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Submission to the National Inquiry into Children in Immigration Detention from
Australian Human Rights Centre - University of New South Wales
2. The Protection of Human Rights of All People
Article 22 (1), Convention on the Rights of the Child
States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
1. Introduction
The submission of the Australian Human Rights Centre's (AHRC) to the HROEC National Inquiry into Children in Immigration Detention focuses on the relationship between Australia's responsibilities, as enshrined in international covenants to which it is a party, and domestic legislation and policy, such as the Convention on the Rights of the Child (CROC). With regard to children in immigration detention, the AHRC has found that there is often a wide gulf between the international obligations that Australia has committed itself to and the practice of the Commonwealth. The AHRC submits that the Australian Government's detention of children is a violation of its international legal obligations and the practice must be ended as expeditiously as possible.
2. The Protection of Human Rights of All People
2.1 In International Human Rights law the state is the principle agent for protection of rights accepted by the international community in the form of treaties [1] . This is enshrined as a principle of general application to Human Rights in Article 2 of the International Covenant on Civil and Political Rights (ICCPR), which Australia is a party to, which states:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…
2.2 This idea is reinforced in the 1951 Refugee Convention (and its optional protocol); in that, it is the responsibility of states parties to protect the substantive rights, enlisted in the Convention, of persons categorised as refugees [2] . This protection is not limited to the terms of the Convention, but extends to all rights protected under international instruments .[3]
2.3 The 1951 Convention aims to provide for the protection of people who have had to flee their countries of origin or of habitual residence due to a loss of that protection.
2.4 Underpinning the 1951 Convention is the understanding that people should be protected from breaches of their human rights, and if their own states cannot or will not provide that protection, then it is the responsibility of the international community to take on that responsibility. [4]
2.5 The National Socialist regime in Germany before and during WWII and the new USSR of the post war period provided drafters with an image of the person who needed to flee their country; they drafted the definition of the refugee in that image.
2.6 People who leave their countries for reasons other than individual persecution for Convention reasons are no less due their human rights if they do not strictly come within the 1951 Convention definition of a refugee. No human can lose their human rights, whether or not they are outside the borders of their normal country of residence. [5]
2.7 However, a fortiori, those who come within the Convention definition have a right to additional protections from the international community, and in particular, by those State Parties of the 1951 Geneva Convention Relating to the Status of Refugees.
2.8 These include, but are not limited to Article 33 of the Convention: protection from refoulement. It is now a matter of Customary International Law [6] that states may not return people to the frontiers of territories where their lives or freedom may be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.
2.9 Convention refugees are also due other rights at international law. Free primary education [7], and freedom of movement for those lawfully in the territory [8] are examples of rights noted in the Convention.
2.10 Australia is a State Party to the 1951 Geneva Convention Relating to the Status of Refugees and thus owes to refugees not only protection from refoulement but also any other duties imposed by the Convention that have not become Customary International Law.
2.11 However, refugees - people seeking asylum who have not yet been recognised as refugees - and others unlawfully within a state's territory do not lose their human rights merely because they are beyond the borders of their own states. For states parties (such as Australia) these rights consists of the International Bill of Human Rights [9] and a large number of peripheral Human Rights instruments. As with the 1951 Convention, parts of the Universal Declaration of Human Rights could be said to have become Customary International Law, and thus binding on all states. [10]
2.12 State Parties to the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights must honor the human rights of all people within their borders, regardless of means or port of entry.
2.13 Australia is a Party to both Covenants.
2.14 A fotiori, Australia is under a voluntary, self imposed, international obligation to protect the treatied rights (outlined in the Refugee Convention and the International Bill, amongst others) of all on-shore arrivals, regardless of their ultimate refugee status determination.
3. Comment on Current Policy
3.1 It is insufficient for Australia to refrain from refoulment of those who are determined to be refugees under the 1951 Convention.
3.2 It is insufficient even that Australia refrains from refoulment of people who have not yet been determined to be refugees.
3.3 Australia has an obligation to protect the rights and dignity of all people falling within its jurisdiction, and of all people to whom, by its actions, Australia has engaged its protection obligations.
3.4 Australia engages its protection obligations at first contact with people seeking asylum, regardless of mode or point of entry. Interdiction of people outside Australian territorial waters, removal of people to other sovereign states on the understanding of Australian financial support, and excision of Australian territories do not honor these obligations.
3.5 The International Covenant on Civil and Political Rights is clear:
"Everyone has the right to liberty and security of person. No one should be subjected to arbitrary arrest or detention" [11]
3.6 The Human Rights Committee, in A v Australia [12] found that while it was not "per se arbitrary to detain individuals requesting asylum", [13]
"every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, 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 individuals, such as the likelihood of absconding and lack of co-operation, which may justify detention for a period. Without such factors, detention may be considered arbitrary, even if entry was illegal." [14]
Currently there is no provision for individual assessment of risk for asylum seekers detained in Australian Immigration Detention Centres. This, alone, means that Australia is in breach of its obligations under the International Covenant on Civil and Political Rights.
3.7 The UN Human Rights Commission's Working Group on Arbitrary Detention explained its standards for determining whether the administrative detention of asylum seekers is "arbitrary" within the meaning of the ICCPR, Article 9. It questions whether the detained person enjoys:
"some or all of the following guarantees", which include "3. Determination of the lawfulness of the administrative custody pursuant to legislation providing to this end for: (a) the person concerned to be brought automatically and promptly before a judge or a body affording equivalent guarantees of competence and impartiality; (b) Alternatively, the possibility of appealing to a judge or such a body." [15]
Individual asylum seekers are not individually assessed and then placed in detention, but are detained by the Commonwealth Government solely because of their mode of entry to Australia.
3.8 The High Court of Australia has found that detaining Aliens as is demanded by the Migration Act 1958 is within the powers of the Commonwealth Government , [16]
"…if the detention…is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable the application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorise is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates" [17]
The length of time asylum seekers, including children, are kept in detention, and the conditions of detention, as well as the not infrequent claim by the current government that mandatory detention is a part of an overall policy of deterrence to others would appear to put the current policy in a doubtful constitutional position.
3.9 Article 31 of the 1951 Geneva Convention Relating to the Status of Refugees, requires that:
"Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a place where their life or freedom was threatened in the sense [of the Convention's definition of a refugee], enter or are present in their territory without authorisation…"
While the Australian Government does not claim that administrative detention is a penalty, it is difficult to draw another conclusion, since (on figures current before the Tampa) asylum seekers who arrived in Australia on valid travel documents are permitted to remain in the community and those who arrive "irregularly" are detained - despite a marked difference in their success rates: Until 1999, the approximate percentage of people from Detention Centres (unauthorised arrivals) being granted asylum was 70-75%, while the figure for the remainder (those who arrived with visas) was closer to 15%. [18] Thus, even without a marked increase in places, Australia already planned to welcome the numbers currently arriving.
In the last two months of the 1999-2000 fiscal year, 55% of unauthorised asylum seekers arriving in Australia came from Iran, and 32% from Afghanistan. Of those, over 90% are eventually granted asylum. The minister quoted figures as high as 97% in mid 2001. [19]
3.10 The Executive Committee of the UNHCR, a body comprised of States Parties to the 1951 Convention, comes to "Conclusions" on matters of refugee law and policy. These do not have the force of binding international law, but they probably do have some weight as opinio juris, the understanding of a legal obligation by states as they develop their refugee policy. [20] ExCom Conclusion 44, taken in 1986, states that:
"The UNHCR Executive…:
(a) Noted with deep concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in search of asylum, pending resolution of their situation;
(b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order…"
4. The Particular Rights Of Children
4.1 It should be noted that any analysis of the issue of detained children must consider the interest of the child as primary. This is explicitly stated in the Convention on the Rights of the Child (CROC)(Article 3) as the first substantive article of that treaty. This principles recognise that children are vulnerable and more susceptible to harm than adults. This must be coupled with the understanding, born out of the UDHR, that childhood is entitled to special care and assistance. [21]
4.2 Provisions made for asylum seekers in general will not necessarily be adequate for child asylum seekers.
4.3 The Universal Declaration of Human Rights declared that:
"The family is the natural and fundamental group unit of society and it entitled to protection by society and the State." [22]
4.4 In addition, the Convention on the Rights of the Child states that:
"States Parties shall respect the responsibilities, rights and duties of parents …" [23]
This requires that children, when in any government facility, including a detention or reception centre, are cared for by their parents, and that the parents or guardians of children are supported in this role. Such support cannot be sacrificed to the concerns of institutional management or security. The carers of children can only act effectively if they are free to make decisions for the best interest of their children and their family unit.
Current practice in Australian detention centres acts to infantalise all residents, thus limiting the role that parents can play in their children's care and development. By holding regular "musters" and mandating set meal times, as well as the long held practice of referring to residents by number rather than name, parents are stripped of their authority. The stress of waiting for a decision compiled with the conditions of the centre lead in many to depression [24], thus further limiting the positive role that parents and guardians can have in their children's lives while in detention.
4.5 The Convention on the Rights of the Child also maintains that:
"No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence…" ,[25]
requiring that any residential facility provided to children and their carers provides for a separate and independent dwelling for each family unit.
Regular room searches, midnight in-room musters and constant supervision deny this basic right to every child in detention, regardless of their parents' mental or physical state.
4.6 The Convention on the Rights of the Child establishes that
"States Parties shall ensure that a child shall not be separated from his or her parents against their will…[and] States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis." [26]
And also:
"States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child." [27]
As a result, any reception or processing regime established by States Parties to the Convention must, as a first priority, ensure that any people, including those arriving without documentation, known to have family members in their territory, including in a reception facility, are assisted in their reunion. No regime that asks families to choose separation or detention is appropriate except in individually determined cases where an adult member is reasonably and upon evidence believed to be a risk to security. In such cases, families must be provided with regular and appropriate visiting provisions.
The recent Woomera trial release of women and children was thus wholly inappropriate. There is no publicly available evidence that both parents could not have safely been released with their children, given the monitoring devices and programs available for community release. Likewise, the continued detention of children and their mother in Woomera when their father resides on a temporary protection visa in Sydney is both a breach of Australia's responsibilities under the convention and is inhumane.
4.7 The Convention on the Rights of the Child establishes that:
"States Parties shall take 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, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child" [28]
DIMIA Immigration Detention Standards [29] contain very little about specific standards of care for children. The only direct responsibility that DIMIA holds to child asylum seekers identified by the Standards is:
9.4.1 Social and educational programs appropriate to the child's age and abilities are available to all children.
In violation of a number of Instruments, DIMIA Immigration Detention Standards do not require education to be of the standard and regularity of that received by non-detainees . [30]
The DIMIA Immigration Detention Standards There is no acknowledgement of the 'best interests of the child' as a primary consideration in standards for detention.
Further, the DIMIA Immigration Detention Standards include nothing excepting children from the use of: force as provided for in Standard 7.9, for application of instruments of restraint (Standard 7.10), or solitary confinement (Standard 7.8.4.).
4.8 The detention of children, and particularly of children who have come from situations of extreme trauma only compounds their difficulties. This is particularly troubling since "Severe and chronic stress in the early years will affect the stress system itself and result on on-going vulnerability to later stressful events…This has implications for both physical and mental health and may be related to significant difficulties in later life." [31]
4.9 Detention environments afford neither "appropriate protection" nor "humanitarian assistance". Official ACM statistics at 6 Feb 2002 reported incidents of self-harm among children at Woomera Immigration Detention Centre. These included thirteen treats of self-hurt, five incidents of lip-sewing, one attempted hanging, and three self-slashings. One child cut "freedom" into his forearm.
These facts amount to a dereliction of a duty held by the Commonwealth to protect children in its care.
4.10 Echoing and reinforcing Article 9 of the ICCPR, the Convention on the rights of the child makes clear that
"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" [32]
Current Australian law requires the detention of all people, including children, who arrive without prior authorisation. [33] There is no provision for an assessment of the need for detention of individual asylum seekers.
4.11 The UNHRC Guidelines Relating to the Detention of Asylum Seekers recommend that:
if children who are asylum seekers are detained in airports, immigration-holding centres or prisons, they must not be held under prison-like conditions. All efforts must be made to have them released from detention and placed in other accommodation. (Guideline 6 paragraph 6)
It is manifest that the DIMIA immigration detention centres have the character of prisons. It is presumed that proof of this fact will be provided by submissions by other Civil Society groups who have personal experience of these centres, and hence are better informants than the AHRC.
4.12 The UNHRC Guidelines further state that:
…minors who are asylum-seekers should not be detained (emphasis in original) as it breaches Articles 2,3,9,22 and 37 of the Convention on the Rights of the Child (Guideline 6 Paragraph 2)
This is persuasive proof that the Commonwealth of Australia, in mandatorily detaining child asylum seekers is in breach of International Law.
4.13 Of additional concern is the continued detainment of children alongside non-family male adults, in contravention of the Convention on the Rights of the Child , which provides that
"every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so". [34]
4.14 All children, regardless of their immigration status, are entitled to enjoyment of each of the rights outlined in the Children's Convention. To some degree, whatever measures detention centre staff take in assisting child detainees, the basic problem is detention itself, and especially its indeterminate nature. Upholding the 'best interests' principle in Article 3 CROC requires a radical re-examination of government policy formulation regarding child asylum seekers.
4.15 The underlying principle of CROC is the recognition that children, by virtue of their youth and vulnerability, are entitled to special consideration. This is true regardless of status and is to be applied to minors indiscriminately (Article 2). CROC enshrines as a value the protection of the child's wellbeing and development because it is largely such protections, or the lack of them, which determine whether a child will develop to her or his full capacity.
4.16 CROC states that a child should be brought up "in the spirit of peace, dignity, tolerance, freedom, equality and solidarity" [35]. The detention of child asylum seekers is manifestly intolerant and discriminating, and it is an egregious imposition on the dignity and freedom of children.
5. Unaccompanied minors
CROC locates the responsibility for securing the survival and development of the child with the parent or legal guardian of the child. For unaccompanied minors, under the Immigration Guardianship of Children Act 1946 (s6) this guardian is the Minister for Immigration. It therefore follows that the Minister should actively give legal advice and assistance to unaccompanied minors. As evidenced in Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 1516 (26 October 2001), this is an obligation that is not always followed by the Minister. His honour held that:
…there appears to be a significant discrepancy between the guidelines published by the United Nations High Commissioner on Refugees ("UNHCR") in respect of unaccompanied minors seeking asylum and the current administration of the Migration Act in relation to such persons… The Act provides little in the way of the kinds of protections contemplated by the UNHCR guidelines . [36]
Unaccompanied minors should never be held in detention, but should rather be automatically placed in foster or emergency care, as provided by s7 the Immigration Guardianship of Children Act 1946. Attention should be given to cultural and religious needs and provisions should be made for counselling in accordance with CROC Article 39 which provides for assistance in physical and psychological recovery from any form of neglect, abuse or ill treatment.
6. Non - Discrimination
Article 2 of the Children's Convention requires that the rights protected in that Convention should be applied to all children without discrimination. It is crucial to note, therefore, that Australia's obligations under the Convention on the Rights of the Child to child asylum seekers are identical to those owed to other Australian children. This is especially important in regard to a child's right to education and good health, leisure and culture, family life and legal representation.
Further, government policy allows residence in the community for those asylum seekers who entered Australia on valid visas and travel documents. This differential treatment appears to be in contravention of Article 31 of the Refugee Convention 1951, which states that asylum seekers should not be penalised for the way in which they enter a country.
Children may be released from detention on bridging visas under s73 of the Migration Act. Visas are not generally available to their parents. This is contrary to the strong presumption in favour of the preservation of the family unit as "the natural environment for the growth and wellbeing of all its members" [37] . Eligibility for bridging visas should extend to family members of children to be consistent with its stated aim of securing the 'best interests of the child'. Alternatives to detention should not disrupt the contiguity of family units.
There is also cause for concern for children whose parents are seeking asylum in Australia but who have been unable to bring their children with them, and for those who are found to be refugees but whose mode of entry made them eligible under Australian law only for Temporary Protection Visa, thus disqualifying them for family reunion. These are perhaps the forgotten child victims of the discrimination between authorised and non authorised asylum seekers.
7. Conclusion
International treaties promoting human rights reflect both consensus principles of the international community and the values of states that become voluntary signatories to them. When the Commonwealth of Australia freely commits to such instruments it acknowledges its international legal obligation to promote, honour and enforce their provisions.
When a child cannot return to his or her country, the responsibility of protecting her rights falls on the international community. As a State Party to all relevant international agreements, Australia is bound to fulfil its obligations. The failure of the Australian government to honour its international obligations to child asylum seekers in its care is of grave concern.
The Australian Government must address the discrepancy between its commitment to the Refugee Convention and its actions in mandatorily confining children arriving in Australia seeking asylum. The actions of the Commonwealth are inconsistent not only with the provisions of the Refugee Convention but also with a number of other international instruments to which Australia is a party. Particularly, the executive actions undertaken by the Commonwealth are in violation of sections of the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights and the Convention on the Rights of the Child.
The Commonwealth's dereliction in fulfilling its treaty obligations when developing domestic law and policy is in breach of international law. Australia has both a legal responsibility and a moral obligation to uphold the human rights standards to which it has subscribed, and upon which the future and wellbeing of all children depend.
8. Annexure: Relevant Instruments, Treaties and Domestic Law
Universal Declaration of Human Rights (UDHR)
Treaties:
UN Convention on the Rights of the Child (CROC)
UN International Covenant on Civil and Political Rights (ICCPR)
UN Convention and Protocol Relating to the Status of Refugees 1951 and
1967 (Refugee Convention)
Legislation:
Migration Act 1958 (Cth)
Immigration Guardianship of Children Act 1946 (Cth)
Guidelines:
DIMA Immigration Detention Standards
UNHCR Guidelines on Detention of Asylum Seekers (UNHCR Guidelines)
1. Boutros Boutros Gali (Secretary General of the UN - as he then was): Speech opening the World Conference on Human Rights (Vienna 1993). www.unhchr.ch/html/menu5/d/statement/secgen.htm
2. The operative provisions of the 1951 Refugee Convention (and protocol) are separated as a definition (Article 1) and a series substantive rights held by refugees (Articles 3-34), which are to be protected by the state receiving the asylum seeker.
3. Article 5, 1951 Refugee Convention.
4. See Article 1A(2): the Convention applies to any person who "…owing to a well founded fear of being persecuted…is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country…" [italics added]
5. See Article 2(1) of the International Covenant on Civil and Political Rights and Article 2(2) of the International Covenant on Economic, Social and Cultural Rights: the rights of the Covenants are to be "respected and ensured" without "distinction" (ICCPR) or "guaranteed" without "discrimination" (ICESCR) because of "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" [italics added]
6. Ellen Hanson, UNHCR Canberra Spokeswoman. In a speech given at the conference 1951 Refugee Convention - Where to From Here? UNSW, Sydney, December 6-9 2001.
7. Article 22, 1951 Geneva Convention Relating to the Status of Refugees.
8. Article 26, 1951 Geneva Convention Relating to the Status of Refugees.
9. The International Bill of Human Rights is comprised of The 1948 Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, and The International Covenant of Economic, Social and Cultural Rights.
10. See Schater, Oscar, International Law in Theory and Practice. 1991, Chapter XV: "International Human Rights"
11. Article 9, the International Covenant on Civil and Political Rights
12. Communication Number 560/1993, UN Doc CCPR/C/59/D/1993 (30 April 1997)
15. UN Doc E/CN/4/1999/63. Paras 69 - 70
16. Chu kheng Lim and Others v The Minister for immigration, Local Government and Ethnic Affairs and Another. (1992) 176 CLR 1 F.C 92/051. Accessed on www.austlii.edu.au, 9/05/01.
17. Per Brennan, Deane, Dawson JJ at their para 32.
18. Confirmed by DIMA Public Affairs Department, Wednesday 4 April 2001
19. Confirmed by DIMA, Wed 4 April. See also Department of Immigration Annual Report at www.dima.gov.au
20. Goodwin-Gill, Guy. The Refugee in International Law. 2nd Edition. Oxford University Press, 1996. p128
21. Article 25(2), The Convention on the Rights of the Child
22. Article 16(3), The Convention on the Rights of the Child
23. Article 5, The Convention on the Rights of the Child
24. Steel, Zachary and Derrick Silove. "The Psychological Cost of Seeking and Granting Asylum". International Handbook of Human Response to Trauma. Shalev, Yehuda, and McFarlane, Eds. Kluwer Academic / Plenum Publishers, NY, 2000. See also Burnett, Angela and Michael Peel. "Asylum Seekers and refugees in Britain: The health of survivors of torture and organized violence". British Medical Journal. 10 March 2001, p606 at 608.
25. Article 16(1), The Convention on the Rights of the Child
26. Article 9, The Convention on the Rights of the Child
27. Article 18(1), The Convention on the Rights of the Child
28. Article 19(1), The Convention on the Rights of the Child
29. www.immi.gov.au/illegals/det_standards.htm
30. Particularly Refugee Convention Art 22; and noting CROC Art 2 on non-discrimination; ICCPR Art 2 on non-discrimination, ICESCR Art 2 on Non-discrimination and ICESCR Art 13 on rights to education.
31. Dr Louise Newman. Chair, Faculty of Child and Adolecent Psychiatry, RANZCP Director, NSW Institute of Psychiatry. "Children in Detention - the Burden of Trauma". Speech at closing plenary of The 1951 Convention - Where to from here?, December 6-9 2001. UNSW.
33. s178 and s14, Migration Act 1958
36. Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 1516 (26 October 2001) at Paragraph 43.
Last Updated 10 October 2002.
