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5 What does the law say about detaining children?

Both domestic and international human rights law are clear when it comes to the detention of children. The detention of a child must only be a measure of last resort.[96]

In fact, section 4AA of the Migration Act explicitly states that ‘a minor shall only be detained as a measure of last resort’.

Contrary to this principle however, in practice the detention of children is the first action of the Australian Government. By requiring the mandatory detention of all non-citizen children in Australia without a valid visa, the law as it currently stands, results in ‘exactly the opposite’ of what is required.[97]

If a government decides that detention is necessary and that there are no acceptable alternatives, there are a number of legal requirements which must be satisfied. Detention must be lawful, must not be arbitrary, and must only be for the shortest appropriate period of time (Convention on the Rights of the Child, article 37(b)).

This chapter discusses each of these three legal requirements and assesses current policy and practice against them. This chapter also discusses the requirements of the Convention on the Rights of the Child and sets out the minimum obligations necessary to comply with Australia’s duty of care to children in detention; the positive steps that Australia is required to take to ensure that children can develop and thrive; and the ways in which decisions should be made in relation to children.

5.1 Mandatory detention and lawfulness

Australia has had a system of mandatory immigration detention since 1992.[98] This means that any non-citizen who is in Australia without a valid visa must be detained.[99] The Migration Act refers to such people as ‘unlawful non-citizens’.[100] Unlawful non-citizens may have arrived in Australia without a visa, or they may have arrived in Australia with a visa which has later expired.

If unlawful non-citizens arrive in Australia by sea, they are referred to as ‘unauthorised maritime arrivals’.[101] Unlawful non-citizens (including unauthorised maritime arrivals) who are detained may only be released from immigration detention:

(a) if they are granted a visa,[102]

(b) if they are moved into Community Detention,[103] or

(c) if they are being removed from Australia.[104]

The first two options are only available at the personal discretion of the Minister for Immigration and Border Protection. Asylum seekers who have arrived by boat may not apply for any visa unless the Minister considers that it would be in the public interest to allow a visa application.[105] The Minister generally has the power to grant a visa of any class to a person who is in immigration detention.[106] However, the Migration Act provides that the Minister does not have a duty to consider whether to exercise this power, even if a request is made by a person in immigration detention.[107]

The Minister also has the power to make a residence determination in favour of a person in immigration detention.[108] The residence determination scheme is more commonly referred to as Community Detention. Again, this is a power that may only be exercised by the Minister.[109] The Migration Act provides that the Minister does not have a duty to consider whether to exercise this power, even if a request is made by a person in immigration detention.[110]

Under current legislation, asylum seekers who arrive by boat must be taken ‘as soon as reasonably practicable’ to a Regional Processing Country unless the Minister determines otherwise.[111] Under a combination of policy and law, this scheme of offshore processing applies to all people who arrived by boat, on or after 19 July 2013.

If a person in immigration detention is not granted a visa or a Community Detention placement, then they may continue to be detained while arrangements are made to remove them from Australia.

The High Court has held in Al-Kateb v Godwin that it is not contrary to Australian law to keep a person in immigration detention even if the removal of that person from Australia is not reasonably practicable in the foreseeable future.[112] This has been interpreted as authorising immigration detention for an indefinite period of time. For example, the Department of Immigration and Border Protection submitted to the Inquiry that, as a result of this decision, ‘there is no time limit on the lawfulness of detention under Australian law’.[113]

However, a more recent unanimous judgment of the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection casts some doubt on indefinite detention.[114] In this case, the Court confirmed that the Migration Act does not authorise detention at the unconstrained discretion of the Executive. Detention under the Migration Act can only be for the purposes identified in the Act.

The purposes for which a person can be detained under the Migration Act are as follows: determining whether to permit a person to apply for a visa; assessing whether a visa applied for should be granted; and removing a person from Australia. In each case, the purposes must be ‘pursued and carried into effect as soon as reasonably practicable’ and the duration of lawful detention is ‘fixed by reference to what is both necessary and incidental’ to carrying out those purposes.[115]

These recent statements by the High Court suggest an interpretation of domestic law that is more in line with a prohibition on arbitrary detention.

The United Nations Committee on the Rights of the Child has expressed deep concern about Australia’s policy of mandatory detention and repeatedly recommended that Australia bring immigration and asylum laws into conformity with the Convention on the Rights of the Child.[116] Similarly, the United Nations Committee against Torture and the United Nations Human Rights Committee have expressed concern and recommended that Australia abolish mandatory detention.[117]

5.2 Arbitrariness

International human rights law requires that detention must not be arbitrary.

Arbitrariness includes elements of inappropriateness, injustice or lack of predictability.[118] To avoid being arbitrary, detention must be necessary and reasonable in all the circumstances of the case, and a proportionate means of achieving a legitimate aim.[119] If that aim could be achieved through less invasive means than detaining a person, their detention will be arbitrary.[120]

The detention of children must be judged in every individual case against legitimate aims which justify detention.

Successive Australian Governments have emphasised that detention is not used as a deterrent to potential asylum seekers.[121] Deterrence is not a legitimate aim which justifies detention.

The Commission acknowledges that use of immigration detention may be legitimate, in some circumstances, for a strictly limited period of time. For example, in particular cases, a brief period of detention may be necessary to conduct health, security and identity checks.[122] In order to avoid detention being arbitrary, however, there must be an individual assessment of the necessity of detention for each person, taking into consideration their individual circumstances. A person should only be held in an immigration detention facility if they are individually assessed as posing an unacceptable risk to the Australian community, and if that risk cannot be met in a less restrictive way. Otherwise, they should be permitted to reside in the community while their immigration status is resolved – if necessary, with appropriate conditions imposed to mitigate any identified risks.

The United Nations Human Rights Committee published a Draft General Comment on arbitrary detention under article 9 of the International Covenant on Civil and Political Rights as follows:[123]

Detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in light of the circumstances, and reassessed as it extends in time. Asylum-seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims, and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual, such as an individualized likelihood of absconding, danger of crimes against others, or risk of acts against national security. The decision must consider relevant factors case-by-case, and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties, or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review. The decision must also take into account the needs of children and the mental health condition of those detained. Any necessary detention should take place in appropriate, sanitary, non-punitive facilities, and should not take place in prisons. Individuals must not be detained indefinitely on immigration control grounds if the State party is unable to carry out their expulsion.

In a number of cases, the United Nations Human Rights Committee has made findings that Australia’s system of mandatory immigration detention results in detention that is arbitrary. This was primarily because:

  • prolonged immigration detention, pending the determination of refugee status, was not justified in the light of the individual’s circumstances;[124] and
  • there was a failure by Australia to demonstrate, in the light of the individual’s particular circumstances, that there were not less invasive means of achieving compliance with Australia’s immigration policies, such as by the imposition of reporting obligations, sureties or other conditions rather than detention.[125]

Protracted arbitrary detention can also amount to inhuman or degrading treatment. The United Nations Human Rights Committee recently considered two cases dealing with 46 people in immigration detention in Australia who had received adverse security assessments and who had been detained for periods of between 14 months and two years and five months (at the time their complaint was made). The Committee found that their detention amounted to inhuman or degrading treatment in violation of the International Covenant on Civil and Political Rights. These findings were based on the combination of the arbitrary character of their detention; its protracted and/or indefinite duration; the refusal to provide them with information and procedural rights; and the difficult conditions of detention which were cumulatively inflicting serious psychological harm upon them.[126]

5.3 Review of detention

Under Australia’s international human rights obligations, any child deprived of their liberty should be able to challenge the lawfulness of their detention. Article 37(d) of the Convention on the Rights of the Child provides children the right to a review before a court or another competent, independent and impartial authority.

The United Nations Human Rights Committee has declared that for detention to be ‘lawful’ in this context, it must not only comply with domestic law but also international law. This means that detention must not be arbitrary. Accordingly, in order to guarantee the prohibition on arbitrary detention in article 37(b) of the Convention on the Rights of the Child, judicial review of the decision to detain, or to continue to detain, is essential. The court must have the power to review the lawfulness of detention under both domestic legislation and Australia’s binding international obligations, including under article 37(b) of the Convention on the Rights of the Child to not subject anyone to arbitrary detention. The court must also have the authority to order the person’s release if the detention is found to be arbitrary.[127]

Currently, Australia does not provide access to such review. While people in immigration detention may be able to seek judicial review of the domestic legality of their detention, Australian courts have no authority to order that a person be released from detention on the grounds that the person’s continued detention is arbitrary and in breach of the Convention on the Rights of the Child. This view has been confirmed by the United Nations Human Rights Committee in two recent cases in relation to the equivalent provision in the International Covenant on Civil and Political Rights. The Committee said:[128]

In view of the High Court’s 2004 precedent in Al-Kateb v. Godwin declaring the lawfulness of indefinite immigration detention, and the absence of relevant precedents in the State party’s response showing the effectiveness of an application before the High Court in similar more recent situations, the Committee is not convinced that it is open to the Court to review the justification of the authors’ detention in substantive terms.

The Committee found in those cases that there had been a breach of article 9(4) of the International Covenant on Civil and Political Rights.

5.4 Shortest appropriate period of time

The Convention on the Rights of the Child makes clear that if the detention of children is necessary in order to achieve a particular aim, then the length of detention should be the shortest appropriate period for the achievement of that aim.[129]

This principle appeared to be supported by both the current and former Ministers for Immigration, who gave evidence to the Inquiry. After announcing new arrangements in relation to bridging visas for children under 10 years old, the Minister for Immigration and Border Protection, the Hon Scott Morrison MP said:

so it is our intention after health, security and identity checks and things of that nature that you are able to move families wherever possible and consistent with the prevailing government policy of offshore processing to have families and children placed in the community so that is our intention and that is our practice.[130]

Similarly, former Minister for Immigration the Hon Chris Bowen MP said that detention:

should be used only for processing for health, identity and security measures. Once the security agencies are satisfied that someone is suitable to be released in the community and their passport checks, there needs to be a good reason not to do so in relation to onshore detention ... [131]

The Commission considers that children should not be detained for longer than is necessary for health, identity and security checks. In instances where children are detained, a review process is required to monitor detention effectively and to assess whether it is justified. The Commission has previously recommended that this review process should occur within 72 hours of being detained and be conducted by an independent body.[132]

Other countries such as Sweden and the United Kingdom generally permit detention for only 48 hours.[133] In Sweden children are normally not to be detained for a period in excess of 72 hours, for ongoing detention further authorisation and exceptional circumstances are required.[134]

If children continue to be detained by Australia after an initial period of assessment, the law should be amended to provide for prompt and periodic review by a court. This review should assess whether detention continues to be justified and guided by four human rights principles:[135]

  • detention of children must be a measure of last resort and for the shortest appropriate period of time
  • the best interests of the child must be a primary consideration
  • the preservation of family unity
  • special protection and assistance for unaccompanied children.

5.5 Decision-making in relation to children

International human rights law requires that in all actions concerning children, the best interests of the child shall be a primary consideration (Convention on the Rights of the Child, article 3). The United Nations Committee on the Rights of the Child describes this as one of the fundamental values of the Convention.[136]

The best interests of the child should be a primary consideration in individual decision-making about a child, and when developing legal frameworks and policies affecting children.[137] If laws or policies lead to results that are not in the child’s best interests, review is necessary.[138]

The Department of Immigration and Border Protection’s Procedures Advice Manual contains principles for the treatment of children in detention.[139] This guidance requires officers to consider Australia’s obligations under the Convention on the Rights of the Child when making decisions concerning children. The Department explains the content of the guidance principles as follows:

the guidance requires that officers should consider Australia’s obligations under the CRC when making decisions concerning children. In particular, it highlights the obligations under Articles 2 (entitlements without discrimination), 3 (best interests), 6 (survival and development of the child), 7 and 9 (preserving the family unit), 10 (dealing with reunification positively), 12 (consideration of the child’s views), 20 (special assistance for children without family), 28 (education) and 37 (detention as a last resort).

The guidance notes that Australia has an obligation to treat the best interests of the child as a primary consideration in all actions concerning children, but that the best interests of the child must be considered with other considerations, including those that arise under the Migration Act and the Migration Regulations. As such, it notes that consideration of the best interests of a child does not necessarily require a decision to allow the child or the child’s family to remain in Australia and may be outweighed by other primary considerations.[140]

A summary of Departmental policies and procedures is set out in Appendix 7.

Aspects of Australia’s migration policy therefore sit at odds with the Convention on the Rights of the Child. Examples include the requirement to detain child asylum seekers on arrival in Australia, and the requirement to transfer children who are unauthorised maritime arrivals to a Regional Processing Country as soon as is reasonably practicable. Officers are required by the Migration Act to carry out these tasks, regardless of whether it would be in the child’s best interests.

In addition to this broad principle, the Convention on the Rights of the Child identifies refugee children and unaccompanied children as likely to be vulnerable and require particular assistance.

Article 22 requires that governments ensure that children seeking refugee status are provided with appropriate protection and humanitarian assistance. Article 20 provides that special protection and assistance be available for unaccompanied children.

5.6 Minimum conditions of detention

Minimum standards for the protection of children in detention are set out in the Convention on the Rights of the Child:

  • Children in detention should be treated with humanity and respect.[141]
  • Children in detention have the right to prompt access to legal and other appropriate assistance, and the right to challenge the legality of their detention before a court or other independent body.[142]
  • Children have a right to remain with their parents (unless contrary to their best interests), and to have their family protected from arbitrary or unlawful interference.[143]
  • Children should not suffer torture or cruel, inhuman or degrading treatment or punishment.[144]
  • Children should be protected from all forms of physical or mental violence, injury or abuse while in the care of parents, legal guardians or any other person that has the care of the children.[145]

The Convention sets out a range of obligations on countries to ensure that children can develop and thrive.

Key rights contained in the Convention on the Rights of the Child are:

  • Every child has a right to life, to survival and to development.[146]
  • Children have the right to health and access to healthcare services, including pre- and post-natal healthcare for their mothers.[147]
  • Children have the right to education, and to play and engage in recreational activities.[148]
  • Every child is entitled to respect for his or her rights without discrimination.[149]

The Commission has published Human rights standards for immigration detention, which sets out benchmarks for the humane treatment of people held in immigration detention.[150]

5.7 Duty of care

The Department of Immigration and Border Protection recognises that it has a duty of care to all people in immigration detention facilities.[151] The Department has undertaken the care, supervision or control of people in detention in circumstances where those people might reasonably expect that due care will be exercised.[152]

The Commonwealth Ombudsman has considered the scope of this duty and found that:[153]

detainees are particularly vulnerable to harm – especially psychological harm – for a range of reasons. These include the circumstances that caused them to seek refuge in Australia in the first place, which often includes a history of torture and trauma; their loss of connection with family and community and their social isolation; their inability to provide or make meaningful decisions for themselves; and the anxiety caused by the lack of certainty about their future. These vulnerabilities can be exacerbated by the conditions of their detention, particularly overcrowding, exposure to self-harm incidents, and lack of meaningful activities. These vulnerabilities can also be exacerbated by anxiety about, and frustrations with, immigration decision-making processing, and especially by the length of their detention.

Because the department has a high level of control over particularly vulnerable people, its duty of care to detainees is therefore a high one. It is not enough for the department to avoid acting in ways that directly cause harm to detainees. It also has a positive duty to take action to prevent harm from occurring.

Similar comments have been made by the New South Wales Coroner, who noted that people in detention are ‘at much greater risk of suicide than the general community’ due in part ‘to the loss of their families, freedom, status and work’.[154] For this reason, those responsible for people in detention ‘owe a greater than normal duty of care to those persons regarding their health and wellbeing’.[155]

5.8 Findings in relation to detention law, policy and practice

Current detention law, policy and practice does not address the particular vulnerabilities of asylum seeker children nor does it afford them special assistance and protection. Mandatory detention does not consider the individual circumstances of children nor does it address the best interests of the child as a primary consideration (article 3(1)).

Detention for a period that is longer than is strictly necessary to conduct health, identity and security checks breaches Australia’s obligations to:

  • detain children as a measure of last resort and for the shortest appropriate period of time (article 37(b))
  • ensure that children are not arbitrarily detained (article 37(b))
  • ensure prompt and effective review of the legality of their detention (article 37(d)).


[96]Migration Act 1958 (Cth), s 4AA; Convention on the Rights of the Child, article 37(b). At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 1 September 2014).
[97]Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), p 851. At https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention (viewed 30 September 2014).
[98]Useful references to the history of mandatory detention in Australia from 1992 to 2004 are collected in Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), p 141. At https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention (viewed 30 September 2014).
[99]Migration Act 1958 (Cth), s 189.
[100]Migration Act 1958 (Cth), s 14.
[101]Migration Act 1958 (Cth), s 5AA. There are some exceptions to this, including New Zealand citizens and residents of Norfolk Island.
[102]Migration Act 1958 (Cth), s 196(1)(c).
[103]Migration Act 1958 (Cth), s 197AC. If the Minister makes a residence determination in relation to a person (commonly referred to as a decision to place the person in ‘community detention’), then the person is treated for the purposes of the Migration Act as being kept in immigration detention at the place specified in the determination.
[104]Migration Act 1958 (Cth), s 196(1)(a), (aa) and (b). In this context, removal includes removal under ss 198 or 199, being taken to a regional processing country under s 198AD, or being deported under s 200.
[105]Migration Act 1958 (Cth), s 46A.
[106]Migration Act 1958 (Cth), s 195A. Although since Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34, this power cannot be used to grant a particular visa to a person who is being detained while the Minister is considering whether to allow that person to make an application for a visa of their choice, if the grant of that particular visa that would preclude an application being made for any other kind of visa.
[107]Migration Act 1958 (Cth), s 195A(4).
[108]Migration Act 1958 (Cth), s 197AB.
[109]Migration Act 1958 (Cth), s 197AF.
[110]Migration Act 1958 (Cth), s 197AE.
[111]Migration Act 1958 (Cth), s 198AD(2).
[112]Al-Kateb v Godwin (2004) 219 CLR 562.
[113]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention 2014, p 14. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%20-%20Department%20of%20Immigration%20and%20Border%20Protection.pdf(viewed 20 August 2014).
[114]Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34.
[115]Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34 at [28]-[29].
[116]United Nations Committee on the Rights of the Child, Concluding observations on the fourth periodic report of Australia under the Convention on the Rights of the Child, UN Doc CRC/C/AUS/CO/4 (2012), para 80. United Nations Committee on the Rights of the Child, Concluding observations on the second and thirds periodic reports of Australia under the Convention, UN Doc CRC/C/15/Add.268 (2005), para 64.
[117]United Nations Committee Against Torture, Concluding Observations on the third periodic report of Australia under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc CAT/C/AUS/CO/3 (2008), para 11; United Nations Human Rights Committee, Concluding Observations on the fifth periodic report of Australia under the International Covenant on Civil and Political Rights, UN Doc CCPR/C/AUS/CO/5 (2009), para 23.
[118]This issue has been considered by the United Nations Human Rights Committee (UNHRC) in the context of article 9(1) of the ICCPR in the following decisions: Van Alphen v The Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988 (1990) at http://www.refworld.org/docid/525414304.html (viewed 17 September 2014); A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997) at http://www.refworld.org/docid/3ae6b71a0.html (viewed 17 September 2014); Spakmo v Norway, Communication No. 631/1995, UN Doc CCPR/C/67/D/631/1995 (1999) at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f67%2fD%2f631%2f1995&Lang=en (viewed 17 September 2014). See also: Manga v Attorney-General [2000] 2 NZLR 65 at [40]-[42], (Hammond J).
[119]United Nations Human Rights Council General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add. 13 (2004), para 6. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.13&Lang=en (viewed 10 September 2014).
[120]United Nations Human Rights Council decisions in: C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), para 8.2 at http://www.refworld.org/docid/3f588ef00.html (viewed 17 September 2014); Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003), para 7.2 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f78%2fD%2f1014%2f2001&Lang=en (viewed 17 September 2014); D and E v Australia, Communication No. 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006), para 7.2 at http://www.refworld.org/docid/47975af63.html (viewed 17 September 2014); Shams & Ors v Australia, Communication No. 1255/2004, UN Doc CCPR/C/90/D/1255/2004 (2007), para 7.2 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f90%2fD%2f1255%2c1256%2c1259%2c1260%2c1266%2c1268%2c1270%2c1288%2f2004&Lang=en (viewed 17 September 2014).
[121]The Hon S Morrison MP, Fourth Public Hearing of the National Inquiry into Children in Immigration Detention 2014, Canberra, 22 August 2014. At http://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014-1 (viewed 1 October 2014). The Hon C Bowen MP, Fifth Public Hearing of the National Inquiry into Children in Immigration Detention 2014, Sydney, 9 September 2014. At http://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014-1 (viewed 8 October 2014)
[122]Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), p 862-863. At https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention (viewed 30 September 2014).
[123]United Nations Human Rights Committee, Draft General Comment 35, Article 9: Liberty and security of person, UN Doc CCPR/C/107/R.3 (2013), para 18.
[124]United Nations Human Rights Committee decisions in A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.4. At http://www.refworld.org/docid/3ae6b71a0.html (viewed 17 September 2014); Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003), para 7.2. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f78%2fD%2f1014%2f2001&Lang=en (viewed 17 September 2014); D and E v Australia, Communication No. 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006), para 7.2. At http://www.refworld.org/docid/47975af63.html (viewed 17 September 2014); Shams et al v Australia, Communication Nos. 1255/2004, UN Doc CCPR/C/90/D/1255/2004 (2007), para 7.2 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f90%2fD%2f1255%2c1256%2c1259%2c1260%2c1266%2c1268%2c1270%2c1288%2f2004&Lang=en (viewed 17 September 2014).
[125]United Nations Human Rights Committee decisions in: C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), para 8.2 at http://www.refworld.org/docid/3f588ef00.html (viewed 17 September 2014); Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003), para 7.2 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f78%2fD%2f1014%2f2001&Lang=en (viewed 17 September 2014); D and E v Australia, Communication No. 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006), para 7.2 at http://www.refworld.org/docid/47975af63.html (viewed 17 September 2014); Shams & Ors v Australia, Communication No. 1255/2004, UN Doc CCPR/C/90/D/1255/2004 (2007), para 7.2 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f90%2fD%2f1255%2c1256%2c1259%2c1260%2c1266%2c1268%2c1270%2c1288%2f2004&Lang=en (viewed 17 September 2014).
[126]United Nations Human Rights Committee decisions in F.K.A.G. v Australia, Communication No. 2094/2011, UN Doc CCPR/C/108/D/2094/2011 (2013), para 9.8 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f108%2fD%2f2094%2f2011&Lang=en (viewed 17 September 2014); M.M.M. v Australia, Communication No. 2136/2012, UN Doc CCPR/C/108/D/2136/2012 (2013), para 10.7 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f108%2fD%2f2136%2f2012&Lang=en (viewed 17 September 2014).
[127]United Nations Human Rights Committee A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), para 9.5 at http://www.refworld.org/docid/3ae6b71a0.html (viewed 17 September 2014).
[128]United Nations Human Rights Committee decisions in F.K.A.G. v Australia, Communication No. 2094/2011, UN Doc CCPR/C/108/D/2094/2011 (2013), para 9.6 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f108%2fD%2f2094%2f2011&Lang=en (viewed 17 September 2014); M.M.M. v Australia, Communication No. 2136/2012, UN Doc CCPR/C/108/D/2136/2012 (2013), para 10.6 at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f108%2fD%2f2136%2f2012&Lang=en (viewed 17 September 2014).
[129]Convention on the Rights of the Child (1989) Art 37(b). At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 1 September 2014).
[130]The Hon S Morrison MP, Fourth Public Hearing of the National Inquiry into Children in Immigration Detention Canberra, 22 August 2014, p 6. At https://www.humanrights.gov.au/sites/default/files/Hon%20Scott%20Morrison%20Mr%20Bowles.pdf (viewed 3 October 2014).
[131]The Hon C Bowen MP, Fifth Public Hearing of the National Inquiry into Children in Immigration Detention 2014, Sydney, 9 September 2014, p 3. At https://www.humanrights.gov.au/sites/default/files/Hon%20Chris%20Bowen… (viewed 8 October 2014).
[132]Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), p 863. At https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention (viewed 30 September 2014).
[133]Aliens Act, 2005 (Sweden) Ch 10, Section 4.
[134]Aliens Act, 2005 (Sweden) Ch 10, Section 5.
[135]Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), p 865-867. At https://www.humanrights.gov.au/publications/last-resort-national-inquiry-children-immigration-detention (viewed 30 September 2014).
[136]Committee on the Rights of the Child, General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration, UN Doc (2013) CRC/C/GC/14, para 4.
[137]Committee on the Rights of the Child, General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration, UN Doc (2013) CRC/C/GC/14, para 14.
[138]Committee on the Rights of the Child, General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration, UN Doc (2013) CRC/C/GC/14, para 15.
[139]Department of Immigration and Border Protection, [P A122] Procedural Advice Manual 3: Act — Compliance and Case Resolution — Case resolution — Case management — Guiding principles — Treatment of children. See also Department of Immigration and Border Protection, Submission to the Australian Human Rights Commission’s National Inquiry into Children in Immigration 2014 (30 May 2014),p16.
[140]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention 2014. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%20-%20Department%20of%20Immigration%20and%20Border%20Protection.pdf(viewed 20 August 2014).
[141]Convention on the Rights of the Child, 1989, Art 37(c). At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[142]Convention on the Rights of the Child, 1989, Art 37(d). At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[143]Convention on the Rights of the Child, 1989, Art articles 9(1) and 16(1). At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[144]Convention on the Rights of the Child, 1989, Art 37(a). At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[145]Convention on the Rights of the Child, 1989, Art 19. At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[146]Convention on the Rights of the Child, 1989, Art 6. At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[147]Convention on the Rights of the Child, 1989, Art 24. At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[148]Convention on the Rights of the Child, 1989, Art 28(1) and 31. At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[149]Convention on the Rights of the Child, 1989, Art 2(1). At http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/1991/4.html?stem=0&synonyms=0&query=convention%20child (viewed 1 October 2014).
[150]Australian Human Rights Commission, Human rights standards for immigration detention, (2013) at https://www.humanrights.gov.au/publications/human-rights-standards-immigration-detention (viewed 17 September 2014).
[151]Department of Immigration and Border Protection, Submission No 45 to the National Inquiry into Children in Immigration Detention 2014, p 48. At https://www.humanrights.gov.au/sites/default/files/Submission%20No%2045%20-%20Department%20of%20Immigration%20and%20Border%20Protection.pdf(viewed 20 August 2014).
[152]Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ), citing Kondis v State Transport Authority (1984) 154 CLR 672 at 687 (Mason J).
[153]Commonwealth Ombudsman, Suicide and Self-harm in the Immigration Detention Network (May 2013), p 27. At http://www.ombudsman.gov.au/files/suicide_and_self-harm_in_the_immigration_detention_network.pdf (viewed 3 October 2014)
[154]Inquests into the Deaths of Josefa Rauluni, Ahmed Obeid Al-Akabi and David Saunders, findings of the New South Wales State Coroner, NSW Coroner’s Court, Glebe, 19 December 2011, p 10.
[155]Inquests into the Deaths of Josefa Rauluni, Ahmed Obeid Al-Akabi and David Saunders, findings of the New South Wales State Coroner, NSW Coroner’s Court, Glebe, 19 December 2011, p 10.