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A last resort? - Summary Guide: Australia's Detention Policy

A last resort?

National Inquiry into Children in Immigration Detention

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    A Last Resort? - SUMMARY GUIDE. A Summary of the important issues, findings and recommendations of the National Inquiry into Children in Immigration Detention

    Australia's detention policy; does it protect children's human rights?

    While a short period of detention may be permitted

    for the purpose of conducting preliminary health, identity and security

    checks, Australia's detention system requires detention well beyond those

    permitted purposes. In fact, Australia's immigration detention laws and

    practices create a detention system that is fundamentally at odds with

    the Convention on the Rights of the Child.

    The Convention requires detention of children to be 'a measure

    of last resort'. However, Australia's immigration laws make the detention

    of unauthorised arrival children the first - and only - resort.

    The Convention requires the detention of children to be for

    'the shortest appropriate period of time'. However, Australia's immigration

    laws and policies require children to stay in detention until they are

    granted a visa or removed from Australia - a process that can take weeks,

    months or years.

    The Convention protects children against arbitrary detention

    and requires prompt review before an independent tribunal to determine

    whether the individual circumstances of a child justify their detention.

    However, Australian immigration laws require the detention of all unauthorised

    arrival children, regardless of their individual circumstances. These

    laws also expressly limit access to courts.

    The end result is the automatic, indeterminate, arbitrary

    and effectively unreviewable detention of children. No other country in

    the world has a policy like this.

    Immigration detention in a secure detention facility is not,

    by law, necessary. Since 1994 the Minister has had the power to declare

    any place in the community a place of 'detention', including a hotel,

    hospital, foster house or family home.

    However, this power has been extremely rarely used. As at

    the end of 2003, only two families had ever been transferred to this 'home-based

    detention'. Furthermore, it was not until a hunger strike, lip-sewing

    and a suicide pact occurred in January 2002 that arrangements were made

    to transfer about 20 unaccompanied children to foster home 'detention'

    in Adelaide.

    The Australian Government and the Department have regularly

    stated that keeping children who arrive with their parents together as

    a family is in the best interests of a child; therefore, if parents are

    detained then their children should remain in detention with them.

    The Inquiry believes this argument is flawed for a number

    of reasons. It implies that the Government has no other option but to

    detain parents and their children. It also implies that the rights of

    children can be traded off against each other, whereby a child's right

    to 'family unity' is more important than his or her right not to be held

    in detention for an indeterminate period of time. In addition, it fails

    to take account of the destructive effects of detention itself on family

    unity.

    There are other alternatives available to the Department

    and to policy makers - alternatives that would both allow a child to be

    with their parents and not be held in detention during the period that

    their visa application is being assessed.

    While alternative detention programs, such as the Woomera

    Residential Housing Project, offered improved day-to-day living conditions

    for children, they also raised their own problems.

    First, significant restrictions remain - children and

    parents are not free to make their own decisions about where they to go

    to school, where they play and so on. In addition, fathers in two-parent

    families are not allowed to take part in the program and, until late 2002,

    neither were boys aged 13 and over. This means that the housing projects

    lead to the separation of families, which can further undermine a child's

    sense of safety and well-being.

    Inquiry finding

    Australia’s immigration

    detention policy creates a fundamental breach of a child’s

    right to be detained as a measure of last resort and for the shortest

    appropriate period of time.

    In addition, long-term detention

    significantly undermines a child’s ability to enjoy a variety

    of other important rights.

    © Human Rights and Equal Opportunity Commission. Last updated 13

    May 2004.

    Comments and feedback welcome. Email: webfeedback@humanrights.gov.au