here to return to the Submission Index
Submission to the National
Inquiry into Children in Immigration Detention from
Australian Human Rights Centre
- University of New South Wales
The Protection of Human Rights of All People
Comment on Current Policy
The Particular Rights Of Children
Non - Discrimination
22 (1), Convention on the Rights of the Child
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 by 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.
The submission of
the Australian Human Rights Centre's (AHRC) to the HROEC National Inquiry
into Children in Immigration Detention focuses on the relationship between
Australia's responsibilities, as enshrined in international covenants
to which it is a party, and domestic legislation and policy, such as the
Convention on the Rights of the Child (CROC). With regard to children
in immigration detention, the AHRC has found that there is often a wide
gulf between the international obligations that Australia has committed
itself to and the practice of the Commonwealth. The AHRC submits that
the Australian Government's detention of children is a violation of its
international legal obligations and the practice must be ended as expeditiously
2. The Protection of Human
2.1 In International
Human Rights law the state is the principle agent for protection of
rights accepted by the international community in the form of treaties
 . This is enshrined as a principle of general application
to Human Rights in Article 2 of the International Covenant on Civil
and Political Rights (ICCPR), which Australia is a party to, which
Each State Party
to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant
2.2 This idea is
reinforced in the 1951 Refugee Convention (and its optional protocol);
in that, it is the responsibility of states parties to protect the substantive
rights, enlisted in the Convention, of persons categorised as refugees
 . This protection is not limited to the terms of
the Convention, but extends to all rights protected under international
2.3 The 1951 Convention
aims to provide for the protection of people who have had to flee their
countries of origin or of habitual residence due to a loss of that protection.
the 1951 Convention is the understanding that people should be
protected from breaches of their human rights, and if their own states
cannot or will not provide that protection, then it is the responsibility
of the international community to take on that responsibility. 
2.5 The National
Socialist regime in Germany before and during WWII and the new USSR
of the post war period provided drafters with an image of the person
who needed to flee their country; they drafted the definition of the
refugee in that image.
2.6 People who
leave their countries for reasons other than individual persecution
for Convention reasons are no less due their human rights if
they do not strictly come within the 1951 Convention definition
of a refugee. No human can lose their human rights, whether or not they
are outside the borders of their normal country of residence. 
2.7 However, a
fortiori, those who come within the Convention definition
have a right to additional protections from the international community,
and in particular, by those State Parties of the 1951 Geneva Convention
Relating to the Status of Refugees.
2.8 These include,
but are not limited to Article 33 of the Convention: protection
from refoulement. It is now a matter of Customary International Law
 that states may not return people to the frontiers
of territories where their lives or freedom may be threatened on account
of their race, religion, nationality, membership of a particular social
group or political opinion.
refugees are also due other rights at international law. Free primary
education , and freedom of movement for those lawfully
in the territory  are examples of rights noted in
is a State Party to the 1951 Geneva Convention Relating to the Status
of Refugees and thus owes to refugees not only protection from refoulement
but also any other duties imposed by the Convention that have
not become Customary International Law.
2.11 However, refugees
- people seeking asylum who have not yet been recognised as refugees
- and others unlawfully within a state's territory do not lose their
human rights merely because they are beyond the borders of their own
states. For states parties (such as Australia) these rights consists
of the International Bill of Human Rights  and a
large number of peripheral Human Rights instruments. As with the 1951
Convention, parts of the Universal Declaration of Human Rights could
be said to have become Customary International Law, and thus binding
on all states. 
2.12 State Parties
to the International Covenant on Civil and Political Rights and
the International Covenant on Economic Social and Cultural Rights
must honor the human rights of all people within their borders, regardless
of means or port of entry.
is a Party to both Covenants.
2.14 A fotiori,
Australia is under a voluntary, self imposed, international obligation
to protect the treatied rights (outlined in the Refugee Convention and
the International Bill, amongst others) of all on-shore arrivals, regardless
of their ultimate refugee status determination.
3.1 It is insufficient
for Australia to refrain from refoulment of those who are determined
to be refugees under the 1951 Convention.
3.2 It is insufficient
even that Australia refrains from refoulment of people who have
not yet been determined to be refugees.
3.3 Australia has
an obligation to protect the rights and dignity of all people falling
within its jurisdiction, and of all people to whom, by its actions,
Australia has engaged its protection obligations.
3.4 Australia engages
its protection obligations at first contact with people seeking asylum,
regardless of mode or point of entry. Interdiction of people outside
Australian territorial waters, removal of people to other sovereign
states on the understanding of Australian financial support, and excision
of Australian territories do not honor these obligations.
3.5 The International
Covenant on Civil and Political Rights is clear:
has the right to liberty and security of person. No one should be
subjected to arbitrary arrest or detention" 
3.6 The Human Rights
Committee, in A v Australia  found that
while it was not "per se arbitrary to detain individuals requesting
to keep a person in detention should be open to review periodically
so that the grounds justifying the detention can be assessed. In any
event, detention should not continue beyond the period for which the
State can provide appropriate justification. For example, the fact
of illegal entry may indicate a need for investigation and there may
be other factors particular to the individuals, such as the likelihood
of absconding and lack of co-operation, which may justify detention
for a period. Without such factors, detention may be considered arbitrary,
even if entry was illegal." 
is no provision for individual assessment of risk for asylum seekers
detained in Australian Immigration Detention Centres. This, alone, means
that Australia is in breach of its obligations under the International
Covenant on Civil and Political Rights.
3.7 The UN Human
Rights Commission's Working Group on Arbitrary Detention explained
its standards for determining whether the administrative detention of
asylum seekers is "arbitrary" within the meaning of the ICCPR,
Article 9. It questions whether the detained person enjoys:
all of the following guarantees", which include "3. Determination
of the lawfulness of the administrative custody pursuant to legislation
providing to this end for: (a) the person concerned to be brought
automatically and promptly before a judge or a body affording equivalent
guarantees of competence and impartiality; (b) Alternatively, the
possibility of appealing to a judge or such a body." 
seekers are not individually assessed and then placed in detention,
but are detained by the Commonwealth Government solely because of their
mode of entry to Australia.
3.8 The High Court
of Australia has found that detaining Aliens as is demanded by the Migration
Act 1958 is within the powers of the Commonwealth Government , 
the detention is limited to what is reasonably capable of being
seen as necessary for the purposes of deportation or necessary to
enable the application for an entry permit to be made and considered.
On the other hand, if the detention which those sections require and
authorise is not so limited, the authority which they purportedly
confer upon the Executive cannot properly be seen as an incident of
the executive powers to exclude, admit and deport an alien. In that
event, they will be of a punitive nature and contravene Ch III's insistence
that the judicial power of the Commonwealth be vested exclusively
in the courts which it designates" 
The length of time
asylum seekers, including children, are kept in detention, and the conditions
of detention, as well as the not infrequent claim by the current government
that mandatory detention is a part of an overall policy of deterrence
to others would appear to put the current policy in a doubtful constitutional
3.9 Article 31
of the 1951 Geneva Convention Relating to the Status of Refugees,
States shall not impose penalties, on account of their illegal entry
or presence, on refugees who, coming directly from a place where their
life or freedom was threatened in the sense [of the Convention's
definition of a refugee], enter or are present in their territory
without authorisation "
While the Australian
Government does not claim that administrative detention is a penalty,
it is difficult to draw another conclusion, since (on figures current
before the Tampa) asylum seekers who arrived in Australia on
valid travel documents are permitted to remain in the community and
those who arrive "irregularly" are detained - despite a marked
difference in their success rates: Until 1999, the approximate percentage
of people from Detention Centres (unauthorised arrivals) being granted
asylum was 70-75%, while the figure for the remainder (those who arrived
with visas) was closer to 15%.  Thus, even without
a marked increase in places, Australia already planned to welcome the
numbers currently arriving.
In the last two
months of the 1999-2000 fiscal year, 55% of unauthorised asylum seekers
arriving in Australia came from Iran, and 32% from Afghanistan. Of those,
over 90% are eventually granted asylum. The minister quoted figures
as high as 97% in mid 2001. 
3.10 The Executive
Committee of the UNHCR, a body comprised of States Parties to the 1951
Convention, comes to "Conclusions" on matters of refugee
law and policy. These do not have the force of binding international
law, but they probably do have some weight as opinio juris, the
understanding of a legal obligation by states as they develop their
refugee policy.  ExCom Conclusion 44, taken in
1986, states that:
(a) Noted with
deep concern that large numbers of refugees and asylum-seekers in
different areas of the world are currently the subject of detention
or similar restrictive measures by reason of their illegal entry or
presence in search of asylum, pending resolution of their situation;
the opinion that in view of the hardship which it involves, detention
should normally be avoided. If necessary, detention may be resorted
to only on grounds prescribed by law to verify identity; to determine
the elements on which the claim to refugee status or asylum is based;
to deal with cases where refugees or asylum-seekers have destroyed
their travel and/or identity documents or have used fraudulent documents
in order to mislead the authorities of the State in which they intend
to claim asylum; or to protect national security or public order "
4. The Particular Rights Of
4.1 It should be
noted that any analysis of the issue of detained children must consider
the interest of the child as primary. This is explicitly stated in the
Convention on the Rights of the Child (CROC)(Article 3) as the
first substantive article of that treaty. This principles recognise
that children are vulnerable and more susceptible to harm than adults.
This must be coupled with the understanding, born out of the UDHR, that
childhood is entitled to special care and assistance. 
made for asylum seekers in general will not necessarily be adequate
for child asylum seekers.
4.3 The Universal
Declaration of Human Rights declared that:
is the natural and fundamental group unit of society and it entitled
to protection by society and the State." 
4.4 In addition,
the Convention on the Rights of the Child states that:
Parties shall respect the responsibilities, rights and duties of parents
This requires that
children, when in any government facility, including a detention or
reception centre, are cared for by their parents, and that the parents
or guardians of children are supported in this role. Such support cannot
be sacrificed to the concerns of institutional management or security.
The carers of children can only act effectively if they are free to
make decisions for the best interest of their children and their family
in Australian detention centres acts to infantalise all residents, thus
limiting the role that parents can play in their children's care and
development. By holding regular "musters" and mandating set
meal times, as well as the long held practice of referring to residents
by number rather than name, parents are stripped of their authority.
The stress of waiting for a decision compiled with the conditions of
the centre lead in many to depression , thus further
limiting the positive role that parents and guardians can have in their
children's lives while in detention.
4.5 The Convention
on the Rights of the Child also maintains that:
shall be subjected to arbitrary or unlawful interference with his
or her privacy, family, home or correspondence " ,
any residential facility provided to children and their carers provides
for a separate and independent dwelling for each family unit.
Regular room searches,
midnight in-room musters and constant supervision deny this basic right
to every child in detention, regardless of their parents' mental or
4.6 The Convention
on the Rights of the Child establishes that
Parties shall ensure that a child shall not be separated from his
or her parents against their will [and] States Parties shall
respect the right of the child who is separated from one or both parents
to maintain personal relations and direct contact with both parents
on a regular basis." 
Parties shall use their best efforts to ensure recognition of the
principle that both parents have common responsibilities for the upbringing
and development of the child." 
As a result, any
reception or processing regime established by States Parties to the
Convention must, as a first priority, ensure that any people,
including those arriving without documentation, known to have family
members in their territory, including in a reception facility, are assisted
in their reunion. No regime that asks families to choose separation
or detention is appropriate except in individually determined cases
where an adult member is reasonably and upon evidence believed to be
a risk to security. In such cases, families must be provided with regular
and appropriate visiting provisions.
The recent Woomera
trial release of women and children was thus wholly inappropriate. There
is no publicly available evidence that both parents could not have safely
been released with their children, given the monitoring devices and
programs available for community release. Likewise, the continued detention
of children and their mother in Woomera when their father resides on
a temporary protection visa in Sydney is both a breach of Australia's
responsibilities under the convention and is inhumane.
4.7 The Convention
on the Rights of the Child establishes that:
Parties shall take all appropriate legislative, administrative, social
and educational measures 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, while in the
care of parent(s), legal guardian(s) or any other person who has the
care of the child" 
Detention Standards  contain very little about
specific standards of care for children. The only direct responsibility
that DIMIA holds to child asylum seekers identified by the Standards
9.4.1 Social and
educational programs appropriate to the child's age and abilities are
available to all children.
In violation of
a number of Instruments, DIMIA Immigration Detention Standards
do not require education to be of the standard and regularity of that
received by non-detainees . 
The DIMIA Immigration
Detention Standards There is no acknowledgement of the 'best interests
of the child' as a primary consideration in standards for detention.
Further, the DIMIA
Immigration Detention Standards include nothing excepting children
from the use of: force as provided for in Standard 7.9, for application
of instruments of restraint (Standard 7.10), or solitary confinement
4.8 The detention
of children, and particularly of children who have come from situations
of extreme trauma only compounds their difficulties. This is particularly
troubling since "Severe and chronic stress in the early years will
affect the stress system itself and result on on-going vulnerability
to later stressful events This has implications for both physical
and mental health and may be related to significant difficulties in
later life." 
4.9 Detention environments
afford neither "appropriate protection" nor "humanitarian
assistance". Official ACM statistics at 6 Feb 2002 reported incidents
of self-harm among children at Woomera Immigration Detention Centre.
These included thirteen treats of self-hurt, five incidents of lip-sewing,
one attempted hanging, and three self-slashings. One child cut "freedom"
into his forearm.
These facts amount
to a dereliction of a duty held by the Commonwealth to protect
children in its care.
4.10 Echoing and
reinforcing Article 9 of the ICCPR, the Convention on the rights
of the child makes clear that
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" 
law requires the detention of all people, including children, who arrive
without prior authorisation.  There is no provision
for an assessment of the need for detention of individual asylum seekers.
4.11 The UNHRC
Guidelines Relating to the Detention of Asylum Seekers recommend
if children who
are asylum seekers are detained in airports, immigration-holding centres
or prisons, they must not be held under prison-like conditions. All
efforts must be made to have them released from detention and placed
in other accommodation. (Guideline 6 paragraph 6)
It is manifest
that the DIMIA immigration detention centres have the character of prisons.
It is presumed that proof of this fact will be provided by submissions
by other Civil Society groups who have personal experience of these
centres, and hence are better informants than the AHRC.
4.12 The UNHRC
Guidelines further state that:
who are asylum-seekers should not be detained (emphasis in original)
as it breaches Articles 2,3,9,22 and 37 of the Convention on the Rights
of the Child (Guideline 6 Paragraph 2)
This is persuasive
proof that the Commonwealth of Australia, in mandatorily detaining child
asylum seekers is in breach of International Law.
4.13 Of additional
concern is the continued detainment of children alongside non-family
male adults, in contravention of the Convention on the Rights of
the Child , which provides that
deprived of liberty shall be separated from adults unless it is considered
in the child's best interest not to do so". 
4.14 All children,
regardless of their immigration status, are entitled to enjoyment of
each of the rights outlined in the Children's Convention. To
some degree, whatever measures detention centre staff take in assisting
child detainees, the basic problem is detention itself, and especially
its indeterminate nature. Upholding the 'best interests' principle in
Article 3 CROC requires a radical re-examination of government policy
formulation regarding child asylum seekers.
4.15 The underlying
principle of CROC is the recognition that children, by virtue of their
youth and vulnerability, are entitled to special consideration. This
is true regardless of status and is to be applied to minors indiscriminately
(Article 2). CROC enshrines as a value the protection of the child's
wellbeing and development because it is largely such protections, or
the lack of them, which determine whether a child will develop to her
or his full capacity.
4.16 CROC states
that a child should be brought up "in the spirit of peace, dignity,
tolerance, freedom, equality and solidarity" .
The detention of child asylum seekers is manifestly intolerant and discriminating,
and it is an egregious imposition on the dignity and freedom of children.
CROC locates the
responsibility for securing the survival and development of the child
with the parent or legal guardian of the child. For unaccompanied minors,
under the Immigration Guardianship of Children Act 1946 (s6) this
guardian is the Minister for Immigration. It therefore follows that the
Minister should actively give legal advice and assistance to unaccompanied
minors. As evidenced in Jaffari v Minister for Immigration and Multicultural
Affairs  FCA 1516 (26 October 2001), this is an obligation that
is not always followed by the Minister. His honour held that:
to be a significant discrepancy between the guidelines published by
the United Nations High Commissioner on Refugees ("UNHCR")
in respect of unaccompanied minors seeking asylum and the current administration
of the Migration Act in relation to such persons The Act provides
little in the way of the kinds of protections contemplated by the UNHCR
guidelines . 
should never be held in detention, but should rather be automatically
placed in foster or emergency care, as provided by s7 the Immigration
Guardianship of Children Act 1946. Attention should be given to cultural
and religious needs and provisions should be made for counselling in accordance
with CROC Article 39 which provides for assistance in physical and psychological
recovery from any form of neglect, abuse or ill treatment.
Article 2 of the
Children's Convention requires that the rights protected in that
Convention should be applied to all children without discrimination.
It is crucial to note, therefore, that Australia's obligations under the
Convention on the Rights of the Child to child asylum seekers are
identical to those owed to other Australian children. This is especially
important in regard to a child's right to education and good health, leisure
and culture, family life and legal representation.
policy allows residence in the community for those asylum seekers who
entered Australia on valid visas and travel documents. This differential
treatment appears to be in contravention of Article 31 of the Refugee
Convention 1951, which states that asylum seekers should not be penalised
for the way in which they enter a country.
Children may be released
from detention on bridging visas under s73 of the Migration Act.
Visas are not generally available to their parents. This is contrary to
the strong presumption in favour of the preservation of the family unit
as "the natural environment for the growth and wellbeing of all its
members"  . Eligibility for bridging visas
should extend to family members of children to be consistent with its
stated aim of securing the 'best interests of the child'. Alternatives
to detention should not disrupt the contiguity of family units.
There is also cause
for concern for children whose parents are seeking asylum in Australia
but who have been unable to bring their children with them, and for those
who are found to be refugees but whose mode of entry made them eligible
under Australian law only for Temporary Protection Visa, thus disqualifying
them for family reunion. These are perhaps the forgotten child victims
of the discrimination between authorised and non authorised asylum seekers.
promoting human rights reflect both consensus principles of the international
community and the values of states that become voluntary signatories to
them. When the Commonwealth of Australia freely commits to such instruments
it acknowledges its international legal obligation to promote, honour
and enforce their provisions.
When a child cannot
return to his or her country, the responsibility of protecting her rights
falls on the international community. As a State Party to all relevant
international agreements, Australia is bound to fulfil its obligations.
The failure of the Australian government to honour its international obligations
to child asylum seekers in its care is of grave concern.
The Australian Government
must address the discrepancy between its commitment to the Refugee
Convention and its actions in mandatorily confining children arriving
in Australia seeking asylum. The actions of the Commonwealth are inconsistent
not only with the provisions of the Refugee Convention but also
with a number of other international instruments to which Australia is
a party. Particularly, the executive actions undertaken by the Commonwealth
are in violation of sections of the International Covenant on Civil
and Political Rights, the International Covenant on Economic Social
and Cultural Rights and the Convention on the Rights of the Child.
dereliction in fulfilling its treaty obligations when developing domestic
law and policy is in breach of international law. Australia has both a
legal responsibility and a moral obligation to uphold the human rights
standards to which it has subscribed, and upon which the future and wellbeing
of all children depend.
8. Annexure: Relevant Instruments,
Treaties and Domestic Law
of Human Rights (UDHR)
UN Convention on the Rights of the Child (CROC)
UN International Covenant on Civil and Political Rights (ICCPR)
UN Convention and Protocol Relating to the Status of Refugees 1951 and
1967 (Refugee Convention)
Migration Act 1958 (Cth)
Immigration Guardianship of Children Act 1946 (Cth)
DIMA Immigration Detention Standards
UNHCR Guidelines on Detention of Asylum Seekers (UNHCR Guidelines)
Boutros Gali (Secretary General of the UN - as he then was): Speech opening
the World Conference on Human Rights (Vienna 1993). www.unhchr.ch/html/menu5/d/statement/secgen.htm
operative provisions of the 1951 Refugee Convention (and protocol) are
separated as a definition (Article 1) and a series substantive rights
held by refugees (Articles 3-34), which are to be protected by the state
receiving the asylum seeker.
5, 1951 Refugee Convention.
Article 1A(2): the Convention applies to any person who " owing
to a well founded fear of being persecuted 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 " [italics
Article 2(1) of the International Covenant on Civil and Political Rights
and Article 2(2) of the International Covenant on Economic, Social and
Cultural Rights: the rights of the Covenants are to be "respected
and ensured" without "distinction" (ICCPR) or "guaranteed"
without "discrimination" (ICESCR) because of "race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth or other status" [italics added]
Hanson, UNHCR Canberra Spokeswoman. In a speech given at the conference
1951 Refugee Convention - Where to From Here? UNSW, Sydney, December 6-9
22, 1951 Geneva Convention Relating to the Status of Refugees.
26, 1951 Geneva Convention Relating to the Status of Refugees.
The International Bill of Human Rights is comprised of The 1948 Universal
Declaration of Human Rights, The International Covenant on Civil and Political
Rights, and The International Covenant of Economic, Social and Cultural
Schater, Oscar, International Law in Theory and Practice. 1991, Chapter
XV: "International Human Rights"
Article 9, the International Covenant on Civil and Political Rights
Number 560/1993, UN Doc CCPR/C/59/D/1993 (30 April 1997)
UN Doc E/CN/4/1999/63. Paras 69 - 70
Chu kheng Lim and Others v The Minister for immigration, Local Government
and Ethnic Affairs and Another. (1992) 176 CLR 1 F.C 92/051. Accessed
on www.austlii.edu.au, 9/05/01.
Brennan, Deane, Dawson JJ at their para 32.
by DIMA Public Affairs Department, Wednesday 4 April 2001
by DIMA, Wed 4 April. See also Department of Immigration Annual Report
Guy. The Refugee in International Law. 2nd Edition. Oxford University
Press, 1996. p128
25(2), The Convention on the Rights of the Child
Article 16(3), The Convention on the Rights of the Child
5, The Convention on the Rights of the Child
Zachary and Derrick Silove. "The Psychological Cost of Seeking and
Granting Asylum". International Handbook of Human Response to Trauma.
Shalev, Yehuda, and McFarlane, Eds. Kluwer Academic / Plenum Publishers,
NY, 2000. See also Burnett, Angela and Michael Peel. "Asylum Seekers
and refugees in Britain: The health of survivors of torture and organized
violence". British Medical Journal. 10 March 2001, p606 at 608.
16(1), The Convention on the Rights of the Child
Article 9, The Convention on the Rights of the Child
18(1), The Convention on the Rights of the Child
19(1), The Convention on the Rights of the Child
Particularly Refugee Convention Art 22; and noting CROC Art 2 on non-discrimination;
ICCPR Art 2 on non-discrimination, ICESCR Art 2 on Non-discrimination
and ICESCR Art 13 on rights to education.
Louise Newman. Chair, Faculty of Child and Adolecent Psychiatry, RANZCP
Director, NSW Institute of Psychiatry. "Children in Detention - the
Burden of Trauma". Speech at closing plenary of The 1951 Convention
- Where to from here?, December 6-9 2001. UNSW.
and s14, Migration Act 1958
v Minister for Immigration and Multicultural Affairs  FCA 1516 (26
October 2001) at Paragraph 43.
Updated 10 October 2002.