6. Australia's Immigration Detention Policy and Practice

A last resort?

National Inquiry into Children in Immigration Detention

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6. Australia's Immigration Detention Policy and Practice

Australian law requires the detention of all non-citizens who are in Australia without a valid visa (unlawful non-citizens). This means that immigration officials have no choice but to detain persons who arrive without a visa (unauthorised arrivals), or persons who arrive with a visa and subsequently become unlawful because their visa has expired or been cancelled (authorised arrivals). Australian law makes no distinction between the detention of adults and children.

This Inquiry accepts that mandatory detention for a strictly limited period designed to obtain basic information about health, identity, security and basic information that supports a visa claim, may form a legitimate part of a system of immigration controls, as long as the detention is subject to effective review by a court.⁽¹⁾

Mandatory detention in Australia, however, goes well beyond this. When children arrive in Australia without a visa and are seeking asylum, they are required to stay in detention well beyond the period of time it takes to gather basic information about an asylum claim, health, identity or security issues. Both adults and children must stay in detention until their asylum claim has been finalised or a bridging visa has been issued. The consequence is that these children are often detained for months and sometimes for years, many of them in detention centres in remote areas of Australia. Under the Migration Act 1958 (Cth) (the Migration Act) there is no time limit on this detention and only very limited review by the courts is available. It is this long-term, indeterminate and effectively unreviewable mandatory detention of children that is the key concern of this Inquiry.

The Inquiry recognises that there are children in immigration detention who are not asylum seekers - usually children who have overstayed their visa. Those children tend to spend a much shorter period of time in detention because they are detained to facilitate deportation. Furthermore from 1999 to 2002, children overstaying their visa constituted under 5 per cent, on average, of children in immigration detention. These children have the same rights in detention as children seeking asylum. Therefore, while the primary focus of the Inquiry is on children who are unauthorised arrivals seeking asylum, the rights discussed in this and following chapters should be understood also to apply to children who are detained for having overstayed their visa.

This chapter addresses the following questions regarding Australia's detention policy and practice:

6.1 What are the human rights relevant to the detention of children?

6.2 What is the history of mandatory detention in Australia?

6.3 When are children detained?

6.4 Where are children detained?

6.5 Is detention in the 'best interests of the child'?

6.6 Are children detained as 'a measure of last resort'?

6.7 Are children detained for the 'shortest appropriate period of time'?

6.8 Can courts provide effect review of the legality of detention?

6.9 Is the detention of children 'unlawful' and 'arbitrary'?

There is a summary of the Inquiry's progressive findings on these issues and two case studies at the end of the chapter.

6.1 What are the human rights relevant to the detention of children?

United Nations instruments have defined what is meant by 'detention' as follows:

Deprivation of liberty means any form of detention or imprisonment or the placement of a person in another public or private custodial setting from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.

United Nations Rules for the Protection of Juveniles Deprived of their Liberty, rule 11(b)⁽²⁾

UNHCR considers detention as: confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory.

UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, guideline 1⁽³⁾

The 1998 Human Rights and Equal Opportunity Commission (the Commission) report on immigration detention, Those who've come across the seas, examined Australia's detention policy as it applied at that time to adults and children, and found that it was inconsistent with and contrary to human rights.⁽⁴⁾ This Inquiry applies much of the reasoning used in that report, but focuses specifically on whether Australia's detention policy contravenes the rights set out in the Convention on the Rights of the Child (CRC), which are much more specific and demanding than those contained in the International Covenant on Civil and Political Rights (ICCPR).⁽⁵⁾

Article 37(b) and (d) of the CRC provide that:

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; ...

(d) Every child deprived of his or her liberty shall have the right to promptaccess to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Thus article 37 of the CRC contains four key elements relating to the human rights of children:

• detention of a child must be a measure of last resort
• any detention of a child must be for the shortest appropriate period of time
• every detained child has the right to challenge the legality of his or her detention before a court or other competent, independent and impartial authority, and to a prompt decision on any such action
• no child should be detained unlawfully or arbitrarily.

The international law regarding each of these issues is discussed in more detail in sections 6.6, 6.7, 6.8 and 6.9 respectively. However, at this stage the Inquiry notes that the provisions of article 37 of the CRC are generally reiterated in several of the United Nations High Commissioner for Refugees (UNHCR) guidelines on refugee children⁽⁶⁾ and the provisions of article 37(b) are repeated throughout relevant UN standards on children. For example, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the JDL Rules) states that detention 'should be used as a last resort' and 'be limited to exceptional cases'.⁽⁷⁾ The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), which also provide some guidance regarding the treatment of children who are not charged with a crime, state that any detention should be brief⁽⁸⁾ and that it should only occur where the child has committed 'a serious act involving violence'.⁽⁹⁾

The UN Committee on the Rights of the Child raised the placement of children in immigration detention centres as one of its 'Principal Subjects of Concern' in its concluding observations on Australia's periodic reports.⁽¹⁰⁾ The UN Human Rights Committee has also found, on several occasions, that Australia's immigration detention system breaches human rights.⁽¹¹⁾

There is a substantial divergence between views of the Inquiry and the Department of Immigration and Multicultural and Indigenous Affairs (the Department or DIMIA) regarding the correct interpretation of article 37(b) of the CRC.⁽¹²⁾ Those differences can be summarised as follows: whereas the Inquiry is strongly of the view that international human rights law requires the rights of each individual to be considered and protected, the Commonwealth asserts that international law permits the application of public policy measures to a group of people as long as that general policy is 'legitimate, non-punitive and proportionate'.

The effect of the Commonwealth's position is that the mandatory detention of children who are unlawful non-citizens would not breach article 37 of the CRC because there are 'legitimate, non-punitive and proportionate' reasons behind the policy which requires their detention. The Inquiry rejects this proposition, because it is not supported as a matter of international law. A proper application of article 37 requires a case-by-case assessment of whether the detention of each and every child is justified in the individual circumstances. While the execution of legitimate policy goals may be one of the circumstances to consider in such an assessment, it will not be the sole or determinative factor in assessing whether the detention of an individual child accords with the right to liberty under international law. The Inquiry's interpretation is consistent with the views of the UN Human Rights Committee (see section 6.9 below).

Article 3(1) of the CRC requires Australia to ensure that the best interests of the child are a primary consideration 'in all actions concerning children'. In order to comply with article 3(1), the Commonwealth - relevantly here the Parliament, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) and the Department - must specifically address its attention to the impact of detention on children, and make their best interests a primary consideration in deciding what laws will regulate immigration in Australia and how those laws should be administered.

As discussed further in Chapter 4 on Australia's Human Rights Obligations, in order to comply with article 3(1), laws in relation to immigration detention must permit - and the Executive must make - individualised decisions regarding the best interests of each child. Such individualised decisions should relate not only to the question of whether or not a child needs to be detained, but also to the circumstances and manner in which that detention is to take place.

As discussed throughout this report, there are a variety of factors that make up what may or may not be in the best interests of the child. This chapter concentrates on two factors - the liberty of the child and the protection of family unity (see especially article 9(1), CRC).

Also of relevance is the requirement that asylum-seeking children receive the appropriate assistance to enjoy their rights under the CRC (article 22(1)). Furthermore, special attention and assistance must be provided to unaccompanied children to ensure that they can enjoy their right to liberty and that their best interests are a primary consideration (article 20, CRC).

Finally, several submissions to the Inquiry have argued that article 31 of the Refugee Convention - which prohibits the imposition of penalties on certain asylum seekers who arrive without a visa - is also relevant to a discussion of Australia's detention policy. While the Inquiry is of the view that the Refugee Convention is relevant to immigration detention, it has focussed its analysis on the CRC in this chapter on the basis that the protections under article 37(b) of the CRC are stronger than those in the Refugee Convention.⁽¹³⁾

6.2 What is the history of mandatory detention in Australia?

Prior to 1992, Australian law permitted the detention of certain persons who were in Australia without a valid visa but did not require it.⁽¹⁴⁾ The introduction of mandatory detention laws in 1992 was a reaction to the arrival of 438 Vietnamese, Cambodian and Chinese 'boat people' to Australia's shores between November 1989 and January 1992.⁽¹⁵⁾ Concerns about another 'influx' spurred bipartisan support for increasingly tough measures on persons who arrived in Australia without a visa.

The 1992 legislation both required mandatory detention of certain 'designated persons' and prevented any judicial review of detention by specifically providing that 'a Court is not to order the release from custody of a designated person'.⁽¹⁶⁾However, the legislation did impose a 273-day time limit on detention.⁽¹⁷⁾

Another increase in boat arrivals and asylum applications in 1993 and 1994⁽¹⁸⁾ resulted in the Parliament broadening the application of mandatory detention to all persons who either arrived without a visa or who were in Australia on an expired or cancelled visa.⁽¹⁹⁾

The 1994 legislation also removed the 273-day time limit on detention and instead provided that an unlawful non-citizen could only be released from detention on the grant of a visa, removal or deportation from Australia. The 1994 amendments also introduced a non-compellable discretion in the Minister to issue bridging visas which would allow for the release of persons who were otherwise mandatorily detained. The limitations on judicial review of detention that were introduced in 1992 remained.

In 1999, the Australian Government introduced legislation that increased penalties for 'people smuggling' offences and that prevented this Commission from sending letters informing detainees of their right to legal assistance. However, that legislation did not alter the mandatory detention provisions regarding unlawful non-citizens.⁽²⁰⁾

The next major change to the mandatory detention policy occurred in September 2001 when a raft of amending legislation was enacted in reaction to what has become known as 'the Tampa crisis'⁽²¹⁾ and in pursuit of the so-called 'Pacific Solution'.⁽²²⁾ Amongst the series of changes that were introduced by this legislation was the designation of Christmas Island, Ashmore and Cartier Islands and the Cocos (Keeling) Islands as 'excised offshore places'. The legislation enables the transfer of persons who are intercepted at sea or who land on any of those excised offshore places, to processing centres on Nauru or Manus Island in Papua New Guinea. The legislation also prohibits those persons from making a protection visa application, other than at the discretion of the Minister. See further section 6.4.4 on the 'Pacific Solution'.

6.3 When are children detained?

As set out above, the effect of the Migration Act is to require an immigration officer to detain all 'unlawful non-citizens' present in Australia.⁽²³⁾ Those detained may only be released if granted a visa or removed from Australia.⁽²⁴⁾ Asylum seekers must stay in detention until either a bridging visa or protection visa has been granted, or they are removed from Australia. This can take weeks, months or years.

There are no special considerations regarding the initial detention of unlawful noncitizen children as opposed to adults. While the Migration Regulations 1994 (Migration Regulations) do contemplate the early release of children by the grant of a bridging visa, between 1999 to 2002 they were issued to only one unaccompanied child, one mother and her two children (leaving the father in detention) and one whole family who arrived unlawfully by boat. This is discussed further in section 6.7.4 below.

Since September 2001, any family or unaccompanied child who has landed, or is seeking to land, on Christmas Island, Ashmore and Cartier Islands or Cocos (Keeling) Islands, or any other place determined to be an 'excised offshore place', without a visa may be detained as 'excised offshore persons'. The reason this is a discretionary rather than a mandatory requirement appears to be to facilitate the transfer of excised offshore persons to Nauru and Manus Island.⁽²⁵⁾ The Department has stated that the 'discretion to detain is likely to be exercised unless such persons are moved to an offshore processing place'.⁽²⁶⁾ Thus, in practice, 'excised offshore persons' are detained either on Christmas Island, Nauru or Manus Island in Papua New Guinea.⁽²⁷⁾Almost all of those persons are also asylum seekers and they will remain in detention at least until their refugee status processing is complete.

Some children and families arrive in Australia on one type of visa, for instance a tourist visa, and then apply for protection as a refugee (authorised arrivals). If a family or child seeks asylum while the original visa is valid, the Department will usually issue a bridging visa pending the outcome of their application so that the person is not detained. If a family or child seeks asylum after the original visa has expired then they may be subject to mandatory detention. However, in practice these persons are almost always granted a bridging visa immediately upon lodging a protection visa claim and therefore 'released' within hours of being detained. In most cases they are not taken to a detention facility at all.⁽²⁸⁾

Other reasons a child must be detained include overstaying the period of a visa or cancellation of a visa due to breach of conditions. Those children will generally be eligible for bridging visas that will restore their lawfulness and avoid detention.⁽²⁹⁾

6.4 Where are children detained?

The vast majority of unauthorised arrival children and families detained under Australia's mandatory detention laws have been held in secure immigration detention facilities like Woomera, Port Hedland, Curtin and Baxter which are described in some detail in Chapter 3, Setting the Scene.⁽³⁰⁾ Accordingly, the majority of the Inquiry's report focuses on examining whether the conditions within those facilities comply with the CRC.

However, the Migration Act permits the Minister to approve any place to be a place of 'immigration detention'. The Secretary of the Department must also direct a person to 'accompany and restrain' the detainee for the purposes of immigration detention.⁽³¹⁾That person need not be an officer of the Department or Australasian Correctional Management Pty Limited (ACM).

Prior to 2001, the Minister's power to declare a place of 'immigration detention' was generally used to facilitate the provision of certain services outside immigration detention centres. For instance, a motel may have been declared a place of detention to allow for temporary accommodation, a hospital may have been declared to allow medical treatment of a detainee, or a school may have been declared to allow certain children to attend outside schools.⁽³²⁾

In August 2001, the Minister exercised those powers to establish a Residential Housing Project (RHP) near the Woomera detention centre. Further, in January and February 2002, the Minister declared several homes in Adelaide to be places of detention for unaccompanied children in foster care (home-based detention). The Department describes the aim of these 'innovative approaches to alternative detention arrangements' to be to 'respond to the needs of particular groups such as women and children and unaccompanied minors'.

The Inquiry agrees that these initiatives represent a positive step forward regarding the conditions in which women and children are detained. However, it must be remembered that these places are not alternatives to detention, but rather alternative forms of detention. The Department retains full control and responsibility for everything that happens to children in these places.

The following sections discuss:

6.4.1 The Woomera Residential Housing Project

6.4.2 Home-based detention

6.4.3 Findings regarding alternative places of detention

6.4.4 'Pacific Solution' detention facilities

6.4.1 The Woomera Residential Housing Project

The Woomera RHP is a more friendly detention facility set up for a small number of mothers and children among the detainee population. It was opened on a trial basis on 7 August 2001. The Department stated that:

The trial was intended to look at ways in which alternative detention arrangements could be made which would provide a more 'normal' existence for children with their mother or guardian, whilst still abiding by the terms of the Migration Act 1958.⁽³³⁾

When established, the Woomera housing project consisted of a cluster of three houses to accommodate detainees and a fourth house for ACM staff and communal activities. Originally, at full capacity the housing project could accommodate 25 women and children. The project was expanded in 2003 to a capacity of 30-40 detainees, depending on family composition.

The houses are located in the Woomera township, a short distance away from the Woomera detention centre. Each of the three original houses has three bedrooms and a communal lounge area and kitchen. The Inquiry has not visited the expanded project but understands that the houses have a similar configuration. In the centre of the houses is a grassed area and garden which is tended by the detainees. Unlike in the Woomera detention centre, the detainees are given a budget to spend on food ($7 per person per day), do their shopping in the local supermarket and cook for themselves. This is an attempt to provide more autonomy to mothers.

View of communal garden and an accommodation unit at the Woomera Residential Housing Project, June 2002.

Prior to the closure of Woomera detention centre in September 2002, children in the housing project attended the same education and recreation activities provided for the children in the detention centre. In addition, they participated in additional excursions such as food shopping trips.

The housing project has a calmer, quieter atmosphere and is more attractive than the detention centre. There is no razor wire or palisade fencing surrounding the cluster of houses, although there is an infrared detection system. Detainees are not free to leave the area without being accompanied by an ACM guard and cannot leave their houses to go to any of the communal areas after 11pm.

View of communal garden and an accommodation unit at the Woomera Residential Housing Project, June 2002.

The Department opened a housing project in Port Hedland in September 2003 and in Port Augusta, near Baxter, in November 2003.⁽³⁴⁾

(a) Who can be detained at the Woomera Residential Housing Project?

Participation in the Woomera RHP is voluntary but not all who want to live there are eligible, nor can all eligible detainees be accommodated. As at 12 December 2003, two children were housed there. 81 children have been accommodated there since the project began.⁽³⁵⁾

Detainees who wished to be transferred to the Woomera RHP had to submit an application form which was considered by a panel consisting of the ACM Centre Manager and Health/Welfare Manager, the Department's Manager and a resident of the Woomera township.⁽³⁶⁾

All detainees had to be volunteers and either:

• women accompanied by children (excluding boys aged 13 and over) who have an immediate family member at the Woomera (or Baxter) facility, or
• unaccompanied female minors, or unaccompanied boys under 13, or
• unaccompanied women with or without children.

They must also have passed initial health checks, pose no known management risk and agree to the conditions of participation including:

• not to leave the boundary of the property without an officer
• to be sensitive to the needs and wishes of other participants
• to behave in a responsible manner.⁽³⁷⁾

As indicated above, fathers and boys aged 13 years or over, were ineligible to live at the housing project - although there were visiting rights. This rule was changed in September 2003 so that boys aged between 13 and 17 were permitted to live there. Both the old and new eligibility rules meant that women and children from two-parent families were separated from their husbands and fathers and some were separated from sons and brothers.

During the first year of the housing project, only detainees who were awaiting their primary refugee decisions were permitted to participate (although, when a family lodged a merits appeal at the Refugee Review Tribunal after they had already been transferred to the housing project, they were usually permitted to stay). It appears that the reason for this criterion was that persons in the primary phase were regarded as a lower flight risk than those in appeal stages. However, the result of the policy was that those who had been in the detention facility for the longest were ineligible to participate. As the Department's Woomera Manager noted in February 2002:

this style accommodation benefits greatest those who are likely to be spending lengthy periods in detention - and [I] would support an approach being made to the minister or his office if that is required to attempt to achieve that end.⁽³⁸⁾

The Department did make changes to the criteria so that by the second year of the project, women and children (other than boys aged 13 and over) could move there at any time during their refugee status determination process, including during any appeal to courts. The fact that there were no actual or attempted escapes during the first phase of the project may have contributed to the change in policy.⁽³⁹⁾

Another change in the policy, in July 2002, was to permit the housing project selection committee to include:

a small number of women and children who do not meet the eligibility criteria but have compelling circumstances. This includes special needs cases and those who are vulnerable or at risk and who could otherwise not be accommodated appropriately in an immigration facility.⁽⁴⁰⁾

Migration Series Instruction (MSI) 371 on Alternative Places of Detention, issued by the Department in December 2002, opens the door to early transfer to housing projects, stating that '[e]very effort should be made to enable the placement of women and children in a RHP as soon as possible. All decisions should be made as expeditiously as possible'.⁽⁴¹⁾

(b) Why were fathers and boys aged 13 and over excluded from the housing project?

In its Fact Sheet on the Woomera housing project, the Department stated that '[f]or cultural and practical reasons males over 12 years could not be appropriately accommodated in the Project'.⁽⁴²⁾

During the hearings in December 2002, the Inquiry sought to clarify what the Department meant by the 'cultural and practical reasons' for excluding teenage boys and men.

MR WIGNEY (INQUIRY COUNSEL): ... The first point that you raised as being a reasonable rationale or principle behind not having fathers at the Woomera housing project was that it was necessary to provide culturally appropriate living arrangements, and I think that is a phrase that is used in the DIMIA submissions as well. What do you mean by 'culturally appropriate living arrangements'? Do you suggest that in some cultures it is not normal for fathers to reside with their families?

MS McPAUL (DIMIA ASS SEC (UNAUTH ARRIVALS)): I think what I was trying to refer to is the expectation that members of one family would be able to live in a culturally appropriate environment without any suggestion that there would be inappropriate interaction with males who are not of that part of that family group. So I'm not suggesting that it is inappropriate for family members to be together, rather that families need to be certain that whatever living arrangements are in place for them will be something that they are comfortable with personally.⁽⁴³⁾

Additional comments provided by the Department on this issue emphasise that consultations with detainees indicated that some women might choose not to participate if other women's husbands and sons were present:

for cultural reasons having males involved was expected to significantly influence the decisions of females who might otherwise wish to participate.⁽⁴⁴⁾

On the face of it this would appear to be a reasonable consideration. However, in the view of the Inquiry, it is important to examine this rationale against the background that within the Woomera detention centre itself, several families - including fathers and teenage boys - would share one 'donga' (demountable) in which the families were separated by a curtain only. The Department was pressed at the hearing to explain the distinction between the 'cultural appropriateness' of housing full families together in the Woomera detention centre and the housing project. The Department ultimately came back to the point that this was a project designed to encourage 'voluntary participation' of women and children and therefore the comparison was invalid.⁽⁴⁵⁾ This still does not explain why there was no effort to improve conditions for families where there were fathers and boys over 12.

The Department suggested that the capacity of the housing project meant that they could not provide separate facilities for older male detainees:

The overall capacity of Residential Housing Projects are relatively small, compared to the number of people in immigration detention. The need to provide separate facilities for males would further reduce the number of participants overall who could take part in the arrangements.⁽⁴⁶⁾

However, once again, this does not explain why the Department did not seek to increase the 'overall capacity' to accommodate this concern. Furthermore, it does not explain why the same 'cultural factors' did not require similar separation of families with teenage boys and men inside the Woomera detention centre.

It appears to the Inquiry that another possible reason for the Department's exclusion of teenage boys and men, was that they may be more likely to escape than women and children:

DIMIA ASS SEC (UNAUTH ARRIVALS): Commissioner, there are a number of factors that are also taken into account in the context of the housing project itself. As you may know, it is a low security environment, you've been there yourself and you've observed that. It is surrounded by just a normal colorbond kind of fence. So in making the operational decisions about who might participate in that project there are a number of different factors that we would take into account. As I said, participation in the project was voluntary so we needed to be able to encourage women and children to come forward to participate. Secondly, I guess, we also needed to have regard to the security aspects of all members of the family and I think it would be - my understanding is that it is more likely that women and children would be adequately accommodated in that less secure environment than some other family members that they may also have with them.

DR OZDOWSKI: So when you talk about security aspects you are implying that there is a risk of absconding of men?

DIMIA ASS SEC (UNAUTH ARRIVALS): That is one of the considerations.⁽⁴⁷⁾

The risk of escape is clearly a legitimate concern in principle. However, it is the Inquiry's view that this concern had already been addressed by the existing eligibility criteria which requires that any participant - mother, daughter or young boy - be assessed to be a low management risk. In the event that any child or parent was assessed as a high flight risk it may have been reasonable to exclude that individual, however this possibility does not explain the general exclusion of all men.

Finally, the Department stated that 'the trial was intended for women and children - therefore, there is no issue of why men and boys were excluded when they were not considered to fall within the intended scope of the project'. Such circular reasoning does not explain why the project was only intended for women and children (to the exclusion of men) in the first place.

Since 2 December 2002, the criteria has permitted boys up to 17-years-old to participate in the project (but not fathers or adult brothers).⁽⁴⁸⁾

(c) What is the impact of the separation from husbands and fathers?

A father of children who were living in the Woomera housing project had the following to say about the impact of separation:

Children need their father and they need to be all together, like mentally and spiritually we are all sick. Also, they have separated me from the rest of my family and now I am alone in the donga here and my depression has been more and this has had a negative effect on my whole family.⁽⁴⁹⁾

Independent examinations by the Department, the UN, this Commission, child welfare specialists and doctors of the Woomera housing project have all noted that although the environment in the housing project was an improvement on the Woomera detention facility, the separation of mothers and children from their husbands and fathers constituted a serious problem.

The Department commissioned an evaluation of the Woomera housing project in March 2002. That report found that 'participants have clearly benefited from the living conditions provided and it has been possible to maintain security with residents living in the town environment'.⁽⁵⁰⁾ The report notes that '[t]he residents and their husbands were unanimous in their views that living in the Project was a great deal better than living in the IRPC [Immigration Reception and Processing Centre]'.⁽⁵¹⁾ It also found that the 'physical separation of family members (with adult male family members remaining in the IRPC) has not been a barrier to detainees wishing to participate in the Project. However, the separation remains the major concern of families'.⁽⁵²⁾

In September 2002, the Inquiry joined with this Commission's Sex Discrimination Commissioner to investigate whether the housing project warranted the extension of an exemption from the operation of the Sex Discrimination Act 1984 (Cth). The exemption would protect the Department from complaints that there was discrimination against men by excluding them from participation. The then President of the Commission found that the improved environment for women and children meant that 'the continuation of the project is worthwhile and that the exemption to ensure the Project may operate without challenge under the Act is appropriate'.⁽⁵³⁾However, she also found that:

[I]n view of the distress caused to families as a result of separation of family members and the impact separation has on the development and wellbeing of the family unit the Commission strongly urges DIMIA to further pursue the broadening of access by husbands/fathers to their wives/children at the Project, including giving serious consideration to the provision of dedicated family accommodation at the Project.⁽⁵⁴⁾

By the time the Department sought an extension of the exemption in August 2003, the criteria had been expanded to include teenage boys but not fathers.⁽⁵⁵⁾

In July 2002, the United Nations Special Representative for the High Commissioner on Human Rights found that:

Families in detention are sometimes separated (e.g. in the Woomera family housing project, where wife and children are living in Woomera town, while the husband is detained in the centre), which, instead of providing adequate care to families, in fact appears to introduce another element of distress. While the efforts of the Government to provide alternate and more humane places of detention ...have to be recognized, it appears questionable whether the separation of families is advisable, even if the participation in the family housing project is completely voluntary.⁽⁵⁶⁾

The doctor treating patients from the housing project told the Inquiry that, when detainees first went to the housing project, they were content with the change in environment but that a year later the parents had great difficulty coping with the separation:

It is not difficult to predict that when you remove the husband or father from a family which is battling to cope in the face of mental illness and pressure that the mental health of the family will not improve and will likely deteriorate. Without stating the obvious, families do better with a caring mother and father together in the same household.⁽⁵⁷⁾

Further, the South Australian Department of Human Services (DHS)⁽⁵⁸⁾ report on Woomera in April 2002 commended the Department's efforts to transfer young children to more family-friendly quarters but recommended that:

Families must be kept together at all times, which includes their stay in detention as well as being released together.⁽⁵⁹⁾

The Department states that the problem of separation was resolved by family visits to the Woomera detention centre:

Although male members of the family over 12 years of age are not eligible to participate, the integrity of the family unit [is maintained] by ensuring participants regularly visit family remaining in the Woomera IRPC. These visits are made once or twice a week.⁽⁶²⁾

However, several detainees at the housing project complained to Inquiry staff that these visits were much less frequent than they would like. ACM policy allows daily visits; however, there are differing views on how often those visits occurred in practice. Detainees suggested the visits were less frequent and ACM confirmed that detainees 'were unable to visit the Woomera IRPC on demand and at short notice, however that was usually due to the availability of transport'. However, ACM also highlighted that detainees were often taken to the detention centre for medical and legal appointments as well as for recreational activities.⁽⁶³⁾

In any event, the visiting scheme was little consolation to the fathers left in the facility for the majority of time. The Inquiry received evidence of a serious decline in the mental health of fathers after being separated from their family. One father deteriorated so seriously that his wife and son decided to go back to the detention centre to support him.

Another problem with the visiting scheme was that some children felt so traumatised by returning to the facility that they did not want to go there and visit:

I want my dad to go to the housing because I don't want to go back to the centre.⁽⁶⁴⁾

I don't like [to go] back to [the] centre. I remember all of my bad times. I can't [go] back to centre.⁽⁶⁵⁾

The Department stated that in April 2002 it had begun to 'trial visits by fathers to the Project site'.⁽⁶⁶⁾ While there was one visit on 28 April 2002, the next visit by fathers did not take place until September 2002, shortly before the Inquiry's visit.⁽⁶⁷⁾ A mother in the housing project said:

People like you come, then they organise some programs or plans for them. For example, for long time before that, [the children] were saying we want our father to come over and visit but it wasn't allowed but then, [name removed] came this Saturday and they were allowed to come from 12 till 4. They came over and then they said 'That's it', that was finished, that was only one time so, because they knew you were coming.⁽⁶⁸⁾

A child detained in the housing project reported in September 2002 that her father had only come to visit her once:

Before they can't come to visit. Only one week ago they let men come.⁽⁶⁹⁾

With the closure of the Woomera detention centre in April 2003, fathers were then detained more than 170 km away at Baxter. The Department told the Inquiry that there were regular visits including a mid-week day visit by fathers and older boys from Baxter to the Woomera housing project. There were also weekend visits of the mothers and children from the housing project to Baxter. Family members could stay overnight in the Baxter facility.⁽⁷⁰⁾ As these arrangements only started in 2003, the Inquiry has not spoken to detainees about the implementation and impact of these arrangements.

The Department emphasises that detainees' transfer to housing projects is voluntary and therefore the splitting of the family is a choice that parents can make for themselves. However, it is of concern to the Inquiry that parents are forced into the position of choosing between the family being together and allowing their children to live in a more hospitable environment than a secure detention centre. This so-called choice is contrary to the spirit of the CRC which provides both that the detention be a matter of last resort and that the family stay together. It is also inconsistent with the Department's argument that it is in the best interests of children to be detained with their parents, as discussed below.

(d) What other problems do children face in the housing project?

It appeared to the Inquiry that while women and children were initially extremely relieved to be able to leave Woomera detention centre and happy about the improved environment, as time went on the 'freedoms' of the Woomera housing project seemed less and less significant. For instance, while many of the women were pleased to be able to do their own shopping and cooking, some felt insulted that they did not have control over what they could buy:

They won't give you, you know free like that you can enjoy from your shopping. Now any time since I am [at the housing project], any time I would go to shopping I come back upset with a headache because just they make it bitter for us, like there's discussing about everything.⁽⁷¹⁾

The independent report that the Department commissioned in March 2002 addressed these tensions and recommended the following:

Guidance, not heavy handed direction, is what is required. Not the sort of action recounted to me by a local Woomera resident who was in a checkout queue and said she was greatly embarrassed for a Project resident when a staff member loudly went though her shopping and took out all items which she decided the resident could not have.⁽⁷²⁾

Several of the women who spoke to the Inquiry also highlighted that having several families sharing a three-bedroom house created serious friction. This was exacerbated by the already fragile mental state of most of the mothers. The doctor for housing project detainees presented the problem as follows:

It is not hard to understand that when you place a number of families all of which are suffering from mental illness into the same accommodation it is almost certain that the abnormal social dynamics which will develop will lead to problems.⁽⁷³⁾

Another problem raised by both detainee mothers and health staff was that often one mentally ill mother ended up looking after the child of another mentally ill mother. While there appears to have been some desire to help one another, the lack of special support for these arrangements caused substantial tensions between families living in the same house.

One mother interviewed at Baxter detention centre told Inquiry staff that:

If the Whyalla housing project [proposed for Baxter] is like Woomera then it is no good. You can't put three families in a house with 1 toilet, 1 oven etc. You need a house for every family.⁽⁷⁴⁾

Another family described the impact that the crowded housing had on the ability of the children to learn:

At that house there are three rooms and it's been allocated for three families and then [the children] need to study, they need to study other lessons or English but it's difficult, it's impossible because of the house, the house is full of people. And then there is only one wardrobe, they have their clothing there ...the boy's stuff, my stuff and also [the children's] books, and if they need something, like a book or something they have to take out everything so that they can get what they want. And that's why they always cry, all the time they're crying.⁽⁷⁵⁾

6.4.2 Home-based detention

Home-based detention refers to a system whereby members of the community are designated as persons authorised to 'detain' children and their families. As the Department explains it:

[P]ersons who have duties in relation to unlawful non-citizens outside Immigration Detention Facilities (IDFs), such as foster carers accommodating unlawful non-citizen children in places approved as alternative places of detention, will be designated as persons who may 'hold' a detainee 'on behalf of an officer'. ... there is no conflict between the need for detainees to be 'held' on one hand, and the ability to place detainees with special needs in 'alternative' places of detention on the other.⁽⁷⁶⁾

January 2002 - two months after this Inquiry was announced - was the first time that the Department actively pursued the option of home-based places of detention for unaccompanied children.⁽⁷⁷⁾ Several homes and schools in Adelaide were declared as alternative places of detention ('declared places') and several foster carers and school principals were directed to accompany and restrain detainee children ('directed persons').

The effect of this initiative was that by the end of April 2002, 17 of the unaccompanied children who were still detained in Woomera and Curtin at that time had been transferred to places in the community, went to schools in Adelaide and otherwise moved around Adelaide as long as they remained in declared places or in the presence of directed persons. Later in the year a further two unaccompanied children were transferred from Woomera detention centre to home-based detention.

As at 28 November 2003, there were five unaccompanied children in detention centres (two in Villawood and three on Christmas Island) and ten unaccompanied children in home-based places of detention. A child detained with relatives who were not his parents, was transferred into the care of family in the community in 2003, after two and half years in detention centres. At least four children detained with their parents were also placed in home-based detention (without their parents) - one in August 2001 and three siblings in November 2003. Only two whole families were transferred to home-based detention between 1999 and 2003.⁽⁷⁸⁾

(a) Recent history of foster carer homes being used as alternative places of detention

The arrangements for the transfer of just under 20 unaccompanied children to foster carer homes as places of detention over 2002 commenced 'at the time of the tensions in Woomera IRPC in January 2002 ...in order to protect them from incidents of self-harm and hunger strikes'.⁽⁷⁹⁾ Case Study 3 in Chapter 14 on Unaccompanied Children sets out the circumstances of the unaccompanied children involved in the hunger strikes and lip-sewing in some detail. The documents provided by the Department indicate that the sequence of events immediately leading up to these arrangements was as follows.

On 14 January 2002, the Deputy Manager of Woomera wrote to Family and Youth Services (FAYS, within DHS) requesting assistance regarding one 12-year-old and two 14 to 15-year-old unaccompanied children in Woomera who were becoming 'increasingly despondent'. The Deputy Manager states:

I would like to look into the possibility of having these minors alternatively housed, outside the detention centre environment. This may not be possible, as a delegate of the Minister would have to consider the issuing of a bridging visa before any of the minors could be released from detention. However, I would like to ask your assurance in assessing the needs of these children - and looking into whether or not appropriate families could be located for any or all of them - with a view to making a recommendation concerning possible bridging visa issue. This has been done from this centre once before that I am aware of.⁽⁸⁰⁾

On 16 January 2002, hunger strikes began in Woomera in response to the Minister's announcement that all processing of applications by Afghan asylum seekers would be halted. The hunger strikes were accompanied by acts of self-harm. FAYS was called in to assess children participating in these events.⁽⁸¹⁾

On 24 January 2002, the Executive Director of FAYS wrote to the Acting First Assistant Secretary of the Department providing the name and address of the foster carers who would look after the children mentioned in the 14 January letter. The children were not issued with bridging visas but rather transferred to foster carer homes which had been declared places of detention.

On 26 January 2002, the Executive Director of FAYS wrote to the Department stating that another three unaccompanied minors who were self-harming should be 'removed as a matter of urgency from the Detention Centre'.⁽⁸²⁾ One child was assessed as 'highly depressed with an inability to focus his energies on anything other than dying via starvation and dehydration'. On 27 January 2002 FAYS wrote to the Department with foster carers and addresses for these children.⁽⁸³⁾

On 29 January 2002, the Executive Director of FAYS wrote to the Department regarding the remaining unaccompanied children in Woomera:

The Department of Human Services remains seriously concerned regarding all minors in Woomera. They have stated that they are intending to 'group suicide' and whilst this statement can be regarded as an attempt to pressure the Commonwealth government to release them from detention the risk of suicide remains high. This is particularly so given the hopelessness expressed by them and the tendency to reinforce one another's behaviour. The Department strongly recommends that these young people be placed outside of the Woomera Detention Centre.⁽⁸⁴⁾

The assessment report in relation to those children attributes their behaviour to 'exposure to recent self harm behaviours and the movement out of Woomera of other [unaccompanied children]'.⁽⁸⁵⁾

By 7 February 2002, nine more unaccompanied children had been moved to foster carer homes in Adelaide which had been declared as alternative places of detention.⁽⁸⁶⁾ But there were still several unaccompanied children in detention about whom FAYS reiterated its recommendation that they 'be placed outside the Woomera Detention Centre to ensure their safety'.⁽⁸⁷⁾ The next day foster home placements were found for these children.⁽⁸⁸⁾

The South Australian authorities also made several recommendations for the removal of children with their parents from Woomera into the community. None of these children were transferred to home-based alternative places of detention.

The Department should be commended for acting so quickly to remove unaccompanied children from Woomera during the chaotic period of January 2002. However, the Department's action during this time raises several questions:

• What is the nature of the alternative detention arrangements with South Australia?
• Why were children not transferred to home-based detention prior to January 2002?
• Why were only unaccompanied children removed from the facility to home-based detention?
• Have these arrangements been used anywhere other than South Australia?

(b) What is the nature of the home-based alternative detention arrangements made with South Australian child welfare authorities?

Unaccompanied children transferred to home-based detention can live in a home and go to a community school like other children, except that they must be 'held by or on behalf of an officer'. Should they want to go anywhere that is not a declared place of detention, they must be accompanied by an officer or other person who is approved by the Department (a directed person).⁽⁸⁹⁾ The Department may decide to return children in home-based detention to a detention centre at any time.

The Department retains ultimate control and responsibility for the children's care and whereabouts. However, the Department has entered negotiations with DHS to clarify the relative roles and responsibilities between the Department and DHS.

The first version of the draft agreement with DHS regarding alternative detention arrangements was exchanged on 24 January 2002. As at 28 November 2003 there was still no signed agreement.⁽⁹⁰⁾ However, the Department provided the Inquiry with a draft agreement that appears to have been drafted in July 2002 and noted that negotiations were still going on regarding costs, arrangements for education, reporting arrangements and indemnity.

Under the July 2002 draft agreement, the Department 'maintains ultimate duty of care for all detainee minors' and is 'responsible for any compliance action which is required should a detainee minor abscond'.⁽⁹¹⁾ In any event, since the Minister is the guardian of the unaccompanied children, he or she will retain those special responsibilities as will any Departmental delegates, including Managers of the detention centres.⁽⁹²⁾

DHS is responsible for the safety, care and development needs of detainee minors and must use its 'best endeavours to ensure that the detainee minors are available for the purposes of immigration processing and/or removal or repatriation as requested by DIMIA'.⁽⁹³⁾ Furthermore, as the State authorities also have delegated powers of guardianship with respect to unaccompanied children, those special powers may also be exercised.⁽⁹⁴⁾

However, it is the responsibility of 'directed persons', who will usually be DHS staff, teachers and foster carers, to 'remain with the child during any time they are outside an approved place of detention', for example, if there is a school excursion.⁽⁹⁵⁾

If it appears to a directed person that the child may try to disappear, 'the directed persons are expected to use their powers of persuasion, conflict resolution and negotiation to attempt to gain the detainee minor's cooperation',⁽⁹⁶⁾ but are not expected to use force.⁽⁹⁷⁾ In any event, none of the children transferred to foster care detention over 2002 have either attempted to, or actually, disappeared.

(c) How quickly can unaccompanied children be transferred to home-based places of alternative detention?

The Department emphasises that it must conduct a 'responsible and considered assessment of alternative arrangements' and that these assessments can take time.⁽⁹⁸⁾ In particular, the Deputy Secretary highlights difficulties in finding people who are prepared to ensure that the children will be 'available for processing and removal'.⁽⁹⁹⁾

However, as set out above, the series of events in January 2002 demonstrate that transfer to foster homes can be arranged literally overnight in times of crisis, as is the case in the broader community when child welfare agencies routinely place a child at risk into care at a moment's notice. It is therefore unclear to the Inquiry why it took such dramatic displays of despair to arrange for the placements.

Some of the children who were transferred from Woomera to Adelaide during January and February had been held in Woomera for more than eight months and all had been in detention for over four months.⁽¹⁰⁰⁾ The eight months preceding January included several riots, demonstrations, fires and substantial numbers of self-harm attempts to which children were exposed and in which some children participated.⁽¹⁰¹⁾Therefore, if the Department was generally concerned 'to protect unaccompanied children from incidents of self-harm and hunger strikes' it seems that action to remove them from the detention centres would have been warranted prior to January 2002.⁽¹⁰²⁾

In any event, the South Australian child welfare authority clearly links the levels of despair and depression of children with detention in Woomera. Given that the Minister and his or her delegates have a special responsibility to ensure the best interests of the child are a primary consideration while in their care, the Inquiry regards it as inadequate that the Department did not routinely and immediately transfer unaccompanied children to home-based detention.

The Department offers the explanation that prior to January 2002, it considered that:

taking into account all the circumstances, it was in the minors best interests to be appropriately cared for in a detention facility, ensure their availability for priority processing and initiate family tracing action through the Australian Red Cross.⁽¹⁰³⁾

However, the Inquiry is not satisfied that the best interests of these children were adequately considered prior to their placement in home-based detention. The Migration Series Instructions (MSI) tabled by the Department on 3 December 2002 suggests that there may be some changes in the future. For example, MSI 370 states that:

It would be usually in the best interests of an unaccompanied ward to be transferred out of a detention facility.⁽¹⁰⁴⁾

(d) Why only unaccompanied children?

On 24 October 2002, the Inquiry issued a Notice on the Department to produce information and documents regarding transfer into alternative places of detention of both unaccompanied children and children with their families. Since the response of the Department did not include any material with respect to the placement of entire families in the community, the Inquiry concluded that there were no formal arrangements. The Inquiry addressed the question to the Department again during the hearings with the Department in December 2002 and the Deputy Secretary provided information about one discrete family.

INQUIRY COUNSEL: ... Is the Department aware, or has there been any case, where an entire family has been put in a similar sort of foster arrangement, I suppose, when the Department has received advice from a State authority to the effect that (a) it's in the interests of the family to be released from detention, and (b) it's in their interests for the family as a whole to be released? Has there been any case where an entire family has been put into a similar sort of foster care arrangement?

MS GODWIN (DIMIA DEPUTY SECRETARY): I think from my memory there is a family in an alternative place of detention, not strictly speaking a foster placement as such, but where an organisation has agreed to take responsibility for their ongoing care and also to make sure that they're available for immigration processes, whether that's application or removal. But I return to the point that I made before. I'm also aware of another situation where we were attempting to establish that and there were considerable difficulties identifying a place that was both able to provide - or an organisation able to accept responsibility for - the provision of care and support and willing to take responsibility for having them available for immigration processing.

Now, it's certainly been the case that over the years numbers of community organisations have come forward saying, you know, that they're prepared to provide support in these situations but it has most often been the case that when what they're actually committing to is explored, they regard it as outside their ambit of responsibility to agree to co-operate in having people available for removal and I understand their point here. They say that's not their responsibility, but if they are not prepared to take that responsibility, then it falls to the Government to find ways of meeting that obligation in the most appropriate way that it could be done.⁽¹⁰⁵⁾

It appears therefore that the Department viewed community detention for families as a possibility in principle, but rarely in practice. The Inquiry understands that there are many pressures on community groups which may mean that they are not willing to take on the role of 'detaining' children and their parents as required by the Migration Act, especially in the absence of additional funding. However, the Inquiry also understands that an increasing number of individuals and groups are willing to take on such a task. In any event, during the Inquiry's visits to detention facilities, staff met several detainee families with close family in the Australian community who were apparently willing to take responsibility for them. In at least one case a child's parent was in the community.

The Inquiry has not received specific evidence as to whether the reason the Department has not routinely transferred children in detention centres to the supervision of a family member living in the community - and almost never to a welfare organisation - is, as the Department suggests, because family members are unwilling to take the responsibility of ensuring availability for removal. However, the information before the Inquiry suggests that this is not an option that was actively explored over the period of the Inquiry. The December 2002 MSI issued on Alternative Places of Detention supports this conclusion in that it considers the possibility of transferring detainee families to the custody of community groups, but not relatives.

The reluctance to more actively pursue the opportunities available under the Migration Act to transfer families from closed detention facilities to alternative places of detention, is particularly troubling in the light of the frequent recommendations by the South Australian authorities that families be released from detention. For instance, in the case of Woomera in January 2002, the South Australian authorities wrote to the Department with respect to several families stating that:⁽¹⁰⁶⁾

It is the view of [DHS] that none of the notified children can be assessed as safe whilst they remain in the current situation and that for any adequate assessment to occur the children and their families should be removed from the Centre and thoroughly and professionally assessed.⁽¹⁰⁷⁾

(e) Are there home-based alternative detention arrangements outside South Australia?

In a Notice issued to the Department on 24 October 2002 (Notice 4), the Inquiry required information regarding all arrangements or agreements that existed between the Department and any State agencies or non-government bodies relating to the provision of and funding or payment for the transfer of children to alternative places of detention. The Department's response was that alternative detention occurred on a case-by-case basis but that:

a broader, more formal operational framework is in place between DIMIA and the South Australian Department of Human Services (DHS) regarding the placement of some detainee minors in alternative detention arrangements in the community. These arrangements are reflected in a draft Agreement between the department and DHS.⁽¹⁰⁸⁾

The Department did not notify the Inquiry of any arrangements with States other than South Australia nor provide any explanation as to why 'formal arrangements' had not been entered into in any other State. However, documents provided by the Department to the Inquiry indicate that two of the unaccompanied children placed in alternative detention in Adelaide had been transferred from the Curtin facility in Western Australia.

The Department also provided details of arrangements that have been made for one family to be 'held' by a community group in Victoria.

6.4.3 Findings regarding alternative places of detention

The recent efforts by the Department to improve the conditions of detention for women and children are to be commended. These efforts demonstrate that there is scope within the Migration Act to ensure detention is more appropriate to the needs and interests of children. Indeed, that scope has been there since at least 1994.⁽¹⁰⁹⁾

The transfer of almost 20 unaccompanied children to foster care detention in the community is a clear advance in the physical conditions of detention when compared to facilities like Woomera and Curtin. Psychologists report an improvement in the mental health of children when they leave the closed detention environment. Children in home-based detention told the Inquiry that they were pleased to be living in Adelaide and meeting Australian children:

I am quite good now, because I go to school and I don't have much pressure like I had before.⁽¹¹⁰⁾

However, the Inquiry is concerned that this initiative only commenced in January 2002, after most of the unaccompanied children who had been in detention centres between 1999 and 2001 had already been released. Many of those unaccompanied children had spent long periods in detention and would have benefited from speedy transfer into the community.⁽¹¹¹⁾Further, the children who were transferred in January 2002 had suffered for some time in the detention centres (see further Case Study 3 in Chapter 14 on Unaccompanied Children).

Furthermore, over the period of the Inquiry, the concept of home-based detention in the community was applied to only one whole family. One more family was transferred into community detention in September 2003.⁽¹¹²⁾

The Department appears to be of the view that residential housing projects provide a good solution to the difficulties facing families in detention and has frequently declared the success of this initiative. For instance, in foreshadowing the closure of the Woomera detention centre, the Minister stated that:

The very successful Woomera Residential Housing Project (RHP) will remain open and all residents will be offered the opportunity to stay in the Project or move to Baxter with their partners.⁽¹¹³⁾

However, the evidence provided to the Inquiry does not support such a definitive conclusion about the success of the Woomera housing project. The Inquiry recognises that the housing project provides an improved physical environment and a closer approximation to family-style living than in detention centres. Children in the housing project are not exposed to riots and other disturbances taking place in the detention centre and have easier access to excursions into the community. However, closer examination reveals that the continuing restrictions on liberty have diminished the positive impact of the project on women and children. In the words of two children who were living in the housing project:

CHILD 1: The [detention] centre has its own problems and the housing project has also its own problems. Like I think both are equal. Just here is like ... the shape is different -

CHILD 2: Yeah, there also just the shape and the look is like better there and maybe we cook but still we have some problems that is equal with the [detention] centre.⁽¹¹⁴⁾

The most dramatic restriction regarding the lives of participants in the housing project is the condition that fathers stay in the detention centre. This condition exacerbates the already fragile mental state of families and has not been adequately justified by the Department. While there is no compulsion on two-parent families to volunteer for the project, the Inquiry is of the view that asking families to choose between a less harsh environment for their children and separation from their father is unfair. While this condition does not impact on single mother families, they have also found it difficult to conduct 'normal' parenting in the housing project.

The doctor providing care to detainees at Woomera wrote to the Department in October 2002 setting out his concern that:

at the current rate of deterioration of the families housed [at the housing project] ... it will not be long before the project must be considered a failure and alternatives found for the detention of those held there.⁽¹¹⁵⁾

The housing project highlights one of the recurring themes of the Inquiry, namely that despite efforts by the Department to improve conditions of detention, it is the detention per se - the deprivation of liberty and autonomy - that is more often than not a primary cause of distress for children and their parents (see further Chapter 9 on Mental Health). This is not a new discovery and explains why the CRC imposes such strict limitations on the circumstances under which children may be detained - in particular that it be a measure of last resort and for the shortest appropriateperiod of time (as required by article 37(b) of the CRC).

Section 6.5 examines whether the failure to ensure the prompt transfer of children to alterative places of detention in the community suggests a failure to make the best interests of the child a primary consideration. Sections 6.6.3 and 6.7.7 assess whether the transfer of children to residential housing projects and home-based detention have any impact on Australia's compliance with the right to be detained as a matter of last resort and for the shortest appropriate period of time.

6.4.4 Pacific Solution' detention facilities

'Since late 2001 the number of children in Australia's detention facilities has been gradually declining. One of the reasons for this reduction lies in the fact that, since September 2001, most children attempting to make the journey to Australia by boat have been transferred by the Australian Navy to detention facilities in Papua New Guinea or Nauru. In other words, child asylum seekers heading for Australia on boats are not usually detained in Australia but in third countries.⁽¹¹⁶⁾ This transfer of asylum seekers is the primary feature of the Government's 'Pacific Solution' strategy.

Under international law, Australia continues to be responsible for any foreseeable breach of the human rights of the children that it forcibly relocates to third countries.⁽¹¹⁷⁾Therefore, Australia is responsible for any breaches of human rights that it can foresee will occur with respect to the children that the Australian authorities transfer to Nauru and Papua New Guinea. This includes the decision to detain and the length of detention of children in those countries.

The Department appears to agree with this proposition with respect to asylum seekers who enter Australia's waters:

Australia's protection obligations extend to refugees who have entered Australia's jurisdiction by entering its territorial seas. The Pacific strategy in no way detracts from these obligations.⁽¹¹⁸⁾

The Inquiry sought assistance from the Department to facilitate visits to the detention facilities in Nauru and Papua New Guinea. However, the Department has taken the view that while Australia has some responsibility for the rights of children detained in Nauru and Papua New Guinea, this Inquiry's jurisdiction does not extend to inspecting those facilities and interviewing those children. The Inquiry does not accept this view. However, without the cooperation of the Department it has not been possible for the Inquiry to properly assess the conditions in those centres.⁽¹¹⁹⁾

Accordingly, while the Inquiry has received some submissions regarding detention in Nauru and Papua New Guinea, the Inquiry has been unable to collect any primary evidence on the conditions in the facilities and the impact that they have on child detainees. The Inquiry is not, therefore, in a position to comment in any detail on whether the conditions in those facilities meet standards required by the CRC.

Nevertheless, the Inquiry is in a position to comment on how the 'Pacific Solution' legislation impacts on Australia's obligation to ensure that these children are detained as a matter of last resort and for the shortest appropriate period of time. Therefore, throughout this chapter, the Inquiry has briefly assessed whether detention in Nauru and Papua New Guinea pursuant to the Migration Act, might breach article 37(b) of the CRC.

Furthermore, in Chapter 16 on Temporary Protection Visas, the Inquiry comments on the impact of detention in 'Pacific Solution' countries on family unity.

6.5 Is detention in the 'best interests of the child'?

The principle of detention as a last resort and for the shortest appropriate period in article 37(b) amounts to recognition by the international community that the deprivation of liberty is rarely in the best interests of the child. Indeed, many studies have considered the impact of institutionalisation on children and conclude that the social and psychological effects can be long term and serious.⁽¹²⁰⁾

In making a decision to detain children, the Commonwealth is obliged to consider the following issues, with the best interests of each child as a primary consideration:

• Should a child be detained?
• For how long should a child be detained?
• Where should a child be detained?

As discussed throughout this chapter, the Commonwealth legislature has made a universal decision in relation to questions of whether or not a child should be detained. The Migration Act requires all children who arrive in Australia without a visa to be detained, no matter what their individual circumstances. This blanket approach raises immediate concerns regarding the 'best interests' principle because it prevents the best interests of each child being considered in the 'decision' to detain - indeed, it prevents any decision at all. The Department has recognised that its first opportunity to actively consider the best interests of the child is only after the child is detained:

In the context of administering the Migration Act, when making any decisions regarding the best interests of the child, departmental officers must consider those interests in the context that the child is required by law to be detained.⁽¹²¹⁾

Regarding the length of detention, the Department states that the availability of bridging visas in the Migration Regulations properly takes into account the best interests of the child. Section 6.7.4 below suggests that highly restricted use of this mechanism makes it difficult to accept that the best interests of the child were a primary consideration in either developing or applying the bridging visa rules to children in detention.

There are two key decisions to be made in relation to the location of detention. First, whether the child should be detained in a detention centre or an alternative place of detention (for example home-based detention or residential housing projects)? Second, if detention is to be in a detention centre, which one? These questions are closely related to a further decision, namely the conditions under which children should be detained. Some of the factors to take into account in these decisions include the ability of children to gain appropriate access to:

• migration application assistance (see Chapter 7)
• health and mental health services (see Chapters 9 and 10)
• disability services (see Chapter 11)
• education and recreational opportunities (see Chapters 12 and 13)
• cultural and religious communities (see Chapter 15).

Certain detention centres also create serious risks of exposing children to physical violence (see Chapter 8 on Safety).

In some cases decisions concerning in which detention centre to place a child can have implications for the unity of a family, as set out below.

6.5.1 How does the 'best interests' principle apply to children detained with their family?

There is little debate that it is in the best interests of the child, in most circumstances, to live with his or her parents. The question is what impact that has on decisions made within the context of the mandatory detention system.

(a) The 'best interests' principle and the decision to detain a family

The Australian Government and the Department have stated on several occasions that the principle of family unity in article 9 of the CRC means that it is usually in the best interests of the child to be detained because their parents must be detained:

The Government recognises it would be preferable if children and their families did not need to be detained. However where detention is required by law because they are unauthorised arrivals, or have breached visa conditions, it is the Government's considered view that it is in the best interests of child for them to remain with their parents, family or fellow country people.⁽¹²²⁾

The Inquiry rejects this argument. It is flawed for a number of reasons.

First, the decision to detain children does not arise from a consideration of their best interests following the detention of their parents. Children are detained for the same reason and at the same time as their parents. They are detained on arrival because they are unlawful non-citizens. There is no consideration of children's best interests before they are detained.

Second, the argument implies that there is no choice but to detain parents. This is obviously incorrect. The Commonwealth has made a decision to detain all unlawful non-citizens, including children and their parents. If the Government believes that it 'would be preferable if children and their families did not need to be detained', they may propose changes to the legislation that permit that preferred position. They have not done so.

Third, a proper consideration of the best interests of the child does not seek to trade off rights against each other when they are, in fact, compatible. The above argument suggests that the right of a child only to be detained as a last resort is to be traded for the right to family unity in the name of his or her best interests. The Inquiry rejects such an approach. Instead, the best interests of the child are met by allowing the child to remain with their parents and be at liberty. Such a result can be achieved by the Commonwealth if it chooses to provide such an option under the law. It has chosen not to do so.

During the public hearings many witnesses were asked to respond to the Minister's assertion that it is usually in the best interests of children who are with their parents to remain in detention in order to keep the family unit together. The following are some of the responses to that proposition:

No one can seriously argue that it is in the best interests of the child to detain children. The government attempts to argue that it is in their best interest because of the family unity. Now, we agree that family unity is vital and an integral right under the Convention. However, it can't be used as a justification to detain children. It must be read in totality, this Convention, not in isolated bits. The Convention really can't be used, in fact is misused, if we justify a position of one evil versus another. It is not a choice between detaining children with their family or releasing children and separating them from their family. Children and their families need to be released from detention.

UNICEF Australia⁽¹²³⁾

DR OZDOWSKI: Could I ask you, there is a picture of this dilemma in terms of policy because the Minister is saying that he is showing the best interests of the child by keeping the whole family in detention rather than allowing separation and letting children out or letting mothers and children out. How do you see ...

DR POWRIE: Well, from a child developmental point of view there is no dilemma. A child's development is best supported within a healthy family context where parents are free to care for their child in their culture and supported in a way in which they see fit as parents.

Australian Association for Infant Mental Health⁽¹²⁴⁾

DR OZDOWSKI: The Minister is often saying that he cannot release children because it is in the best interests of children to stay with their parents, and the parents have got to stay in detention.

MR MANNE: Yes. Yes, well, one of the fundamental issues in relation to the best interests of the child is also not being exposed to an environment which could cause them harm. I don't need to speak or to lecture you on the problems that we face in detention at the moment, but clearly there is a culture of where self-harm has become a norm in detention, where there have clearly been lots of other problems, problems which are caused again in our view by the system that we have.

The best interests of the child, whether with a family or unaccompanied, in our view cannot be to remain in an environment as problematic as that. And indeed, our other view would be that in relation to - and I would like to provide the Commission with some further written materials on this - but if the presumption was that children ought not be, as a presumption detained, surely the principles of family unity would require that if a child is not to be detained because it is harmful, then also families of those children ought to be released with those children. That would be our basic position.

Refugee and Immigration Legal Centre⁽¹²⁵⁾

(b) The 'best interests' principle and the decision regarding location of detention

The Department states on the one hand that it is concerned to keep the family together, and on the other hand it makes separation of two-parent families a condition of transfer to a residential housing project (see further section 6.4.1 above). It is the view of the Inquiry that the exclusion of fathers from the housing project minimises the positive impact that the creation of the Woomera housing project may have had on compliance with the 'best interests' principle.

Furthermore, evidence before the Inquiry indicates that the Department has not made a child's best interests and family unity a priority when deciding in which detention centre to detain children. The Inquiry heard several examples of children who had a parent or close family members living significant distances from the detention centre where they were located. Refugee parents in the community cannot generally access their families in detention in remote centres as the distance and cost is too great.⁽¹²⁶⁾

For example, in 2001, an unaccompanied Iraqi boy was detained at Port Hedland while his mother and siblings were living in Melbourne on refugee protection visas. The Department considered transferring him to Maribyrnong to be closer to his family. The decision hinged on whether the child could be 'managed' at Maribyrnong, rather than the imperative of being close to his family:

Follow-up with regard to [the child] and determine whether a transfer to Maribyrnong IDC is possible so that he can be close to his family who are living in Melbourne after being released on TPVs. This depends on whether he can be managed effectively at [Maribyrnong] and other operational considerations.⁽¹²⁷⁾

Children of another family at Woomera in 2002 had not seen their father for three years since fleeing Iraq.⁽¹²⁸⁾ He was living in Sydney while they were detained at Woomera. They had telephone contact with him, but the boys were clearly bitter about 'the protracted separation from their father and the futility and irrelevance of their existence in a Detention Centre environment'.⁽¹²⁹⁾ The boys were lacerating their arms and drinking shampoo.⁽¹³⁰⁾

The Department gave the following general explanation for its refusal to transfer families between detention centres for family unity reasons:

Transfers are administratively and logistically challenging and costly. In considering any move to a different place of detention, relevant factors include the available places of detention, infrastructure and support services, capacity to meet visa processing and reception requirements, and management of diverse detainee populations.

Detainees may sometimes seek a transfer on the basis of having family or friends in areas close to other detention facilities (such as Villawood IDC). It is not administratively practical, cost effective or equitable to move detainees for that reason alone. Such issues, however, may sometimes be relevant in consideration of management options for detainees with particular needs that cannot be adequately addressed in another facility.⁽¹³¹⁾

In the Inquiry's view, this response illustrates that neither the best interests of the child nor the principle of family unity were primary considerations in the Department's decision process regarding the location of children.

A third example of children who have been separated from their father by being detained in Woomera, involves a family of five children aged 3, 7, 9, 10 and 12 on arrival. The children were detained with their mother in Woomera. The father had come to Australia earlier, but at the time of arrival the mother did not know his whereabouts. Within three months the children had learned that their father was alive and living in Sydney on a temporary protection visa. However, it appears that the children's father only learned of his family's presence in Australia, by coincidence, a year after their arrival.

Case Study 1 at the end of this chapter outlines the sequence of events regarding this family and the impact that detention in Woomera, far from their father, had on the children. It highlights the range of options which could have been pursued by the Department or the Minister to ensure the best interests of the child and family unity at various stages.

6.5.2 How does the 'best interests' principle apply to unaccompanied children in detention?

Unaccompanied children require additional protection and assistance under article 20 of the CRC. The United Nations High Commissioner for Refugees (UNHCR) states that children seeking asylum should not be detained and this 'is particularly important in the case of unaccompanied children'.⁽¹³²⁾ The UNHCR guidelines, which apply the CRC to the situation of asylum seekers, also recommend the appointment of an independent guardian or adviser to ensure that 'the interests of the child are safeguarded'.⁽¹³³⁾ This is in recognition of the fact that children who are without their family need extra help to enjoy the same level of rights as children with their families, including someone to advocate that they be detained as a matter of last resort and for the shortest appropriate period of time.

Australian law seeks to provide this assistance by appointing the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) as the guardian pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act). The Minister, in turn, has delegated his powers to the Department's Managers and Deputy Managers in each of the detention facilities as well as to State and Territory child protection authorities.⁽¹³⁴⁾ The Federal Court of Australia states, and the Department readily accepts, that as guardian, the Minister and his or her delegates are required to act in the best interests of the children who are their wards.⁽¹³⁵⁾

Australia's detention laws do not make any distinction between the detention of unaccompanied children and any other child or adult. Thus all unaccompanied children arriving in Australia without a visa must be detained.

Regarding the length of detention, section 6.7.4 notes that over the period of the Inquiry, only one unaccompanied child was released from detention on a bridging visa. Section 6.7.5 notes that, over the period of the Inquiry, there was no specific priority for processing the visa claims made by children.

However, as set out above in section 6.4.2, from January 2002 almost 20 unaccompanied children were transferred from detention centres to home-based detention. The placement of these children in home-based foster care represented a clear step forward in applying the 'best interests' principle to unaccompanied children.

The Department's efforts to make the best interests of unaccompanied children a primary consideration regarding their care in detention centres is discussed in detail in Chapter 14 on Unaccompanied Children and throughout this report.

By December 2002 the Department formally acknowledged that the best interests of unaccompanied children would usually require that they not be in detention facilities. This statement was embodied in MSI 370 called 'Procedures for Unaccompanied Wards in Immigration Detention Facilities'. MSI 370 replaced MSI 357, which was issued in September 2002. The change between September and December represents a fundamental development in the Department's approach to the best interests of unaccompanied children.

MSI 357 issued in September 2002 stated:

13.2.1 It is in the best interests of an unaccompanied ward that his or herimmigration status be resolved in the shortest possible time after the conclusion of review of a refusal decision so that he or she is either released from detention on a visa or removed from Australia as soon as practicable.

Thus MSI 357 recognised that it would be in the best interests of unaccompanied children to be released from detention quickly, but only after a refugee claim has been refused at the primary stage (which can take many months). The MSI went on to provide that, in the meantime, if the Department Manager believed that the unaccompanied child's needs 'cannot be appropriately provided for', the Manager should investigate the possibility of transferring the child to a place of detention other than an immigration detention centre. The MSI then set out the steps that the Manager needed to go through to establish that their needs could not be provided for.

Three months later, in MSI 370, the Department replaced paragraph 13.2.1 (above) with the following:

13.2.1 It would be usually in the bests interests of an unaccompanied wardto be transferred out of a detention facility.

13.2.2 This can be facilitated by pursuing alternative detention arrangementsor, if the child is eligible, granting them a bridging visa.⁽¹³⁶⁾

Thus, by December 2002 - ten years after the introduction of mandatory detention - the Department began to assume that satisfying the best interests ofunaccompanied children usually requires their release or transfer from detention facilities.

However, the Department continues to suggest that it may be in the best interests of some unaccompanied children to remain in detention. For example, the Department has stated that it may be in a child's best interests to remain in the company of persons they have made friends with:

INQUIRY COUNSEL: Well, let me ask you this, does the Department say that in detaining each and every one of the unaccompanied minors at the Woomera Detention Centre over the past three years or so the Department took into account as its primary consideration the child's best interests?

DIMIA DEPUTY SECRETARY: Well, that's our overall position. But clearly, as Mr Walker said, there are a range of other considerations. Best interests of the child, as we understand it, is required to be a primary consideration but not the only consideration and there were a variety of other circumstances and considerations that needed to be taken into account including, for example, the groups with which people have turned up. People often wanted to stay together as a group even though one of that group was an unaccompanied minor.⁽¹³⁷⁾

The Inquiry is not convinced that this is a good reason for an unaccompanied child to remain in detention and, to the best of the Inquiry's information, there has been no instance of a State child welfare authority recommending that a child stay in detention so that he or she can remain with his friends.

The Department also suggested that the release of unaccompanied children into the Australian community may expose them to people smuggling rings in Australia:

Account must be taken of factors such as ... the possibility of falling into the hands of people smugglers who traffic in children (as has been documented in overseas countries such as Canada).⁽¹³⁸⁾

The Inquiry does not accept that this is an issue of real concern in Australia for unaccompanied minors for whom the Minister remains the guardian. There is no evidence to suggest that these children are at serious risk of 'falling into the hands of people smugglers'.

The Department states that between 3 December 2002 and 16 May 2003, 25 unaccompanied minors were assessed against MSI 370. Eight children were transferred to alternative places of detention, one was granted a bridging visa, nine turned 18 (or were re-assessed as being over 18), three were removed from Australia and four were assessed to be a high risk of absconding and therefore remained in detention facilities.⁽¹³⁹⁾

It is important to note that while these MSIs represent a positive development in the Department's approach to unaccompanied children, they do not represent any change in thinking regarding the detention of children with families.

6.5.3 What do children think about being in detention centres?

Many of the submissions to the Inquiry report the views of children who have spent time in detention centres.⁽¹⁴⁰⁾ Those submissions and the children interviewed by Inquiry staff in focus groups and in detention facilities give a clear picture of what children thought about detention:

A feeling of darkness came on me in the detention centre, and all my hope disappeared. My world has been dark ever since.⁽¹⁴¹⁾

It was like a desert ... It felt like we were in a cage. We could not go anywhere with all the fences and that stuff ... It was like jail as there was no care ... [M]any of the people were angry because of the time they were in detention. The children were crying. My father is so angry and I don't know why ... It was a bad experience. There were no times when we were happy there ... We were at war in Afghanistan because of the Taliban and we thought we have come to another war here. In the detention centre, always soldiers all around us. Oh my God, can the Taliban get us again? ... It was so hot, so very hot and lots of flies and we needed a fan.⁽¹⁴²⁾

The whole condition in the camp is really, really bad, people are really stressed. Those people they are there for a long time they get really agitated. They used to come to [dining room] for example ...a guy sits there for a while and then he gets really upset, mentally sick and he just pulls the chair and throws it away and causes lots of fight and scaredness between people - young people, children - because the restaurant it (is) for everybody, everybody is there.⁽¹⁴³⁾

Drawings on a school desk at Port Hedland, June 2002.

Three Afghan unaccompanied children who had spent some time in detention before being recognised as refugees and released into the community have the following views about detention:

I think there should not be any detention for children at least. All these Afghans that are spending months or years in detention, they have not done anything wrong, they are not criminals and they should listen to them. But there should not be any detention for children. They should be free.⁽¹⁴⁴⁾

I actually experienced lots of negative things in there. For the time that I was there, I remember that there were young children who were living with adults, always having nightmares and I could see and I could hear them screaming at night time and once I saw with my own eyes that someone had broken a window and with that glass cut himself. And I have also witnessed someone who cut himself with a blade.⁽¹⁴⁵⁾

I experienced a lot of violent people, experiencing negative things, especially when they put us with people who actually spend one year or one and a half years there. They are the people who experienced lots of negative things who have lost their mental power and they always talk about the negative things that they experience. For example, in my case, even though I spent only three months in that detention centre, I was in contact with a man who spent actually one and a half years of his time in Australia detention centre and he asked me he said 'you're a new person, you are a new arrival so you don't know what you will be going through' and then he was telling me about all the negative things that he will do and that made me even more heartbroken and even more scared and afraid and I just remember that another fellow, he had to go and visit a friend who is in mental hospital because he spent quite a long time in detention centre and he lost his mind and he ended up in hospital. ¹⁴⁶

An Australian teenage girl who made friends with children in detention describes their experience as follows:

... the people that I talk to in the detention centres have told me of their experiences. They believe that the worst thing about detention is the psychological trauma of waking up and not knowing why exactly you are there, how long you are going to be there for, and what is going to happen if you are eventually given a TPV or sent back; so that is the worst.

Also, boredom, not having formal schooling so therefore spending all day thinking about what has happened to you and what can happen to you. Being called by numbers makes them dehumanised, makes them feel like animals, not like individuals, not like people - that, again, one of the worst things. Also, being surrounded by depression - constantly depression makes them also depressed. By seeing older people give up it shows them that the only way is to give up.⁽¹⁴⁷⁾

6.5.4 What do State child welfare authorities say about keeping children in detention centres?

Child protection authorities in States that have immigration detention centres have said, on various occasions, that the detention environment has a seriously detrimental impact on children. While many of these comments have been made in the context of assessments of particular children and families, some have also been of general application. The South Australian authorities have been the most vocal about the impact of detention on children.

DHS states that 'in the reports that have gone up to DIMIA it has been made clear that our view is that all children are at risk'.⁽¹⁴⁸⁾ Two of the individual assessments conducted by DHS of children in Woomera in February 2002 state that:

The detention environment is not suitable for impressionable adolescents and in this instance it is strongly compounding their sense of persecution. Ideally children such as [names removed] should not be in detention.⁽¹⁴⁹⁾

Ideally a family with children should not be confined in a detention centre.⁽¹⁵⁰⁾

DHS sent the Department an assessment report regarding Woomera dated 12 April 2002 which states at the outset that:

[DHS] maintains its previously stated position that it is not in the best interests of the child to be detained in detention centres ...⁽¹⁵¹⁾

Detention is often represented as a 'place' and as such a passive concept, however such a concept greatly underplays the impact of such facilities on the physical, psychological and emotional wellbeing of children, young people and their families.⁽¹⁵²⁾

A report conducted by the South Australian Child and Adolescent Mental Health Services (CAMHS) summarising the situation of families in Woomera from January to July 2002 states:

While each family has particular issues and difficulties, an overwhelming feature of the assessments was the clear evidence of the detrimental effects of the detention environment on the children both directly, (including inadequate developmental opportunities, exposure to violence and adult despair and removal of hope for their futures), and indirectly, as a consequence of parental mental illness.⁽¹⁵³⁾

In August 2002, DHS recommended:

That no child should be kept in the Woomera centre as it is an environment that fails to provide care and protection.⁽¹⁵⁴⁾

Furthermore, in a recent independent assessment of child protection in South Australia (the Layton Report), the chapter on Children in Detention states that:

Whether it be indirect or direct, the combined effect of the circumstances of immigration detention of children in detention centres is incompatible with them being in a situation which is in their best interests, instead the detention centre environment is positively detrimental to their well being.⁽¹⁵⁵⁾

In assessing the mental health of unaccompanied children in Port Hedland and Curtin detention facilities, the Western Australian Department for Community Development states that:

The best interests of children include that their development should, wherever possible, occur in a family environment within their own community.⁽¹⁵⁶⁾

The Department is of the view that the recommendation of the Western Australian authority is not incompatible with the provision of care to children in a detention facility. The Department has also expressed concern about the accuracy of the DHS report of 12 April 2002 and the Layton Report.⁽¹⁵⁷⁾ However, in neither case have the authors of the reports altered the content in response to the Department's complaints, indicating that they stand by their original assessments. The Inquiry accepts their assessments, which are supported by the overwhelming weight of evidence.

6.5.5 What do community groups say about keeping children in detention centres?

While the Government has asserted that public opinion supports Australia's detention policy generally, the Inquiry is not aware of any evidence suggesting support for the detention of children.⁽¹⁵⁸⁾ Of the 346 submissions received by the Inquiry, none argue that the detention of children is desirable - including the Department's submission.

Many of the written and oral submissions received by the Inquiry from human rights organisations, children's organisations and mental health experts argued that detention could never be in the best interests of the child. The following are just three examples of the many comments to this effect:⁽¹⁵⁹⁾

It is self evident in the material below on psychological and social wellbeing that if the primary consideration were the best interests of the child, none of the children in these interviews would have been placed in detention.

Asylum Seekers Centre⁽¹⁶⁰⁾

Unsurprisingly, medical and child welfare experts have concluded that holding child asylum seekers and their parents in immigration detention is contrary to the child's best interests.

Kids in Detention Story⁽¹⁶¹⁾

In short, our submission is that the current arrangements for detention of children in Australia fall conspicuously and depressingly short of meeting our international obligations to act in the best interests of the child, which is clearly the guiding principle on this issue. The relevant rights set out in international laws and guidelines recognise the distinct vulnerability, and the need for protection and care of children. The current arrangements for detention of children in Australia in many respects do not meet those basic requirements ...

Refugee and Immigration Legal Centre⁽¹⁶²⁾

If appropriate arrangements are made for the care of unaccompanied children in the community, it is difficult to imagine that it would not be in their best interests to be released from detention at an early stage. As the Refugee and Immigration Legal Centre stated:

[O]ur experience in terms of the release of children from detention shows that there are no reasons whatsoever why it cannot be facilitated. In our experience, we have not noted any circumstance where it has not been in the best interests of the child to be released, and we are working very closely with agencies with expertise in terms of care and welfare of children once released, including Hotham Mission.⁽¹⁶³⁾

6.5.6 Findings regarding the best interests of the child

The Inquiry agrees with the Department's statement that 'determining what is in the best interests of the child will involve a consideration of the relevant circumstances of the individual child in light of the rights established by the [CRC]'.⁽¹⁶⁴⁾ However, Australia's mandatory detention policy does not currently permit such an assessment because it requires the detention of all persons arriving in Australia without a visa, no matter what their individual circumstances. The law makes no distinction between whether a person is an adult or child, nor whether a child is accompanied or unaccompanied by his or her parents.

There is a preponderance of evidence suggesting that institutionalisation is generally bad for children. State child welfare authorities, community groups and children who have been in detention all talk about the detrimental impact of the deprivation of liberty generally and detention in Australia's immigration detention centres in particular. The evidence recounted throughout this report confirms that detention has a negative impact on children in a variety of areas.

In the Inquiry's view, the clear evidence that detention can have a detrimental impact on the well-being of children suggests that the best interests of the child have not been a primary consideration in the introduction and maintenance of laws that require the detention of children irrespective of their circumstances. This is an issue considered further in Chapter 17, Major Findings and Recommendations.

Further, if the best interests of the child were a primary consideration in creating and applying the detention laws then those laws would permit the result that neither children nor their parents would be held in immigration detention except as a measure of last resort and for the shortest appropriate period. Thus the oft-stated premise that the best interests of the child require that children be detained because their parents must be detained, is the perverse result of inappropriate detention laws.

However, those laws do permit the Department to make decisions regarding the location in which children are detained. In the Inquiry's view the Department has, on certain occasions, failed to make the best interests of the child a primary consideration when making some of these decisions. For example, decisions as to which detention centre a child should be detained in do not appear to have given sufficient priority to the fact that a child may have a parent or relative in the community near one particular detention facility.

Further, the delay in making arrangements for the regular transfer of unaccompanied children into home-based detention, and the failure to make such arrangements for children accompanied by their parents, suggests a failure to give adequate weight to the best interests of the child when determining where to detain children (see further section 6.4.3 above).

The Inquiry is not of the view that the Woomera housing project provides the same quality alternative location both because the restrictions on movement remain and because the rules of participation require fathers to remain in the detention centre separate from the rest of their family (see further section 6.4.3). However, even that initiative took until 2001 to introduce. The housing projects in Port Augusta and Port Hedland only opened in 2003.

Finally, while the development of MSI 370 in December 2002 demonstrates that the Department has put policies in place to ensure that the best interests of unaccompanied children are a primary consideration in future decisions relating to their location and care, the delay in formalising this policy is of great concern.

Issues relating to the best interests of the child and the length of detention are discussed in section 6.7 below.

The issue of the best interests of the child is discussed further in Chapter 17, Major Findings and Recommendations.

6.6 Are children detained as 'a measure of last resort'?

6.6.1 What does detention as 'a measure of last resort' mean?

The protection of personal freedom is one of the most fundamental human rights protections. While there are strict rules about the circumstances under which any person may be deprived of his or her liberty, international law regards the detention of children as an especially drastic measure - a matter of last resort.

The principle that detention of children should be a last resort (article 37(b)) read with the 'best interests' principle (article 3(1)), means that Australia is required to explore all alternatives to detention prior to detaining a child, irrespective of their immigration status, and with the best interests of the child as a primary consideration.

Therefore, Australia, as a party to the CRC, has the obligation to ensure that detaining a child is not the first or only option available to respond to a particular policy or legal problem.

The UN Committee on the Rights of the Child has emphasised the importance of finding alternatives to the detention of children.⁽¹⁶⁵⁾ The UNHCR sets out various alternatives in its Detention Guidelines including release subject to reporting, residency requirements or the provision of a surety. The UNHCR Detention Guidelines also state that 'minors who are asylum seekers should not be detained' and that 'all appropriate alternatives to detention should be considered in the case of children accompanying their parents'.⁽¹⁶⁶⁾

Both the UNHCR Detention Guidelines and the Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (UNHCR UAM Guidelines) outline the alternative care arrangements that must be provided for unaccompanied children:

Unaccompanied minors should not, as a general rule, be detained. Where possible they should be released into the care of family members who already have residency within the asylum country. Where this is not possible, alternative care arrangements should be made by the competent child care authorities for unaccompanied minors to receive adequate accommodation and appropriate supervision. Residential homes or foster care placements may provide the necessary facilities to ensure their proper development, (both physical and mental), is catered for while longer term solutions are being considered.⁽¹⁶⁷⁾

The Department appears to be of the view that the principle of detention as a last resort under the CRC will be satisfied if legislators have considered other policy alternatives prior to enacting mandatory detention legislation:

...the Government of the day was fully cognisant of the principles of 'the best interests of the child' and 'detention as a last resort' when it established the mandatory detention regime. Mandatory detention was and is seen as the legislative last resort in the context of Australia's universal visa regime [emphasis added].⁽¹⁶⁸⁾

The Inquiry does not accept that the mandatory detention of children is necessary to achieve legitimate policy goals. The Commonwealth's failure to conceive of a means of achieving its policy objectives without the detention of children does not automatically make it a 'last resort' under the CRC.⁽¹⁶⁹⁾

The basic premise of international human rights law is the protection of the rights of each and every individual. The CRC requires an assessment of whether or not it is necessary to detain a particular child. As discussed below, the mandatory detention regime, by definition, denies the opportunity for any such assessment.

6.6.2 Does the Migration Act permit detention of children as a last resort?

I do note that there has been more of a practical tendency to release unaccompanied minors in recent times from detention and there are very few, if any, remaining in detention now, but nevertheless, what remains in Australia is a system which not only mandatorily detains adults, but children. It is absolutely and abundantly clear in international law and policy that detention should only be used as a last resort for children. Our experience in this country is that is not the case, the presumption has been to detain ...

Refugee and Immigration Legal Centre⁽¹⁷⁰⁾

Detention as a last resort does not mean that Australia can never detain children; it means that Australia has the obligation to consider whether there are alternatives to detention, taking into account the circumstances of each individual case. One of the difficulties in the Australian legislation is that it does not permit an individual assessment as to whether detention is necessary in the case of adults or children.

Section 189 of the Migration Act is clear that all unlawful non-citizens arriving anywhere other than an 'excised offshore place' must be detained.⁽¹⁷¹⁾ The Department has no option but to detain every person arriving without a visa.

Several submissions to the Inquiry argue that Australia's mandatory detention laws necessarily mean that detention is not a last resort for children.⁽¹⁷²⁾

The detention of child asylum seekers under this system is not 'a measure of last resort' and is not 'for the shortest appropriate period of time'. On the contrary it is the first and only resort and for an indefinite period of time. It therefore violates this provision of the Convention.

NSW Commission for Children and Young People⁽¹⁷³⁾

I think the Convention on the Rights of the Child is very clear: article 37 in terms of detention being a last resort quite clearly shows that if it is mandatory it cannot be a last resort.

Amnesty International⁽¹⁷⁴⁾

The blanket application of mandatory provisions to detain children who arrive in Australia without a visa means that, as a matter of logic, detention is the first resort under Australian law.

6.6.3 What impact do alternative places of detention have on the 'last resort' principle?

As explained earlier in this chapter, although the Migration Act does not permit any discretion as to whether to detain unauthorised arrival children, it does permit some discretion as to where to detain. This means that children and their parents could, theoretically, be detained in any place in Australia - including homes in the community.

While the transfer of children to home-based places of detention may lessen the seriousness of a breach of the principle of detention as a measure of last resort, it cannot nullify it.

The Inquiry also notes that, over the period of the Inquiry, children accompanied by their parents have not enjoyed the possibility of detention in the Australian community with their family, other than in one exceptional case. While the Woomera housing project offered a more child-friendly environment than the Woomera detention centre, it failed to mitigate the breach of detention as a last resort because the fundamental aspects of detention remain - all aspects of life in the project were controlled by ACM or the Department. Indeed, one of the most important aspects of a child's life, family unity, was directly inhibited by the ineligibility of fathers and, until 2 December 2002, boys aged over 12 to participate in the project. The same restrictions on fathers apply to the Port Hedland and Port Augusta Residential Housing Projects.

6.6.4 What is the impact of the 'Pacific Solution' on the 'last resort' principle?

As explained earlier in this chapter, since September 2001, when a family or unaccompanied child is intercepted by the Australian Navy, or lands on Christmas Island, Ashmore and Cartier Islands or Cocos (Keeling) Islands without a visa, detention is strictly speaking discretionary. However, as a practical matter the children have either been detained on Christmas Island, or transferred to detention facilities in Nauru or Manus Island in Papua New Guinea. The Inquiry is unaware of any instances where these children have been presented any option other than detention in one of these three facilities. Therefore, there is no evidence of detention being anything other than the 'first resort'.

6.6.5 Findings regarding detention as a 'last resort'

Detention is the first, and only, option available to children on arrival in Australia if they have no visa. The laws do not provide a presumption against detention of children nor do they permit a case-by-case assessment of the need to detain in the individual circumstances of the child.

While the Migration Act does not allow for any discretion by the Department as to whether to detain a child, it does permit some discretion as to where to detain children. This may have some impact on the seriousness of any breach of the 'last resort' principle. The Inquiry acknowledges that the Department has made efforts to implement alternatives to detention by transferring most unaccompanied children to home-based detention since January 2002, and some mothers and children to the Woomera housing project since August 2001. The issuing of MSIs 370 and 371 in December 2002 relating to unaccompanied children and alternative places of detention suggests an improved approach by the Department within the framework of mandatory detention in the future.

However, the Inquiry notes that these initiatives are recent developments and in the case of the Woomera housing project some of the more problematic aspects of detention, namely control over day-to-day decisions of a family, remain.

In any event, the Inquiry re-emphasises that home-based detention and the Residential Housing Project are alternative forms of detention rather than alternatives to detention, and it is the latter that is required by the 'last resort' principle of the CRC.

6.7 Are children detained for the 'shortest appropriate period of time'?

The sections below address the following questions related to the length of detention:

6.7.1 What does 'shortest appropriate period of time' mean?

6.7.2 How long have children been in immigration detention?

6.7.3 What limits are there on the length of time in detention?

6.7.4 How quickly are bridging visas given to children?

6.7.5 How quickly are protection visas given to children?

6.7.6 How quickly are children removed from Australia?

6.7.7 What impact do alternative places of detention have on the time children are detained?

6.7.8 What impact does the 'Pacific Solution' have on the shortest appropriate period?

6.7.1 What does detention for the 'shortest appropriate period of time' mean?

The CRC states that, in the event that a child is detained, that detention must be for the 'shortest appropriate period of time'. Although it does not set out the precise permissible length of detention, when read with the provision that detention must be a last resort, there is a positive obligation to investigate the possibility of noncustodial options as soon as possible after a child has been detained. In the context of Australian immigration law this means that the Commonwealth must ensure that children detained pursuant to Australia's mandatory detention laws are released as soon as possible.

The Department has urged the Inquiry to interpret the 'shortest appropriate period' (and other elements of article 37) in the context of the purposes of immigration detention which are:

to ensure the universal visa requirement is observed, and that unlawful noncitizens are available for visa processing, and removal if necessary. The shortest appropriate period of time of immigration detention is the shortest period in which the legitimate purposes of detention can be met - that is, until the detainee is granted a visa or removed from Australia. This is precisely the requirement specified by s196 of the Migration Act for release from detention.⁽¹⁷⁵⁾

However, this interpretation misunderstands the fundamental obligations in the CRC to actively assess the continuing need to detain a child in the individual circumstances of the case. The fact that the Commonwealth Parliament has enacted legislation with a specific purpose does not mean that detention for that purpose is automatically legitimate or proportionate. It may be that those purposes can be achieved in the absence of detention. It may also be that those purposes are insufficient to justify detention under international law. These issues are discussed in greater detail in the context of 'unlawful' and 'arbitrary' detention later in this chapter.

This section examines whether, despite the mandatory detention provisions of the Migration Act, children can be in principle, and have been in practice, detained for the shortest appropriate period of time. It sets out the period of time for which children have been detained, the mechanisms currently available for release from detention and the manner in which they have been administered by the Department.

6.7.2 How long have children been in immigration detention?

As Chapter 3, Setting the Scene, sets out, since 1999, children have been detained for increasingly longer periods. At the beginning of 2003, the average detention period for a detained child in an Australian detention centre was one year, three months and 17 days.⁽¹⁷⁶⁾ By the end of 2003 that figure had increased to one year, eight months and 11 days.⁽¹⁷⁷⁾ However, some children have been in detention for more than three years and one child was in immigration detention for five years, five months and 20 days.⁽¹⁷⁸⁾

Thus, as at 1 July 2000, 82 per cent of children had been in detention for more than three months. As at 1 July 2002, 94 per cent of children had been in detention for more than three months, and 70 per cent had been detained for more than a year. A year later, on 1 July 2003, 75 per cent of children had been detained for more than one year and 64 per cent had been detained for more than two years. The figures are better for 1 July 1999 and 2001; however, it is clear that even at best, large percentages of children are detained for periods greater than six weeks.

While the percentages are useful to obtain a snapshot of the proportion of children detained for long periods of time, it must be remembered that human rights are individual rights, therefore even if only one child is detained beyond the 'shortest appropriate period' that would be a concern to the Inquiry and a breach of international law. The Inquiry met many children during its detention centre visits over 2002 who were still in detention in 2003. The following is just a small sample of those families.

An Iraqi family with four children aged 4, 9, 13 and 15 years on arrival, were detained for 3 years and 2 months in Curtin, then Port Hedland and then Villawood. They were removed from Australia in February 2003.

An Iranian boy aged 12 years, whose father had died and whose mother is overseas arrived with two other relatives. He was in detention in Woomera and then Villawood for 2 years and 6 months. He had relatives who were Australian citizens and offered to support him in the community. He was released into their care under alternative detention arrangements in June 2003.

An Afghan family with four sons aged 4, 11, 14 and 17 years and a daughter aged 9 on arrival, had been in detention in Woomera and then Baxter for 2 years and 10 months as at November 2003.

An Iraqi father and a Palestinian mother arrived with their 2-year-old son and had been detained for 2 years and 7 months as at November 2003. The mother has had two more children while in detention. These two children have spent their entire life in detention. The family have been detained in the Woomera and Baxter detention centres. They were also detained in an Adelaide hospital for two months to allow for mental health treatment of the mother and in a motel for two months to allow for recuperation. In November 2003, the three children were transferred into home-based detention with a foster carer and both parents were transferred to a psychiatric hospital.

An Iranian family with three children aged 11, 13 and 21 had been detained in Woomera for 2 years and 7 months as at November 2003. In the second half of 2002, all but the father and son-in-law gradually moved to the Woomera housing project. The eldest daughter, who was not a dependent, was also in Woomera, until she was found to be a refugee and released with her husband and baby at the end of 2002.

6.7.3 What limits are there on the length of time children are detained?

Several submissions to the Inquiry state that the length of detention for children is indeterminate because there is no fixed maximum period of detention, nor any regular review of the continuing need for detention.⁽¹⁷⁹⁾

The Minister and the Department refute this claim on the basis that the length of detention is determined by the occurrence of certain specific events, namely the grant of a visa or removal.⁽¹⁸⁰⁾ The visa may be a substantive visa such as a refugee protection visa, or a bridging visa which may be given while an application for a substantive visa is being processed.

The Department's argument is, however, unconvincing. While the grant of a visa or removal from Australia are specific events which influence the length of detention, there are no laws defining the period within which those events must occur. Applied to unauthorised arrival asylum seekers in detention, this means that children are detained for the period which it takes to process their refugee protection visa applications, including the time for any appeals, unless they are granted a bridging visa first. If the processing is completed and an asylum seeker who arrives on the Australian mainland is successful, he or she will be granted a visa and released into the Australian community. If the asylum seeker is unsuccessful then detention will continue until the children and their families are removed from Australia. As a matter of practice there are no finite limits on the period of time for which a child may be detained and to that extent the length of detention is unpredictable and therefore indeterminate. Statistics also show the length of time in detention varies between applicants, reinforcing the unpredictability of the time in detention. Certainly, from a child's point of view there is no definite end:

The worst thing was not knowing what will happen, or when you will get out.⁽¹⁸¹⁾

The absence of time limits in the legislation does not mean that the length of detention of children cannot be minimised. Clearly, the faster a visa is granted - be it a protection visa or a bridging visa - the shorter the period in detention.

The Department rightly states that it is constrained by the legislation and therefore, to the extent that this Inquiry is examining the acts and practices of the Commonwealth, it is important to consider what efforts have been made by the Department to ensure that children either (a) obtain a bridging visa as soon as possible; (b) obtain a protection visa as soon as possible; or (c) are removed as soon as possible having been unsuccessful in their protection claims. However, the Inquiry has also considered the extent to which the legislation itself limits the Department's ability to ensure that children be detained for the shortest possible period of time.

6.7.4 How quickly are bridging visas given to children?

MR WALKER (DIMIA ASS SEC (VISAS)): ... our desire is, in particular with children, that they be in detention for the shortest possible time. That's also our goal in relation to any person who is in immigration detention, but we are working within the framework of ... processing visa applications and, where people meet visa criteria, and in particular protection visa criteria, that they are released as soon as possible. However, that doesn't get round the situation that, essentially, where they don't have an entitlement to remain in Australia, there are difficulties with grants of bridging visas.⁽¹⁸²⁾

Bridging visas are the most obvious tool for releasing children who are otherwise mandatorily detained. The primary purpose of a bridging visa is to convert an unlawful non-citizen into a lawful non-citizen while a substantive visa application is being processed, in other words act as a 'bridge'. The faster a bridging visa is granted, the sooner children can be released from detention. As is discussed in some detail below, this mechanism has almost never been used to secure the release of unauthorised arrival children, whether accompanied or unaccompanied by their families. By contrast, they are routinely issued to non-citizen children who arrive with a visa and become unlawful in some other way (for instance overstaying their visa).

(a) What bridging visas are available to children in detention?

In a February 1994 report entitled Asylum, Border Control and Detention, the Commonwealth Parliament Joint Standing Committee on Migration⁽¹⁸³⁾ made recommendations that the Minister at the time 'give particular consideration to the release of those persons who particularly are vulnerable to any effects of long-term detention, namely those persons with a special need based on age, health or previous experiences of torture and trauma'.⁽¹⁸⁴⁾ As a result, the Parliament introduced section 72 of the Migration Act⁽¹⁸⁵⁾ and Regulation 2.20(7) and (9) of the Migration Regulations,⁽¹⁸⁶⁾ amongst others, which set out circumstances in which children in detention might be eligible to apply for a Bridging Visa E 051.

According to the Department, it was not Parliament's intention to facilitate the release of children when it created Bridging Visa E 051, rather:

Parliament clearly intended that bridging visas would be considered only in exceptional circumstances and only until such time as their application for a visa was finally determined.⁽¹⁸⁷⁾

This may explain the highly limited circumstances in which a child may be granted a bridging visa. It also immediately raises concerns about the seriousness with which the Parliament has considered its obligations to ensure that detention of children be for the shortest appropriate period of time.

An application for a bridging visa can only be made by an 'eligible non-citizen' as defined by section 72 of the Migration Act. A child asylum seeker in detention will only be an 'eligible non-citizen' if he or she falls under one of the following categories:

• Best interests of the child: A child who arrives without a visa and applies for a protection visa can apply for a bridging visa if the protection visa has not been finally determined, or he or she has applied for judicial review, and a child welfare authority has certified that release is in the best interests of the child. The Minister must also be satisfied that arrangements have been made with an Australian citizen or permanent resident for the care and welfare of the child and those arrangements are in the best interests of the child (reg 2.20(7)); or

   

• Special needs: Any person - adult or child - who arrives without a visa and applies for a protection visa can apply for a bridging visa if the protection visa has not been finally determined, or he or she has applied for judicial review, and a doctor appointed by the Department certifies that the person has a special need based on health or experience of torture/trauma and that release is required for care. The Minister must be satisfied that adequate arrangements have been made for their support in the community (reg 2.20(9)); or

   

• Delayed primary decision: Any person - adult or child - who arrives without a visa and applies for a protection visa can apply for a bridging visa if six months has passed since lodging the protection visa application and no primary decision has been made. The Minister must decide a bridging visa would be in the public interest in such circumstances (s 72(2)).

The Inquiry focuses on the first two of these grounds as the decreased processing times means that children will rarely qualify for the 'delayed primary decision' visa.

As the party responsible for ensuring that the best interests of the child are protected, it is the Department's responsibility to initiate assessments by (a) the State child welfare authority for a 'best interests' certification, or (b) a Department-appointed doctor for a 'special needs' certification, in order to ensure the maximum opportunity of being considered an 'eligible non-citizen'. This duty is especially high in the case of unaccompanied children of whom the Minister is the guardian.

However, being an 'eligible non-citizen' does not automatically qualify a child for a bridging visa; it just allows the child to make a valid application. The child must also meet the relevant health requirements and sign an undertaking that he or she will leave Australia within 28 days of withdrawing or being refused a protection visa application.⁽¹⁸⁸⁾

Moreover, even if all of these conditions have been met, it is entirely within the Minister's discretion as to whether a bridging visa will be granted.⁽¹⁸⁹⁾ In other words, the Minister cannot be compelled to grant a bridging visa.

If the child and his or her family are granted a bridging visa at some point, they may be required to report to immigration authorities at set intervals and residency requirements may be imposed (much like bail or parole).

(b) When are bridging visas granted to children with families?

According to the Department, over the period of the Inquiry only one bridging visa was granted to members of an entire family that arrived in Australia without a visa.⁽¹⁹⁰⁾

The best interests ground for a bridging visa does not permit the release of persons 18 or over even when they are the parents of children who would otherwise qualify for a bridging visa. MSI 131 entitled 'Bridging E Visa - subclass 051' states, in relation to the best interests ground, that:

7.4.2 Where a child is in detention with his or her parents, it can be assumed that the child's best interests are served by being with their parents, except in cases of neglect or abuse. Accordingly, unless specifically requested to do so by the child's parents or the child, contact need not be made with the relevant Child Welfare Authority [to have the child assessed for a bridging visa]. Where there exists any evidence of neglect or abuse, the relevant Child Welfare Authority should be contacted immediately.

The other option is the 'special needs' bridging visa. However, for an entire family to be released pursuant to the special needs ground, a doctor approved by the Department would need to certify that each member of the family could not be properly cared for in the detention environment.

MSI 131 states that:

7.7.1 Upon notification that a person is seeking a Bridging E visa and may come within reg 2.20(9), immediate contact should be made with an Australian Government Medical Officer to have the person examined by an appropriate medical specialist. The medical specialist should be asked to provide an opinion on the applicant in relation to reg 2.20(9)(c):

Who has a special need (based on health or previous experience of torture or trauma) in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment.

The Department is required to appoint an authorised medical specialist even where a medical assessment has already been submitted by the applicant.

While a request to be considered for a special needs bridging visa 'would normally be initiated by the detainee or their representative, it should be initiated by the IDC or IRPC manager where s/he considers it appropriate'.⁽¹⁹¹⁾ In other words it is within the power of the Manager to initiate a bridging visa application on behalf of one or more members of a family that he or she believes cannot be properly catered for in detention by reason of health or previous torture or trauma.

The Inquiry has received a great deal of evidence from the Department that suggests that State child welfare authorities and medical practitioners - in South Australia and Western Australia in particular - were of the view that many families could not be properly cared for in the detention environment. When the Department was asked why such families were not released on 'special needs' bridging visas, the initial response was that the bridging visa regulations prevented the Department from issuing visas when the record of declining mental health came from external doctors who were not appointed by the Department:

DR OZDOWSKI: Do I understand you correctly that under the current legislation when you see a family disintegrating as this one in the detention condition where everyone is getting psychologically and psychiatrically ill, you can't do anything?

DIMIA ASS SEC (VISAS): I am not saying that, Commissioner. What I am saying is that we have to work within the statutory framework. There are provisions but you can't just automatically, on the basis of a specific assessment from somebody who has not been appointed by Immigration, release that person.⁽¹⁹²⁾

However, this response fails to recognise that the Department has a duty to proactively seek ways of ensuring that children are detained for the shortest appropriate period of time and that all decisions have children's best interests as a primary consideration. This means that, at the very least, the Department must initiate bridging visa health assessments as soon as there is any indication of health, torture or trauma issues, in order to maximise the possibility of obtaining a 'special needs' bridging visa and prevent further harm.

The Inquiry is also concerned that ACM or Departmental doctors who regularly examine children in immigration detention are not Department-approved doctors for the purposes of bridging visa assessments. It would seem logical to have the doctors who know the children and the detention environment best, make such recommendations. This would clearly speed up the process of any assessments - especially in the light of the remoteness of the facilities and the consequential financial and time barriers in sending out doctors for assessments. However, on the evidence before the Inquiry, ACM and local doctors are not authorised to make the 'special needs' assessments. The Department explains this situation on the basis that it 'assists in protecting the trust relationship between detention centre staff and detainees'.⁽¹⁹³⁾ Presumably it is the Department's view that the ACM doctorpatient relationship may be damaged in the event of an unfavourable assessment. However, in light of the importance of minimising the time in detention and advantages of having assessments performed by those doctors, the Inquiry does not regard this to be a compelling justification.

Two examples of the failure to release families from detention, in the face of a constant stream of documents describing serious mental health problems in children and their parents, were explored with the Department during the December 2002 hearings of the Inquiry. These cases are described in some detail in Case Study 1 and Case Study 2 at the end of Chapter 9 on Mental Health.

In summary, Case Study 1 in Chapter 9 describes an asylum-seeking family with one son who arrived in Australia in April 2001 when the child was 10-years-old. Recommendations for the family's release were made by FAYS in June 2002; a senior psychiatrist from the Women's and Children's Hospital in July 2002; the Head of the Department of Psychological Medicine at the Women's and Children's Hospital Adelaide in August 2002; DHS in August 2002; the ACM psychologist in October 2002; CAMHS in January 2003; and a psychiatrist from the Women's and Children's Hospital in February 2003 and again in May 2003. The Department Deputy Manager requested a medical assessment of the family's eligibility for a bridging visa in May 2002. The Inquiry did not receive any further evidence regarding the consideration of a bridging visa application. This family was still in detention in December 2003.

Case Study 2 in Chapter 9 describes the experience of a family consisting of a father, mother and three children, who were aged 2, 13 and 16 when they arrived in Australia on 31 December 2000. Recommendations for this family's release from detention were first made in a psychiatric report in February 2002. In May 2002, the ACM psychologist reported that the family could not be managed in the detention environment, and a CAMHS assessment reports that the family cannot be treated in the detention environment. In July 2002 a psychiatrist from the Women's and Children's Hospital Adelaide recommends their immediate removal from detention. The Department Deputy Manager requested that the family be medically assessed for eligibility for a bridging visa in May 2002. The family received notification of their ineligibility within three days, and the Inquiry did not receive a report of the medical assessment or any evidence of consideration of the family's eligibility for a bridging visa. The family were recognised to be refugees and released from detention on temporary protection visas in August 2003.

While the delayed release of families like these is partially due to the highly restrictive terms of the bridging visa regulations, the case studies also demonstrate a failure by the Department to actively pursue the relevant medical assessments throughout the period of detention.

The Department told the Inquiry that another reason why very few 'special needs' bridging visas were granted was because the Minister had to be satisfied that there were appropriate care arrangements in the community and that was sometimes difficult to find.⁽¹⁹⁴⁾ However, it is the Inquiry's view that in the event that a Departmentapproved health expert has certified that the needs of children and their parents cannot be met in that environment, the Department has an active responsibility to seek out appropriate care arrangements, especially where children are involved.⁽¹⁹⁵⁾

(c) When are bridging visas granted to unaccompanied children?

The Minister, as the guardian of unaccompanied children, and his or her delegates have a special duty to ensure that unaccompanied children are in detention for the shortest appropriate period of time. The best interests ground for a bridging visa would appear to be a highly appropriate mechanism for the release of unaccompanied children who are, by definition, under 18 and without family.

The Department's Migration Series Instructions appear to recognise this special duty of care. In relation to the best interests ground for a bridging visa, MSI 131 regarding Bridging Visa E 051 (issued in 1996), MSI 357 (issued in September 2002) and MSI 370 (issued in December 2002), all state that the Manager must initiate contact with the relevant State authority for assessment as soon as it is clear that an unaccompanied child is an unauthorised arrival asylum seeker whose application is not finally determined.

MSI 357 and 370 recognise that the Minister, as guardian of unaccompanied children, and his or her delegates have a special duty to ensure their best interests and that includes that they should 'periodically assess'⁽¹⁹⁶⁾ an unaccompanied child's eligibility to apply for a bridging visa. The MSIs also state that the Manager must assist in the assessment by providing information regarding the unaccompanied child's circumstances in immigration detention, including any difficulties that the child has had. The Manager must also ask the State authority whether an appropriate carer can be arranged on release. If the child is found to be an eligible non-citizen as a result of these efforts, the Manager must arrange for an application to be made for the bridging visa and a decision should be made within 28 days.⁽¹⁹⁷⁾

Regarding the special needs ground for a bridging visa, where the Department Manager suspects that an unaccompanied child may have a special health, torture and trauma need, as many children who flee their home country are likely to have, 'immediate contact should be made with an Australian Government Medical Officer' to have the child assessed, even if the child has already been assessed by another doctor. The Department Manager should provide the doctor with the child's medical files to assist in the assessment. If a special need is diagnosed the doctor must assess whether the child can be properly cared for in detention. The Manager must also contact the child welfare authority to try and arrange appropriate care in the community. If the Department's doctor finds that the child should be released, the Manager should arrange for the child to make a bridging visa application.

Unfortunately the detailed instructions to Managers in MSI 357 and 370 were only created after almost all unaccompanied children were transferred out of facilities. This timing may explain the fact that only one unaccompanied child asylum seeker in detention was granted a bridging visa in the period 1999-2002.⁽¹⁹⁸⁾

The Department states that the reason for this delay lies in the Department's 'focus ... on ensuring unaccompanied minors were quickly processed while ensuring their needs were being appropriately met within a detention facility'.⁽¹⁹⁹⁾ However, the Inquiry is not convinced by this explanation. A focus on one type of visa processing does not preclude the consideration of another - this is especially the case in light of the fact that a bridging visa could result in faster release than a protection visa.

An examination of the efforts made by the Department prior to September 2002 indicates several other possible explanations for this outcome, including:

• failure of the guardian to initiate and pursue bridging visa applications
• `failure of the State authorities to assess best interests
• failure to find alternative care arrangements
• inherent conflict of interest between the Minister (and his or her delegates) as guardian and the Minister as bridging visa decision-maker.

 

Each of these issues is addressed in turn.

(i) Department's duty to initiate bridging visa applications for unaccompanied children

 

It is unrealistic to expect that an unaccompanied child would know the existence of, or how to apply for, a bridging visa. It would therefore be expected that the Minister, as the guardian of unaccompanied children, would ensure that steps are taken to assess whether unaccompanied children might qualify for release on a bridging visa at the earliest available opportunity. This is reinforced by the MSIs discussed above.

 

During the hearings the Department indicated that the adviser appointed to unaccompanied children for the purposes of a protection visa application (IAAAS adviser)⁽²⁰⁰⁾ would be in a position to make a bridging visa application on behalf of the unaccompanied children.⁽²⁰¹⁾ However, the suggestion that an IAAAS provider should apply for a bridging visa for the unaccompanied child is unpersuasive for two reasons.

Firstly, the contract between the Department and the IAAAS providers does not include payment for the adviser to make applications for bridging visas.

Secondly, evidence from one of the IAAAS providers, the Refugee Advice and Casework Service (RACS), indicates that only the Department is in a position to initiate an assessment of the child by the State authority for the purposes of a bridging visa:

MS RYAN (RACS): Can I just add something on the IAAAS' contract, there is no, the contract doesn't provide for any representation as to bridging visas. So as a migration agent and a solicitor you can provide that advice to your client but there is certainly no capacity under that contract to be funded to represent someone to get a bridging visa.

MS LESNIE (INQUIRY SECRETARY): So is it fair to say that as an IAAAS adviser you are not paid to follow through on a bridging visa and that furthermore in order to succeed in a bridging visa it requires the Department of Immigration itself to follow through the process? So they have to ask the relevant State authorities to provide the information that would then make the application successful?

MS McADAM (RACS): Yes, as a migration adviser I mean RACS does get involved and initiates some bridging visa applications but all we can do is ask DIMIA to start the process because the PAMs [Procedure Advice Manuals] - the procedures DIMIA follows - [say] that they have to initiate [the NSW child welfare authority] to come in generally.⁽²⁰²⁾

Therefore, in relation to the best interests ground for a bridging visa this would mean that the Department Managers should seek an assessment from the relevant State welfare authority as soon as possible. The Inquiry did not receive any evidence that this did in fact occur.

The Department states that 'it will and does respond to requests for an assessment by State child welfare authorities,'⁽²⁰³⁾ but has not provided evidence that it initiated 'best interests' bridging visa assessments in relation to unaccompanied children. During the hearings the Inquiry gave the Department the opportunity to directly address this issue:

INQUIRY COUNSEL: ...the Commission has neither seen nor heard any evidence or seen any documents that have been produced to it which suggests that DIMIA Managers or Deputy Managers acted in this way - that is, approaching State or welfare authorities to have a child assessed in relation to paragraph (d) of that sub-regulation - when they made protection visa applications in detention facilities?

MS GREAVES (DIMIA ASS SEC (DETENTION)): Yes, that is probably correct.⁽²⁰⁴⁾

The Department also stated that where an unaccompanied minor raised particular concerns it 'would have moved to raise that issue'.⁽²⁰⁵⁾ However, the evidence before the Inquiry confirms that the Department had not made any positive moves to obtain 'best interests' assessments until January 2002. As discussed in section 6.4.2(a), the Deputy Manager of Woomera approached the South Australian authorities on 14 January 2002 with a view to releasing three unaccompanied children on bridging visas. These children had been detained since June and August 2001. It appears that this was the first occasion on which any such assessment was considered for these children. It followed their entering into a 'suicide pact'.

On 14 February 2002, the Department wrote to the Western Australian Department of Community Development (DCD) seeking an assessment of 'the current emotional status' of all unaccompanied children at Port Hedland and Curtin detention facilities and 'how this is impacted by being placed in a detention centre'. It also requested that 'if the situation cannot be managed with the detention centre ...advice on where the individuals concerned might be placed'.⁽²⁰⁶⁾ The assessment recommends that all young people be released. Many of those children had been in detention for more than six months.

The Department has stated that DCD's recommendations of release were beyond the scope of the Migration Act and that is why the children were not released.⁽²⁰⁷⁾While the Inquiry acknowledges that the narrow terms of the bridging visa regulations make it difficult for children to obtain release on this basis, the evidence before the Inquiry suggests that the Department made no serious effort to investigate whether a visa might be available to these unaccompanied children.

As the delegated guardian for unaccompanied children, the Department Manager of the relevant detention centre has the responsibility to conscientiously seek further assessments of a child with a view to making a further bridging visa application after a period in detention. This is particularly the case if, for example, there were reports from doctors or child welfare authorities that the mental health of the child had deteriorated. The fact that only one bridging visa was granted to an unaccompanied minor despite the high number of recommendations that unaccompanied children be released, suggests that this did not occur in practice. The MSI issued in December 2002 is more explicit about the obligation to pursue bridging visas and may bring better results in the future.

In any event, the Department suggested that the absence of a certificate from the child welfare authority was not the only reason that children had not received bridging visas. For instance:

There is also a requirement that they give an undertaking in terms satisfactory to the Minister that they will make arrangements and depart 28 days after the expiry of their judicial review application in the Federal Court.⁽²⁰⁸⁾

The Department is correct that the bridging visa regulations require these additional elements to be taken into account. However, this response fails to recognise that the certification of best interests (or assessment of a special need by a Department-approved doctor) is a threshold element of becoming an 'eligible non-citizen'. Moreover, as the Minister is the guardian for unaccompanied children the undertaking should not pose a problem in those cases.

(ii) State child welfare authority's duty to assess unaccompanied children for bridging visas

During the hearings the Inquiry explored an example where a bridging visa application for an unaccompanied child was made with a protection visa application and rejected the following day because the child was not an 'eligible non-citizen' under the Migration Act. The reason for this refusal was clear; there was no time for the child to be assessed by a child welfare authority. The Inquiry asked the Department how the State authorities could be expected to provide an assessment within 24 hours to satisfy the best interests ground for a bridging visa. The Department suggested that the State authorities did not need to wait for a request, but could initiate an assessment themselves:

INQUIRY COUNSEL: Well, it's hardly likely whether in the space of a day - because the bridging visa application was dealt with the next day - it's hardly likely that there would have been enough time for a State welfare authority to be contacted to be asked to certify whether or not the release from detention of that person was in the best interests of the non-citizen. That's right, isn't it?

DIMIA ASS SEC (VISAS): That might be the case, but the fact is that an application was attempted to be made that was invalid at that time.

INQUIRY COUNSEL: But it's invalid because there was no system in place whereby State authorities were contacted to even turn their mind to whether it was in the best interests of the child or not to remain in detention. So as a practical matter, bridging visas could never be granted in these circumstances.

DIMIA ASS SEC (VISAS): Well, they could never be granted until that certification was provided and also the Minister was satisfied in relation to arrangements that had been made between the non-citizen and an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, for the care and welfare of the non-citizen, and those arrangements were in the best interests of the non-citizen.

INQUIRY COUNSEL: It could never be issued unless and until the Department finally decided, for whatever reason, that they might approach the State welfare bodies to even raise the issue with them. That's the situation, isn't it?

DIMIA ASS SEC (VISAS): There's nothing stopping the State welfare authorities exercising their own responsibilities and powers under State legislation.⁽²⁰⁹⁾

As delegates of the Minister, the State welfare authorities may have an obligation to initiate applications. However, this has not occurred in practice for three reasons.

Firstly, a delegation issued in September 2002 clarified that State authorities could only exercise their powers once the children were transferred to home-based detention or released from detention on a bridging visa or protection visa.⁽²¹⁰⁾ This accords with the view of the State authorities themselves⁽²¹¹⁾ as well as that of the Department:

INQUIRY COUNSEL: ...as a practical matter I think the State authorities tended to regard their role as really limited to one that kicked in when the children were released from immigration detention. Is that accurate?

DIMIA DEPUTY SECRETARY: I think as a matter of practice, yes.⁽²¹²⁾

Secondly, the Memorandum of Understanding between the Department and DHS relating to Child Protection Notifications and Child Welfare Issues pertaining to children in immigration detention in South Australia⁽²¹³⁾ seems to require that the States wait to be asked by the Department to make an assessment about a child's best interests and that the request be cleared by the Department's head office in Canberra:

The agencies agree that on request from DIMIA, DHS will provide advice and assessments on appropriate care arrangements for unaccompanied minors in immigration detention in South Australia. A request for such service will be made by the DIMIA Manager of the relevant immigration detention facility in South Australia, after consultation with the DIMIA Director, Detention Operations. [emphasis added]⁽²¹⁴⁾

Thirdly, if the State authorities are not aware of the existence of unaccompanied children in detention they will not be in a position to exercise that responsibility. It appears that there was no system in place to ensure that such notification occurred.⁽²¹⁵⁾ This is especially true of children in separation detention who have limited contact with the outside world (including State authorities and legal advisers):⁽²¹⁶⁾

DIMIA ASS SEC (VISAS): There's nothing stopping the State welfare authorities exercising their own responsibilities and powers under State legislation.

INQUIRY COUNSEL: Well, that might be right as a legal matter, but it's an absurdity to suggest that these State bodies are just, off their own bat, perhaps in the absence of any information whatsoever, they're going to start issuing certificates about the best interests or otherwise of children ...

DR OZDOWSKI: Can I ask you did you have another provision which would ensure that State authorities are automatically advised about arrival of every unaccompanied minor into the detention centre?

DIMIA ASS SEC (UNAUTH ARRIVALS): I thought I'd indicated earlier, Commissioner, that we were moving, over the course of last year, to try and put that in place. And I think in Western Australia it started early last year. But before that I don't think so.⁽²¹⁷⁾

These factors taken together indicate that as a practical matter State authorities would only conduct an assessment when specifically requested to do so and these requests were not routinely made when a child arrived in a detention facility. It appears to the Inquiry that the Department waited until it had identified serious problems like hunger strikes or self-harming behaviour prior to contacting the authorities, which was often many months, if not years, after the child had been detained.

(iii) Difficulties in finding alternative care arrangements for unaccompanied children

As the guardian, rather than decision maker on the bridging visa, the Minister must satisfy himself or herself that the best interests of unaccompanied children are properly looked after. Given the Inquiry's findings regarding the impact of the detention environment on children generally, this requires, at the very least, an investigation as to whether the children can be appropriately cared for in the community. Such an investigation would also maximise the possibility that the conditions of the bridging visa are met. As the Minister has delegated guardianship to State and Territory child welfare authorities, whose day-to-day work is the care of children in the community, there is a ready avenue to assist in finding adequate alternative care arrangements in the community.

The Department rightly points out that the provision of services for unaccompanied children is a complex task that may place considerable strain on State child protection authorities.⁽²¹⁸⁾ However, at least with respect to South Australia, it appears that there is a willingness to take on that responsibility and in such a context it is disappointing that more bridging visas have not been pursued.

From the evidence available to the Inquiry, it is unclear what happened in South Australia before 6 December 2001, when an agreement was signed. It is also unclear what happens in other States. However, the Memorandum of Understanding regarding child protection indicates that identification of alternative care arrangements does not pose a serious barrier to meeting the criteria for a bridging visa. South Australia has used its established child protection apparatus as well as the existing support systems for unaccompanied humanitarian minors to facilitate the care of unaccompanied children in alternative detention. Moreover, under the agreement it has accepted an obligation to 'ensure appropriate arrangements are in place for the care and accommodation' of unaccompanied children in the event that 'DIMIA makes a determination that it would be in the best interests of the unaccompanied minor to be released from immigration detention'.⁽²¹⁹⁾

(iv) Conflict of interest issues

Some submissions to the Inquiry argue that there is a conflict of interest in the process of applying for bridging visas for unaccompanied children. On the one hand, the Department Manager as delegated guardian must take steps to ensure that an unaccompanied child can qualify as an 'eligible non-citizen' for the purposes of applying for a bridging visa. On the other hand, this requires the Manager to certify that the detention facility that he or she is managing cannot adequately care for the child.⁽²²⁰⁾

The Federal Court of Australia has recognised and accepted that there may be a conflict between the role of the Minister as guardian of unaccompanied children under the IGOC Act and his or her role in administering the Migration Act. The Court stated:

For example, the Minister may have a policy of detaining all asylum seekers (or all persons falling within a particular class of asylum seekers) pending final determination of their claims to be recognised as refugees. Yet a person acting independently of the Minister might see grounds, in the particular case, for the grant of a bridging visa permitting release of the child from detention during that period.⁽²²¹⁾

The Department asserts that the Deputy Managers at the centres do not have any role in determining a bridging visa application and therefore there is no conflict (although conceded that this may have happened in the past).⁽²²²⁾ MSI 357 and MSI 370 state that, in order to protect against conflict of interest, the Department Managers and Deputy Managers should not decide whether an unaccompanied child is an eligible non-citizen, nor whether they should be granted a bridging visa. Rather, another officer in the Detention Operations Section of the Department in Canberra should be asked to make the decision. However, it does appear that the obligation is on the Manager to initiate the process - for instance by requesting the State authority to certify as to best interests.

The Department argues that the child's migration agent can fulfil the role of pursuing refugee claims; however, they are not required (or funded under the IAAAS contract)⁽²²³⁾ to pursue bridging visa applications. This leaves unaccompanied children in the invidious position of either seeking assistance from their 'gaoler' to obtain their quick release or say nothing at all.

The importance of the independence of the guardian is discussed further in Chapter 14 on Unaccompanied Children.

6.7.5 How quickly are protection visas given to children?

In its opening remarks during the hearing, the Department's Deputy Secretary spoke about the importance of speedy processing of applications in order to reduce the length of time children spend in detention:

A number of submissions have raised concerns about the length of time people spend in detention. While talking of processing, people often include not only the primary process for which the Department is responsible but also merits and judicial review. These processes are outside the mandate and therefore the control of the Department. Nevertheless the speed of primary processing is clearly the key issue. The faster the detainees can have their applications processed the sooner they can be given a decision about their situation. Either they will be granted a visa and released or they will be refused. Either way their situation will be clear.

To this end a very significant focus of the Department is to have applications for protection visas processed as quickly as possible, consistent with the need to maintain the integrity of the process and of the individual decisions. In 2000 in response to the sustained trend in unauthorised boat arrivals the Department established a boats taskforce to address the need for streamlined processing and increased numbers of protection visa decision makers. Significant numbers of staff were taken off line and trained to make protection visa decisions. The Department introduced front end loading of health and character checks to reduce processing times.

By mid 2001 the time taken for the Department to process protection visa applications for 80 per cent of applicants had decreased from an average of seven and a half months to twelve and a half weeks. This improvement in processing visas was achieved in the twelve month period when around 4400 temporary protection visas were granted. By the end of 2001 the significant reduction in processing times meant there was greater throughput in detention facilities. Many detainees were in facilities for a short period and then released into the community on a visa.⁽²²⁴⁾

As Chapter 7 on Refugee Status Determination describes, the Department's efforts in streamlining the processing have led to improvements generally but there is no additional priority given to the applications of children. Furthermore the Department has not been entirely successful in meeting its own targets. For example, in 2001 - 2002 only 47 per cent of cases were completed within the target 42 days.

The Inquiry is aware of several families who have waited several months for a primary decision, and many more months for a merits review. They may then wait many more months or years for judicial review. Furthermore, many children and families have been detained in separation detention for substantial periods, prior to making the protection visa application.⁽²²⁵⁾

Case Study 2 at the end of this chapter demonstrates the substantial variance in the length of time that children may be in detention prior to receiving a primary decision. The examples also demonstrate that detention may be prolonged because children and their parents remain detained while either they, or the Minister, exercise the right to appeal.

The Department states that appeal processes - both the merits review and courts - are beyond the scope of its influence and therefore it can do nothing about thelength of detention if detainees choose to pursue their right to review. While it is true that the Department may not have any power regarding the time taken to pursue appeals, it is important to remember that pursuing appeals is an exercise of the fundamental right of due process. The problem is not that children and their parents pursue those rights, but that they are detained during this pursuit. A senior barrister giving evidence to the Inquiry expressed the following view:

Now one of the Minister's defences of the length of detention is that, well, these people challenge the system and they keep challenging all the way through to the Courts. It is really hard to understand why an exercise of your lawful rights should justify substantial times in detention.⁽²²⁶⁾

It must also be noted that there have been several examples where detainees have won their appeal in the Federal Courts but the Minister has appealed that decision.⁽²²⁷⁾The Minister has also appealed successful outcomes in the Refugee Review Tribunal. In other words, the Minister has also exercised his right to appeal and therefore has knowingly extended the length of detention for some detainees.

The Commonwealth as a whole has a responsibility to ensure that detention is for the shortest appropriate period and therefore to the extent that it is known that due process takes time, it should make provisions for release during that period.

6.7.6 How quickly are children removed from Australia?

The Department repeatedly states the length of detention is in the hands of the detainee him or herself as they can choose to leave at any time:

For many detainees including parents the choice to bring their detention and that of their children to an end is in their hands. The further detainees are through the review and appeal process the more their detention and that of their children is extended by their own decisions. Agreeing to return to their home country and co-operating with removal arrangements will bring their detention to an end.⁽²²⁸⁾

The Department states that it does not remove persons who have a current claim whether at the primary, merits review or judicial review stages, in order to ensure that it meets its obligation to protect from refoulement.⁽²²⁹⁾ Following the same logic, it is inappropriate to place the 'blame' of continuing detention on those asylum seekers who believe they need protection from non-refoulement and pursue all avenues available to them to prove that claim. The problem is rather that the Migration Act requires that children and their parents are detained throughout the process that determines that right. Nevertheless, the Department is correct to say that once an asylum seeker has exhausted all avenues of due process the period of detention may be reduced by voluntarily leaving Australia.

Even when a person does want to return, the Department may face difficulties in facilitating that departure. This situation was the subject of a recent Federal Court case which found that continuing detention was not justified when there was no reasonable prospect of being removed to Palestine.⁽²³⁰⁾ Several persons have been released from detention as a result of this decision.

Further, the legislative provisions that seek to prevent 'forum shopping' by asylum seekers, mean that some asylum seekers who are found to be refugees will not be granted a protection visa in Australia when they can seek the protection of a country other than their own. The consequence of this policy is that sometimes detainees must seek visas to countries that are not their country of nationality in order to leave Australia. It has happened that those visas are denied and therefore removal is not practicable.

Practical difficulties in effecting return have also occurred with respect to Afghanistan, Iraq and Iran, amongst others. For instance, the UNHCR requested that all returns to Afghanistan be halted over winter 2002-2003. However, the Department states that procedures are being put in place to facilitate smoother return procedures to Afghanistan and Iran, including the offer of financial assistance and the establishment of a memorandum of understanding with the Iranian Government.⁽²³¹⁾

Another problem arises regarding some persons who have been in detention so long that their mental health has declined to the extent that they are 'unfit to travel'. This was one of the cases explored in the Inquiry's public hearings with the Department. However, the Department did not consider this factor to be a barrier to removal:

INQUIRY COUNSEL: Second-last paragraph [of a facsimile from the DIMIA Woomera Manager]:

I am inclined to think that this family is effectively 'unfit to travel' and that removal from Australia, even with their cooperation, would be very difficult to effect.

Now, this is from the Department Manager herself, right?

 

DIMIA ASS SEC (UNAUTH ARRIVALS): That is what is stated here, yes.

INQUIRY COUNSEL: So [removal] is really not an option, is it?

DIMIA ASS SEC (UNAUTH ARRIVALS): No, I disagree. I think, notwithstanding the fact that it may be difficult to effect, it is still our obligation under the Act, as I have mentioned, to take whatever steps is possible to make that be an outcome.

Finally, it is important to note that while parents may be in a position to 'bring their detention to an end' by choosing to return to their country of origin during the refugee determination process, this is not a choice that an unaccompanied child can be expected to make. The Minister, as the person responsible for immigration policy generally, as well as detention within that policy, is likely to encourage return. But the Minister as guardian may be required to make a different decision. In the Inquiry's view, the fact that the Minister is the child's guardian for such a decision raises serious conflict of interest issues, which may result in the best interests of an unaccompanied child not being protected.

Although the Department denies that there is any conflict of interest, it has also informed the Inquiry that no unaccompanied child has been returned from detention to their country of origin.⁽²³²⁾

6.7.7 What impact do alternative places of detention have on the time children are detained?

The Department has argued that increased use of alternative places of detention has reduced the time in detention. As discussed above, while alternative places of detention may substantially improve conditions of detention it does not amount to release from detention.

Nevertheless, transfer of unaccompanied children to foster homes will mitigate a breach of the 'shortest appropriate period' principle if it occurs shortly after arrival in Australia. Transfer to the Woomera housing project is of lesser effect due to the greater restrictions associated with that initiative.

6.7.8 What is the impact of the 'Pacific Solution' on the 'shortest appropriate period'?

As part of the 'Pacific Solution' package of legislation, the Government introduced a measure that denied all people who were intercepted in Australian waters or who arrived at Christmas Island, the Ashmore and Cartier Islands or the Cocos (Keeling) Islands (excised offshore persons) from applying for a protection visa as part of their asylum claim. This has a serious impact on the length of time for which the children in Nauru, Papua New Guinea or Christmas Island may be detained.

As described above, children who arrive on the Australian mainland without a visa, and are detained in Australian detention facilities, will be released from detention on a temporary protection visa once found to be refugees.⁽²³³⁾ However, children who are excised offshore persons and are detained on Christmas Island or transferred to detention facilities in Nauru or Papua New Guinea, have no entitlement to a visa even once they are found to be refugees. In other words, even after the processing has finished and the children have been recognised as refugees, there is no automatic trigger for release from detention. They have no rights to a bridging visa, nor to transfer to an alternative place of detention.⁽²³⁴⁾ The children must therefore wait in detention until a country offers them resettlement. While it can be argued that asylum-seeking children in camps in Pakistan, for example, also face a similar hiatus after they have been found to be refugees, the difference is that the waiting period does not occur in a detention environment.

The Minister may grant children in Nauru or Papua New Guinea a visa, if he or she 'is satisfied that there are compelling reasons for giving special consideration to granting ...a temporary visa'.⁽²³⁵⁾ However, if the Minister decides not to grant a visa, it appears that the children may be doubly disadvantaged because they are not only excluded from obtaining an Australian protection visa, but the fact that they have entered Australian territory and have been processed by Australian officials may make it more difficult to qualify for resettlement in countries other than Australia. This would prolong the time in detention even further. UNHCR testified that this is particularly problematic for children detained on Nauru, who have families already in Australia:

INQUIRY SECRETARY: ...Did I hear you correctly that if Australia denied a visa to the separated families, no other country would take them?

MR GABAUDAN (UNHCR): Well, I think so because when we present cases, we have to explain why we go through a certain country, so we look at association with this country first. Family is the first one and previous involvement of the person with the country, whether as a student, etcetera, would be the second reason. So countries will always give priorities in their re-settlement intake to people who have had this association, then they would look at other cases, but I would see it very difficult for any other country to say: 'why shouldn't I take a woman with children to another place, for example, when the husband is in Australia?' They would not see this as a logical investment of their resources ...⁽²³⁶⁾

The Inquiry has some concern that the distinction between the availability of visas to secure release of children who are detained in Australia's mainland detention facilities and those detained in Nauru and Papua New Guinea may be discriminatory and therefore contrary to article 2 of the CRC. Where the only difference between these children is the place of arrival, it is troubling that children who make it to Australia's mainland are entitled to a visa and release from detention once they are found to be refugees, while the children who are intercepted in Australian waters, or who arrive at an 'excised offshore place', have no automatic visa entitlement and must remain in detention facilities in Nauru and Papua New Guinea until they can be resettled.

However, the Inquiry's most serious concern is the impact that the legislation has on the length of time for which children are detained. Children transferred by Australian authorities to Nauru and Papua New Guinea must wait in detention, after being found to be a refugee, to see if Australia or another country decides to grant a visa. This heightens the risk that children will be detained in Nauru or Papua New Guinea for even longer periods of time than children spend in detention facilities on mainland Australia. This seriously increases the prospect of a breach of the principle that children be detained for the shortest appropriate period of time in article 37(b) of the CRC.

6.7.9 Findings regarding detention for the 'shortest appropriate period of time'

 

The Inquiry finds that Australia's detention laws and the application of those laws by the Department fail to ensure that children who arrive in Australia without a visa are detained for the shortest appropriate period of time. This is the result of a combination of factors:

• The Migration Act requires detention of all unlawful non-citizens until they are granted a visa or removed from Australia. There is no certainty as to when this will occur, nor a maximum time limit.
• There are only two visas available to asylum-seeking children who arrive in Australia without a visa: a protection visa or a bridging visa.
• Protection visas can take weeks, months or years to be fully processed.
• Bridging visa regulations are overly restrictive.
• The Department has failed to actively pursue bridging visas within the regulations.
• Removal is not always easy to facilitate.

The Inquiry is of the view that, ideally, the primary processing, merits review and court appeal processes regarding the grant of protection visas to children in detention should all occur more quickly. However, the real problem is that children must remain in detention while those processes are going on rather than the speed at which it is occurring.

The only mechanism to bring about release of children during processing is by granting a bridging visa. However, bridging visa regulations applying to unauthorised arrivals are narrowly drawn and therefore operate as a significant barrier to speedy release from detention, in particular regarding entire families. Nevertheless, the Department has the obligation to promptly and actively pursue the opportunities that are available as soon as possible.

Many unaccompanied children spent many months, and some more than a year, in detention in centres such as Woomera, Curtin and Port Hedland prior to being released. This was avoidable even within the limited framework within which the Department was operating. The failure to pursue 'best interests' bridging visas despite overwhelming evidence that the detention environment was causing serious harm to the psychological well-being of unaccompanied children suggests that the best interests of these children was not a primary consideration for the Department or the Minister as their legal guardian. It also amounts to a breach of the principle that detention be for the shortest appropriate period of time. The new MSIs issued in September and December 2002 indicate that a more active approach to bridging visas for unaccompanied children will be taken in future.

Those families that have failed in their claim for asylum are subject to removal from Australia. The Inquiry acknowledges that the process of arranging for removal can take some time, even when the family does want to leave Australia. Once again, the problem is that the legislation requires that unauthorised arrival children and their parents remain in detention while these processes are taking place, irrespective of the individual circumstances of the family.

Thus while the Government has frequently expressed concern that unlawful noncitizens be available for processing and removal, it has failed to establish mechanisms that require routine assessment as to whether detention is necessary to achieve this goal in the case of individual children and their families. Under Australia's laws it is irrelevant whether a child does or does not pose a danger to the community or will or will not disappear while this process is taking place. The result is a system that has failed to ensure that children are detained for the shortest appropriate period of time.

Finally, while the Inquiry has no primary evidence as to the length of time for which children are detained in Nauru or Papua New Guinea, the Inquiry is concerned that the result of the 'Pacific Solution' legislation is that children who have been transferred to those countries by Australia may be detained well after being recognised as refugees. This is likely to result in even longer periods of detention than those experienced by children in Australia's mainland facilities. This would result in a breach of article 37(b) by Australia, in that prolonged detention is a foreseeable outcome that arises as a direct consequence of the transfer process.

6.8 Can courts provide effective review of the legality of detention?

6.8.1 What does it mean to 'challenge the legality of detention'?

Judicial review of all forms of detention is a fundamental element in the protection of children from an inappropriate exercise of power. The right to prompt access to courts to challenge the legality of detention is set out in article 37(d) of the CRC and mirrors article 9(4) of the ICCPR which has been considered in some detail by the UN Human Rights Committee. The CRC also provides children with the right to 'prompt access to legal and other appropriate assistance' for the purposes of such review.⁽²³⁷⁾

The right to prompt review of the legality of detention is not limited to a review of 'lawfulness' (whether the detention is according to law) but also of 'arbitrariness' (including whether detention is a necessary and proportionate means of achieving a legitimate aim).⁽²³⁸⁾ The review must be 'real' in that it provides effective protection against unjustified or inappropriate deprivation of liberty in the particular circumstances. In A v Australia, the Human Rights Committee (the UN expert body for the ICCPR) stated that:

[C]ourt review of the lawfulness of detention under article 9(4), which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law. While domestic legal systems may institute differing methods for ensuring court review of administrative detention, what is decisive for the purposes of article 9, paragraph 4, is that such review is, in its effects, real and not merely formal. By stipulating that the court must have the power to order release 'if the detention is not lawful', article 9, paragraph 4, required that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant.⁽²³⁹⁾

This principle has been reaffirmed by the Human Rights Committee in three subsequent matters involving Australia.⁽²⁴⁰⁾ The Human Rights Committee has thus made it clear that the purpose of independent review is to provide access to an independent body that can assess whether, in an individual case, detention is necessary or appropriate both at the outset and as time goes on. This is especially important when persons in detention are not told the exact period for which they will be detained.

However, the Government disagrees with the Human Rights Committee's interpretation of the ICCPR saying that since the detention is lawful under Australian law it cannot be arbitrary:

The Government is of the view that the obligation on States imposed by Article 9.4 is to provide for lawfulness of detention under Australian domestic law. There is nothing apparent in the terms of the [ICCPR] that established that 'lawful' was intended to mean 'lawful at international law' or 'non-arbitrary'.⁽²⁴¹⁾

The Inquiry strongly disagrees with this interpretation of international law. If the Government's view were correct there would be no protection for individuals against a country that created domestically constitutional laws resulting in arbitrary detention.

For example, a country might enact legislation providing that 'all blue-eyed children must be detained' and permit children to legally challenge whether they did in fact have blue eyes. Applying the Government's argument, since the children could challenge whether or not they had blue eyes under domestic law, that detention would comply with article 9(4) of the ICCPR. International human rights law clearly did not intend to permit such a result and it is for this reason that the UN Human Rights Committee, the UN Working Group on Arbitrary Detention and the UN High Commissioner for Human Rights Special Rapporteur, amongst others, are all of the view that the right to review of the legality of detention must include review of the arbitrariness of detention under international law.

6.8.2 How can a child obtain legal review of detention under Australian law?

In its submission to the Inquiry the Department states that:

Under Australian law, immigration detainees have the capacity to take proceedings before a court to determine the legality of their detention. This means that children in detention can legally challenge their detention in a court of law, and have the same rights to challenge as all other detainees.⁽²⁴²⁾

The Inquiry asked many of the witnesses with legal qualifications who appeared at the hearings of the Inquiry, to explain the meaning of the Department's statement in practice. All responded that, while there may be some ability to challenge detention in theory, such legal challenge is ineffective to protect the rights of children under the CRC. For example, a representative from the International Commission of Jurists (ICJ) said:

[I]t is a view of the ICJ that the legislation which has been in place now for almost if not ten years, effectively, provides no effective means of judicial review of the detention other than to determine whether or not a person is a designated person who would then be eligible for detention. Apart from that very limited and narrow area, it is the view of the ICJ that there is no effective ability to seek judicial review of the detention and as a consequence the detention process in Australia is arbitrary and to that extent the ICJ would adopt the views of the human rights committee in [A v Australia] with regard to the detention system and the eligibility for judicial review.⁽²⁴³⁾

There are essentially two ways in which the lawfulness of detention can be challenged in Australia. One is on the basis that the detention is not lawful within the terms of the Migration Act. The Migration Act is very explicit in preventing 'release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa' (emphasis added).⁽²⁴⁴⁾However, this does not prevent that person from being released if he or she is not in fact an unlawful non-citizen or has already been granted a visa and therefore should be released.

The second basis for challenging the legality of detention is that it does not come within the constitutional limitations of the power to detain under the Migration Act. The High Court in Lim v The Minister for Immigration stated that mandatory detention laws were valid:

if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.⁽²⁴⁵⁾

If the detention is beyond those purposes it will be punitive rather than administrative in nature and therefore unconstitutional. This is because under the Constitution a person can only be legally imprisoned for a punitive purpose by a court - not the executive arm of government.

However, neither of these avenues of appeal is the type envisaged by the CRC which anticipates something like the bail procedures applicable in Australian criminal jurisdictions. In Australian criminal law and procedure, there are strict and detailed State laws which generally impose a presumption against detaining a child suspected of a crime while their case is being determined. For example, in New South Wales, if a child is suspected of a crime he or she will generally be issued with a summons to appear before a court, rather than be arrested and detained.⁽²⁴⁶⁾However, if a child is arrested and detained, the child must appear 'as soon as practicable' before a court in order to consider the need for continuing detention.⁽²⁴⁷⁾

In contrast, a child who has committed no crime at all, but who arrives in Australia without a visa, essentially needs to mount a constitutional challenge in the High Court before the legality of his or her detention can be reviewed. This can take months, if not years.

The Department has recommended that the Inquiry refrain from making comparisons with the criminal justice system on the grounds that immigration detention, unlike criminal detention, involves considerations of family unity such that the best interests of child may mean that children may need to be detained.⁽²⁴⁸⁾ The Inquiry is very concerned that the Department would use the principle of family unity to justify the proposition that children who have committed no crime should enjoy any lesser right to independent and individual review of the need to detain than those who have committed a crime. As discussed earlier in this chapter (see section 6.5.1), it is a misinterpretation of the CRC to use the principle of family unity to 'trump' the principles embedded in article 37 - including the right to prompt review of detention. Moreover, this argument does not explain why unaccompanied children do not enjoy the right to prompt independent review of detention.

The Inquiry therefore rejects the Department's assertion that Australia is complying with the international law requirement for review of the legality of detention. That assertion is based on a misinterpretation of those obligations. Judicial review should be 'real and not merely formal'⁽²⁴⁹⁾ and Australian law fails to provide a routine opportunity to children in immigration detention to challenge the arbitrariness (as a matter of international law) of their detention. For example, they are not in a position to attempt to satisfy a court that they will make themselves available for processing and removal (should their protection visa applications be unsuccessful).

This view is echoed by the UN Human Rights Committee in Baban v Australia, which found that the judicial review available to a father and son in Villawood detention centre did not amount to the review required by the ICCPR:

The Committee ... notes that in the present case the author was unable to challenge his continued detention in court. Judicial review of detention would have been restricted to an assessment of whether the author was a noncitizen without valid entry documentation, and, by direct operation of the relevant legislation, the relevant courts would not have been able to consider arguments that the individual detention was unlawful in terms of the Covenant. Judicial review of the lawfulness of detention under article 9, paragraph 4, is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1.⁽²⁵⁰⁾

The UN's Special Representative who considered Australian mandatory detention laws during his visit in May 2002 made similar observations:

While the challenge before the court is in theory possible - persons in immigration detention do have the ability to challenge the lawfulness of their detention under domestic law - the simple fact that the Act stipulates that all unlawful non-citizens must be detained, restricts the courts from reviewing the decision to detain.⁽²⁵¹⁾

The Inquiry notes that the UN Human Rights Committee in Bakhtiyari v Australia⁽²⁵²⁾states that a court's ability to order a child's release if considered in his or her best interests constitutes adequate reviewability for the purposes of article 9(4) of the ICCPR, which is in similar terms to article 37(d). In the circumstances of that case, the release of the particular children on an interim basis by the Family Court was considered by the Committee to be sufficient to avoid a continuing breach of the ICCPR. It does not follow, however, that the reviewability of decisions under Australian law generally complies with article 37(d), as the statements above demonstrate.

The Department cites the recent Federal Court case of Al Masri and the Family Court case in B & B v Minister for Immigration and Multicultural and Indigenous Affairs,⁽²⁵³⁾both of which have found detention to be unlawful in certain circumstances, to demonstrate that legal review of detention is 'real'. Other cases have also been brought to the Family Court as discussed in section 6.9.

First, however, it should be noted that in the case of Al Masri, the complainant had been in detention for 11 months prior to making the complaint, and in the case of B & B the children had been in detention for 19 months prior to making the complaint. Thus while it is true that detainees ultimately have access to courts, that access is far from prompt and the process of review is long and contentious. This is in stark contrast to the prompt and routine bail procedures available to children who are accused of a crime, which is representative of what is intended by article 37(d) of the CRC.

Second, the Commonwealth does not accept the result in either of those cases. As at November 2003 the High Court of Australia adjourned its decision in the appeal regarding B & B.⁽²⁵⁴⁾In the event that the High Court allows the Minister's appeal and finds that the Family Court of Australia lacks the jurisdiction to order the release of children from detention, the Department's argument will no longer apply.

However, even in the event that the High Court finds that the Family Court has jurisdiction to make orders for the release of children in the manner contemplated in B & B, it does not follow that this will enable prompt and ongoing review of the need to detain. The position will need to be carefully considered when the decision of the High Court is known, to determine whether or not the review available is adequate to satisfy the CRC.

Furthermore, it is important to note that the cases seem to suggest that the Family Court would not, in any case, have the jurisdiction to order the release of a child's parents. Thus the Court will be placed in the invidious position of having to choose between the ongoing detention of children and separation of children from their parents. This is clearly not what is intended by the 'best interests' principle in article 3(1) of the CRC, as discussed in section 6.5.

6.8.3 Findings regarding reviewability of detention

While recent cases in the Federal Court of Australia and the Family Court of Australia demonstrate the possibility of judicial review of the legality of detention, they also demonstrate the exceptional nature of such review and highlight the absence of prompt and routine access to courts to conduct such a process. Thus while children in detention can challenge the legality of detention in theory, the Inquiry finds that throughout the period examined by the Inquiry, Australian law failed to provide effective avenues for the prompt and routine review of the need to detain in the first instance, and whether continuing detention is appropriate.

The Inquiry notes that the outcome in the case of B & B before the High Court may impact upon the question of whether or not there is a sufficient right for a child to challenge the legality of their detention in accordance with article 37(d). The Inquiry, however, remains concerned that any review be prompt and that it fully consider whether or not the ongoing detention of an individual child is necessary. The Inquiry further notes that unless the Family Court has the power to promptly release children with their parents, then Australian laws will still contravene the 'best interests' principle, as discussed in section 6.5.

The Inquiry observes that the absence of effective judicial review of detention for children arriving in Australia without a visa throughout the period of the Inquiry is in stark contrast to the legal protections that are available to children who are accused of committing crimes.

6.9 Is the detention of children 'unlawful' and 'arbitrary'?

Article 37(b) of the CRC provides that 'no child shall be deprived of his or her liberty unlawfully or arbitrarily'. This provision mirrors article 9(1) of the ICCPR.⁽²⁵⁵⁾ Therefore, the jurisprudence of the UN Human Rights Committee is highly influential, if not authoritative, in relation to Australia's legal obligations.⁽²⁵⁶⁾

All of the factors discussed in the previous sections of this chapter are relevant to a determination as to whether the detention of unauthorised arrival children under the Migration Act is arbitrary and unlawful under international law.

6.9.1 Is mandatory detention of children 'unlawful'?

According to the UN Human Rights Committee, detention will be 'unlawful' unless it is in accordance with established procedures in law.⁽²⁵⁷⁾

The initial detention of children who arrive in Australia without a visa is not unlawful because it is prescribed in the Migration Act. However, as previously mentioned, the High Court of Australia has found that mandatory detention under the Migration Act is only lawful for as long as the detention is 'reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered'.⁽²⁵⁸⁾ If the immigration detention goes beyond those purposes it will be considered punitive and therefore unlawful under Australia's Constitution.

In the Al Masri case, the Full Court of the Federal Court of Australia found that otherwise lawful detention may become unlawful if removal is not reasonably practicable in the reasonably foreseeable future.⁽²⁵⁹⁾

Thus, depending on the circumstances of the case, detention may be unlawful if it is not reasonably necessary for removal, punitive in nature, or if the removal itself is not reasonably practicable.

Whether or not the length and conditions of detention are factors that might affect the lawfulness of immigration detention in Australian law is being considered by the High Court of Australia in SHDB v Godwin (A253/2003), Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (A254/2003) and Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs

(A255/2003). The Commission made submissions in those cases. The High Court of Australia reserved its decision in these matters on 13 November 2003.

The High Court also heard a challenge to the constitutionality of Australia's immigration detention laws, as they applied to children, on 3 February 2004. That decision was also reserved. The Commission's submissions in that case can be found on its web site.⁽²⁶⁰⁾

6.9.2 Is mandatory detention of children 'arbitrary'?

Detention according to domestic laws (i.e. 'lawful' detention) might still be 'arbitrary' under international law.

International law states that detention will be arbitrary because of elements of injustice, inappropriateness, unreasonableness or indeterminacy or if it is 'not necessary in all the circumstances of the case' or not a proportionate means to achieving a legitimate aim.⁽²⁶¹⁾ Furthermore, even if the initial detention is not arbitrary, a subsequent period of detention may become arbitrary, for example, because of the length of the detention or because the detention ceases to be a proportionate response. ⁽²⁶²⁾

The Department appears to acknowledge this definition of arbitrariness:

The Australian government recognises that an essential adjunct to its justification of detention as a reasonable and necessary measure is that detention must be lawful, just, reviewable and predictable and meet Australia's obligations with respect to conditions of detention.⁽²⁶³⁾

However, there appears to be a substantial divergence in the interpretation of this principle, so far as it concerns unauthorised arrivals. Therefore it is relevant to examine what the justification is for detention of unauthorised arrivals in Australian law; whether those reasons are valid under international law; and whether detention is a necessary and proportionate response to achieving any legitimate goals, taking into account the circumstances of the individual case.

According to UNHCR, which has applied the jurisprudence of the ICCPR and the CRC to the Refugee Convention, detention of child asylum seekers will never be reasonable, necessary, proportionate or appropriate.

The UNHCR Detention Guidelines state unequivocally that 'minors who are asylum seekers should not be detained'.⁽²⁶⁴⁾ This is reiterated in the UNHCR Refugee Children: Guidelines on Protection and Care, and the UNHCR UAM Guidelines, which go one step further by stating the principle of not detaining asylum seeker children 'is particularly important in the case of unaccompanied children'.⁽²⁶⁵⁾ This accords with the basic principle in the CRC that detention be a matter of last resort.

However, UNHCR does set out some grounds in which detention of adults who arrive without documentation may be 'exceptionally resorted to':

The position of asylum seekers differs fundamentally from that of ordinary immigrants in that they may not be in a position to comply with the legal formalities for entry. This element, as well as the fact that asylum seekers have often had traumatic experiences, should be taken into account. In UNHCR's view, detention of asylum seekers may be exceptionally resorted to, if prescribed by national law, for the following reasons, which are set out in Excom Conclusion No.44:

1. to verify identity;
2. to determine the elements on which the claim to refugee status or asylum is based;
3. to deal with cases where refugees or asylum seekers have destroyed their travel and/or identity documents, or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or
4. to protect national security or public order. [emphasis added]⁽²⁶⁶⁾

The Government's reasons for detention mirror the UNHCR criteria in many aspects although it makes no distinction between children and adults. The Commonwealth Executive has said the reasons for mandatory detention of unauthorised arrivals include to:

• determine the identity of persons
• conduct health checks
• conduct security checks
• ensure availability for processing claims
• ensure availability for removal from Australia in the event of an unsuccessful claim
• prevent persons from entering the community until their claims have been assessed
• maintain the integrity of the universal visa system.⁽²⁶⁷⁾

Each of these reasons is addressed in turn.

(a) Detention of children to conduct identity, health and security checks

It is the Inquiry's view that while detention for the purposes of conducting identity, health and security checks are, prima facie, legitimate reasons for detention under international law, the failure to provide individual assessment mechanisms to determine whether detention is necessary to achieve those purposes is highly problematic. UNHCR is of a similar view:

Australia's policy of mandatory detention does not fall within the exceptions provided for in Excom Conclusion No.44 because it fails to take account whether:

1. the asylum seeker's identity is already established;
2. the asylum seeker possessed valid documents, or if without documents, had no intention to mislead, or has cooperated with the authorities;
3. the elements on which the claim for refugee status is based have already been determined; and
4. there is no evidence that the asylum seeker has criminal antecedents and/or affiliations which are likely to pose a risk to national security or public order.⁽²⁶⁸⁾

In other words, in the view of UNHCR, it is insufficient to merely mirror the criteria set out in Excom Conclusion No.44, there has to be a case-by-case assessment as to whether an asylum seeker arriving without papers must be detained to satisfy that criteria. This view was also expressed by Amnesty International during the public hearings:

The problem with the Australian system is that it is not made on an individual basis, they have not shown why a particular individual needs to be detained and this is with regards to this Inquiry why it is so important. Why would a five year old child or a four year old child or a seven year old child or an eleven year old child pose a health risk or a risk of absconding or whatever...⁽²⁶⁹⁾

(b) Detention of children to ensure availability for processing and removal

Similar logic can be applied to the Department's goal of ensuring availability for processing claims, and for removal from Australia in the event of an unsuccessful claim. They are, prima facie, legitimate goals but detention for those purposes should only occur if, in the individual case, there appears to be a real risk that they will not otherwise be available for those purposes. In other words, there must be no other way to achieve those goals, taking into account the specific circumstances of each unaccompanied child or family.

The Department links detention to ensure availability for processing and removal (as well as detention in order to protect the integrity of the visa system - see section (c) below) with the concept of sovereignty:

...consistent with the fundamental legal principle, accepted in Australian and international law, that as a matter of national sovereignty, the State determines which non-citizens are either admitted or permitted to remain and the conditions under which they may be removed.⁽²⁷⁰⁾

There is no doubt that Australia is entitled to determine who may enter and remain in Australia. However, the relevant question is whether detention is necessary to achieve that goal. The Department has argued that 'absconding will occur unless unauthorised arrivals are mandatorily detained'.

However, despite repeated requests, the Inquiry has been unable to obtain from the Department any evidence that children and families, as opposed to adults generally, are a special flight risk. The Department has acknowledged, however, that the likelihood of absconding is lower at the beginning of the refugee status determination process than at the end.⁽²⁷¹⁾

In any event, even if there were evidence that unauthorised children and families were generally a flight risk, it would be inappropriate and disproportionate to detain all families on that basis. Instead, each family should be assessed as to whether they, in their particular circumstances, are a flight risk.

In the absence of any individual assessment of unauthorised arrivals and any evidence that all children and families will always abscond, the Inquiry is not satisfied that detention of all unauthorised arrival children and families is necessary to ensure availability for processing and removal. As Amnesty International states:

We don't object to detention absolutely but rather the onus is on the State to justify or demonstrate the necessity for that detention.⁽²⁷²⁾

A comparison with the criminal justice system is useful in this regard. While it is clear that all children who are arrested and accused of committing a crime are a flight risk in theory, not all children will be a flight risk in the particular circumstances of the case. It is for this reason that courts conduct a prompt assessment of whether the child may be released on bail pending a court hearing. The Migration Act does not permit any such opportunity for unauthorised arrival children and their parents.

The Department has argued that the removal process provides some access to individual assessment:

Australia processes people for removal on a case-by-case basis and achieves removals in a wide variety of circumstances.⁽²⁷³⁾

However, this is clearly not the type of individual assessment envisaged by international law as a means to ensure that detention is not arbitrary. While speedy removal of individuals who have completed their refugee status determination process may serve to reduce the time in detention, it is not an assessment of whether detention is necessary in the first place, nor of the necessity or appropriateness of continuing detention to achieve those purposes.

The Human Rights Committee decision in Baban v Australia suggests that detention for immigration purposes without reasonable prospect of removal will constitute arbitrary detention in breach of article 9(1) of the ICCPR, even if it does not constitute unlawful detention under Australian law. That decision highlights the need for individual justification of detention prior to the removal stage:

In the present case, the author and his son were held in immigration detention for almost two years without individual justification and without any chance of substantive judicial review of the continued compatibility of their detention with the Covenant.⁽²⁷⁴⁾

(c) Detention of children to protect the integrity of the visa system and deterrence

Many groups have submitted that the real reason for Australia's detention policy is to deter unauthorised arrivals from seeking asylum in Australia. This rationale has been linked to the Government's desire to protect the integrity of its visa system and the concept of border protection. UNHCR is clear that detention of asylum seekers 'as part of a policy to deter future asylum seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law'.⁽²⁷⁵⁾

During the Inquiry hearings the Department denied that deterrence was the purpose of detention but conceded that it may be the effect:

INQUIRY COUNSEL: On various occasions we hear politicians referring to the detention regime as a deterrent to - trying to deter boat people from coming to Australia, you say that's not the Department's position?

DIMIA DEPUTY SECRETARY: Well, they may make those sorts of comments and it may have that incidental - that may be an incidental outcome, if you like, but the purpose for detention, the reason we have detention is to have people available for processing and for removal should they be found not to have a lawful reason to remain.⁽²⁷⁶⁾

As the Department recognises, the Minister for Immigration has been quoted to refer to the deterrent purpose of detention:

...detention arrangements ...have been a very important mechanism for ensuring that people are available for processing and available for removal, and thereby a very important deterrent in preventing people from getting into boats ...⁽²⁷⁷⁾

Furthermore, in a paper prepared for the UNHCR Global Consultations process, the Department stated that:

Deterrence is not the central or dominant objective or reason for the mandatory detention provisions. However, to the extent that mandatory detention is perceived internationally to indicate Australia's determined and effective pursuit of the ...objectives [of ensuring illegal entrants do no enter the Australian community until processed, availability for removal and maintaining the integrity of the migration program], some level of deterrence would be an understandable outcome among potential illegal entrants who lack bona fide claims to asylum ...⁽²⁷⁸⁾

In November 2003, the new Minister for Immigration stated:

No one wants to see that [women and children are detained], but no one wants to send a green light to smugglers, either.⁽²⁷⁹⁾

Some have argued that the very high rate of success of child asylum seekers who arrive without a visa (an average of over 92 per cent) means that most children end up in the community as lawful immigrants in any case and therefore detention appears to be more a question of punishing people who come 'uninvited' rather than controlling illegitimate refugees.⁽²⁸⁰⁾

If the reason for detention of children and their parents is to send a message of deterrence, this would contravene article 31 of the Refugee Convention - which prohibits penalties on asylum seekers by virtue of their illegal entry. While concepts of punishment and deterrence are distinct, any deterrent effect of detention can only arise from its punitive character: it is the fear of, or desire to avoid, such punishment that acts as a deterrent. To the extent that detention is being used as a deterrent, this would also support the argument that detention was punitive under Australian law, which may make it unconstitutional.

(d) Detention of children to prevent them from entering the community until their claims have been assessed

The Department's goal of preventing persons from entering the community until their claims have been assessed goes beyond the legitimate purposes for detention as set out by UNHCR. While detention for the purpose of determining the elements of an asylum claim may be justified, UNHCR states that individuals should only be detained, if necessary, to undergo a preliminary interview not, as is the case in Australian law, for the entire duration of a prolonged asylum procedure.⁽²⁸¹⁾ In other words detention will only be justified if necessary to obtain 'essential facts from the asylum seeker as to why asylum is being sought and would not extend to a determination of the merits or otherwise of the claim'.⁽²⁸²⁾

(e) Length and conditions of detention

Section 6.7 above on the 'shortest appropriate period' demonstrates that some children have been detained for extremely long periods in the absence of any assessment of the need to detain in the individual circumstances of their case. The detention that may not have been arbitrary at the outset may well have become arbitrary with time.

Thus, while the length of detention per se will not be determinative of whether detention will be arbitrary, it is relevant to the requirement that detention be necessary and proportionate to the goals.⁽²⁸³⁾

The conditions of detention may also affect an assessment as to whether detention is a disproportionate response to the goals and therefore arbitrary. The worse the conditions of detention, the more likely that the detention will be disproportionate to the goal. Therefore, if unaccompanied children were immediately transferred to home-based detention on arrival, where the conditions are likely to be better, the detention is less likely to be arbitrary.

While the Inquiry cannot reach the conclusion that the length and conditions of detention will result in detention being arbitrary in every case, the evidence revealed in the following chapters demonstrates that detention in any of the immigration detention facilities has had seriously negative effects on the mental health and education of children, amongst other things. Therefore detention in immigration facilities for all but the briefest periods will weigh heavily against any findings that detention of unauthorised arrival children will be a proportionate response to the fact that they have arrived without a visa.

In the case of Baban v Australia, which involved a father and child who were detained for two years before they escaped, the Human Rights Committee found that Australia:

has failed to demonstrate that those reasons justified the author's continued detention in the light of the passage of time and intervening circumstances such as the hardship of prolonged detention for his son or the fact that during the period under review the State Party apparently did not remove Iraqis from Australia. ...In particular, the State Party has not demonstrated that, in the light of the author's particular circumstances, there were not less invasive means of achieving the same ends, that is to say, compliance with the State Party's immigration policies, by, for example, the imposition of reporting obligations, sureties or other conditions.⁽²⁸⁴⁾

As mentioned in section 6.9.1, as at November 2003 this issue was before the High Court of Australia awaiting decision.

6.9.3 Findings regarding 'unlawful' and 'arbitrary' detention

The Inquiry does not dispute that detention for the purposes of essential health, security and identity checks may be justified under international law. It may also be legitimate to detain children to record the elements of a refugee claim and ensure availability for processing and removal. However, international law imposes a presumption against any detention of children for even those purposes. Furthermore, detention must be proportionate and just, not only at the outset but throughout the period of detention of children. This requires a mechanism to assess whether detention is necessary and proportionate to achieving legitimate goals in the individual circumstances of the case. The length and conditions of detention are relevant to this consideration.

The Inquiry does not accept that protecting the integrity of the visa process, sending a message of deterrence or preventing asylum seekers from entering the community are purposes sufficient to justify the mandatory detention of all unauthorised arrival children.

The Department consistently states that the current detention policy:

represents an appropriate balance between pursuing legitimate public policy objectives and considering the interests of those adversely affected.⁽²⁸⁵⁾

However, the key to ensuring that the detention of each child is a proportionate response to public policy objectives, even where they are legitimate, is to build in a process that allows Departmental decision-makers to decide whether, in the individual case, detention is necessary.

That process does not exist in the current system.

In the 1998 report, Those who've come across the seas, this Commission found the following:

• The mandatory detention regime under the Migration Act places Australia in breach of its obligations under ICCPR article 9(1) and [CRC] article 37(b). The ICCPR and [CRC] require Australia to respect the right to liberty and to ensure that no-one is subjected to arbitrary detention. If detention is necessary in exceptional circumstances then it must be a proportionate means to achieve a legitimate aim and it must be for a minimal period. The detention regime under the Migration Act does not meet these requirements. Under current practice the detention of unauthorised arrivals is not an exceptional step but the norm. Vulnerable groups such as children are detained for lengthy periods under the policy. In some instances, individuals detained under the Migration Act provisions have been held for more than five years. This is arbitrary detention and cannot be justified on any grounds.
• The Migration Act does not permit the individual circumstance of detention of non-citizens to be taken into consideration by courts. It does not permit the reasonableness and appropriateness of detaining an individual to be determined by the courts. Australia is therefore in breach of its obligations under ICCPR article 9(4) and [CRC] article 37(d) which require that a court be empowered, if appropriate, to order release from detention.
• To the extent that the policy of mandatory detention is designed to deter future asylum seekers, it is contrary to the principles of international protection and in breach of ICCPR article 9(1), [CRC] articles 22(1) and 37(b) and human rights under the HREOC Act.⁽²⁸⁶⁾

There have been no relevant changes to legislation since the making of those findings. The Inquiry adopts them in full.

6.10 Summary of findings regarding detention of children

The Inquiry finds that sections 189 and 196 of the Migration Act, the Migration Regulations regarding Bridging Visa E 051, and the application of those laws by the Minister and the Department, place the Commonwealth in breach of the following fundamental principles in the CRC and ICCPR:

• children should only be detained as a measure of last resort (article 37(b), CRC)
• children should only be detained for the shortest appropriate period of time (article 37(b), CRC)
• children should not be arbitrarily detained (article 37(b), CRC; article 9(1) ICCPR)
• children are entitled to prompt and effective review of the legality of detention (article 37(d), CRC; article 9(4) ICCPR)
• unaccompanied children are entitled to special protection (article 20(1), CRC)
• the best interests of the child must be a primary consideration in all actions concerning children (article 3(1), CRC)

There is no doubt that Australia, as a sovereign nation, has the right to control its borders. However, as explained in Chapter 4 on Australia's Human Rights Obligations, sovereignty does not confer an entitlement to achieve immigration control by whatever means. Policy concerns related to border protection are no excuse for a failure to pay attention to the special entitlements of children under the CRC. One of the most important provisions in the CRC relates to the strict control over when a child may be detained.

The Inquiry finds that the mandatory detention legislation introduced and maintained by the Australian Parliament fails to ensure that the detention of unauthorised arrival children is a measure of last resort because it makes the detention of all children and adults who arrive without a visa the first and only option. There are no special considerations for unaccompanied children. This constitutes a breach of articles 37(b) and 20(1) of the CRC.

The mandatory detention laws also fail to ensure that the detention of unauthorised arrival children is for the shortest appropriate period of time because it requires all children to be detained until they are granted a visa or removed from Australia, no matter what their individual circumstances or how long that process takes. The bridging visa regulations are so narrowly drawn for unauthorised arrivals as to be an almost useless mechanism for the release of children and their parents while they are waiting to be fully processed or removed from Australia. Some children have been detained for years as a result of these laws. This constitutes a breach of article 37(b) of the CRC.

The immigration detention laws also fail to protect children from arbitrary detention because they provide no opportunity for a case-by-case assessment of whether the detention of each child who arrives in Australia without a visa is a necessary or proportionate response to the Government's legitimate policy goals. For example, the mandatory detention provisions of the Migration Act ignore the possibility that an unaccompanied child or family poses no health, security or flight risk - they must be detained regardless of the circumstances. Furthermore, the policy goals of protecting the integrity of the visa process, sending a message of deterrence or preventing asylum seekers from entering the community are not legitimate reasons for the mandatory detention of children under international human rights law. The laws therefore breach of article 37(b) of the CRC and article 9(1) of the ICCPR.

The terms of the legislation also prevent courts from conducting prompt, ongoing and effective review of the legality of detention. Recent cases in the Federal Court of Australia and the Family Court of Australia demonstrate the exceptional nature of judicial review of immigration detention. This is in stark contrast to the routine bail proceedings used in the criminal justice system. The laws therefore breach article 37(d) of the CRC and article 9(4) of the ICCPR. The decision of the High Court of Australia in B & B, and other matters before it, will need to be carefully considered to determine whether or not, in the future, children will enjoy the right to challenge their detention in a manner consistent with article 37(d).

As explained fully in section 6.5.1, the Inquiry rejects the view that the 'best interests' principle means that children must be detained, because their parents must be detained. This argument is the perverse result of inappropriate detention laws.

Given the impact of detention on children, as highlighted in this chapter and discussed throughout this report, all of the above factors suggest that the Commonwealth has not made the best interests of children a primary consideration when introducing and maintaining Australia's mandatory detention legislation. Chapter 17, Major Findings and Recommendations, sets out the Inquiry's findings regarding the best interests of the child in more detail.

While the terms of the mandatory detention laws are strict and narrow, they do give the Minister and the Department discretion regarding the location and manner of detention. Since 1994, the Minister has had the power to declare any place in the community a place of 'detention'. In the Inquiry's view, if the best interests of the child were a primary consideration in decisions relating to the location of detainees, the Minister and the Department would have developed, at an early stage, policies and procedures to ensure that children and their parents be transferred to alternative places of detention in the community as quickly as possible. This option was not actively pursued until January 2002, when children became involved in hunger strikes, lip-sewing and suicide pacts. Since that time almost 20 unaccompanied children have been transferred to home-based detention, with great positive impact on those children. However, all of those unaccompanied children had been in detention for many months prior to this transfer and most had reached great levels of distress by that time. Furthermore, most of the 285 unaccompanied children in detention between 1999 and 2002 were not offered this opportunity. Only one family was transferred to a place of detention in the community during the period of the Inquiry.

The laws also provide the Minister and the Department with an opportunity, and responsibility, to pursue bridging visas within the Migration Regulations, particularly with respect to unaccompanied children. However, only one of the 285 unaccompanied children in detention was released on a bridging visa between 1999 and 2002.

The Inquiry therefore finds that the Minister and the Department failed to vigorously pursue the options available to bring about the prompt transfer or release of children from detention centres. Therefore the manner in which the Minister and the Department applied the detention laws failed to ensure that the detention of children be for the shortest appropriate period of time and to provide unaccompanied children the special assistance that they needed to enjoy that right.

These same circumstances also suggest a failure to make the best interests of the child a primary consideration in decisions relating to the length and location of detention as discussed further in Chapter 17, Major Findings and Recommendations.

The Inquiry acknowledges that in December 2002 the Department issued Migration Series Instructions directing its officers to more vigorously pursue bridging visas and placement into home-based detention in the future. However, a year later only one more whole family and a small number of accompanied children (without their parents) had been placed in home-based detention.⁽²⁸⁷⁾

The Woomera RHP offers some improvements on the environment in detention centres, but falls far short of release or alternative detention in the community. Mothers and children are still locked within a housing compound, albeit that it is a friendlier environment than a detention centre. Two-parent families who want their children to benefit from that improved environment must agree to the father remaining in the detention centre. Fathers will only see their children during visits. When the Woomera RHP was first trialled in August 2001 (also a considerable time after families started arriving in detention centres), boys aged 13 years and over were also excluded from the project. The rules excluding teenage boys were removed in December 2002. By the end of 2003 two more housing projects had opened - one in Port Hedland and one in Port Augusta. The rule excluding fathers remains.

Finally, the Inquiry notes that the fact that detainees may have family members living in the community appears to have had little influence on decisions regarding in which detention centre a child might be detained. Given the connection between family unity and the best interests of the child, this raises the question as to whether the best interests of the child were a primary consideration in such decisions.

Thus both Australia's detention laws and their administration by the Minister and the Department results in a breach by the Commonwealth of articles 3(1), 20(1), 37(b) and 37(d) of the CRC as well as articles 9(1) and 9(4) of the ICCPR.

6.11 Case studies

6.11.1 Case Study 1: The impact of detention on the best interests of the child and family unity

Five children aged 3, 7, 9, 10 and 12 arrived in Australia with their mother in January 2001. They were taken to Woomera straight away. They did not know where their father was.

In April 2001, the ACM psychologist at Woomera noted that the children are 'sad and withdrawing from activities' are 'missing their father especially now they have been told that he is in Australia and in Sydney'.⁽²⁸⁸⁾ The psychologist recommended that assistance be sought in locating their father.⁽²⁸⁹⁾ The Inquiry has no evidence of efforts made to bring the family in contact with each other at that time - either by phone or physically.

In January 2002, the father discovered that his family were in Woomera, when he recognised a family member in a news broadcast on television.

In April 2002, a year after the children had learnt that their father was in Sydney, one of the boys' medical reports stated:

Children's father is in Sydney. Child at 12 years is unable to make sense of incarceration and separation from father. Cried and expressed need for father.⁽²⁹⁰⁾

The same month, the South Australian child welfare authority reported:

Isolation from kin - the father of this family was released almost two years ago on a three year temporary visa. He lives in Sydney and has only visited Woomera infrequently. When he has visited it was for three hours with an officer present. The mother reports the children are happy to see their father. The mother wants the children to be released to live with their father.⁽²⁹¹⁾

In July 2002, 18 months after their arrival, the Department wrote to the Minister for Immigration about the family's management and placement options.⁽²⁹²⁾ The Department stated that the focus of the current arrangements was on 'ensuring that adequate psychological and emotional support is being given to all members of the family in Woomera IRPC'.⁽²⁹³⁾ The Department presented to the Minister the pros and cons of six further options, with much reference to the problem of separating the children from one or both parents. The following is a summary of the options presented in the memo:

1. Alternative Detention Locations

(a) Transfer to the Residential Housing Project (RHP) in Woomera.

Pros: The family would be in a different environment away from the centre; closer attention could be provided to the family given the higher staff/resident ratio; and the mother would be able to play a greater role in caring for her family's day to day needs.

Cons: The family meet the selection criteria for the RHP, however, the boys are now known to be an escape risk and would therefore require careful assessment; [mother] would have to leave her brother in the centre; should [father's] visa be cancelled and he [be] returned to detention, the family would still be separated.

(b) Transfer to Villawood IDC

Pros: If the family were moved to Villawood they would be close to where < [the father is living]; there may be access to outside schooling. Cons: A small but very difficult case load has built up at the Villawood IDC; the centre also has a large compliance case load; Villawood is now the largest centre (population); media focus on the family would be easier to maintain at this centre.

(c) Transfer to Baxter IDF

The Department is anticipating transferring the family to the new Baxter facility.

Pros: This is a new centre with greater amenities, closer to a metropolitan area and therefore closer for [the father] to visit; there may be prospects for access to external schooling.

Cons: Movement to Baxter does not remove the children from a detention environment; and early resolution of access to external schooling is unlikely; the family remains separated.

2. Alternative Detention Arrangements in the Community

Arrangements could be made for some or all of the children to reside with their father or with an independent person (or be placed through a State authority).

Pros: The children would be reunited with their father; the children would be out of a detention environment.

Cons: Moving some or all of the children to live with their father does not solve the problem of a split family; if the children were housed with someone other than their father, the children are in the potentially worse situation of being split from both parents; [the father] has indicated in the media that he would be physically unable to care for the children on his own; should [the father's] visa be cancelled and the children were in his care, a decision would have to be made about their return to a detention centre.

3. Bridging Visa E (051)

It is not clear at this stage if the family is eligible for a BVE (051) as the matter before the full bench of the High Court does not necessarily constitute an application before the Department. However, this option has the same pros and cons as option (b), with the addition that all costs associated with the children would need to be provided by a community group or individual.

Should BVE (051) be granted to some or all of the children, or all family members, we assume they would reside with [the father]. However, he could not provide the assurance of support as this must be provided by an Australian permanent resident. Also, the children would be ineligible for Medicare.

4. Ministerial Intervention s417

You could consider the family for your intervention under section 417 of the Migration Act. Should you decide to intervene in their case, the following three options are available: granting the family a temporary protection visa; or granting the family another type of substantive visa; or granting bridging visas to some or all family members.⁽²⁹⁴⁾

After this time the mother and girls were offered a place in the Woomera RHP. However, they initially refused on the grounds that it would mean leaving the two older boys behind and they wished to remain as intact a family unit as possible.⁽²⁹⁵⁾

In late 2002, the children's father was detained at Villawood.⁽²⁹⁶⁾ The Department did not transfer the mother and children to Villawood, presumably for the reasons given in option (1) above. The children were eventually reunited with their father in early 2003 when they were all transferred to Baxter.⁽²⁹⁷⁾ Subsequently the mother and daughters were again offered and agreed to be transferred to Woomera RHP in June 2003, while the father and sons remained at Baxter. The Department informed the Inquiry that the father and sons visited Woomera RHP on weekends and the mother and daughters visited Baxter in the week.⁽²⁹⁸⁾

Following legal action in the Family Court of Australia, the children were released into the care of a family in the community in August 2003. Both parents were adamant that the negative impact of detention on their children was such that they preferred that their children be at liberty than with them in Baxter. For some of the time that the children were in Adelaide, their mother was hospitalised close by for the birth of her sixth child. The father remained in Baxter. As at November 2003, the question of the detention of these children was before the High Court of Australia.⁽²⁹⁹⁾

The impact of detention on the mental health of the children in this family is discussed in section 9.4.2, regarding depression and post traumatic stress disorder, in Chapter 9 on Mental Health.

6.11.2 Case Study 2: Impact of visa processing on the length of detention

The following examples demonstrate the difficulty of ensuring that detention is for the shortest appropriate period when there is a requirement that children and their parents remain in detention until the completion of the refugee status determination process.

While some asylum claims are processed within weeks, others can take years. The following examples illustrate a variety of reasons for which the processing can take a long time. Sometimes it takes time to lodge a claim, sometimes the primary processing and merits review at the Refugee Review Tribunal takes a while. Other times appeals by asylum seekers or the Minister to the courts prolong the process. The examples also demonstrate that the fact that the processing takes some time does not necessarily mean that those asylum seekers are not genuine.

Example 1: Two unaccompanied siblings aged 10 and 14 detained at Woomera for one year prior to receiving positive primary decision

June 2001	Arrive in Australia
November 2001	Lodge a protection visa application
June 2002	Received a temporary protection visa and released from detention

Example 2: Family with six children aged 1, 2 (twins), 3, 4 and 9 detained at Woomera for one year prior to receiving positive decision at RRT

9 months in detention prior to receiving negative primary decision. Mother and children found to be refugees 3 months later. Father remains in detention at Baxter.

August 2001	Arrive in Australia
September 2001	Lodge protection visa application
May 2002	Receive negative primary decision
August 2002	Refugee Review Tribunal reversed primary decision Mother and children released from detention on temporary protection visas

Example 3: Family with one child aged 10 on arrival still finalising process after 32 months in detention

5 months in detention prior to receiving negative primary decision.

April 2001	Arrive in Australia
July 2001	Lodge protection visa application
September 2001	Receive a negative primary decision
February 2002	Refugee Review Tribunal upholds primary decision
August 2002	Federal Court denies appeal
December 2003	Family remains in detention awaiting Full Federal Court judgment

Example 4: Single mother and 8-year-old daughter still finalising process after 33 months in detention

3 months in detention prior to receiving negative primary decision.

March 2001	Arrive in Australia
April 2001	Apply for protection visa
June 2001	Receive negative primary decision
October 2001	Refugee Review Tribunal upholds primary decision
February 2002	Federal Court hearing
May 2002	Federal Court denies appeal
November 2002	Full Federal Court hearing
December 2002	Full Federal Court denies appeal
December 2003	Mother and daughter remain in detention awaiting High Court appeal

Example 5: Single mother and 7-year-old son detained at Woomera for 30 months prior to being found to be refugees

April 2001	Arrives in Australia
August 2001	Apply for protection visa
September 2001	Receive negative primary decision
December 2001	Refugee Review Tribunal upholds primary decision
August 2002	Federal Court allows appeal and remits case to the RRT Minister appeals this decision
June 2003	Full Federal Court allows appeal and remits case to the RRT
August 2003	Refugee Review Tribunal finds that the mother and son are refugees They are released from detention on temporary protection visas

Example 6: Single mother with two sons aged 4 and 12 still finalising process after 32 months in detention

Minister has appealed Full Federal Court decision in the family's favour to the High Court of Australia.

April 2001	Arrive in Australia
July 2001	Apply for protection visas
September 2001	Receive negative primary decision
March 2002	Receive negative RRT decision
August 2002	Federal Court find that the RRT had made an error in law, but also finds that the decision is not reviewable, so dismisses appeal
June 2003	Full Federal Court allows appeal and remits case to the RRT Minister appeals to the High Court
December 2003	Family remain in detention

Endnotes

1. See further Chapter 17, Major Findings and Recommendations.
2. This definition has been adopted by the Committee on the Rights of the Child, General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted by States Parties Under Article 44, Paragraph 1(b), of the Convention, 11 October 1996, Part VIII B(2), UN Doc CRC/C/58, para 138.
3. UNHCR, UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers (UNHCR Detention Guidelines), Geneva, 1999.
4. See HREOC, Those who've come across the seas, 1998. The Australian Government does not accept the reasoning and findings of this report.
5. See especially articles 9(1) and 9(4) of the ICCPR regarding arbitrary arrest and detention.
6. See particularly the UNHCR Detention Guidelines.
7. United Nations Rules for the Protection of Juveniles Deprived of their Liberty, Geneva, 1990, rules 1 and 2. Rule 2 provides '[d]eprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release'.
8. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), Geneva, 1985, rule 17.1(b) provides that 'Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum'.
9. The Beijing Rules, rule 17.1(c), provides that 'Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response'.
10. Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/15/Add.79, 10 Oct 1997, para 20. See similar concerns expressed by the Committee with regard to the detention of child asylum seekers in Austria: Concluding Observations of the Committee on the Rights of the Child: Austria, UN Doc CRC/C/15/ Add.98, 7 May 1999, para 27.
11. See further sections 6.8 and 6.9 below.
12. See Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), Response to Draft Report, 4 July 2003.
13. See further Chapter 4 on Australia's Human Rights Obligations, especially section 4.3.5.
14. For some useful summaries regarding Australia's immigration and detention policy see Justice AM North and P Decle, 'Courts and Immigration Detention: The Australian Experience', Address to the Conference of the International Association of Refugee Law Judges, Wellington, New Zealand, October 2002; D McMaster, Asylum Seekers: Australia's Response to Refugees, Melbourne University Press, Melbourne, 2001, ch3; A Schloenhardt, 'Australia and the Boat-People: 25 Years of Unauthorised Arrivals', University of New South Wales Law Journal, vol 23, no3, 2000, p33; US Committee for Refugees, 'Sea Change: Australia's New Approach to Asylum Seekers', February 2002.
15. North and Decle, p10.
16. Migration Act 1958 (Cth), s183 (Migration Act).
17. Migration Amendment Act 1992 (Cth), s54Q(2)(b).
18. Schloenhardt, p48.
19. Migration Reform Act 1992 (Cth); Migration Laws Amendment Act 1993 (Cth). Section 2 of the Migration Reform Act 1992 (Cth) provides that the main provisions of the Act commence on 1 November 1993. Section 2 of the Migration Laws Amendment Act 1993 (Cth) provides that certain amendments contained in the Migration Reform Act 1992 (Cth) commence on 1 September 1994.
20. Migration Legislation Amendment Act (No 1) 1999 (Cth).
21. For descriptions of the Tampa crisis see, amongst others, North and Decle; Schloenhardt; US Committee for Refugees, 2002; M Crock and B Saul, Future Seekers: Refugees and the Law in Australia, The Federation Press, Sydney, 2002, pp35-37.
22. Migration Amendment (Excision from Migration Zone) Act 2001 (Cth), Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth).
23. Migration Act, s189.
24. Migration Act, s196(1).
25. Migration Act, s198A.
26. Minister for Immigration and Multicultural and Indigenous Affairs, 'Unauthorised Arrivals and Detention - Information Paper', February 2002.
27. The Department asserts that these persons are not in immigration detention as defined by the Migration Act, s5. DIMIA, Response to Draft Report, 4 July 2003. However, while they may not be in detention as defined by the Migration Act, they are forcibly taken to Nauru and Papua New Guinea by Australian authorities and they are not free to leave the 'offshore processing centres' while their claims for asylum are being assessed. Under these circumstances such people are being detained within the ordinary meaning of that term.
28. The Department states that the rationale for this difference in treatment is that persons who have arrived with a visa have already been 'immigration cleared' prior to their arrival in Australia. However, this does not explain the relative difficulty in obtaining a bridging visa on completion of the relevant health, security and identity checks.
29. Note, however, that when the Inquiry visited the Villawood IDC in August 2002 there were eight children in detention who were not asylum seekers. One of those children had been detained for more than four months (since her birth). As at November 2003, this baby was still detained at Villawood.
30. Migration Act, s273.
31. See the definition of 'immigration detention' in the Migration Act, s5.
32. DIMIA, Submission 185, pp53, 181, 188, 192.
33. DIMIA, Deputy Secretary, Comments on Transcript of December 2002 Hearing, 19 March 2003. See also DIMIA, Submission 185, p51.
34. As those facilities opened after the period examined by the Inquiry they are not discussed in any detail. To the best of the Inquiry's knowledge they operate on much the same principle as the Woomera RHP, except that some of the eligibility rules had changed by the time they opened. Detainee boys under the age of 18 may now apply for transfer to the housing projects.
35. DIMIA, Response to Draft Report, 4 July 2003; DIMIA, Response to Second Draft Report, 17 December 2003.
36. DIMIA, Report on the Evaluation of the Trial of Alternative Detention Arrangements for Women and Children in Woomera, 8 March 2002, para 3.3.5.
37. DIMIA, Report on the Evaluation of the Trial of Alternative Detention Arrangements for Women and Children in Woomera, 8 March 2002, para 3.3.4; DIMIA, Application to Participate in Alternate Detention Arrangements in Woomera, (N4, Q5, F4).
38. DIMIA Woomera Manager, Email to DIMIA Central Office, 21 February 2002, (N5, Case 28, p14).
39. DIMIA, Report on the Evaluation of the Trial of Alternative Detention Arrangements for Women and Children in Woomera, 8 March 2002, para 3.4.3.
40. DIMIA Assistant Secretary, Letter, to ACM Managing Director, 25 July 2002, (N4, Q5, F4).
41. DIMIA, Migration Series Instruction 371, Alternative Places of Detention (MSI 371), 2 December 2002, para 5.2.3.
42. DIMIA, Fact Sheet 83, The Woomera Alternative Detention Arrangements for Women and Children Project, at www.immi.gov.au/facts/83woomera.htm, viewed 20 August 2003, 17 November 2003. This Fact Sheet was updated on 6 November 2003 with no mention of detainee age requirements or restrictions.
43. DIMIA, Transcript of Evidence, Sydney, 3 December 2002, pp10-11.
44. DIMIA Deputy Secretary, Comments on Transcript of December 2002 Hearing, 19 March 2003, p2.
45. DIMIA Deputy Secretary, Comments on Transcript of December 2002 Hearing, 19 March 2003, p2.
46. DIMIA Deputy Secretary, Comments on Transcript of December 2002 Hearing, 19 March 2003, p2.
47. DIMIA, Transcript of Evidence, Sydney, 3 December 2002, p10.
48. DIMIA, Response to Second Draft Report, 17 December 2003.
49. Inquiry, Interview with detainee, Woomera, September 2002.
50. DIMIA, Report on the Evaluation of the Trial of Alternative Detention Arrangements for Women and Children in Woomera, 8 March 2002, para 1.1.1.
51. DIMIA, Report on the Evaluation of the Trial of Alternative Detention Arrangements for Women and Children in Woomera, 8 March 2002, para 3.8.3.
52. DIMIA, Report on the Evaluation of the Trial of Alternative Detention Arrangements for Women and Children in Woomera, 8 March 2002, para 1.1.6.
53. HREOC, Notice of Grant of Temporary Exemption, 14 October 2002, para 5.1.
54. HREOC, Notice of Grant of Temporary Exemption, 14 October 2002, para 5.6.
55. HREOC granted an extension to the exemption and reiterated the concerns regarding the separation of family. HREOC, Notice of Grant of Temporary Exemption, 19 September 2003, para 5.7.
56. Justice P N Bhagwati, Regional Advisor for Asia and the Pacific of the United Nations High Commissioner for Human Rights, Mission to Australia, 24 May to 2 June 2002, Human Rights and Immigration Detention in Australia, para 49.
57. Confidential Submission 291.
58. The Department of Human Services (DHS) is responsible for child protection and child welfare in South Australia. Family and Youth Services (FAYS) is the section of DHS that manages these responsibilities.
59. DHS, Woomera Detention Centre Assessment Report, 12 April 2002, Submission 181a, p3.
60. Child and Family Psychiatrist, Department of Psychological Medicine, Women's and Children's Hospital Adelaide, Psychiatric Report, 3 July 2002, (N3, F13).
61. Confidential Submission 291.
62. DIMIA, Submission 185, p51.
63. ACM, Response to Draft Report, 19 May 2003.
64. Inquiry, Interview with detainees, Woomera RHP, September 2002.
65. Inquiry, Interview with detainees, Woomera RHP, September 2002.
66. DIMIA, Submission 185, p51.
67. ACM, Response to Draft Report, 19 May 2003.
68. Inquiry, Interview with detainees, Woomera RHP, September 2002.
69. Inquiry, Interview with detainees, Woomera RHP, September 2002.
70. DIMIA, Response to Draft Report, 4 July 2003.
71. Inquiry, Interview with detainees, Woomera RHP, September 2002.
72. DIMIA, Report on the Evaluation of the Trial of Alternative Detention Arrangements for Women and Children in Woomera, 8 March 2002, para 5.2.9.
73. Confidential Submission 291.
74. Inquiry, Interview with detainees, Baxter, December 2002.
75. Inquiry, Interview with detainees, Woomera RHP, September 2002.
76. DIMIA, Letter to Inquiry, 13 December 2002, Attachment A.
77. One unaccompanied child was released into foster care in late 2001; however, this was on a bridging visa. See Case Study 1 in Chapter 14 on Unaccompanied Children.
78. DIMIA, Response to Second Draft Report, 17 December 2003; DIMIA, Response to Second Draft Report, Email to Inquiry, 12 January 2004.
79. DIMIA, Submission 185, p96.
80. DIMIA Woomera Deputy Manager, Email, to FAYS, 14 January 2002, (N2, Q7, F6).
81. See further Case Study 3 in Chapter 14 on Unaccompanied Children.
82. DHS, Executive Director, FAYS, Letter, to DIMIA, Acting First Assistant Secretary, 26 January 2002, (N2, Q7, F6).
83. DHS, Executive Director, FAYS, Letter, to DIMIA, Acting First Assistant Secretary, 27 January 2002, (N2, Q7, F6).
84. DHS, Executive Director, FAYS, Letter, to DIMIA, Acting First Assistant Secretary, 29 January 2002, (N2, Q7, F6).
85. DHS, Executive Director, FAYS, Letter, to DIMIA, Acting First Assistant Secretary, 29 January 2002, (N2, Q7, F6).
86. DHS, FAYS, Unaccompanied Humanitarian Minors Program, Specific Placements List, 7 February 2002, (N2, Q7, F6).
87. DHS, Acting Regional Director Country, FAYS, Letter, to DIMIA Central Office, 7 February 2002, (N2, Q7, F6).
88. DHS, FAYS, Unaccompanied Minors [table of placements], 8 February 2002, (N2, Q7, F6).
89. Migration Act, s5.
90. DIMIA, Response to Second Draft Report, 17 December 2003.
91. Draft Agreement between the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the South Australian Department of Human Services (DHS) relating to the care of some detainee minors (Draft Agreement between DIMIA and DHS relating to the care of some detainee minors), July 2002, para 2.1, (N4, Q6, F5).
92. Draft Agreement between DIMIA and DHS relating to the care of some detainee minors, paras 10.1, 10.4, (N4, Q6, F5).
93. Draft Agreement between DIMIA and DHS relating to the care of some detainee minors, para 2.1, (N4, Q6, F5).
94. Draft Agreement between DIMIA and DHS relating to the care of some detainee minors, paras 10.2-10.4, (N4, Q6, F5).
95. Draft Agreement between DIMIA and DHS relating to the care of some detainee minors, para 7.1, (N4, Q6, F5).
96. Draft Agreement between DIMIA and DHS relating to the care of some detainee minors, para 7.3, (N4, Q6, F5).
97. Draft Agreement between DIMIA and DHS relating to the care of some detainee minors, para 8.1, (N4, Q6, F5).
98. DIMIA, Submission 185, p99; DIMIA, Transcript of Evidence, Sydney, 2 December 2002, pp29-30.
99. DIMIA, Transcript of Evidence, Sydney, 3 December 2002, pp93, 97.
100. DIMIA, Unaccompanied Minor Teleconference Minutes, 17 January 2002. DIMIA, Letter to Inquiry, 27 November 2002, Attachment B.
101. See further Chapter 8 on Safety.
102. DIMIA, Submission 185, p96.
103. DIMIA, Response to Draft Report, 4 July 2003.
104. DIMIA, Migration Series Instruction 370, Procedures for Unaccompanied Wards in Immigration Detention Facilities (MSI 370), 2 December 2002, para 13.2.1. See further the discussion in the following section on the best interests of the child.
105. DIMIA, Transcript of Evidence, Sydney, 3 December 2002, pp96-97.
106. See further Chapter 9 on Mental Health.
107. DHS, Executive Director, FAYS, Letter, to DIMIA, Acting First Assistant Secretary, 24 January 2002, (N2, Q7, F6).
108. DIMIA, Information Required, (N4, Q6, F5).
109. Migration Legislation Amendment Act 1994, (amendment to the definition of 'immigration detention').
110. Inquiry, Interview with unaccompanied boy in alternative detention, Adelaide, July 2002.
111. See further Chapter 3, Setting the Scene, for statistics regarding unaccompanied children.
112. DIMIA, Response to Second Draft Report, Email to Inquiry, 12 January 2004.
113. Minister for Immigration and Multicultural and Indigenous Affairs, Woomera IRPC to close, Media Release, Parliament House, Canberra, 12 March 2003.
114. Inquiry, Interview with detainees, Woomera RHP, June 2002.
115. Confidential Submission 291.
116. The Vietnamese asylum seekers who arrived by boat in July 2003 were taken to Christmas Island rather than Nauru or Papua New Guinea. This was due to the fact that they first entered Australia's migration zone at Port Hedland, so they had to be processed under Australian law. See Minster for Immigration and Multicultural and Indigenous Affairs, Processing Arrangements for Boat Arrivals Clarified, Media Release, Parliament House, Canberra, 4 July 2003.
117. See the decisions of the Human Rights Committee (HRC) in GT v Australia, Communication No 706/1996, UN Doc CCPR/C/61/D/706/1996, 4 December 1997; C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999, 13 November 2002; Kindler v Canada, Communication No. 470/1991, UN Doc CCPR/C/48/D/470/1991, 18 November 1993; Ng v Canada, Communication No. 469/1991, UN Doc CCPR/C/49/D/469/1991, 7 January 1994; Cox v Canada, Communication No. 539/1993, UN Doc CCPR/C/52/D/539/1993, 9 December 1994.
118. DIMIA, Submission 185, p177.
119. See further Chapter 2 on Methodology.
120. See for example, HREOC, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 1997; Senate Community Affairs References Committee, Inquiry into Child Migration, August 2001. See further Chapter 9 on Mental Health.
121. DIMIA, Response to Draft Report, 4 July 2003. See also DIMIA, Transcript of Evidence, Sydney, 3 December 2002, p103.
122. Minister for Immigration and Multicultural and Indigenous Affairs, Border Protection: Children in Detention, 29 April 2002, at www.minister.immi.gov.au/borders/detention/children_detention.htm, viewed 24 November 2003. See also DIMIA, Submission 185, p16.
123. UNICEF Australia, Transcript of Evidence, Sydney, 15 July 2002, p98.
124. AAIMH, Transcript of Evidence, Adelaide, 1 July 2002, p29.
125. RILC, Transcript of Evidence, Melbourne, 30 May 2002, p31.
126. The Association of Major Charitable Organisations, Transcript of Evidence, Adelaide, 2 July 2002, p7.
127. DIMIA Port Hedland, Unaccompanied Minor Meeting Minutes, 29 November 2001. DIMIA, Letter to Inquiry, 27 November 2002, Attachment B.
128. DHS, FAYS Assessment Report, 22 February 2002, (N2, Q7, F6).
129. DHS, FAYS Assessment Report, 22 February 2002, (N2, Q7, F6).
130. DHS, FAYS Assessment Report, 22 February 2002, (N2, Q7, F6).
131. DIMIA, Deputy Secretary, Comments on Transcript of December 2002 Hearing, 19 March 2003.
132. UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum (UNHCR UAM Guidelines), Geneva, 1997, para 7.6.
133. UNHCR UAM Guidelines, para 5.7.
134. See further Chapter 14 on Unaccompanied Children.
135. X v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 524 and X v Minister for Immigration & Multicultural Affairs [2000] FCA 704; DIMIA, Submission 185, p43; Migration Series Instruction 357, Procedures for Unaccompanied Wards in Immigration Detention Facilities (MSI 357), 2 September 2002, paras 2.2.3-2.2.5; MSI 370, paras 2.2.3-2.25.
136. The preambular paragraphs to MSI 370 also state that transfer to an alternative place of detention or release on a bridging visa should occur 'as soon as possible'.
137. DIMIA, Transcript of Evidence, Sydney, 2 December 2002, p25.
138. DIMIA, Response to Draft Report, 4 July 2003.
139. DIMIA, Response to Draft Report, 4 July 2003.
140. See, for example, the following submissions to the Inquiry: Coalition for Justice for Refugees, Submission 73; ChilOut, Submission 120; National Legal Aid, Submission 171; Kids in Detention Story, Submission 196; Western Young People's Independent Network and Catholic Commission for Justice Development and Peace Melbourne, Submission 199.
141. Youth Advocacy Centre and Queensland Program of Assistance to Survivors of Torture and Trauma, Submission 84, p29.
142. NSW Commission for Children and Young People, Submission 258, p18.
143. Uniting Care Burnside, Submission 172, p8.
144. NSW Commission for Children and Young People, Submission 258, p75.
145. Inquiry, Focus group, Melbourne, May 2002.
146. Inquiry, Focus group, Melbourne, May 2002.
147. Amnesty International Schools Network, Transcript of Evidence, Brisbane, 5 August 2002, p59.
148. DHS, Transcript of Evidence, Adelaide, 1 July 2002, p78.
149. DHS, FAYS Assessment Report, 22 February 2002, (N2, Q7, F6).
150. DHS, FAYS Assessment Report, 22 February 2002, (N2, Q7, F6).
151. DHS, Woomera Detention Centre Assessment Report, 12 April 2002, Submission 181a, p3.
152. DHS, Woomera Detention Centre Assessment Report, 12 April 2002, Submission 181a, p6.
153. Child and Adolescent Psychiatrist, Department of Psychological Medicine, Women's and Children's Hospital, Adelaide, Summary of Children and Families in Woomera Referred to and Assessed by Child and Adolescent Mental Health Services January to July 2002, 2 August 2002, (N5, Case 22, p15).
154. DHS, Social Work Assessment Report on the Circumstances of Children in the Woomera Immigration & Processing Centre, 21 August 2002, (N5, Case 18, p75).
155. R Layton QC, Our Best Investment: A State Plan to Protect and Advance the Interests of Children (the Layton Report), Government of South Australia, 2003, ch 22, p9.
156. DCD, Assessment of Unaccompanied Minors - Port Hedland and Curtin Detention Centres, 19 March 2002.
157. DIMIA, Response to Draft Report, 4 July 2003.
158. In an opinion poll conducted in June 2003, 73 per cent of persons polled answered 'Yes' to the question 'Should children be released now?', Sydney Morning Herald, 19 June 2003.
159. See also, for example, Western Young People's Independent Network and Catholic Commission for Justice Development and Peace Melbourne, Submission 199, p4; Save the Children Australia, Submission 108, p14.
160. Asylum Seekers Centre, Submission 114, p6.
161. Kids in Detention Story, Submission 196, Law Section, p20.
162. RILC, Transcript of Evidence, Melbourne, 30 May 2002, p21.
163. RILC, Transcript of Evidence, Melbourne, 30 May 2002, p31.
164. DIMIA, Submission 185, p16.
165. See for example, Committee on the Rights of the Child, Concluding Observations on the Committee on the Rights of the Child: Austria, UN Doc CRC/C/15/Add.98, 7 May 1999, para 27; Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Canada, UN Doc CRC/C/15/Add.37, 20 June 1995, para 24; and Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child : Sweden, UN Doc CRC/C/15/Add.2, 18 February 1993, para 12.
166. UNHCR Detention Guidelines, guidelines 4 and 6 (emphasis retained). See also UNHCR, Refugee Children: Guidelines on Protection and Care, Geneva, 1994, ch 7, IV: 'Strong efforts must be made to have [children and their families] released from detention and placed in other accommodation'.
167. UNHCR Detention Guidelines, guideline 6. See also UNHCR UAM Guidelines.
168. DIMIA, Response to Draft Report, 4 July 2003.
169. See further section 6.9.3.
170. RILC, Transcript of Evidence, Melbourne, 30 May 2002, pp30-31.
171. With respect to persons who arrive at an 'excised offshore place', it is not mandatory to detain in Australia. However, if those persons are not detained in Australia they will be transferred to Nauru or Manus Island and detained (albeit not under the Migration Act) there. Therefore, the effect is the same.
172. See also, for example, International Commission of Jurists, Submission 128, pp7-8; Refugee Council of Australia, Submission 107, pp1-2; Australian Human Rights Centre, Submission 160, p11.
173. NSW Commission for Children and Young People, Submission 258, p8.
174. Amnesty International, Transcript of Evidence, Sydney, 15 July 2002, p72.
175. DIMIA, Response to Draft Report, 4 July 2003.
176. Question 1210 (4), Commonwealth House of Representatives Hansard, 5 February 2003, pp11062-3.
177. DIMIA, Response to Second Draft Report, 27 January 2004. The exact figure provided is 619 days.
178. Question 1210 (3), Commonwealth House of Representatives Hansard, 5 February 2003, pp11062-3.
179. See for example, Amnesty International, Submission 194, pp5-6; International Commission of Jurists, Submission 128; Law Society of NSW, Submission 204.
180. Migration Act, s196.
181. Inquiry, Focus group, Perth, June 2002.
182. DIMIA, Transcript of Evidence, Sydney, 4 December 2002, p17.
183. Joint Standing Committee on Migration (JSCM), Asylum, Border Control and Detention, February 1994. The JSCM at the time was chaired by Senator Jim McKiernan and included Senator Jim Short, Senator Christabel Chamarette, Senator Barney Cooney, Laurie Ferguson MP, Clyde Holding MP, Philip Ruddock MP, Ian Sinclair MP, Kathy Sullivan MP, and Harry Woods MP.
184. JSCM, Asylum, Border Control and Detention, para 4.181(12).
185. Migration Legislation Amendment Act (No. 5) 1995 (Cth).
186. Migration Regulations (Amendment) Statutory Rules 1994 (Migration Regulations), No. 280.
187. DIMIA, Response to Draft Report, 4 July 2003.
188. Migration Regulations, Schedule 2, cll 051.1-051.2.
189. Migration Act, s73.
190. DIMIA, Letter to Inquiry, 13 December 2002, Question on Notice 8, 3 December 2002.
191. Migration Series Instruction 131, Bridging E Visa - Subclass 051 - Legislation and Guidelines (MSI 131), 3 May 1996, para 7.7.3.
192. DIMIA, Transcript of Evidence, Sydney, 3 December 2002, p42.
193. DIMIA, Response to Draft Report, 4 July 2003.
194. DIMIA, Response to Draft Report, 4 July 2003 referring to DIMIA, Transcript of Evidence, Sydney, 3 December 2003, p99.
195. MSI 131, para 7.7.4 notes that 'the extent to which the Department will be responsible for pursuing adequate care arrangements on the person's behalf will vary from case to case'.
196. MSI 370, para 13.6.2; MSI 357, para 13.3.2.
197. MSI 370, paras 13.7.1-13.7.18; MSI 357, paras 13.4.1-13.4.18.
198. DIMIA, Email to Inquiry, 1 April 2003.
199. DIMIA, Response to Draft Report, 4 July 2003.
200. See further Chapter 7 on Refugee Status Determination.
201. DIMIA, Transcript of Evidence, Sydney, 4 December 2002, p15.
202. RACS, Transcript of Evidence, Sydney, 15 July 2002, p24.
203. DIMIA, Response to Draft Report, 4 July 2003.
204. DIMIA, Transcript of Evidence, Sydney, Sydney, 4 December 2002, p8.
205. DIMIA, Transcript of Evidence, Sydney, Sydney, 4 December 2002, p8.
206. DIMIA, Assistant Secretary, Unauthorised Arrivals and Detention Services Branch, Letter, to Acting General Director, Department for Community Development and Family and Children's Services, 14 February 2002.
207. DIMIA, Response to Draft Report, 4 July 2003.
208. DIMIA, Transcript of Evidence, Sydney, 3 December 2002, p81.
209. DIMIA, Transcript of Evidence, Sydney, 4 December 2002, pp11-12.
210. See further Chapter 14 on Unaccompanied Children.
211. DHS, Submission 181, p37; Western Australian Government, Submission 223, p1; Western Australian Government, Transcript of Evidence, Perth, 10 June 2002, pp32-33; Department of Human Services Victoria, Submission 200, pp9, 18.
212. DIMIA, Transcript of Evidence, Sydney, 3 December 2002, p104.
213. Memorandum of Understanding (MOU) between the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the South Australian Department of Human Services (DHS) relating to Child Protection Notifications and Child Welfare Issues pertaining to children in immigration detention in South Australia (DHS MOU), 6 December 2001.
214. DHS MOU, 6 December 2001, para 11.2.
215. Department of Human Services Victoria, Submission 200, p9 states that it 'has no active role with regard to unaccompanied minors prior to release'. The Department of Human Services explained that the reason for this was that they were not notified of the presence of unaccompanied children in detention.
216. See further Chapter 7 on Refugee Status Determination.
217. DIMIA, Transcript of Evidence, Sydney, 4 December 2002, p12. See also Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516 at [9]. Furthermore, the Department states that it endeavoured to establish regular channels of communication with relevant authorities but those arrangements 'varied from State to State, depending on the particular interests of the State child welfare authority'. DIMIA, Response to Draft Report, 4 July 2003.
218. DIMIA, Response to Draft Report, 4 July 2003.
219. DHS MOU, 6 December 2001, para 11.3.
220. Southern Communities Advocacy Legal and Education Service, Submission 176, p13.
221. See X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524 at [13].
222. DIMIA, Transcript of Evidence, Sydney, 2 December 2002, p39.
223. See further Chapter 7 on Refugee Status Determination.
224. DIMIA, Transcript of Evidence, Sydney, 2 December 2002, p9.
225. See further Chapter 7 on Refugee Status Determination.
226. Julian Burnside QC, Kids in Detention Story, Transcript of Evidence, Melbourne, 30 May 2002, p55.
227. See for example, Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390; Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195; Minister for Immigration & Multicultural Affairs v Applicant M [2002] FCAFC 253; Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244; Minister for Immigration & Multicultural Affairs v N989/01 [2002] FCAFC 237.
228. DIMIA Transcript of Evidence, Sydney, 2 December 2002, p10.
229. DIMIA, Response to Draft Report, 4 July 2003.
230. Al Masri v the Minister for Immigration Multicultural and Indigenous Affairs [2002] FCA 1009.
231. DIMIA, Response to Draft Report, 4 July 2003.
232. DIMIA, Response to Draft Report, 4 July 2003.
233. It is possible that security checks may delay release. See further Chapter 7 on Refugee Status Determination.
234. Bridging visas are only available when there is the possibility of the grant of a substantive visa and therefore the removal of the right to make a protection visa application also cuts off the right to a bridging visa. See Regulation 2.20 of the Migration Regulations.
235. Migration Regulations, Schedule 2, cll 451.222, 447.222. The 'Pacific Solution' legislation introduced two new visas that are available to detainees in Nauru and Papua New Guinea, at the personal discretion of the Minister. The 447 secondary movement offshore visa is available to 'excised offshore persons' and the 451 secondary movement relocation visa is available to persons intercepted in international waters by the Australian Navy and sent to Nauru or Papua New Guinea.
236. UNHCR, Transcript of Evidence, Sydney, 17 July 2002, p27.
237. Although not explicit, the right to legal representation is also covered by the ICCPR. See HRC, Berry v Jamaica, Communication No. 330/1988, UN Doc CCPR/C/50/D/330/1988, 14 April 1994. The Committee accepted the complainant's allegation 'which remains unchallenged, that throughout this period [detention of two and a half months], he had no access to legal representation'. In addition to violating article 9(3) of the ICCPR, the Committee concluded: 'that the author's right under article 9, paragraph 4, was also violated, since he was not, in due time, afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention', para 11.1.
238. See S Joseph, J Schultz and M Castan, The International Covenant on Civil and Political Rights, Cases, Materials and Commentary, Oxford University Press, 2000, p241. See further the following section on unlawful and arbitrary detention.
239. HRC, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993, 30 April 1997, para 9.5.
240. HRC, Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001, 18 September 2003, para 7.2; HRC, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/ D/900/1999, 13 November 2002, para 8.2; HRC, Bakhtiyari v Australia Communication No 1069/ 2002, UN Doc CCPR/C/79/D/1069/2002, 6 November 2003, para 9.4.
241. DIMIA, Response to Draft Report, 4 July 2003.
242. DIMIA, Submission 185, p8.
243. International Commission of Jurists and Legal Aid NSW, Transcript of Evidence, 15 July 2002, Sydney, p4. See also, for example, Julian Burnside QC, Kids in Detention Story, Transcript of Evidence, Melbourne, 30 May 2002, pp50-51.
244. Migration Act, s 196(3). For case law see NAMU v Secretary, Department of Immigration [2002] FCA 907; VFAD v Minister for Immigration & Multicultural Affairs [2002] FCA 1062; VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243; VJAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1253.
245. Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 33.
246. Children (Criminal Proceedings) Act 1987 (NSW), s8 which states that criminal proceedings should not be commenced against a child otherwise than by way of a court attendance notice unless the crime is a serious indictable offence; there is reason to believe that the child will not comply with the summons; or the child is violent.
247. Children (Criminal Proceedings) Act 1987 (NSW), s9. See also, for example, Children and Young Persons Act 1989 (Vic), s 129(1), which requires that a child must be brought before the court within 24 hours after arrest. See further Kids in Detention Story, Submission 196, Law Section, pp37-38.
248. DIMIA, Response to Draft Report, 4 July 2003.
249. HRC, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993, 30 April 1997, para 9.5.
250. HRC, Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001, 18 September 2003, para 7.2.
251. Justice P. N. Bhagwati, Regional Advisor for Asia and the Pacific of the United Nations High Commissioner for Human Rights, Mission to Australia 24 May to 2 June 2002, Human Rights and Immigration Detention in Australia, para 48.
252. Communication No. 1069/2002, UN Doc CCPR/C/79/D/1069/2002.
253. [2003] FamCA 451 (19 June 2003).
254. MIMIA v B & B (A246/2003).
255. ICCPR, article 9(1), provides that: 'Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law'.
256. See further Chapter 4 on Australia's Human Rights Obligations.
257. HRC, General Comment 8, which provides: 'Also if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para 1), information of the reasons must be given (para 2) and court control of the detention must be available (para 4) as well as compensation in the case of a breach (para 5)', HRC, General Comment 8: Right to liberty and security of persons (Art. 9), 30 June 1982, para 4.
258. Chu Kheng Lim v Minister of Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 33.
259. Minister for Immigration Multicultural and Indigenous Affairs v Al Masri, [2003] FCAFC 70. The correctness of the decision in Al Masri will be considered by the High Court of Australia in SHDB v Godwin (A253/2003) and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (A254/2003). Those matters were heard together on 12 and 13 November 2003 (with the matter of Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (A255/ 2003)). The Court reserved its decision in each matter.
260. See: www.humanrights.gov.au/legal/intervention/sakhi.html.
261. HRC, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993, 30 April 1997, para 9.2. The HRC found that Australia's mandatory detention of asylum seekers is not against international law per se, but that the failure to ensure periodic review of whether the detention continued to be appropriate caused the detention to be arbitrary and therefore a breach of international law, paras 9.3-9.4.
262. HRC, Van Alphen v The Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/ 1988, 15 August 1990, paras 5.6-5.8; HRC, Spakmo v Norway, Communication No. 631/1995, UN Doc CCPR/C/67/D/631/1995, 11 November 1999, para 6.3; HRC, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993, 30 April 1997; HRC, Concluding Observations of the Human Rights Committee: Switzerland, UN Doc CCPR/C/79/Add.70, 8 November 1996, para 15.
263. DIMIA, Response to Draft Report, 4 July 2003.
264. UNHCR Detention Guidelines, guideline 6 (emphasis in original). The guidelines come to this position by applying articles 2, 3, 9, 22 and 37 of the CRC. See also UNHCR, Submission 153, para 15.
265. UNHCR UAM Guidelines, para 7.6.
266. UNHCR, Submission 153, para 2.
267. See for example DIMIA, Submission 185, p8; DIMIA, Transcript of Evidence, 2 December 2002, p20; Minister for Immigration, Multicultural and Indigenous Affairs, 'Unauthorised Arrivals and Detention - Information Paper', February 2002; DIMIA, Comments on the Report of the Working Group on Arbitrary Detention, pp6-7, at http://www.minister.immi.gov.au/borders/index.htm, viewed 22 November 2003.
268. UNHCR, Submission 153, para 4.
269. Amnesty International, Transcript of Evidence, Sydney, 15 July 2002, p75.
270. DIMIA, Fact Sheet 75, Processing Unlawful Boat Arrivals, at www.immi.gov.au/facts/ 75processing.htm, viewed 20 August 2003.
271. DIMIA, Transcript of Evidence, Sydney, 5 December 2002, p93.
272. Amnesty International, Transcript of Evidence, Sydney, 15 July 2002, pp74-75.
273. DIMIA, Response to Draft Report, 4 July 2003.
274. HRC, Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001, 18 September 2003, paras 4.12 and 7.2. See also HRC, Jalloh v The Netherlands, Communication No 794/1998, 15 April 2002, para 8.2 and Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, UN Doc. CCPR/CO/73/UK, 6 December 2001, para 16. See further Zadvydas v Davis 533 US 678 (2001), 'Opinions adopted by the Working Group on Arbitrary Detention', E/CN.4/2001/14/Add.1 9 November 2000 at page 38 (opinion no. 33/1999) and 42 (opinion no. 34/1999). As to reference to this body, note Commonwealth v Hamilton (2000) 108 FCR 378 per Katz J at 388, and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 per Gummow J at 117 and Commonwealth v Bradley (1999) 95 FCR 218 per Black CJ at 237.
275. UNHCR Detention Guidelines, guideline 3, Exceptional Grounds for Detention.
276. DIMIA, Transcript of Evidence, Sydney, 2 December 2002, p20.
277. ABC, Radio National, Radio National Breakfast, Interview on the treatment of children in detention, 1 August 2002. See also A Browne, Get tough to stop asylum seekers, Times Online, 16 August 2002. See also Minister for Immigration and Multicultural and Indigenous Affairs and Minister for Foreign Affairs, Government Rejects UN Report on Arbitrary Detention, Joint Media Release, Parliament House, Canberra, 13 December 2002.
278. DIMIA, 'Interpreting the Refugees Convention - an Australian contribution', 2002, cited in North and Decle, p37.
279. 'Detention "lesser evil",' The Advertiser, 3 November 2003, p5.
280. A Millbank, 'The Detention of Boat People', Current Issues Brief, Department of the Parliamentary Library, No. 8, 2000-01, p9.
281. UNHCR, Submission 153, para 5.
282. UNHCR, Submission 153, para 5.
283. See S Joseph, The International Covenant on Civil and Political Rights, Oxford University Press, 2000, p217.
284. HRC, Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001, 18 September 2003, para 7.2.
285. DIMIA, Response to Draft Report, 4 July 2003.
286. HREOC, Those who've come across the seas, 1998, pp55-56.
287. DIMIA, Response to Second Draft, Email to Inquiry, 12 January 2004.
288. ACM Woomera Psychologist, Psychological Assessment Summary, 6 April 2001.
289. ACM Woomera Psychologist, Memo, to ACM Centre Manager, 8 April 2001.
290. ACM Woomera, Medical Records, 7 April 2002, (N3, F4).
291. DHS, Woomera Detention Centre Assessment Report, 12 April 2002, Submission 181a, p9.
292. DIMIA Assistant Secretary Unauthorised Arrivals and Detention Services Branch, Minute, to Minister, 22 July 2002, (N5 Case 16, pp1-7).
293. DIMIA Assistant Secretary Unauthorised Arrivals and Detention Services Branch, Minute, to Minister, 22 July 2002, (N5 Case 16, p2).
294. DIMIA Assistant Secretary Unauthorised Arrivals and Detention Services Branch, Minute, to Minister, 22 July 2002, (N5 Case 16, p5).
295. Inquiry, interview with mother and boys, Woomera, September 2002.
296. The father took out a court injunction preventing his transfer to Woomera facility as he wanted to be close to his lawyers at that time, which the Department states indicates that he was not focused on the objective of family unity, DIMIA, Response to Draft Report, 10 July 2003.
297. Following the cancellation of the father's temporary protection visa, he was detained and eventually transferred to Baxter after the mother and children had been transferred there from Woomera.
298. DIMIA, Response to Draft Report, 10 July 2003.
299. MIMIA v B & B (A246/2003).

13 May 2004