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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.



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

    28, CROC);

  • privacy (article

    16, CROC);

  • 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

    23, CROC);

  • detention of children

    must be a measure of last resort for the shortest possible period (article

    37(1)(b), CROC).

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.

Women Barristers'


9 May 2002


Updated 9 January 2003.