National Inquiry into Children in Immigration Detention
Background Papers Index
Background Paper 2: Culture
those States in which ethnic, religious or linguistic minorities
exist, a child belonging to such a minority shall not be denied
the right, in community with other members of his or her group, to enjoy
his or her own culture, to profess and practise his or her own religion,
or to use his or her own language.
30, Convention on the Rights of the Child.
States Parties undertake to respect the right of the child to preserve
his or her identity, including nationality, name and family relations
as recognized by law without unlawful interference.
Where a child is illegally deprived of some or all of the elements of
his or her identity, States Parties shall provide appropriate assistance
and protection, with a view to re-establishing speedily his or her identity.
8, Convention on the Rights of the Child.
In this Background
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. The terms
of reference for the Inquiry include consideration of the rights of children
in immigration detention to culture, language and religion. 
This Background Paper
provides an overview of international human rights standards on culture
and identity that are relevant to the Inquiry. It is intended as a reference
and guide to individuals or organisations wishing to make a submission
to the Inquiry. It should be consulted where relevant, but it is not necessary
to refer to a Background Paper when making a submission.
For further information
about the Inquiry, general information on relevant international treaties
and standards and the material used in the Background Papers, see Background
Paper 1: Introduction. This and other Background Papers are available
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.
Rules and Guidelines
- Treaties 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.
- The 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.
This Background Paper
explores the need for child asylum seekers to retain their cultural identity
in a new country. Child asylum seekers are likely to have experienced
varying levels of violence and human rights abuses before or during their
journey to Australia. The child's flight from her or his home country
may include experiences of war, persecution, death, sexual assault, violence,
fear, flight and displacement. More specifically, the child may have either
witnessed the torture or murder of family members or directly suffered
abuse or violence prior to or during flight.  This
is followed by arrival in Australia, where a different culture, language
and religion may be practised, incarceration in a detention facility when
the child arrives without a visa and the fears and insecurities which
attach to migrant flight. 
of these experiences for children are the disruption of their lives and
the replacement of one set of rules and behaviours with another. Deprived
of their familiar cultural environment, child asylum seekers often experience
changes in their relationships with family and community members, as well
as a new set of relationships in the foreign country.  These changes bring particular developmental and emotional pressures to
bear on the child, which are addressed in Background
Paper 3: Mental Health and Development.
In considering the
rights to culture and an identity, the underlying principles of the Convention
on the Rights of the Child (the Convention) must always be considered.
All actions concerning the child must be non-discriminatory (article 2),
ensure the best interests of the child (article 3) and enable the child
to participate in decision making affecting her or him (article 12). 
Preservation of culture, religion and language
term culture refers to languages, traditions, rituals,
beliefs and art forms connected with an individual's identity.
Under the Convention,
Australia must ensure that every child in Australia, regardless of nationality
or immigration status and regardless of how the child arrived in Australia,
enjoys the rights to culture and identity outlined in the Convention without
discrimination of any kind.  Australia is obliged
to ensure the right of children belonging to ethnic, religious or linguistic
minorities to enjoy their culture, use their language and practise their
religion together with other members of their group. The Convention refers to "ethnic, religious or linguistic minorities",
which includes child asylum seekers.  The right to
culture, religion and language assumes great practical importance for
such children and is connected to their right "to preserve [their]
identity", as provided in article 8. 
The role of parents
The Convention recognises
the responsibilities, rights and duties of parents to provide "appropriate
direction and guidance" to their children. Parents are in the best position to assist their children to exercise
their cultural rights.
child, for the full and harmonious development of his or her personality,
should grow up in a family environment, in an atmosphere of happiness,
love and understanding,
Preamble, Convention on the Rights of the Child.
Since children depend
so heavily on their parents or carers, particularly in younger years,
it is important that parents are supported in directing the development
of their child, particularly in a new cultural environment such as Australia.  Where there are no parents to guide an unaccompanied
child, she or he is clearly in a more vulnerable category and must receive
Preservation of religion
Children must be
able to profess and practise their religion. They must also be able to
use their own language. Both these rights must be able to be exercised
not only in the child's immediate family circle, but also in conjunction
with members of the child's community. 
theistic and non-theistic beliefs. It is important that the child is able
to renew religious and ritual practices which may have been disrupted
during refugee or migrant movement. These practices are important physical
manifestations of the child's culture and assist in preserving the identity
of the child.  The UNHCR stresses the benefit to
community mental health of festivals and rites of passage:
and rites of passage such as birth, transition into adulthood, marriage
and death are extremely important in unifying a community and in conferring
identity on its individual members. The importance of such activities
to community mental health should not be underestimated. For example,
the provision of extra food for communal meals, or other material assistance
for funerals (burial cloths, coffins, firewood, etc.) can give vital
emotional support and sustain culture through a crisis.
In order to practise
their religion, along with other members of their
group, a child should have access to "books and other items of religious
observance and instruction and a diet in keeping with his or her religion".  They should be allowed to attend regular religious
services. Parents' responsibilities in ensuring their children receive
appropriate teaching and practice should be specifically recognised. Qualified
religious representatives should be allowed to pay pastoral visits to
child asylum seekers in detention to ensure proper instruction in their
religious beliefs. 
Preservation of language
Language is an important
element of a child's identity and any loss of the child's first language
may have long-term consequences for the child.  Where the mother tongue is lost, the child can become unable to communicate
with her or his family and community. Failure to communicate properly
with her or his parents may impact on a child's development. It is important
to recall that, although young children may be quick to adopt the local
language, parents will struggle to pick up a foreign language in the same
way, especially if they are illiterate. Child asylum seekers must be able
to retain and, where necessary, become literate in their mother tongue,
in addition to learning the local language. While children's rights to
use their own language under the Convention may not necessarily include
being taught entirely in that language, it may require that part of their
education be in their first language, particularly for young children. 
Arts and recreation
Arts and recreation
such as traditional music and dance allow the communication of cultural
values from one generation to the next and help restore and maintain social
cohesion in a child's life. Such activities include continued practice
and training in traditional skills and the celebration of traditional
events or festivals. Sports, games and other recreational activities are
important for community spirit and provide entertainment and relieve stress.  It is important for young children to be able to
play and express themselves freely.
Parties undertake to respect the right of the child to preserve his
or her identity, including nationality, name and family relations as
recognized by law without unlawful interference.
8(1), Convention on the Rights of the Child.
The right of children
to preserve their identity is another aspect of their culture. Article
8 of the Convention defines identity as including the child's nationality,
name and family relations. 
to nationality is connected to their asylum claim, including the
question of acquiring nationality rights in the country where they apply
for asylum, which will depend on the law of the local country (Australia)
Often, the reason why child asylum seekers are in Australia is because
they have lost their nationality rights in their home country. This loss may be on account of their family's religious, ethnic or social
origin, with the authorities persecuting the child's family or community
on this basis.
to a name is connected with their identity and must be respected always,
including through registration and record-keeping in Australia. 
The right to family
relations is reflected throughout the Convention.  However, article 8, which provides for the right of the child to preserve
her or his identity "including nationality, name and family relations",
is qualified by the phrase "as recognised by law". The United
Nations Children's Fund (UNICEF), noting the lack of clarity in this phrase,
states that the right extends beyond knowing who one's parents are (see
article 7 ), to include the child's siblings, grandparents
and other relatives. The term "family" can include "where
applicable, members of the extended family or community as provided for
by local custom, legal guardians or other persons legally responsible
for the child" (article 5). The concept of "children's identity"
extends beyond identity based on the family, but includes the child's
ability to form relationships with people outside the family:
From the secure
foundation of an established family environment, children can enjoy
complex and subtle relationships with other adults and with a range
of cultures, to a much larger degree than is often recognised. Thus
children's best interests and senses of identity may be sustained without
having to deny them knowledge of their origins, for example after reception
into State care 
The right to family
relations also extends to the right of separated children to be reunited
with their parents. 
The Convention provides
that States must recognise the seriousness to children of the loss of
their identity by ensuring resources are dedicated to remedy the situation. 
Article 22(2) obliges
Australia to actively trace the family or relatives of unaccompanied child
asylum seekers.  In addition, unaccompanied children
should have any changes to their identity, such as change of nationality,
officially recorded. 
Ways of ensuring
protection for unaccompanied children include securing "appropriate
temporary placement" for children while their identity is established,  including explaining to children what is happening
and why. Whether "appropriate temporary placement" would include
placement in detention rather than in family care will be considered in
the Inquiry, and submissions are welcomed on this point.
social and mental well-being of all refugees, but particularly of refugee
children, can be most effectively assured by the quick re-establishment
of normal community life.
Guidelines on Protection and Care (1994), ch 2.
According to the
UNHCR, restoring a sense of cultural normalcy to child asylum seekers
can be vital to ensuring normal development and is clearly in the best
interests of the child.  There is a tendency for
children who come into contact with a new culture to adapt and conform
to the new environment and to lose their culture more quickly than adults.
Care should be taken to ensure that children's culture is protected before
this loss occurs.
community life can restore the social and mental well being of child asylum
seekers.  Clearly, the ability of children to return
voluntarily to their country of origin in a situation of safety and security
is the best way to return a child to normal life. Sadly, this will not
always be possible. Child asylum seekers are entitled to refugee status
once they cross an international border and meet the international definition
of refugee and are unlikely to be allowed early return (discussed in Background
Paper 6: Legal Status). The UNHCR Guidelines on Policies and Procedures
in dealing with Unaccompanied Children Seeking Asylum (1997) state
that it should be presumed their parents or families have sent unaccompanied
children to a country of asylum in the belief that they need international
protection and that accordingly their asylum claims should be considered
Child asylum seekers
who are detained in Australia on account of their unauthorised arrival
will spend anything from a few weeks to a few years in detention, depending
on the length of time it takes to determine their asylum claim. If their
asylum application is rejected, they may face lengthy periods of time
in detention while appeals are exhausted and travel documents are sought
to allow their forced removal from the country. If accepted, they are
eligible for release on a temporary visa, with their longer term future
This Inquiry will
consider the treatment of all child asylum seekers and refugees in Australia,
including how their cultural rights are ensured.
of children capable of forming their own views in decision-making is a
central theme of the Convention.  Positive measures
may be needed to ensure child asylum seekers are heard and their needs
met. The UN Human Rights Committee has clarified that States Parties may
need to undertake positive measures "to protect the identity of a
minority and the rights of its members to enjoy and develop their culture
and language and to practise their religion, in community with other members
of their group".  For further discussion of
the right to participate in decision-making, see Background
Paper 1: Introduction.
The following questions
relate to the maintenance of a child's culture while in immigration detention
and may assist organisations and individuals in making submissions to
- How does Australia
meet its commitments to maintain children's culture under article 30
of the Convention with regard to legislation, policy and practice?
- What coordination,
if any, is there across government departments to ensure an emphasis
on restoring cultural normalcy to children? What coordination is there
between the Department for Immigration, Multicultural and Indigenous
Affairs (DIMIA), Australasian Correctional Management (ACM) and other
relevant agencies? Is there any independent overview of government arrangements,
including goals and indicators?
- What are the
daily programs in place in detention facilities to ensure that the language,
religion, arts and traditions of children's culture can be met? How
are local and ethnic communities involved? What should daily programs
- To what extent
do relevant non-governmental organisations partner or complement these
- To what extent
is the family unit supported in immigration detention to ensure children
can practice their culture? How is the preservation of culture included
in educational programs?
- What religious
instruction is available for children in immigration detention? How
regularly may children participate?
- What alternatives
to current arrangements exist overseas? To what extent can immigration
detention be made to work better to preserve children's cultural identity?
The full terms of reference are available at http://www.humanrights.gov.au/human_rights/children_detention/terms.html.
UNHCR (1994), Refugee Children: Guidelines on Protection and Care,
Geneva (UNHCR Guidelines on Protection and Care).
UNHCR Guidelines on Protection and Care, ch 2.
The country of asylum (Australia); see UNHCR Guidelines on Protection
and Care, ch 3.
Article 2, Convention. See Background Paper
Article 30 of the Convention. Article 30 effectively replicates article
27 of the International Covenant on Civil and Political Rights (ICCPR), which in turn emphasises the right of persons belonging to "ethnic,
religious or linguistic minorities" to the enjoyment of their own
distinctive culture. Article 27 ICCPR provides: "In those States
in which ethnic, religious or linguistic minorities exist, persons belonging
to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language."
Article 30, Convention. The Convention refers to all children on State
territory, regardless of whether they are citizens or non-citizens. Article
2 prohibits discrimination on the basis of immigration status (see also
General Comment 23 of the UN Human Rights Committee on article 27, ICCPR).
Note that the right to non-discrimination (article 2) and the separate
right for everyone to be treated equally (article 26), do not mean that
minorities cannot be recognised or are not in need of special protective
Article 8 is outlined below. See too UNHCR Guidelines on Protection and
Care; UNICEF (1998), Implementation Handbook for the Convention on
the Rights of the Child (UNICEF Implementation Handbook), United Nations
Children's Fund, New York, p407. These note articles 7 and 9 of the Convention
(right to know both parents), article 14 (freedom of religion under guidance
of parents), article 16 (prevents arbitrary or unlawful interference with
the child's family), article 20 (where a child is deprived of a family
environment, there should be cultural continuity in their upbringing),
article 21 (repeats this for inter-country adoption), article 29 (respect
for culture in the aims of education) and articles 10 and 22 (require
positive measures for child asylum seekers).
Articles 5, and 18, Convention. This right persists unless there is clear
evidence of abuse or neglect, in which case the State is expected to intervene
to protect the child; see articles 19, 34 and 39, Convention. Under article
3, Australia is obliged to promote the best interests of the child. Some
practices, asserted to be based on the customs of a country, such as female
genital mutilation or denial of basic education to girl children, violate
a child's basic human rights. See article 24(3) of the Convention and
article 2(f) of the Convention on the Elimination of all forms of Discrimination
Parents can include " where applicable, members of the extended
family or community as provided for by local custom, legal guardians or
other persons legally responsible for the child..", (article 5, Convention).
Article 20(1) of the Convention provides: "A child temporarily or
permanently deprived of his or her family environment, or in whose own
best interests cannot be allowed to remain in that environment, shall
be entitled to special protection and assistance provided by the State."
See also article 27, ICCPR.
UNHCR Guidelines on Protection and Care, ch 3.
UNHCR Guidelines on Protection and Care, ch 3.
See too, articles 18(1) and 27 ICCPR; article 1(1) Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief.
Human Rights and Equal Opportunity Commission (HREOC), Immigration
Detention Guidelines, para 5.1. See too Article 6 Declaration on
the Elimination of All Forms of Intolerance and of Discrimination Based
on Religion or Belief; Rule 42, UN Standard Minimum Rules for the
Treatment of Prisoners; Rule 48, United Nations Rules for the Protection
of Juveniles Deprived of their Liberty; see also Guideline 10 (viii) UNHCR (1999) Guidelines on applicable Criteria and Standards
relating to the Detention of Asylum-Seekers.
HREOC Immigration Detention Guidelines, para 5.2; Rule 41, UN
Standard Minimum Rules for the Treatment of Prisoners; Rule 48, United
Nations Rules for the Protection of Juveniles Deprived of their Liberty.
For example, if the child's asylum claim, along with that of the family,
is rejected and they are repatriated to their country of origin, any loss
of the child's mother tongue could be devastating to her or his future
UNICEF Implementation Handbook, p413, UNHCR Guidelines on Protection and
Care, ch 3. See generally, UNHCR Guidelines on Protection and Care, ch
UNHCR Guidelines on Protection and Care, ch 3.
See too UNICEF Implementation Handbook, p113.
See article 7, Convention, article 24 ICCPR, UNHCR 1997 Guidelines
on Policies and Procedures in dealing with Unaccompanied Children Seeking
Asylum; at para5.6; UNHCR Guidelines on Protection and Care, ch 8.
In particular articles 5, 7, 8, 9, 10, 18, 22, Convention.
Article 7(1) provides: "The child shall be registered immediately
after birth and shall have the right from birth to a name, the right to
acquire a nationality and, as far as possible, the right to know and be
cared for by his or her parents".
UNICEF Implementation Handbook, p113.
UNICEF suggests that long waiting lists for immigrant or emigrant children
should be replaced by speedy decisions "and with a presumption in
favour of the child being allowed to join their parents", citing
articles 9, 10 and 22.UNICEF, Implementation Handbook, p113.
Article 8(2), Convention.
Article 22(2) provides: "States Parties shall provide, as they consider
appropriate, co-operation in any efforts by the United Nations and other
competent intergovernmental organizations or non-governmental organizations
co-operating with the United Nations to protect and assist such a child
and to trace the parents or other members of the family of any refugee
child in order to obtain information necessary for reunification with
his or her family. In cases where no parents or other members of the family
can be found, the child shall be accorded the same protection as any other
child permanently or temporarily deprived of his or her family environment
for any reason, as set forth in the present Convention."
UNICEF Implementation Handbook p115.
UNHCR Guidelines on Protection and Care, ch 3 (discussed in Background
Paper 3: Mental health and Development).
UNHCR Guidelines on Protection and Care, ch 2.
According to the UNHCR, all interviews with unaccompanied children must
be carried out "by professionally qualified persons, specially trained
in refugee and children's issues. Insofar as possible, interpreters should
also be specially trained persons." UNHCR (1997) Guidelines on
Policies and Procedures in dealing with Unaccompanied Children Seeking
Asylum, Executive Summary.
Article 12, Convention.
Commenting on the equivalent provision of ICCPR article 27; General
Comment 23, at para 6.2. See also para 6.1.