A last resort?
National Inquiry into Children in Immigration Detention
The Inquiry has found that Australian laws that require
the mandatory immigration detention of children, and the way these laws
are administered by the Commonwealth, have resulted in numerous and repeated
breaches of the Convention on the Rights of the Child.
The Inquiry made a range of factual findings in relation
- monitoring of conditions in detention centres
- Australia's detention laws and policy
- Australia's refugee status determination system
as it applies to children
- safety and security
- mental health
- physical health
- children with disabilities
- recreation and play
- unaccompanied children
- religion, culture and language
- temporary protection visas.
These factual findings, based on evidence received
by the Inquiry, were assessed against Australia's human rights obligations
under the Convention on the Rights of the Child. From this, the
Inquiry reached its major findings and recommendations.
MAJOR FINDING 1
Australia's immigration detention laws, as administered
by the Commonwealth, and applied to unauthorised arrival children, create
a detention system that is fundamentally inconsistent with the Convention
on the Rights of the Child (CRC).
In particular, Australia's mandatory detention system
fails to ensure that:
(a) detention is a measure of last resort, for the
shortest appropriate period of time and subject to effective independent
review (CRC, article 37(b), (d))
(b) the best interests of the child are a primary
consideration in all actions concerning children (CRC, article 3(1))
(c) children are treated with humanity and respect
for their inherent dignity (CRC, article 37(c))
(d) children seeking asylum receive appropriate
assistance (CRC, article 22(1)) to enjoy, 'to the maximum extent possible',
their right to development (CRC, article 6(2)) and their right to live
in 'an environment which fosters the health, self-respect and dignity'
of children in order to ensure recovery from past torture and trauma
(CRC, article 39).
MAJOR FINDING 2
Children in immigration
detention for long periods of time are at high risk of serious mental
harm. The Commonwealth's failure to implement the repeated recommendations
by mental health professionals that certain children be removed from the
detention environment with their parents amounted to cruel, inhumane and
degrading treatment of those children in detention (CRC, article 37(a)).
MAJOR FINDING 3
At various times
between 1999 and 2002, children in immigration detention were not in a
position to fully enjoy the following rights:
(a) the right to be protected from all forms of physical
or mental violence (CRC, article 19(1))
(b) the right to enjoy the highest attainable standard
of physical and mental health (CRC, article 24(1))
(c) the right of children with disabilities to 'enjoy
a full and decent life, in conditions which ensure dignity, promote
self-reliance and facilitate the child's active participation in the
community' (CRC, article 23(1))
(d) the right to an appropriate education on the
basis of equal opportunity (CRC, article 28(1))
(e) the right of unaccompanied children to receive
special protection and assistance to ensure the enjoyment of all rights
under the CRC (CRC, article 20(1)).
Children in immigration
detention centres and residential housing projects, as at the date of
the tabling of this report, should be released with their parents as soon
as possible, but no later than four weeks after tabling.
Minister and the Department can effect this recommendation within the
current legislative framework by one of the following methods:
(a) transfer into the community (home-based detention)
(b) the exercise of Ministerial discretion to grant
humanitarian visas pursuant to section 417 of the Migration Act
(c) the grant of bridging visas (appropriate reporting
conditions may be imposed).
If one or more parents are assessed to
be a high security risk, the Department should seek the urgent advice
of the relevant child protection authorities regarding the best interests
of the child and implement that advice.
detention laws should be amended, as a matter of urgency, to comply with
the Convention on the Rights of the Child.
particular, the new laws should incorporate the following minimum features:
(a) There should be a presumption against the detention
of children for immigration purposes.
(b) A court or independent tribunal should assess
whether there is a need to detain children for immigration purposes
within 72 hours of any initial detention (for example, for the purposes
of health, identity or security checks).
(c) There should be prompt and periodic review by
a court of the legality of continuing detention of children for immigration
(d) All courts and independent tribunals should
be guided by the following principles:
(i) detention of children must be a measure of
last resort and for the shortest appropriate period of time
(ii) the best interests of the child must be a
(iii) the preservation of family unity
(iv) special protection and assistance for unaccompanied
(e) Bridging visa regulations for unauthorised arrivals
should be amended so as to provide a readily available mechanism for
the release of children and their parents.
guardian should be appointed for unaccompanied children and they should
receive appropriate support.
of treatment for children in immigration detention should be codified
There should be
a review of the impact on children of legislation that creates 'excised
offshore places' and the 'Pacific Solution'.
The Inquiry acknowledges
that Australia has a legitimate right to develop and maintain an immigration
system. However, Australia also has a responsibility to do so in a way
that respects the fundamental rights of children. The current mandatory
detention regime fails to meet that responsibility.
Department should carefully consider the conditions in which children
are detained, and the services it provides to children in detention, taking
into account the Inquiry's findings across the broad range of areas.
However, the Inquiry does not make detailed recommendations
about improving these individual areas because recommendations for improvements
within the current system fail to address the fundamental breach of children's
rights - namely, the manner and nature of mandatory detention itself.
This Inquiry does not seek to outline the precise
structure of a new immigration detention system. The Inquiry recognises
that any reform of the current system will require a broad consultation
process that takes into account a wide variety of factors, including issues
that have not been considered by this Inquiry.
drawing on the Convention on the Rights of the Child, the Inquiry
has set out in its recommendations the key principles that should be the
primary reference point in the development of any new migration laws and
The key principles are that:
- children can only be detained as a measure of last
resortand for the shortest appropriate period of time
- the best interests of the child
must be a primary consideration in all actions concerning children
- unaccompanied children must receive special
assistanceso that they are in a position to enjoy the same
rights as all other children
- children have the right to family unity
- children must be treated with humanity and
respectfor their inherent dignity
- children enjoy - to the maximum extent possible
- the right to development and recovery from past torture and
- asylum-seeking children must receive appropriate
assistance to enjoy their rights - including the right to be
protected under the Convention relating to the Status of Refugees.
A child riding a trike at Woomera