A last resort?
National Inquiry into Children in Immigration Detention
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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'
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
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.
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