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National Inquiry into Children in Immigration Detention - Background Paper 8: Deprivation of Liberty and Humane Detention

National Inquiry into Children in Immigration Detention

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Background Paper 8: Deprivation of Liberty and Humane Detention

In accordance with the general principle stated at Guideline 2 and the UNHCR [1] Guidelines on Refugee Children, minors who are asylum seekers should not be detained…

UNHCR, Revised Guidelines on applicable Criteria and Standards Relating to the Detention of Asylum-Seekers, (UNHCR Guidelines on Detention) Introduction, Guideline 6 (1999) (emphasis retained).

Unfortunately refugee children are sometimes detained or threatened with detention because of their own, or their parents', illegal entry into a country of asylum. Because detention can be very harmful to refugee children, it must be 'used as a measure of last resort and for the shortest appropriate period of time',

UNHCR Refugee Children: Guidelines on Protection and Care (UNHCR Guidelines on Protection and Care), (1994) chapter 7.

In this Background Paper

  1. National Inquiry into Children in Immigration Detention
  2. The Convention on the Rights of the Child
  3. Deprivation of liberty
  4. Detention as a measure of last resort and for the shortest appropriate period of time
  5. Unlawful or arbitrary deprivation of liberty
  6. Right to challenge detention under international law
  7. Right to humane detention
  8. Monitoring and reviewing detention
  9. Questions for submissions

1. National 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 mandatory detention of child asylum seekers, alternatives to their detention and additional measures which may be required in immigration detention facilities to protect the human rights of all detained children. [2]

This background paper provides an overview of international human rights standards on the deprivation of liberty and humane detention that are relevant to the Inquiry. It refers primarily to the Convention on the Rights of the Child (the Convention) but also to other international human rights standards where relevant. [3]

This paper 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 and general information on relevant international treaties and standards, see Background Paper 1: Introduction. This and other background papers are available on the Human Rights and Equal Opportunity Commission web site at http://www.humanrights.gov.au/human_rights/children_detention/background.html. Reference should also be made to the Commission's 1998 report on immigration detention, Those who've come across the seas: Detention of unauthorised arrivals. [4]

The term "child asylum seeker" is used throughout the background papers. [5] 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.

Treaties, 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.

Other 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.

What is detention?

The Committee on the Rights of the Child has adopted the definition of detention outlined in the United Nations Rules for the Protection of Juveniles Deprived of their Liberty:

Deprivation of liberty means any form of detention or imprisonment or the placement of a person in another public or private custodial setting from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority (Rule 11(b)). [6]

UNHCR Guidelines on Detention define detention as:confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory. [7]

2. Convention on the Rights of the Child

The provisions of the Convention are outlined in Background Paper 1: Introduction. Apart from article 37 of the Convention, which is discussed in this paper, the key provisions of the Convention must be respected. The Convention's key provisions are the principle of non-discrimination (article 2), the requirement that in all actions concerning the child, the "best interests" of the child is a primary consideration (article 3) and the right of children to participate in decision making concerning them and to express their views (article 12).

3. Deprivation of liberty

Article 37 of the Convention provides children with a general right not to be detained or deprived of their liberty unless in accordance with the Convention. Article 37 contains three key elements:

  • any detention of a child must be in conformity with law, used only as a measure of last resort and for the shortest appropriate period of time
  • no child should be deprived of his or her liberty unlawfully or arbitrarily
  • every child deprived of her or his liberty has the right to access legal and other appropriate assistance and the right to challenge the legality of the deprivation of her or his liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

The provisions of article 37 are reiterated in relevant UNHCR guidelines on refugee children. [8]

4. Detention as a measure of last resort and for the shortest appropriate period of time (article 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…

Articles 37 (b), Convention on the Rights of the Child (emphasis added).

Any decision to detain a child asylum seeker must be made subject to the provision of the Convention that the detention be in conformity with the law, a measure of last resort and for the shortest appropriate period of time. The provisions of article 37(b) are repeated throughout relevant UN standards on children. For example, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) states that detention "should be used as a last resort" and "be limited to exceptional cases." [9] The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1985) reiterate that any detention should be brief [10] and state this should only occur where the child has committed "a serious act involving violence". [11]

The UNHCR has stated in its Guidelines on Detention that "minors who are asylum seekers should not be detained". [12]

Alternatives to detention

The Committee on the Rights of the Child has emphasised the importance of States finding alternatives to the detention of children. [13] For example, in relation to child asylum seekers whose claims were rejected it has stated:

[T]he Committee is seriously concerned about legislation which permits the detention of asylum-seeking children pending deportation. The Committee urges the State party [Austria] to reconsider the practice of detaining asylum-seeking children, and that such children be treated in accordance with the best interests of the child ... [14]

The UNHCR also recommends alternatives to detention for children and their families. [15]

Unaccompanied children are particularly vulnerable. Both UNHCR's Guidelines on Detention and Guidelines on Unaccompanied Children [16] outline the alternative care arrangements that must be provided for unaccompanied and accompanied children:

Unaccompanied minors should not, as a general rule, be detained. Where possible they should be released into the care of family members who already have residency within the asylum country. Otherwise, alternative care arrangements should be made by the competent child care authorities for unaccompanied minors to receive adequate accommodation and appropriate supervision. Residential homes for children or foster care may provide the necessary facilities to ensure their proper development (both physical and mental), is catered for while longer term solutions are being considered. [17]

Australian law mandates the detention of unauthorised child and adult asylum seekers.[18] The requirements that detention be the " last resort and for the shortest appropriate period of time" (article 37(b), is not reflected in Australian law. It is not clear from international law exactly what "the shortest appropriate period of time" for detention. However, non-custodial measures should be investigated before custodial measures. The Inquiry welcomes submissions on this point.

The detention of child asylum seekers in circumstances where other children in Australia are not detained may raise issues under the non-discrimination provision of the Convention. [19]

Under bridging visa requirements, child asylum seekers cannot be released from immigration detention unless a State or Territory child welfare authority certifies that a release from detention is in the child's best interests and the Minister for Immigration and Multicultural and Indigenous Affairs is satisfied that appropriate arrangements have been made for the care and welfare of the child outside of detention. [20] As it is usually in a child's best interests to remain with her or his family, and there is no provision for release of families from detention, children are rarely granted bridging visas.

The Inquiry welcomes submissions on the detention of child asylum seekers, and the extent to which current alternatives to detention, such as bridging visas, comply with article 37(b). The Inquiry also welcomes submissions on the circumstances in which children have been released on bridging visas.

5. Unlawful or arbitrary deprivation of liberty (article 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…

Articles 37 (b), Convention on the Rights of the Child (emphasis added).

The prohibition of unlawful or arbitrary detention in the Convention mirrors that of article 9(1) of the International Covenant on Civil and Political Rights (ICCPR)(1966). [21] The Committee on the Rights of the Child cannot hear petitions from individuals, unlike the Human Rights Committee under the First Optional Protocol to the ICCPR. The Human Rights Committee [22] has considered the ambit of article 9(1) in a number of cases and this is persuasive interpretative material in determining the scope of article 37(b) of the Convention. [23]

'Lawfulness' in article 9(1) of the ICCPR requires that " no one shall be deprived of [her or] his liberty except on such grounds and in accordance with such procedures as are established by law." [24]

When article 9 of the ICCPR was drafted, it was clear that the meaning of "arbitrary" contained elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality, as well as the common law principle of due process of law.[25] In A v Australia [26] the Human Rights Committee stated that detention was arbitrary if it was "not necessary in all the circumstances of the case" and if it was not a proportionate means to achieving a legitimate aim. [27]

The reference to arbitrariness in article 9(1) of the ICCPR imposes a separate and distinct limitation on detention in the requirement that the detention be lawful. The Human Rights Committee in Van Alphen v The Netherlands [28] confirmed that there are various factors which may render an otherwise lawful detention arbitrary. It said that:

arbitrariness is not to be equated with "against the law" but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime. [29]

Furthermore, the jurisprudence of the Human Rights Committee has established that even if the initial detention is not arbitrary, a subsequent period of detention may become arbitrary, for example, when one has regard to the length of the detention. [30]

Necessity

"[R]emand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context."

A v Australia, Communication No. 560/1993 at para 9.2.

The Human Rights Committee has found that detention of asylum seekers may be arbitrary if it is not necessary and proportionate. [31] In considering whether the detention of unauthorised child asylum seekers in Australia can be shown to be reasonable, necessary and proportionate and thus free from arbitrariness, Australia must take into account its specific international obligations to these children.

The Refugee Convention [32] prevents States Parties unnecessarily restricting the movement of asylum seekers. Article 31 of the Refugee Convention prohibits the imposition of penalties on account of asylum seekers' [33] illegal entry or presence in a country:

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

UNHCR's Guidelines on Detention clarify that article 31 of the Refugee Convention "exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence". [34] The Guidelines further clarify that the terms "coming directly" and "good cause" should be interpreted broadly, covering persons who spent time in third countries, with no strict time limits applied and requiring consideration of the circumstances in which the individual fled. [35]

The Refugee Convention does not require refugees to seek asylum in the first country they flee to. [36] Article 14(1) of the Universal Declaration of Human Rights provides that "everyone has the right to seek and to enjoy in other countries asylum from persecution."

The UNHCR has stated in ExCom Conclusion 44 [37] that, because of the hardship it causes, detention of asylum seekers should be avoided. If necessary, UNHCR states that detention may only be resorted to in four cases:

  • to verify identity
  • to establish the elements of a refugee status or asylum claim
  • to deal with cases where refugees or asylum-seekers have destroyed or falsified their travel and/or identity documents to mislead authorities or
  • to protect national security or public order. [38]

In the Guidelines on Detention which elaborate ExCom Conclusion 44, the UNHCR states that the detention of asylum seekers should not be automatic or unduly prolonged. For example, in determining the elements on which a claim to refugee status is based, individuals should only be detained if necessary to undergo a preliminary interview. The detention of a person for the entire duration of a prolonged asylum procedure is not justified. [39]

In relation to asylum seekers using fraudulent documents or traveling with no documents at all, UNHCR states that detention is permissible only where there is an intention to mislead the authorities. Asylum seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason. [40]

The UNHCR also states that the right to liberty is a fundamental right and that therefore 'the detention of asylum-seekers is in the view of UNHCR inherently undesirable'. [41] Guidelines on Detention assert that there should be a presumption against detention and that the only permissible exceptions to this presumption are the four grounds provided in ExCom Conclusion 44. Detention of asylum seekers for any other purpose, 'for example, as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law'. [42]

In relation to children, the Guidelines on Detention clearly stipulate that child asylum seekers should not be detained. [43] If detention is considered, those Guidelines provide that all alternatives to detention should first be explored. If a child is detained, detention should be for the shortest period of time and in accordance with the above four exceptions in ExCom Conclusion 44.

Detention of child asylum seekers will be arbitrary where it is not necessary in the circumstances of a particular case. Detention may not be considered necessary outside of the four exceptions contained in ExCom Conclusion 44 or where there is an alternative to detention. The Inquiry welcomes submissions on whether the detention of child asylum seekers is in breach of article 37(b) of the Convention.

Proportionality

A law will be arbitrary where it is not a proportionate means of achieving a legitimate end. [44] The UNHCR has asserted that the only legitimate grounds for detention are those set out in the four exceptions in ExCom Conclusion 44. That is, detention is only for a legitimate purpose where it is used to verify identity, to establish the elements of an asylum claim, to deal with cases where asylum seekers have destroyed or falsified their travel and/or identity documents to mislead authorities or to protect national security or public order. The UNHCR makes clear that detention of asylum seekers, particularly children, as part of a policy of deterrence is "contrary to the norms of refugee law". [45]

In the case of child asylum seekers, detention may not be a proportional means of achieving this objective where an alternative to detention is available. In addition, a proportionate response may require that the detention of the asylum seeker be for a purpose more precisely connected to a particular individual rather than as a part of a blanket policy of deterrence. [46] The Inquiry welcomes submissions on this point.

The Commission has found previously that Australia's detention policy does not meet the minimum standards in ExCom 44 or the UNHCR Detention Guidelines [47] and that it would be considered arbitrary and unreasonable under article 9(1) ICCPR and article 37(b) of the Convention. [48]

Length of detention

The permissible length of detention has not been definitively outlined by the Human Rights Committee. However, the Committee has found violations in a number of cases. The Human Rights Committee's comments in these cases [49] raise questions about the validity of all but a very brief period of detention in most cases.

The length of detention does not in itself make detention arbitrary. The longer the detention continues, however, the more likely it is to be arbitrary as it will be difficult to justify such detention as being necessary in all the circumstances of the case. [50]

In A v Australia, the Human Rights Committee found that the detention of an adult asylum seeker for four years was arbitrary as his detention for this period of time was not necessary in the circumstances. It stated that:

detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary … [51]

The Inquiry welcomes submissions on the issue of length of detention in relation to child asylum seekers.

6. Right to challenge detention

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.

Article 37 (d), Convention on the Rights of the Child.

Judicial oversight of all forms of detention is a fundamental guarantee of liberty and freedom from arbitrariness. Without judicial oversight, administrative detention may be indeterminate, being decided on grounds of administrative or other convenience.

Article 37(d) of the Convention mirrors article 9(4) of the ICCPR which provides:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

The jurisprudence of the Human Rights Committee assists in determining the scope of article 37(d). While both the Convention and ICCPR articles apply to all children held in detention, including child asylum seekers, article 37(d) of the Convention also provides the child with the right to "prompt access to legal and other appropriate assistance" [52] before a court or similar authority. Where a child does not have access to legal and other assistance to challenge her or his detention, there will be a violation of the Convention. [53]

The Human Rights Committee has determined that the lack of provision for review of the detention of an alien for a period of three days because of his incommunicado detention amounted to a breach of article 9(4) of the ICCPR, [54] while in another case detention for a period of fifty hours without the ability to challenge detention was not a breach of article 9(4) of the ICCPR. [55]

The provisions of article 37(d) of the Convention and article 9(4) of the ICCPR require that the merits of detention in individual cases be reviewable to determine whether there is a contravention of either Convention and not alone by reference to 'lawfulness' under domestic law. Such review includes inquiry into whether detention is unlawful or arbitrary (including whether it can be shown to be necessary and a proportional means of achieving a legitimate aim). [56]

In A v Australia, the Human Rights Committee, making comments on article 9(4) of the ICCPR which are equally applicable to article 37(d) of the Convention, stated that:

court review of the lawfulness of detention under article 9(4), which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law. While domestic legal systems may institute differing methods for ensuring court review of administrative detention, what is decisive for the purposes of article 9, paragraph 4, is that such review is, in its effects, real and not merely formal. By stipulating that the court must have the power to order release 'if the detention is not lawful', article 9, paragraph 4, required that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant. [57]

In its Concluding Observations on Australia's Third and Fourth reports to the Committee, the Human Rights Committee in 2000 referred directly to the A v Australia case:

The Committee is concerned over the approach of the State party to the Committee's Views in Communication No. 560/1993 (A. v. Australia). Rejecting the Committee's interpretation of the Covenant when it does not correspond with the interpretation presented by the State party in its submissions to the Committee undermines the State party's recognition of the Committee's competence under the Optional Protocol to consider communications. [58]

Judicial review of detention in Australia remains very limited. As child asylum seekers may be lawfully detained under the Migration Act 1958 (Cth), any legal challenge to their detention will be "merely formal" and unable to succeed. At present, there is no court in Australia in which child asylum seekers can take proceedings to determine whether their detention is arbitrary and therefore in contravention of the Convention and/or the ICCPR. Accordingly, Australia would appear to be in breach of article 37(d) of the Convention and article 9(4) of the ICCPR. The Inquiry welcomes submissions on this point.

Both the Committee on the Rights of the Child and the Human Rights Committee have expressed concern about Australia's detention of asylum seekers in their Concluding Observations on Australia's periodic reports under both Conventions.

In 1997, the Committee on the Rights of the Child stated:

The Committee is concerned about the treatment of asylum seekers and refugees and their children, and their placement in detention centres. (Concluding Observation 20). [59]

In 2000, the Human Rights Committee stated:

The Committee considers that the mandatory detention under the Migration Act of "unlawful non-citizens", including asylum-seekers, raises questions of compliance with article 9, paragraph 1, of the Covenant, which provides that no person shall be subjected to arbitrary detention. The Committee is concerned at the State party's policy, in this context of mandatory detention, 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.

The Committee urges the State party to reconsider its policy of mandatory detention of "unlawful non-citizens" with a view to instituting alternative mechanisms of maintaining an orderly immigration process. The Committee recommends that the State party inform all detainees of their legal rights, including their right to seek legal counsel. (Concluding Observations 18, 19). [60]

7. Right to humane detention

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;…

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so [61] and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

Article 37, Convention on the Rights of the Child. [62]

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.

Article 3(2), Convention on the Rights of the Child.

Juveniles deprived of their liberty shall not for any reason related to their status be denied the civil, economic, political, social or cultural rights to which they are entitled under national or international law, and which are compatible with the deprivation of liberty.

Rule 13, United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

Child asylum seekers in detention have not been arrested or charged with any criminal offence. Accordingly, their treatment should be as favourable as possible and in no way less favourable than that of untried or convicted prisoners. [63] The other "civil, economic, political, social or cultural rights" of the child under national or international law should always be ensured, provided they are compatible with provisions on the deprivation of liberty. [64] There should normally be a presumption that this is the case, unless serious security issues such as imminent escape or riots require the temporary restrictions of such rights.

In designing and delivering detention programs, Australia should always seek to minimise differences between life in detention and life at liberty and strive to meet the individual needs of each detainee taking into account her or his history and experiences, age, gender and cultural, religious and linguistic identity. This is particularly important for detained children.

If child asylum seekers are to be detained in Australia, their detention conditions must meet minimum international standards on humane detention of children which prohibits the ill-treatment of children. [65] Australia is obliged to ensure to all child asylum seekers "appropriate protection and humanitarian assistance" under article 22 of the Convention. Appropriate protection and humanitarian assistance includes as a minimum providing every child with "a standard of living adequate for the child's physical, mental, spiritual, moral and social development" (article 27 of the Convention).

Commission Guidelines on Immigration Detention

The Human Rights and Equal Opportunity Commission has developed Immigration Detention Guidelines which draw on relevant international standards on humane detention for adults and children, including the standards outlined in the Convention. [66]

The Guidelines cover a number of areas concerning the conditions which should prevail in detention facilities. While the general conditions in detention required by international standards have been outlined throughout the Background Papers, the Guidelines are helpful in considering the security aspects of immigration detention, including the use of discipline and punishment, such as the use of force, curfews, head counts any denial of privileges to detainees. The Guidelines can be accessed at https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/human-rights-standards-immigration-detention

The Inquiry welcomes submissions on whether the principles outlined in the Guidelines are sufficiently comprehensive for the protection and care of children, in addition to how they compare to standards in juvenile justice detention centres in Australian States and Territories and in overseas jurisdictions. The Inquiry also welcomes submissions on the extent to which the standards outlined in the Guidelines are currently reflected in detention practices in Australia, including the Department of Immigration and Multicultural and Indigenous Affairs' (DIMIA) existing and revised draft Immigration Detention Standards. [67]

Child safety and abuse in detention

Where Australia decides to detain children, it is directly responsible under article 19(1) of the Convention to ensure that it takes "all appropriate legislative, administrative, social and educational measures 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 34 of the Convention requires Australia to "protect the child from all forms of sexual exploitation and sexual abuse", including "[t]he inducement or coercion of a child to engage in any unlawful sexual activity". UNHCR has stressed its own role in acting when the safety and liberty of refugee and asylum seeking children is at risk (either directly or indirectly) and has highlighted the importance of monitoring and investigating children's well being. [68] (See discussion on children at risk in Background Paper 3: Mental Health and Development).

The Inquiry welcomes submissions on how child safety can be assured in immigration detention facilities, including the extent to which existing measures are adequate and effective. We welcome submissions on how child abuse allegations are dealt with in practice and on the adequacy of arrangements in place between the relevant government agencies. Submissions could also address how Australian officials and private security officers are trained and how they perform their duties. The Inquiry welcomes submissions on how children can make their fears or any complaints known to the competent authorities (see below).

8. Monitoring and reviewing detention

States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 3(3), Convention on the Rights of the Child.

Article 3(3) requires Australia to set standards and to ensure these standards are met in all institutions, services and facilities through appropriate monitoring. [69] Article 3(3) of the Convention differs from article 25 (see Background Paper 3: Mental Health and Development) in that article 3(3) governs the monitoring of institutions and staff, whereas article 25 governs the monitoring of the individual progress of each child placed in an institution "for the purposes of care, protection or treatment of his or her physical or mental health". [70] Australia has already introduced standards for its detention facilities in the form of its Immigration Detention Standards (IDS). [71] DIMIA expects these standards to be implemented by the service provider (currently Australasian Correctional Management (ACM)) and undertakes internal reviews of ACM's performance from time to time.

The Inquiry welcomes submissions on whether the current and revised IDSs conform to the requirements of the Convention, including the requirements under article 3(3) "in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision." In considering applicable international standards, submissions may wish to address the extent to which the IDS conforms with international instruments, including Rules 81-87 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

Apart from setting appropriate standards under article 3(3), Australia is obliged to ensure the implementation of these standards. This requires Australia to have in place appropriate mechanisms to monitor its detention facilities, the private contractors who manage these facilities and their staff. The Inquiry welcomes submissions on whether the monitoring mechanisms in place in detention facilities are adequate.

Effective implementation of article 3(3) will require a comprehensive review of the legislative, administrative and contractual frameworks covering the treatment of children in detention facilities. [72] It differs from article 37(d) which provides for a "prompt decision on any … action" by the child exercising the right to challenge the legality of her or his detention before a court or similar authority.

Qualified inspectors or an equivalent duly constituted authority not belonging to the administration of the facility should be empowered to conduct inspections on a regular basis and to undertake unannounced inspections on their own initiative, and should enjoy full guarantees of independence in the exercise of this function. Inspectors should have unrestricted access to all persons employed by or working in any facility where juveniles are or may be deprived of their liberty, to all juveniles and to all records of such facilities.

Rule 72, United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

At present there is no independent body in Australia charged with monitoring Australia's detention facilities with the power to compel changes to detention practices where they are warranted. Both the Human Rights and Equal Opportunity Commission and the Commonwealth Ombudsman exercise statutory duties and can inspect detention facilities with prior Ministerial approval, but cannot compel changes to detention practices. Similarly Parliamentary committees and Ministerial advisory groups may also inspect detention facilities from time to time. The Inquiry welcomes submissions on how conditions and practices in detention facilities should be monitored, including models used in other jurisdictions.

We also welcome submissions on appropriate child-friendly complaints mechanisms for children.

Monitoring of detention facilities should include assessment of the extent to which detention programs maximise the child's development and well being (see Background Paper 3: Mental Health and Development). [73]

9. Questions for submissions

The following questions may assist organisations and individuals in making submissions to the Inquiry.

  1. What are the provisions of Australian law governing the detention of children? To what extent do they conform with international human rights standards on children?
  2. What should be the limits on detention (if any)? What are the international standards on length of detention?
  3. In what circumstances can child asylum seekers be released from immigration detention in Australia? Can release occur with the child's parents? How often are children released?
  4. What are the alternatives to the detention of children and their families? Are there applicable international or domestic models that could be applied in Australia? Who would pay for accommodating children in the community?
  5. What legitimate concerns (if any) are there in detaining children and their families? In countries where they are not detained or are released from detention, at what rate do child asylum seekers and their families abscond? How can health, identity, destroyed travel documents, security risk or reporting requirement concerns be addressed in this context?
  6. To what extent do the conditions in Australia's detention facilities meet minimum international standards on humane detention? What is the balance (if any) between legitimate security concerns and human rights? What improvements in detention facilities (if any) could be made?
  7. To what extent do the government's Immigration Detention Standards conform with minimum international standards? To what extent does monitoring of conditions and complaints in respect of immigration detention occur? Is this adequate for children? How can children access complaint mechanisms?
  8. To what extent does abuse (including sexual abuse), neglect or harm to children occur in detention facilities. What procedures are in place to protect children?
  9. What programs and models from Australian States and Territories or overseas jurisdictions might be implemented to ensure conditions in detention respect the rights of the child?

ENDNOTES:

1 United Nations High Commissioner for Refugees.

2 The full terms of reference are available at http://www.humanrights.gov.au/human_rights/children_detention/terms.html.

3 International instruments and guidelines such as the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) and UNHCR (1994), Refugee Children: Guidelines on Protection and Care (UNHCR Guidelines on Protection and Care), Geneva. These standards are outlined in greater detail in Background Paper 1: Introduction.

4 The report is available at https://humanrights.gov.au/our-work/asylum-seekers-and-refugees.

5 The term asylum seekers used in these papers corresponds to the term outlined in UNHCR (1999) Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers (UNHCR Guidelines on Detention), Geneva: "The term, "asylum-seeker", in these guidelines applies to those whose claims are being considered under an admissibility or pre-screening procedure as well as those who are being considered under refugee status determination procedures. It also includes those exercising their right to seek judicial and/or administrative review of their asylum request", Introduction, para 4.

6 Committee on the Rights of the Child, General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted by States Parties, adopted by the Committee on the Rights of the Child on 11 October 1996, Part V111B(2), UN Doc CRC/C/58, 20 Nov 1996, para 138.

7 Guideline 1,UNHCR Guidelines on Detention.

8 See particularly the UNHCR Guidelines on Detention.

9 Rules 1 and 2, United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Rule 2 provides "[d]eprivation 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. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release".

10 Rule 17(b) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) provides: "Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum".

11 Rule 17(c), Beijing Rules, provides that "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 committing other serious offences and unless there is no other appropriate response".

12 Guideline 6, UNHCR Guidelines on Detention (emphasis retained).

13 For example, considering Sweden's Initial Report, the Committee observed: "The Committee also suggests that consideration be given to providing alternatives to the incarceration of children under the Aliens Act and that a public defence counsel be appointed for children in conflict with the law." Committee on the Rights of the Child (CRC), Concluding Observations of the Committee on the Rights of the Child : Sweden, UN Doc CRC/C/15/Add.2, 18 Feb 1993, para 12. In relation to child asylum seekers, the Committee observed to Canada:
"Deprivation of liberty of children, particularly unaccompanied children, for security or other purposes should only be used as a measure of last resort in accordance with article 37 (b) of the Convention". CRC, Concluding Observations of the Committee on the Rights of the Child : Canada, UN Doc CRC/C/15/Add.37, 20 June 1995, para 24.

14 Emphasis retained. CRC, Concluding Observations on the Committee on the Rights of the Child: Austria, UN Doc CRC/C/15/Add.98, 7 May 1999, para 27. See too the Committee on Canada: "the Committee recommends that the Government address the situation of unaccompanied children and children having been refused refugee status and awaiting deportation in the light of the Convention's provisions. Deprivation of liberty of children, particularly unaccompanied children, for security or other purposes should only be used as a measure of last resort in accordance with article 37 (b) of the Convention", CRC, Concluding Observations of the Committee on the Rights of the Child: Canada, UN Doc CRC/C/15/Add.37, 20 July 1995, para 24.

15 "If refugee children are detained in airports, immigration holding centres or prisons, they must not be held under prison-like conditions. Special arrangements must be made for living quarters which are suitable for children and their families. Strong efforts must be made to have them released from detention and placed in other accommodation"; UNHCR Guidelines on Protection and Care, ch 7. See too Guideline 6, UNHCR Guidelines on Detention.

16 UNHCR (1997), Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (UNHCR Guidelines on Unaccompanied Children), Geneva.

17 Guideline 6, UNHCR Guidelines on Detention.

18 All persons, including children, in the migration zone without a valid visa must be kept in immigration detention until granted a visa, removed or deported: s14 and s196(3), Migration Act 1958 (Cth). S196(3) provides that "[t]o avoid doubt… the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation)" is not permitted "unless the non-citizen has been granted a visa."

19 Article 2, Convention. See CRC, Concluding Observations of the Committee on the Rights of the Child on Sweden, 18/02/93, Un Doc CRC/C/15/Add.2, 18 Feb 1993, para 9: "The Committee is also concerned by the practice of taking foreign children into custody under the Aliens Act and notes that this practice is discriminatory in so far as Swedish children generally cannot be placed in custody until after the age of 18".

20 Regulation 2.20, Migration Regulations 1994. See HREOC (1998), Those who've come across the seas: Detention of unauthorised arrivals, pp21-22.

21 Article 9(1), ICCPR provides: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

22 The Human Rights Committee (HRC) is the supervisory body for the ICCPR. See Part 4 of Covenant.

23 See too discussion of mandatory detention in HREOC (1998), Those who've come across the seas: Detention of unauthorised arrivals, HREOC, ch 3, at https://humanrights.gov.au/our-work/asylum-seekers-and-refugees.

24 HRC, General Comment 8, which provides: "Also if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para. 2) and court control of the detention must be available (para. 4) as well as compensation in the case of a breach (para. 5)", Right to liberty and security of persons (Art. 9): HRC, General Comment 8, 30 July 1982, para 4.

25 M Nowak (1993), UN Covenant on Civil and Political Rights CCPR Commentary, MP Engel, Germany,, p172.

26 HRC, (A v Australia), Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993.

27 A v Australia, para 9.2.

28 HRC, Van Alphen v The Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988.

29 In the later case of Mukong v Cameroon the Human Rights Committee went further, including in its formulation the requirement of 'due process of law': "[A]rbitrariness" is not to be equated with "against the law", but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law... this means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable, in all the circumstances"; HRC, Communication No. 458/1991, 21 July 1994, para 9.8. Accordingly, the prohibition of arbitrariness extends beyond mere compliance with the domestic law; that law must itself reflect the rule of law ('due process of law'), and be of a certain quality which precludes arbitrariness ('elements of inappropriateness, injustice, lack of predictability'). See too the case law of the European Court of Human Rights, which has interpreted article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)("in accordance with a procedure prescribed by law"). The European Court in Amuur v France stated that: "In order to ascertain whether a deprivation of liberty has complied with the principle of compatibility with domestic law, it therefore falls to the Court to assess not only the legislation in force … but also the quality of the other legal rules applicable to the persons concerned. Quality in this sense implies that where a national law authorizes deprivation of liberty - especially in respect of a foreign asylum-seeker - it must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness…", (1996), 22, European Human Rights Reports, 533 at para 50. The quality of the legal rules required was expanded in paras 53-54. See too the case of Winterwerp v Netherlands, Judgement of 24 October 1979, Series A, No. 33.

30 HRC, Spakmo v Norway, Communication No. 631/1995, UN Doc CCPR/C/67/D/631/1995; A v Australia,; HRC, Concluding observations of the Human Rights Committee: Switzerland, UN Doc CCPR/C/79/Add.70, 8 November 1996.

31 For example, the Committee has found breaches of Article 9 in circumstances where people have not been released after their prison sentences have been fully served. See, for example, HRC, Weisman and Perdomo v Uruguay, UN Doc UNHRC 8/1977.

32 The Convention relating to the Status of Refugees (1951) and its 1967 Protocol (the Refugee Convention).

33 UNHCR Guidelines on Detention, Introduction, para 4 clarify that: "The term, "asylum seeker", in these guidelines applies to those whose claims are being considered under an admissibility or pre-screening procedure as well as those who are being considered under refugee status determination procedures. It also includes those exercising their right to seek judicial and/or administrative review of their asylum requests".

34 UNHCR Guidelines on Detention, Introduction, para 2.

35 UNHCR Guidelines on Detention, Introduction, para 4.

36 In this respect, it should be noted that Indonesia, through which many asylum seekers transit, has not signed or ratified the Refugee Convention.

37 UNHCR Executive Committee (EXCOM), Conclusion No. 44 (1986) - Detention of Refugees and Asylum-Seekers.

38 UNHCR Executive Committee (EXCOM), Conclusion No. 44 (1986) - Detention of Refugees and Asylum-Seekers at (b).

39 See UNHCR Guidelines on Detention, Introduction, para 3.

40 See also UNHCR, Note on International Protection, 15 August 1988: UN Doc A/AC.96/713, para 19. The Executive Committee in Conclusion 44 also "(c) Recognised the importance of fair and expeditious procedures for determining refugee status or granting asylum in protecting refugees and asylum seekers from unjustified or unduly prolonged detention [and] (d) Stressed the importance for national legislation and/or administrative practice to make the necessary distinction between the situation of refugees and asylum seekers and that of other aliens."

41 See UNHCR Guidelines on Detention, Introduction, para 1.

42 Guideline 3, UNHCR Guidelines on Detention.

43 Guideline 6, UNHCR Guidelines on Detention.

44 A v Australia, cited above.

45 Guideline 6, UNHCR Guidelines on Detention.

46 See Saadi & ORS v. Secretary of State for the Home Department [2001], EWCA, Civ 1512, 19th October, 2001: "It is in relation to the duration of detention that the question of proportionality arises", at para 65. The same case found that detention of "about 7 days" was of sufficiently short duration for the purposes of the Immigration Act 1971 (UK) and article 5(1)(f) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court indicated that lengthier detention may have reached those provisions; at para 67.

47 The UNHCR detention guidelines referred to in HREOC (1998), Those who've come across the seas: Detention of unauthorised arrivals , p45 are the UNHCR (1985), Guidelines on Detention of Asylum Seekers, which were the previous version of the 1999 UNHCR Guidelines on Detention.

48 See HREOC (1998), Those who've come across the seas: Detention of unauthorised arrivals, p53.

49 For example, "The Committee takes note with concern that provisions in article 2, para. 24 (f) of the [Peruvian] Constitution, which permits preventive detention for up to 15 days in cases of terrorism, espionage and illicit drug trafficking, as well as Decree Law 25,475, which authorizes extension of preventive detention in certain cases for up to 15 days, raise serious issues with regard to article 9 of the Covenant." HRC, Concluding Comments on Peru, UN Doc CCPR/C/79/Add. 67, 25 July1996, para 18. Reference should also be made to the judgements of the European Court of Human Rights under article 5 of the ECHR. In Amuur v France (cited above), 20 days detention of Somali asylum seekers was found to breach article 5(1), ECHR.

50 See discussion of 'proportionality' above.

51 A v Australia, para 9.4.

52 According to the Human Rights Committee "[t]he important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention. Furthermore, States Parties have in accordance with article 2(3) also to ensure that an effective remedy is provided in other cases in which an individual claims to be deprived of his liberty in violation of the covenant", HRC, General Comment No. 8, para 1.

53 See the case of Berry v Jamaica, of the Human Rights Committee, Communication No. 330/1988, 16 October 1992. The Committee accepted the complainant's allegation "which remains unchallenged, that throughout this period [detention of two and a half months], he had no access to legal representation". In addition to violating Article 9(3) ICCPR, the Committee concluded: "that the author's right under article 9, paragraph 4, was also violated, since he was not, in due time, afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention"; at para 11.1.

54 See Hammel v Madagascar, Communication No. 155/1983 : Madagascar,UN Doc CCPR/C/29/D/155/1983,3 April 1987, para 20.

55 Portorreal v Dominican Republic, Communication No. 188/1984 : Dominican Republic, UN Doc CCPR/C/31/D/188/1984, 5 Nov 1987, para 10.2. However, the Committee did find a violation of article 9(1), ICCPR, "because he was arbitrarily arrested; and Article 9, paragraph 2, because he was not informed of the reasons for his arrest"; at para 11.

56 See S Joseph, J Schultz and M Castan (2000), The International Covenant on Civil and Political Rights, Cases, Materials and Commentary, Oxford University Press, p241. See discussion on article 37(b) above.

57 A v Australia, at paragraph 9.5.

58 HRC, Concluding Observations of the Human Rights Committee : Australia, UN Doc A/55/40, 28 July 2000, paras 498-528.

59 CRC, Concluding Observations of the Committee on the Rights of the Child : Australia, UN Doc CRC/C/15/Add.79, 10 October 1997.

60 HRC, Concluding Observations of the Human Rights Committee : Australia, paras 498-528.

61 Australia announced a reservation to article 37(c) when ratifying the Convention in December 1990 concerning the separation of children from adults with reference to prisons, not immigration detention facilities; see http://www.ohchr.org/english/countries/ratification/11.htm#reservations

62 See also article 10(1) ICCPR: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person". See also Principle 1, UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988); Guideline 10, UNHCR, Guidelines on Detention.

63 Rule 94, Standard Minimum Rules for the Treatment of Prisoners.

64 UNHCR's ExCom Conclusion 44 "Stressed that conditions of detention of refugees and asylum seekers must be humane. In particular, refugees and asylum-seekers shall, whenever possible, not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered", at para f.

65 Humane detention includes the prohibition of torture and ill-treatment in article 37 of the Convention which provides: "States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment…" The prohibition of torture or ill-treatment is also found in article 7 of the ICCPR and in articles 1 and 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

66 The HREOC Immigration Detention Guidelines build on the 'Immigration Detention Standards: Fundamental Principles' drafted by the Detention Working Group of the New South Wales Asylum Seekers Interagency and formally endorsed by the Interagency in February 1999. The purpose of the Guidelines is "to facilitate further dialogue and cooperation among the Commission, detention authorities (DIMIA and ACM) and relevant non-government agencies in the development of acceptable minimum standards for immigration detention in Australia."

67 DIMIA's Immigration Detention Standards can be accessed at http://www.immi.gov.au/illegals/det_standards.htm.

68 See UNHCR Guidelines on Protection and Care, ch 7. UNHCR have also suggested that UNHCR's 'presence' be strengthened "in locations where the physical safety and liberty of refugee children is at risk".

69 R Hodgkin and P Newell (1998), Implementation Handbook for the Convention on the Rights of the Child, United Nations Children's Fund, New York, p45.

70 It is also a separate right to the right to challenge detention in article 37(d), see above.

71 These Standards have been agreed between DIMIA and the private contractual operator, Australasian Correctional Services (and its operating arm, ACM). The contracts for immigration detention centres (also known as immigration reception and processing centres) are being re-tendered in 2002 by DIMIA.

72 UNICEF Implementation Handbook, p45.

73 Reviewing the child's "treatment" may extend beyond reviewing the clinical treatment of the child's health, to include all other aspects of the child's experience in the detention facility, such as measures used to control the child, the child's inability to interact positively with their family and community, to have access to the outside world and how detention affects the child's health, education and welfare, including development and emotional well-being. See Background Paper 3: Mental Health and Development; UNICEF Implementation Handbook, p343.