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Submission to the National

Inquiry into Children in Immigration Detention from

John Tobin, Senior Fellow,

Faculty of Law, University of Melbourne


In his report to

the UN Special Session on Children, UN Secretary General Kofi Annan declared


There is no task

more important than building a world in which all of our children can

grow up to realise their full potential in health, peace and dignity.


The realisation of

these goals is threatened by a myriad of factors - terrorism, global poverty,

the spread of HIV/AIDS. But none more so than the predicament of refugees,

described by one commentator as 'the greatest human catastrophe of the

twentieth century outside war and ethnic cleansing…' [2]

The UNHCR estimates that there are over 21 million refugees worldwide.[3]

How the international community responds to the plight of these people

represents one the greatest challenges of the 21st century.

It is this context

that Australia's treatment of refugee children must be assessed. Not just

against our own obligations under international law but in the context

of Australia's contribution to the world to which Kofi Annan aspires.

Listed among the purposes of the United Nations are respect for the principle

of equal rights and the observance of human rights and fundamental freedoms

for all without distinction. [4] An assessment of Australia's

treatment of refugee children reveals not only a flagrant disregard for

the obligations it has assumed under international law but also the values

and purposes for which the United Nations was created.

Violations of Australia's

obligations under international law

The background papers

prepared by the Human Rights and Equal Opportunity Commission ('Commission')

provide a comprehensive list of the various treaties Australia has ratified

and need not be listed here. Suffice to say that the obligations assumed

by Australia under these treaties are binding under international law.

As article 26 of the Vienna Convention on the Law of Treaties provides,

'every treaty in force is binding upon the parties to it and must be performed

by them in good faith.' Moreover article 27 provides that a State cannot

invoke its internal law as justification for the failure to perform its

treaty obligations.

In Australia a treaty

ratified by the executive does not become part of domestic law unless

it has been incorporated by legislation. In spite of this limitation it

is important to recall the edict of the High Court in Teoh that:

… ratification

by Australia of an international convention is not to be dismissed as

a merely platitudinous or ineffectual act, particularly when the instrument

evidences internationally accepted standards to be applied by courts

and administrative authorities in dealing with basic human rights affecting

the family and children. Rather, ratification of a convention is a positive

statement by the executive government of this country to the world and

to the Australian people that the executive government and its agencies

will act in accordance with the Convention. That positive statement

is an adequate foundation for a legitimate expectation, absent statutory

or executive indications to the contrary, that administrative decision-makers

will act in conformity with the Convention… [5]

The statutory and

executive actions that sanction the mandatory detention and treatment

of refugee children while in detention arguably deny any refugee child

from forming a legitimate expectation that his or her rights under the

Convention on the Rights of the Child ('Convention') will be taken into


Notwithstanding this

gloomy prediction, Australia remains bound by its obligations under international

law. Moreover the Government of Australia remains intent on asserting

that its detention and treatment of refugee children is consistent with

these obligations. Even the barest analysis reveals this claim to be seriously


I do not intend to

identify each right to which a refugee child is entitled under international

law and assess whether the Government has taken the appropriate steps

to secure the enjoyment of each right. Nor do I intend to address the

specific questions raised by the Commission in these papers. No doubt

the cumulative effect of many submissions will provide the Commission

with such information. Rather I intend to comment on 2 key rights which

appear to be the subject of violation: the prohibition against discrimination

and the prohibition against torture and other cruel, inhuman and degrading

treatment or punishment. [Unfortunately time constraints prevented me

from undertaking a comprehensive legal analysis of the issues and these

comments are, at best, a brief overview.]

The prohibition against


The prohibition against

discrimination is a fundamental principle of international human rights

law. It is restated in article 2 of the Convention and is to be enjoyed

by each child within the jurisdiction of a State. [6]

Thus refugee children whether they arrive by authorised or unauthorised

means are entitled to the full panoply of rights enumerated under the

Convention (and other the other human rights treaties to which Australia

is a party).

Discrimination under

international law means any distinction, exclusion, restriction or preference

based on any of a number of specified grounds or any other status (which

would refugee status) which has the purpose or effect of nullifying or

impairing the recognition or enjoyment or exercise by a child on equal

footing of any right under the Convention.[7] There is

no requirement that discrimination be intended.

The treatment of

refugee children prima facie falls foul of this definition in a

number of respects. In the first instance there is discrimination in the

treatment of children who seek asylum. Those who arrive by authorised

means and seek asylum are not detained whereas those who arrive by unauthorised

means are subject to mandatory detention. There is also further discrimination

against authorised refugee children on the basis of their mode of arrival

as they may only receive a three year temporary protection visa when recognised

as a refugee. In contrast refugee children who arrive by authorised means

and are recognised as refugee receive permanent residency.

Refugee children

subject to mandatory detention are also subject to further discrimination

relative to other Australian children as a consequence of their detention

in a number of respects. Based on reports by the Commission the enjoyment

of their right to education (article 28) is significantly diminished relative

to children in the general community. As is their right to be free from

arbitrary deprivation of liberty, to be detained only as a measure of

last resort and have prompt access to legal and other appropriate assistance

as well as the right to challenge the legality of their deprivation of

liberty (art 37).

In many respects

the suggestion that refugee children are subject to differential treatment

may be uncontentious and the real issue is whether such treatment amounts

to unlawful discrimination. Importantly differential treatment will not

be considered lawful unless the criteria for the differentiation are reasonable,

objective and the aim is to achieve a purpose that is legitimate under

international law. [8]

The Australian Government

would therefore seek to defend its differential treatment of refugee children

on the basis that it is a well accepted proposition of international law

that a sovereign State has the power to defend its borders and regulate

the entry and exit of persons into its jurisdiction.[9]

Seen from this perspective it could be argued that the mandatory detention

of unauthorised refugee children and the differential treatment in the

provision of their visas, is a necessary and reasonable measure to achieve

a legitimate aim. In other words, in the absence of such a policy Australia

would have no effective means of achieving the legitimate aim of deterring

asylum seekers.

A closer analysis

however reveals significant defects in this assertion. First, while detention

may be warranted initially, ongoing and non-reviewable detention is not

a reasonable measure to achieve the legitimate aim of deterrence. This

much is clear from the decision of the Human Rights Committee in A

v Australia,[10] the UNCHR Guidelines on the Detention

of Refugees, [11] and judicial pronouncements in other

jurisdictions.[12] It is also clearly at odds with article

37(b) of the Convention which requires that detention of a child shall

only be used as a measure of last resort and for the shortest appropriate


No doubt the Government

would seek to further defend its policy on the basis that detention is

a measure of last resort and for the shortest appropriate time. But the

experience of other nations demonstrates that this claim is unsustainable.

Australia is not the only State to be plagued with the problem of how

to deal with authorised asylum seekers. Indeed in numerical terms many

other nations are faced with a far greater problem. However no other State

has found it necessary to resort to a policy of mandatory detention of

children seeking refugee status. In short, the experience of other States

demonstrates that far from being a measure of last resort, there are other

options which must be pursued. If after having tried these options the

Government could demonstrate that they proved to be an ineffective means

of deterring asylum seekers it may have a claim that detention is a measure

of last resort. Until such time however the Government has not satisfied

its onus of demonstrating that the current policy of mandatory detention

is a measure of last resort.

The prohibition against torture

and other cruel, inhuman and degrading treatment and punishment

Like the prohibition

against discrimination, the prohibition against torture and other cruel,

inhuman and degrading treatment or punishment ('the prohibition') is also

a fundamental principle of international human rights law from which no

derogation is permitted. No justification or extenuating circumstances

may be invoked to excuse a violation of the prohibition. [13]

Thus the Government cannot raise the right to defend its borders against

unauthorised refugees as a defence to acts which violate the prohibition.

As a party to numerous

instruments that include the prohibition, the Australian Government is

required to take all necessary steps to protect everyone, including refugee

children, against acts which violate the prohibition. [14]

Such acts relate not only to physical pain but also to acts that cause

mental suffering to the victim. [15]

Importantly the obligations

of the Australian Government under the prohibition must be read in conjunction

with the requirement under article 37(c) of the Convention to treat every

child deprived of his or her liberty with humanity, respect for the inherent

dignity of the human person and in a manner which takes account of the

needs and age of a child.

The policy and length

of mandatory non-reviewable detention and the conditions of refugee children

while detained both raise issues under the prohibition. Not so much as

incidents of torture (although this remains possible) but as potential

violations of the prohibition against cruel, inhuman or degrading treatment.

The Human Rights Committee has not offered much guidance about how to

assess these different categories preferring to avoid sharp distinctions

and focus on the nature, purpose and severity of the treatment applied.

[16] The European Court of Human Rights however provides

tests against which the treatment of refugee children in Australia can

be examined.

According the Court,

' ill treatment must attain a minimum level of severity if it is to fall

within the scope of article 3 [the equivalent provision of the prohibition

under the ECHR]. This assessment is relative: it depends on all the circumstances

of a case including the duration of the treatment, the physical and mental

effects and sometimes the sex, age and state of health of the victim.'


I am not in a position

to draw any firm conclusions as to whether the experience of refugee children

falls foul of this test other than to note that the sporadic media reports

detailing the experience of refugee children suggests that it is very

likely. Ultimately it remains for the Commission to evaluate the evidence

it receives from medical practitioners and its own investigations against

the legal test as to when treatment will amount to inhuman treatment.

In undertaking this

assessment with respect to the length of detention, the Commission would

be well advised to consider the decision of the Privy Council in Pratt

v Morgan [18] and subsequent cases, in which it was

held that delay when facing the death penalty could amount to cruel, inhuman

and degrading treatment. Such decisions could arguably be distinguished

on the basis that the applicants were facing the prospect of execution.

However it would be remiss not to canvass the possibility that the mental

agony occasioned by indefinite detention for a child coupled with the

prospect of deportation could not also amount to a violation of the prohibition.

In undertaking this

assessment it is important to keep in mind the observation of Sir Nigel

Rodley, the UN Special Rapporteur on Torture that 'children are necessarily

more vulnerable to the effects of torture [and other forms of ill treatment]

and because they are in critical stages of physical and psychological

development may suffer graver consequences than similarly ill treated

adults.' [19]

The Government is

likely to protest loudly at the prospect of any adverse finding by the

Commission that its detention and treatment of refugee children was never

intended to amount to inhuman treatment. However it is irrelevant that

the suffering be intended for the treatment to be inhuman. [20]


Refugee children

especially those who are unaccompanied are among the most vulnerable members

of an international community which has endorsed and ratified numerous

international instruments that seek to protect and advance the rights

of all children including refugee children. Australia purports to be a

member not only of this community but a member committed to the ideals

of equality and human rights. As a nation we pride ourselves on such virtues.

The reality however has displaced the rhetoric.

It has been said

that the refugee 'puts to test the claims of universalisation of human

rights.' [21] The examination of Australia's treatment

of refugee children fails this test. They have become, to borrow the words

of one commentator, 'non subjects, they have no rights or entitlements;

the law owes them nothing, their survival is at the discretion of state

benevolence…' [22]

In the face of this

reality it serves well to recall the words of a child who speaks about

the hope, desperation and fear that is likely to occupy the minds of the

children in Australia's detention centres:

So if you're

wondering whether its harder for the adults here than for the children,

the answer is no, its certainly not. Older people have an opinion about

everything and are sure of themselves and their actions. Its twice as

hard for us young people to hold on to our opinions at a time when ideals

are being shattered and destroyed, when the worst side of human nature

predominates, when everyone has come to doubt truth, justice and God.

Anyone who claims

that the old people have a more difficult time in the Annexee doesn't

realise that the problems have a far greater impact on us. We're much

too you to deal with these problems, but they keep thrusting themselves

on us until, finally, we're forced to think up a solution though most

of the time out solutions crumble when faced with the facts. Its difficult

in times like these: ideals, dreams and cherished hopes rise within

us, only to be crushed by grim reality. It's a wonder I haven't abandoned

all my ideals, they seem so absurd and impractical. Yet I cling to them

because, in spite of everything, that people are truly good at heart.


Anne Frank was not

able to realise her dreams or freedoms and died while in detention. But

she presents a challenge for the Australian Government in its treatment

of refugee children. Are their dreams of a better life to be 'crushed

by the grim reality' of mandatory detention or will an alternative solution

carved from the principles of international human rights law affirm Anne's

faith that 'in spite of everything … people are truly good at heart'?

1. Cited

in C Overington 'Giving all children a world worth having' The Age Thursday

2 May 2002, 15

2. C

Douzinas The End of Human Rights (Hart: Oxford 2000) 142.

3. See:

(2 May 2002). This figure includes both refugees as recognised under the

1951 Refugee Convention and internally displaced persons who have been

placed under the mandate of the UNHCR.

4. See

Charter of the United Nations, articles 1(2) and 55(c).

5. Minister

for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR para 34.

6. Although

the prohibition against appears in numerous international instruments

to which Australia is a party I make primary to the Convention as this

is the most relevant in the context of children.

7. See:

Human Rights Committee General Comment 18 para 7.

8. Ibid

para 13.

9. See

for example: Abdulaziz et al v United Kingdom (1985) 7 EHRR 471 at 497

('as a matter of well established international law and subject to its

treaty obligations, a state has the right to control the entry of non-nationals

into its territory')

10. Communication

No 560/1993 (detention per se not arbitrary but must be open to review

so that grounds justifying detention can be assessed)

11. These

are outlined in the Commission's background papers and need not be repeated


12. See

for example: Saadi and Ors V Secretary of State for the Home Department

[2001] EWCA Civ 1512 (19 October 2001).

13. See

Human Rights Committee General Comment 20 para 3.

14. Ibid

para 2.

15. Ibid

para 5.

16. Ibid

para 4.

17. Ireland

v UK 2 EHRR 25 (1978) para 162.

18. (1994)

2 AC 1.

19. E/CN4/1996/35

(9 January 1996) para 10.

20. Ibid

para 167: See also: Selcuk & Asker v Turkey (1998) 26 EHRR 477 where

the court held that the destruction of the applicant's homes by security

force amounted to inhuman treatment. As regards the motive for the actions

of the security forces the court declared that:

'… even if it were the case that the acts in question were carried

out without any intention of punishing the applicants but instead to prevent

their homes being used by terrorists or as discouragement to others, this

would not provide a justification for the ill treatment.' para 79-80.

21. C

Douzinas above n 1, 358

22. Ibid


23. Anne

Frank Diary of a Young Girl (Penguin Books England 2000) 329-330.


Updated 9 January 2003.