Statement to Senate Estimates, 24 February 2015

(Check against delivery, 24 February 2015)

The Report of the Commission’s Inquiry into the impact of immigration detention on children, The Forgotten Children, has now been tabled in Parliament and is available to the public– more than three months after it was provided to the Government. The Inquiry took place from January 2013 to October 2014, covering the periods of both the former and current governments. The bipartisan nature of government responsibility is clear on any fair reading of this balanced and objective Report.

The medical and other data in the Report provide credible and objective evidence that mandatory, prolonged, often isolated and indefinite detention, has a significantly damaging effect on children.

On the latest figures available to the Commission, about 330 children remain in closed detention in Australia and Nauru. The Commission wholeheartedly welcomes the release by the Government of about 700 children over the last few months. We hope that our Inquiry has played some role in encouraging this change in policy.

In recent weeks, issues have been raised about the decision by the Commission to conduct a national Inquiry into the impact of prolonged immigration detention on children.  I would like to respond to these concerns by setting out the Commission’s statutory functions and the work of the Commission in respect of children in detention and by explaining why the Inquiry was called.
In summary, the Inquiry was called in response to mounting concern about  the impact of prolonged detention of children, the length of detention and the significant numbers that remained in detention.

The documents we have given you show that while I regularly discussed concerns about children in immigration detention with ministers for immigration, I did not specifically refer to the proposed review or inquiry with any minister in the previous government.

If the Senate was confused about this at the last Estimates, the documents provided address this issue squarely and, I believe, there need be no further misunderstanding.

The AHRC has been on record since mandatory detention was first introduced in 1992, reporting to Parliament that prolonged detention of children amounts to arbitrary detention under the ICCPR and the CROC. The law is well settled : arbitrary detention without charge or trial by our peers, is contrary to the rule of law and to the international obligations to which Australia has agreed.

The aim of the Inquiry was not to revisit this well recognized law but rather to conduct an indepth assessment of the medical and developmental impacts on children of lengthy immigration detention. 

The Australian Human Rights Commission Act 1986 provides the Commission with functions to inquire into:
‘any act or practice that may be inconsistent with or contrary to any human right”. 

A ‘human right’ is defined by reference to certain human rights treaties to which Australia is a party, including the ICCPR and the CROC. These treaties have not been legislated directly as part of Australian law by Parliament. The consequence is that, while the government of the day may act according to Australian laws, these actions may well be contrary to our international legal obligations.

In the absence of laws that apply international human rights in Australia, the Commission provides a vital and respected check and balance to ensure our democracy is a just one.
With this legal background I would like to turn to issues that have been raised about the  Inquiry.

The Commission has worked tirelessly over the last decade, up to and including 2013, reporting on the failure of both governments of the time to comply with their international obligations.

I seek to table a document that summarises the more than 180 separate pieces of work completed by the Commission on immigration detention and asylum seekers over the past five years.

In July 2012, my predecessor, the Hon Catherine Branson reported the results of her Inquiry into the Age determination process for children held in detention.

Following that Inquiry, the Commission was fully committed to a program of action:

• Conducting monitoring visits to detention centres in mainland Australia and Christmas island; within 8 weeks of my appointment in July 2012, I was at Villawood Detention Centre and 4 weeks later I was on Christmas Island interviewing children and their families. The Report of these visits was the first of three such reports in my first 15 months as President.
• The Commission issued 36 reports to Parliament in relation to 89 complainants between 2010-2014 in respect of immigration detention and asylum seekers, each of which must be independently assessed.
•  Providing a Report in October 2013 to Parliament -the “Snapshot Report”- which considered the continued detention of the children
• Providing submissions to Parliamentary Committees examining proposed changes to the Migration Act and other Acts
• Intervening in High Court matters relating to the detention of asylumer seekers, (CPFC and Megaming v The Queen)
• Meeting Ministers of Immigration raising our concerns about children in detention centres in Curtin, Manus Island and Christmas Island, the situation of unaccompanied minors and a repeated urging of the government to ensure that the detention of children is a matter of last resort. My records show that issues relating to children in detention were raised in every meeting that I had with the Minister.

Secondly, questions have been raised about the precise timing of the Inquiry. I shall try to be as clear as possible.

The decision to hold an Inquiry was one that evolved gradually over time and reflected many factors; of overarching importance were the high numbers of children held in detention, numbers that fluctuated considerably over many months, other factors were the increasing periods of time for which the children were being held, the forthcoming election in September when information would not be available, the on going planning process throughout 2013 that envisaged a review of the last 10 years detention policy, and finally, the need to ensure the Commission had the necessary resources to conduct an Inquiry.

Good governance of the Commission requires annual planning. We are not able to drop all current projects to start an Inquiry without advance planning. The Commission confirmed its work plan for 2013-14 on 26 June 2013. The program of work envisaged:

• a ‘snapshot’ report on the state of the immigration detention system (completed September 2013)
• a revamp of our web materials and fact sheets (completed by late 2013)
• a ‘10 year review’ of the situation of children in detention to commence only once the above activities were completed and subject to resources.

On 12 December 2013, the Commission formally approved an updated project plan for the 10 year review that proposed it take the form of a full Inquiry with powers to compel the production of evidence. The long planned Review – now an Inquiry- was all the more important in light of the worsening condition of the children as their period of detention lengthened.

The first official notification that the Commission was considering undertaking a 10 year review was provided to Minister Morrison and the Secretary of the Department of Immigration and Border Protection on 19 and 20 November 2013 respectively. The exact form the review would take was not discussed.

The Commission notified the Attorney-General, as well as the Department of Immigration and Border Protection of the inquiry on 22 January 2014 and provided them with the proposed terms of reference for the inquiry.

Senators, I wish to table a further document that relates to the Inquiry. This contains two graphs which detail the number of children in detention over time, and the length of time that were detained.

The graphs show the following:

• Between the peak time in July 2013 and October 2013, the former government released about 800 children. There was ni urgency to call an Inquiry at that time. After the initial significant reduction in the number of children in detention up to October 2013, the numbers stagnated.
• When the inquiry was publically announced in February 2014, there were 1138 (including Nauru) children in closed detention, about the same number as the previous October 2013. In short, very few childrenwere being released.
• Significantly, the period of time for which they were being held was lengthening.
• In October 2013, it became clear that children were being held on average for 4.6 months. That time period has continued to grow such that when the Report of the Inquiry was presented to the Attorney in November last year, the time children had spent in detention had blown out to over 14 months. 
• These facts confirmed that the Commission’s planned 10 year Review was still appropriate.

The documents we have given you confirm my advice to this Senate Committee that I regularly discussed concerns about children in immigration detention with all ministers for immigration.
In summary, the Inquiry was called because of the significant numbers of children held in immigration detention and the lengthening period of time for which they were held. These factors led to the long planned 10year review to be upgraded to a full Inquiry.

Over the last 10years, the Commission’s has extensive work in this area documents beyond doubt the trauma and damage that is being inflicted on children.
Australians can now read our Report and make up their own minds about the consequences of the continued breach of our international obligations to these children.

May I ask that members of the Senate read the Report and consider the findings and act on the recommendations we have made. The Commissioners and I are happy to answer any questions you may have.