Submission to National Inquiry
into Children in Immigration Detention from
the Women Barrister's Association
1. The Women Barristers'
Association ("WBA") makes this submission to the Human Rights
and Equal Opportunity Commission in relation to its national inquiry into
children in immigration detention.
2. WBA is an organisation
of over 200 members, being women barristers and judicial officers. It
is established for the following purposes:
- to promote awareness,
discussion and resolution of issue which particularly affect women;
- to identify, highlight
and eradicate discrimination against women in law and in the legal system;
- to advance equality
for women at the Bar and the legal profession generally; and
- to provide a professional
and social network for women barristers.
3. In summary, this
submission expresses serious concern about Australia's compliance with
its international human rights obligations in relation to children asylum
seekers and recommends the release of all children and their families
from immigration detention.
4. This submission
is limited to discussion of children and their families in immigration
detention. It does not discuss the mandatory detention of other asylum
5. This submission
is informed by a commitment to compliance with human rights standards,
support for the rule of law and equality before the law, and promotion
of the wellbeing of women and their children generally.
HUMAN RIGHTS STANDARDS
6. Australia's international
human rights obligations extend to all children within its territory,
whether they are citizens or not. Indeed, the Convention on the Rights
of the Child ("CROC") obliges States to afford special protection
and assistance to children seeking asylum.
7. Among the rights
endowed upon children seeking asylum in Australia are the following:
- protection from
violence, abuse, mistreatment and exploitation (article 19, CROC);
- health (article
24, CROC; International Covenant on Economic Social and Cultural Rights
("ICESCR"), article 12);
- standard of living
adequate for physical, mental, spiritual, moral and social development
(article 27, CROC);
- education (article
- privacy (article
- recreation and
play (article 31, CROC);
- care by parents
and non separation from parents (article 7, CROC);
- protection of
the family (article 10, ICESCR);
- special measures
are required for children with mental or physical disabilities (article
- detention of children
must be a measure of last resort for the shortest possible period (article
8. Furthermore, pursuant
to the Convention on the Elimination of All Forms of Discrimination Against
Women, all women in Australia are entitled to appropriate services in
connection with pregnancy, confinement and the post natal period, as well
as adequate nutrition during pregnancy and lactation.
9. WBA has reviewed
the Kids in Detention Story submission to the inquiry and is gravely concerned
that the detention of children seeking asylum is in breach of Australia's
international human rights obligations.
10. The experiences
recorded in KIDS submission demonstrate that most if not all children
in detention are suffering; some are treated poorly; some are denied proper
health, education, recreation; some are forcibly separated from their
families; some are exposed to violence and self harm; some are witnesses
to their families' psychological and physical distress; some are subject
to arbitrary and harsh punishments; and most are experiencing unabated
and unrelieved trauma and grief. In short, children in detention are denied
a standard of living adequate for their physical, mental, spiritual, moral
and social development (cf article 27, CROC).
11. WBA is opposed
to the mandatory detention of children seeking asylum on the following
- It is in breach
of international human rights law;
- It is contrary
to established standards of decency;
- It is contrary
to the best interests of the children;
- It puts vulnerable
children at grave risk of substantial long term psychological harm.
12. Alternative and
proportionate means should be introduced which respect human rights and
secure an orderly immigration system. After appropriate health and security
checks which can be conducted within a short period, children and their
families who seek asylum should be released into the community awaiting
determination of their refugee status.
13. WBA is concerned
that standards should immediately improve in detention centres to ensure
that for whatever period children and their mothers or expectant mothers
(whether or not they have children) are in detention centres:
- health, education
and recreational services to asylum seeking children are equivalent
so far as is reasonably practicable to those enjoyed by Australian citizens;
- women are afforded
adequate ante natal and post natal care, in order to ensure the wellbeing
of their infants.
14. Such standards
should be incorporated in government policy, departmental directives and
contractual operating standards for detention centres.
15. WBA notes that
the Minister for Immigration is the guardian for unaccompanied minors
under the Immigration and Guardianship of Children Act 1946 (Cth) and
that this role is not properly fulfilled in present circumstances.
16. WBA concludes
that the current policies and practices of detaining children seeking
asylum are positively harmful to children's rights, interests and development.
17. WBA calls for
the cessation of the practice of mandatory detention of children and their
families who seek asylum, beyond the minimum period necessary for appropriate
health and security checks.
9 May 2002
Updated 9 January 2003.