"The human rights of vulnerable children in Australia": Dr Sev Ozdowski OAM (2002)

"The human rights of
vulnerable children in Australia"

Address given by Dr Sev Ozdowski
OAM, Human Rights Commissioner at the 9th National Conference of the Association
for the Welfare of Child Health: "Healthy Justice for Children and
Young People", Thursday 10 October 2002, All Seasons Premier Menzies Hotel, Sydney

Acknowledgements

Mrs Irene Hancock,
AWCH National President, distinguished guests, ladies and gentlemen, all.
I would like to acknowledge the Gadigal people, the traditional custodians
of the land on which we stand.

Introduction

I am very pleased
to be given the opportunity to speak again this year to the members of
the Association for the Welfare of Child Health. I have kept in touch
with the Association since last year's conference and applaud your work.
I would like to acknowledge your major contribution to both the emotional
and social needs of children and young people who are in hospital and
the health care system generally. Your tireless work advocating for a
more child-friendly health system boosts the well-being of all sick children.

Turning for a moment
to the human rights treaty over which I have jurisdiction, namely the
Convention on the Rights of the Child (CROC), let me refresh your memories:

• this treaty is
  the pre-eminent international human rights instrument dealing with children's
  rights;
• its subject matter
  is wide, covering everything from the child's right to protection from
  sexual exploitation to the right to play;
• it covers civil,
  political, economic, social and cultural rights;
• it is the most
  ratified human rights treaty in history, with only Somalia and the USA
  to have signed but not yet ratified it;
• Australia ratified
  the CROC nearly twelve years ago, in December 1990; it was scheduled
  to the Human Rights and Equal Opportunity Act in 1993;
• CROC establishes
  the minimum benchmark for the way children are to be treated.

The main distinguishing
feature of CROC is that it recognises the right of all children to participate
meaningfully in all matters affecting them. This emphasis has quite profound
implications in the way adult society has to negotiate its way through
issues involving children.

As you know, the
Human Rights Commission is a statutory body, completely independent of
Government. As Human Rights Commissioner, it is my job to promote and
protect the human rights of all people in Australia.

In particular, the
Commission monitors implementation of the Convention on the Rights of
the Child in Australia and has the capability to inquire into acts or
practices by Federal Government agencies that may violate children's human
rights. We can do this in two ways:

• by investigating
  individual children's complaints of violations of their rights under
  the Convention;
• by conducting
  broader inquiries into systemic violations by or on behalf of the Commonwealth,
  for example, my current National Inquiry into Children in Immigration
  Detention (more on this later).

UN Special Session
on Children (8-10 May 2002)

The information obtained
during my consultations with children and young people, about which I
reported to you at your last national conference, proved to be very useful
when I was at the UN General Assembly Special Session on Children, in
New York on 8-10 May 2002 as a member of the Australian Government delegation.

I participated in
its work, including representing the leader of the delegation, The Hon.
Larry Anthony, Minister for Children and Youth Affairs at the Gate Foundation
Concert "Turn This World Around - Leadership for Children" on
9 May 2002.

I am pleased to report
that both the Australian delegation and NGOs played a positive role in
negotiations on the final document, "A World Fit for Children".
I was particularly pleased that an 11 year old Australian boy, Barron
Hanson, handed over 95 million votes in support of child rights to UN
Secretary-General Kofi Annan. Also pleasing was Minister Anthony's statement
delivered on behalf of Australia to the 27th Special Session of the General
Assembly on Children, which mentioned the work of HREOC.

I also represented
Australia at the first meeting of Independent National Human Rights Institutions
regarding the protection and promotion of the rights of the child, and
gave a report on Australia's progress. This was held on 7 May 2002, prior
to the UN Special Session.

Among other things,
the Meeting agreed to:

• call on the UN
  system to give formal recognition to independent human rights institutions
  to enable them to be active participants in all UN proceedings; and
• establish a global
  network of independent human rights institutions for children, with
  regular meetings and information exchange.

The National Inquiry
into Children in Immigration Detention

The Inquiry's Terms
of Reference are broad and include child asylum seekers' health and education
needs; legal status, mental health and development and overall treatment
by staff.

The methodology is
very thorough, involving:

• over 310 written
  submissions received from health, education, welfare and legal professionals
  as well as members of the public, including refugees;
• examination of
  DIMIA's submission as well as DIMIA and ACM documents we required;
• inspections of
  detention centres which include interviews with detainee children and
  their families;
• formal public
  hearings (DIMIA and ACM outstanding);
• informal focus
  groups with ex-detainee children and young people.

On a number of occasions
I have expressed a concern about the human rights of children in immigration
detention. Clearly these children in immigration detention are among the
most vulnerable in Australia today, especially those who are unaccompanied
minors (almost none are still in detention centres). Many of these children
have fled situations of war and persecution. They have arrived in a strange
country after a long journey; for adults these are confronting and traumatic
experiences, how much more so must they be for children?

Australia maintains
a mandatory detention policy which requires that all those who come to
our shores without authorisation are detained in immigration detention
centres on arrival. This is until they are either granted visas or returned
to their country of origin. In the case of people who land on the excised
territories of any of the Christmas, Cocos or Cartier Islands or Ashmore
Reef, they are removed to Papua New Guinea or Nauru under the colloquially
named "Pacific Solution".

In contrast people
arriving on, for example, tourist visas can seek asylum in Australia and
do not face detention while awaiting decision on their refugee status.

Most of these people
who come to our shores without authorisation see themselves as refugees
and are seeking asylum in Australia. For example, people who arrived from
Afghanistan, Iraq and Iran.

A substantial proportion
of them will subsequently satisfy Australia's refugee assessment criteria
thereby engaging our protection obligations as behoves a signatory to
the 1951 Convention and 1967 Protocol relating to the Status of Refugees.
In fact, for example, some 70% are recognised as refugees and about 53%
of the "Pacific Solution" people were recognised as refugees.
In contrast, only 15% of those authorised arrivals who applied for asylum
have satisfied refugee criteria.

The first point to
be made about this situation is that asylum seekers who arrive in this
unauthorised fashion have not committed any crime under Australian domestic
law. Father Brennan compared it to somebody escaping a bushfire and parking
illegally.

The second point
is that under our Migration Act, asylum seekers who arrive "unauthorised"
must be detained pending resolution of their refugee status.

Rationale for
Mandatory Detention

The key purpose is
to undertake rudimentary health, identity and security and refugee status
backgrounding checks. An initial period of mandatory detention, thereby
enabling rudimentary health, identity/security and refugee status backgrounding
to occur, is reasonable.

In this respect I
would adopt the Swedish model which similarly imposes mandatory detention
on all unauthorised arrivals, but completes first phase processing in
a matter of weeks if not days. Swedish immigration authorities then permit
supervised release into the general community pending final determination
of refugee status. This is acceptable, in my view.

In contrast, the
current Australian law requires verification and adjudication finalisation
of all aspects of an asylum seeker's application within detention. This
is a process that takes months on average and in some cases years. A case
was reported recently of a child who had spent over 5 years in detention
before the claims were recognised.

Australia's obligations
towards detained children

Australia has international
obligations to protect these children as outlined in the Convention on
the Rights of the Child. According to CROC, the detention of a child shall
only be used as a measure of last resort and for the shortest appropriate
period of time (article 37(b), CROC).

Even when it is absolutely
necessary to detain a child, under the Convention, Australia must ensure
that the conditions and treatment of children in immigration detention
respect their human rights. This includes their right to education (article
28 and 29), to the highest attainable standard of health (article 24),
to practise their culture, language and religion (article 30) and their
right to family life (articles 5, 9, 18).

One thing is clear,
if Australia decides to detain children, it must accept that this policy
brings with it certain obligations to do right by the children.

The Inquiry -
emerging trends

At this stage I can
make no final judgement on the outcomes of the Inquiry because I am in
the middle of it and I have not yet fully considered all the evidence.

However I can report
on some of the emerging themes:

• the psychological
  despair of those long-term detainees who can't understand why they are
  being detained when they only came here for protection;
• a lack of appropriate
  or timely medical and psychological care.

When I last visited
two weeks ago, Woomera's population was substantially reduced, with only
19 children remaining, but that is 19 too many, and these children are
permanently damaged.

• the lack of adequate
  education - however I wish to acknowledge the recent move to use outside
  school facilities.

Attending local schools
allows detained children - who otherwise spend 24 hours a day in detention
centres - to socialise with Australian children. Given that many detained
families are eventually recognised as refugees, it is in Australia's interests
to ensure the children get an education that helps them integrate into
Australian society as soon as possible.

• the limited access
  to services for children with disabilities.

What I was also concerned
with during the public hearings was that a number of witnesses requested
in-camera hearings because of fear of speaking publicly. These included
not only detainees and ex-detainees, but visitors, volunteer workers and
ex ACM and DIMIA workers.

Conclusion

As Human Rights Commissioner,
I have previously called for the total closure of Australia's remote site
detention centres.

My detailed inspections
of them have, over time, convinced me that they are "un-Australian".
I happen to believe that operationally they also breach many human rights
treaties.

Australia prides
itself, justifiably, on being the land of the "fair go", where
a spirit of mateship enabled us to flourish in a difficult and unforgiving
physical environment.

It is nonsense to
pretend that the integrity of our borders is threatened by the small,
sad, flotilla of leaky boats with their desperately fragile cargo of asylum
seekers. We can maintain a system of visas and identity, security and
health checks without stomping all over our "fair go" heritage.

The current policy
of long term mandatory detention in containment camps is exacting an extremely
high moral toll. Future generations of Australians will undoubtedly question
whether that price was worth paying.

Therefore let us,
as a community, harness all the money, ingenuity and effort expended on
the current detention system into a new way.

A way which will
achieve the appropriate policy objectives while simultaneously drawing
on the rich Australian heritage of compassion and decency.

If we can achieve
this we will, almost subconsciously, be fulfilling both the letter and
the "spirit" of our human rights commitments.

In order to reach
this goal it will be necessary to convince a majority of our fellow Australians,
who overwhelmingly support the current Government policy, that change
is essential. This means that community groups such as the Association
for the Welfare of Child Health must be prepared to go out among the general
community and argue the case for change.

Otherwise we all
run the risk of simply preaching our message to the converted.

Australia is a democratic
country. Any substantial alteration to the immigration detention regime
can only occur via our participation in public debate and in political
process.

Last
updated 16 December 2002