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Submission to the National Inquiry into Children in Immigration Detention from
the Beijing Committee - Western Australian Chapter
A Joint Committee of the International Commission of Jurists WA Chapter and Women Lawyers Inc WA
About The Beijing Committee - WA Chapter
1. In Beijing in 1995 the Australian government was one of 73 governments that made commitments for national action during their plenary speeches at the Beijing Conference.
The Western Australian chapter of the Beijing Committee is a joint initiative of the West Australian chapter of the International Commission of Jurists and Women Lawyers Inc (WA). It is chaired by Penelope Giles from Wickham Chambers, and is constituted by District Court Judge Mary Ann Yeats, lawyers Anna Liscia, Gregory McIntyre, Alisdair Putt and Megan Hoey, and Alison Gaines from the Law Society of Western Australia.
The Committee aims to monitor the implementation, by the State government, of the Beijing Declaration, which has since become the benchmark by which various governments' records on women and human rights has been measured.
Its current projects concern the detention of women and children refugees in West Australian camps, the effectiveness of stalking legislation, and the level of protection extended to Western Australian residents with respect to female genital mutilation.
The Fourth World Conference on Women Beijing Declaration
2. We attach a copy of the Fourth World Conference on Women Beijing Declaration for your reference. In particular we refer to Article 8 where Australia affirmed its commitment to:
The equal rights and inherent human dignity of women and men and other purposes and principles enshrined in the Charter of the United Nations, to the Universal Declaration of Human Rights and other international human rights instruments, in particular the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, as well as the Declaration on the Elimination of Violence Against Women and the Declaration on the Right to Development.
Among our commitments as a nation, we have pledged to ensure the full implementation of the human rights of women and of the girl child as an inalienable, integral and indivisible part of all human rights and fundamental freedoms (Article 9). We have bound ourselves to:
- Ensure the full enjoyment by women and the girl child of all human rights and fundamental freedoms and take effective action against violations of these rights and freedoms (Article 23);
- Encourage men to participate fully in all actions towards equality (Article 25);
- Prevent and eliminate all forms of violence against women and girls (Article 29);
- Ensure equal access to and equal treatment of women and men in educational health care and enhance women's sexual and reproductive health as well as education (Article 30);
- Promote and protect all human rights of women and girls (Article 31);
- Intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion, or disability, or because they are indigenous people (Article 32);
- Ensure respect for international law, including humanitarian law, in order to protect women and girls in particular (Article 33).
3. Our submissions address some of the issues raised by the first and third terms of reference and may be broadly categorised as the legal and administrative framework for dealing with child asylum seekers.
The Legal Framework
4. The Committee is aware of the emerging international and domestic debate about the future of the Refugee Convention and current global challenges. Nonetheless, that debate is evolving and Australia must meet its international obligations as they now stand. Australia cannot abrogate its responsibility to treat asylum seekers justly and compassionately.
5. The government's border protection legislation and excision legislation have drawn significant criticism on the basis that the enactments undermine Australia's commitment to international human rights obligations.
We have a number of concerns with respect to the interaction of the laws [1] for border protection and excision with the treaties:
- Australia is at risk of breaching its non-refoulement obligations.
- Australia is at risk of breaching the rights of asylum seekers to remain free from arbitrary detention.
- No legal action may be initiated against the officer concerned or the Commonwealth in any case where people are restrained or detained under the detention powers in the border protection legislation. Asylum seekers are thereby denied access to Australian courts and judicial protection of human rights should they wish to protest against their treatment by Australian authorities while on board an ocean vessel.
- Any person defined as an 'offshore entry person' under the excision legislation can no longer make a valid application for a visa. The person is thereby denied any right to apply for protection and cannot remain in Australia for any reason. Again the judicial protection of human rights is denied.
- Any person believed by a Commonwealth Officer to be attempting to enter an off-shore entry place without a valid visa can be detained by the officer concerned and restrained from entering the Australian migration zone and removed from Australian territory. These persons are deemed to not be under immigration detention and therefore have no right to seek legal advice or assistance, which is otherwise available to those within the migration zone. Such rights should be made available to all. The arbitrary manner in which the excision legislation has now created two different classes of asylum seeker- those entitled to have their human rights respected and those who are not so entitled. [2] Asylum seekers in the excised territories still fall within the international treaties to which Australia is a signatory.
6. Of particular concern is the increasing foreclosure of access to Australian courts to asylum seekers. [3] When introducing the bill that became the Migration Legislation Amendment (Judicial Review) Act (1998), the Minister referred to the cost and futility of much of the Federal Court litigation. It is the case that many applicants initiate appeals with little understanding of legal principles and court procedures.
"Where asylum seekers are often without legal assistance and have no grasp of the language, let alone the legal principles in which the proceedings are conducted, the process comes close to a farce. The counsel for the Minister is often called upon to present the law for both sides. Although there is a court interpreter provided, the submissions of the Minister's counsel, supplied to an applicant before the hearing, may not be understood by the applicant and if they have no lawyer may not even be translated for them to comprehend. In these circumstances, an elaborate appeal system becomes futile, and to provide the resources for the applicant to be fully seized of the law and procedures would mean a large increase in the budget, with the consequential argument that applicants would be receiving a level of assistance certainly not available to Australian residents. On the other hand keeping applicants in the dark about when their applications will be resolved, how the legal system works, and what is likely to occur to them in the end must increase tension and suspicion leading to demonstrations and hunger strikes." [4]
7. Although the cost and futility of many appeals are important issues for consideration, it is no answer to allow refugee review tribunals (RRT) to determine questions of life and death (in some instances) with no recourse to a court of law. There is a perception in the legal community that the RRT has a reputation for making adverse findings on little or no evidence. [5] Further, it is believed that the government has considerable influence over the composition of the RRT and similar bodies, and officer holders hold short-term fixed contracts and do not have judicial independence. These perceptions and criticisms may or may not be unfair and it is noted that the RRT does make these types of findings when it has little independent investigative capabilities and resources. It is often very difficult to determine the veracity of a claimant's story, relating to countries where there is limited information-gathering. Whatever one's position is with respect to the RRT it is disturbing and unacceptable that the government's intention is to circumscribe any judicial review of the administrative bodies' decisions.
8. To abolish judicial review entirely is irresponsible and may mean that some asylum seekers are returned to their country of origin and are placed at serious risk. An answer that may strike the appropriate balance may be to find an independent authority that determines what matters may be granted a review hearing. No doubt there will be a constitutional challenge to these provisions but the outcome of judicial challenges cannot be predicted.
Guardianship of Children
9. The Committee supports the release of unaccompanied minors and women with children, to ordinary accommodation in the community.
10. Section 6 of the Immigration (Guardianship of Children) Act 1946 states that the Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child [6] who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.
In regard to non-citizen children, section 5 of the Act allows the Minister to delegate his powers and functions to any officer or authority of the Commonwealth or of any State or Territory.
11. The detention of any children and the release of unaccompanied children from detention raise guardianship issues that have not been addressed by either the government or shadow government. We understand that in December 1999 delegations were given to the various State family services departments to exercise the Minister of Immigration's guardianship powers yet many detained unaccompanied minors have not been approached by these departments to apply for their release on bridging visas although there is no shortage of persons ready to accommodate them.
12. Apart from the questions about the common law fiduciary duties of guardians, and the potentials for conflicts apparent in the current arrangement, we are aware that the information flow from Immigration Department to these State departments about these children is poor. We are aware that the relevant Western Australian body, the Department for Community Development, is seeking a legal opinion from the Crown Solicitor's Office about its legal obligations to the children. The guardianship status of the Minister and his power of delegation of those functions are issues to be clarified as a matter of high priority.
Yours sincerely
Megan Hoey
The Secretary
For and on behalf of the
Beijing Committee - WA Chapter
Fourth World Conference on
Women - Beijing Declaration
Declaration
1. We, the Governments participating in the Fourth World Conference on Women,
2. Gathered here in Beijing in September 1995, the year of the fiftieth anniversary of the founding of the United Nations,
3. Determined to advance the goals of equality, development and peace for all women everywhere in the interest of all humanity,
4. Acknowledging the voices of all women everywhere and taking note of the diversity of women and their roles and circumstances, honouring the women who paved the way and inspired by the hope present in the world's youth,
5. Recognize that the status of women has advanced in some important respects in the past decade but that progress has been uneven, inequalities between women and men have persisted and major obstacles remain, with serious consequences for the well-being of all people,
6. Also recognize that this situation is exacerbated by the increasing poverty that is affecting the lives of the majority of the world's people, in particular women and children, with origins in both the national and international domains,
7. Dedicate ourselves unreservedly to addressing these constraints and obstacles and thus enhancing further the advancement and empowerment of women all over the world, and agree that this requires urgent action in the spirit of determination, hope, cooperation and solidarity, now and to carry us forward into the next century.
We reaffirm our commitment to:
8. The equal rights and inherent human dignity of women and men and other purposes and principles enshrined in the Charter of the United Nations, to the Universal Declaration of Human Rights and other international human rights instruments, in particular the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, as well as the Declaration on the Elimination of Violence against Women and the Declaration on the Right to Development;
9. Ensure the full implementation of the human rights of women and of the girl child as an inalienable, integral and indivisible part of all human rights and fundamental freedoms;
10. Build on consensus and progress made at previous United Nations conferences and summits - on women in Nairobi in 1985, on children in New York in 1990, on environment and development in Rio de Janeiro in1992, on human rights in Vienna in 1993, on population and development in Cairo in 1994 and on social development in Copenhagen in 1995 with the objective of achieving equality, development and peace;
11. Achieve the full and effective implementation of the Nairobi Forward-looking Strategies for the Advancement of Women;
12. The empowerment and advancement of women, including the right to freedom of thought, conscience, religion and belief, thus contributing to the moral, ethical, spiritual and intellectual needs of women and men, individually or in community with others and thereby guaranteeing them the possibility of realizing their full potential in society and shaping their lives in accordance with their own aspirations.
We are convinced that:
13. Women's empowerment and their full participation on the basis of equality in all spheres of society, including participation in the decision-making process and access to power, are fundamental for the achievement of equality, development and peace;
14. Women's rights are human rights;
15. Equal rights, opportunities and access to resources, equal haring of responsibilities for the family by men and women, and a harmonious partnership between them are critical to their well-being and that of their families as well as to the consolidation of democracy;
16. Eradication of poverty based on sustained economic growth, social development, environmental protection and social justice requires the involvement of women in economic and social development, equal opportunities and the full and equal participation of women and men as agents and beneficiaries of people-centred sustainable development;
17. The explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment;
18. Local, national, regional and global peace is attainable and is inextricably linked with the advancement of women, who are a fundamental force for leadership, conflict resolution and the promotion of lasting peace at all levels;
19. It is essential to design, implement and monitor, with the full participation of women, effective, efficient and mutually reinforcing gender-sensitive policies and programmes, including development policies and programmes, at all levels that will foster the empowerment and advancement of women;
20. The participation and contribution of all actors of civil society, particularly women's groups and networks and other non-governmental organizations and community-based organizations, with full respect for their autonomy, in cooperation with Governments, are important to the effective implementation and follow-up of the Platform for Action;
21. The implementation of the Platform for Action requires commitment from Governments and the international community. By making national and international commitments for action, including those made at the Conference, Governments and the international community recognize the need to take priority action for the empowerment and advancement of women.
We are determined to:
22. Intensify efforts and actions to achieve the goals of the Nairobi Forward-looking Strategies for the Advancement of Women by the end of this century;
23. Ensure the full enjoyment by women and the girl child of all human rights and fundamental freedoms and take effective action against violations of these rights and freedoms;
24. Take all necessary measures to eliminate all forms of discrimination against women and the girl child and remove all obstacles to gender equality and the advancement and empowerment of women;
25. Encourage men to participate fully in all actions towards equality;
26. Promote women's economic independence, including employment, and eradicate the persistent and increasing burden of poverty on women by addressing the structural causes of poverty through changes in economic structures, ensuring equal access for all women, including those in rural areas, as vital development agents, to productive resources, opportunities and public services;
27. Promote people-centred sustainable development, including sustained economic growth, through the provision of basic education, life-long education, literacy and training, and primary health care for girls and women;
28. Take positive steps to ensure peace for the advancement of women and, recognizing the leading role that women have played in the peace movement, work actively towards general and complete disarmament under strict and effective international control, and support negotiations on the conclusion, without delay, of a universal and multilaterally and effectively verifiable comprehensive nuclear-test-ban treaty which contributes to nuclear disarmament and the prevention of the proliferation of nuclear weapons in all its aspects;
29. Prevent and eliminate all forms of violence against women and girls;
30. Ensure equal access to and equal treatment of women and men in education and health care and enhance women's sexual and reproductive health as well as education;
31. Promote and protect all human rights of women and girls;
32. Intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion, or disability, or because they are indigenous people;
33. Ensure respect for international law, including humanitarian law, in order to protect women and girls in particular;
34. Develop the fullest potential of girls and women of all ages, ensure their full and equal participation in building a better world for all and enhance their role in the development process.
We are determined to:
35. Ensure women's equal access to economic resources, including land, credit, science and technology, vocational training, information, communication and markets, as a means to further the advancement and empowerment of women and girls, including through the enhancement of their capacities to enjoy the benefits of equal access to these resources, inter alia, by means of international cooperation;
36. Ensure the success of the Platform for Action, which will require a strong commitment on the part of Governments, international organizations and institutions at all levels. We are deeply convinced that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development, which is the framework for our efforts to achieve a higher quality of life fo rall people. Equitable social development that recognizes empowering the poor, particularly women living in poverty, to utilize environmental resources sustainably is a necessary foundation for sustainable development. We also recognize that broad-based and sustained economic growth in the context of sustainable development is necessary to sustain social development and social justice. The success of the Platform for Action will also require adequate mobilization of resources at the national and international levels as well as new and additional resources to the developing countries from all available funding mechanisms, including multilateral, bilateral and private sources for the advancement of women; financial resources to strengthen the capacity of national, subregional, regional and international institutions; a commitment to equal rights, equal responsibilities and equal opportunities and to the equal participation of women and men in all national, regional and international bodies and policy-making processes; and the establishment or strengthening of mechanisms at all levels for accountability to the world's women;
37. Ensure also the success of the Platform for Action in countries with economies in transition, which will require continued international cooperation and assistance;
38. We hereby adopt and commit ourselves as Governments to implement the following Platform for Action, ensuring that a gender perspective is reflected in all our policies and programmes. We urge the United Nations system, regional and international financial institutions, other relevant regional and international institutions and all women and men, as well as non-governmental organizations, with full respect for their autonomy, and all sectors of civil society, in cooperation with Governments, to fully commit themselves and contribute to the implementation of this Platform for Action.
1. Border Protection (Validation and Enforcement Powers) Act 2001; Migration Amendment (Excision from Migration Zone) Act 2001; Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act 2001
3. Migration Legislation Amendment (Judicial Review) Act (1998).
4. Robert Lindsay 'Who is a Refugee, How Are They Processed and the Government Reforms" (2001); Barrister, Sir Lawrence Jackson Chambers, Perth p. 7
5. See P Nygh "Recent Developments in Refugee Law" (2000) 26 AIAL Forum 1-25;and for an analysis of the administrative system for refugee determination see J McMillan, "Recent Developments in Refugee Law" (2000) 26 AIAL Forum 26-32.
Last Updated 9 January 2003.
