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Submission to the National

Inquiry into Children in Immigration Detention from

the Tasmanian Government

The Tasmanian Government

recognises the Federal Government's responsibilities for the management

of immigration to Australia. During the last decade a policy of mandatory

detention has been established for those who enter Australia without proper

authority (an appropriate visa). A period of detention allows the Commonwealth

Government to ensure that those unauthorised arrivals do not have a health

status, character or criminal record of concern to the Government. This

period of detention is supportable on the basis of the public interest

- to the limited extent necessary to make these determinations.

The above statement

should not be interpreted as support for every feature of the Commonwealth

Government's management of unauthorised arrivals.

There is a range

of general factors that should be considered as part of this Inquiry into

Children in Detention.

1. Australian domestic

law recognises that the welfare of children is paramount, and that the

interests of the child in family disputes should be the first focus of

decision-makers. These principles should be applied equally to children

of refugees, whether legally or illegally in Australia and whether in

detention or not.

2. The welfare of

children held in detention centres should be the paramount consideration

prevailing over other rights.

3. Children in detention

ought to be accorded the right to equal treatment at the hands of the

law, in the same manner as adults. Having parents in custody awaiting

the outcome of an application for residency should not limit a child's

rights to fair and even handed treatment at law, in the same way as it

is extended to all other children in Australia.

4. To ensure that

the rights of children held in detention centres can be monitored it is

necessary for the Commonwealth Government, and the state and territory

governments where the children are situated, to publicly document a range

of information. Such information should include:

  • the number of

    children held;

  • where they are


  • whether they are

    together with a parent or parents or some other relative;

  • their ages;
  • their siblings;


  • their sex/gender.

5. Children in detention

should have access to educational resources, health care and legal advice

and support, in accordance with the principles established through the

International Convention on the Rights of the Child. In these circumstances

it is important that programs, such as that which operated at Derby allowing

detainees to enter the local community to participate in education, are

extended to other populations of children in detention. The trial at Woomera

of allowing women and children into the community to access services should

also be extended to other Detention Centres.

6. Administrative

decisions about the welfare and placement of children should be subject

to the principles of the International Convention on the Rights of

the Child.

7. The rights of

children in detention should be confirmed in statutory form under Commonwealth

law, applicable to children held in all states and territories.

8. Tasmania's Office

of the Commissioner for Children could be used as a model for establishing

an independent statutory authority at national level to oversee the implementation

of the Convention on the Rights of the Child (including issues pertaining

to children held in detention) into Australian law, and with an independent

'watching brief' to ensure that the rights of children in detention or

released from detention, whether with or without their parents or families,

are protected and upheld.

9. Children in detention

should have independent access to any new Commonwealth Office of the Commissioner

for Children and to Commonwealth, state and territory human-rights/anti-discrimination

commissions, and these bodies should have independent access to children

who seek their advice and assistance.

10. It is difficult

to reconcile the current policy of the Commonwealth Government with principles

and obligations developed in international law. The concept of the 'best

interests of the child' as expressed in the Convention on the Rights

of the Child has been used as a justification for holding children

in detention (i.e. not separating them from the family unit) but has the

effect of maintaining them in an environment likely to be prejudicial

to their social and intellectual development. This is a choice between

two 'second-best' options for the wellbeing of the child.

11. The facilitation

of legal representation, advice and support for unaccompanied minors on

arrival is a key government responsibility. The Tasmanian Government understands

that these people are placed under the guardianship of the Minister for

Immigration, Multicultural and Indigenous Affairs in the time prior to

their release from detention (should that occur). The Tasmanian Government

will not accept any unaccompanied minors to Tasmania following release

from detention in the absence of a Memorandum of Understanding (MOU) allowing

for the transfer of guardianship to the Tasmanian Minister for Health

and Human Services.

12. The Tasmanian

Government understands that the Department of Immigration & Multicultural

& Indigenous Affairs (DIMIA) undertook to negotiate MOUs with state

governments around 18 months ago in relation to supporting unaccompanied

minors upon their release from immigration detention. Currently, however,

there is only one MOU in place which is between the Commonwealth and South

Australian Governments.

13. An example of

poor management of a child detainee was brought to the attention of the

Tasmanian Government during the last 12 months when a request was received

from the Hobart DIMIA office for the State to provide a wheelchair for

an unaccompanied, disabled minor upon his arrival. No other information

was made available about the minor. This highlighted the lack of provision

and planning for children with special needs both in detention and following

their release. It also highlights problems with the separation of the

contract for services and infrastructure in detention and the management

of asylum seekers post release.

14. The Tasmanian

Government is currently providing support and services to a disabled child

who has been released from detention accompanied by his father. In this

case it appears there has been an adequate level of service provision

for the child in detention with most current problems being related to

lack of service and support in the country of origin and during the transition

to Australia.

15. As with any detention

system consideration should be given to separation of families/individuals

who are waiting for a determination of their application for asylum from

families/individuals who have already received an unfavourable determination.

This may promote the wellbeing of children whilst they await the determination

of asylum applications and improve their environment during this crucial


16. Services available

post release for asylum seekers include torture and trauma counselling.

Given the experiences of child asylum seekers they may require this counselling

earlier. Delaying the availability of counselling until release may prolong

anguish and distress and impact on the long term mental health of the


May 2002


Updated 9 January 2003.