National Inquiry into Childen in Immigration Detention - Background Paper 1: Introduction

National Inquiry into Children in Immigration Detention

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Background Paper 1: Introduction

In this Background

Paper

1. National

   Inquiry into Children in Immigration Detention

2. Overview of international treaties and standards on children's

   rights

3. The

   Convention on the Rights of the Child

4. The

   Convention in Australian law

5. The

   Committee on the Rights of the Child

6. UNHCR

   Guidelines on the Care and Protection of Refugee Children

7. Questions

   for submissions

8. Relevant

   standards and guidelines

---

1. National

Inquiry into Children in Immigration Detention

In November 2001, the

Human Rights Commissioner announced an Inquiry into the adequacy and appropriateness

of Australia's treatment of child asylum seekers and other children who

are, or have been, held in immigration detention, including:

• the provisions made

  by Australia to implement its international human rights obligations

  regarding child asylum seekers, including unaccompanied minors
  

  
  

• the mandatory detention

  of child asylum seekers and other children arriving in Australia without

  visas, and alternatives to their detention
  

  
  

• the adequacy and

  effectiveness of the policies, agreements, laws, rules and practices

  governing children in immigration detention or child asylum seekers

  and refugees residing in the community after a period of detention,

  with particular reference to:
  

  
  

  • the conditions

    under which children are detained

  • health, including

    mental health, development and disability

  • education
  • culture
  • guardianship

    issues; and

  • security practices

    in detention
    

• the impact of detention

  on the well-being and healthy development of children, including their

  long-term development
  

  
  

• the additional measures

  and safeguards which may be required in detention facilities to protect

  the human rights and best interests of all detained children
  

  
  

• the additional measures

  and safeguards which may be required to protect the human rights and

  best interests of child asylum seekers and refugees residing in the

  community after a period of detention.

The term "child asylum

seeker" is used throughout the Background Papers. While the focus in these

papers is on children who have been detained when seeking asylum in Australia,

it is not intended to exclude other children who have been detained. The

Inquiry relates to any child who is, or who has been, in immigration detention.

"Child" refers to any person under the age of 18.

Background Papers

The Commission has

written a series of Background Papers, of which this is the first, to

provide an overview of international human rights standards in areas relevant

to the Inquiry. These Background Papers are available as a reference and

guide to individuals or organisations wishing to make a submission to

the Inquiry. They should be consulted where relevant, but it is not necessary

to refer to them when making a submission.

The Background Papers

are:

1. Introduction
2. Culture and Identity
   
3. Mental Health and Development
   
4. Health and Nutrition
   

5. Prevention, Treatment and Accommodation

   of Disabilities
   

6. Education
   

7. Legal Status
   

8. Deprivation of Liberty and Humane Detention.

Treaties,

Rules and Guidelines

• Treaties

  that have been ratified by Australia, such as the Convention on the

  Rights of the Child, are binding on Australia in international law.

  The implementation of treaty rights of people in Australia are monitored

  by United Nations treaty bodies, such as the Committee on the Rights

  of the Child or the Human Rights Committee.

• The

  fact that Australia has ratified a treaty does not automatically incorporate

  it into Australian domestic law. Only when treaty provisions are incorporated

  into Australian law do they create enforceable rights in Australia.

  However, courts should interpret a law to be consistent with the provisions

  of a treaty that Australia has ratified.

• Other

  international documents and instruments such as United Nations Rules,

  General Comments by treaty bodies, United Nations High Commissioner

  for Refugees guidelines, United Nations General Assembly Declarations

  and publications by United Nations agencies are not binding on Australia

  as a matter of international law. They are, however, persuasive in

  interpreting treaties and contain goals and aspirations reflecting

  a consensus of world opinion.

The Human Rights and Equal

Opportunity Commission

The Human Rights and

Equal Opportunity Commission (the Commission) is responsible for protecting

and promoting human rights, including:

• promoting an understanding

  and acceptance of human rights in Australia

• undertaking research

  to promote human rights

• examining laws relating

  to human rights

• advising the federal

  Attorney-General on laws and actions that are required to comply with

  our international human rights obligations.

The Commission also

inquires into complaints of breaches of human rights under the Human

Rights and Equal Opportunity Commission Act 1986 (Cth).

One area of Commission

responsibility is the rights of children under the Convention on the

Rights of the Child (1989) (the Convention). Australia agreed to be

bound by the Convention in December 1990 when it ratified the Convention.

The Australian government has made the Convention a "relevant international

instrument" under the Human Rights and Equal Opportunity Act 1986

(Cth).

In 1998, the Commission,

in its report, Those who've come across the seas: Detention of unauthorised

arrivals, found that Australia's policy of mandatory and non-reviewable

detention of most unauthorised arrivals is in breach of its international

human rights obligations. For children, the Convention not only prohibits

unlawful or arbitrary detention, but requires that detention be used only

"as a last resort and for the shortest appropriate period of time". [1] These Background Papers should not be taken to endorse the mandatory

non-reviewable detention of unauthorised child arrivals in Australia.

Reasons for the Inquiry

As of November 2001,

there were 582 children in immigration detention, 53 of them unaccompanied. [2] Most, though not all, of these children are asylum seekers,

having arrived unauthorised in Australia with or without their parents.

Since 1994, practically all unauthorised arrivals in Australia - both

adults and children - have been subject to mandatory and non-reviewable

detention. [3] This non-reviewable detention ends when the individual is either

recognised as a refugee and granted a temporary protection visa or removed

from the country. [4] In very limited circumstances, a person may be granted a visa

on humanitarian grounds without being recognised as a refugee. [5]

Since 1999, there has

been an increase of asylum seekers arriving by boat from several hundred

to approximately 4000 per year. In this time, the numbers of children

held in immigration detention facilities has increased substantially to

approximately 550 at any one time. Detention facility populations constantly

fluctuate in numbers, but it is possible to estimate that several thousand

children have been held in immigration detention in Australia since 1999. [6]

Under a new policy

initiated by the Australian government in late August 2001 and later grounded

in a series of legislative provisions, [7] unauthorised arrivals, including children, are detained on arrival

in Australia and removed to third countries, such as Nauru and Papua New

Guinea, where their asylum claims are to be determined. It is unclear

how many of the children detained and removed in this way, will be returned

to Australia at a later date, resettled in a third country or returned

to their country of origin.

2. Overview

of international treaties and standards on children's rights

International treaties,

developed by nation states through the United Nations, set standards for

the care and protection of adults and children. These standards reflect

consensus principles of the international community, across different

cultural, religious and political systems. They are also international

legal obligations which countries freely commit to and whose provisions

they are then obliged to ensure, protect and promote. When a country ratifies

an international treaty, it undertakes to ensure that the standards outlined

in that treaty are applied to everyone in its territory.

Child asylum seekers

are protected by a number of international treaties and standards. The

main treaties are:

• the Convention

  on the Rights of the Child (1989)

• the Convention

  relating to the Status of Refugees (1951) and its 1967 Protocol (the Refugee Convention). [8]

The Convention on the Rights

of the Child

The Convention is a

comprehensive treaty, covering practically all areas of a child's life.

Currently, 192 countries are State Parties to the Convention. [9] All children, regardless of their immigration status, are entitled

to the full enjoyment of the rights outlined in the Convention.

Key rights outlined

in the Convention are:

• the right of all

  children to enjoy all the rights of the Convention without discrimination

  of any kind (article 2)

• the right to survival

  and development (article 6)

• the best interests

  of the child as a primary consideration in all actions concerning children

  (article 3(1))

• the right of all

  children to participate meaningfully in all matters affecting them (article

  12)

• the right to family

  life (articles 5, 9, 18).

Under the Convention,

children in detention also have the right to:

• the highest attainable

  standard of health (article 24)

• education (articles

  28 and 29)

• practise their culture,

  language and religion (article 30)

• freedom from torture,

  ill-treatment and abuse (article 37)

• protection from

  all forms of physical or mental violence, sexual abuse and exploitation

  (articles 19 and 34)

• freedom of expression,

  thought, conscience (articles 13, 14, 15)

• protection as an

  asylum seeking child (article 22)

• recovery from the

  effects of neglect, exploitation, abuse, torture or ill-treatment, or

  armed conflicts (article 39)

• not be deprived

  of liberty unlawfully or arbitrarily, with detention only in conformity

  with the law, as a measure of last resort and for the shortest appropriate

  period of time (article 37)

• access to legal

  assistance and the right to challenge their detention (article 37)

• rest and play (article

  31)

• privacy (article

  16)

• a standard of living

  adequate for physical, mental, spiritual, moral and social development

  (article 27)

• if detained, be

  treated with humanity and respect for their inherent dignity and in

  a manner which takes into account their age (article 37).

The Convention recognises

that the degree to which children can exercise these rights independently

is influenced by their evolving maturity and capacities. [10] It also emphasises the rights and responsibilities of parents

to bring up their children "in an atmosphere of happiness, love and understanding". [11]

The Convention is available

at http://www.ohchr.org/english/law/pdf/crc.pdf.

The Refugee Convention

The Refugee Convention

defines a refugee and establishes the principle of non-refoulement.

Who is a

refugee?

A

refugee is someone who "owing to well-founded fear of being persecuted

for reasons of 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 former habitual residence as a

result of such events, is unable or, owing to such fear, is unwilling

to return to it".

Article

1(A)(2), Refugee Convention.

What is

non-refoulement?

Non-refoulement

is the principle that prohibits the forcible return of any person to

a country where they risk facing persecution on return.

Article

33(1), Refugee Convention.

The Refugee Convention

makes no distinction between children and adults, except in the provision

of education. It provides that refugee children should receive "the

same treatment" as nationals in primary education and treatment at

least as favourable as non-refugee aliens in secondary education.[12]

The relationship between the

Convention and the Refugee Convention

The Convention

on the Rights of the Child effectively incorporates the rights set

out in the Refugee Convention. Article 22 of the Convention provides that

State Parties must ensure child asylum seekers "receive appropriate

protection and humanitarian assistance in the enjoyment of applicable

rights set forth … in other international human rights or humanitarian

instruments to which the said States are Parties". [13] As Australia is a State Party to the Refugee Convention, it is obliged

to ensure the rights outlined in its provisions are afforded to child

asylum seekers under both the Refugee Convention and the Convention

on the Rights of the Child by virtue of article 22.

Other relevant treaties and

standards

A number of other

human rights and humanitarian treaties and instruments outline relevant

standards for adult and child asylum seekers. Treaty rights are binding

and apply to all persons on state territory, regardless of immigration

status. These treaties include the:

• International

  Covenant on Civil and Political Rights (ICCPR)(1966)

• International

  Covenant on Economic, Social and Cultural Rights (1966)

• International

  Convention on the Elimination of All Forms of Racial Discrimination (1965)

• Convention

  against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)

• Convention

  on the Reduction of Statelessness (1961)

• Convention

  Relating to the Status of Stateless Persons (1954)

• Convention

  on the Elimination of All Forms of Discrimination against Women (1979)

• Convention

  Against Discrimination in Education (1960).

In addition to these

treaties, all ratified by Australia, the UN has issued a number of standards

concerning the detention of children. International instruments on juvenile

justice are included in the Inquiry under the principle that children

in immigration detention have not been arrested or charged with any crime

and accordingly their treatment should be at least as favourable as that

of untried or convicted prisoners. [14] These standards

are listed below in "further reading".

These standards do

not have the same legal status as treaty rights but assist in the interpretation

of treaty rights. For example, the United Nations Committee on the Rights

of the Child [15] has indicated in its general guidelines

for periodic reports that State Parties to the Convention must interpret

the term "deprivation of liberty" under article 37(b) of the

Convention as set out in the United Nations Rules for the Protection

of Juveniles Deprived of their Liberty (1990).[16] Other relevant international instruments are appended at the end of this

paper.

The standards outlined

in these instruments are important indications of international consensus

on what principles should govern the detention and treatment of children

generally. [17] They also explain the applicable benchmarks

in considering whether the conditions in detention meet the requirement

of providing "appropriate protection and humanitarian assistance"

to child asylum seekers. [18] To give effect to the

provisions of the Convention, Australia is expected to have implemented

these standards into its law.

3.

The Convention on the Rights of the Child

There are four general

principles enshrined in articles of the Convention, which guide interpretation

of the Convention as a whole and assist national implementation. [19] These four principles are:

• the best interests

  of the child

• non-discrimination
• participation
• survival and development.

An additional right,

the right to family life, is of general importance to the Inquiry and

will also be discussed below.

Principle

one - best interests of the child (article 3)

In

all actions concerning children, whether undertaken by public or private

social welfare institutions, courts of law, administrative authorities

or legislative bodies, the best interests of the child shall be a primary

consideration.

Article 3(1), Convention on the Rights of the Child.

The requirement in

article 3 of the Convention that the best interests of the child be given

"primary consideration" is a fundamental principle reflected

in the various provisions of the Convention. [20]

The principle relates

to all actions concerning children, including "decisions by courts

of law, administrative authorities, legislative bodies and both public

and private social-welfare institutions". [21] Upholding the "best interests" principle requires examination

of government policy formulation and individual decision-making regarding

children. Article 3(1) does not require the best interests of the child

to be the sole consideration in all decision-making, but it does require

the child's interests to be the subject of active consideration, with

evidence that children's interests have been taken into account as a primary

consideration. [22]

The principle of

the "best interests of the child" in article 3(1) is fundamental

to understanding Australia's obligation to implement the rights in the

Convention for all children. [23] The "best interests"

principle should be used by all decision makers, including service providers

in detention facilities, and be written into legislation in a way in which

it can be invoked before the courts. [24]

The "best interests"

rule can mean that in certain circumstances, such as abuse or exploitation,

the "best interests" of children requires that they be separated

from their parents. Usually, however, it means that their right to "grow

up in a family environment, in an atmosphere of happiness, love and understanding" [25] should be respected, as is emphasised throughout

the Convention. See the discussion below on the right to family life and

article 5 of the Convention.

States Parties must

report to the Committee on the Rights of the Child on how the "best

interests" of the child are reflected in "budgetary allocations,

including at the central, regional and local levels, and where appropriate

at the federal and provincial levels, and within governmental departments".[26] Accordingly, budgetary constraints alone, such as in any contract or tender

between the Australian government and private detention operators, should

not be invoked as a reason for failing to provide children with adequate

health care, education or other rights in detention facilities.

The Inquiry will

examine, and welcomes submissions on, whether the detention of child asylum

seekers, either with their families, or unaccompanied, is in the "best

interests" of the child. It will also consider the extent to which

current "legislative, administrative and other measures" (article

4) take the "best interests of the child" into account. Another

avenue to be explored is how the Australian authorities consider the question

of whether children should be released into the community, under bridging

visas or other measures and the extent to which their family can be released

with them under current law and practice.

Principle

two - non-discrimination (article 2)

1.

States Parties shall respect and ensure the rights set forth in the

present Convention to each child within their jurisdiction without discrimination

of any kind, irrespective of the child's or his or her parent's or legal

guardian's race, colour, sex, language, religion, political or other

opinion, national, ethnic or social origin, property, disability, birth

or other status.

2.

States Parties shall take all appropriate measures to ensure that the

child is protected against all forms of discrimination or punishment

on the basis of the status, activities, expressed opinions, or beliefs

of the child's parents, legal guardians, or family members.

Article

2, Convention on the Rights of the Child.

The non-discrimination

principle outlined in article 2 of the Convention prohibits discrimination

on the grounds of status, including immigration status.[27] Every child in Australia is entitled to all of the rights under the Convention

without discrimination. Article 2 is particularly important when read

in conjunction with the other provisions of the Convention, for example,

the right to education and the rights to health, leisure and culture.

The non-discrimination

requirement raises issues for the Inquiry in relation to the mandatory

detention of children in Australia on account of their unauthorised arrival.

For example, children who arrive in Australia with their families on a

tourist or other temporary visa and subsequently apply for refugee status

are not detained. One issue this raises is whether Australia is in breach

of article 2 of the Convention on the ground of its different treatment

of child asylum seekers arriving without visas and children who arrive

on a tourist or temporary visa and subsequently seek asylum.

Another potential

discrimination issue arises in relation to the different status that may

be granted to child asylum seekers depending on their mode of arrival

in Australia. Child asylum seekers who arrive without authorisation and

are detained may only receive a three year temporary protection visa when

recognised as a refugee, whereas those who arrive with authorisation and

are subsequently recognised as a refugee receive permanent residency.

The different legal status deriving from these refugee visas translates

into different rights and benefits for children. [28] The Inquiry welcomes submissions on these issues, including any difference

in treatment between child asylum seekers and other children in Australia. [29]

The principle of

non-discrimination also requires that conditions of detention do not impact

more severely on girls than on boys. The issue of equality on the basis

of sex is central to the principle.

The non-discrimination

principle does not mean that all child asylum seekers have a right to

live indefinitely in Australia. Article 2 of the Convention does mean,

however, that while they are in Australia, all child asylum seekers should

enjoy the same rights under the Convention, including rights to education,

health or participation rights in decisions concerning them.

Article 2(2) also

obliges Australia to protect children from discrimination or punishment

because of their parent's or family's activities, opinions, or beliefs.

Principle

three: participation (article 12)

States

Parties shall assure to the child who is capable of forming his or her

own views the right to express those views freely in all matters affecting

the child, the views of the child being given due weight in accordance

with the age and maturity of the child.

Article

12(1), Convention on the Rights of the Child.

The Convention states

in article 12(1) that a child has the right to participate in all matters

concerning him or her, personally or through a parent or guardian. Article

12(2) outlines the right for a child to be heard in any judicial or administrative

proceedings affecting the child. The right to be heard may be direct,

or through a representative or an appropriate body.

Participation in

decision making may include a child's participation in play and self-expression

activities, from drawing pictures to playing cricket. It can extend to

sharing opinions, discussing them with adults and having the adults give

the views "due weight". [30]

The right to participate

in decisions raises issues in relation to detained children. How do these

children participate in decisions concerning them, both in relation to

their asylum claim, their ongoing detention and their daily and weekly

routine in the detention facility? Who advocates for them? Who is their

guardian? How does the child participate in decisions concerning their

education, leisure, cultural activities? How are they involved in developing

skills and expressing themselves in different ways? What processes are

in place in the management of detention facilities to include children

and their families in these activities?

Equally, how do the

child's parents or guardians represent her or his best interests and participate

in proceedings, hearings or other decision-making concerning them, where

the child is too young or needs to be represented in part by parents or

guardians?

In this respect,

it is noteworthy that the Committee on the Rights of the Child has suggested

that child asylum seekers must be allowed to participate in their asylum

hearing "and to express their concerns" including through a

"guardian mechanism" [31] (see

also Background Paper 7: Legal status).

Principle

four: survival and development (article 6)

1.

States Parties recognize that every child has the inherent right to

life.

2.

States Parties shall ensure to the maximum extent possible the survival

and development of the child.

Article

6, Convention on the Rights of the Child.

The principles of

best interests, non-discrimination and participation have been referred

to as a "triangle of rights" that reinforce each other to achieve

the objective of "the survival and development" of the child

as stated in article 6. Survival and development refers not only to the

child's physical survival and healthy development, but to his or her mental

and emotional development (see also Background

Paper 3: Mental Health and Development).

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The right

to family life (article 5)

States

Parties shall respect the responsibilities, rights and duties of parents

or, where applicable, the members of the extended family or community

as provided for by local custom, legal guardians or other persons legally

responsible for the child, to provide, in a manner consistent with the

evolving capacities of the child, appropriate direction and guidance

in the exercise by the child of the rights recognized in the present

Convention.

Article

5, Convention on the Rights of the Child.

Under the Convention,

all children are entitled to grow up in a healthy family environment,

with parents or legal guardians of child asylum seekers having the primary

responsibilities for the upbringing of their children. Australia is also

obliged to ensure that unaccompanied children receive appropriate alternative

care and guardianship arrangements. [32]

Only where children

are in a situation "such as one involving abuse or neglect of the

child by the parents" or where the parents are separated, should

separation be contemplated and then only after due process where it is

in the best interests of the child. [33]

Article 37(b) of

the Convention provides that children should only be detained as a last

resort and for the shortest appropriate period of time.[34] The provisions of article 37(b), read with the child's right to family

life, would indicate that alternatives to the detention of children which

involve the child remaining with her or his parents out of detention should

be considered as a first resort by Australia, with detention as a last

resort. The Inquiry will consider the extent to which this is correct

and how Australia's current legislative and administrative arrangements

conform to the Convention's requirements. Submissions are welcomed on

this point.

4. The Convention

in Australian law

The Convention must

be implemented within Australian law and practice for the rights that

it recognises to have force. There are various international bodies that

assist in the interpretation and implementation of the Convention. The

following sections provide an overview of the implementation and interpretation

of the Convention for reference purposes and as a background to the Inquiry.

Implementation of Convention

rights

Some of the Convention

rights are universal civil and political rights, such as the right to

be free of torture, cruel, inhuman or degrading treatment or punishment

and the right not to be deprived of one's liberty unlawfully or arbitrarily

(article 37(a) and (b)). These rights must be ensured in all States, regardless

of local circumstances.

The Convention also

provides for "progressive" economic, social and cultural rights,

which will increase in accordance with a State's economic development.

This recognises that some of the more costly reforms cannot be implemented

immediately in all countries, but will depend on their economic development.

Rights to health care (article 24) and education (articles 28, 29) may

need to be achieved "progressively".[35] A

developing country may not be expected to grant such rights as secondary

education to all children overnight, whereas a developed country like

Australia may be in a position to do so.

Implementation of the Convention

in Australia

In Australia, individuals

can only invoke rights under international treaties such as the Convention

to the extent that those rights have been implemented into domestic law.

Australia has not implemented the Convention's provisions into domestic

law. However, many of the obligations Australia has willingly assumed

in ratifying the Convention are reflected in an ad hoc manner under

domestic law. Some rights are met under existing laws. Many rights, however,

may not be guaranteed under current law and practice, such as the right

of child asylum seekers to challenge their detention before a judge or

a similar competent, independent and impartial authority (article 37(d),

Convention).

Under the Teoh principle [36] , elaborated by the High Court in 1995,

administrative decision-makers are required to take rights under the Convention

into account in decision making where the right in question is not clearly

excluded by domestic law. [37] Courts may interpret

federal legislation as complying with the provisions of the Convention

where the meaning of the legislation is ambiguous. While the Teoh principle does potentially allow for the implementation of provisions

of the Convention, it does not appear to satisfy the requirement in the

Convention that "State Parties … undertake all appropriate legislative,

administrative and other measures for the implementation of the rights

recognised in the present Convention". [38]

The Convention's

provisions are implemented in Australia through the functions of the Human

Rights and Equal Opportunity Commission. The Convention is a "relevant

international instrument" under the Human Rights and Equal Opportunity

Commission Act 1986 (Cth) which means that rights and freedoms recognised

in it are included in the definition of "human rights" for the

purposes of the Commission's functions. [39]

The Commission's

functions in relation to such human rights include:

• inquiring into

  acts of practices that may be inconsistent with or contrary to any human

  right and:
  

  • endeavouring

    conciliation to effect settlement; and

  • reporting

    to the Attorney-General where the Commission finds that a practice

    is inconsistent with or contrary to a human right
    

• promoting an

  understanding and acceptance, and the public discussion, of human rights,

  including through research and educational programmes

• reporting to the

  Attorney-General on matters relating to human rights, including action

  that should be taken by the Commonwealth to comply with international

  instruments

• intervening, with

  the leave of the court, in proceedings involving human rights issues.

The Commission, however,

is not empowered to compel government or non-government compliance with

the Convention's provisions. In addition, there is currently no national

statutory authority, such as an Ombudsperson or a Commissioner for Children

which oversees the implementation of the Convention into Australian law

and practice as is evident in other countries. [40]

5. The

Committee on the Rights of the Child

The Committee on

the Rights of the Child is established under the Convention to oversee

the progress made by State Parties in implementing the rights of the Convention.

The Committee cannot hear individual complaints.

What is

the Committee on the Rights of the Child?

The

Committee on the Rights of the Child is the United Nations body that

oversees implementation of the Convention by State Parties.

States Parties must

report to the Committee every five years about the measures they have

adopted to give effect to the Convention rights. The Committee monitors

and supervises implementation and adherence to the Convention by State

Parties such as Australia through examining the periodic reports of States

and issuing Concluding Observations on State reports or General Comments. [41] These assist Australia, and other State Parties,

in the interpretation of the Convention.

Australia's Initial

Report was considered by the Committee in 1997. The Committee's Concluding

Observation 20 expressed concern at the detention of child asylum seekers:

The Committee is

concerned about the treatment of asylum seekers and refugees and their

children, and their placement in detention facilities. [42]

To date, the Committee

has issued only one general comment - on the aims of education in article

29(1) of the Convention. The general comments of other treaty bodies,

such as those of the Human Rights Committee, may also prove useful in

interpreting provisions in the Convention which are similar to those in

other treaties, particularly the ICCPR.

Article 45 of the

Convention recognises the special competence of the United Nations Children's

Fund (UNICEF) and other United Nations organs "to provide expert

advice on the implementation of the Convention in areas falling within

the scope of their respective mandates". UNICEF has produced a guide

to the implementation of the various provisions of the Convention, which

helps explain the Convention's provisions. [43] Interpretation

of the Convention's provisions is also assisted by the Committee's general

guidelines on initial and periodic reports and other international instruments

such as the United Nations Rules for the Protection of Juveniles Deprived

of their Liberty and relevant UNHCR guidelines on refugee and asylum

seeking children, discussed below.

6. UNHCR

guidelines on refugee and asylum seeking children

Who is the

UNHCR?

The

United Nations High Commissioner for Refugees is the United Nations

body responsible for overseeing international treatment of refugees.

UNHCR is the intergovernmental

body with responsibility to provide international protection to refugees

and to find long term solutions to their problems. [44] Australia, as a State Party to the Refugee Convention, is obliged under

article 35 of that Convention to cooperate with the UNHCR in the exercise

of its functions and duty of supervising the Refugee Convention. [45]

The UNHCR has issued

a series of Guidelines on the treatment of refugee and asylum seeking

children. Although not all children held in immigration detention in Australia

are asylum seekers, most are.

The principles enshrined

in the UNHCR Refugee Children: Guidelines on Protection and Care (1994) (UNHCR Guidelines on Protection and Care) will be used in the Inquiry's

Background Papers to describe which standards should be implemented in

detention facilities. The UNHCR Guidelines on Protection and Care are

recognised internationally as appropriate standards for the protection

and assistance of refugee and asylum seeking children. The Committee on

the Rights of the Child has separately reaffirmed the importance of the

UNHCR Guidelines on Protection and Care, by noting that they were "fully

inspired by the Convention and shaped in the light of its general principles". [46] Other UNHCR Guidelines on detention and unaccompanied

children will be referred to throughout the Background Papers as relevant. [47]

Questions

for submissions

The following questions

may assist organisations and individuals in making submissions to the

Inquiry.

1. How does Australia

   meet its commitments to child detainees under the Convention and other

   relevant standards?

2. What are the

   relevant "legislative, administrative and other measures"

   in place to ensure this? Where are the gaps?

3. How are the

   "best interests" of children in detention decided?

4. How is the principle

   of non-discrimination approached? How is this principle applied to the

   various rights in the Convention in practice?

5. Can children

   (including through their parents or guardians) participate in decision

   making concerning them?

6. How is the right

   to survival and development respected in detention facilities?

7. How is the child's

   right to family life ensured?

8. How are Convention

   rights reflected in the daily programs in place in detention facilities

   for children?

Relevant

standards and guidelines

• Committee on the

  Rights of the Child, General Guidelines Regarding the Form and Content

  of Initial Reports to be Submitted by States Parties under Article 44,

  paragraph 1(a), of the Convention (1991)

• Committee on

  the Rights of the Child, General Guidelines Regarding the Form and

  Contents of Periodic Reports to be Submitted by States Parties under

  Article 44, paragraph 1(b) of the Convention (1996)

• Standards relating

  to the detention of children:
  

  • the United

    Nations Standard Minimum Rules for the Administration of Juvenile

    Justice (the Beijing Rules)(1985)
    

  • the Body

    of Principles for the Protection of All Persons under Any Form of

    Detention or Imprisonment (1988) [48]
    

  • the United

    Nations Rules for the Protection of Juveniles Deprived of their

    Liberty (1990) [49]
    

  • the United

    Nations Standard Minimum Rules for Non-custodial Measures (the

    Tokyo Rules) [50]
    

  • the United

    Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines)(1990) [51]
    

  • Executive

    Committee conclusions and general guidelines on refugee and asylum

    seeking children issued by the UNHCR, which include its:
    

    • Conclusion

      44 on detention of refugees and asylum seekers [52]
      

    • Guidelines

      on Refugee Children (1988)
      

    • Refugee

      Children: Guidelines on Protection and Care (1994)
      

    • Guidelines

      on Policies and Procedures in dealing with Unaccompanied Children

      Seeking Asylum (1997)
      

    • Guidelines

      on applicable Criteria and Standards relating to the Detention

      of Asylum-Seekers (1999)
      

    • "Statement

      of Good Practice" of the Separated Children in Europe Programme

      (Save the Children/ UNHCR) (2000).

---

ENDNOTES:

1. Article

37(b) provides: "No child shall be deprived of his or her liberty unlawfully

or arbitrarily. The arrest, detention or imprisonment of a child shall

be in conformity with the law and shall be used only as a measure of last

resort and for the shortest appropriate period of time".

2. Figures

supplied by the Department of Immigration and Multicultural and Indigenous

Affairs (DIMIA).

3. S196 Migration Act 1958 (Cth) provides that "An unlawful non-citizen

detained under s189 must be kept in immigration detention [and that t]o

avoid doubt, subsection (1) prevents the release, even by a court, of

an unlawful non-citizen from detention (otherwise than for removal or

deportation) unless the non-citizen has been granted a visa." There is

one exception in which children can be released. Since 1 September 1994,

a "bridging visa" can be issued by the Minister for Immigration and Multicultural

and Indigenous Affairs under certain guidelines. Those eligible include

children, people over 75 years of age, spouses of Australian citizens

or persons with a special health need or with previous experience of torture

or trauma.

4. Under

new regulations to deter unauthorised arrivals, introduced in 1999 and

extended through new laws passed in September 2001, including the Migration

Amendment (Excision from Migration Zone) (Consequential Provisions) Act

2001 (Cth), children and adults who arrive in an "excised offshore

place" such as Christmas Island and the Ashmore Islands are only permitted

to apply for a protection visa in Australia under a non-compellable, non-reviewable

Ministerial discretion to allow them to do so and the Minister must lay

the reasons for doing so before Parliament; s46A Migration Act 1958 (Cth). Those allowed to apply who are subsequently recognised as refugees

only receive temporary protection. The temporary protection visa subclass

contains substantial visa restrictions, including the requirement that

the refugee must reapply for another protection visa after 30 months and

will be ineligible in most cases for permanent protection (therefore denying

any possibility of full residency status or citizenship). Temporary protection

visa holders also do not benefit from the same rights as other asylum

seekers recognised as refugees and granted permanent protection such as

access to English classes, family reunion, and the ability to leave the

country and return. Further discussion of the new laws can be found in

Background Paper 7: Legal Status.

5. A

visa may be granted by Ministerial discretion under s417 of the Migration

Act 1958 (Cth).

6. These

figures are approximate only and are based on the estimated percentage

of children in immigration detention relative to total immigration detention

populations between 1999 and 2002, which approximates at 20 per cent.

For example, on 23 January 2002, there were 236 children in Woomera detention

facility and 80 children in Phospate Hill detention facility (Christmas

Island). The Inquiry will inquire into the precise numbers of children

in immigration detention since 1999.

7. These

provisions include the Border Protection (Validation and Enforcement

Powers) Act 2001, the Migration Amendment (Excision from Migration

Zone) Act 2001 and the Migration Amendment (Excision from Migration

Zone) (Consequential Provisions) Act 2001.

8. The

1967 Protocol lifted the temporal and geographic restrictions of the 1951

Convention, making the Convention applicable to all refugee situations

post-1951.

9. http://www.ohchr.org/english/countries/ratification/11.htm.

10.

See article 5, Convention.

11.

Preamble, Convention.

12.

UNHCR (1994), Refugee Children: Guidelines on Protection and Care (UNHCR

Guidelines on Protection and Care), ch 2. Article 22, Refugee Convention

provides:

"1. The Contracting States shall accord to refugees the same treatment

as is accorded to nationals with respect to elementary education.

2. The Contracting States shall accord to refugees treatment as favourable

as possible, and, in any event, not less favourable than that accorded

to aliens generally in the same circumstances, with respect to education

other than elementary education and, in particular, as regards access

to studies, the recognition of foreign school certificates, diplomas and

degrees, the remission of fees and charges and the award of scholarships."

13

Article 22(1) of the Convention provides: "States Parties shall take

appropriate measures to ensure that a child who is seeking refugee status

or who is considered a refugee in accordance with applicable international

or domestic law and procedures shall, whether unaccompanied or accompanied

by his or her parents or by any other person, receive appropriate protection

and humanitarian assistance in the enjoyment of applicable rights set

forth in the present Convention and in other international human rights

or humanitarian instruments to which the said States are Parties."

14

The Commission has asserted that the vulnerability of detained adult and

child asylum seekers and the fact that they are not held as suspects or

convicted offenders "argue strongly for the adoption of international

minimum standards for juvenile detainees where these are more favourable

than those applicable to adults, including adult prisoners. Since immigration

detainees are not held as criminal suspects or because they represent

a risk to community safety, the most lenient detention regime is appropriate."

See Immigration Detention Guidelines, Human Rights and Equal Opportunity

Commission, March 2000, available at http://www.humanrights.gov.au/human_rights/asylum_seekers.

15

See discussion of the Committee below.

16

Specifically the Committee stated that "deprivation of liberty means

any form of detention or imprisonment or the placement of a person in

another public or private custodial setting from which this person is

not permitted to leave at will by order of any judicial, administrative

or other public authority (rule 11(b))", General Guidelines Regarding

the Form and Contents of Periodic Reports to be Submitted by States Parties

under Article 44, paragraph 1(b) of the Convention (Guidelines for

Periodic Reports) adopted by the Committee on the Rights of the Child

on 11 October 1996, Part V111B(2): 20/11/96, UN Doc CRC/C/58. Similarly,

the Human Rights Committee, which supervises the ICCPR, has indicated

that corresponding article 9 is "applicable to all deprivations of

liberty, such as…immigration control": Human Rights Committee

(HRC), General Comment 8: Right to liberty and security of persons

(Art. 9), 30 July 1982.

17

See UNICEF (1998), Implementation Handbook for the Convention on the

Rights of the Child (UNICEF Implementation Handbook), UNICEF, New

York, p500.

18

Article 22, Convention.

19

UNICEF, Implementation Handbook, p 37; Fact Sheet No.10 (Rev.1), The

Rights of the Child, Vienna Declaration and Programme of Action (Part

1, para.21), adopted by the World Conference on Human Rights, Vienna,

25 June 1993, (A/CONF. 157/24 (Part 1), ch 111).

20

As UNICEF notes, the concept of "best interests" of children

has been the subject of more academic analysis than any other provision

of the Convention; see UNICEF, Implementation Handbook, p39.

21 Fact Sheet No.10 (Rev.1), The Rights of the Child.

22

Where the term "best interests" are used elsewhere in the Convention,

the "best interests" of the child may become of paramount consideration.

For example, separation from their parents in article 9(1) should only

occur where "separation is necessary for the best interests of the

child", UNICEF, Implementation Handbook, p41.

23

As required by article 4 of the Convention.

24

UNICEF, Implementation Handbook, p43.

25

Preamble to the Convention.

26

Committee on the Rights of the Child, Guidelines for Periodic Reports,

para 35.

27

Prohibition of discrimination "of any kind, irrespective of the

child's or his or her parent's or legal guardian's race … or other

status", article 2, Convention.

28

See discussion on temporary protection visas above.

29

See the comments of the Committee on the Rights of the Child to Sweden:

"The Committee is also concerned by the practice of taking foreign

children into custody under the Aliens Act and notes that this practice

is discriminatory in so far as Swedish children generally cannot be placed

in custody until after the age of 18." Concluding observations

of the Committee on the Rights of the Child : Sweden, UN Doc CRC/C/15/Add.2,

18 Feb 1993, para 9.

30

Article 12, Convention.

31

Concluding Observations on Norway's periodic report, Concluding Observations

of the Committee on the Rights of the Child : Norway, UN Doc CRC/C/15/Add.126,

28 June 2000, paras 48-52.

32

Discussed further in Background Paper 3: Mental Health and Development.

33

See articles 5, 9(1) and 18 of the Convention. Article 9(1) provides:

"States Parties shall ensure that a child shall not be separated

from his or her parents against their will, except when competent authorities

subject to judicial review determine, in accordance with applicable law

and procedures, that such separation is necessary for the best interests

of the child. Such determination may be necessary in a particular case

such as one involving abuse or neglect of the child by the parents, or

one where the parents are living separately and a decision must be made

as to the child's place of residence." See also Australia's obligation

to protect against child abuse in article 19 and article 34.

34

Article 37(b) provides: "No child shall be deprived of his or her

liberty unlawfully or arbitrarily. The arrest, detention or imprisonment

of a child shall be in conformity with the law and shall be used only

as a measure of last resort and for the shortest appropriate period of

time".

35

See Fact Sheet No.10 (Rev.1), The Rights of the Child.

36 Ah Hin Teoh: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.

37

Since 1995, three Bills seeking to reverse the Teoh decision have

passed the House of Representatives but have been defeated in the Senate.

38

Article 4, Convention.

39

See ss3(1), 3(4) and 11, Human Rights and Equal Opportunity Commission

Act 1986 (Cth). The Human Rights and Equal Opportunity Commission

Act 1986 established the Commission in 1986 and outlines the Commission's

functions and powers. Among the Commission's functions is that of monitoring

the implementation of seven international human rights instruments adopted

by Australia:

• International

  Covenant on Civil and Political Rights
  

• Declaration

  of the Rights of the Child
  

• Convention

  on the Rights of the Child
  

• Convention

  Concerning Discrimination in Respect of Employment and Occupation (ILO

  111)
  

• Declaration

  on the Rights of Mentally Retarded Persons
  

• Declaration

  on the Rights of Disabled Persons and
  

• Declaration

  on the Elimination of All Forms of Intolerance and of Discrimination

  Based on Religion or Belief.

In addition, the

Commission has responsibility for monitoring both the Racial Discrimination

Act 1975, which gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial

Discrimination, and the Sex Discrimination Act 1984, which

gives effect to Australia's obligations under the Convention on the

Elimination of All Forms of Discrimination Against Women and certain

aspects of the International Labour Organisation (ILO) Workers with

Family Responsibilities Convention, 1981.

40

See the Committee on the Rights of the Child's recommendation to Finland:

"The Committee invites the State party to seriously consider the

establishment of an independent national ombudsperson for children, taking

into account the positive experiences in other Nordic countries, and not

to let purely financial considerations determine the decision", Concluding

Observations of the Committee on the Rights of the Child : Finland,

UN Doc CRC/C/15/Add.132, 16 Oct 2000, para 20. See the Recommendation

in Australian Law Reform Commission & Human Rights and Equal Opportunity

Commission (1997), Seen and Heard, priority for children in the legal

process, Appendix D, that an Office for Children (OFC) should be established

within the office of the Prime Minister and Cabinet.

41

"At the very end of the process, the Committee adopts "concluding

observations", which are a statement on its consideration of a State's

report. Concluding observations are meant to be widely publicised in the

State party and to serve as the basis for a national debate on how to

improve the enforcement of the provisions of the Convention. They therefore

constitute an essential document: Governments are expected to implement

the recommendations contained therein." Fact Sheet No.10 (Rev.1),

The Rights of the Child.

42 Concluding Observations of the Committee on the Rights of the Child:

Australia, UN Doc CRC/C/15/Add.79, 10 Oct 1997.

43

UNICEF, Implementation Handbook.

44

Statute of the Office of UNHCR, Article 1.

45

Article 35 provides:

"1. The Contracting States undertake to co-operate with the Office

of the United Nations High Commissioner for Refugees, or any other agency

of the United Nations which may succeed it, in the exercise of its functions,

and shall in particular facilitate its duty of supervising the application

of the provisions of this Convention.

2. In order to enable the Office of the High Commissioner or any other

agency of the United Nations which may succeed it, to make reports to

the competent organs of the United Nations, the Contracting States undertake

to provide them in the appropriate form with information and statistical

data requested concerning:

(a) The condition of refugees,

(b) The implementation of this Convention, and

(c) Laws, regulations and decrees which are, or may hereafter be, in force

relating to refugees."

See also article 11 of the 1967 Protocol to the Convention. Both Resolution

428 (V) of the UN General Assembly and the Statute of UNHCR, which was

annexed thereto, called for cooperation between Governments and the High

Commissioner's Office in the performance of the High Commissioner's functions.

46

Committee on the Rights of the Child, Report on the seventh session,

UN Doc CRC/C/34, November 1994, p61. See also UNICEF, Implementation Handbook,

p282.

47

Other UNHCR Guidelines, including the Guidelines on applicable Criteria

and Standards relating to the Detention of Asylum-Seekers (1999),

Guidelines on Policies and Procedures in dealing with Unaccompanied Children

Seeking Asylum (1997) and Save the Children/ UNHCR, "Statement

of Good Practice" of the Separated Children in Europe Programme (2000)

will also be employed in considering the extent to which the detention

of child asylum seekers should occur.

48

Adopted by General Assembly resolution 43/173 of 9 December 1988.

49

Adopted by General Assembly resolution 45/113 of 14 December 1990.

50

Adopted by General Assembly resolution 45/110 of 14 December 1990.

51

Adopted by General Assembly resolution 45/112 of 14 December 1990.

52

Executive Committee (EXCOM) Conclusion No. 44 (1986) - Detention of Refugees

and Asylum-Seekers.