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A last resort? - Summary Guide: International Law

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

    What does international law say about the detention of children?

    As a sovereign country, Australia has a right to decide

    who is allowed to enter and stay in the country. However, with this right

    comes a set of legal responsibilities.

    Sovereignty doesn't mean that nations can do whatever they

    like. Over the past 50 years, the nations of the world have worked together

    to develop a system of international human rights law based on agreed

    standards and principles.

    By ratifying a treaty or convention, a country agrees to

    take on the rights and responsibilities of the treaty and uphold its principles

    in the policies and practices of the government.

    The fact that Australia has ratified a treaty does not mean

    that it automatically becomes part of Australian law - it needs to be

    specifically written into domestic law before there are enforceable rights.

    However, this does not mean that ratifying a treaty has no

    significance for Australia. As the High Court has said in the Teoh

    case, 'ratification of a convention is a positive statement ... that

    the executive government and its agencies will act in accordance with

    the Convention.'

    Australia has, as a sovereign country, freely entered into

    a range of human rights treaties and, therefore, has an obligation to

    put the principles of these treaties into practice in how it carries out

    its immigration policies.

    The Convention on the Rights of the Child

    The Inquiry has taken the rights set out in the Convention

    on the Rights of the Child, which Australia ratified in 1990, as the

    basis for its investigations. One of the basic principles of the Convention

    is that the best interests of the child should be a primary

    consideration in all decisions that affect them.

    The Convention also sets out specific requirements to protect

    the liberty of children including:

    • detention of children must be a measure of last

      resort

    • detention of children must be for the shortest appropriate

      period of time

    • children in detention have the right to challenge

      the legality of their detention before a court or another independent

      body

    • children should not be detained unlawfully or arbitrarily.

    Other key rights in the Convention are that:

    • children seeking asylum have a right to appropriate protection

      and assistance - because they are an especially vulnerable group of

      children

    • children separated from their parents have a right to special

      assistance

    • children in detention should be treated with respect and

      humanity and they have the right to healthy development and to be able

      to recover from past trauma

    • children seeking asylum, like all children, have rights

      to physical and mental health; education; culture, language and religion;

      rest and play; protection from violence; and to remain with their parents.

    The Inquiry also drew on other important human rights treaties,

    including the 1951 Convention relating to the Status of Refugees (and its 1967 Protocol), which requires Australia to offer protection

    to people fleeing persecution because of their race, religion, nationality,

    membership of a particular social group or political opinion.

    © Human Rights and Equal Opportunity Commission. Last updated 13

    May 2004.

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