at least as favourable as that given to non refugee

aliens in secondary education (art. 22).

Play, recreational

cultural and sporting activities are also guaranteed rights under the

Convention on the Rights of the Child, article 31, (and ICESCR art 15,

culture). The UN Rules for the Protection of Juveniles Deprived of their

Liberty provides that Juveniles should have the opportunity to continue

education or vocational training. (c) and should have materials for leisure

and recreation (articles 18 (b) and (d), 38, 42). They are entitled to

education outside the facility in community schools wherever possible

(art icle 38).

current situation

The Minister, IMIA,

was recently reported in the media as indicating that there is no curriculum

for children who are held in immigration detention. It is the experience

of many refugee lawyers attending detention centres that educational resources

are severely limited, if in existence at all. The Villawood Detention

Centre has one small classroom with a small bookcase of reading material.

There are very few picture books for children. There are limited toys

and the main playtime activity for children in detention centres is to

play sport either together or with adults. There seems to be very little

scope for children to undertake creative play.

There are few provisions

for English language training for children in detention centres. However,

there are many intensive English teachers available in Australia. There

are many teachers who could undertake to teach a small class of children

from a number of language groups. This should be made a priority for both

ACM and the Department of Immigration.

Because of the inhospitable

position of many detention centres and the difficulty of teaching children

under those conditions, it is rare that teachers retain these positions

for any period. Therefore, children are faced with a constant cycle of

changing teachers, and are unable to bond with them. This must disadvantage

the children and the children's educational abilities when they are eventually

released into the community. Teachers involved in the education of children

in detention have complained of the lack of resources and other matters.

It has been reported

that there have been offers made to the Department of Immigration and

to ACM for children to attend normal schools. For example, the Catholic

Education Office indicated that they would supervise the travel to and

from and their education at a local Catholic School at Port Hedland. Clearly,

children would have better education if they were able to attend regular

schools. However, neither the Department nor ACM were interested in taking

up this offer.

proposals

English language

teaching should be provided as a priority to children in detention.

Children in detention

should also have access to vocational training.

Teachers who educate

children in detention centres should be provided with adequate curriculum

support, and with appropriate resources and equipment to ensure that

children have equal and non-discriminatory access to educational opportunities.

Children who are

in detention (or more than 4 weeks) should be entitled to day release

to attend schools in the community where arrangements can be made for

that purpose.

Children in detention

should have access to play, games, sports and leisure facilities appropriate

to age, and with appropriate supervision on a daily basis. Equipment

and toys should be provided to put these children on an equal footing

with others in the community.

Culture

Articles 30 and 31

of the Convention on the Rights of the Child protect the child's right

to cultural identity and to participate in cultural activities. Important

aspects of this are to ensure that children in detention can use their

own language and become literate in that language and to ensure that cultural

and religious practices in which they and their families normally participate

can continue. The UN Rules for the Protection of Juveniles Deprived of

their Liberty also requires that provision be made for cultural activities

and for religious practice (articles 47, 48).

Children from minority

cultural groups in detention centres suffer disadvantages with problems

in maintaining language and cultural identity. For example, Tamil children

in immigration detention centres have very few people with whom they can

communicate freely and with whom they share a religion. It has been reported

that Tamils often feel very isolated in large detention centres such as

Port Hedland and Woomera and that young Tamil boys are at risk of self-harm

because of this.

security practices

in detention

The invasive nature

of security control by ACM impacts adversely on the well-being and growth

of children in immigration detention. It is normal practice that detainees

are called to muster at regular times of the day. This is done through

a loudspeaker system. children who are sleeping have their rest invaded.

Muster will occur when there is any security alert, therefore, children

may be woken in the middle of the night and forced to participate.

It is reported that

ACM staff regularly enter detainees rooms at night to check their whereabouts.

During such a process, young children sleeping with their family would

be disturbed and put into a fearful environment.

The visual aspect

of maximum security fences and razor wire is very disadvantageous to the

development of especially young children. Drawings completed by young

children often indicate that they portray people as bound by wire and

bleeding. This reflects their self-image while they are in detention,

and the effects of this could be long-lasting.

Alternative

detention programs

Under a pilot program

(under which bridging visas are granted?), a number of women and their

children are permitted to live the Woomera township while their husbands

remain in detention. This option is limited to people who are making their

first application to be refugees. It is understood that there is close

supervision of the families, and that the women may not move around the

town without being accompanied. The option appears to be limited to Woomera

because of the relative proximity of the detention centre to the town.

The ICJ supports the alternative detention model proposed by the Refugee

Council of Australia.

proposal

The Alternative

Detention Model proposed by the Refugee Council of Australia should

be adopted and implemented.

The alternative

detention program should be extended and should permit husbands and

fathers to join their families. Relocating detention facilities nearer

to population centres would enable greater use of this option.

Discriminatory

effects of the temporary protection visa

The temporary protection

visa is discriminatory in its application to children. Under this kind

of visa, which is of three years duration, there is no access to tertiary

education or to family reunion or to re-entry. There is no right of entry

for spouses, no access to settlement assistance, to Newstart, to English

lessons or to disability services.

The temporary protection

visa distinguishes between children who are classified as 'unauthorised

entrants' and those who enter Australia lawfully, with a visitors visa

or otherwise and who then apply for asylum . This kind of distinction

is discriminatory as regards children who had no choice as to the means

by which they are brought to Australia, and violates article 2 (2) of

CRC. Such a distinction is not reasonable or justifiable in respect of

children who had no freedom of choice as to how they came to Australia.

The

Pacific solution

Australia should

also accept responsibility for the human rights of children who have been

transferred by Australia to Manus or Nauru. For these children there is

even greater isolation than in Australia as there are no community agencies

to visit the centres and no support from the local community. There are

also health risks for children, who are mainly from temperate climates,

being exposed to malaria and other tropical diseases.

1. art

1: For the purposes of the present Convention, a child means every human

being below the age of eighteen years unless under the law applicable

to the child, majority is attained earlier.

2. Minister for Immigration and Ethnic Affairs v Ah Hin

Teoh, 1995 69 ALJR 423.

3. ICCPR art 24(1); see also articles 17, 23.

4. A v Australia 560/93, HRC 1997 Report, A/52/40, vol

II, p 125.

5. ICPR arts 17, 23; CRC, art 16.

6. Winata v Australia, 930/2000, decided 2001, a majority

decision.

Last

Updated 9 January 2003.