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 ' 
The UNHCR estimates that there are over 21 million refugees worldwide.
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.  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
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:
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 
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
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. 
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).
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. 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.
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. 
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.
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
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, the UNCHR Guidelines on the Detention
of Refugees,  and judicial pronouncements in other
jurisdictions. 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. 
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. 
Such acts relate not only to physical pain but also to acts that cause
mental suffering to the victim. 
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.
 The European Court of Human Rights however provides
tests against which the treatment of refugee children in Australia can
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  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
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. 
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.'  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 ' 
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'?
in C Overington 'Giving all children a world worth having' The Age Thursday
2 May 2002, 15
Douzinas The End of Human Rights (Hart: Oxford 2000) 142.
(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.
Charter of the United Nations, articles 1(2) and 55(c).
for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR para 34.
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.
Human Rights Committee General Comment 18 para 7.
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')
No 560/1993 (detention per se not arbitrary but must be open to review
so that grounds justifying detention can be assessed)
are outlined in the Commission's background papers and need not be repeated
for example: Saadi and Ors V Secretary of State for the Home Department
 EWCA Civ 1512 (19 October 2001).
Human Rights Committee General Comment 20 para 3.
v UK 2 EHRR 25 (1978) para 162.
2 AC 1.
(9 January 1996) para 10.
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.
Douzinas above n 1, 358
Frank Diary of a Young Girl (Penguin Books England 2000) 329-330.
Updated 9 January 2003.