Commission Website: National Inquiry into Children in Immigration Detention
Archived
You are in an archived section of the website. This information may not be current.
This page was first created in December, 2012
here to return to the Submission Index
Submission to National Inquiry
into Children in Immigration Detention from
Mr Krishna Rajendra
Executive Summary
Article 3(1) of the
United Nations Convention on the Rights of the Child provides that
a child's best interests are to be a primary consideration in all actions
concerning them. The Australian system, whereby the guardian of unaccompanied
child asylum seekers is the Minister for Immigration and Multicultural
and Indigenous Affairs, rather than an authoritative, independent statutory
body, does not ensure that the requirements of article 3(1) are met. Broad
discretionary powers, limited review mechanisms and a general lack of
political independence undermine Australia's ability to meet its international
obligations.
Context
Under the Immigration
(Guardianship of Children) Act 1946 (Cth) (IGOC), the Minister
for Immigration and Multicultural and Indigenous Affairs ("the Minister")
is the custodian [1] of unaccompanied children . [2]
The Minister's duties
as guardian are regulated by IGOC. Section 6 provides that:
(1) A custodian
shall provide for the welfare and care of every non-
citizen child, of whom he is the custodian.
(2) The duties and obligations of a custodian in relation to any such
non-citizen child shall be in pursuance of the Child Welfare laws
of the State in which the custodian is resident.
The Minister has
the power to delegate responsibilities relating to the welfare of unaccompanied
minors to relevant state authorities, and private enterprise as outlined
in memorandums of understanding. [3] At present, all
six operational detention centres in Australia are managed by the Department
of Immigration and Multicultural and Indigenous Affairs ("DIMIA")
and operated under contract by Australasian Correctional Management ("ACM").
[4] The performance of detention centre operators is
monitored by DIMIA in accordance with Immigration Detention Standards
("IDS").[5] Clause 9.2 of the IDS relates specifically
to unaccompanied minors. It reads:
Unaccompanied minors
are detained under conditions which protect them from harmful influences
and which take account of the needs of their particular age and gender.
These domestic obligations
must be viewed within the context of international instruments, and in
particular the United Nations Convention on the Rights of The Child
("UNCROC" or "the Convention"). For all matters
not explicitly covered by the positive rights set out in the Convention,
[6] article 3(1) is the central tool with which to evaluate
the laws and practices of the States Parties. [7] Article
3(1) sets out a principled interpretative framework with which to consider
all actions concerning children.[8] It provides that:
In 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 consideration.
UNCROC is not part
of domestic law. However as a result of the High Court decision Minister
of State for Immigration and Ethnic Affairs v Ah Hin Teoh [9]
("Teoh"), unaccompanied children have a legitimate expectation
that administrative decision-makers will consider Australia's obligations
under UNCROC.
The "Best Interests"
Principle
Whilst UNCROC does
not define "best interests", at international law this concept
is not as indeterminate as some commentators believe. [10]
The flexibility which results from the provision that a child's best interests
are to be "a primary consideration" [11]
rather than "the primary consideration" (emphasis added)
suggests that what constitutes "best interests" must be considered
in the context of the Preamble and all positive rights in UNCROC.[12]
In Teoh, Chief Justice Mason and Justice Deane stated that a decision-maker
must engage in a calculation of relevant factors, basing the final assessment
upon whether any consideration outweighed the best interests of the child.
However, the Convention
does not indicate what priority competing rights should be accorded, which
factors are capable of overriding the best interests principle, or whether
external considerations are permissible. [14] Thus,
interpretive difficulties may arise when considering whether collective
interests outweigh the interests of an individual or whether article 3(1)
refers to long-term or short-term interests. [15]
Australia and
Article 3
The use of the term
"a primary consideration" rather than "the primary consideration"
in article 3 has had serious implications for the practical effectiveness
and legitimacy of "best interests". It enables other perceived
primary considerations such as national or economic interests to compete
as a relevant factor, [16] often to the detriment of
the best interests of a child . [17]
The utilitarian nature
of Australia's contemporary approach is demonstrated by the language of
the IDS [18], and encapsulated by the current Minister,
Philip Ruddock's statement, that:
What this government
[is] about [is] managing the Immigration Program so that it deliver[s]
outcomes that [are] in the best interest of all of us. [19]
Under article 3,
the Commonwealth is able to argue that the Australian interests outweigh
the best interests of unaccompanied children, regardless of international
opinion. [20]
Discretion
The IDS, which are
directed toward private operators, are the only domestic guidelines that
assist in the assessment of the best interests of a child. As recognised
by Justice Brennan:
[T]he best interests
approach depends upon the value system of the decision-maker. Absent
any rule or guideline, that approach simply creates an un-examinable
discretion in the repository of the power. [21]
Thus, in the absence
of comprehensive guidelines, the Minister is afforded considerable discretion
when determining the scope of "best interests". This lack of
guidance significantly undermines the ability of the Minister, or his
or her delegate, to accurately assess what is in the best interests of
a child, and thus undermines Australia's ability to meet its obligations
under UNCROC. Although the Commonwealth has established the Immigration
Detention Advisory Group ("IDAG"), this body focuses upon policy
and its recommendations are non-binding. [22]
Recommendation
1
That the Australian
government implement measures recognising the unique and vulnerable position
of unaccompanied minors, by:
- The statutory
implementation of UNCROC.
- The development
and publication of detailed guidelines (incorporating UNHCR guidelines)
that set out the how the best interests of the child shall be determined
and the procedures by which unaccompanied minors will be processed as
asylum seekers.
- The establishment
of a statutory investigatory body that is responsible for ensuring compliance
with guidelines and that has binding force.
Structural Impediments
A number of structural
impediments limit the Minister's ability to ensure that the "best
interests" of each child are met.
1. As at November
2001, the Minister was the guardian of 53 unaccompanied children.[23]
Due to the Minister's onerous workload, he cannot satisfactorily fulfil
his duties to each individual detainee.
2. Under the Migration
Act 1958 (Cth) ("the Migration Act"), DIMIA is responsible
for the apprehension, detention and deportation of unaccompanied children,
in addition to their care, placement and legal protection, and processing
of claims. Vesting all such administrative functions in the one body
creates tension between the child's best interests as a primary consideration
and other ministerial responsibilities.
3. The Minister's
ability to delegate his or her responsibilities to private enterprise
is problematic. Under contract, ACM is subject to a system of monetary
fines for "incidents" inside their camps. A common criticism
is that ACM treats the needs of detainees as a commercial rather than
humanitarian interest. [24] Private enterprise may
not be willing to act in the best interests of the child where this
compromises profit.
Recommendation
2
- That the Minister
be prevented, by enactment, from delegating his or her responsibilities
as guardian to state governments or private enterprise.
- Alternatively,
that the role of guardian be transferred from the Minister to an independent
body ("the body"). This would mitigate potential conflicts
of interest and prevent politicisation of the refugee determination
process. [25]
- That each unaccompanied
child be appointed an advocate (chosen by the body) responsible for
ensuring that the child's individual best interests are a primary consideration.
[26] A ratio of four children to one advocate would
be appropriate.
Accountability
In order to ensure
that the requirements of the best interests principle are met, it must
be possible to call a decision-maker to account. Theoretically, in Australia,
detention services are subject to both administrative and judicial review
and full parliamentary scrutiny and accountability. In X v Minister
for Immigration and Multicultural Affairs [27] ,
Justice North held that section 6 of the Migration Act and section 39B(1A)(c)
of the Judiciary Act (1903) (Cth) conferred on the Court a jurisdiction
to supervise the Minister's functions. [28] However,
a number of factors indicate that the current system of accountability
in Australia undermines the operation of the best interests principle:
1. Ministerial
attempts have been made to avoid the supervisory functions under section
6 of IGOC by the use of legislative and procedural impediments. [29]
2. The grounds
for judicial review relating to the detention of unaccompanied minors
in Australia are limited. Courts lack the power to review the Minister's
discretion relating to detention of unaccompanied minors. [30]
3. Although various
investigative and advisory commissions [31] have visited
detention centres to investigate complaints and conduct inquiries, their
recommendations are not binding regardless of whether practices violate
the best interests principle.
4. The grounds
for administrative review are extremely limited. In the Administrative
Appeals Tribunal ("AAT"), merit review involves the assessment
only of whether the Minister has met statutory requirements [32]
. This process does not take into account the best interests of the
child as there is no statutory requirement that these are to be a primary
consideration.
Recommendation
3
- That appropriate
review mechanisms are established in order to ensure transparency and
accountability.
- That UNCROC is
statutorily implemented and therefore the best interests of the child
is a ground for review in the AAT.
Conclusion
Close examination
of the UNCROC and UNHCR guidelines reveal a number of flaws in the Australian
system. The current guardianship arrangements do not ensure that the best
interests of the child are a primary consideration in all actions concerning
them, as required by article 3(1) of UNCROC. In order to rectify the inadequacies
of the Australian system it is vital that the following recommendations
be considered:
- That UNCROC be
statutorily implemented.
- That detailed
guidelines be developed and published (incorporating UNHCR guidelines),
setting out the how the best interests of the child shall be determined
and the procedures by which unaccompanied minors will be processed as
asylum seekers.
- That a statutory
investigatory body responsible for ensuring compliance with guidelines
be established that has binding force.
- That the Minister
be prevented, by enactment, from delegating his or her responsibilities
as guardian to state governments or private enterprise. Alternatively,
that the role of guardian be transferred from the Minister to an independent
body ("the body").
- That each unaccompanied
child be appointed an advocate (chosen by the body) responsible for
ensuring that the child's individual best interests are a primary consideration.
A ratio of four children to one advocate would be appropriate.
- That appropriate
review mechanisms are established in order to ensure transparency and
accountability.
- That the best
interests of the child be a ground for review in the AAT.
Bibliography
Journal Articles
Human Rights and
Equal Opportunity Commission (1999), Human Rights Brief - The Best Interests
of the Child, Human Rights and Equal Opportunity Commission, Sydney.
Parker, S. (1994),
'The Best Interests of the Child - Principles and Problems', International
Journal of Law and the Family, vol. 8.
Van Bueren, G. (1995),
The International Law on the Rights of the Child, Martinus Nihhoff Publishers,
Boston.
The Parliament of
the Commonwealth of Australia - Joint Standing Committee on Treaties (1998),
United Nations Convention on the Rights of the Child - 17th Report, Parliament
of Australia, Australia.
Newspaper Articles
Mac, P., "Lost
Children of the Boat People", The Guardian, December 5, 2001, Issue
No. 1074 [http://www.cpa.org.au/garchve4/1074lost.html]
Case Law
The Secretary, Department
of Health and Community Services v JWB and SMB (1992) FLC per Brennan
J at 92-3.
Minister of State
for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
X v Minister for
Immigration and Multicultural Affairs (1999) 164 ALR 583.
Jaffari v Minister
for Immigration and Multicultural Affairs [2001] FCA 985.
A v Australia, Communication
No. 560/1993.
Books
Parker, S. (et. al),
(1999), Australian Family Law in Context: Commentary and Materials 2nd
Edition, LBC Information Services, Australia.
Legislation
Immigration (Guardianship
of Children) Regulations (in force under the Immigration (Guardianship
of Children) Act 1946), Office of Legislative Drafting, Attorney-General's
Department, Canberra
Administrative Appeals
Tribunal Act 1976 (Cth), Office of Legislative Drafting, Attorney-General's
Department, Canberra.
International
Instruments
United Nations Convention
on the Rights of the Child (United Nations, 20 November 1989).
Websites
The Department of
Immigration and Multicultural Affairs (2000) - Information Paper: Unauthorised
Arrivals and Detention, [http:// www.dima.gov.au/illegals.uad/05.htm#15],
acc. March 28 2002.
UNHCR Guidelines:
Refugee Children: Protection and Care. 'Refugee Children and the Rights
of the Child' (Ch 2, II) in: [http://www.unhcr.ch/cgi- bin/texis/vtx/home/+
QwwBmetFMl_wwwwrwwwwwwwhFqA72ZR0gRfZNtFqrpGdBnqBAFqA72ZR0gRfZNcFqAt1omncoDn5Dzmxwwwwwww/opendoc.pdf]
acc. April 16 2002.
Ruddock, P (1998),
Australia's Immigration Policies - An International Perspective, [http://www.minister.immi.gov.au/transcripts/transcripts00/taproom.htm],
acc. 7 April, 2002.
Law Institute of
Victoria (2002), All Unaccompanied Minors Must be Released from Immigration
Detention, [http://www.liv.asn.au/news/media/20020125_aummbrfid.html],
acc. 7 April, 2002.
New South Wales Law
Reform Commission (1997), Research Report 7 - The Aboriginal Child Placement
Principle, [http://www.agd.nsw.gov.au/lrc.nsf/pages/RR7CHP6], acc. 5 April,
2002.
Amnesty International
Appeal Website, Refugee Children - Detention in Australia - Detention
of Refugee Children in Australia, AI Week 1997, [http://www.amnesty.org/ailib/intcam/aiweek97/appeals/app2.htm]
acc. 4 April, 2002.
Amnesty International
USA Take Action Website, Refugee Children:
The Unaccompanied Alien Child Protection Act (2001) USA [http://www.amnesty-usa.org/action/refugee_usa08202001.html]
acc. 8 April, 2002.
Attorney-General's
Department Website, The Law in Australia - Representative Government [http://www.law.gov.au/auslegalsys/auslegalsys.htm#anchor337107],
acc. 7 April, 2002.
Child Rights Information
Network Resources Website, Submission to the United Nations Committee
on the Rights of the Child Regarding Australia [http://www.crin.org/resources/infoDetail.asp?ID=198],
acc. 7 April 2002.
Department of Immigration
& Multicultural & Indigenous Affairs Website (2001), Fact Sheet
82. Immigration Detention [http://www.immi.gov.au/facts/82detention.htm],
acc. 10 April, 2002.
Department of Immigration
and Multicultural and Indigenous Affairs Website, Fact Sheet 83. Woomera
Alternative Detention Arrangements for Women and Children Project [http://www.immi.gov.au/facts/83woomera.htm],
acc. 10 April, 2002.
Department of Immigration
& Multicultural & Indigenous Affairs Website (2001), IDAG - The
Background [http://www.immi.gov.au/detention/idag/index.htm], acc. 8 April
2002.
Department of Immigration
& Multicultural & Indigenous Affairs Website (2001), Immigration
Detention Standards [http://www.immi.gov.au/illegals/det_standards.htm],
acc. 10 April, 2002.
Department of Immigration
and Multicultural and Indigenous Affairs Website, Unauthorised Arrivals
and Detention, Information Paper [http://www.immi.gov.au/illegals/uad/05.htm],
acc. 9 April 2002.
Human Rights and
Equal Opportunity Commission (2000), Immigration Detention Centre Guidelines
[http://www.hreoc.gov.au/human_rights/asylum_seekers/index.html#idc_guid…],
acc. 4 April, 2002.
Human Rights and
Equal Opportunity Website, National Inquiry into Children in Immigration
Detention - Background Papers [http://www.hreoc.gov.au/human_rights/children_detention/background/dete…],
acc. 27 March, 2002.
Lawyers for Human
Rights Website, Executive Committee Of the High Commissioner's Programme,
Global Consultations On International Protection, Palais des Nations,
Geneva, 29 June 2001, The International Council of Voluntary Agencies,
NGO Background Paper: Asylum Processes (Fair And Efficient Asylum Procedures),
[http://www.lhr.org.za/refugee/docs/global/processes/ngo_background_pape…],
acc. 6 April, 2002.
Philip Ruddock MP
Website, News Room, 6 December 2001 [http://www.minister.immi.gov.au/media_releases/media01/r01190.htm],
acc. 3 April, 2002.
Philip Ruddock MP
Website, Transcripts: Australia's Immigration Policies - An International
Perspective, Address, Victorian Press Club, 26 March 1998 [http://www.minister.immi.gov.au/transcripts/transcripts00/taproom.htm],
acc. 7 April, 2002.
Refugee Action Collective
of Victoria Website, ACM: The Company Behind Detention - Woomera Detention
Centre 2001, Refugee Fact Sheet No. 4 [http://www.rac-vic.org/oztour/factsheets/factsheet4.pdf],
acc. 4 April, 2002.
Refugee Council of
Australia, (2001), Number of Children and Adults in Detention as at November
20, 2001 [http://www.refugeecouncil.org.au/ngraphnoindetention.htm], acc.
8 April, 2002.
Senator Dianne Feinstein
of California Website, Press Release: IMMIGRATION: U.S. must treat children
seeking asylum far better The Oregonian Editorial (5/03/01) [http://www.senate.gov/~feinstein/Speeches01/unaccompanied_children.html],
acc.8 April, 2002.
Separated Children
in Europe Program Website, UNHCR Newsletter Separated Children in Europe
Programme, June - July 2001, Issue No. 5 [http://www.sce.gla.ac.uk/Global/Documents/Eng/Newsletters/newsletter06_…],
acc. 8 April, 2002.
The Parliament of
Australia, Joint Committee Website, Joint Standing Committee on Foreign
Affairs, Defence and Trade (2001), A Report on Visits to Immigration Detention
Centres - chapter 6 [http://www.aph.gov.au/house/committee/jfadt/IDCVisits/IDCchap6.pdf],
acc. 8 April, 2002.
The Parliament of
Australia, Joint Committee Website, Joint Standing Committee on Foreign
Affairs, Defence and Trade (2001), Completed Inquiry: Visits to immigration
detention centres, List of Recommendations [http://www.aph.gov.au/house/committee/jfadt/IDCVisits/IDCrecs.htm],
acc. 5 April, 2002.
The Unity Party Website,
Privatisation [http://www.unity.org.au/cp_privatisation.htm], acc. 11
April, 2002.
UNHCR Children Homepage,
Refugee Children: David Vs Goliath, [http://www.unhcr.ch/children/david-goliath01.html],
acc. 2 April, 2002.
UNHCR Guidelines
on Unaccompanied Children [www.asylumsupport.info/publications/unhcr/1997.htm],
acc. 3 April, 2002.
United Nations Website,
Convention on the Rights of the Child, December 1995, Australia's First
Report Under Article 44(1)(a) Of The Convention On The Rights Of The Child
[http://www.hri.ca/fortherecord1997/documentation/tbodies/crc-c-8-add31…],
acc. 3 April, 2002.
Guide to International
Refugee Law Resources on the Web by Elisa Mason, July 15, 2000, [http://www.llrx.com/features/refugee.htm],
acc. 10 April, 2002.
UK Home Office Website,
Immigration and Nationality Directorate, [http://194.203.40.90/default.asp?pageid=15],
acc. 10 April, 2002
For the purposes of this submission it will be assumed that the terms
'guardian' and 'custodian' are interchangeable.
2. See UNHCR Guidelines on Unaccompanied Children, para
3.1 [www.asylumsupport.info/publications/unhcr/1997.htm]. See also article
5 of UNCROC which defines "family" broadly. Article 20(1) of
the Convention states that unaccompanied children are entitled to "special
protection and assistance provided by the State".
4. Human Rights and Equal Opportunity Commission (2000),
Immigration Detention Centre Guidelines [http://www.hreoc.gov.au/human_rights/asylum_seekers/index.html#idc_guid…],
acc. 4 April, 2002.
5. Department of Immigration & Indigenous & Multicultural
Affairs (2001), Fact Sheet 82. Immigration Detention, [http://www.immi.gov.au/facts/82detention.htm],
acc. 10 April, 2002.
6. For example: article 29.1(b), article 9.3, and article
12 of UNCROC. For further discussion see Human Rights and Equal Opportunity
Commission (1999), Human Rights Brief - The Best Interests of the Child,
Human Rights and Equal Opportunity Commission, Sydney. p. 3.
7. S. Parker (1994), 'The Best Interests of the Child
- Principles and Problems', International Journal of Law and the Family,
vol. 8. pp 26-7.
8. G. Van Bueren, (1995), The International Law on the
Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 46.
10. See, for example, Stephen Parker's discussion of
indeterminacy in S. Parker, (1994), 'The Best Interests of the Child -
Principles and Problems', International Journal of Law and the Family,
vol. 8.
12. New South Wales Law Reform Commission (1997), Research
Report 7 - The Aboriginal Child Placement Principle, [http://www.agd.nsw.gov.au/lrc.nsf/pages/RR7CHP6],
acc. 5 April, 2002.
13. Human Rights and Equal Opportunity Commission (1999),
Human Rights Brief - The Best Interests of the Child, Human Rights and
Equal Opportunity Commission, Sydney. p. 2.
14. G. Van Bueren, (1995), The International Law on the
Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 48.
15. See, for example, S. Parker (1994), 'The Best Interests
of the Child - Principles and Problems', International Journal of Law
and the Family, vol. 8. p. 30.
16. G. Van Bueren, (1995), The International Law on the
Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 46.
17. A relevant example is Australia's reaction to the
Tampa incident.
18. The introduction of the IDS reads: "These standards
must be met in all circumstances except where it is demonstrated that
the security and good order of the detention facility would otherwise
be compromised." See Department of Immigration & Indigenous &
Multicultural Affairs (2001), Immigration Detention Standards: Principles
Underlying Care and Security [http://www.immi.gov.au/illegals/det_standards.htm],
acc. 10 April, 2002.
19. P. Ruddock, (1998), Australia's Immigration Policies
- An International Perspective, [http://www.minister.immi.gov.au/transcripts/transcripts00/taproom.htm],
acc. 7 April, 2002. (emphasis added)
20. For example, Minister Ruddock argues that the mandatory
detention of all asylum seekers is for their own protection. This language
implies that it is in their best interests. (see Law Institute of Victoria
(2002), All Unaccompanied Minors must be Released from Immigration Detention,
[http://www.liv.asn.au/news/media/20020125_aummbrfid.html], acc. 7 April,
2002.)
21. The Secretary, Department of Health and Community
Services v JWB and SMB FLC (1992) per Brennan J at 92-3.
22. Department of Immigration and Multicultural and Indigenous
Affairs (2001), IDAG - The Background [http://www.immi.gov.au/detention/idag/index.htm],
acc. 8 April 2002.
23. Refugee Council of Australia, (2001), Number of Children
and Adults in Detention as at November 20, 2001 [http://www.refugeecouncil.org.au/ngraphnoindetention.htm],
acc. 8 April 2002.
24. Joint Standing Committee on Foreign Affairs, Defence
and Trade (2001), A Report on Visits to Immigration Detention Centres
- chapter 6 [http://www.aph.gov.au/house/committee/jfadt/IDCVisits/IDCchap6.pdf],
acc. 8 April 2002.
25. European Council on Refugees and Exiles, (1999),
Guidelines on Fair and Efficient Procedures for Determining Refugee Status
[http://www.ecre.org/research/legalassistance/shtml], acc. 8 April 2002.
26. See, The Parliament of the Commonwealth of Australia
- Joint Standing Committee on Treaties (1998), United Nations Convention
on the Rights of the Child - 17th Report, Parliament of Australia, p.
29. X v Minister (1999) 164 ALR 583.
30. See, for example, Jaffari v Minister for Immigration
& Multicultural Affairs [2001] FCA 985.
31. A v Australia, Communication No. 560/1993 at 24;
Submission to the Senate Legal and Constitutional References Committee
inquiry into Australia's Refugee and Humanitarian Program. HREOC, [www.hreoc.gov.au]
acc 12 April 2002.
32. HREOC, IDAG and the Commonwealth Ombudsman; see section
15(1) Ombudsman Act 1976 (Cth) in relation to maladministration.
Last
Updated 9 January 2003.