1. Terms of reference
The Human Rights
Commissioner, Dr Sev Ozdowski, conducted an Inquiry into children
in immigration detention on behalf of the Commission.
The Commissioner
inquired into the adequacy and appropriateness of Australia's treatment
of child asylum seekers and other children who are, or have been, held
in immigration detention, including:
- The provisions
made by Australia to implement its international human rights obligations
regarding child asylum seekers, including unaccompanied minors.
- The mandatory
detention of child asylum seekers and other children arriving in Australia
without visas, and alternatives to their detention.
- The adequacy
and effectiveness of the policies, agreements, laws, rules and practices
governing children in immigration detention or child asylum seekers
and refugees residing in the community after a period of detention,
with particular reference to:
- The impact
of detention on the well-being and healthy development of children,
including their long-term development.
- The additional
measures and safeguards which may be required in detention facilities
to protect the human rights and best interests of all detained children.
- The additional
measures and safeguards which may be required to protect the human
rights and best interests of child asylum seekers and refugees residing
in the community after a period of detention.
"Child"
includes any person under the age of 18.
2. Reasons for the Inquiry
The Human Rights
and Equal Opportunity Commission is responsible for protecting and promoting
human rights, including:
- promoting an
understanding and acceptance of human rights in Australia;
- undertaking
research to promote human rights;
- examining laws
relating to human rights; and
- advising the
federal Attorney-General on laws and actions that are required to
comply with our international human rights obligations.
The Commission
also inquires into complaints of breaches of human rights under the Human Rights and Equal Opportunity Act 1986 (Cth). In the past
reporting year, the Commission has received an increase in the number
of complaints about human rights breaches involving children in immigration
detention.
One area of Commission
responsibility is the rights of children under the Convention on
the Rights of the Child (1989). Australia agreed to be bound by
the Convention in December 1990. The Australian government has also
included the Convention in the human rights responsibilities of the
Human Rights and Equal Opportunity Commission.
Key principles
of the Convention are:
- The right to
survival and development.
- The best interests
of the child as a primary consideration in all actions concerning
children.
- The right of
all children to express their views freely on all matters affecting
them.
- Respect for
the responsibilities, rights and duties of parents and families to
provide direction to a child in the exercise of their rights.
- The right of
all children to enjoy all the rights of the Convention without discrimination
of any kind.
The Convention
applies to every child in Australia regardless of nationality or immigration
status and regardless of how the child arrived in Australia.
Under the Convention,
children in detention have the right to:
- family life,
and to be with their parents unless separation is in their best interests.
- the highest
attainable standard of health.
- protection from
all forms of physical or mental violence, sexual abuse and
exploitation. They also have the right to recover and be rehabilitated
from neglect, exploitation, abuse, torture or ill-treatment, or armed
conflicts.
- to practise
their culture, language and religion.
- to rest and
play.
- to primary education, and different forms of secondary education should be
available and accessible to every child.
- appropriate protection and humanitarian assistance as an asylum seeker
or refugee.
- not be deprived
of their liberty unlawfully or arbitrarily, with detention
only in conformity with the law, as a measure of last resort and for
the shortest appropriate period of time.
- be treated with
humanity and respect for their inherent dignity and in a manner
which takes into account their age.
- access to legal
assistance
and the right to challenge their detention.
- not be subjected
to torture or other cruel, inhuman or degrading treatment or punishment.
- privacy.
- a standard
of living
adequate for physical, mental, spiritual, moral and
social development.
The Convention
is available at http://www.ohchr.org/english/law/pdf/crc.pdf
To access A Last Resort? - The Report of the National Enquiry into Children in Immigration Detention click here
