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Submission to the National Inquiry into Children in Immigration Detention from
the Office of the Tasmanian Commissioner for Children
Dear Sir/Madam
Submissions to National Inquiry into Children in Immigration Detention
As Commissioner for Children in Tasmania, my Office is set up under Part 9 of the Children, Young Persons and their Families Act 1997 ("the Act"). The Act is informed by the United Nations Convention on the Rights of the Child, and has been in operation in Tasmania since 1st July 2000.
This Office is uniquely placed to independently assess the situation of children in Tasmania with respect to their health, welfare, care, protection, education and development. Our advocacy and advisory functions under the Act allow us to assess if the rights of all children in Tasmania with respect to their health, welfare, care, protection, development (and education where they are under the custody or guardianship of the Secretary) are protected and promoted. This includes children in Tasmania on refugee status, whether accompanied or not.
Tasmania has shown legislative and regulatory compliance with every Article of the Convention on the Rights of the Child (the Convention), as shown in the Report this Office submitted to the Committee on the Rights of the Child. Our compliance is the first step, and effective implementation is the next. Tasmania as a State can work together with HREOC to improve the situation for all children in Australia. Tasmania aspires to be a leader in the field of protecting and promoting children's rights, and with respect to the treatment of refugees, Tasmania as a community has a commendable record for providing a 'safe haven' for refugees in need. This was demonstrated recently in our assistance of Kosovo refugees. We have shown support for refugees and their children. This is a commitment shown by the entire State, from the Premier down to the community. Such a position is unique in Australia and we have a reputation we can justifiably be proud of, and is one that we wish to maintain, especially with regard to children.
Should any children be discharged from immigration detention to Tasmania, this Office would strongly advocate that they be treated in strict accordance with the Convention on the Rights of the Child, the Children, Young Persons and their Families Act 1997 and all other relevant legislation in Tasmania, taking their the best interests into account. This is the minimum we would expect, given that we have now demonstrated to the United Nations Human Rights Commission, Tasmania's legislative and regulatory compliance with every article of the Convention.
This position is supported by the Commissioner for Children's Consultative Council (CCCC), consisting of children and youth from age 8 to 18 from various backgrounds and cultures. The CCCC meets regularly to discuss current issues of interest to them, and they advise the Commissioner on the position of children and youth in Tasmania. Some of the views of the Council are as follows:
- children in immigration detention should be treated properly and humanely;
- they should be assisted in accordance with their right of being innocent until proven guilty;
- they have not committed a crime to be detained;
- unaccompanied minors appear to being punished for their parents matters;
- children are treated as illegal immigrants which is unjust
These are also views that this Office strongly advocates as it is a common law principle not to detain those who are not suspected of committing a crime, or detaining them and treating them as if they are guilty of a crime before they have had the benefit of the due process of law. Proper procedures in accordance with natural justice also appear to have been neglected for such children in immigration detention. This country is committed to maintaining the Rule of law, and this is not evident in the manner in which children (especially unaccompanied minors) have been detained.
Policies and practices affecting children in immigration detention, as well as those that govern their discharge, should reflect the legal status of their not being 'prisoners' convicted of criminal offences. They should instead be treated in accordance with the Convention on the Rights of the Child, the Refugee Convention and all other relevant international instruments that Australia is a signatory to.
Best Interests of the Child
Article 20(1) of the Convention should be noted in particular. It states that:
A child temporarily or permanently deprived of his or her family environment, or in whose best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
This Office advocates that Article 20 is not restricted to children in the welfare system of the States, but can be equally applicable to children in immigration detention, as they are children deprived or their family environment. As such, they are entitled to special protection and assistance, and should therefore be treated accordingly. This is consistent with the concept of 'humane governance'.
Furthermore, consistent with Article 3 of the Convention on the Rights of the Child, this Office strongly advocates that in all decision making processes relating to children in immigration detention, their best interests be a primary consideration. On their subsequent release into the community, whether they are accompanied or not, their best interests with respect to their health, welfare, care, protection, development and education must also be the paramount consideration. We respectfully submit that the concept of 'humane governance' and consideration of their best interests would require taking into account the reason that they become refugees in the first place. Article 1(A)(2) of the Refugee Convention is relevant in that it would be humane to give such children the benefit of the doubt initially and consider that they undertook the perilous journey to Australia on the grounds of:
… fear of being persecuted for reasons for race, religion, nationality, membership of a particular social group or political opinion, 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; or who, not having a nationality and being outside the country of his formal habitual residence as a result of such event, is unable or owing to such fear, is unwilling to return to it.
It is our respectful submission that the Department of Immigration and Multicultural Affairs, and detention and control authorities take the above definition into account in the formulation of policies and practices relating to refugee children. We are concerned to ensure that practices and policies do not violate the above Articles in Conventions and have instead the effect of scapegoating and demonising them, whether deliberately (See evidence to the Senate Inquiry on "The Children Overboard" allegations) or inadvertently.
Discrimination
Article 2 of the Convention on the Rights of the Child deals with this issue, and once again, Tasmania has the most advanced legislation in this area in the Anti Discrimination Act 1997. This Office is also in a position to appraise and assess any discriminatory practices or policies of Government Departments or any other person and would refer the matter to the Anti Discrimination Office in Tasmania. Any such discrimination could impact on the child's health, welfare, care, protection and development and so could also be the subject of advice to the Minister under the statutory function of this Office. This would be especially important if it such discriminatory conduct is not in keeping with how we would like to be viewed as a nation that gives everyone a 'fair go'. It is our respectful submission that it would be discriminatory to treat child refugees in immigration detention less favourably than children in the general community. Even children on remand in Australia for alleged criminal offences are given recognition of their legal status of being treated as innocent until proven guilty. As stated above, policies and practices need to reflect these principles.
Participation
Article 12 of the Convention requires that a child who is capable of forming his or her own views have the right to express those views freely in matters that affect them, and to have these views taken into account. This Office would respectfully submit that the fact that children refugees have risked their lives to leave their countries of birth should be taken as an expression of their views and wishes to leave their home country for fear of being persecuted to seek safe home here. Their views should be taken into account to enable them to be active participants in control of their own future. In particular, unaccompanied minors must be given this opportunity to the full, given that they have no adults to seek advice from. Due weight should be given to their age and maturity, and a humanitarian response should be reflected in decisions that are made after such consultation.
The right to family life
This Office advocates that compliance with Article 5 of the Convention, in relation to unaccompanied child refugees, would require consideration of whether it would be in their best interests to be placed in foster care type arrangements whilst they remain in Australia outside immigration detention. Appropriate arrangements should then be made to ensure that the child's cultural identity remains intact. Where the child refugee is accompanied by family members, keeping them together out of detention should be a paramount consideration in their best interests.
Yours sincerely,
Patmalar
Ambikapathy
Commissioner for Children
