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Submission to National Inquiry into Children in Immigration Detention from
the Women Barrister's Association
INTRODUCTION
1. The Women Barristers' Association ("WBA") makes this submission to the Human Rights and Equal Opportunity Commission in relation to its national inquiry into children in immigration detention.
2. WBA is an organisation of over 200 members, being women barristers and judicial officers. It is established for the following purposes:
- to promote awareness, discussion and resolution of issue which particularly affect women;
- to identify, highlight and eradicate discrimination against women in law and in the legal system;
- to advance equality for women at the Bar and the legal profession generally; and
- to provide a professional and social network for women barristers.
3. In summary, this submission expresses serious concern about Australia's compliance with its international human rights obligations in relation to children asylum seekers and recommends the release of all children and their families from immigration detention.
4. This submission is limited to discussion of children and their families in immigration detention. It does not discuss the mandatory detention of other asylum seekers.
PRINCIPLES
5. This submission is informed by a commitment to compliance with human rights standards, support for the rule of law and equality before the law, and promotion of the wellbeing of women and their children generally.
INTERNATIONAL HUMAN RIGHTS STANDARDS
6. Australia's international human rights obligations extend to all children within its territory, whether they are citizens or not. Indeed, the Convention on the Rights of the Child ("CROC") obliges States to afford special protection and assistance to children seeking asylum.
7. Among the rights endowed upon children seeking asylum in Australia are the following:
- protection from violence, abuse, mistreatment and exploitation (article 19, CROC);
- health (article 24, CROC; International Covenant on Economic Social and Cultural Rights ("ICESCR"), article 12);
- standard of living adequate for physical, mental, spiritual, moral and social development (article 27, CROC);
- education (article 28, CROC);
- privacy (article 16, CROC);
- recreation and play (article 31, CROC);
- care by parents and non separation from parents (article 7, CROC);
- protection of the family (article 10, ICESCR);
- special measures are required for children with mental or physical disabilities (article 23, CROC);
- detention of children must be a measure of last resort for the shortest possible period (article 37(1)(b), CROC).
8. Furthermore, pursuant to the Convention on the Elimination of All Forms of Discrimination Against Women, all women in Australia are entitled to appropriate services in connection with pregnancy, confinement and the post natal period, as well as adequate nutrition during pregnancy and lactation.
BACKGROUND INFORMATION
9. WBA has reviewed the Kids in Detention Story submission to the inquiry and is gravely concerned that the detention of children seeking asylum is in breach of Australia's international human rights obligations.
10. The experiences recorded in KIDS submission demonstrate that most if not all children in detention are suffering; some are treated poorly; some are denied proper health, education, recreation; some are forcibly separated from their families; some are exposed to violence and self harm; some are witnesses to their families' psychological and physical distress; some are subject to arbitrary and harsh punishments; and most are experiencing unabated and unrelieved trauma and grief. In short, children in detention are denied a standard of living adequate for their physical, mental, spiritual, moral and social development (cf article 27, CROC).
SUBMISSIONS
11. WBA is opposed to the mandatory detention of children seeking asylum on the following grounds:
- It is in breach of international human rights law;
- It is contrary to established standards of decency;
- It is contrary to the best interests of the children;
- It puts vulnerable children at grave risk of substantial long term psychological harm.
12. Alternative and proportionate means should be introduced which respect human rights and secure an orderly immigration system. After appropriate health and security checks which can be conducted within a short period, children and their families who seek asylum should be released into the community awaiting determination of their refugee status.
13. WBA is concerned that standards should immediately improve in detention centres to ensure that for whatever period children and their mothers or expectant mothers (whether or not they have children) are in detention centres:
- health, education and recreational services to asylum seeking children are equivalent so far as is reasonably practicable to those enjoyed by Australian citizens;
- women are afforded adequate ante natal and post natal care, in order to ensure the wellbeing of their infants.
14. Such standards should be incorporated in government policy, departmental directives and contractual operating standards for detention centres.
15. WBA notes that the Minister for Immigration is the guardian for unaccompanied minors under the Immigration and Guardianship of Children Act 1946 (Cth) and that this role is not properly fulfilled in present circumstances.
CONCLUSION
16. WBA concludes that the current policies and practices of detaining children seeking asylum are positively harmful to children's rights, interests and development.
17. WBA calls for the cessation of the practice of mandatory detention of children and their families who seek asylum, beyond the minimum period necessary for appropriate health and security checks.
Women Barristers'
Association
9 May 2002
