Mandatory immigration detention of children in Australia: how far have we come and where to from here?

Brad Selway Memorial Lecture

The Honourable Catherine Branson QC

18 November 2010

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1 Introduction

 

I would like to begin by acknowledging the traditional owners of the land on which we meet, the Kaurna people.

It is a great honour to be invited to deliver this lecture in memory of the Honourable Brad Selway.

I knew Brad well and admired him a great deal. We met when he joined the Crown Solicitor’s Office and we worked closely together in that office for a number of years. He was appointed Crown Solicitor of South Australia when I left that position to practice at the private Bar. He was subsequently appointed Solicitor-General of South Australia, the office from which, I believe, he made his greatest contribution to Australian public law. I was delighted when Brad was appointed from that position to the Federal Court of Australia, not just because of the legal skills that he brought to the Court but because it made us once again work colleagues.

Tonight I will explore the human rights implications of the mandatory detention of asylum seeking children who arrive in Australia by boat without a visa. This is a topic to which Brad, like me, probably gave little thought before becoming a member of the Federal Court. But, as a member of the Court, Brad was concerned that the rights of all, including the most vulnerable of individuals, should be respected. He acted decisively when it came to his attention that this might not be happening in the case of a significant number of asylum seekers who had applied to the Court for relief.^[1]

Speaking more generally, the judges of the Federal Court have been extremely grateful for the hard work of many members of the South Australian legal profession, including those involved in the Woomera Lawyers Group and the Refugee Advocacy Service of South Australia, who have provided pro-bono representation to hundreds of asylum seekers – a remarkable commitment to ensuring adequate representation for a large number of vulnerable people.

We were reminded last week of the importance of judicial review for those seeking asylum. The High Court decision is a significant positive step in that it makes clear that decision-makers conducting the refugee status assessment process are bound by the law, and they have to follow the rules of procedural fairness.

The question of the treatment of asylum seekers has a renewed relevance in South Australia. Earlier this year asylum seekers were brought from Christmas Island to a detention facility in Port Augusta. And all of you will be aware of the recent announcement that a detention facility to accommodate families will be established at Inverbrackie. As we have seen in the weeks since this announcement, issues relating to asylum seekers can provoke significant controversy.

This controversy is not new and the related issues are complex – but the debate needs to be kept in perspective. As I understand it, the facility at Inverbrackie will house a relatively small number of people while their applications for protection are being assessed. We are talking about families with children, a number of whom are likely to have lived through horrific events in their home countries. Past experience tells us that it is more than likely that a significant proportion of those detained at Inverbrackie will ultimately be found to be refugees and will settle in Australia. It is my hope and belief that those of us who live in South Australia will come to empathise with their situation and respond with compassion and understanding.

Tonight I will consider how far we have come over the past decade in our treatment of children seeking asylum in Australia, commencing with a reminder of where we were when the Australian Human Rights Commission started working on this important human rights issue almost a decade ago.

I will then reflect on where we are now, considering both recent positive developments as well as ongoing concerns. In doing so, I will draw on visits the Commission has made to immigration detention facilities this year.

Finally, I will offer some observations on directions for the future – steps that I believe should be taken to ensure respect for the fundamental human rights of asylum seeking children in Australia.

2 Australia’s obligations under the Convention on the Rights of the Child

The Australian Government has voluntarily agreed to respect, protect and promote the fundamental human rights of all children in Australia. This includes children who come to Australia seeking asylum from persecution.

International human rights standards, including those set out in the Convention on the Rights of the Child, provide clear guidance on how asylum seeking children should be treated.

The Convention tells us the best interests of the child should be a primary consideration in all actions concerning children.^[2] Children should only be detained as a measure of last resort, and for the shortest appropriate period of time.^[3] Detained children must be able to challenge the legality of their detention.^[4]

No child should be subjected to torture or cruel, inhuman or degrading treatment or punishment.^[5] Children in detention have the right to be treated with humanity and respect for their inherent dignity.^[6] Children have a right to education and to the highest attainable standard of health.^[7] Children who lack the support of their parents are entitled to special protection and assistance from the government.^[8]

These standards should not matter to us only because they are contained in international human rights instruments. They are an articulation of what our community instinctively knows – that children require our special protection and care.

So what progress have we made over the last decade in respect of these fundamental human rights for children seeking asylum?

3 Where have we come from?

3.1 The situation during the National Inquiry into Children in Immigration Detention

Nine years ago the Australian Human Rights Commission commenced the National Inquiry into Children in Immigration Detention. The Inquiry took over two years to complete and resulted in a 900 page report entitled A last resort? that comprehensively detailed the treatment of children who were held in immigration detention between 1999 and 2002.

During this period, over 2000 children were detained in remote immigration detention centres, such as Curtin, Port Hedland and Woomera, for lengthy periods of time. After September 2001 children were also detained on Nauru and Manus Island under the ‘Pacific Solution’. At the end of 2003, the average length of detention for a child in immigration detention was one year, eight months and 11 days.^[9]

What were the main findings of this Inquiry?

First, the Inquiry found that Australia’s mandatory immigration detention laws created a detention system fundamentally inconsistent with the Convention on the Rights of the Child. Australia’s system of mandatory detention, rather than detaining children as a measure of last resort, detained them as a first and only resort.

Secondly, the Inquiry found clear signs that children held in detention for long periods were at high risk of serious mental harm. The Inquiry report documented a long list of children who were diagnosed with clinical depression, post-traumatic stress disorder and developmental delays.

The third major finding was that the conditions of detention for children failed to meet human rights standards. Specifically, the Inquiry found that the Department of Immigration failed to provide:

• sufficient protection from physical and mental violence

• an appropriate standard of physical and mental health care

• adequate education and

• appropriate care for children with disabilities.

I would like to give just one brief example that demonstrates the seriousness of what we documented in our report. Between April 2002 and July 2002 – a period of four months – a fourteen year old boy detained at Woomera attempted to hang himself four times; climbed into the razor wire four times; slashed his arms twice; and went on hunger strike twice.

In several cases like this, the Department of Immigration did not act on the repeated recommendations from psychiatrists that the only way to help these families was to remove them from the detention environment. The Inquiry found that the Department’s failure to act in such cases amounted to cruel and inhuman treatment.

The Inquiry recommended that all children should be released from immigration detention centres and residential housing projects and that Australia’s immigration detention laws should be amended so that they meet our obligations under the Convention on the Rights of the Child. I will return to this recommendation later.

3.2 Changes after the National Inquiry report

In the year following the report’s release, there were some important changes.

In July 2005, legislation was passed amending the Migration Act to insert section 4AA, affirming the principle that a minor should only be detained as a last resort. In addition, the Community Detention system was created, allowing the Minister to issue a Residence Determination allowing a person to reside in the community instead of in a detention facility. On 29 July 2005, the 53 children remaining in immigration detention were moved into community based accommodation.

The intention of these amendments was that in the future, families with children would be placed in Community Detention rather than being held in detention facilities.

There were further positive changes following the election of the Rudd Government. In 2008 the Commission welcomed the end of the Pacific Solution, as well as Minister Evans’ New Directions policy that aimed to introduce a risk-based approach to detention.

However, as we shall see, these reforms have not been sufficiently robust to prevent the immigration detention of children.

4 Where are we now?

So, where are we now?

Currently, there are approximately 850 children in immigration detention in Australia.

Families with children and unaccompanied minors are no longer detained in high-security immigration detention centres. However, children remain in other types of detention facilities on Christmas Island, in Darwin, Leonora, Port Augusta, Melbourne, Brisbane, Perth and Sydney. These children are detained. They are not free to come and go from the facilities where they live.

It must be noted that there have been positive developments for children in immigration detention since the time of the National Inquiry. There has been significant cultural change in the Department of Immigration, much of it stemming from the responses to the Palmer and Comrie reports responding to the cases of Cornelia Rau and Vivian Alvarez. Departmental officers are now markedly more alert to the human needs of people in immigration detention. Following visits to detention facilities this year, I have acknowledged the significant efforts being made by staff to ensure that people in detention are treated appropriately.

The physical conditions of detention in some facilities have improved – particularly in some metropolitan facilities such as the Darwin Airport Lodge and purpose built residential housing facilities in Sydney and Perth. There is also greater access to external schooling for primary school-aged children, greater access to external excursions in some locations and some improvements in access to health and mental health care.

4.1 Ongoing concerns

However, over the past 18 months, the Commission has become increasingly alarmed at the number of children in immigration detention and the conditions in which some of them are held. Let me give you a brief outline of our principal concerns.

Children continue to be subject to mandatory detention, there remains no specified limit to the time for which a child may be detained, and there remains no access to judicial review of the detention of children. The Commission has repeatedly found these aspects of the immigration detention system to be in breach of Australia’s international human rights obligations.

We are particularly concerned about the increasing length of detention. For example, when the Commission visited Darwin in September this year, more than 70 percent of the 248 children in detention in Darwin had been detained for longer than three months. Nineteen children had been detained for longer than six months.^[10] The average periods for which children are currently being detained are not as long as they were during the National Inquiry, but they are steadily increasing.

The conditions of detention in some facilities also risk breaching children’s human rights. Let me give you some examples.

• When the Commission visited Christmas Island in June this year, there were 418 people including many children detained in the Construction Camp, a facility which at the time had a capacity of 310. Since this time, a significantly larger number of people have been detained at the Construction Camp. This overcrowding has led to unacceptable living conditions for some people. For example, the conversion of a number of interview rooms and a recreation room to dormitory accommodation led to a situation where 90 young men were sharing one shower.

• Access to education and recreational facilities is critical to the wellbeing of all children, but particularly those in detention. Some detention facilities lack adequate recreational facilities. For example, the Asti Motel in Darwin is a three storey motel building where approximately 170 people are detained. There is no grass at all, just concrete courtyards with little shade. The very few internal recreational spaces are cramped and uninviting.

• Some children have had limited access to appropriate education. For example, children have been detained in Darwin since May this year. It was not until October that children aged between five and fifteen were all able to attend external schools. Sixteen and seventeen year olds are still not able to attend external schools, instead receiving only a small number of hours of English tuition inside the detention facilities.

4.2 Some stories

So, who are the families and children who are being held in immigration detention?

We are talking about vulnerable people, many of whom have suffered significant trauma, both in their country of origin, and on the journey to Australia.

For example, in Darwin we met a couple detained with their school aged daughter. They witnessed the deaths of their two younger children in their home country. They have been recognised as refugees. However they remain in detention months later, waiting for their security clearance.

We also met a single mother with three children. Her husband went missing in their home country. This family was detained in late 2009. When we met them in September, they had been detained in Darwin for four months, with no access to school for the three children. The members of this family have also been recognised as refugees but remain in detention awaiting a security clearance.

There are also large numbers of unaccompanied children in detention. Many are boys aged 16 or 17. However some are considerably younger. In Darwin we met boys from Afghanistan aged 13 and 14. We met boys from other countries who had spent several months in detention without anyone else who could speak their language.

There is a real risk that if action is not taken quickly some of these children will experience significant mental harm as a consequence of their ongoing detention. We know that some children currently in detention are starting to suffer mental harm. Some have already attempted self-harm. These children should not be in detention. Australia can and must do better.

5 Where to from here?

5.1 Community detention

So, where to from here?

On 18 October, in one of his first major announcements as Minister for Immigration, Chris Bowen announced that he would exercise his Residence Determination powers to place a significant number of unaccompanied minors and families with children into Community Detention by June 2011. The Commission welcomed the announcement.

It is important to remember that in order to take this step, the Minister is using the existing powers given to the Minister by the 2005 amendments to the Migration Act.

I have encouraged the Government to implement this initiative as quickly as possible and to expand it to include all children in detention. We must not underestimate the size of the task ahead. Success will depend on the hard work and good will of all involved – the Department, charities, non-government organisations and others.

This is a very positive step, but ultimately, it will not be enough. I believe that we need to take steps to ensure that we are never again in a situation where over 850 children are in immigration detention in Australia.

5.2 Legislative change

This requires legislative change. The last two years have shown us that the principle contained in section 4AA of the Migration Act that a minor should only be detained as a last resort is not enough to prevent the immigration detention of children.

The change I believe is needed is a legislative requirement that the detention of children occurs only as a last resort.

The recommendations of the Commission’s 2004 Inquiry provide a clear guide for the necessary amendments. There should be a presumption against the immigration detention of children. If children are detained it should truly be only as a last resort and for the shortest appropriate period of time, and family unity should be preserved. There should be access to review by a court or independent tribunal within 72 hours of a child’s detention, and access to periodic review by a court of ongoing detention of any child. The minimum standards of treatment of children in immigration detention should also be codified in legislation.

I encourage the legal community in South Australia to support such legislative reform.

I note the introduction in October by Greens Senator Sarah Hanson-Young of a private members bill, the Migration Amendment (Detention of Minors) Bill 2010. This bill seeks to ensure that children are accommodated in the community rather than in immigration detention facilities. There may be an opportunity to become involved in debate about this bill, particularly if it is referred to a Senate Committee Inquiry.

5.3 Community engagement

These changes will need to be accompanied by increased community engagement.

We need to emphasise the human side of this story. Who are the people we have locked up in our detention facilities? They include babies, toddlers, young children, unaccompanied teenagers, pregnant women, parents who have lost children, children who have lost parents.

We also need to remember, and help others to remember, the many positive contributions that refugees have made to the Australian community. Our own Lieutenant Governor in South Australia, Mr Hien Van Le AO is himself a refugee – indeed a ‘boat person’.

We all have a role to play in addressing some of the common myths about asylum seekers. For example, it is misleading to characterise people who arrive in Australia by boat as queue jumpers. For most, there was no orderly queue in which they could sit waiting their turn to travel to Australia. Another common claim is that people who arrive in Australia by boat are illegal immigrants. This is not the case. All people have a human right to seek asylum – and under the Refugee Convention, Australia has obligations to people seeking asylum.

Australia is not being swamped; we have not lost control of our borders. It is the developing world, not the developed world, that receives the greatest number of asylum seekers. It is in Pakistan that the greatest number of displaced Afghanis is to be found; it is in India that the greatest number of displaced Sri Lankan Tamils is to be found. Australia receives only a tiny percentage of the world’s asylum seekers. Last year, more than 370 000 people sought asylum in 44 major industrialised countries and Australia received less than 6200 of those asylum claims. That is less than two percent. By contrast, the United Kingdom received 29,800 the United States received 49,000, and Canada received 33,300.^[11]

There has been much discussion in recent months about regional approaches to asylum seekers. The Australian Human Rights Commission is supportive of a regional approach – but an effective regional approach will require considerably more than the construction or use of a processing centre outside of Australia. We need to consider how we can work with other countries in the region to put in place an effective regional framework for (a) the processing in accordance with international standards of claims for asylum, (b) the orderly and prompt resettlement of those found to be in need of protection and (c) the safe and effective return to their home countries of those who are not. It would be a good thing if people fleeing persecution did not feel that they needed to make a dangerous boat journey to Australia.

But we should distinguish between, on the one hand, the need for a regional solution to the demand in our region for protection from persecution and, on the other hand, our obligation as a nation to ensure that asylum seekers who do arrive in Australia, including children, are treated in line with our international human rights obligations.

6 Conclusion

This is a critical time in the history of Australia’s treatment of asylum seekers. I recognise, of course, that the political challenges in this area are great. I do not pretend to have all the answers to the issues that the Government must address. My principal message is in the circumstances a simple one.

We must not lose sight of the fact that this debate is about human beings– nearly all of them vulnerable men, women and children fleeing from troubled regions of the world; many of them genuine refugees in need of protection from persecution.

Amongst the most vulnerable are the children currently in detention.

We need to make sure that we never return to the conditions we saw during our National Inquiry. This Government is taking important steps in a positive direction. These changes should be applauded. However, they are not enough. Ultimately, Australian law should be changed to ensure that asylum seeking children receive the protection and care to which they are rightly entitled.

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^[1] See DiGirolamo,R & O'Brien, N. 'The dearly deported', The Australian, 6 September 2003, p 21.

^[2] CRC, art 3(1).

^[3] CRC, art 37(b). See also United Nations Rules for the Protection of Juveniles Deprived of their Liberty, rule 2.

^[4] CRC, art 37(d).

^[5] CRC, art 37(a).

^[6] CRC, art 37(c).

^[7] CRC, art 28, 24(1).

^[8] CRC, art 20.

^[9] A last resort?, p68.

^[10] These figures are based on statistics provided by DIAC, current as of 6 September 2010. They refer to the children’s overall time spent in immigration detention – including on Christmas Island, in Darwin and in any other immigration detention facilities in Australia.

^[11] UNHCR, Asylum Levels and Trends in Industrialised Countries 2009, 23 March 2010, pp6-7.