A last resort ?

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.

Convention on the Rights of the Child, article 37(b)

Preface

Executive Summary

1. Introduction

• 1.1 What power does the Commission have to hold an inquiry?

• 1.2 What are the terms of reference for the Inquiry?

• 1.3 What is the time period covered by the Inquiry?

• 1.4 Who are the Commissioners who conducted the Inquiry?

• 1.5 What is the structure of the report?

2. Inquiry Methodology

• 2.1 How did the Inquiry gather evidence?

• 2.2 How did the Inquiry assess, analyse and utilise the evidence before it?

3. Setting the Scene - Children in Immigration Detention

• 3.1 Where can children be detained?

• 3.2 How many children have been in immigration detention?

• 3.3 How many detainee children have been recognised as refugees?

• 3.4 How long have children been in immigration detention?

• 3.5 What is the background of children in immigration detention?

• 3.6 How did the children get to the detention centres?

• 3.7 What did children and their parents say about detention centres?

4. Australia's Human Rights Obligations

• 4.1 Does international human rights law threaten Australia's sovereignty?

• 4.2 How does international law become part of Australian law?

• 4.3 What are the rights of children in immigration detention in Australia?

• 4.4 What tools assist in the interpretation of treaty obligations?

• 4.5 Summary

5. Mechanisms to Protect the Human Rights of Children in Immigration Detention

• 5.1 How are children's rights protected by domestic legislation?

• 5.2 How are children's rights protected by domestic courts and the Human Rights and Equal Opportunity Commission?

• 5.3 How are children's rights protected by the Department?

• 5.4 How are children's rights protected by State authorities?

• 5.5 Summary of findings on mechanisms to protect the human rights of children in immigration detention

6. Australia's Immigration Detention Policy and Practice

• 6.1 What are the human rights relevant to the detention of children?

• 6.2 What is the history of mandatory detention in Australia?

• 6.3 When are children detained?

• 6.4 Where are children detained?

• 6.5 Is detention in the 'best interests of the child'?

• 6.6 Are children detained as 'a measure of last resort'?

• 6.7 Are children detained for the 'shortest appropriate period of time'?

• 6.8 Can courts provide effective review of the legality of detention?

• 6.9 Is the detention of children 'unlawful' and 'arbitrary'?

• 6.10 Summary of findings regarding detention of children

• 6.11 Case studies

7. Refugee Status Determination for Children in Immigration Detention

• 7.1 What are children's rights regarding refugee status determination?

• 7.2 How does the refugee status determination system work in mainland detention facilities?

• 7.3 Is there priority processing for children in detention?

• 7.4 Is there appropriate legal assistance for children in detention?

• 7.5 Is there a child-friendly environment and assessment process for children in detention?

• 7.6 Are special substantive considerations applied to children's asylum claims?

• 7.7 What special measures are taken to assess claims by unaccompanied children in detention?

• 7.8 What is the refugee status determination process for 'offshore entry persons'?

• 7.9 Summary of findings on refugee status determination for children in detention

8. Safety of Children in Immigration Detention

• 8.1 What are children's rights regarding safety in immigration detention?

• 8.2 What policies were in place to ensure the safety of children in detention?

• 8.3 What exposure have children had to riots, violence and self-harm in detention centres?

• 8.4 What exposure have children had to 'security' measures used in detention centres?

• 8.5 What exposure have children had to direct physical assault in detention centres?

• 8.6 Summary of findings regarding the safety of children in detention

• 8.7 Case Study: Shayan Badraie

9. Mental Health of Children in Immigration Detention

• 9.1 What are children's rights regarding mental health and development in immigration detention?

• 9.2 What policies were in place to prevent and treat the mental health problems of children in detention?

• 9.3 What factors contribute to the mental health and development problems of children in detention?

• 9.4 What was the nature and extent of the mental health and development problems suffered by children in detention?

• 9.5 What measures were taken to prevent and treat mental health and development problems in detention?

• 9.6 Summary of findings regarding the mental health and development of children in detention

• 9.7 Case studies

10. Physical Health of Children in Immigration Detention

• 10.1 What are children's rights regarding physical health in immigration detention?

• 10.2 What policies were in place to ensure the physical health of children in detention?

• 10.3 Did children enjoy a healthy environment in detention?

• 10.4 What health care services were available to children in detention?

• 10.5 Summary of findings regarding the right to health for children in detention

11. Children with Disabilities in Immigration Detention

• 11.1 What are the rights of children with disabilities in immigration detention?

• 11.2 What policies were in place to ensure that children with disabilities enjoyed their rights in detention?

• 11.3 Was there early identification of disabilities for children in detention?

• 11.4 Was there appropriate case management for children with disabilities in detention?

• 11.5 Was there appropriate support for parents of children with disabilities in detention?

• 11.6 Was there appropriate physical access, aids and adaptations for children with disabilities in detention?

• 11.7 Was there appropriate education for children with disabilities in detention?

• 11.8 Were there appropriate recreational activities for children with disabilities in detention?

• 11.9 Were appropriate steps taken to transfer or release children with disabilities from detention?

• 11.10 Summary of findings regarding the rights of children with disabilities in detention

12. Education for Children in Immigration Detention

• 12.1 What are children's rights regarding the provision of education in immigration detention?

• 12.2 What policies were in place regarding education for children in detention?

• 12.3 What education is provided to similar children in Australian schools?

• 12.4 What education was provided in internal detention centre schools?

• 12.5 What external education was provided to children in detention?

• 12.6 Summary of findings regarding education for children in detention

• 12.7 Case studies

13. Recreation for Children in Immigration Detention

• 13.1 What are children's rights regarding play and recreation in immigration detention?

• 13.2 What policies were in place to ensure appropriate play and recreation for children in detention?

• 13.3 What impact does detention have on the ability to enjoy the right to play and recreation?

• 13.4 What play facilities and equipment were available to children in detention?

• 13.5 What recreational programs were available to children in detention?

• 13.6 What excursions were available to children in detention?

• 13.7 Summary of findings regarding the play and recreational facilities available to children in detention

14. Unaccompanied Children in Immigration Detention

• 14.1 What are the rights of unaccompanied children in immigration detention?

• 14.2 Who was responsible for the care of unaccompanied children in detention centres?

• 14.3 What did ACM do to care for unaccompanied children in detention centres?

• 14.4 What did the Department do to care for unaccompanied children in detention centres?

• 14.5 What did State child protection authorities do to care for unaccompanied children in detention centres?

• 14.6 What care was provided to children who were temporarily separated from their parents?

• 14.7 What was done to trace the parents of unaccompanied children?

• 14.8 Summary of findings regarding the care of unaccompanied children in detention

• 14.9 Case studies

15. Religion, Culture and Language for Children in Immigration Detention

• 15.1 What are children's rights regarding religion, culture and language in immigration detention?

• 15.2 What are the languages and religions of children in detention?

• 15.3 What policies were in place to ensure children's rights to religion, culture and language while in detention?

• 15.4 How were children's rights to religion, culture and language protected in practice?

• 15.5 Summary of findings regarding the right to religion, culture and language in detention

16. Temporary Protection Visas for Children Released from Immigration Detention

• 16.1 What are children's rights when released from immigration detention?

• 16.2 What conditions are attached to temporary protection visas (TPVs)?

• 16.3 What services are provided to former detainees living in the community?

• 16.4 What care is provided to unaccompanied children released from detention?

• 16.5 What is the impact of restricted services and entitlements on families on temporary protection visas?

• 16.6 What services and entitlements are provided to children in the community on bridging visas?

• 16.7 Summary of findings regarding rights on release from detention

17. Major Findings and Recommendations of the Inquiry

• 17.1 The Inquiry's major findings

• 17.2 Reasons for the Inquiry's major findings

• 17.3 The Inquiry's recommendations

• 17.4 Reasons for the Inquiry's recommendations

• 17.5 The Department's main objections to the Inquiry's recommendations

• 17.6 Action taken by the Department and ACM in response to the Inquiry's findings and recommendations

Appendices

• Appendix 1: List of Submissions

• Appendix 2: Schedule of Public Hearings and Witness List

• Appendix 3: Action taken by the Department

• Appendix 4: Action taken by ACM

• Appendix 5: Acknowledgements

Abbreviations and Acronyms

13 May 2004