National Inquiry into Children in Immigration Detention
Background Papers Index
Background Paper 1: Introduction
In this Background
Inquiry into Children in Immigration Detention
- Overview of international treaties and standards on children's
Convention on the Rights of the Child
Convention in Australian law
Committee on the Rights of the Child
Guidelines on the Care and Protection of Refugee Children
standards and guidelines
Inquiry into Children in Immigration Detention
In November 2001, the
Human Rights Commissioner announced an Inquiry into the adequacy and appropriateness
of Australia's treatment of child asylum seekers and other children who
are, or have been, held in immigration detention, including:
- the provisions made
by Australia to implement its international human rights obligations
regarding child asylum seekers, including unaccompanied minors
- the mandatory detention
of child asylum seekers and other children arriving in Australia without
visas, and alternatives to their detention
- the adequacy and
effectiveness of the policies, agreements, laws, rules and practices
governing children in immigration detention or child asylum seekers
and refugees residing in the community after a period of detention,
with particular reference to:
- the conditions
under which children are detained
- health, including
mental health, development and disability
- the conditions
- the impact of detention
on the well-being and healthy development of children, including their
- the additional measures
and safeguards which may be required in detention facilities to protect
the human rights and best interests of all detained children
- the additional measures
and safeguards which may be required to protect the human rights and
best interests of child asylum seekers and refugees residing in the
community after a period of detention.
The term "child asylum
seeker" is used throughout the Background Papers. While the focus in these
papers is on children who have been detained when seeking asylum in Australia,
it is not intended to exclude other children who have been detained. The
Inquiry relates to any child who is, or who has been, in immigration detention.
"Child" refers to any person under the age of 18.
The Commission has
written a series of Background Papers, of which this is the first, to
provide an overview of international human rights standards in areas relevant
to the Inquiry. These Background Papers are available as a reference and
guide to individuals or organisations wishing to make a submission to
the Inquiry. They should be consulted where relevant, but it is not necessary
to refer to them when making a submission.
The Background Papers
- Culture and Identity
- Mental Health and Development
- Health and Nutrition
- Prevention, Treatment and Accommodation
- Legal Status
- Deprivation of Liberty and Humane Detention.
Rules and Guidelines
that have been ratified by Australia, such as the Convention on the
Rights of the Child, are binding on Australia in international law.
The implementation of treaty rights of people in Australia are monitored
by United Nations treaty bodies, such as the Committee on the Rights
of the Child or the Human Rights Committee.
fact that Australia has ratified a treaty does not automatically incorporate
it into Australian domestic law. Only when treaty provisions are incorporated
into Australian law do they create enforceable rights in Australia.
However, courts should interpret a law to be consistent with the provisions
of a treaty that Australia has ratified.
international documents and instruments such as United Nations Rules,
General Comments by treaty bodies, United Nations High Commissioner
for Refugees guidelines, United Nations General Assembly Declarations
and publications by United Nations agencies are not binding on Australia
as a matter of international law. They are, however, persuasive in
interpreting treaties and contain goals and aspirations reflecting
a consensus of world opinion.
The Human Rights and Equal
The Human Rights and
Equal Opportunity Commission (the Commission) is responsible for protecting
and promoting human rights, including:
- promoting an understanding
and acceptance of human rights in Australia
- undertaking research
to promote human rights
- examining laws relating
to human rights
- advising the federal
Attorney-General on laws and actions that are required to comply with
our international human rights obligations.
The Commission also
inquires into complaints of breaches of human rights under the Human
Rights and Equal Opportunity Commission Act 1986 (Cth).
One area of Commission
responsibility is the rights of children under the Convention on the
Rights of the Child (1989) (the Convention). Australia agreed to be
bound by the Convention in December 1990 when it ratified the Convention.
The Australian government has made the Convention a "relevant international
instrument" under the Human Rights and Equal Opportunity Act 1986
In 1998, the Commission,
in its report, Those who've come across the seas: Detention of unauthorised
arrivals, found that Australia's policy of mandatory and non-reviewable
detention of most unauthorised arrivals is in breach of its international
human rights obligations. For children, the Convention not only prohibits
unlawful or arbitrary detention, but requires that detention be used only
"as a last resort and for the shortest appropriate period of time".  These Background Papers should not be taken to endorse the mandatory
non-reviewable detention of unauthorised child arrivals in Australia.
Reasons for the Inquiry
As of November 2001,
there were 582 children in immigration detention, 53 of them unaccompanied.  Most, though not all, of these children are asylum seekers,
having arrived unauthorised in Australia with or without their parents.
Since 1994, practically all unauthorised arrivals in Australia - both
adults and children - have been subject to mandatory and non-reviewable
detention.  This non-reviewable detention ends when the individual is either
recognised as a refugee and granted a temporary protection visa or removed
from the country.  In very limited circumstances, a person may be granted a visa
on humanitarian grounds without being recognised as a refugee. 
Since 1999, there has
been an increase of asylum seekers arriving by boat from several hundred
to approximately 4000 per year. In this time, the numbers of children
held in immigration detention facilities has increased substantially to
approximately 550 at any one time. Detention facility populations constantly
fluctuate in numbers, but it is possible to estimate that several thousand
children have been held in immigration detention in Australia since 1999. 
Under a new policy
initiated by the Australian government in late August 2001 and later grounded
in a series of legislative provisions,  unauthorised arrivals, including children, are detained on arrival
in Australia and removed to third countries, such as Nauru and Papua New
Guinea, where their asylum claims are to be determined. It is unclear
how many of the children detained and removed in this way, will be returned
to Australia at a later date, resettled in a third country or returned
to their country of origin.
of international treaties and standards on children's rights
developed by nation states through the United Nations, set standards for
the care and protection of adults and children. These standards reflect
consensus principles of the international community, across different
cultural, religious and political systems. They are also international
legal obligations which countries freely commit to and whose provisions
they are then obliged to ensure, protect and promote. When a country ratifies
an international treaty, it undertakes to ensure that the standards outlined
in that treaty are applied to everyone in its territory.
Child asylum seekers
are protected by a number of international treaties and standards. The
main treaties are:
- the Convention
on the Rights of the Child(1989)
- the Convention
relating to the Status of Refugees(1951) and its 1967 Protocol (the Refugee Convention). 
The Convention on the Rights
of the Child
The Convention is a
comprehensive treaty, covering practically all areas of a child's life.
Currently, 192 countries are State Parties to the Convention.  All children, regardless of their immigration status, are entitled
to the full enjoyment of the rights outlined in the Convention.
Key rights outlined
in the Convention are:
- the right of all
children to enjoy all the rights of the Convention without discrimination
of any kind (article 2)
- the right to survival
and development (article 6)
- the best interests
of the child as a primary consideration in all actions concerning children
- the right of all
children to participate meaningfully in all matters affecting them (article
- the right to family
life (articles 5, 9, 18).
Under the Convention,
children in detention also have the right to:
- the highest attainable
standard of health (article 24)
- education (articles
28 and 29)
- practise their culture,
language and religion (article 30)
- freedom from torture,
ill-treatment and abuse (article 37)
- protection from
all forms of physical or mental violence, sexual abuse and exploitation
(articles 19 and 34)
- freedom of expression,
thought, conscience (articles 13, 14, 15)
- protection as an
asylum seeking child (article 22)
- recovery from the
effects of neglect, exploitation, abuse, torture or ill-treatment, or
armed conflicts (article 39)
- not be deprived
of liberty unlawfully or arbitrarily, with detention only in conformity
with the law, as a measure of last resort and for the shortest appropriate
period of time (article 37)
- access to legal
assistance and the right to challenge their detention (article 37)
- rest and play (article
- privacy (article
- a standard of living
adequate for physical, mental, spiritual, moral and social development
- if detained, be
treated with humanity and respect for their inherent dignity and in
a manner which takes into account their age (article 37).
The Convention recognises
that the degree to which children can exercise these rights independently
is influenced by their evolving maturity and capacities.  It also emphasises the rights and responsibilities of parents
to bring up their children "in an atmosphere of happiness, love and understanding". 
The Convention is available
The Refugee Convention
The Refugee Convention
defines a refugee and establishes the principle of non-refoulement.
Who is a
refugee is someone who "owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his nationality
and is unable, or owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having a nationality
and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling
to return to it".
1(A)(2), Refugee Convention.
is the principle that prohibits the forcible return of any person to
a country where they risk facing persecution on return.
33(1), Refugee Convention.
The Refugee Convention
makes no distinction between children and adults, except in the provision
of education. It provides that refugee children should receive "the
same treatment" as nationals in primary education and treatment at
least as favourable as non-refugee aliens in secondary education.
The relationship between the
Convention and the Refugee Convention
on the Rights of the Child effectively incorporates the rights set
out in the Refugee Convention. Article 22 of the Convention provides that
State Parties must ensure child asylum seekers "receive appropriate
protection and humanitarian assistance in the enjoyment of applicable
rights set forth in other international human rights or humanitarian
instruments to which the said States are Parties".  As Australia is a State Party to the Refugee Convention, it is obliged
to ensure the rights outlined in its provisions are afforded to child
asylum seekers under both the Refugee Convention and the Convention
on the Rights of the Child by virtue of article 22.
Other relevant treaties and
A number of other
human rights and humanitarian treaties and instruments outline relevant
standards for adult and child asylum seekers. Treaty rights are binding
and apply to all persons on state territory, regardless of immigration
status. These treaties include the:
Covenant on Civil and Political Rights(ICCPR)(1966)
Covenant on Economic, Social and Cultural Rights(1966)
Convention on the Elimination of All Forms of Racial Discrimination(1965)
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(1984)
on the Reduction of Statelessness(1961)
Relating to the Status of Stateless Persons(1954)
on the Elimination of All Forms of Discrimination against Women(1979)
Against Discrimination in Education(1960).
In addition to these
treaties, all ratified by Australia, the UN has issued a number of standards
concerning the detention of children. International instruments on juvenile
justice are included in the Inquiry under the principle that children
in immigration detention have not been arrested or charged with any crime
and accordingly their treatment should be at least as favourable as that
of untried or convicted prisoners.  These standards
are listed below in "further reading".
These standards do
not have the same legal status as treaty rights but assist in the interpretation
of treaty rights. For example, the United Nations Committee on the Rights
of the Child  has indicated in its general guidelines
for periodic reports that State Parties to the Convention must interpret
the term "deprivation of liberty" under article 37(b) of the
Convention as set out in the United Nations Rules for the Protection
of Juveniles Deprived of their Liberty (1990). Other relevant international instruments are appended at the end of this
The standards outlined
in these instruments are important indications of international consensus
on what principles should govern the detention and treatment of children
generally.  They also explain the applicable benchmarks
in considering whether the conditions in detention meet the requirement
of providing "appropriate protection and humanitarian assistance"
to child asylum seekers.  To give effect to the
provisions of the Convention, Australia is expected to have implemented
these standards into its law.
The Convention on the Rights of the Child
There are four general
principles enshrined in articles of the Convention, which guide interpretation
of the Convention as a whole and assist national implementation.  These four principles are:
- the best interests
of the child
- survival and development.
An additional right,
the right to family life, is of general importance to the Inquiry and
will also be discussed below.
one - best interests of the child (article 3)
all actions concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary
Article 3(1), Convention on the Rights of the Child.
The requirement in
article 3 of the Convention that the best interests of the child be given
"primary consideration" is a fundamental principle reflected
in the various provisions of the Convention. 
The principle relates
to all actions concerning children, including "decisions by courts
of law, administrative authorities, legislative bodies and both public
and private social-welfare institutions".  Upholding the "best interests" principle requires examination
of government policy formulation and individual decision-making regarding
children. Article 3(1) does not require the best interests of the child
to be the sole consideration in all decision-making, but it does require
the child's interests to be the subject of active consideration, with
evidence that children's interests have been taken into account as a primary
The principle of
the "best interests of the child" in article 3(1) is fundamental
to understanding Australia's obligation to implement the rights in the
Convention for all children.  The "best interests"
principle should be used by all decision makers, including service providers
in detention facilities, and be written into legislation in a way in which
it can be invoked before the courts. 
The "best interests"
rule can mean that in certain circumstances, such as abuse or exploitation,
the "best interests" of children requires that they be separated
from their parents. Usually, however, it means that their right to "grow
up in a family environment, in an atmosphere of happiness, love and understanding"  should be respected, as is emphasised throughout
the Convention. See the discussion below on the right to family life and
article 5 of the Convention.
States Parties must
report to the Committee on the Rights of the Child on how the "best
interests" of the child are reflected in "budgetary allocations,
including at the central, regional and local levels, and where appropriate
at the federal and provincial levels, and within governmental departments". Accordingly, budgetary constraints alone, such as in any contract or tender
between the Australian government and private detention operators, should
not be invoked as a reason for failing to provide children with adequate
health care, education or other rights in detention facilities.
The Inquiry will
examine, and welcomes submissions on, whether the detention of child asylum
seekers, either with their families, or unaccompanied, is in the "best
interests" of the child. It will also consider the extent to which
current "legislative, administrative and other measures" (article
4) take the "best interests of the child" into account. Another
avenue to be explored is how the Australian authorities consider the question
of whether children should be released into the community, under bridging
visas or other measures and the extent to which their family can be released
with them under current law and practice.
two - non-discrimination (article 2)
States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without discrimination
of any kind, irrespective of the child's or his or her parent's or legal
guardian's race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth
or other status.
States Parties shall take all appropriate measures to ensure that the
child is protected against all forms of discrimination or punishment
on the basis of the status, activities, expressed opinions, or beliefs
of the child's parents, legal guardians, or family members.
2, Convention on the Rights of the Child.
principle outlined in article 2 of the Convention prohibits discrimination
on the grounds of status, including immigration status. Every child in Australia is entitled to all of the rights under the Convention
without discrimination. Article 2 is particularly important when read
in conjunction with the other provisions of the Convention, for example,
the right to education and the rights to health, leisure and culture.
requirement raises issues for the Inquiry in relation to the mandatory
detention of children in Australia on account of their unauthorised arrival.
For example, children who arrive in Australia with their families on a
tourist or other temporary visa and subsequently apply for refugee status
are not detained. One issue this raises is whether Australia is in breach
of article 2 of the Convention on the ground of its different treatment
of child asylum seekers arriving without visas and children who arrive
on a tourist or temporary visa and subsequently seek asylum.
discrimination issue arises in relation to the different status that may
be granted to child asylum seekers depending on their mode of arrival
in Australia. Child asylum seekers who arrive without authorisation and
are detained may only receive a three year temporary protection visa when
recognised as a refugee, whereas those who arrive with authorisation and
are subsequently recognised as a refugee receive permanent residency.
The different legal status deriving from these refugee visas translates
into different rights and benefits for children.  The Inquiry welcomes submissions on these issues, including any difference
in treatment between child asylum seekers and other children in Australia. 
The principle of
non-discrimination also requires that conditions of detention do not impact
more severely on girls than on boys. The issue of equality on the basis
of sex is central to the principle.
principle does not mean that all child asylum seekers have a right to
live indefinitely in Australia. Article 2 of the Convention does mean,
however, that while they are in Australia, all child asylum seekers should
enjoy the same rights under the Convention, including rights to education,
health or participation rights in decisions concerning them.
Article 2(2) also
obliges Australia to protect children from discrimination or punishment
because of their parent's or family's activities, opinions, or beliefs.
three: participation (article 12)
Parties shall assure to the child who is capable of forming his or her
own views the right to express those views freely in all matters affecting
the child, the views of the child being given due weight in accordance
with the age and maturity of the child.
12(1), Convention on the Rights of the Child.
The Convention states
in article 12(1) that a child has the right to participate in all matters
concerning him or her, personally or through a parent or guardian. Article
12(2) outlines the right for a child to be heard in any judicial or administrative
proceedings affecting the child. The right to be heard may be direct,
or through a representative or an appropriate body.
decision making may include a child's participation in play and self-expression
activities, from drawing pictures to playing cricket. It can extend to
sharing opinions, discussing them with adults and having the adults give
the views "due weight". 
The right to participate
in decisions raises issues in relation to detained children. How do these
children participate in decisions concerning them, both in relation to
their asylum claim, their ongoing detention and their daily and weekly
routine in the detention facility? Who advocates for them? Who is their
guardian? How does the child participate in decisions concerning their
education, leisure, cultural activities? How are they involved in developing
skills and expressing themselves in different ways? What processes are
in place in the management of detention facilities to include children
and their families in these activities?
Equally, how do the
child's parents or guardians represent her or his best interests and participate
in proceedings, hearings or other decision-making concerning them, where
the child is too young or needs to be represented in part by parents or
In this respect,
it is noteworthy that the Committee on the Rights of the Child has suggested
that child asylum seekers must be allowed to participate in their asylum
hearing "and to express their concerns" including through a
"guardian mechanism"  (see
four: survival and development (article 6)
States Parties recognize that every child has the inherent right to
States Parties shall ensure to the maximum extent possible the survival
and development of the child.
6, Convention on the Rights of the Child.
The principles of
best interests, non-discrimination and participation have been referred
to as a "triangle of rights" that reinforce each other to achieve
the objective of "the survival and development" of the child
as stated in article 6. Survival and development refers not only to the
child's physical survival and healthy development, but to his or her mental
and emotional development (see also Background
Paper 3: Mental Health and Development).
to family life (article 5)
Parties shall respect the responsibilities, rights and duties of parents
or, where applicable, the members of the extended family or community
as provided for by local custom, legal guardians or other persons legally
responsible for the child, to provide, in a manner consistent with the
evolving capacities of the child, appropriate direction and guidance
in the exercise by the child of the rights recognized in the present
5, Convention on the Rights of the Child.
Under the Convention,
all children are entitled to grow up in a healthy family environment,
with parents or legal guardians of child asylum seekers having the primary
responsibilities for the upbringing of their children. Australia is also
obliged to ensure that unaccompanied children receive appropriate alternative
care and guardianship arrangements. 
Only where children
are in a situation "such as one involving abuse or neglect of the
child by the parents" or where the parents are separated, should
separation be contemplated and then only after due process where it is
in the best interests of the child. 
Article 37(b) of
the Convention provides that children should only be detained as a last
resort and for the shortest appropriate period of time. The provisions of article 37(b), read with the child's right to family
life, would indicate that alternatives to the detention of children which
involve the child remaining with her or his parents out of detention should
be considered as a first resort by Australia, with detention as a last
resort. The Inquiry will consider the extent to which this is correct
and how Australia's current legislative and administrative arrangements
conform to the Convention's requirements. Submissions are welcomed on
in Australian law
The Convention must
be implemented within Australian law and practice for the rights that
it recognises to have force. There are various international bodies that
assist in the interpretation and implementation of the Convention. The
following sections provide an overview of the implementation and interpretation
of the Convention for reference purposes and as a background to the Inquiry.
Implementation of Convention
Some of the Convention
rights are universal civil and political rights, such as the right to
be free of torture, cruel, inhuman or degrading treatment or punishment
and the right not to be deprived of one's liberty unlawfully or arbitrarily
(article 37(a) and (b)). These rights must be ensured in all States, regardless
of local circumstances.
The Convention also
provides for "progressive" economic, social and cultural rights,
which will increase in accordance with a State's economic development.
This recognises that some of the more costly reforms cannot be implemented
immediately in all countries, but will depend on their economic development.
Rights to health care (article 24) and education (articles 28, 29) may
need to be achieved "progressively". A
developing country may not be expected to grant such rights as secondary
education to all children overnight, whereas a developed country like
Australia may be in a position to do so.
Implementation of the Convention
In Australia, individuals
can only invoke rights under international treaties such as the Convention
to the extent that those rights have been implemented into domestic law.
Australia has not implemented the Convention's provisions into domestic
law. However, many of the obligations Australia has willingly assumed
in ratifying the Convention are reflected in an ad hoc manner under
domestic law. Some rights are met under existing laws. Many rights, however,
may not be guaranteed under current law and practice, such as the right
of child asylum seekers to challenge their detention before a judge or
a similar competent, independent and impartial authority (article 37(d),
Under the Teoh principle  , elaborated by the High Court in 1995,
administrative decision-makers are required to take rights under the Convention
into account in decision making where the right in question is not clearly
excluded by domestic law.  Courts may interpret
federal legislation as complying with the provisions of the Convention
where the meaning of the legislation is ambiguous. While the Teoh principle does potentially allow for the implementation of provisions
of the Convention, it does not appear to satisfy the requirement in the
Convention that "State Parties undertake all appropriate legislative,
administrative and other measures for the implementation of the rights
recognised in the present Convention". 
provisions are implemented in Australia through the functions of the Human
Rights and Equal Opportunity Commission. The Convention is a "relevant
international instrument" under the Human Rights and Equal Opportunity
Commission Act 1986 (Cth) which means that rights and freedoms recognised
in it are included in the definition of "human rights" for the
purposes of the Commission's functions. 
functions in relation to such human rights include:
acts of practices that may be inconsistent with or contrary to any human
conciliation to effect settlement; and
to the Attorney-General where the Commission finds that a practice
is inconsistent with or contrary to a human right
understanding and acceptance, and the public discussion, of human rights,
including through research and educational programmes
reporting to the
Attorney-General on matters relating to human rights, including action
that should be taken by the Commonwealth to comply with international
the leave of the court, in proceedings involving human rights issues.
The Commission, however,
is not empowered to compel government or non-government compliance with
the Convention's provisions. In addition, there is currently no national
statutory authority, such as an Ombudsperson or a Commissioner for Children
which oversees the implementation of the Convention into Australian law
and practice as is evident in other countries. 
Committee on the Rights of the Child
The Committee on
the Rights of the Child is established under the Convention to oversee
the progress made by State Parties in implementing the rights of the Convention.
The Committee cannot hear individual complaints.
the Committee on the Rights of the Child?
Committee on the Rights of the Child is the United Nations body that
oversees implementation of the Convention by State Parties.
States Parties must
report to the Committee every five years about the measures they have
adopted to give effect to the Convention rights. The Committee monitors
and supervises implementation and adherence to the Convention by State
Parties such as Australia through examining the periodic reports of States
and issuing Concluding Observations on State reports or General Comments.  These assist Australia, and other State Parties,
in the interpretation of the Convention.
Report was considered by the Committee in 1997. The Committee's Concluding
Observation 20 expressed concern at the detention of child asylum seekers:
The Committee is
concerned about the treatment of asylum seekers and refugees and their
children, and their placement in detention facilities. 
To date, the Committee
has issued only one general comment - on the aims of education in article
29(1) of the Convention. The general comments of other treaty bodies,
such as those of the Human Rights Committee, may also prove useful in
interpreting provisions in the Convention which are similar to those in
other treaties, particularly the ICCPR.
Article 45 of the
Convention recognises the special competence of the United Nations Children's
Fund (UNICEF) and other United Nations organs "to provide expert
advice on the implementation of the Convention in areas falling within
the scope of their respective mandates". UNICEF has produced a guide
to the implementation of the various provisions of the Convention, which
helps explain the Convention's provisions.  Interpretation
of the Convention's provisions is also assisted by the Committee's general
guidelines on initial and periodic reports and other international instruments
such as the United Nations Rules for the Protection of Juveniles Deprived
of their Liberty and relevant UNHCR guidelines on refugee and asylum
seeking children, discussed below.
guidelines on refugee and asylum seeking children
Who is the
United Nations High Commissioner for Refugees is the United Nations
body responsible for overseeing international treatment of refugees.
UNHCR is the intergovernmental
body with responsibility to provide international protection to refugees
and to find long term solutions to their problems.  Australia, as a State Party to the Refugee Convention, is obliged under
article 35 of that Convention to cooperate with the UNHCR in the exercise
of its functions and duty of supervising the Refugee Convention. 
The UNHCR has issued
a series of Guidelines on the treatment of refugee and asylum seeking
children. Although not all children held in immigration detention in Australia
are asylum seekers, most are.
The principles enshrined
in the UNHCR Refugee Children: Guidelines on Protection and Care (1994) (UNHCR Guidelines on Protection and Care) will be used in the Inquiry's
Background Papers to describe which standards should be implemented in
detention facilities. The UNHCR Guidelines on Protection and Care are
recognised internationally as appropriate standards for the protection
and assistance of refugee and asylum seeking children. The Committee on
the Rights of the Child has separately reaffirmed the importance of the
UNHCR Guidelines on Protection and Care, by noting that they were "fully
inspired by the Convention and shaped in the light of its general principles".  Other UNHCR Guidelines on detention and unaccompanied
children will be referred to throughout the Background Papers as relevant. 
The following questions
may assist organisations and individuals in making submissions to the
- How does Australia
meet its commitments to child detainees under the Convention and other
- What are the
relevant "legislative, administrative and other measures"
in place to ensure this? Where are the gaps?
- How are the
"best interests" of children in detention decided?
- How is the principle
of non-discrimination approached? How is this principle applied to the
various rights in the Convention in practice?
- Can children
(including through their parents or guardians) participate in decision
making concerning them?
- How is the right
to survival and development respected in detention facilities?
- How is the child's
right to family life ensured?
- How are Convention
rights reflected in the daily programs in place in detention facilities
standards and guidelines
- Committee on the
Rights of the Child, General Guidelines Regarding the Form and Content
of Initial Reports to be Submitted by States Parties under Article 44,
paragraph 1(a), of the Convention (1991)
- Committee on
the Rights of the Child, General Guidelines Regarding the Form and
Contents of Periodic Reports to be Submitted by States Parties under
Article 44, paragraph 1(b) of the Convention (1996)
- Standards relating
to the detention of children:
- the United
Nations Standard Minimum Rules for the Administration of Juvenile
Justice(the Beijing Rules)(1985)
- the Body
of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment(1988) 
- the United
Nations Rules for the Protection of Juveniles Deprived of their
- the United
Nations Standard Minimum Rules for Non-custodial Measures(the
Tokyo Rules) 
- the United
Nations Guidelines for the Prevention of Juvenile Delinquency(the Riyadh Guidelines)(1990) 
Committee conclusions and general guidelines on refugee and asylum
seeking children issued by the UNHCR, which include its:
44 on detention of refugees and asylum seekers 
on Refugee Children(1988)
Children: Guidelines on Protection and Care(1994)
on Policies and Procedures in dealing with Unaccompanied Children
on applicable Criteria and Standards relating to the Detention
of Good Practice" of the Separated Children in Europe Programme
(Save the Children/ UNHCR) (2000).
- the United
37(b) provides: "No child shall be deprived of his or her liberty unlawfully
or arbitrarily. The arrest, detention or imprisonment of a child shall
be in conformity with the law and shall be used only as a measure of last
resort and for the shortest appropriate period of time".
supplied by the Department of Immigration and Multicultural and Indigenous
detained under s189 must be kept in immigration detention [and that t]o
avoid doubt, subsection (1) prevents the release, even by a court, of
an unlawful non-citizen from detention (otherwise than for removal or
deportation) unless the non-citizen has been granted a visa." There is
one exception in which children can be released. Since 1 September 1994,
a "bridging visa" can be issued by the Minister for Immigration and Multicultural
and Indigenous Affairs under certain guidelines. Those eligible include
children, people over 75 years of age, spouses of Australian citizens
or persons with a special health need or with previous experience of torture
new regulations to deter unauthorised arrivals, introduced in 1999 and
extended through new laws passed in September 2001, including the Migration
Amendment (Excision from Migration Zone) (Consequential Provisions) Act
2001 (Cth), children and adults who arrive in an "excised offshore
place" such as Christmas Island and the Ashmore Islands are only permitted
to apply for a protection visa in Australia under a non-compellable, non-reviewable
Ministerial discretion to allow them to do so and the Minister must lay
the reasons for doing so before Parliament; s46A Migration Act 1958 (Cth). Those allowed to apply who are subsequently recognised as refugees
only receive temporary protection. The temporary protection visa subclass
contains substantial visa restrictions, including the requirement that
the refugee must reapply for another protection visa after 30 months and
will be ineligible in most cases for permanent protection (therefore denying
any possibility of full residency status or citizenship). Temporary protection
visa holders also do not benefit from the same rights as other asylum
seekers recognised as refugees and granted permanent protection such as
access to English classes, family reunion, and the ability to leave the
country and return. Further discussion of the new laws can be found in
Background Paper 7: Legal Status.
visa may be granted by Ministerial discretion under s417 of the Migration
Act 1958 (Cth).
figures are approximate only and are based on the estimated percentage
of children in immigration detention relative to total immigration detention
populations between 1999 and 2002, which approximates at 20 per cent.
For example, on 23 January 2002, there were 236 children in Woomera detention
facility and 80 children in Phospate Hill detention facility (Christmas
Island). The Inquiry will inquire into the precise numbers of children
in immigration detention since 1999.
provisions include the Border Protection (Validation and Enforcement
Powers) Act 2001, the Migration Amendment (Excision from Migration
Zone) Act 2001 and the Migration Amendment (Excision from Migration
Zone) (Consequential Provisions) Act 2001.
1967 Protocol lifted the temporal and geographic restrictions of the 1951
Convention, making the Convention applicable to all refugee situations
See article 5, Convention.
UNHCR (1994), Refugee Children: Guidelines on Protection and Care (UNHCR
Guidelines on Protection and Care), ch 2. Article 22, Refugee Convention
"1. The Contracting States shall accord to refugees the same treatment
as is accorded to nationals with respect to elementary education.
2. The Contracting States shall accord to refugees treatment as favourable
as possible, and, in any event, not less favourable than that accorded
to aliens generally in the same circumstances, with respect to education
other than elementary education and, in particular, as regards access
to studies, the recognition of foreign school certificates, diplomas and
degrees, the remission of fees and charges and the award of scholarships."
Article 22(1) of the Convention provides: "States Parties shall take
appropriate measures to ensure that a child who is seeking refugee status
or who is considered a refugee in accordance with applicable international
or domestic law and procedures shall, whether unaccompanied or accompanied
by his or her parents or by any other person, receive appropriate protection
and humanitarian assistance in the enjoyment of applicable rights set
forth in the present Convention and in other international human rights
or humanitarian instruments to which the said States are Parties."
The Commission has asserted that the vulnerability of detained adult and
child asylum seekers and the fact that they are not held as suspects or
convicted offenders "argue strongly for the adoption of international
minimum standards for juvenile detainees where these are more favourable
than those applicable to adults, including adult prisoners. Since immigration
detainees are not held as criminal suspects or because they represent
a risk to community safety, the most lenient detention regime is appropriate."
See Immigration Detention Guidelines, Human Rights and Equal Opportunity
Commission, March 2000, available at http://www.humanrights.gov.au/human_rights/asylum_seekers.
See discussion of the Committee below.
Specifically the Committee stated that "deprivation of liberty means
any form of detention or imprisonment or the placement of a person in
another public or private custodial setting from which this person is
not permitted to leave at will by order of any judicial, administrative
or other public authority (rule 11(b))", General Guidelines Regarding
the Form and Contents of Periodic Reports to be Submitted by States Parties
under Article 44, paragraph 1(b) of the Convention (Guidelines for
Periodic Reports) adopted by the Committee on the Rights of the Child
on 11 October 1996, Part V111B(2): 20/11/96, UN Doc CRC/C/58. Similarly,
the Human Rights Committee, which supervises the ICCPR, has indicated
that corresponding article 9 is "applicable to all deprivations of
liberty, such as immigration control": Human Rights Committee
(HRC), General Comment 8: Right to liberty and security of persons
(Art. 9), 30 July 1982.
See UNICEF (1998), Implementation Handbook for the Convention on the
Rights of the Child (UNICEF Implementation Handbook), UNICEF, New
Article 22, Convention.
UNICEF, Implementation Handbook, p 37; Fact Sheet No.10 (Rev.1), The
Rights of the Child, Vienna Declaration and Programme of Action (Part
1, para.21), adopted by the World Conference on Human Rights, Vienna,
25 June 1993, (A/CONF. 157/24 (Part 1), ch 111).
As UNICEF notes, the concept of "best interests" of children
has been the subject of more academic analysis than any other provision
of the Convention; see UNICEF, Implementation Handbook, p39.
Where the term "best interests" are used elsewhere in the Convention,
the "best interests" of the child may become of paramount consideration.
For example, separation from their parents in article 9(1) should only
occur where "separation is necessary for the best interests of the
child", UNICEF, Implementation Handbook, p41.
As required by article 4 of the Convention.
UNICEF, Implementation Handbook, p43.
Preamble to the Convention.
Committee on the Rights of the Child, Guidelines for Periodic Reports,
Prohibition of discrimination "of any kind, irrespective of the
child's or his or her parent's or legal guardian's race or other
status", article 2, Convention.
See discussion on temporary protection visas above.
See the comments of the Committee on the Rights of the Child to Sweden:
"The Committee is also concerned by the practice of taking foreign
children into custody under the Aliens Act and notes that this practice
is discriminatory in so far as Swedish children generally cannot be placed
in custody until after the age of 18." Concluding observations
of the Committee on the Rights of the Child : Sweden, UN Doc CRC/C/15/Add.2,
18 Feb 1993, para 9.
Article 12, Convention.
Concluding Observations on Norway's periodic report, Concluding Observations
of the Committee on the Rights of the Child : Norway, UN Doc CRC/C/15/Add.126,
28 June 2000, paras 48-52.
Discussed further in Background Paper 3: Mental Health and Development.
See articles 5, 9(1) and 18 of the Convention. Article 9(1) provides:
"States Parties shall ensure that a child shall not be separated
from his or her parents against their will, except when competent authorities
subject to judicial review determine, in accordance with applicable law
and procedures, that such separation is necessary for the best interests
of the child. Such determination may be necessary in a particular case
such as one involving abuse or neglect of the child by the parents, or
one where the parents are living separately and a decision must be made
as to the child's place of residence." See also Australia's obligation
to protect against child abuse in article 19 and article 34.
Article 37(b) provides: "No child shall be deprived of his or her
liberty unlawfully or arbitrarily. The arrest, detention or imprisonment
of a child shall be in conformity with the law and shall be used only
as a measure of last resort and for the shortest appropriate period of
See Fact Sheet No.10 (Rev.1), The Rights of the Child.
Since 1995, three Bills seeking to reverse the Teoh decision have
passed the House of Representatives but have been defeated in the Senate.
Article 4, Convention.
See ss3(1), 3(4) and 11, Human Rights and Equal Opportunity Commission
Act 1986 (Cth). The Human Rights and Equal Opportunity Commission
Act 1986 established the Commission in 1986 and outlines the Commission's
functions and powers. Among the Commission's functions is that of monitoring
the implementation of seven international human rights instruments adopted
Covenant on Civil and Political Rights
of the Rights of the Child
on the Rights of the Child
Concerning Discrimination in Respect of Employment and Occupation (ILO
on the Rights of Mentally Retarded Persons
on the Rights of Disabled Persons and
on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief.
In addition, the
Commission has responsibility for monitoring both the Racial Discrimination
Act 1975, which gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial
Discrimination, and the Sex Discrimination Act 1984, which
gives effect to Australia's obligations under the Convention on the
Elimination of All Forms of Discrimination Against Women and certain
aspects of the International Labour Organisation (ILO) Workers with
Family Responsibilities Convention, 1981.
See the Committee on the Rights of the Child's recommendation to Finland:
"The Committee invites the State party to seriously consider the
establishment of an independent national ombudsperson for children, taking
into account the positive experiences in other Nordic countries, and not
to let purely financial considerations determine the decision", Concluding
Observations of the Committee on the Rights of the Child : Finland,
UN Doc CRC/C/15/Add.132, 16 Oct 2000, para 20. See the Recommendation
in Australian Law Reform Commission & Human Rights and Equal Opportunity
Commission (1997), Seen and Heard, priority for children in the legal
process, Appendix D, that an Office for Children (OFC) should be established
within the office of the Prime Minister and Cabinet.
"At the very end of the process, the Committee adopts "concluding
observations", which are a statement on its consideration of a State's
report. Concluding observations are meant to be widely publicised in the
State party and to serve as the basis for a national debate on how to
improve the enforcement of the provisions of the Convention. They therefore
constitute an essential document: Governments are expected to implement
the recommendations contained therein." Fact Sheet No.10 (Rev.1),
The Rights of the Child.
Australia, UN Doc CRC/C/15/Add.79, 10 Oct 1997.
UNICEF, Implementation Handbook.
Statute of the Office of UNHCR, Article 1.
Article 35 provides:
"1. The Contracting States undertake to co-operate with the Office
of the United Nations High Commissioner for Refugees, or any other agency
of the United Nations which may succeed it, in the exercise of its functions,
and shall in particular facilitate its duty of supervising the application
of the provisions of this Convention.
2. In order to enable the Office of the High Commissioner or any other
agency of the United Nations which may succeed it, to make reports to
the competent organs of the United Nations, the Contracting States undertake
to provide them in the appropriate form with information and statistical
data requested concerning:
(a) The condition of refugees,
(b) The implementation of this Convention, and
(c) Laws, regulations and decrees which are, or may hereafter be, in force
relating to refugees."
See also article 11 of the 1967 Protocol to the Convention. Both Resolution
428 (V) of the UN General Assembly and the Statute of UNHCR, which was
annexed thereto, called for cooperation between Governments and the High
Commissioner's Office in the performance of the High Commissioner's functions.
Committee on the Rights of the Child, Report on the seventh session,
UN Doc CRC/C/34, November 1994, p61. See also UNICEF, Implementation Handbook,
Other UNHCR Guidelines, including the Guidelines on applicable Criteria
and Standards relating to the Detention of Asylum-Seekers (1999),
Guidelines on Policies and Procedures in dealing with Unaccompanied Children
Seeking Asylum (1997) and Save the Children/ UNHCR, "Statement
of Good Practice" of the Separated Children in Europe Programme (2000)
will also be employed in considering the extent to which the detention
of child asylum seekers should occur.
Adopted by General Assembly resolution 43/173 of 9 December 1988.
Adopted by General Assembly resolution 45/113 of 14 December 1990.
Adopted by General Assembly resolution 45/110 of 14 December 1990.
Adopted by General Assembly resolution 45/112 of 14 December 1990.
Executive Committee (EXCOM) Conclusion No. 44 (1986) - Detention of Refugees