National Inquiry into Children in Immigration Detention
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Submission to the National Inquiry into Children in Immigration Detention from
United Nations Association of Australia, Victoria Division
Australia is a signatory to a number of International Conventions, which are relevant to mandatory detention of children in Australia’s immigration detention centres. Under International law, each of the conventions that Australia has ratified is binding on the Australian state, which is obliged to bring its domestic laws into conformity with their stipulations. In Australia, International Conventions do not have legal force in domestic law, and cannot be directly applied by the domestic courts in Australia, unless the Australian Parliament enacts them into legislation.
This is not to say that the International conventions ratified by Australia are without force in domestic law. It is established precedent that courts interpreting domestic laws that are ambiguous should favour an interpretation that accords with Australia’s international law obligations. In this regard we refer to the decision of the majority in the case of Teoh v Immigration and Ethnic Affairs, in which the High Court of Australia held that, Australia’s ratification of the Convention of the Rights of the Child creates a ‘legitimate expectation’ that administrative decision makers would act in conformity with the Convention and treat the ‘ best interests of the child’ as a primary consideration.
The practical significance of this however is that child asylum seekers in Australia’s immigration centres cannot seek refuge under international conventions as a direct source of rights in Australian domestic law. However, as noted by the High Court in Teoh, binding international obligations and other international standards are not of no effect. They provide a set of universal standards to be adhered to in the treatment of child asylum seekers. Mason CJ and Deane J in Teoh interpreted the requirement that a child’s best interest be a “primary consideration” as requiring a decision maker to look “to the best interest of the children as a primary consideration, asking whether the force of any other consideration outweighed it”. Hence, the relevant question to be addressed by the Australian government, in implementing its mandatory detention policy of unlawful non-citizen children should be whether the mandatory detention of child asylum seekers is in the child’s best interests? As the ensuing discussion may highlight, Australia’s policy of mandatory detention of asylum seekers violates most of the basic human rights and fundamental international standards provided under the various Conventions, ratified by the Australian state. Australia’s mandatory detention policy of unlawful non-citizens has not been adopted by taking into account the ‘best interests’ of children in immigration detention as a primary consideration.
The Preamble of the Convention of the Rights of the Child (‘CRC’) provides that children are bearers and subjects of human rights and that the family is the fundamental group unit of society, that children are best served living in supportive family environments. It recognises a child’s vulnerability and the need to special protection, when unaccompanied by an adult relative. In pursuance of these objectives, the CRC creates a series of specific obligations towards children, which must not be derogated by Australia with respect to children within its’ territory. Among these obligations, Article 22 of the Convention states that all of the rights and obligations provided for in the convention are to be enjoyed by children seeking asylum, without any discrimination whatsoever.
Article 22 (1) of CRC provides comprehensive and special protection for children who are refugees or who are seeking refugee status:
“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 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.”
This Article applies both to accompanied and unaccompanied minors and provides that children are to receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in CRC as well as other international human rights or humanitarian instruments to which the said States are parties.
Article 22 of CRC explicitly includes Australia’s obligations to asylum seeker children under the United Nations Convention on the Status of Refugees (as amended by its 1967 Protocol) (‘Refugees Convention’) [1] , International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights [2] (ICCPR) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)[3] . Australia must therefore have an effective procedure to determine the validity of an asylum seeker child’s claims, which provides protection for both unaccompanied and accompanied minors. These procedures must take into account all rights provided for in CRC, ICCPR, ICESCR, CAT and the Refugees Convention.
As a State that has ratified the CRC, Australia has a positive obligation to undertake “all appropriate legislative, administrative, and other measures” to implement the rights recognised in the CRC , when dealing with child asylum seekers. Not only does this obligation bind Australia to undertake appropriate legislative, administrative and other measures with respect to Article 22(1), but also to all rights provided for in CRC. Not only must Australia provide protection for children seeking refugee status, but in doing so it must consider its other international human rights and humanitarian obligations and must ensure that all rights in the CRC are guaranteed for asylum seeker children within its territorial jurisdiction.
Article 20 of the CRC requires that children who are temporarily or permanently deprived of their family environment shall be entitled to special protection and assistance provided by the State. This provision has direct application to unaccompanied minors in immigration detention. Guideline 8 of the UNHCR Guidelines on Child Asylum Seekers make provision for the needs of unaccompanied minors seeking asylum, that they:
“should be represented by an adult who is familiar with the child’s background and who would protect his or her interests. Access should also be given to a qualified legal representative.”
“The interviews should be conducted by specially qualified and trained representative of the refugees determination authority who will take into account the special situation of unaccompanied children in order to carry out the refugee states assessment…”
An unaccompanied minor is a person who is under 18 years of age and intends to reside permanently in Australia but arrives in Australia without his or her parents, and does not have parents in Australia. [5] There are unaccompanied minors who arrive in Australia under the “off-shore” humanitarian program (and are therefore known as unaccompanied humanitarian minors). Then there are those who arrive in Australia either unlawfully, or with some sort of temporary visa and subsequently apply for a Protection visa, and seek settlement in Australia. An unaccompanied humanitarian minor who arrives in Australia falls into two categories – ‘unattached minor’ or ‘detached minor’. ‘Unattached minors’ do not arrive in Australia in the care of a ‘close adult relative’ [6] or have a ‘close adult relative’ in Australia to care for them. Therefore, “unattached” unaccompanied humanitarian minors become wards of the Minister for Immigration and Multicultural Affairs under the provisions of the Immigration (Guardianship of Children) Act 1946 (IGOC Act).[7] ‘Detached humanitarian minors’ enter Australia with a close adult relative for the purpose of living in Australia under the care of a close adult relative. The Minister therefore has no legal responsibility for “detached” humanitarian minors.
Generally, before any decision is made to grant any class of visa to a minor, departmental officers (both “on-shore” and “off-shore”) are expected to assess whether the minor will fall within the IGOC Act, and if so, ensure that the relevant State Territory child welfare agency has undertaken to accept responsibility for the minor’s guardianship. Under the IGOC Act, the Minister shall be the guardian of every ‘non-citizen child’ who arrives in Australia. [8] Any child who arrives in Australia as a non-citizen and is under 18 and intends to become a permanent resident of Australia becomes a ward of the Minister pursuant to the IGOC Act. [9] All unaccompanied minors remain under the guardianship of the Minister until they turn 18, leave Australia permanently or become an Australian citizen. Until such time, they remain to be wards of the Minister.
If an unattached minor to whom the Minister owes guardianship obligations arrive in Australia without any authorisation, that minor becomes subject to mandatory detention. The IGOC Act applies to an “unlawful non-citizen child” who also becomes a ward of the Minister. However, he or she becomes subject to mandatory detention as a result of his or her “unlawful” status. Under Article 20 of the CRC, Australia owes an obligation to provide special protection and assistance to all unaccompanied minors within its jurisdiction (without discrimination of any kind, irrespective of the child’s unlawful status (Article 2 (1) of CRC). Under Australian immigration policy, an unlawful non-citizen child is subject to detention while a lawful non-citizen child is able to enjoy the “special protection” he or she is provided as a result of being a ward of the Minister to the full extent possible. It can therefore be argued that Australia is in breach of Article 20 in that it fails to provide “special protection” to unlawful non-citizens. By providing for lawful unaccompanied minors to enjoy the benefits associated with being wards of the Minister and restricting that “special protection” for unaccompanied minors who arrive in Australia unlawfully (and making them subject to mandatory detention), Australia’s immigration policy discriminates between lawful and unlawful unaccompanied minors within its jurisdiction and therefore, is in contravention of Article 2(1) of the CRC.
An underlying objective of international law relating to children is the recognition of their special vulnerability and their susceptibility to be permanently damaged by their childhood events. [11] It has been considered by the UNHCR, that detention environments are undesirable for vulnerable groups such as women, children and unaccompanied minors. [12] Australia’s Migration Act 1958 (Cth) requires that asylum seekers who arrive without valid authorisation are “unlawful non-citizens ” [13] pursuant to s189 of the Act and are therefore subject to mandatory detention. Such “unlawful non-citizens’ are then required under the Migration Act 1958 (Cth) [14], to be kept in immigration detention until they are removed from Australia, deported or granted a visa. The effects of children growing up in detention and the effects of prolonged detention on their survival and development are a grave concern, especially when one considers the substandard conditions and the frequently reported violence in Australian detention centres.
It is considered that detention for purposes of establishing the identity of an asylum seeker, or for security tests, is acceptable. [15] ExCom Conclusion 44, states that detention of asylum seekers is deemed necessary only to verify the identity of a person, and determine the elements on which the claim for refugee status or asylum is based, to deal with situations where asylum seekers have destroyed their travel or identity documents to mislead the authorities of the state in which they intend to claim asylum (i.e. Australia). Australia’s detention of asylum seekers (including both accompanied and unaccompanied minors) is mandatory and applies to all unauthorised arrivals until their claims for protection are finally determined. It seems that Australia’s present detention policy goes well beyond what ExComm Conclusion 44 deems as necessary. The detention of persons (including children) for the entire duration of a prolonged asylum procedure is not justified in whatever circumstances. Australia’s system of mandatory detention has also come under criticism by the Committee on the Rights of the Child, which has expressed concern “about the treatment of asylum seekers and refugees and their children, and their placement in detention centres.” [16]
Australia’s mandatory detention policy is in clear breach of Article 37(b) of CRC, which provides that “no child shall be deprived of his or her liberty unlawfully or arbitrarily”. Such arbitrary deprivation of liberty is also prohibited by Article 9(1) of ICCPR, which guarantees that everyone has the right to ‘liberty’ and any deprivation of liberty must be on grounds and in accordance with procedures established by law. However, the United Nations Human Rights Committee has considered Australia’s policy of detaining unauthorised arrivals in the case of A v Australia and concluded that the policy was not in breach of the ICCPR. [17] However, it is important to note that Article 37 (b) of CRC takes the prohibition of arbitrary detention one step further than Article 9(1) of ICCPR and requires that the detention of a child is to be used only as a measure of last resort and for the shortest period of time.[18] The recent Federal Court case of Jaffari v Minister for Immigration and Multicultural Affairs (2001) FCA 1516 (26 October 2001), similarly rejected the detention of minors. The Court further added that if children are to be detained, they should be detained only as a last resort and for the shortest appropriate period of time. It was held that while in detention children should have the benefit of special arrangement which are oriented towards “care; not “detention”. Prison-like conditions must be avoided, and facilities “should not be located in isolated areas where culturally appropriate community resources and legal access may be unavailable.”
An assessment of the shortest appropriate period of time is to be made in consideration of the ‘best interests’ of the child as provided by Article 3 of CRC. By ratifying the CRC, Australia has undertaken to ensure that where an administrative decision is being made as to whether or not to arbitrarily detain a child, that decision will be made in conformity with the Convention and the best interests of the child will be a primary consideration. Australia’s regime of mandatory detention (for adults and children both) which can sometimes prolong for over periods of five years is in clear breach of Article 3 of CRC as it is clearly not in the best interests of a child.
Mandatory detention could also amount to a breach of Article 22 of CRC, as it does not provide appropriate protection and assistance for minors seeking asylum by upholding the rights enshrined in the CRC. Children require a special measure of protection. In particular, freedom from arbitrary detention is a fundamental human right and the use of detention is in many instances, contrary to the norms and principles of international law. [19]
Australian law does not allow individual circumstances of detention of non-citizens and the reasonableness and appropriateness of detaining individuals to be determined by courts. [20] This in turn amounts to a breach of Article 37 (d) of CRC, which provides that “every child deprived of his or her liberty has a right to prompt access to legal and other appropriate assistance as well as a right to challenge the legality of the deprivation of liberty before a court or other competent, independent and impartial authority”. [21] In the case of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [22] it was held that domestic courts had no power to release asylum seekers lawfully held in detention. Nevertheless, it should be borne in mind that the current immigration laws are an improvement of the law in force at the time Lim was decided. In any event, judicial review of detention in Australia remains limited.
Under the Migration Act 1958 (Cth), children in detention (including unaccompanied minors) are provided release for a Bridging visa E, sub class 050 only on extremely restrictive criteria. [23] An unlawful non-citizen child under 18 years of age who comes within regulation 2.20 can be released from detention pending consideration of an application to remain in Australia, where it is considered to be in the ‘best interests’ of the child to be released into the care of an Australian citizen, Australian permanent resident or New Zealand citizen. The grant of such a visa should not prejudice the rights and interests of a person who has custody, guardianship or access to the non-citizen child. Further, a child welfare authority of a State or Territory needs to certify that the release from detention is in the best interests of the non-citizen child. [24] Keeping in mind the principle of family unity (provided in the Preamble of the CRC) and the best interests of the child, it should also be considered whether the release of a child from detention (when his or her parents or legal guardian remain in detention) is really an appropriate option in light of the requirements of the CRC.
A child released from detention would be denied the protection and assistance of his or her parents and would amount to a breach of Article 9(1) of CRC, which requires that states parties ensure that a child shall not be separated from his or her parents against their will. Not only does Australia subject those accompanied and unaccompanied children to mandatory detention when they arrive at its shores unlawfully but it permits the release of accompanied detainee children in a manner which makes it effectively impractical and undesirable. In effect, whether a child is detained (with his or her parents) or is released to the community (whilst the parents remain in detention), Australia remains to be in breach of its obligations under the CRC.
In recent times there has been much media publicity about sexual harassment allegations of children by other male detainees and detention centre staff, suicide attempts and riots in detention centres. The general environment in immigration detention centres and recurring themes are overcrowding, frustrations from delays in processing and problems associated with co-location of a large number of single males with families. The distress in detainees is evident in the number of reports of self-harm, suicide attempts and the damage to detention center equipment as well as self-imposed hunger strikes and tensions between the different ethnic groups. Children who live in detention environments are undoubtedly exposed to these tensions. The reported incidents of violence inflicted on children points to a clear breach of Article 37(c) of CRC, which requires that every child deprived of his or her liberty be treated with humanity and respect for the inherent dignity of the human person. [25]
A child’s psychological well-being during detention is often threatened and incapacitated with many children being subject to depression and anxiety. Children go about their daily lives being sad, lacking in energy and being apathetic of their surroundings. It has been concluded by psychologists that children in detention suffer from psychosomatic symptoms of anxiety and are restless and have problems concentrating and most often they are filled with memories of distressing events they have experienced in their home country. A failure to treat torture or trauma promptly and effectively in detention centres violates detainee children’ rights under Article 39 of CRC. A primary issue affecting the welfare of children is the length of time spent in detention (until the whole refugee determination process is completed). The attempted suicides, hunger strikes, violence and sedation of detainees prior to being removed affects children in whose presence it occurs and this has led to anxiety, profound depression and helplessness which are common psychological states in child detainees. Prolonged detention stifles a child’s development and clearly hinders on the child’s right to survival and development provided by Article 6 of CRC.
Children have a right to education and this right should continue without interruption during detention. (Refer to Appendix 1 – Recommendations on the Provision of Education to Children in Immigration Detention Centres) Contrary to Australia’s obligations under Article 28 of the CRC, school attendance is not compulsory in immigration detention centres. Article 28 requires that states parties recognise the right of the child to education. State schools are unwilling to accept asylum seeker children as government funding is not allocated to such children. Further they have difficulty in integrating to mainstream community activities such as schooling as a result of them being frequently referred to as living “in jail.” [26] A failure to provide an education which aims to develop respect for the child’s cultural identity, language and values during detention further amounts to a contravention of Article 29 of CRC. Limited access to education negatively impacts upon a child’s development and ability to integrate and also leads to a hindrance of a child’s right to survival and development (Article 6(2)) of the CRC.
Further, a failure to provide a standard of living, which ensures physical, mental and social development, in light of the abovementioned conditions in detention, breaches Article 27 of CRC. Article 27 of CRC, requires Australia to take appropriate measures which ensures a standard of living which is adequate for a child’ physical, mental, spiritual, moral and social development. By taking measures to ensure such a standard of living, Article 6 of CRC, which requires states parties to ensure to the “maximum extent possible the survival and development of the child” is also upheld. There have been further concerns with respect to the lack of appropriate health standards in detention centres and many writers have argued that these conditions are also in contravention of Articles 24 and 31 of the CRC. [27]
The CRC’s protection extends to every child within the jurisdiction of a State Party to the Convention. Article 2(1) of CRC requires that each child within the State’s jurisdiction should be treated “without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s …status”. Further, Article 2(2) states that children should be 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”.[28] Hence, a child should not be penalised (as in the case of mandatory detention) due to exigencies of the status of his or her family, expressed opinions (including political opinion) or beliefs and decisions of his or her parents. As all children within the Australian jurisdiction, asylum seeker children should not be discriminated (and therefore be subject to mandatory detention) as a result of either their or their parents’ and legal guardians’ “unlawful non-citizen” status.
It is clearly evident from the above discussion that Australia’s mandatory detention of unauthorised arrivals is in absolute breach of its international human rights obligations, in particular the CRC. Australia’s policy of mandatory detention and the environment of the detention centres are in contravention of most of the positive obligations imposed on the State by the Convention. There should be a presumption against detention and detention should only take place after a full consideration of all possible alternatives or when monitoring mechanisms have been demonstrated not to have achieved their lawful and legitimate purpose. [29] The UNHCR Guidelines pertaining to the detention of asylum seekers provide various alternatives to detention. It provides for an alternative for asylum seekers to live in mainstream community as long as they comply with periodic reporting requirements during the status determining procedures. [30] Alternatively, asylum seekers could be released out of detention provided that they reside at a specific address or within a particular administrative region until their status has been determined. However, this alternative has potential difficulties with respect to an individual’s choice of residence, where proximity to work, relatives (especially in the event of family reunification) could pose a problem. [31] A further alternative is where asylum seekers would be required to provide a guarantor who would be responsible for ensuring their attendance at official appointments and hearings, failure of which would result in a penalty, most likely the forfeiture of a sum of money, levied against the guarantor. [32]
Article 22 of the CRC offers wide protection for asylum seeker children by providing for protection through a State’s refugee determination process as well as the state’s other international human rights and humanitarian obligations. It is important to note that this submission does not conclude that detention per se is in breach of Australia’s international obligations. Rather, it is the issue of prolonged detention of children and families in Australia’s immigration detention centres that needs to be addressed. The lengthy processing times is a factor which results in prolonged detention of asylum seekers. Although this submission does not consider alternatives to detention, a possible suggestion to ameliorate the issue of prolonged detention could be that the Australian Immigration procedures adopt a system, which requires character and health checks of asylum seekers to be completed before a decision is made on whether an applicant satisfies the relevant visa criteria to be granted a Protection visa.
Further, the under Australia’s present immigration system, Protection visas are granted on the basis that an applicant satisfies the definition of a “refugee” as found in Article 1 of the Refugees Convention. The broader humanitarian obligations provided under the CAT, ICCPR or CRC are incorporated into Australia’s refugee determination process only at the stage of ministerial intervention. Therefore applicants who do not fall within the definition of “refugee’ still go through this channel of applying for ‘refugee status’ (and be rejected) before they can apply for Ministerial Intervention pursuant to section 417 of the Migration Act 1958. The lengthy processing times in such instances suggest that it could well be three to four years before the claims of such an applicant who does not come under the Refugees Convention (but falls within the broader humanitarian obligations), would be heard. Under the present system, even if a child clearly does not come within the refugee determination process he or she needs to go through the refugee determination channel to apply for Ministerial intervention. Once the Minister refuses, there is no review right for a child asylum seeker applicant and therefore the Migration Act 1958 (Cth), needs to be amended so that it incorporates Australia’s wider humanitarian obligations as a separate ground for protection, so that both child and adult asylum seekers could access this ground in the first instance. It is perhaps time to introduce a separate visa sub class dealing with ‘non-refugee humanitarian obligations’ into the Migration Regulations, which takes into consideration the Torture Convention, CRC and the ICCPR. This in turn would result in shorter processing times for those asylum seekers (and their children) or unaccompanied minors whose broader humanitarian claims under CAT, ICCPR or CRC, being heard at the primary level
As noted above, the area in Australia’s immigration policy, which attracts most criticism in its mandatory detention policy. The punitive treatment of unauthorised asylum seekers who become subject to mandatory detention combined with the conditions in detention amounts to a wide range of breaches of Australia’s CRC obligations. Punishment is clearly at odds in an environment of children seeking asylum. Through punitive measures such as mandatory detention, Australia tries to curtail the increasing number of unauthorised asylum seekers. As Phillips argues “detention objectifies the individual who is then used to ‘send a message’ back home that is rarely listened to by other desperate people who continue to look for wards to find safety from danger.” [33] In light of the extensive breaches of the CRC and the effects of detention on children’s’ psychological development, it is clearly evident that alternatives to detention need to be considered and implemented.
Prepared by:
STUART J. WHITMAN & UDARA JAYASINGHE
Human Rights Committee
United Nations Association of Australia (Victoria Branch)
Appendix 1
Recommendations on the Provision of Education to Children in Immigration Detention Centres
The Right to an Education – A National Commitment
In 1999 the 10th Ministerial Council of Education produced a Declaration on National Goals for School in the Twenty-First Century (the Adelaide Declaration). Through this document the State and Commonwealth governments not only provide broad directions for schooling but also express a common set of educational principles to which Australia is committed.
Article 3 of the Declaration commits Australia to schooling that is “socially just”. It states explicitly under section 3.1 that, “student’ outcomes from schooling are free from the effects of negative forms of discrimination based on sex, language, culture and ethnicity, religion or disability; and of differences arising from students’ socio-economic background or geographic location.”
While the Adelaide Declaration Preamble affirms that ‘each citizen’ develop ‘knowledge, skills and values for a productive and rewarding life in an educated, just and open society’ it is arguable that the Declaration’s commitment to anti-discrimination extends this requirement to all minors under the care of the State regardless of citizenship (refer to Immigration (Guardianship of Children) Act 1946 on pages 4-5 of this submission).
Article 26 (1) of the Universal Declaration of Human Rights establishes the right to education for everyone while Article 26 (2) states that education ‘shall be directed to the full development of the human personality and to the strengthening of respect for human rights…’ The prison-like environment of the Immigration Detention Centres is not conducive to producing an education that fully develops human personality or strengthens respect for human rights.
American educationalist John Dewey argued against the military regimentation of pupils. [34] A schooling environment that asserts conformity in its pupils restricts an individual’s freedom to learn and express themselves. Concerns about the psychological impact of the long-term confinement of children in the Immigration Detention Centres aside, the provision of schooling inside these regimented facilities is unable to fulfil the needs of the children to “frame purposes, to judge wisely, to evaluate desires by the consequences that will result from acting upon them…[35] ” The restrictions placed upon freedom of movement, judgment and expression in the Detention Centres are directed toward social control and not the development of self-control or self-awareness in the children. It is difficult to see how Article 13 of the Convention on the Rights of the Child can be realised in this kind of environment.
This article states that, “The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.” The ability to make choices is very important in the development of human personality. It has increasingly become a guiding value in teaching and learning methodology in Australian schools. The student’s ability to make choices in his or her learning is critical to engaging a student’s interest and developing effective and independent learning skills through reflection. The capacity to make informed choices and to express those choices is an integral human quality. Paulo Freire refers to this as the process of ‘humanisation’. [36] Human beings become responsible for their decisions and are not treated as objects of decisions by those in power. [37] Freedom, he argues, is the ‘indispensable condition’ required for the realisation on one’s humanity. [38] The curtailment of the freedoms of the children in detention with respect to their education only serves to dehumanise them further in addition to the psychological impact of their confinement.
The Human Rights Committee of the United Nations Association (Victoria Division) is gravely concerned that the most fundamental right of children to learning and personal development through self-expression is not being met in the Immigration Detention Centres. These Centres are dehumanising environments detrimental to the psychological health and growth of the children. The provision of an anti-discriminatory, relevant and engaging curriculum based on nationally agreed standards and taught by qualified teachers supported with adequate resources will contribute to the skills, self-esteem and dignity of the children. While it would not alleviate all problems associated with detention, it would help to lessen the distress, boredom and alienation of the children while in detention and meet Australia’s international convention obligations. The Human Rights Committee of the United Nations Association (Victoria Division) calls upon the appropriate State and Commonwealth authorities to implement the following recommendations.
Recommendations
1) That minors in Immigration Detention Centres be afforded free and equitable access to schooling as all children in Australia and that this schooling be based upon the curriculum standards and framework of the state within which they reside.
2) That emphasis is placed upon the development of literacy and numeracy skills under a modified English as a Second Language program.
3) That children be given the opportunity for self-expression through lessons in music, art and story-telling in their own language, empowered to express their ideas through media of their choice.
4) That time is allocated for play, sport and games.
5) That this schooling shall take place externally to the Immigration Detention Centre either using the facilities of a local school or community centre.
6) That qualified teachers with expertise in ESL or multicultural education undertake the lessons working in partnership with a number of suitably qualified parents to act as teacher’s aides.
7) That the Ministerial Council on Education, Employment, Training and youth Affairs (MCEETYA) establish a Taskforce on Education of Children in Immigration Detention Centres to develop a national strategy to provide effective and relevant education to minors detained in these centres and to oversee the strategy’s implementation.
8) That this task be undertaken in consideration of Australia’s international obligations under the Universal Declaration of Human Rights and the Convention on the Rights of the Child, in the spirit of the Adelaide Declaration on National Goals for School in the Twenty-First Century and to incorporate the other recommendations of this submission.
1. Australia ratified the Refugees Convention on 22 January 1954 and its Optional Protocol on 13 December 1973. See http://www.unhcr.ch
2. Australia acceded to the ICCPR on 13 November 1980. See http://www.unhcr.ch
3. Australia ratified CAT on 7 September 1989. See http://www.unhcr.ch
4. Article 4, CRC
5. DIMA, Procedures Advise Manual, division 12, LBC Legend Series (in effect from 10/08/01)
6. A close adult relative is a grandparent, brother, sister, uncle or aunt of the unaccompanied humanitarian minor
7. DIMA, Procedures Advice Manual at 12.2.5, LBC Legend Series (in effect from 10/08/01)
8. Section 6 of the IGOC Act 1946 as the guardian, the Minister has the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently.
9. Section 4AA(1) states: “subject to subsections (2) and (3), a person is a non-citizen child if the child: (a) has not turned 18; and (b) enters Australia as a non-citizen; and (c) intends or is intended, to become a permanent resident of Australia.
10. DIMA, Procedures Advice Manual, Part 1, Division 1.2 at 4.11.2, LBC Legend Series (in effect from 10/08/01)
11. see ‘Introduction – paragraph 1of the UNHCR Guidelines on applicable Criteria and Standards relating to the Detention of Asylum Seekers – found at
12. Ihttp://www.unhcr.ch/issues/asylum/guidasyl.htmbid
13. Migration Act 1958 s 14(1) states that a non citizen in the migration zone who is not a lawful non-citizen is an unalwful non citizen.
14. Section 196 of the Migration Act 1958
15. Guideline 3, “UNHCR’s Guidelines on Applicable criteria and Standards relating to the Detention of Asylum Seekers.” - found at http://www.unhcr.ch/issues/asylum/guidasyl.htm
16. CRC/C/15/Add.79 (10 October 1997)
17. Flood Phillip, “Report of Inquiry into Immigration Detention Procedures” (February 2001) – commonly known as the ‘Flood Report”,p 5
18. Article 37(b) of CRC has an equivalent provisions in the Refugees Convention – Article 31(2) which prohibits the placing of restrictions on the movement of refugees other than those necessary, until a person’s status is regularised or they obtain admission to another country.
19. see ‘Introduction – paragraph 1of the UNHCR Guidelines on applicable Criteria and Standards relating to the Detention of Asylum Seekers – found at http://www.unhcr.ch/issues/asylum/guidasyl.htm
20. Catholic Commission for Justice, Development and Peace “Hordes or Human Beings?” Discussion Paper, 8 March 2000, p 19
21. Article 37(d) of CRC has equivalent content in Article 9(4) of ICCPR
22. (1993) 110 ALR 97
23. According to regulation 2.20, detainees can access a Bridging Visa E (051) and be granted such a visa if an exceptional circumstance exists and they: are under 18 years old (including unaccompanied minors) and it is considered to be in their best interests; or are over 75 years old; or have a medical condition which cannot be adequately treated in detention; or are a spouse of an Australian citizen, see also s 73 of the Migration Act 1958 (Cth)
24. Regulation 2.20 (5) of Migration Regulations 1994. The relevant Child Welfare Authority in Victoria is the Department of Human Services, - see X v Minister for Immigration and Multicultural Affairs (1999) FCA 995 (23 July 1999)
25. Article 37 (c): “Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances”
26. Tashkoff, Stephanie “Children as Asylum Seekers in Australia, (December 2000) Rights Now, p 7
27. Ibid at 8
28. This non-discrimination provision is also mirrored at Article 26 of ICCPR: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
29. Guideline 4, UNHCR guidelines on applicable criteria and standards relating to the detention of Asylum Seekers (1997)
30. Ibid: “Alternatives to Detention”. An NGO or community group could be expected to ensure that the asylum seeker reports to the authorities periodically and complies with the status determination procedures and keeps up with appointments
31. Ibid
32. Of course, when there is evidence to show that the asylum seeker has criminal antecedents and affiliations, which are likely to pose a risk to public order or national security, then detention may be a reasonable option until the appropriate security checks are performed.
33. Phillips (Above n 80) p 301
34. John Dewey “Experience and Education” Simon & Schuster New York 1938 p.61
35. Ibid 1938 p.64
36. Paulo Freire “Pedagogy of the Oppressed” Continuum New York 1970 pp.25-26
37. Ibid 1970 pp.25-26
38. Ibid 1970 p.29
Last Updated 14 July 2003.