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Submission to National Inquiry into Children in Immigration Detention from

The International Commission of Jurists, Australian Section



The International Commission of Jurists is dedicated to the primacy, coherence and implementation of international law and principles that advance human rights. Its aim is to promote human rights through the rule of law by ensuring that developments in international law adhere to human rights principles and that international standards are implemented at the national level. The Commission was founded in Berlin in 1952 and its members are jurists representing different legal systems of the world. It is based in Geneva, and has a network of autonomous national sections and affiliated organisations located in all continents.

The Australian Section of the ICJ was established in 1952, and has branches in most of the Australian States and Territories. The Section pursues the mandate of the ICJ by monitoring and reporting on human rights in Australia and in this region, to ensure compliance with the rule of law.

This submission draws on the knowledge and experience of several members of the Australian section of the ICJ who are familiar with the laws and policies applicable to asylum seekers and to the conditions of detention. Its focus is on legal issues rather than case studies.

Summary of proposals

basic position of ICJ

The position of the ICJ is that there is no place in Australian law or practice for the non-appealable detention of children solely on the basis of their arrival status. Such detention is in clear violation of many international treaties to which Australia is a party.

To justify this detention on the basis that, as parents who have arrived without authorisation must be detained, the children should remain with them, rather than being separated, is a travesty, since adult detention is also incompatible with Australia's international obligations.

In addition to being contrary to accepted international standards, the detention of children for lengthy periods exposes them to conditions and experiences which are harmful to their health and well-being and may result in long term psychological damage. It deprives them of their right to education, to health services and to cultural activities , all of which are internationally protected rights of children.

In summation, the policies of the Australian government in placing children in detention for long periods are in total disregard of international obligations, and of the commitment which Australia has made to make the best interests of the child a primary consideration and to ensure that every child enjoys, without any discrimination, the right to such measures of protection as are required by his status as a minor.

general obligations

The principle that the best interests of the child shall be a primary consideration should be incorporated into the relevant legislation, regulations and administrative directives concerning the treatment of child asylum seekers; the provisions of article 22 (1) of the Convention on the Rights of the Child should be a legal obligations of the relevant authorities.

Steps should be taken to ensure that children are able to put forward their own views and to have those views considered before any decision is taken as to the status, custody or care of that child by the State or its agencies, including the managers of detention facilities.

detention and release

After a reasonable period for necessary screening (identity, health, etc), accompanied children should be released into the community with their parent or parents. Where appropriate, such release may place the family in the care of a responsible individual or organisation, or be subject to reporting obligations.

After a reasonable period for screening, unaccompanied children should be released into the care of a responsible individual or organisation.

The processing of claims of children under 18 and their accompanying families should be given priority.

claims for refugee status

The importance of maintaining family unity as a measure of protection for children should be adopted as a policy to guide decisions about detention and recognition of refugee claims by children and their parents. The role and responsibility of parents in the upbringing and development of their children should be recognised in policy and in practice.

The claims of spouses and dependent children of recognised refugees for refugee status should be granted, whether or not they have travelled together to Australia, in order to ensure protection of the family, and the rights of children not to be separated from their parents.

Persons whose refugee status has been recognised should be entitled to seek family reunion and the applications of their parents or dependent children to enter Australia for that purpose should be considered positively.

entitlements while in detention

An independent Special Visitor should be appointed to monitor the treatment of children in detention, with unrestricted access to facilities, staff and detainees.

The responsibilities of the Minister as guardian of children in detention should be clearly defined and their implementation subject to scrutiny.

The welfare of children in detention should be subject to the supervision of State and Territory Welfare Departments.

Detention centres should be located close to centres of habitation, and in an environment comparable with that available to the Australian community.

Children in detention should be entitled to a diet acceptable to their family, and to have their meals prepared by their family. Cooking facilities should be made available for this purpose.

ACM should be required to ensure that child detainees have early and regular access to all necessary medical and dental services, and that no artificial barriers are imposed to restrict access to such services by children and their parents.

ACM should be required to ensure that specialised trauma counselling services have access to detention centres and that those children needing specialist medical attention have access to such services when required.

The Department of Immigration and ACM should provide safe and secure accommodation for unaccompanied children, and ensure that they are not exposed to other detainees who may be a danger to themselves or others.

Day release should be available to children and their parents on a reasonable basis, eg for medical or dental attention, for educational or vocations purposes, or to participate in community activities, organised excursions.

English language teaching should be provided as a priority to children in detention. Children in detention should also have access to vocational training.

Teachers who educate children in detention centres should be provided with adequate curriculum support, and with appropriate resources and equipment to ensure that children have equal and non-discriminatory access to educational opportunities.

Children who are in detention (for more than 4 weeks) should be entitled to day release to attend schools in the community where arrangements can be made for that purpose.

Children in detention should have access to play, games, sports and leisure facilities appropriate to age, and with appropriate supervision on a daily basis. Equipment and toys should be provided to put these children on an equal footing with others in the community.

other issues

The Alternative Detention Model proposed by the Refugee Council of Australia should be adopted and implemented.

The alternative detention program should be extended and should permit husbands and fathers to join their families. Relocating detention facilities nearer to population centres would enable greater use of this option.

Background to inquiry

terms of reference

Under the terms of reference, the Human Rights Commissioner will inquire 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. It will consider Australia's international human rights obligations regarding child asylum seekers; mandatory detention of child asylum seekers and alternatives to their detention; and the impact of laws, policies and practice in regard to children in immigration detention or child asylum seekers and refugees residing in the community after a period of detention

defining child asylum seekers

Under the Convention on the Rights of the Child, children are, for most purposes,[1] those who are under 18.

Child asylum seekers and refugees include unaccompanied minors as well as those who are with a parent. They include babies born in detention in Australia.

Under the Convention Relating to the Status of Refugees, 1951(the Refugee Convention) and the 1967 Protocol (Relating to the Status of Refugees) a refugee is a person who "owing to a 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 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. [art 1]

These provisions apply to children in the same way as to adults. A child who has a "well-founded fear of being persecuted" for one of the stated reasons is a "refugee". Children who hold refugee status cannot be forced to return to the country of origin (non-refoulement).

Children who are part of a family group on arrival are considered as part of the family of the member who can establish refugee status. If the child does not arrive with the relevant family member who is recognised as a refugee, the claims of that child may be rejected.

right to seek asylum

The right to seek asylum is recognised by article 14 of the Universal Declaration of Human Rights:

14 (1). Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2.) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

General human rights obligations towards children

child's best interests must be a primary consideration

In accordance with its obligations under article 3 of the Convention on the Rights of the Child, Australia must make the best interests of the child a primary consideration in all actions and decisions concerning that child:

1. 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.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

The UNHCR advocates the observance of CRC standards by all States, international agencies and non-governmental organizations. The UNHCR Policy on Refugee Children draws upon the Convention on the Rights of the Child by stating, in its guiding principles, that, "In all actions taken concerning refugee children, the human rights of the child, in particular his or her best interests, are to be given primary consideration" (para. 26 (a)).

the Teoh principle applies in Australia

In the Teoh case, 1995, the High Court decided that when Australia ratified the Convention on the Rights of the Child, this gave rise to a legitimate expectation on the part of people in this country that government decision-makers would exercise their discretion in matters affecting children in conformity with that Convention, even in the absence of legislation to give effect to it. [2] In that case, as there was no indication that the best interests of the children were treated as a primary consideration. there was a want of procedural fairness.

Legislation was introduced almost at once to overrule the High Court and to make it clear that no one should expect the government to honour treaty obligations in making administrative decisions. The Bill lapsed, but is still pending. The effect of Teoh may be short lived, and is in any event limited, as a procedural guarantee. Nevertheless, until overruled, it should guide individual decisions as well as the development of laws and policies.

Regrettably there is little evidence that the Convention on the Rights of the Child and the Teoh principle are considered in setting policies in regard to asylum seekers.

Covenant obligations

Under the International Covenant on Civil and Political Rights, article 24 (1), a child is entitled to such measures of protection as 'are required by his status as a minor, on the part of his family, society and the State. [3] Measures of protection required of the State are not defined, but would certainly extend to ensuring that the best interests of the child guide decision making regarding that child.

obligations towards child asylum seekers

The Convention on the Rights of the Child provides that States have particular obligations towards children who are seeking refugee status. Under article 22 (1), States Parties are required to take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee shall receive appropriate protection and humanitarian assistance in the enjoyment of rights.

The HCR guidelines on child refugees point out the special needs of children in this situation:

"Refugee children face far greater dangers to their safety and well being than the average child. The sudden and violent onset of emergencies, the disruption of families and community structures as well as the acute shortage of resources with which most refugees are confronted, deeply affect the physical and psychological well being of refugee children. It is a sad fact that infants and young children are often the earliest and most frequent victims of violence, disease and malnutrition which accompany population displacement and refugee outflows. In the aftermath of emergencies and in the search for solutions, the separation of families and familiar structures continue to affect adversely refugee children of all ages. Thus, helping refugee children to meet their physical and social needs often means providing support to their families and communities.

proposals

The Commission should recommend that the principles of the Convention on the Rights of the Child referred to should be incorporated into the relevant legislation, regulations and administrative directives concerning the treatment of chiid asylum seekers.

Detention of children incompatible with human rights standards

current laws and policies

Australian law protects people against unlawful detention by ensuring that a person who has been detained can apply to a court to test the legality of the detention. In the absence of any other specific provision, application can be made for a writ of habeas corpus.

Under the Migration Act, as amended in 1992, unauthorised asylum seekers who arrive without a valid visa are defined as "designated persons" whose detention is not subject to court review, other than to determine whether they fall within the definition. To this mandatory detention regime was added a system of temporary protection visas instead of permanent protection to asylum seekers arriving in this way whose refugee status was later recognised . The Border Protection laws of 2001 have restricted even more severely the access of asylum seekers to Australian courts by excising external territories from the application of migration laws.

asylum seeker detention policy incompatible with Australia's international obligations

The Human Rights Committee has determined that Australia's laws and policies on mandatory detention of asylum seekers violate its obligations under article 9 of the International Covenant on Civil and Political Rights. [4] The Committee's view was that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed, and that the detention of an individual should not continue beyond the period for which the State can provide appropriate justification. Australia did not advance any grounds particular to the author's case, which would justify his continued detention for a period as long as four years. The Committee concluded that the author's detention for a period of over four years was arbitrary within the meaning of article 9, paragraph 1.

As the court review available to A was limited to a formal assessment of the self-evident fact that he was indeed a "designated person" within the meaning of the Migration Amendment Act, the Committee concluded that the author's right, under article 9, paragraph 4, to have the lawfulness of his detention reviewed by a court, was violated.

When the Human Rights Committee reviewed Australia's report under the ICCPR in 2000, it expressed its concern at Australia's rejection of its views in the A case, indicating that it undermined Australia's recognition of the Committee's competence under the Optional Protocol. It reiterated its concerns about the mandatory detention of "unlawful non-citizens", including asylum seekers, and about the policy of not informing the detainees of their right to seek legal advice and of not allowing access of non-governmental human rights organizations to the detainees in order to inform them of this right. Australia was urged to reconsider these policies.

The position, which is not accepted by the Australian government, is that mandatory detention of asylum seekers extending beyond the period which can be justified for legitimate purposes violates our obligations under the ICCPR.

Under article 24 (1) of the Covenant, a child is entitled to such measures of protection as 'are required by his status as a minor, on the part of his family, society and the State. This provision reinforces the prohibition on arbitrary Such measures would certainly weigh heavily against the detention of a child.

detention of children violates the CRC

The provisions of the ICCPR apply with equal force to the detention of child asylum seekers. The mandatory detention of child asylum seekers also violates provisions of the Convention on the Rights of the Child which are parallel to article 9 of the Covenant.:

CRC art 37 . . . . . (b) 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;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Mandatory detention of child asylum seekers clearly violates these provisions for the reasons outlined above.

detention of children is discriminatory under CRC article 2

Detention of children who are classified as 'unauthorised entrants' violates the anti-discrimination provisions of international human rights treaties. Children who enter Australia lawfully, with a visitors visa or otherwise and who then apply for asylum are not subjected to detention. As the majority of children have no choice as to the means by which they are brought to Australia, this distinction violates article 2 of CRC. Paragraph (2) of article 2 requires States to ensure that children protected against all forms of discrimination or punishment on the basis of the activities of the child's parents, legal guardians, or family members.

The distinction men tioned is also incompatible with article 2 (1) of CRC and with article 26 of the ICCPR in that it makes a distinction on the ground of these children's status. Such a distinction is not reasonable or justifiable in respect of children who had no freedom of choice as to how they came to Australia.

detention of children incompatible with accepted UN standards

The detention of children is incompatible with two important instruments adopted by the General Assembly. Under these widely accepted United Nations standards, deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. United Nations Rules for the Protection of Juveniles Deprived of their Liberty (GA Res 45/113, 14 December 1990) article 2; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, GA Res 40/33 29 November 1985) article 19.

Under the Beijing Rules, article 17.1 (c) deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in offending and there is no other appropriate response. The well-being of the juvenile shall be the guiding factor in the consideration of the case (art 17.1 (d)). Detention pending trial is a measure of last resort and for the shortest possible period.

Clearly, the deprivation of liberty for lengthy periods and in circumstances where there may have been no offence committed whatsoever, is incompatible with the letter and the spirit of these provisions.

detention may be an improper penalty

Depending on the circumstances of the case, the detention of child asylum seekers may also be in violation of article 31 (1) of the Refugee Convention, which prohibits the imposition of penalties on refugees on account of their illegal entry or presence when they have come directly from a territory where their life or freedoms were threatened.

proposals

It is submitted that Australia's detention policies and practices applied to child asylum seekers are incompatible with Australia's commitments under international human rights treaties and the Convention on Refugees.

It is proposed that after a reasonable period for necessary screening (identity, health, etc), child asylum seekers who are accompanied should be released into the community with their parent or parents. Where appropriate, such release may place the family in the care of a responsible individual or organisation, or be subject to reporting obligations.

After a reasonable period for screening, unaccompanied child asylum seekers should be released into the care of a responsible individual or organisation.

The processing of claims of children under 18 and their accompanying families should be given priority.

Arbitrary separation of child from family violates standards

Both the Covenant and the CRC include provisions requiring States to protect individuals and children against arbitrary interference with the family. [5] Article 23 (1) of the ICCPR provides that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State." Article 9 of the Convention on the Rights of the Child, which requires States not to separate children from parents unless that is in the best interests of the child. Article 18 requires States to recognise the primary responsibility of parents for the upbringing and development of the child, in accordance with their best interests. States are called on to render assistance to parents in carrying out those responsibilities.

It is incompatible with these provisions for States to take action which arbitrarily separates children from their parents and family members without justification, eg, where family abuse of children requires that they be removed in their best interests.

The provisions apply even if the separation of the child from its parents is part of the enforcement of immigration laws. In Winata v Australia, [6] the Human Rights Committee found that the deportation of parents whose child had been born in Australia and who had become an Australian citizen was incompatible with articles 17, 23 and 24 of the Covenant. The Committee's view was that in view of the length of time that had elapsed (13 years) and the social relationships that had been developed by the child in Australia [and the consequent hardship to the child of being forced to leave Australia], it was incumbent on the State to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterisation of arbitrariness. In that case, it was primarily the rights of the child which were put in jeopardy by the threatened deportation of the parents.

The provisions protecting the family and precluding arbitrary interference with the family are individual rights which apply to child asylum seekers and to all persons under Australian jurisdiction, whether or not they have a right to reside in Australia.

parental responsibility, autonomy stripped,

The CRC , article 18 requires States to recognise the primary responsibility of parents for the upbringing and development of the child, in accordance with their best interests. States are called on to render assistance to parents in carrying out those responsibilities. In practice, the system of detention, and the limits on family reunion, mean that parents may be stripped of their role and responsibilities, and be left with no control or input whatsoever into important decisions concerning the future of their children, such as those concerning education, diet, health, recreation. In the detention conditions which prevail control over family life is taken away from detainees, depriving children of the guidance of their parents in their upbringing and development.

family protection and detention

The obligation to protect and support the family and to ensure that children are not removed from their families, requires that children and their parents should be released from detention unless there are special factors applicable, in order to ensure that family protection is ensured and that the child is neither detained nor deprived of family support.

assessment practice incompatible with protection of family

Under current Australian law and practice if family members who are unauthorised non-citizens do not arrive in Australia together, their claims for asylum may be assessed independently from each other. The result may be that the claims of a wife or child of a recognised refugee may not be accepted, as their claim is essentially bound up with the member of the family who is or has been recognised. This policy may prolong the detention of a child or other family members, and thus tend to perpetuate family separation, contrary to human rights obligations.

temporary protection visa policy incompatible with family reunion

The policy of granting temporary protection visas with no right to sponsor family members has the same effect. Children granted such visas are thus denied the opportunity of family reunion. This is incompatible with the obligation under human rights instruments to protect the family and contrary to article 10 of the Convention on the Rights of the Child, which provides that applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner.

proposals

The importance of maintaining family unity as a measure of protection for children should be adopted as a policy to guide decisions about detention and recognition of refugee claims by children and their parents. The role and responsibility of parents in the upbringing and development of their children should be recognised in policy and in practice.

The claims of spouses and dependent children of recognised refugees for refugee status should be granted, whether or not they have travelled together to Australia, in order to ensure protection of the family, and the rights of children not to be separated from their parents.

Persons whose refugee status has been recognised should be entitled to seek family reunion and the applications of their parents or dependent children to enter Australia for that purpose should be considered positively.

Personal and family autonomy

participation by children in decisions

The Convention states in article 12(1) that a child has the right to express his or her views freely in all matters concerning him or her, and to have appropriate weight given to his views. Under article 12 (2) the child has the right to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or an appropriate body. This right entitles child asylum seekers to participate in the hearing of their claim to asylum "and to express their concerns" directly or through their representative, parent or guardian. It extends to all decisions concerning the treatment of the child while in the control of the State.

The purpose of this provision is partly to ensure the developmental needs of the child, and partly to ensure that the best possible decisions are taken.

proposals

Steps should be taken to ensure that children are able to put forward their own views and to have those views considered before any decision is taken as to the status, custody or care of that child by the State or its agencies, including the managers of detention facilities.

General conditions of detention for child asylum seekers

relevant general standards

The Convention on the Rights of the Child includes several provisions relevant to the conditions and treatment of children in detention: Article 19 (1): obliges the State to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. Article 20, calls for special protection for children who are temporarily or permanently deprived of their family. Article 22, requires States to provide appropriate protection and humanitarian assistance to children seeking refugee status in the enjoyment of applicable rights.

Under the ICCPR, article 10 (1), all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Under article 7, "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The Convention Against Torture has comparable provisions in article 2, which prohibits torture and article 16 which precludes acts of cruel, inhuman or degrading treatment or punishment.

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (GA Res 45/113, 14 December 1990) sets out the minimum standards for the treatment of juveniles in detention. These minimum standards apply to all persons under the age of 18 and to all types of detention facility. Under these rules, any deprivation of liberty should be effected in conditions and circumstances which ensure respect for the human rights of juveniles (article 12). Juveniles in detention should be provided with meaningful activities and programmes which would serve to promote and sustain their health and self-respect (art 12). There are specific provisions, mentioned later, covering such issues as education, health, recreation.

An important provision of the UN Rules calls for juveniles to be allowed communication with the outside world, to leave facilities for family visits and for educational or vocational purposes (article 59 ff)

actual situation

Most immigration detention centres are in remote areas subject to inhospitable landscape and climate. For example, the Woomera Detention Centre is over 500 miles from the nearest major urban centre in a semi-desert environment. Children in that centre as in Curtin and Port Hedland have very limited access to visitors from their own communities; moreover they are deprived of seeing other children who would normally attend to visit other detainees in the detention centre. Their access with non detainee children is very limited.

The harsh environment in Woomera, Curtin and Port Hedland means the children have no access to playing n areas where there is shade, water and decorative plant live. Therefore children, who spend significant amount of time in detention, are being deprived of pleasant sensory stimulation for the natural environment.

This should be put in the context of the children's experience in their country of origin and their voyage to Australia. For example, a child fleeing persecution in Afghanistan may have fled across inhospitable wastelands and mountainous country to reach an urban centre in Pakistan. From Pakistan, they would have been transported in a state of fear and dislocation to Indonesia to be placed on a crowded vessel. Following arrival n Australia, they are taken again into a desolate landscape. The only sight that such children may experience for six to eight months, is harsh environment without any aspect of flowers, small animals and hospitable environment for play.

Conditions in immigration detention centres are not suitable for children as little appropriate furniture or recreational equipment is provided for them. As there is no adequate sleeping accommodation for toddlers, they are often forced to sleep with older children or their parents. Living conditions in detention centres are often overcrowded and tense and anxious. This is prevalent in the initial screening process when asylum seekers are crowded together in an area segregated from other detainees.

It is reported that children also face difficulties in accessing food in immigration detention centres. An example is that if small children do not want to eat at the fixed mealtime, there is no provision for them to be fed outside set hours. In addition, detainees do not have a fridge or access to food heating equipment so that parents could feed their children at other times. This becomes essential when children are ill.

In addition, food is generally cooked by other detainees, not specialized kitchen staff. Therefore, the dietary needs of children may be overlooked. One detainee complained that his 18 month old child could not eat the food provided at Villawood Detention Centre because it was very heavily spiced by the Afghan detainee cook.

These conditions of detention have a negative impact on the well being of children asylum seekers and are n ot consistent with human rights obligations to provide adequate standards of treatment and care for children.

proposals

Detention centres should be located close to centres of habitation, and in an environment comparable with that available to the Australian community.

Children in detention should be entitled to a diet acceptable to their family, and to have their meals prepared by their family. Cooking facilities should be made available for this purpose.

All children in detention should have access to play, games, sports and leisure facilities appropriate to age, and with appropriate supervision on a daily basis.

Day release should be available to children and their parents on a reasonable basis, eg for medical or dental attention, for educational or vocations purposes, or to participate in community activities, organised excursions.

Monitoring of conditions and treatment of children in detention

situation and standards

There is at present no provision for the independent monitoring of conditions in detention centres. The government has agreed to accept visits from a representative of the UN High Commissioner for Human Rights and from the Committee on Arbitrary Detention. These visits are not, however, an adequate substitute for on-going supervision by an independent body established in Australia.

The UN Rules for the Protection of Juveniles Deprived of their Liberty provide that there should be independent inspectors appointed to conduct inspections on a regular basis of facilities where juveniles are held in detention, and with unrestricted access to all persons employed there and to the juveniles (article 72 ff).

proposals

An independent Special Visitor should be appointed to monitor the treatment of children in detention, with unrestricted access to facilities, staff and detainees.

The welfare of children in detention should be subject to the supervision of State and Territory Welfare Departments.

The responsibilities of the Minister as guardian of children in detention should be clearly defined and their implementation subject to scrutiny.

Health, including mental health, development and disability

relevant standards

Under article 24 (1) of the Convention on the Rights of the Child, States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. The remainder of article 24 elaborates on this principle.

Article 12 of the Covenant on Economic, Social and Cultural Rights requires States to recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Steps to be taken to that end include creating conditions which would assure to all medical service and medical attention in the event of sickness. The UN Rules for the Protection of Juveniles Deprived of their Liberty requires the provision of medical and health care. (articles 49 ff).

All the rights outlined are to be ensured on the basis of equality, without discrimination. That means that, in principle, children who are detained must have access to the same level of services as are available to the general community. In the case of children, there can be no justifiable grounds for making a distinction between those in asylum detention and other children.

actual situation

There have been frequent reports that the health care of children in detention is constantly ignored by ACM. In detention centres where there are a large number of families in isolated areas such as Woomera and Curtin, there are no specialised doctors available to provide for the care of children.

There is no ongoing nursing or medical process to supervise children's physical and mental well-being. This is essential in environments where children are traumatised on arrival and witness traumatic incidents while in detention. They are unwilling participants in disturbances in detention centres and often are aware of hunger strikes and other attempts at self-harm. For many older children, self-harm becomes a desperate call for assistance or recognition of their plight. The lack of medical services must be seen in the context of the lengthy periods of detention which many children experience.

There are numerous specialist trauma torture counselling services in Australia which could provide ongoing supervision of the mental health needs of children. In addition, children may have specialist health complaints requiring a paediatrician's care.

Unaccompanied minors, who travel to Australia without family support, are in a particularly vulnerable position. Their mental health and physical well-being is put at risk soon after arrival when they are placed into solitary confinement. There have been reports that this solitary confinement may last months.

Unaccompanied children are often placed in maximum security areas of immigration detention centres supposedly to protect them from sexual abuse or other forms of harm from other detainees. However, these maximum security areas also house people facing deportation and people at serious risk of self-harm. Exposing children to such threatening and traumatic environments is contrary to ordinary child welfare standards.

The negative effects of detention on the physical and mental health of children is likely to be compounded by a deterioration in the quality of parenting caused by the same conditions and by the fact that parents are deprived of their autonomy in carrying out their supervisory and caring functions. The longer the detention the more adverse are the effects likely to be.

proposals

ACM should be required to ensure that child detainees have early and regular access to medical services, and that no artificial barriers are imposed to restrict access to such services by children and their parents.

ACM should be required to ensure that specialised trauma counselling services have access to detention centres and that those children needing specialist medical attention have access to such services when required.

The Department of Immigration and ACM should provide safe and secure accommodation for unaccompanied children, and ensure that they are not exposed to other detainees who may be a danger to themselves or others.

Education

standards

The Convention on the Rights of the Child, article 28, recognises the right of the child to education on the basis of equal opportunity. Article 13 of the ICESCR recognises the right of everyone to education; it is to be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.

As in the case of health, the right to education under both instruments is to be ensured on the basis of equality, without discrimination. Under the Refugee Convention, refugees must receive the "same treatment" as nationals in primary education, and treatment at least as favourable as that given to non refugee aliens in secondary education (art. 22).

Play, recreational cultural and sporting activities are also guaranteed rights under the Convention on the Rights of the Child, article 31, (and ICESCR art 15, culture). The UN Rules for the Protection of Juveniles Deprived of their Liberty provides that Juveniles should have the opportunity to continue education or vocational training. (c) and should have materials for leisure and recreation (articles 18 (b) and (d), 38, 42). They are entitled to education outside the facility in community schools wherever possible (art icle 38).

current situation

The Minister, IMIA, was recently reported in the media as indicating that there is no curriculum for children who are held in immigration detention. It is the experience of many refugee lawyers attending detention centres that educational resources are severely limited, if in existence at all. The Villawood Detention Centre has one small classroom with a small bookcase of reading material. There are very few picture books for children. There are limited toys and the main playtime activity for children in detention centres is to play sport either together or with adults. There seems to be very little scope for children to undertake creative play.

There are few provisions for English language training for children in detention centres. However, there are many intensive English teachers available in Australia. There are many teachers who could undertake to teach a small class of children from a number of language groups. This should be made a priority for both ACM and the Department of Immigration.

Because of the inhospitable position of many detention centres and the difficulty of teaching children under those conditions, it is rare that teachers retain these positions for any period. Therefore, children are faced with a constant cycle of changing teachers, and are unable to bond with them. This must disadvantage the children and the children's educational abilities when they are eventually released into the community. Teachers involved in the education of children in detention have complained of the lack of resources and other matters.

It has been reported that there have been offers made to the Department of Immigration and to ACM for children to attend normal schools. For example, the Catholic Education Office indicated that they would supervise the travel to and from and their education at a local Catholic School at Port Hedland. Clearly, children would have better education if they were able to attend regular schools. However, neither the Department nor ACM were interested in taking up this offer.

proposals

English language teaching should be provided as a priority to children in detention.

Children in detention should also have access to vocational training.

Teachers who educate children in detention centres should be provided with adequate curriculum support, and with appropriate resources and equipment to ensure that children have equal and non-discriminatory access to educational opportunities.

Children who are in detention (or more than 4 weeks) should be entitled to day release to attend schools in the community where arrangements can be made for that purpose.

Children in detention should have access to play, games, sports and leisure facilities appropriate to age, and with appropriate supervision on a daily basis. Equipment and toys should be provided to put these children on an equal footing with others in the community.

Culture

Articles 30 and 31 of the Convention on the Rights of the Child protect the child's right to cultural identity and to participate in cultural activities. Important aspects of this are to ensure that children in detention can use their own language and become literate in that language and to ensure that cultural and religious practices in which they and their families normally participate can continue. The UN Rules for the Protection of Juveniles Deprived of their Liberty also requires that provision be made for cultural activities and for religious practice (articles 47, 48).

Children from minority cultural groups in detention centres suffer disadvantages with problems in maintaining language and cultural identity. For example, Tamil children in immigration detention centres have very few people with whom they can communicate freely and with whom they share a religion. It has been reported that Tamils often feel very isolated in large detention centres such as Port Hedland and Woomera and that young Tamil boys are at risk of self-harm because of this.

security practices in detention

The invasive nature of security control by ACM impacts adversely on the well-being and growth of children in immigration detention. It is normal practice that detainees are called to muster at regular times of the day. This is done through a loudspeaker system. children who are sleeping have their rest invaded. Muster will occur when there is any security alert, therefore, children may be woken in the middle of the night and forced to participate.

It is reported that ACM staff regularly enter detainees rooms at night to check their whereabouts. During such a process, young children sleeping with their family would be disturbed and put into a fearful environment.

The visual aspect of maximum security fences and razor wire is very disadvantageous to the development of especially young children. Drawings completed by young children often indicate that they portray people as bound by wire and bleeding. This reflects their self-image while they are in detention, and the effects of this could be long-lasting.

Alternative detention programs

Under a pilot program (under which bridging visas are granted?), a number of women and their children are permitted to live the Woomera township while their husbands remain in detention. This option is limited to people who are making their first application to be refugees. It is understood that there is close supervision of the families, and that the women may not move around the town without being accompanied. The option appears to be limited to Woomera because of the relative proximity of the detention centre to the town. The ICJ supports the alternative detention model proposed by the Refugee Council of Australia.

proposal

The Alternative Detention Model proposed by the Refugee Council of Australia should be adopted and implemented.

The alternative detention program should be extended and should permit husbands and fathers to join their families. Relocating detention facilities nearer to population centres would enable greater use of this option.

Discriminatory effects of the temporary protection visa

The temporary protection visa is discriminatory in its application to children. Under this kind of visa, which is of three years duration, there is no access to tertiary education or to family reunion or to re-entry. There is no right of entry for spouses, no access to settlement assistance, to Newstart, to English lessons or to disability services.

The temporary protection visa distinguishes between children who are classified as 'unauthorised entrants' and those who enter Australia lawfully, with a visitors visa or otherwise and who then apply for asylum . This kind of distinction is discriminatory as regards children who had no choice as to the means by which they are brought to Australia, and violates article 2 (2) of CRC. Such a distinction is not reasonable or justifiable in respect of children who had no freedom of choice as to how they came to Australia.

The Pacific solution

Australia should also accept responsibility for the human rights of children who have been transferred by Australia to Manus or Nauru. For these children there is even greater isolation than in Australia as there are no community agencies to visit the centres and no support from the local community. There are also health risks for children, who are mainly from temperate climates, being exposed to malaria and other tropical diseases.


1. art 1: For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
2. Minister for Immigration and Ethnic Affairs v Ah Hin Teoh, 1995 69 ALJR 423.
3. ICCPR art 24(1); see also articles 17, 23.
4. A v Australia 560/93, HRC 1997 Report, A/52/40, vol II, p 125.
5. ICPR arts 17, 23; CRC, art 16.
6. Winata v Australia, 930/2000, decided 2001, a majority decision.

Last Updated 9 January 2003.