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Submission to the National

Inquiry into Children in Immigration Detention from

the Beijing Committee - Western

Australian Chapter

A Joint Committee of the International

Commission of Jurists WA Chapter and Women Lawyers Inc WA


About The Beijing Committee

- WA Chapter

1. In Beijing in

1995 the Australian government was one of 73 governments that made commitments

for national action during their plenary speeches at the Beijing Conference.

The Western Australian

chapter of the Beijing Committee is a joint initiative of the West Australian

chapter of the International Commission of Jurists and Women Lawyers Inc

(WA). It is chaired by Penelope Giles from Wickham Chambers, and is constituted

by District Court Judge Mary Ann Yeats, lawyers Anna Liscia, Gregory McIntyre,

Alisdair Putt and Megan Hoey, and Alison Gaines from the Law Society of

Western Australia.

The Committee aims

to monitor the implementation, by the State government, of the Beijing

Declaration, which has since become the benchmark by which various governments'

records on women and human rights has been measured.

Its current projects

concern the detention of women and children refugees in West Australian

camps, the effectiveness of stalking legislation, and the level of protection

extended to Western Australian residents with respect to female genital

mutilation.

The Fourth World Conference

on Women Beijing Declaration

2. We attach a copy

of the Fourth World Conference on Women Beijing Declaration for your reference.

In particular we refer to Article 8 where Australia affirmed its commitment

to:

The equal rights

and inherent human dignity of women and men and other purposes and principles

enshrined in the Charter of the United Nations, to the Universal Declaration

of Human Rights and other international human rights instruments, in

particular the Convention on the Elimination of All Forms of Discrimination

Against Women and the Convention on the Rights of the Child, as well

as the Declaration on the Elimination of Violence Against Women and

the Declaration on the Right to Development.

Among our commitments

as a nation, we have pledged to ensure the full implementation of the

human rights of women and of the girl child as an inalienable, integral

and indivisible part of all human rights and fundamental freedoms (Article

9). We have bound ourselves to:

  • Ensure the full

    enjoyment by women and the girl child of all human rights and fundamental

    freedoms and take effective action against violations of these rights

    and freedoms (Article 23);

  • Encourage men

    to participate fully in all actions towards equality (Article 25);

  • Prevent and eliminate

    all forms of violence against women and girls (Article 29);

  • Ensure equal access

    to and equal treatment of women and men in educational health care and

    enhance women's sexual and reproductive health as well as education

    (Article 30);

  • Promote and protect

    all human rights of women and girls (Article 31);

  • Intensify efforts

    to ensure equal enjoyment of all human rights and fundamental freedoms

    for all women and girls who face multiple barriers to their empowerment

    and advancement because of such factors as their race, age, language,

    ethnicity, culture, religion, or disability, or because they are indigenous

    people (Article 32);

  • Ensure respect

    for international law, including humanitarian law, in order to protect

    women and girls in particular (Article 33).

3. Our submissions

address some of the issues raised by the first and third terms of reference

and may be broadly categorised as the legal and administrative framework

for dealing with child asylum seekers.

The Legal Framework

4. The Committee

is aware of the emerging international and domestic debate about the future

of the Refugee Convention and current global challenges. Nonetheless,

that debate is evolving and Australia must meet its international obligations

as they now stand. Australia cannot abrogate its responsibility to treat

asylum seekers justly and compassionately.

5. The government's

border protection legislation and excision legislation have drawn significant

criticism on the basis that the enactments undermine Australia's commitment

to international human rights obligations.

We have a number

of concerns with respect to the interaction of the laws [1]

for border protection and excision with the treaties:

  • Australia is

    at risk of breaching its non-refoulement obligations.

  • Australia is at

    risk of breaching the rights of asylum seekers to remain free from arbitrary

    detention.

  • No legal action

    may be initiated against the officer concerned or the Commonwealth in

    any case where people are restrained or detained under the detention

    powers in the border protection legislation. Asylum seekers are thereby

    denied access to Australian courts and judicial protection of human

    rights should they wish to protest against their treatment by Australian

    authorities while on board an ocean vessel.

  • Any person defined

    as an 'offshore entry person' under the excision legislation can no

    longer make a valid application for a visa. The person is thereby denied

    any right to apply for protection and cannot remain in Australia for

    any reason. Again the judicial protection of human rights is denied.

  • Any person believed

    by a Commonwealth Officer to be attempting to enter an off-shore entry

    place without a valid visa can be detained by the officer concerned

    and restrained from entering the Australian migration zone and removed

    from Australian territory. These persons are deemed to not be under

    immigration detention and therefore have no right to seek legal advice

    or assistance, which is otherwise available to those within the migration

    zone. Such rights should be made available to all. The arbitrary manner

    in which the excision legislation has now created two different classes

    of asylum seeker- those entitled to have their human rights respected

    and those who are not so entitled. [2] Asylum seekers

    in the excised territories still fall within the international treaties

    to which Australia is a signatory.

6. Of particular

concern is the increasing foreclosure of access to Australian courts to

asylum seekers. [3] When introducing the bill that became

the Migration Legislation Amendment (Judicial Review) Act (1998),

the Minister referred to the cost and futility of much of the Federal

Court litigation. It is the case that many applicants initiate appeals

with little understanding of legal principles and court procedures.

"Where

asylum seekers are often without legal assistance and have no grasp

of the language, let alone the legal principles in which the proceedings

are conducted, the process comes close to a farce. The counsel for the

Minister is often called upon to present the law for both sides. Although

there is a court interpreter provided, the submissions of the Minister's

counsel, supplied to an applicant before the hearing, may not be understood

by the applicant and if they have no lawyer may not even be translated

for them to comprehend. In these circumstances, an elaborate appeal

system becomes futile, and to provide the resources for the applicant

to be fully seized of the law and procedures would mean a large increase

in the budget, with the consequential argument that applicants would

be receiving a level of assistance certainly not available to Australian

residents. On the other hand keeping applicants in the dark about when

their applications will be resolved, how the legal system works, and

what is likely to occur to them in the end must increase tension and

suspicion leading to demonstrations and hunger strikes." [4]

7. Although the cost

and futility of many appeals are important issues for consideration, it

is no answer to allow refugee review tribunals (RRT) to determine questions

of life and death (in some instances) with no recourse to a court of law.

There is a perception in the legal community that the RRT has a reputation

for making adverse findings on little or no evidence. [5]

Further, it is believed that the government has considerable influence

over the composition of the RRT and similar bodies, and officer holders

hold short-term fixed contracts and do not have judicial independence.

These perceptions and criticisms may or may not be unfair and it is noted

that the RRT does make these types of findings when it has little independent

investigative capabilities and resources. It is often very difficult to

determine the veracity of a claimant's story, relating to countries where

there is limited information-gathering. Whatever one's position is with

respect to the RRT it is disturbing and unacceptable that the government's

intention is to circumscribe any judicial review of the administrative

bodies' decisions.

8. To abolish judicial

review entirely is irresponsible and may mean that some asylum seekers

are returned to their country of origin and are placed at serious risk.

An answer that may strike the appropriate balance may be to find an independent

authority that determines what matters may be granted a review hearing.

No doubt there will be a constitutional challenge to these provisions

but the outcome of judicial challenges cannot be predicted.

Guardianship of Children

9. The Committee

supports the release of unaccompanied minors and women with children,

to ordinary accommodation in the community.

10. Section 6 of

the Immigration (Guardianship of Children) Act 1946 states that

the Minister shall be the guardian of the person, and of the estate in

Australia, of every non-citizen child [6] who arrives

in Australia after the commencement of this Act to the exclusion of the

father and mother and every other guardian of the child, and shall have,

as guardian, 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, or until the provisions

of this Act cease to apply to and in relation to the child, whichever

first happens.

In regard to non-citizen

children, section 5 of the Act allows the Minister to delegate his powers

and functions to any officer or authority of the Commonwealth or of any

State or Territory.

11. The detention

of any children and the release of unaccompanied children from detention

raise guardianship issues that have not been addressed by either the government

or shadow government. We understand that in December 1999 delegations

were given to the various State family services departments to exercise

the Minister of Immigration's guardianship powers yet many detained unaccompanied

minors have not been approached by these departments to apply for their

release on bridging visas although there is no shortage of persons ready

to accommodate them.

12. Apart from the

questions about the common law fiduciary duties of guardians, and the

potentials for conflicts apparent in the current arrangement, we are aware

that the information flow from Immigration Department to these State departments

about these children is poor. We are aware that the relevant Western Australian

body, the Department for Community Development, is seeking a legal opinion

from the Crown Solicitor's Office about its legal obligations to the children.

The guardianship status of the Minister and his power of delegation of

those functions are issues to be clarified as a matter of high priority.

 

Yours sincerely

Megan Hoey

The Secretary

For and on behalf of the

Beijing Committee - WA Chapter


Fourth World Conference on

Women - Beijing Declaration

Declaration

1. We, the Governments

participating in the Fourth World Conference on Women,

2. Gathered here

in Beijing in September 1995, the year of the fiftieth anniversary of

the founding of the United Nations,

3. Determined to

advance the goals of equality, development and peace for all women everywhere

in the interest of all humanity,

4. Acknowledging

the voices of all women everywhere and taking note of the diversity of

women and their roles and circumstances, honouring the women who paved

the way and inspired by the hope present in the world's youth,

5. Recognize that

the status of women has advanced in some important respects in the past

decade but that progress has been uneven, inequalities between women and

men have persisted and major obstacles remain, with serious consequences

for the well-being of all people,

6. Also recognize

that this situation is exacerbated by the increasing poverty that is affecting

the lives of the majority of the world's people, in particular women and

children, with origins in both the national and international domains,

7. Dedicate ourselves

unreservedly to addressing these constraints and obstacles and thus enhancing

further the advancement and empowerment of women all over the world, and

agree that this requires urgent action in the spirit of determination,

hope, cooperation and solidarity, now and to carry us forward into the

next century.

We reaffirm our commitment

to:

8.

The equal rights and inherent human dignity of women and men and other

purposes and principles enshrined in the Charter of the United Nations,

to the Universal Declaration of Human Rights and other international human

rights instruments, in particular the Convention on the Elimination of

All Forms of Discrimination against Women and the Convention on the Rights

of the Child, as well as the Declaration on the Elimination of Violence

against Women and the Declaration on the Right to Development;

9. Ensure the full

implementation of the human rights of women and of the girl child as an

inalienable, integral and indivisible part of all human rights and fundamental

freedoms;

10. Build on consensus

and progress made at previous United Nations conferences and summits -

on women in Nairobi in 1985, on children in New York in 1990, on environment

and development in Rio de Janeiro in1992, on human rights in Vienna in

1993, on population and development in Cairo in 1994 and on social development

in Copenhagen in 1995 with the objective of achieving equality, development

and peace;

11. Achieve the full

and effective implementation of the Nairobi Forward-looking Strategies

for the Advancement of Women;

12. The empowerment

and advancement of women, including the right to freedom of thought, conscience,

religion and belief, thus contributing to the moral, ethical, spiritual

and intellectual needs of women and men, individually or in community

with others and thereby guaranteeing them the possibility of realizing

their full potential in society and shaping their lives in accordance

with their own aspirations.

We are convinced that:

13. Women's empowerment

and their full participation on the basis of equality in all spheres of

society, including participation in the decision-making process and access

to power, are fundamental for the achievement of equality, development

and peace;

14. Women's rights

are human rights;

15. Equal rights,

opportunities and access to resources, equal haring of responsibilities

for the family by men and women, and a harmonious partnership between

them are critical to their well-being and that of their families as well

as to the consolidation of democracy;

16. Eradication of

poverty based on sustained economic growth, social development, environmental

protection and social justice requires the involvement of women in economic

and social development, equal opportunities and the full and equal participation

of women and men as agents and beneficiaries of people-centred sustainable

development;

17. The explicit

recognition and reaffirmation of the right of all women to control all

aspects of their health, in particular their own fertility, is basic to

their empowerment;

18. Local, national,

regional and global peace is attainable and is inextricably linked with

the advancement of women, who are a fundamental force for leadership,

conflict resolution and the promotion of lasting peace at all levels;

19. It is essential

to design, implement and monitor, with the full participation of women,

effective, efficient and mutually reinforcing gender-sensitive policies

and programmes, including development policies and programmes, at all

levels that will foster the empowerment and advancement of women;

20. The participation

and contribution of all actors of civil society, particularly women's

groups and networks and other non-governmental organizations and community-based

organizations, with full respect for their autonomy, in cooperation with

Governments, are important to the effective implementation and follow-up

of the Platform for Action;

21. The implementation

of the Platform for Action requires commitment from Governments and the

international community. By making national and international commitments

for action, including those made at the Conference, Governments and the

international community recognize the need to take priority action for

the empowerment and advancement of women.

We are determined to:

22.

Intensify efforts and actions to achieve the goals of the Nairobi Forward-looking

Strategies for the Advancement of Women by the end of this century;

23. Ensure the full

enjoyment by women and the girl child of all human rights and fundamental

freedoms and take effective action against violations of these rights

and freedoms;

24. Take all necessary

measures to eliminate all forms of discrimination against women and the

girl child and remove all obstacles to gender equality and the advancement

and empowerment of women;

25. Encourage men

to participate fully in all actions towards equality;

26. Promote women's

economic independence, including employment, and eradicate the persistent

and increasing burden of poverty on women by addressing the structural

causes of poverty through changes in economic structures, ensuring equal

access for all women, including those in rural areas, as vital development

agents, to productive resources, opportunities and public services;

27. Promote people-centred

sustainable development, including sustained economic growth, through

the provision of basic education, life-long education, literacy and training,

and primary health care for girls and women;

28. Take positive

steps to ensure peace for the advancement of women and, recognizing the

leading role that women have played in the peace movement, work actively

towards general and complete disarmament under strict and effective international

control, and support negotiations on the conclusion, without delay, of

a universal and multilaterally and effectively verifiable comprehensive

nuclear-test-ban treaty which contributes to nuclear disarmament and the

prevention of the proliferation of nuclear weapons in all its aspects;

29. Prevent and eliminate

all forms of violence against women and girls;

30. Ensure equal

access to and equal treatment of women and men in education and health

care and enhance women's sexual and reproductive health as well as education;

31. Promote and protect

all human rights of women and girls;

32. Intensify efforts

to ensure equal enjoyment of all human rights and fundamental freedoms

for all women and girls who face multiple barriers to their empowerment

and advancement because of such factors as their race, age, language,

ethnicity, culture, religion, or disability, or because they are indigenous

people;

33. Ensure respect

for international law, including humanitarian law, in order to protect

women and girls in particular;

34. Develop the fullest

potential of girls and women of all ages, ensure their full and equal

participation in building a better world for all and enhance their role

in the development process.

We are determined to:

35. Ensure women's

equal access to economic resources, including land, credit, science and

technology, vocational training, information, communication and markets,

as a means to further the advancement and empowerment of women and girls,

including through the enhancement of their capacities to enjoy the benefits

of equal access to these resources, inter alia, by means of international

cooperation;

36. Ensure the success

of the Platform for Action, which will require a strong commitment on

the part of Governments, international organizations and institutions

at all levels. We are deeply convinced that economic development, social

development and environmental protection are interdependent and mutually

reinforcing components of sustainable development, which is the framework

for our efforts to achieve a higher quality of life fo rall people. Equitable

social development that recognizes empowering the poor, particularly women

living in poverty, to utilize environmental resources sustainably is a

necessary foundation for sustainable development. We also recognize that

broad-based and sustained economic growth in the context of sustainable

development is necessary to sustain social development and social justice.

The success of the Platform for Action will also require adequate mobilization

of resources at the national and international levels as well as new and

additional resources to the developing countries from all available funding

mechanisms, including multilateral, bilateral and private sources for

the advancement of women; financial resources to strengthen the capacity

of national, subregional, regional and international institutions; a commitment

to equal rights, equal responsibilities and equal opportunities and to

the equal participation of women and men in all national, regional and

international bodies and policy-making processes; and the establishment

or strengthening of mechanisms at all levels for accountability to the

world's women;

37. Ensure also the

success of the Platform for Action in countries with economies in transition,

which will require continued international cooperation and assistance;

38. We hereby adopt

and commit ourselves as Governments to implement the following Platform

for Action, ensuring that a gender perspective is reflected in all our

policies and programmes. We urge the United Nations system, regional and

international financial institutions, other relevant regional and international

institutions and all women and men, as well as non-governmental organizations,

with full respect for their autonomy, and all sectors of civil society,

in cooperation with Governments, to fully commit themselves and contribute

to the implementation of this Platform for Action.


1.

Border Protection (Validation and Enforcement Powers) Act 2001; Migration

Amendment (Excision from Migration Zone) Act 2001; Migration Amendment

(Excision from Migration Zone)(Consequential Provisions) Act 2001

2.

See n 1

3.

Migration Legislation Amendment (Judicial Review) Act (1998).

4.

Robert Lindsay 'Who is a Refugee, How Are They Processed and the Government

Reforms" (2001); Barrister, Sir Lawrence Jackson Chambers, Perth

p. 7

5.

See P Nygh "Recent Developments in Refugee Law" (2000) 26 AIAL

Forum 1-25;and for an analysis of the administrative system for refugee

determination see J McMillan, "Recent Developments in Refugee Law"

(2000) 26 AIAL Forum 26-32.

6.

Defined in Section 4AAA of the Act.

Last

Updated 9 January 2003.