Terms of Reference - National Inquiry into Children in Immigration Detention

1. Terms of reference

The Human Rights

Commissioner, Dr Sev Ozdowski, conducted an Inquiry into children

in immigration detention on behalf of the Commission.

The Commissioner

inquired 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:

1. The provisions

   made by Australia to implement its international human rights obligations

   regarding child asylum seekers, including unaccompanied minors.
   

2. The mandatory

   detention of child asylum seekers and other children arriving in Australia

   without visas, and alternatives to their detention.
   

3. 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.
     

4. The impact

   of detention on the well-being and healthy development of children,

   including their long-term development.
   

5. The additional

   measures and safeguards which may be required in detention facilities

   to protect the human rights and best interests of all detained children.
   

6. 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.

"Child"

includes any person under the age of 18.

2. Reasons for the Inquiry

The Human Rights

and Equal Opportunity 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; and

• 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 Act 1986 (Cth). In the past

reporting year, the Commission has received an increase in the number

of complaints about human rights breaches involving children in immigration

detention.

One area of Commission

responsibility is the rights of children under the Convention on

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

the Convention in December 1990. The Australian government has also

included the Convention in the human rights responsibilities of the

Human Rights and Equal Opportunity Commission.

Key principles

of the Convention are:

• The right to

  survival and development.

• The best interests

  of the child as a primary consideration in all actions concerning

  children.

• The right of

  all children to express their views freely on all matters affecting

  them.

• Respect for

  the responsibilities, rights and duties of parents and families to

  provide direction to a child in the exercise of their rights.

• The right of

  all children to enjoy all the rights of the Convention without discrimination

  of any kind.

The Convention

applies to every child in Australia regardless of nationality or immigration

status and regardless of how the child arrived in Australia.

Under the Convention,

children in detention have the right to:

• family life,

  and to be with their parents unless separation is in their best interests.

• the highest

  attainable standard of health.

• protection from

  all forms of physical or mental violence, sexual abuse and

  exploitation. They also have the right to recover and be rehabilitated

  from neglect, exploitation, abuse, torture or ill-treatment, or armed

  conflicts.

• to practise

  their culture, language and religion.

• to rest and

  play.

• to primary education, and different forms of secondary education should be

  available and accessible to every child.

• appropriate protection and humanitarian assistance as an asylum seeker

  or refugee.

• not be deprived

  of their 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.

• be treated with

  humanity and respect for their inherent dignity and in a manner

  which takes into account their age.

• access to legal

  assistance and the right to challenge their detention.

• not be subjected

  to torture or other cruel, inhuman or degrading treatment or punishment.

• privacy.
• a standard

  of living adequate for physical, mental, spiritual, moral and

  social development.

The Convention

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

To access A Last Resort? - The Report of the National Enquiry into Children in Immigration Detention click here

. Last Updated 23 February

2006.