Keynote address to the Victoria Legal Aid Civil Justice Law
and Practice Conference

The Hon. Catherine Branson QC, President and
Human Rights Commissioner

25 November 2011

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Introduction

I would like to begin this morning by acknowledging the traditional owners of
the land on which we meet, the Wurundjeri People of the Kulin Nation. I pay my
respects to their elders past and present.

It is an honour to have been invited to take part in this conference. This
morning I would like to talk about two human rights issues affecting children in
Australia.

Some months ago I was invited to focus my remarks on children in immigration
detention. I will also speak about an issue that has attracted increasing
publicity over the past few months. That is, the situation of Indonesian
nationals who have worked as crew on boats carrying asylum seekers to Australia
– and in particular, those who claim to be children, yet have been held
for months or even years in immigration detention facilities and adult prisons
around Australia.

First I would like to acknowledge the significant contribution made by the
legal profession generally, and Victoria Legal Aid specifically, in each of
these areas over the last year. As many of you would know, Victoria Legal Aid
instituted court proceedings on behalf of four unaccompanied minors who were
held in immigration detention here in Melbourne, and has also represented some
of the young Indonesian crew who have faced substantial hurdles in establishing
their ages in Australian courts. These are just two examples of the important
work done by Legal Aid offices around the country, which focuses on ensuring
that socially and economically disadvantaged people in our community have access
to legal representation.

Children in immigration detention in
Australia

I will start with the situation of children in immigration detention in
Australia.

The mandatory and prolonged detention of children has been an issue of
serious concern to the Commission for many years. It is also an issue that has
troubled many members of the Australian community, including in the legal
profession.

There have been some positive developments over the past year, which I will
speak about a little later. However, we still face significant challenges and
there is a real need for further reforms to bring Australia’s system into
line with our human rights obligations.

What are Australia’s human rights obligations to children seeking
asylum?

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 here seeking asylum from persecution.

International human rights standards, in particular those set out in the Convention on the Rights of the Child, provide guidance on how
asylum-seeking children should be treated. That Convention tells us:

• that the best interests of the child should be a primary consideration in
  all actions concerning children
• that children should only be detained as a measure of last resort and for
  the shortest appropriate period of time
• that children in detention should be treated with humanity and respect for
  their inherent dignity
• and that detained children must be able to challenge the legality of their
  detention.

The Convention also requires that governments provide
special protection and assistance for children seeking asylum, and for
unaccompanied children.

And all children, including those in detention, have a wide range of other
human rights including rights to education and to health care.

These standards should matter to us, not only because they are contained in
internationally accepted human rights instruments, but also because they are an
articulation of what members of the Australian community instinctively know
– that children require our special protection and care.

For years the Commission has argued that the mandatory and prolonged
immigration detention of children leads to breaches of Australia’s human
rights obligations.

In 2004 the Commission published A last resort?, the report of its
National Inquiry into Children in Immigration Detention. The Inquiry found that
Australia’s mandatory detention system was fundamentally inconsistent with
the Convention on the Rights of the Child.

As well as breaching fundamental human rights, immigration detention is
harmful for children. The Commission’s National Inquiry found 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 National Inquiry recommended that all children should be released from
Immigration Detention Centres and that Australia’s immigration detention
laws should be amended to bring the system into line with our obligations under
the Convention on the Rights of the Child.

What has changed since the Commission’s National
Inquiry?

There have been some significant improvements since that time.

In 2005, section 4AA was inserted into the Migration Act to recognise the
principle that a child should only be detained as a last resort. The community
detention system was also created, empowering the Minister for Immigration to
allow a person or family to live in the community instead of in a detention
facility.

Unfortunately these reforms have not been enough.

Children are no longer held in Australia’s high security Immigration
Detention Centres and that is to be welcomed. However, asylum-seeking children
are still subjected to mandatory detention on their arrival in Australia. Over
the past three years we have seen high numbers of children held in low security
immigration detention facilities, some in very remote locations and many for
long periods of time.

While conditions of detention have improved, in visits to detention
facilities over the last two years we have found children subjected to
overcrowded living conditions, children who were not able to access appropriate
recreational facilities, and children who did not have access to schooling. Some
of these children experienced significant trauma in their home countries before
reaching Australia and being placed in detention.

Parents in detention have told us about the impacts on their children. A
mother detained in Darwin told us, “We understand but our children
don’t understand – they want to go outside”. A woman detained
in Sydney with her husband and young children told us that detention had scarred
her daughter. She told us that in February, and the family remains in detention
now.

Children themselves have also spoken to us about what it is like living in
detention. Some have told us that they have no place to play. Others have told
us that they want to be able to “go outside”, to go “somewhere
else”. One child told us that a day in detention feels like a year.

Through detention visits and public reports, and also through submissions and
ongoing engagement with the government, the Commission has continued to advocate
for systemic changes to bring an end to the mandatory and prolonged detention of
children.

Recent positive developments

Sadly, by late last year, there were more than 850 children in immigration
detention facilities around Australia. Fortunately, there have been some
significant positive developments since that time.

Just over a year ago, the Minister for Immigration announced that a
significant number of families with children and unaccompanied minors would be
released from immigration detention facilities and placed into community
detention. This allows them to live in community-based accommodation while their
claims for asylum are determined.

This was a welcome move. Since then, more than 1000 children who were in
detention facilities have been approved for community detention placements, and
around 500 of these children have since received permanent protection visas to
settle in the Australian community.

Currently, there are approximately 500 children living in community detention
and approximately 300 remaining in detention facilities. This is a significant
improvement compared to a year ago, but clearly there is still a long way to go.

Over the past year the Commission has consistently urged the government to
move all families with children and unaccompanied minors into the community, and
we will continue to do so.

Last month, in the wake of the failure of its Offshore Processing Bill, the
government announced that it would make greater use of community detention and
bridging visas to manage asylum seekers who arrive by boat. The Commission has
welcomed this development, and we hope to see it implemented as quickly as
possible – both for families with children and unaccompanied minors but
also for the hundreds of other asylum seekers remaining in detention, many of
whom have been there for months or, in some cases, years.

Further changes to protect children’s human rights

While the Commission welcomes recent policy changes which have seen the
release of many children, there remains a real need for reform to ensure that we
are never again in a situation where more than 850 children are held in
Australia’s immigration detention facilities.

Currently, Australia’s system of mandatory detention remains enshrined
in law. The principle recognised in section 4AA of the Migration Act, that
children should only be detained as a last resort, is not being implemented in
practice. There is no specified time limit on the detention of children, and
their detention is not subject to judicial oversight. The Commission has
repeatedly found these aspects of the immigration detention system to be in
breach of Australia’s human rights obligations.

What we need is legislative change. The recommendations of the
Commission’s National Inquiry provide a clear guide for the amendments
needed. There should be a clear legal presumption against the immigration
detention of children. If children are detained, it should only be in cases
where it is truly a last resort, and it should only be for the shortest
appropriate period of time. There should be access to review by a court or
independent tribunal within 72 hours of a child’s initial detention, and
access to periodic review by a court of the ongoing detention of any child.
Minimum standards for treatment of children in immigration detention should also
be codified in legislation. A system with these basic protections would go some
way towards fulfilling Australia’s obligations under the Convention on
the Rights of the Child.

Before I conclude my comments on children in immigration detention, I would
like to briefly mention two significant legal developments this year.

First, many of you will know that the Commission intervened in the recent
High Court case regarding guardianship of unaccompanied minors in the context of
their potential transfer to Malaysia. As many of you would be aware, the
Minister for Immigration is the legal guardian of unaccompanied minors who
arrive in Australia seeking asylum and, as such, he is bound to consider their
best interests. In the High Court, the Commission argued that the Minister must
give his consent in writing before removing an unaccompanied minor to a third
country, and that a decision to give consent would be judicially reviewable. The
High Court accepted these arguments. This case raised important human rights
issues regarding the protection of particularly vulnerable children, and the
Court’s decision has reinforced the weightiness of the Minister’s
guardianship obligations.

Secondly, as mentioned earlier, this year Victoria Legal Aid instituted
proceedings in another important case, Plaintiff M168/10 v The
Commonwealth, concerning the detention of unaccompanied minors. This case,
for the first time, challenges the lawfulness of Australia’s policy of
mandatory detention of asylum-seeking children who arrive in excised offshore
places, in the context of the principle enshrined in section 4AA of the
Migration Act that the detention of children should be a last resort. The
Commission will watch this case with interest – it could have significant
repercussions for Australia’s system of mandatory detention and how it
applies to children.

Indonesian crew who claim to be children in detention
in Australia

I would like to close this morning with some brief comments about another
area of serious human rights concern: the situation of Indonesian nationals who
have worked as crew on boats carrying asylum seekers to Australia. As I
mentioned earlier, some of these individuals claim to be children, yet have been
held for long periods in immigration detention facilities and adult prisons.

For example, in June this year, three Indonesian boys aged 15 and 16 were
returned to Indonesia after having spent over 14 months in detention in
Australia, including six months in an adult prison. They were returned to their
families after defence lawyers travelled to Indonesia and obtained documentary
and affidavit evidence about their age.

Earlier this month, an Indonesian boy who had spent 21 months in immigration
detention and prison, and who had been found by a court to be an adult on the
basis of wrist x-ray evidence, was also returned home. In this case also, a
defence lawyer travelled to Indonesia to obtain evidence of what she was
convinced – that her client was in fact a child.

Unfortunately, these cases are not unique. In the last month two Western
Australian District Court decisions have found Indonesian nationals who had
spent long periods of time in detention and adult prison to be minors. Each of
these decisions criticised the use of wrist x-rays for age determination
purposes – currently the only procedure that is prescribed by the
Commonwealth Crimes Act for this purpose.

We know that there are currently at least 20 Indonesian nationals on remand,
being investigated for potential people smuggling charges, who claim to be
children.

I have been corresponding with the Attorney-General about this issue since
February, urging that the use of wrist x-rays for age determination should be
abandoned and that an independent reassessment of the age of any Indonesian
national in prison who continues to claim to be a minor should be conducted.

There has not yet been a commitment to either of these measures. Given the
large number of people who continue to claim to be minors and the serious
consequences if errors are made in age determination, I have this week announced
that I will conduct an inquiry into the treatment of Indonesian nationals
suspected of people smuggling offences who say that they are children. I will
particularly focus on action taken by the Commonwealth to assess the age of
these individuals.

It is critical that we learn from what has happened in these cases so we can
ensure that the rights of vulnerable children are better protected.

I know that staff of Victoria Legal Aid have represented individuals
suspected of people smuggling offences who claim to be children. I invite your
organisation to participate in the Commission’s inquiry, and look forward
to discussions about how we can prevent errors of this kind from occurring
again.

Conclusion

The issues I have spoken about this morning may seem remote from the daily
lives of many of us in this room, but they are profoundly impacting the daily
lives, wellbeing and future prospects of many children in Australia.

Again, I welcome the significant contributions made by the legal profession
in these areas to date and I encourage you to continue these efforts, as we will
continue with our own efforts to ensure that children’s human rights are
protected in Australia.

Thank you for your time today.