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Submission to National Inquiry into Children in Immigration Detention from

Mr Krishna Rajendra

Executive Summary

Article 3(1) of the United Nations Convention on the Rights of the Child provides that a child's best interests are to be a primary consideration in all actions concerning them. The Australian system, whereby the guardian of unaccompanied child asylum seekers is the Minister for Immigration and Multicultural and Indigenous Affairs, rather than an authoritative, independent statutory body, does not ensure that the requirements of article 3(1) are met. Broad discretionary powers, limited review mechanisms and a general lack of political independence undermine Australia's ability to meet its international obligations.

Context

Under the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC), the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") is the custodian [1] of unaccompanied children . [2]

The Minister's duties as guardian are regulated by IGOC. Section 6 provides that:

(1) A custodian shall provide for the welfare and care of every non-
citizen child, of whom he is the custodian.
(2) The duties and obligations of a custodian in relation to any such non-citizen child shall be… in pursuance of the Child Welfare laws of the State in which the custodian is resident.

The Minister has the power to delegate responsibilities relating to the welfare of unaccompanied minors to relevant state authorities, and private enterprise as outlined in memorandums of understanding. [3] At present, all six operational detention centres in Australia are managed by the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") and operated under contract by Australasian Correctional Management ("ACM"). [4] The performance of detention centre operators is monitored by DIMIA in accordance with Immigration Detention Standards ("IDS").[5] Clause 9.2 of the IDS relates specifically to unaccompanied minors. It reads:

Unaccompanied minors are detained under conditions which protect them from harmful influences and which take account of the needs of their particular age and gender.

These domestic obligations must be viewed within the context of international instruments, and in particular the United Nations Convention on the Rights of The Child ("UNCROC" or "the Convention"). For all matters not explicitly covered by the positive rights set out in the Convention, [6] article 3(1) is the central tool with which to evaluate the laws and practices of the States Parties. [7] Article 3(1) sets out a principled interpretative framework with which to consider all actions concerning children.[8] It provides that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

UNCROC is not part of domestic law. However as a result of the High Court decision Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [9] ("Teoh"), unaccompanied children have a legitimate expectation that administrative decision-makers will consider Australia's obligations under UNCROC.

The "Best Interests" Principle

Whilst UNCROC does not define "best interests", at international law this concept is not as indeterminate as some commentators believe. [10] The flexibility which results from the provision that a child's best interests are to be "a primary consideration" [11] rather than "the primary consideration" (emphasis added) suggests that what constitutes "best interests" must be considered in the context of the Preamble and all positive rights in UNCROC.[12] In Teoh, Chief Justice Mason and Justice Deane stated that a decision-maker must engage in a calculation of relevant factors, basing the final assessment upon whether any consideration outweighed the best interests of the child. [13]

However, the Convention does not indicate what priority competing rights should be accorded, which factors are capable of overriding the best interests principle, or whether external considerations are permissible. [14] Thus, interpretive difficulties may arise when considering whether collective interests outweigh the interests of an individual or whether article 3(1) refers to long-term or short-term interests. [15]

Australia and Article 3

The use of the term "a primary consideration" rather than "the primary consideration" in article 3 has had serious implications for the practical effectiveness and legitimacy of "best interests". It enables other perceived primary considerations such as national or economic interests to compete as a relevant factor, [16] often to the detriment of the best interests of a child . [17]

The utilitarian nature of Australia's contemporary approach is demonstrated by the language of the IDS [18], and encapsulated by the current Minister, Philip Ruddock's statement, that:

What this government [is] about [is] managing the Immigration Program so that it deliver[s] outcomes that [are] in the best interest of all of us. [19]

Under article 3, the Commonwealth is able to argue that the Australian interests outweigh the best interests of unaccompanied children, regardless of international opinion. [20]

Discretion

The IDS, which are directed toward private operators, are the only domestic guidelines that assist in the assessment of the best interests of a child. As recognised by Justice Brennan:

[T]he best interests approach depends upon the value system of the decision-maker. Absent any rule or guideline, that approach simply creates an un-examinable discretion in the repository of the power. [21]

Thus, in the absence of comprehensive guidelines, the Minister is afforded considerable discretion when determining the scope of "best interests". This lack of guidance significantly undermines the ability of the Minister, or his or her delegate, to accurately assess what is in the best interests of a child, and thus undermines Australia's ability to meet its obligations under UNCROC. Although the Commonwealth has established the Immigration Detention Advisory Group ("IDAG"), this body focuses upon policy and its recommendations are non-binding. [22]

Recommendation 1

That the Australian government implement measures recognising the unique and vulnerable position of unaccompanied minors, by:

Structural Impediments

A number of structural impediments limit the Minister's ability to ensure that the "best interests" of each child are met.

1. As at November 2001, the Minister was the guardian of 53 unaccompanied children.[23] Due to the Minister's onerous workload, he cannot satisfactorily fulfil his duties to each individual detainee.

2. Under the Migration Act 1958 (Cth) ("the Migration Act"), DIMIA is responsible for the apprehension, detention and deportation of unaccompanied children, in addition to their care, placement and legal protection, and processing of claims. Vesting all such administrative functions in the one body creates tension between the child's best interests as a primary consideration and other ministerial responsibilities.

3. The Minister's ability to delegate his or her responsibilities to private enterprise is problematic. Under contract, ACM is subject to a system of monetary fines for "incidents" inside their camps. A common criticism is that ACM treats the needs of detainees as a commercial rather than humanitarian interest. [24] Private enterprise may not be willing to act in the best interests of the child where this compromises profit.

Recommendation 2

Accountability

In order to ensure that the requirements of the best interests principle are met, it must be possible to call a decision-maker to account. Theoretically, in Australia, detention services are subject to both administrative and judicial review and full parliamentary scrutiny and accountability. In X v Minister for Immigration and Multicultural Affairs [27] , Justice North held that section 6 of the Migration Act and section 39B(1A)(c) of the Judiciary Act (1903) (Cth) conferred on the Court a jurisdiction to supervise the Minister's functions. [28] However, a number of factors indicate that the current system of accountability in Australia undermines the operation of the best interests principle:

1. Ministerial attempts have been made to avoid the supervisory functions under section 6 of IGOC by the use of legislative and procedural impediments. [29]

2. The grounds for judicial review relating to the detention of unaccompanied minors in Australia are limited. Courts lack the power to review the Minister's discretion relating to detention of unaccompanied minors. [30]

3. Although various investigative and advisory commissions [31] have visited detention centres to investigate complaints and conduct inquiries, their recommendations are not binding regardless of whether practices violate the best interests principle.

4. The grounds for administrative review are extremely limited. In the Administrative Appeals Tribunal ("AAT"), merit review involves the assessment only of whether the Minister has met statutory requirements [32] . This process does not take into account the best interests of the child as there is no statutory requirement that these are to be a primary consideration.

Recommendation 3

Conclusion

Close examination of the UNCROC and UNHCR guidelines reveal a number of flaws in the Australian system. The current guardianship arrangements do not ensure that the best interests of the child are a primary consideration in all actions concerning them, as required by article 3(1) of UNCROC. In order to rectify the inadequacies of the Australian system it is vital that the following recommendations be considered:

Bibliography

Journal Articles

Human Rights and Equal Opportunity Commission (1999), Human Rights Brief - The Best Interests of the Child, Human Rights and Equal Opportunity Commission, Sydney.

Parker, S. (1994), 'The Best Interests of the Child - Principles and Problems', International Journal of Law and the Family, vol. 8.

Van Bueren, G. (1995), The International Law on the Rights of the Child, Martinus Nihhoff Publishers, Boston.

The Parliament of the Commonwealth of Australia - Joint Standing Committee on Treaties (1998), United Nations Convention on the Rights of the Child - 17th Report, Parliament of Australia, Australia.

Newspaper Articles

Mac, P., "Lost Children of the Boat People", The Guardian, December 5, 2001, Issue No. 1074 [http://www.cpa.org.au/garchve4/1074lost.html]

Case Law

The Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC per Brennan J at 92-3.

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.

X v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 583.

Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 985.

A v Australia, Communication No. 560/1993.

Books

Parker, S. (et. al), (1999), Australian Family Law in Context: Commentary and Materials 2nd Edition, LBC Information Services, Australia.

Legislation

Immigration (Guardianship of Children) Regulations (in force under the Immigration (Guardianship of Children) Act 1946), Office of Legislative Drafting, Attorney-General's Department, Canberra

Administrative Appeals Tribunal Act 1976 (Cth), Office of Legislative Drafting, Attorney-General's Department, Canberra.

International Instruments

United Nations Convention on the Rights of the Child (United Nations, 20 November 1989).

Websites

The Department of Immigration and Multicultural Affairs (2000) - Information Paper: Unauthorised Arrivals and Detention, [http:// www.dima.gov.au/illegals.uad/05.htm#15], acc. March 28 2002.

UNHCR Guidelines: Refugee Children: Protection and Care. 'Refugee Children and the Rights of the Child' (Ch 2, II) in: [http://www.unhcr.ch/cgi- bin/texis/vtx/home/+ QwwBmetFMl_wwwwrwwwwwwwhFqA72ZR0gRfZNtFqrpGdBnqBAFqA72ZR0gRfZNcFqAt1omncoDn5Dzmxwwwwwww/opendoc.pdf] acc. April 16 2002.

Ruddock, P (1998), Australia's Immigration Policies - An International Perspective, [http://www.minister.immi.gov.au/transcripts/transcripts00/taproom.htm], acc. 7 April, 2002.

Law Institute of Victoria (2002), All Unaccompanied Minors Must be Released from Immigration Detention, [http://www.liv.asn.au/news/media/20020125_aummbrfid.html], acc. 7 April, 2002.

New South Wales Law Reform Commission (1997), Research Report 7 - The Aboriginal Child Placement Principle, [http://www.agd.nsw.gov.au/lrc.nsf/pages/RR7CHP6], acc. 5 April, 2002.

Amnesty International Appeal Website, Refugee Children - Detention in Australia - Detention of Refugee Children in Australia, AI Week 1997, [http://www.amnesty.org/ailib/intcam/aiweek97/appeals/app2.htm] acc. 4 April, 2002.

Amnesty International USA Take Action Website, Refugee Children:
The Unaccompanied Alien Child Protection Act (2001) USA [http://www.amnesty-usa.org/action/refugee_usa08202001.html] acc. 8 April, 2002.

Attorney-General's Department Website, The Law in Australia - Representative Government [http://www.law.gov.au/auslegalsys/auslegalsys.htm#anchor337107], acc. 7 April, 2002.

Child Rights Information Network Resources Website, Submission to the United Nations Committee on the Rights of the Child Regarding Australia [http://www.crin.org/resources/infoDetail.asp?ID=198], acc. 7 April 2002.

Department of Immigration & Multicultural & Indigenous Affairs Website (2001), Fact Sheet 82. Immigration Detention [http://www.immi.gov.au/facts/82detention.htm], acc. 10 April, 2002.

Department of Immigration and Multicultural and Indigenous Affairs Website, Fact Sheet 83. Woomera Alternative Detention Arrangements for Women and Children Project [http://www.immi.gov.au/facts/83woomera.htm], acc. 10 April, 2002.

Department of Immigration & Multicultural & Indigenous Affairs Website (2001), IDAG - The Background [http://www.immi.gov.au/detention/idag/index.htm], acc. 8 April 2002.

Department of Immigration & Multicultural & Indigenous Affairs Website (2001), Immigration Detention Standards [http://www.immi.gov.au/illegals/det_standards.htm], acc. 10 April, 2002.

Department of Immigration and Multicultural and Indigenous Affairs Website, Unauthorised Arrivals and Detention, Information Paper [http://www.immi.gov.au/illegals/uad/05.htm], acc. 9 April 2002.

Human Rights and Equal Opportunity Commission (2000), Immigration Detention Centre Guidelines [http://www.hreoc.gov.au/human_rights/asylum_seekers/index.html#idc_guidelines], acc. 4 April, 2002.

Human Rights and Equal Opportunity Website, National Inquiry into Children in Immigration Detention - Background Papers [http://www.hreoc.gov.au/human_rights/children_detention/background/detention.html], acc. 27 March, 2002.

Lawyers for Human Rights Website, Executive Committee Of the High Commissioner's Programme, Global Consultations On International Protection, Palais des Nations, Geneva, 29 June 2001, The International Council of Voluntary Agencies, NGO Background Paper: Asylum Processes (Fair And Efficient Asylum Procedures), [http://www.lhr.org.za/refugee/docs/global/processes/ngo_background_paper_processes.pdf], acc. 6 April, 2002.

Philip Ruddock MP Website, News Room, 6 December 2001 [http://www.minister.immi.gov.au/media_releases/media01/r01190.htm], acc. 3 April, 2002.

Philip Ruddock MP Website, Transcripts: Australia's Immigration Policies - An International Perspective, Address, Victorian Press Club, 26 March 1998 [http://www.minister.immi.gov.au/transcripts/transcripts00/taproom.htm], acc. 7 April, 2002.

Refugee Action Collective of Victoria Website, ACM: The Company Behind Detention - Woomera Detention Centre 2001, Refugee Fact Sheet No. 4 [http://www.rac-vic.org/oztour/factsheets/factsheet4.pdf], acc. 4 April, 2002.

Refugee Council of Australia, (2001), Number of Children and Adults in Detention as at November 20, 2001 [http://www.refugeecouncil.org.au/ngraphnoindetention.htm], acc. 8 April, 2002.

Senator Dianne Feinstein of California Website, Press Release: IMMIGRATION: U.S. must treat children seeking asylum far better The Oregonian Editorial (5/03/01) [http://www.senate.gov/~feinstein/Speeches01/unaccompanied_children.html], acc.8 April, 2002.

Separated Children in Europe Program Website, UNHCR Newsletter Separated Children in Europe Programme, June - July 2001, Issue No. 5 [http://www.sce.gla.ac.uk/Global/Documents/Eng/Newsletters/newsletter06_07_01.htm], acc. 8 April, 2002.

The Parliament of Australia, Joint Committee Website, Joint Standing Committee on Foreign Affairs, Defence and Trade (2001), A Report on Visits to Immigration Detention Centres - chapter 6 [http://www.aph.gov.au/house/committee/jfadt/IDCVisits/IDCchap6.pdf], acc. 8 April, 2002.

The Parliament of Australia, Joint Committee Website, Joint Standing Committee on Foreign Affairs, Defence and Trade (2001), Completed Inquiry: Visits to immigration detention centres, List of Recommendations [http://www.aph.gov.au/house/committee/jfadt/IDCVisits/IDCrecs.htm], acc. 5 April, 2002.

The Unity Party Website, Privatisation [http://www.unity.org.au/cp_privatisation.htm], acc. 11 April, 2002.

UNHCR Children Homepage, Refugee Children: David Vs Goliath, [http://www.unhcr.ch/children/david-goliath01.html], acc. 2 April, 2002.

UNHCR Guidelines on Unaccompanied Children [www.asylumsupport.info/publications/unhcr/1997.htm], acc. 3 April, 2002.

United Nations Website, Convention on the Rights of the Child, December 1995, Australia's First Report Under Article 44(1)(a) Of The Convention On The Rights Of The Child [http://www.hri.ca/fortherecord1997/documentation/tbodies/crc-c-8-add31.htm], acc. 3 April, 2002.

Guide to International Refugee Law Resources on the Web by Elisa Mason, July 15, 2000, [http://www.llrx.com/features/refugee.htm], acc. 10 April, 2002.

UK Home Office Website, Immigration and Nationality Directorate, [http://194.203.40.90/default.asp?pageid=15], acc. 10 April, 2002

1. For the purposes of this submission it will be assumed that the terms 'guardian' and 'custodian' are interchangeable.
2. See UNHCR Guidelines on Unaccompanied Children, para 3.1 [www.asylumsupport.info/publications/unhcr/1997.htm]. See also article 5 of UNCROC which defines "family" broadly. Article 20(1) of the Convention states that unaccompanied children are entitled to "special protection and assistance provided by the State".
3. Section 5, IGOC.
4. Human Rights and Equal Opportunity Commission (2000), Immigration Detention Centre Guidelines [http://www.hreoc.gov.au/human_rights/asylum_seekers/index.html#idc_guidelines], acc. 4 April, 2002.
5. Department of Immigration & Indigenous & Multicultural Affairs (2001), Fact Sheet 82. Immigration Detention, [http://www.immi.gov.au/facts/82detention.htm], acc. 10 April, 2002.
6. For example: article 29.1(b), article 9.3, and article 12 of UNCROC. For further discussion see Human Rights and Equal Opportunity Commission (1999), Human Rights Brief - The Best Interests of the Child, Human Rights and Equal Opportunity Commission, Sydney. p. 3.
7. S. Parker (1994), 'The Best Interests of the Child - Principles and Problems', International Journal of Law and the Family, vol. 8. pp 26-7.
8. G. Van Bueren, (1995), The International Law on the Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 46.
9. (1995) 183 CLR 273
10. See, for example, Stephen Parker's discussion of indeterminacy in S. Parker, (1994), 'The Best Interests of the Child - Principles and Problems', International Journal of Law and the Family, vol. 8.
11. Article 3(1) UNCROC.
12. New South Wales Law Reform Commission (1997), Research Report 7 - The Aboriginal Child Placement Principle, [http://www.agd.nsw.gov.au/lrc.nsf/pages/RR7CHP6], acc. 5 April, 2002.
13. Human Rights and Equal Opportunity Commission (1999), Human Rights Brief - The Best Interests of the Child, Human Rights and Equal Opportunity Commission, Sydney. p. 2.
14. G. Van Bueren, (1995), The International Law on the Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 48.
15. See, for example, S. Parker (1994), 'The Best Interests of the Child - Principles and Problems', International Journal of Law and the Family, vol. 8. p. 30.
16. G. Van Bueren, (1995), The International Law on the Rights of the Child, Martinus Nihhoff Publishers, Boston. p. 46.
17. A relevant example is Australia's reaction to the Tampa incident.
18. The introduction of the IDS reads: "These standards must be met in all circumstances except where it is demonstrated that the security and good order of the detention facility would otherwise be compromised." See Department of Immigration & Indigenous & Multicultural Affairs (2001), Immigration Detention Standards: Principles Underlying Care and Security [http://www.immi.gov.au/illegals/det_standards.htm], acc. 10 April, 2002.
19. P. Ruddock, (1998), Australia's Immigration Policies - An International Perspective, [http://www.minister.immi.gov.au/transcripts/transcripts00/taproom.htm], acc. 7 April, 2002. (emphasis added)
20. For example, Minister Ruddock argues that the mandatory detention of all asylum seekers is for their own protection. This language implies that it is in their best interests. (see Law Institute of Victoria (2002), All Unaccompanied Minors must be Released from Immigration Detention, [http://www.liv.asn.au/news/media/20020125_aummbrfid.html], acc. 7 April, 2002.)
21. The Secretary, Department of Health and Community Services v JWB and SMB FLC (1992) per Brennan J at 92-3.
22. Department of Immigration and Multicultural and Indigenous Affairs (2001), IDAG - The Background [http://www.immi.gov.au/detention/idag/index.htm], acc. 8 April 2002.
23. Refugee Council of Australia, (2001), Number of Children and Adults in Detention as at November 20, 2001 [http://www.refugeecouncil.org.au/ngraphnoindetention.htm], acc. 8 April 2002.
24. Joint Standing Committee on Foreign Affairs, Defence and Trade (2001), A Report on Visits to Immigration Detention Centres - chapter 6 [http://www.aph.gov.au/house/committee/jfadt/IDCVisits/IDCchap6.pdf], acc. 8 April 2002.
25. European Council on Refugees and Exiles, (1999), Guidelines on Fair and Efficient Procedures for Determining Refugee Status [http://www.ecre.org/research/legalassistance/shtml], acc. 8 April 2002.
26. See, The Parliament of the Commonwealth of Australia - Joint Standing Committee on Treaties (1998), United Nations Convention on the Rights of the Child - 17th Report, Parliament of Australia, p.
27. 59.
28. (1999) 164 ALR 583.
29. X v Minister (1999) 164 ALR 583.
30. See, for example, Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 985.
31. A v Australia, Communication No. 560/1993 at 24; Submission to the Senate Legal and Constitutional References Committee inquiry into Australia's Refugee and Humanitarian Program. HREOC, [www.hreoc.gov.au] acc 12 April 2002.
32. HREOC, IDAG and the Commonwealth Ombudsman; see section 15(1) Ombudsman Act 1976 (Cth) in relation to maladministration.

Last Updated 9 January 2003.