Click here to return to the Submission Index
Submission to the National Inquiry into Children in Immigration Detention from
John Tobin, Senior Fellow, Faculty of Law, University of Melbourne
Introduction
In his report to the UN Special Session on Children, UN Secretary General Kofi Annan declared that:
There is no task more important than building a world in which all of our children can grow up to realise their full potential in health, peace and dignity. [1]
The realisation of these goals is threatened by a myriad of factors - terrorism, global poverty, the spread of HIV/AIDS. But none more so than the predicament of refugees, described by one commentator as 'the greatest human catastrophe of the twentieth century outside war and ethnic cleansing…' [2] The UNHCR estimates that there are over 21 million refugees worldwide.[3] How the international community responds to the plight of these people represents one the greatest challenges of the 21st century.
It is this context that Australia's treatment of refugee children must be assessed. Not just against our own obligations under international law but in the context of Australia's contribution to the world to which Kofi Annan aspires. Listed among the purposes of the United Nations are respect for the principle of equal rights and the observance of human rights and fundamental freedoms for all without distinction. [4] An assessment of Australia's treatment of refugee children reveals not only a flagrant disregard for the obligations it has assumed under international law but also the values and purposes for which the United Nations was created.
Violations of Australia's obligations under international law
The background papers prepared by the Human Rights and Equal Opportunity Commission ('Commission') provide a comprehensive list of the various treaties Australia has ratified and need not be listed here. Suffice to say that the obligations assumed by Australia under these treaties are binding under international law. As article 26 of the Vienna Convention on the Law of Treaties provides, 'every treaty in force is binding upon the parties to it and must be performed by them in good faith.' Moreover article 27 provides that a State cannot invoke its internal law as justification for the failure to perform its treaty obligations.
In Australia a treaty ratified by the executive does not become part of domestic law unless it has been incorporated by legislation. In spite of this limitation it is important to recall the edict of the High Court in Teoh that:
… ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention… [5]
The statutory and executive actions that sanction the mandatory detention and treatment of refugee children while in detention arguably deny any refugee child from forming a legitimate expectation that his or her rights under the Convention on the Rights of the Child ('Convention') will be taken into account.
Notwithstanding this gloomy prediction, Australia remains bound by its obligations under international law. Moreover the Government of Australia remains intent on asserting that its detention and treatment of refugee children is consistent with these obligations. Even the barest analysis reveals this claim to be seriously flawed.
I do not intend to identify each right to which a refugee child is entitled under international law and assess whether the Government has taken the appropriate steps to secure the enjoyment of each right. Nor do I intend to address the specific questions raised by the Commission in these papers. No doubt the cumulative effect of many submissions will provide the Commission with such information. Rather I intend to comment on 2 key rights which appear to be the subject of violation: the prohibition against discrimination and the prohibition against torture and other cruel, inhuman and degrading treatment or punishment. [Unfortunately time constraints prevented me from undertaking a comprehensive legal analysis of the issues and these comments are, at best, a brief overview.]
The prohibition against discrimination
The prohibition against discrimination is a fundamental principle of international human rights law. It is restated in article 2 of the Convention and is to be enjoyed by each child within the jurisdiction of a State. [6] Thus refugee children whether they arrive by authorised or unauthorised means are entitled to the full panoply of rights enumerated under the Convention (and other the other human rights treaties to which Australia is a party).
Discrimination under international law means any distinction, exclusion, restriction or preference based on any of a number of specified grounds or any other status (which would refugee status) which has the purpose or effect of nullifying or impairing the recognition or enjoyment or exercise by a child on equal footing of any right under the Convention.[7] There is no requirement that discrimination be intended.
The treatment of refugee children prima facie falls foul of this definition in a number of respects. In the first instance there is discrimination in the treatment of children who seek asylum. Those who arrive by authorised means and seek asylum are not detained whereas those who arrive by unauthorised means are subject to mandatory detention. There is also further discrimination against authorised refugee children on the basis of their mode of arrival as they may only receive a three year temporary protection visa when recognised as a refugee. In contrast refugee children who arrive by authorised means and are recognised as refugee receive permanent residency.
Refugee children subject to mandatory detention are also subject to further discrimination relative to other Australian children as a consequence of their detention in a number of respects. Based on reports by the Commission the enjoyment of their right to education (article 28) is significantly diminished relative to children in the general community. As is their right to be free from arbitrary deprivation of liberty, to be detained only as a measure of last resort and have prompt access to legal and other appropriate assistance as well as the right to challenge the legality of their deprivation of liberty (art 37).
In many respects the suggestion that refugee children are subject to differential treatment may be uncontentious and the real issue is whether such treatment amounts to unlawful discrimination. Importantly differential treatment will not be considered lawful unless the criteria for the differentiation are reasonable, objective and the aim is to achieve a purpose that is legitimate under international law. [8]
The Australian Government would therefore seek to defend its differential treatment of refugee children on the basis that it is a well accepted proposition of international law that a sovereign State has the power to defend its borders and regulate the entry and exit of persons into its jurisdiction.[9] Seen from this perspective it could be argued that the mandatory detention of unauthorised refugee children and the differential treatment in the provision of their visas, is a necessary and reasonable measure to achieve a legitimate aim. In other words, in the absence of such a policy Australia would have no effective means of achieving the legitimate aim of deterring asylum seekers.
A closer analysis however reveals significant defects in this assertion. First, while detention may be warranted initially, ongoing and non-reviewable detention is not a reasonable measure to achieve the legitimate aim of deterrence. This much is clear from the decision of the Human Rights Committee in A v Australia,[10] the UNCHR Guidelines on the Detention of Refugees, [11] and judicial pronouncements in other jurisdictions.[12] It is also clearly at odds with article 37(b) of the Convention which requires that detention of a child shall only be used as a measure of last resort and for the shortest appropriate time.
No doubt the Government would seek to further defend its policy on the basis that detention is a measure of last resort and for the shortest appropriate time. But the experience of other nations demonstrates that this claim is unsustainable. Australia is not the only State to be plagued with the problem of how to deal with authorised asylum seekers. Indeed in numerical terms many other nations are faced with a far greater problem. However no other State has found it necessary to resort to a policy of mandatory detention of children seeking refugee status. In short, the experience of other States demonstrates that far from being a measure of last resort, there are other options which must be pursued. If after having tried these options the Government could demonstrate that they proved to be an ineffective means of deterring asylum seekers it may have a claim that detention is a measure of last resort. Until such time however the Government has not satisfied its onus of demonstrating that the current policy of mandatory detention is a measure of last resort.
The prohibition against torture and other cruel, inhuman and degrading treatment and punishment
Like the prohibition against discrimination, the prohibition against torture and other cruel, inhuman and degrading treatment or punishment ('the prohibition') is also a fundamental principle of international human rights law from which no derogation is permitted. No justification or extenuating circumstances may be invoked to excuse a violation of the prohibition. [13] Thus the Government cannot raise the right to defend its borders against unauthorised refugees as a defence to acts which violate the prohibition.
As a party to numerous instruments that include the prohibition, the Australian Government is required to take all necessary steps to protect everyone, including refugee children, against acts which violate the prohibition. [14] Such acts relate not only to physical pain but also to acts that cause mental suffering to the victim. [15]
Importantly the obligations of the Australian Government under the prohibition must be read in conjunction with the requirement under article 37(c) of the Convention to treat every child deprived of his or her liberty with humanity, respect for the inherent dignity of the human person and in a manner which takes account of the needs and age of a child.
The policy and length of mandatory non-reviewable detention and the conditions of refugee children while detained both raise issues under the prohibition. Not so much as incidents of torture (although this remains possible) but as potential violations of the prohibition against cruel, inhuman or degrading treatment. The Human Rights Committee has not offered much guidance about how to assess these different categories preferring to avoid sharp distinctions and focus on the nature, purpose and severity of the treatment applied. [16] The European Court of Human Rights however provides tests against which the treatment of refugee children in Australia can be examined.
According the Court, ' ill treatment must attain a minimum level of severity if it is to fall within the scope of article 3 [the equivalent provision of the prohibition under the ECHR]. This assessment is relative: it depends on all the circumstances of a case including the duration of the treatment, the physical and mental effects and sometimes the sex, age and state of health of the victim.' [17]
I am not in a position to draw any firm conclusions as to whether the experience of refugee children falls foul of this test other than to note that the sporadic media reports detailing the experience of refugee children suggests that it is very likely. Ultimately it remains for the Commission to evaluate the evidence it receives from medical practitioners and its own investigations against the legal test as to when treatment will amount to inhuman treatment.
In undertaking this assessment with respect to the length of detention, the Commission would be well advised to consider the decision of the Privy Council in Pratt v Morgan [18] and subsequent cases, in which it was held that delay when facing the death penalty could amount to cruel, inhuman and degrading treatment. Such decisions could arguably be distinguished on the basis that the applicants were facing the prospect of execution. However it would be remiss not to canvass the possibility that the mental agony occasioned by indefinite detention for a child coupled with the prospect of deportation could not also amount to a violation of the prohibition.
In undertaking this assessment it is important to keep in mind the observation of Sir Nigel Rodley, the UN Special Rapporteur on Torture that 'children are necessarily more vulnerable to the effects of torture [and other forms of ill treatment] and because they are in critical stages of physical and psychological development may suffer graver consequences than similarly ill treated adults.' [19]
The Government is likely to protest loudly at the prospect of any adverse finding by the Commission that its detention and treatment of refugee children was never intended to amount to inhuman treatment. However it is irrelevant that the suffering be intended for the treatment to be inhuman. [20]
Conclusion
Refugee children especially those who are unaccompanied are among the most vulnerable members of an international community which has endorsed and ratified numerous international instruments that seek to protect and advance the rights of all children including refugee children. Australia purports to be a member not only of this community but a member committed to the ideals of equality and human rights. As a nation we pride ourselves on such virtues. The reality however has displaced the rhetoric.
It has been said that the refugee 'puts to test the claims of universalisation of human rights.' [21] The examination of Australia's treatment of refugee children fails this test. They have become, to borrow the words of one commentator, 'non subjects, they have no rights or entitlements; the law owes them nothing, their survival is at the discretion of state benevolence…' [22]
In the face of this reality it serves well to recall the words of a child who speaks about the hope, desperation and fear that is likely to occupy the minds of the children in Australia's detention centres:
So if you're wondering whether its harder for the adults here than for the children, the answer is no, its certainly not. Older people have an opinion about everything and are sure of themselves and their actions. Its twice as hard for us young people to hold on to our opinions at a time when ideals are being shattered and destroyed, when the worst side of human nature predominates, when everyone has come to doubt truth, justice and God.
Anyone who claims that the old people have a more difficult time in the Annexee doesn't realise that the problems have a far greater impact on us. We're much too you to deal with these problems, but they keep thrusting themselves on us until, finally, we're forced to think up a solution though most of the time out solutions crumble when faced with the facts. Its difficult in times like these: ideals, dreams and cherished hopes rise within us, only to be crushed by grim reality. It's a wonder I haven't abandoned all my ideals, they seem so absurd and impractical. Yet I cling to them because, in spite of everything, that people are truly good at heart. [23]
Anne Frank was not able to realise her dreams or freedoms and died while in detention. But she presents a challenge for the Australian Government in its treatment of refugee children. Are their dreams of a better life to be 'crushed by the grim reality' of mandatory detention or will an alternative solution carved from the principles of international human rights law affirm Anne's faith that 'in spite of everything … people are truly good at heart'?
1. Cited in C Overington 'Giving all children a world worth having' The Age Thursday 2 May 2002, 15
2. C Douzinas The End of Human Rights (Hart: Oxford 2000) 142.
3. See: www.unhcr.ch (2 May 2002). This figure includes both refugees as recognised under the 1951 Refugee Convention and internally displaced persons who have been placed under the mandate of the UNHCR.
4. See Charter of the United Nations, articles 1(2) and 55(c).
5. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR para 34.
6. Although the prohibition against appears in numerous international instruments to which Australia is a party I make primary to the Convention as this is the most relevant in the context of children.
7. See: Human Rights Committee General Comment 18 para 7.
9. See for example: Abdulaziz et al v United Kingdom (1985) 7 EHRR 471 at 497 ('as a matter of well established international law and subject to its treaty obligations, a state has the right to control the entry of non-nationals into its territory')
10. Communication No 560/1993 (detention per se not arbitrary but must be open to review so that grounds justifying detention can be assessed)
11. These are outlined in the Commission's background papers and need not be repeated here.
12. See for example: Saadi and Ors V Secretary of State for the Home Department [2001] EWCA Civ 1512 (19 October 2001).
13. See Human Rights Committee General Comment 20 para 3.
17. Ireland v UK 2 EHRR 25 (1978) para 162.
19. E/CN4/1996/35 (9 January 1996) para 10.
20. Ibid
para 167: See also: Selcuk & Asker v Turkey (1998) 26 EHRR 477 where
the court held that the destruction of the applicant's homes by security
force amounted to inhuman treatment. As regards the motive for the actions
of the security forces the court declared that:
'… even if it were the case that the acts in question were carried
out without any intention of punishing the applicants but instead to prevent
their homes being used by terrorists or as discouragement to others, this
would not provide a justification for the ill treatment.' para 79-80.
23. Anne Frank Diary of a Young Girl (Penguin Books England 2000) 329-330.
Last Updated 9 January 2003.
