National Inquiry into Children in Immigration Detention

 

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Submission to the National Inquiry into Children in Immigration Detention from

Amnesty International Australia

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Introduction

Amnesty International's work on refugees

The Convention on the Rights of the Child

Health Concerns

Education of Children in Australia's Immigration Detention Centres

Mandatory Detention

Provision for the Release of Children Held In Immigration Detention

Alternatives to detention: Towards the goal of a more humane asylum system

Conclusion

Introduction

This is a paper prepared by Amnesty International for the HREOC Inquiry into children in immigration detention centres. In particular, this paper sets out Amnesty International's concerns with the detention of children, having regard to the international human rights treaties to which Australia has committed itself.

In this submission Amnesty International examines:

1. Amnesty International's concerns with regard to Australia's obligations under the Convention on the Rights of the Child

2. Specific health concerns

3. Specific educational concerns

4. Mandatory detention

5. Case studies highlighting our concerns

6. Provisions for release from detention

7. Alternatives to detention

Amnesty International welcomes the opportunity to make this submission to HREOC. The mandatory detention of asylum seekers generally is of concern to Amnesty International. However, the issues that arise in relation to the detention of children, including the fact of detention, the length of detention, the conditions of detention and the long term impact of detention are of particular concern. Children represent a vulnerable group in society deserving of special protection. Children asylum seekers, many of whom have experienced persecution in their homeland and who have undergone the trauma of fleeing their homes represent an even more vulnerable group deserving of special protection from abuse and exploitation. Amnesty International is concerned that the mandatory institutionalization of these children poses significant risks to their emotional, physical, psychological, social and intellectual well-being and development. Their detention is, in the view of Amnesty International contrary to Australia's international law obligations.

Amnesty International has grave concerns about the parameters of the current political rhetoric that publicly blames parents for the detention of children without due consideration to the deleterious impact that this has on entire families waiting powerlessly in detention unable to challenge in any way, the lawfulness of their detention. Amnesty International strongly advocates the consideration of alternatives to detention. Detention of children should not be automatic. It should only be applied in exceptional cases, and each case should be considered on an individual basis, having regard to such considerations as security and health risks. Further, when considering the release of children from detention a non-discriminatory treatment must be applied equally to accompanied and non-accompanied minors.

In making our submission we examine the following:

• The Convention on the Rights of the Child (CROC).
• The Convention Relating to the Status of Refugees
• Universal Declaration of Human Rights (UDHR)
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural Rights

While not dealt with in detail below, the Inquiry should also be aware of other international standards on detention, including the UN Standard Minimum Rules for the Treatment of Prisoners (the Standard Minimum Rules) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

 

Amnesty International's work on refugees

Amnesty International aims to contribute to the worldwide observance of human rights as set out in the Universal Declaration of Human Rights and other internationally recognised standards. We oppose grave violations of the rights of every person, and support the right of people freely to hold and express their convictions and to be free from persecution by reason of their ethnic origin, sex, colour or language, and the right of every person to physical and mental integrity. We oppose abuses by state and non-state actors - such as opposition groups. Refugee rights are a fundamental tenet of human rights.

When examining refugee rights, as set out in the 1951 Refugee Convention:

Article 1A(2) sets out the definition of a refugee as applying to a person whom:

"…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear is unwilling to return to it."

The fundamental principle of the Refugee Convention is contained in Article 33 which prescribes 'non-refoulement', and states:

"(1) No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion…"

This Article mirrors the customary international law principle of non-refoulement, which law is binding on all states.

The Refugee Convention also addresses other obligations that are imposed on the Contracting State with respect to refugees in its territory. These include:

• That the provisions of the Refugee Convention be applied without regard to race, religion or country of origin (Article 3);
• Refugees' rights to practise religion (Article 4);
• That the Contracting State affords refugees free access to the courts of law of the Contracting State; and any other benefits accorded to the nationals of the Contracting State (Article 16);
• Refugees' rights to welfare, including the right to housing (Article 21);
• Refugees' rights to freedom of movement within the territory (Aritcle 26); and
• Refugees' rights to be issued identity papers in the absence of valid travel documents (Article 27).

Amnesty International works to prevent the human rights violations that cause refugees to flee their homes. At the same time, Amnesty International opposes the forcible return of any individual to a country where he or she faces serious human rights violations on return. We therefore seek to ensure that states provide individuals with effective and durable protection from being sent against their will to a country where they risk such violations, or to any third country where they would not be afforded effective and durable protection against such return.

1. The Convention on the Rights of the Child

Article 25 of the UDHR declares that childhood is "entitled to special care and assistance". The particular vulnerability of children is also recognised in the Declaration of the Rights of the Child: "the child, by reason of his [sic] physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth". Building on these two documents, the Convention on the Rights of the Child ('CROC') [1] was negotiated in order to provide special protection for the human rights of the world's children. Adopted unanimously by the UN General Assembly on 20 November 1989 the CROC has been ratified by 191 states. The unanimous support for the CROC in the General Assembly and the near universality of ratification [2] reflects global recognition of the vulnerability of children to human rights violations.

Australia ratified the CROC in 1990, with reservations to Article 37(c). The CROC has not been incorporated into Australian law. Consequently the CROC is not enforceable in Australian law, although it is binding on Australia in international law. It is important to note the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh ('Teoh'), [3] in which the Court discussed Australia's ratification of the CROC and held that:

… ratification by Australia of an international convention ... is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as a 'primary consideration'…

The CROC is monitored by the Committee on the Rights of the Child, established by Article 43 of the CROC. The Committee on the Rights of the Child has expressed its concern "about the treatment of asylum seekers and refugees and their children, and their placement in detention centres" in Australia. [5]

"Child" is defined in Article 1 of the CROC as being "every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier". Having ratified the CROC Australia thus has obligations vis-a-vis all children within its jurisdiction, including child refugees and asylum seekers.

Article 22 deals specifically with child asylum seekers. Article 22(1) provides that:

States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties . (emphasis added)

However, in contravention of Article 22(1) the policy of mandatory detention of child asylum seekers certainly does not represent "appropriate measures to ensure" that child asylum seekers enjoy the human rights set out elsewhere in CROC and in other human rights convention. On the contrary, the policy has the effect of denying many important human rights to detained children. Mandatory, arbitrary, non-reviewable and open-ended detention of child asylum seekers is clearly inconsistent with the provisions of CROC.

A fundamental obligation imposed by the CROC on States Parties is to ensure that in all actions concerning children the best interests of the child shall be a primary consideration. [6] Amnesty International believes that the mandatory detention of child asylum seekers is not in their best interest. Furthermore the policy of mandatory detention is clearly contrary to Article 37 of the CROC, which relevantly requires Australia to ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment ...

(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';

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access 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.

Amnesty International is concerned that child asylum seekers in detention are not being treated with "humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age". Articles 37(a) and 37(c) are parallel to Articles 7 and 10, respectively, of the International Covenant on Civil and Political Rights ('ICCPR') [7]. The interpretation of Articles 7 and 10 of the ICCPR is therefore relevant when considering the parallel articles of the CROC. The UN Human Rights Committee considered what could amount to a breach of Articles 7 and 10 in its General Comments 20 and 21. In a summary of these 'comments' by Savitri Taylor she states that examples include:

infliction of corporal punishment, unnecessary use of force, prolonged solitary confinement, accommodation which is overcrowded, unsanitary, poorly ventilated or otherwise injurious to health, failure to provide adequate medical, educational and other such facilities, and withholding of outside contact. [8]

Amnesty International considers the mandatory detention of child asylum seekers can quickly become arbitrary due to the fact it is automatic, open ended and lacks judicial review. The Working Group on Arbitrary Detention of the UN Commission on Human Rights has a mandate of investigating alleged cases of arbitrary deprivation of liberty. [9] The Working Group has developed a set of guarantees, the absence of some (or all) of which indicates that detention is arbitrary. These guarantees are as follows:

Guarantee 1: To be informed, at least orally, when held for questioning at the border, or in the territory concerned if he [sic] has entered illegally, in a language which he [sic] understands, of the nature of and grounds for the measure refusing admission at the border, or permission for temporary residence in the territory, that is being contemplated with respect to him [sic].

Guarantee 2: Decision involving administrative custody taken by a duly authorized official with a sufficient level of responsibility in accordance with the criteria laid down by law and subject to guarantees 3 and 4.

Guarantee 3: Determination of the lawfulness of the administrative custody pursuant to legislation providing to this end for:

(a) The person concerned to be brought automatically and promptly before a judge or a body affording equivalent guarantees of competence, independence and impartiality;

(b) Alternatively, the possibility of appealing to a judge or to such a body;

Guarantee 4: To be entitled to have the decision reviewed by a higher court or an equivalent competent, independent and impartial body.

Guarantee 5: Written and reasoned notification of the measure of custody in a language understood by the applicant.

Guarantee 6: Possibility of communicating by an effective medium such as the telephone, fax or electronic mail, from the place of custody, in particular with a lawyer, a consular representative and relatives.

Guarantee 7: To be assisted by counsel of his [sic] own choosing ...

Guarantee 8: Custody effected in public premises intended for this purpose ......

Guarantee 10: Not to be held in custody for an excessive or unlimited period, with a maximum period being set, as appropriate, by the regulations.

Guarantee 13: Possibility for the alien to benefit from alternatives to administrative custody.

Guarantee 14: Possibility for the Office of the United Nations High Commissioner for Refugees, the International Committee of the Red Cross and specialized non-governmental organizations to have access to places of custody. [10]

As it is mandatory, detention of child refugees and asylum seekers is clearly not being used as a measure of last resort. Amnesty International is also concerned by the fact that child asylum seekers are being detained for extended periods of time. The difficulty of access to lawyers and the non-reviewable nature of the detention of child asylum seekers constitute further breaches of Article 37.

Many asylum seekers and refugees detained in Australian detention centres have suffered torture or other abusive treatment prior to reaching our shores. Pursuant to Article 39 of the CROC Australia is obliged to:

take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

Amnesty International is concerned that Australia's detention centres do not constitute "an environment which fosters the health, self-respect and dignity of the child". The detention of children who have suffered any form of the above mistreatment is clearly a breach of the spirit if not the letter of the CROC.

The special vulnerability of children who are deprived of their family environment is recognised in Article 20 of the CROC, which states that such children are "entitled to special protection assistance provided by the State". This article extends to unaccompanied child asylum seekers, who Amnesty International considers to be particularly at risk in immigration detention. UNICEF states that:

the loss of family attachments and identity together with the instabilities and disruptions of a new placement can impede [children's] physical, intellectual and emotional development; children in such circumstances are also vulnerable to abuse and exploitation. [11]

Article 20 implies that placement in "suitable institutions for the care of children" is the last resort. It is more preferable for a child to be placed with an alternative family. [12] A decision to place a child in an institution should only occur "if necessary". [13] If a child is placed in an institution, then the State must "take measures to ensure that they are provided with well-trained staff, that the children's needs are met and their quality of life is good and they are protected from abuse." [14]

Australia is also obliged to ensure that the "institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision." [15] Importantly, the Australian Government can not abrogate its responsibilities under human rights treaties by outsourcing immigration detention centres. [16]

Children are entitled to enjoy all the rights contained in the CROC without discrimination of any kind. [17] Accordingly, children should not be discriminated against on the basis of their immigration status. In contrast to child asylum seekers who arrive without a valid visa, child asylum seekers who arrive in Australia with valid visas and who subsequently apply for asylum are not detained. Amnesty International is very concerned about this breach of Article 2 of the CROC. Of great concern to Amnesty International is the fact that child asylum seekers who arrive without a valid visa can, at best, obtain a three year temporary protection visa, whereas "authorised" child asylum seekers who are accepted as refugees are eligible for permanent residency. Amnesty International considers this to be a clear breach of Article 2.

Amnesty International is also concerned that child asylum seekers are being denied various civil rights provided for in the CROC. Under Article 12, children have the right to participate meaningfully in all matters affecting them. Children are also entitled to freedom of expression, [18] thought and conscience, [19] and association [20]. Children are also entitled to privacy.

Social rights which child asylum seekers may be denied include the right to a standard of living adequate for physical, mental, spiritual, moral and social development,[22] and the special right to rest and play. [23]

In summary Amnesty International is concerned that Australia's policy of mandatory, non-reviewable, open-ended detention of child refugees and asylum seekers does not fulfil the requirement of Article 22 to provide appropriate measures to ensure that such children receive appropriate protection of their other human rights, which are contained in the CROC and in other treaties. The mandatory detention of child asylum seekers is not in their best interest. The policy breaches Article 37, because of its arbitrary, non-reviewable and open-ended nature and because it is not being utilised as a measure of last resort. The Government is failing to treat children with humanity and respect for their inherent dignity. Immigration detention does not constitute a means of promoting the recovery of child asylum seekers who have suffered abuse. Of great concern to Amnesty International is the discriminatory treatment of unauthorised child refugees and asylum seekers, which clearly breaches Article 2. Amnesty International is also concerned that detained child asylum seekers are being denied various other civil and social rights contained in the CROC.

2. Health Concerns

2.1. Introduction

Amnesty International is concerned that the provision and standards accorded by Australia to ensure, protect and promote the health and well-being of children in immigration detention do not meet its international obligations.

Amnesty International believes that the mandatory detention of children in Australia raises specific issues in regard to both the physical and mental health and development of those children. Many children in detention will have experienced differing levels of trauma following events in their country of nationality prior to arrival in Australia. These experiences may have a significant impact on the child's mental health and development. Amnesty International is concerned that the provisions, standards and practices adopted by Australia do not meet its international obligations and are not adequate to respond to the health needs of children being held in immigration detention centres around Australia.

There are two international instruments that impose obligations on Australia in relation to the protection and promotion of the health of children in its territory: the CROC and the International Covenant on Economic, Social and Cultural Rights ("ICESCR").

The CROC is the primary instrument outlining Australia's obligations in this regard. As stated above, in every action or decision made concerning children, the best interests of the child are to be a primary consideration (Article 3). This is one of the general, fundamental principles of the CROC. The relevant Articles of the CROC under which Australia has obligations with regard to the protection and promotion of the health of children in immigration detention are as follows:

Article 6 of the CROC recognises that every child has the inherent right to life and that State Parties are to "ensure to the maximum extent possible the survival and development of the child."

Article 24 of the CROC obliges Australia to recognize "the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services." Article 24(2)(f) imposes an obligation to pursue full implementation of this right and to take appropriate measures to develop preventative health care.

Pertaining to children arriving unaccompanied in Australia, Article 22 of the CROC recognises the vulnerability of this group and imposes obligations to ensure that appropriate measures are taken to ensure the child receives appropriate protection and humanitarian assistance.

Article 39 of the CROC provides that signatory States are to take all appropriate measures to promote the physical and psychological recovery of a child victim of any form of "neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts." Importantly, this recovery is to take place 'in an environment which fosters the health.....of the child."

Article 12 of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. To fully realise this right, States are to take steps to ensure the health development of the child.

Other Articles of the CROC that need to be taken into account when examining whether or not Australia is meeting its obligations to children under this treaty include Article 19 and Article 20.

2.1.1 Article 19 of CROC concerns a child's right to protection from all forms of violence

Article 19 states that all children have a right to protection from all forms of violence; including physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, whilst in the care of parent(s), legal guardian(s), or any other person who has the care of the child. State parties must take all appropriate measures to ensure such protection.

There have been allegations of child abuse in Australia's detention centres. There have also been reports of physical violence that has erupted in context of protest, including acts of self- harm. Children have either been involved in many of these acts or they have witnessed these acts. As such, Amnesty International is concerned that the rights of the child, to be protected from violence as stipulated in CROC, are not being upheld by the state party.

2.1.2 Article 20

Article 20 implies that placement in suitable institutions for the care of children is the last resort. It is more preferable for a child to be placed with an alternative family. If it is necessary to put a child in an institution, then the State must "...take measures to ensure that they are provided with well-trained staff, that the children's needs are met and their quality of life is good and they are protected from abuse." [24]

Article 3(3) also provides that institutions, services and facilities responsible for the care and protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, the number and suitability of their staff, as well as competent supervision.

Amnesty International is concerned that detention centres fail to provide minors with the protection established by competent authorities in the areas of safety or health. Further, Amnesty International has received allegations which questions the suitability of child welfare staff in at least one of Australia's detention camps. With regards to competent supervision, Amnesty International has concerns that unaccompanied minors are neither being properly housed nor properly supervised in the detention centres, this could have serious consequences.

2.2 Refugee Children as Particularly Vulnerable Individuals

The CROC has also identified the particular vulnerability of refugee children in Article 20.

Article 20 stipulates that: "The loss of family attachments together with the instabilities and disruptions of a new placement can impede their physical, intellectual and emotional development; children in such circumstances are also vulnerable to abuse and exploitation." [25]

Notwithstanding the legal implications of the detention of children, there have been many independent studies from human rights organisations, welfare groups, medical bodies and health professionals concerning the effects of detention on children. Considerable evidence has shown that detention centre environments are inadequate to meet the special needs of any child, let alone children who have suffered human rights abuses and the trauma of fleeing their home. There are also fears that children housed in detention centres may be at heightened risk of abuse.

Refugee children are particularly vulnerable as they can suffer acutely from the following:

• The persecution of family members, the parental anxiety and distress, or the generalised violence that is associated with refugee flight;
• The very act of leaving home, usually suddenly and incomprehensibly;
• Leaving behind family, friends and all that is familiar to them;
• Separation from one or both parents during flight;
• The assumption of adult responsibilities if one parent is missing;
• A forced interruption of education;
• A lack of time or place for play;
• Pressure from the military or armed groups who want to recruit them.

2.3 The impact of detention on children

Terry Smith of the Refugee Council UK found in the report, Children and Asylum (2000), concerning the effects of detention on children in the UK, that:

Isolation, together with the trauma of having fled the threat of persecution, can cause extreme psychological stress and this is likely to be exacerbated for children who probably do not understand the reasons for detention. Detained children will rarely if ever have access to appropriate education and there are real dangers that they will not receive adequate health care or be free to practice their religion or celebrate their culture. Unless detention centres are subject to the rigorous employment checks applicable to all employees who have substantial access to children, situations could arise where children are exposed to the risk of abuse. [27]

Dr Aamer Sultan, identified and studied the effects of what he has called immigration detention stress syndrome (IDSS), and is completing research which he will submit to the Medical Journal of Australia. The research details the stages of an illness, which leads to an almost catatonic depressive state, suffered by some detainees (including himself, claims Dr Sultan). Some of these individuals, claim solicitor Jaqueline Everett, are children. The account and the effects of Dr Sultan's syndrome on detainees was published in the British Medical magazine, the Lancet in an article co-authored by Australian clinical psychologist Zachary Steele. [28] Further, five separate scientific studies all summarised by Zachary Steele and another Sydney psychologist Derrick Silove, have shown extremely high levels of serious mental breakdowns. Robert Manne, associate professor of politics at La Trobe University, states that these levels are "[f]ar higher, for example than among asylum seekers living in the community". [29]

In response to the numerous reports and claims outlining the negative impact of detention on children, such as those listed above, there have been many requests for the DIMIA to employ alternatives for minors. Despite growing pressure however, the Minister of Immigration has maintained that separation of a child from his or her family would not be in the interests of the child and thus the family unit must be detained together in IDC's as stipulated by the Migration Act. However, following the release of the Flood and the Ombudsman's reports that scrutinised the IDC's, [30] DIMIA initiated a trial involving the housing of some women and children in the Woomera community. These asylum seekers, however, are under 24-hour supervision by ACM staff, the correctional company running the detention centres, with no unaccompanied movements beyond the house and yard.

Amnesty International is concerned that the presence of ACM guards (this is excessive in itself) in this trial will most likely hinder or eliminate many potentially positive outcomes. The women and children involved with the trial, for instance, could be constantly reminded of any disturbing experiences from the detention centres that they may have witnessed by the presence of the guards. Further, the lack of unaccompanied movements and constant surveillance by the guards is comparable with the supervision and confinement of a detention centre. The trial as of November 2001 had only incorporated 8 children and 4 adults.

Hundreds of children have been detained in Australia in the last 12 months and children continue to be detained if they arrive in Australia without proper documentation.

As of 2 May there were 153 children in Australian detention centres, including 12 in the Woomera Housing Project and 8 on Christmas Island. Added to this number were the 15 in "alternative detention" in Adelaide. Amnesty International has also been informed that there were approximately 243 children on Nauru and 125 children on Manus Island.

2.4. Child Development

Amnesty International has serious concerns about the impact of immigration detention on the development of children. It is important for those involved in a decision to detain a child to be able to answer the questions: What is required to maintain a 'normal' and healthy child development? What if anything within the environment of a detention centre may hinder or eliminate this development process? These questions must be addressed when determining whether or not to detain a child if a serious determination as to 'the best interests of the child' is to be made.

Derek Somerfield, on refugee children, states:

Should the bad memories of their traumas be worked through? If not they could be vulnerable both in the short term and the long term to suffering a mental illness. [31]

The impact of trauma on children and young people must be recognised, both for its effects on their development and for the possible long term effects, for example, anxiety, depression, suicidality, substance use, self-harming and self-destructive behaviour, and problems with anger management in later life.

It has been psychologically accepted that refugee children are an extremely vulnerable group. F. L. Ahearn and J. L. Atley, in their report "Refugee Children: Theory, Research and Services", discussed the needs of refugee children, specifically unaccompanied minors, on three levels, societal, community and individual needs. Relative to the individual needs, a child suffers trauma through loss or deprivation which could be physical or emotional. In terms of the societal and community needs of the child, it is stated that everyone must possess an identity, they must know where they fit into society. [32]

Amnesty International believes that in the environment of a detention centre there are inadequate provisions for the maintenance and practice of a child's language, religion or culture. If these needs are not met this could undoubtedly have a negative impact on their social integration skills and sense of identity, which may lead to emotional problems.

Winnicott D. stated the following regarding the key needs of a child:

Emotional well-being in childhood is based in a number of key needs being met. Children need to feel safe, to have a secure and stable sense of self, to love and to be able to relate to others, to play, and to be productive. Secure attachment relationships and a sense of meaning, which derive from community cultural and spiritual life, are a key part of children achieving this. [33]

Dr Louise Newman, Chair of the Faculty of Child and Adolescent Psychiatry of the Royal Australian and New Zealand College of Psychiatry, comments on child development:

Consistent and empathic care and stable attachment relationships, opportunities for learning and play and adequate nutrition, are all required in order to maintain a normal and healthy child development. In the context of a detention centre the fundamentals needed for health development are not available. The main problem is that they (the children) have traumatised parents who are emotionally unavailable to them, also they are exposed to traumatic events. What we are observing are signs of social and emotional delay and attachment disorders. [34]

Amnesty International is concerned that children in detention centres have inappropriate access to a stable group of peers with whom they know they will form and maintain both social and educational relationships.

2.5 Unaccompanied minors

Australia houses unaccompanied minors in detention centres, places that are subject to frequent riots, violence and psychological trauma. Without parents or relatives to protect them, these children can be prone to incidents of abuse, emotional trauma and psychological damage. The negative impact of such psychological damage is accentuated by the delays in processing and the effects flowing from the initial incommunicado detention. Amnesty International objects to the detention of unaccompanied minors as unlike accompanied children, where the government argues it is in the best interest of the child to keep them with their parents, there is no justification to keep these children in detention. The Minister for Immigration states that it is in the best interests of the accompanied child to remain in detention with their parents; yet without parents, it can not be in the interests of the child to be detained unaccompanied.

Amnesty International welcomes recent developments in relation to the release of unaccompanied minors. However, there is no adequate reason why minors who are accompanied by a detained person or guardian should be treated differently from unaccompanied minors. Release of unaccompanied minors represents a clear acknowledgement that detention is inherently undesirable. Release should be assessed on an individual basis, irrespective of the distinction as to whether the child is accompanied or unaccompanied. Where it is established that an accompanied minor should be released there must also be provisions for his or her family to be released.

In November 28, 2001, Dr Ozdowski stated "As of December 2001, there were 582 children in immigration detention centres and (that he was) particularly concerned about the welfare of 53 of them being held without their parents." He continued "I heard of an eight year old boy...an unaccompanied minor ...who was detained for six months". [35] Also, the executive director of the Refugee Council of Australia, Margaret Piper, stated "many of the unaccompanied minors were 16-or 17-year-old males form the Hazara religious minority group in Afghanistan, who had been persecuted by the Taliban." [36]

Unaccompanied minors who arrive in Australia are the responsibility of the Minister of Immigration. This is provided in the Immigration (Guardianship of Children) Act, 1946 (IGOC Act). The regulatory definition of guardian does not, in law apply to the IGOC Act. However for minors claiming refugee status on arrival, minors entering Australia for adoption and unaccompanied humanitarian minors, officers in immigration clearance are required to have regard to the provisions of the IGOC Act in accessing visa applications. Minors who are not in the care of, or joining a parent, or relative over 21 are said to be 'entering Australia under the IGOC Act'.

While the minor is held in an immigration detention however, officers are to ensure that the relevant State/Territory child welfare agency has undertaken to accept responsibility for the minor's guardianship.

As guardian of the child, the Minister (or relevant authority) shall have the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or becomes an Australian citizen. For the purposes of section 4AA of the Act there are principles to be observed when considering whether or not to give a direction under that section in relation to a person. Purposes included in this are the following: To protect the person from risk or injury or danger or impairment of health; protect the person from moral danger; or enable the person to have the benefit of adequate direction or guidance.

In theory then, according to the IGOC Act, unaccompanied children in Australia's IDC's and IRPC's are protected from risk of harm as a child and are to be provided with adequate direction and guidance. In reality however, this would not appear to be the case. There have been allegations made to Amnesty International that there is a lack of supervision and monitoring of unaccompanied minors in IDC' s and as such Amnesty International is concerned that they are not being granted the legal protections of a guardian. Further, where unaccompanied minors have witnessed disturbing sights, or experienced negative effects of detention as alleged in the case studies that follow, Amnesty International believes that this is a breach of the IGOC Act which requires the protection of a child from risk or injury, danger, impairment of health.

As unaccompanied minors in detention are the responsibility of the relevant state or territory child welfare agency, this transference of responsibility must be upheld appropriately. Unaccompanied minors must be provided with the benefit of 'obligations and liabilities of a natural guardian' if they are to be detained in IDC' s. Sev Ozdowski, the Human Rights Commissioner, has stated that having the Minister for Immigration responsible for detaining a child and being responsible for the child's welfare (the unaccompanied minor) is a conflict of interests. [37]

Amnesty International is also of the view that the Minister for Immigration has an acute conflict of interest as the Minister responsible for the detention of asylum seekers and with his statutory responsibilities for guardianship of unaccompanied minors requiring him to have regard to the best interests of the child.

It is worth noting, in comparison, the proposed Unaccompanied Alien Child Protection Act of 2001 which establishes within the US Department of Justice (DOJ) the Office of the Children's Services. It is to be responsible for coordinating and implementing law and policy for unaccompanied alien children. The proposals set forth by the Bill are, amongst others, the following:

• Establishes an Inter Agency Task Force on Unaccompanied Alien Children.
• Prohibits with an exception for violent children, detention in adult or delinquent children facilities
• Prohibits an unaccompanied alien child from being repatriated to a country unless an appropriate voluntary agency has conducted an assessment of the country conditions and the Office has conducted an assessment of the suitability of placement of the child
• Directs the Office to provide that each unaccompanied child have counsel and guardian ad litem.
• Amends the Act to exempt unaccompanied alien children from certain removal and asylum filing provisions.

Amnesty International would welcome, at a minimum, the creation of a similar Office of the Children's Service within the appropriate Department. It is important to note that the Committee on the Rights of the Child also advocates that the conditions in institutions in which children are placed should be supervised and monitored, including by an independent mechanism. [38] This would ensure accountability and supervision of unaccompanied minors in adherence to a national standard of guidelines to be maintained within the immigration detention centres. As such, if unaccompanied minors are to be detained in Australia, the creation of such a body would take responsibility for monitoring IDC's and where necessary implementing procedural amendments to prevent incidents such as abuse, increased psychological damage or in the worst case, the death of an unaccompanied minor. Further, in the event of these occurrences, there would be an appropriate inquiry by a body independent from the Department of Child Services (DOCS) or the DIMIA.

 

3. Education of Children in Australia's Immigration Detention Centres

Amnesty International is concerned that the standard of education accorded by Australia to children in immigration detention is in breach of its international obligations and minimum domestic standards of education.

This section outlines those international obligations and domestic standards and to demonstrates how the provision of education for children in detention is seriously inadequate, with regards to these obligations.

3.1 Australia's obligations to educate asylum seeker/refugee children under international law

Several international conventions impose obligations on Australia in relation to the education of children in its territory. These are examined below.

3.1.1 The 1951 Convention relating to the Status of Refugees and its 1967 Protocol ("the Refugee Convention") [39]

Australia's obligations to refugees and asylum seekers are contained in the Refugee Convention. As a signatory, or "Contracting State", as defined in the Refugee Convention and its Protocol, they are binding on Australia at international law.

Significantly, Article 22 of the Refugee Convention imposes upon Contracting States the obligation to provide elementary education of a standard equivalent to that enjoyed by nationals:

"Public Education

(1) The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

(2) The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships."

The Refugee Convention applies to both adults and children alike, as can be seen in the explicit reference to the necessity for elementary education in Article 22.

Therefore, Australia has an obligation to provide refugee children of elementary school age with an education of the same standard as offered to its nationals, and persons over the elementary school age with a standard of education and training as is afforded to aliens in the Contracting State's territories. This standard is contained in various Australian state's legislation, for example in the Education Act 1990 (NSW). Aspects of this legislation will be discussed below.

3.1.2 The Convention on the Rights of the Child ("CROC")

This Convention was adopted and opened for signature, ratification and accession by the General Assembly resolution 44/25 of 20 November 1989. It entered into force on 2 September 1990. This treaty is acknowledged by UNICEF [40] as being the most widely signed human rights treaty ever with 140 signatories and 191 parties. Australia signed the treaty on 22 August 1990 and ratified it on 14 December 1990.

As with the Refugee Convention, in signing this treaty, Australia undertakes to "respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind irrespective of the child's or his or her parent's or legal guardian's race… or other status" (Article 2(1)). Clearly then these principles apply to all children in Australia's territory whether they have been accorded refugee status or otherwise, and irrespective of whether they are in immigration detention or otherwise.

A child is defined in the treaty as every human being under the age of 18 (Article 1).

Articles 28 and 29 of CROC refer to a child's right to education and state:

"Article 28

1. States Parties recognize the right of the child to education and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(a) make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child and take appropriate measures such as the introduction of free education and offering financial assistance in the case of need;

(c) Make higher education accessible to all on the basis of capacity by every appropriate means;

(d) Make educational and vocational information and guidance available and accessible to all children;

(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.

2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.

…

Article 29

1. States Parties agree that the education of the child shall be directed to:

(a) The development of the child's personality, talents and mental and physical abilities to their fullest potential;

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

(c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;

(e) The development of respect for the natural environment.

2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State."

Therefore, Australia has agreed to and undertaken to ensure that primary education is compulsory, is directed towards the child's development of his or her personality, talents and mental and physical abilities to their fullest potential and that the interests of the child are paramount in accordance with Article 3 (1) [41]. This obligation extends to children in immigration detention.

3.1.3 Other international law obligations

Several other international conventions and statements (which do not carry the force of law but nevertheless represent a consensus of opinion in the international community) entrench the rights of children to an education regardless of their, amongst other things, immigration status and whether or not they are in immigration detention.

The International Covenant on Economic, Social and Cultural Rights 1966 ("ICESCR"), which entered into force on 3 January 1976 and to which Australia is a party, sets out the principles necessary to ensure the protection of people as full persons "based on a perspective in which people can enjoy rights, freedoms and social justice simultaneously" [42]

Included in this Convention is recognition by Contracting States of the right of everyone to education (Article 13), and agreement that "education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms" (Article 13 (1)). In order to achieve this, the Contracting States recognized that primary education shall be compulsory and available to all (Article 13(2)(a)), secondary education, including technical and vocational secondary education, "shall be made generally available and accessible to all by every appropriate means" (Article 13(2)(b)) and higher education "shall be made equally accessible to all, on the basis of capacity, by every appropriate means" (Article 13 (2)(c)).

Furthermore, in the United Nations High Commissioner for Refugees ("UNHCR") Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999, it is stated that "[a]sylum-seekers are entitled to benefit from the protection afforded by various International… Human Rights instruments" [43]. Additionally, it states that there should be recognition of the applicable norms set forth by such documents as the 1988 UN Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment, 1955 Standard Minimum Rules for the Treatment of Prisoners and the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty [44]. These Guidelines refer specifically to "the opportunity to continue further education or vocational training". [45]

3.1.4 Conclusion

As demonstrated, there is a large body of international law that imposes on Australia a very clear obligation to provide education to all children in a non-discriminatory manner and, relevantly, irrespective of a child's immigration status.

Furthermore, the standard of that education must be addressed to the proper development of every child's personality, with respect for fundamental rights and freedoms and at a level commensurate with standards of education enshrined in domestic law.

3.2 Standards of Education in Domestic Law

Each Australian State and Territory has legislation in place that sets out standards and minimum levels of education. [46]

For the purpose of this section, an examination of the legislation in New South Wales is instructive. This legislation reflects many of the principles relating to the rights of children to education contained in the international instruments set out above, as do its counterparts in the other Australian states and territories.

3.2.1 Compulsory education of all children of compulsory school-age, principles applicable in the provision of education and minimum standards of curricula

The Education Act 1990 (NSW) ("the Act") provides that children of "compulsory school-age" are children of or above 6 years and below 15 years [47]. The Act goes on to enumerate principles, objects for administration of the Act or of education, key learning areas for primary and secondary education (until year 10), and for the school and higher school certificates, and minimum curricula for primary and secondary education (until year 10), and for the school and higher school certificates.

These principles are set out in Section 4 of the Act which provides relevantly:

"In enacting this Act, Parliament has had regard to the following principles:

(a) every child has the right to receive an education[emphasis added];

(c) it is the duty of the State to ensure that every child receives an education of the highest quality,… "

Section 6 of the Act sets out certain objects to which all administrators of the Act or of education must have regard. These include, relevantly:

"(a) assisting each child to achieve his or her educational potential,

(b) promotion of a high standard of education in government schools which is provided free of charge for instruction and without discrimination on the grounds of sex, race or religion,

…

(d) provision of an education for children that gives them access to opportunities for further study, work or training,

(e) mitigating educational disadvantages arising from the child's gender or from geographic, economic, social, cultural, lingual or other causes [emphasis added].

….

(h) provision of an education for children from non-English speaking backgrounds that has regard to their special needs,

….

(n) provision of an education for children that promotes family and community values."

In terms of "key learning areas" [48] and minimum curriculum for primary education [49], these include English, mathematics, science and technology, human society and its environment (including courses of study relating to Australia [50]), creative and practical arts (including the study of art and music [51]) and personal development, health and physical education. Each of the key learning areas are to be provided to each child every year [52] and the requirements set out in these key learning areas "constitute the minimum curriculum for schools providing primary education". [53]

"Key learning areas" for secondary education (years 7 to 10) are enumerated in Section 9. These include English, mathematics, science, human society and its environment (all of which are courses of study that must be provided to each child during each year [54]), languages other than English, technological and applied studies, creative arts and personal development, health and physical education. Courses of study in the key learning areas are "to be appropriate to the children concerned having regard to their level of achievement and needs". [55]

All teachers must be professional, appropriately trained and of the highest standard.

Similar requirements for courses of study in key learning areas are to form the basis of the curricula required for the award of the School Certificate and Higher School Certificate.

3.2.2 Conclusion

Each state and territory in Australia has enacted laws reflecting the fundamental principles relating to the education of children contained in international law and reproduced above.

The legislation includes express recognition of the non-discriminatory right of every child between the ages of 6 and 15 to receive (compulsorily) an education. It ensures the promotion of community values and respect for human rights in that education. It prescribes recognition of special needs of certain children (including children from a non-English speaking backgrounds). It seeks to mitigate educational disadvantages suffered by children due to "other causes" (for example fleeing persecution) [57] and provides guidelines for minimum standards for courses of study. There is explicit reference to the development of a child's personality and education to its fullest potential.

There is nothing in this legislation that allows for the education of a child asylum-seeker or refugee in immigration detention to fall short of the standards and principles contained in the law of each state. Nor does the law prohibit the proper education of a child who is not an Australian national.

Under the Refugee Convention, CROC and ICESCR, Australia is obliged to provide all children within its territory with an education of the same standard contained in domestic legislation, irrespective of immigration status.

3.3 Standards of Education in Australia's Immigration Detention Centres

Amnesty International is aware that the standards set out in domestic legislation are far from being implemented in Australia's immigration detention centres.

Amnesty International has been informed by [words deleted] former teachers ("the Teachers") at the Port Hedland Immigration Detention Centre that: [58]

• The Teachers were employed on contract at Port Hedland immigration detention centre, which contracts usually had a term of 6 weeks, which could be extended by invitation of the company running the detention centre, ACM;
• The Teachers were not given any training specific to the needs of children in detention and specific to children of their background and experience;
• No assessment files relating to the standard of education reached by each child or whether any individual child had special needs were kept, as is the usual practice in schools;
• The number of students in classes varied from time to time - from 1 to 26. For example, the Teachers noted that there were 26 students in a room with a capacity of 15;
• There is no set curriculum provided in respect of the education of detainees, other than curricula devised by the Teachers themselves;
• The Teachers believed that the combination of the short term of the contracts of employment and high staff turnover made consistency of education almost impossible to ensure, compounded by the lack of education assessment files on each child detainee;
• Resources for teachers consisted of textbooks the Teachers brought themselves to class. The Teachers observed only old children's books and a few games available for children to use. Chairs and desks for children to use were completely inadequate - desks were extremely old and without drawers for students' exercise books, chairs were stacked upon each other to reach the proper height for the child to reach the desk, paper and craft items were scarce and access to photocopying machines by the Teachers was made very difficult by ACM staff. The classrooms themselves were bereft of natural light and windows were grimy and grilled. Outside the play area was almost completely unshaded from the extremely hot sun. In the case of classes for children held in separation detention, there was no blackboard or whiteboard provided;
• The Teachers stated that only 2 computers were available for educational use, and these computers were available only after 2.30pm (thereby excluding children in earlier classes from their use);
• The Teachers stated that classes were supposedly divided into 4 discrete levels; pre-primary (between 3 and 5 years old approximately), primary (between 6 and 10 years old approximately), upper primary and high school. One of the Teachers taught a class of students in separation detention which consisted of 24 students consisting of 10 women and 14 children ranging in age from 2 years to 15 years old. Only 12 of these children were of teachable age. Furthermore, often women and children in separation received only 1.5 hours teaching a day. The other Teacher taught upper primary which consisted of students whose ages ranged from 8 to 15 years old;
• For one of the Teachers, her daily teaching schedule consisted of: 9am to 10.30am - women and children in separation detention; 11am to 12pm - men in separation detention; 1pm to 2.30pm - unaccompanied minors (this class was cancelled after her departure on 25 February 2002); 3pm to 4.30pm - men (aged from approximately 22 years old to 38 years old). The other Teacher did not teach any classes in separation detention. Her day consisted of; 9am to 10.30am - upper primary (ages 8-15 years old) which class she taught each day; 10.30am to 11am - recess; 11am to 12pm - upper primary class; 12 to 1pm lunch; 1pm to 2.30pm upper primary (often students were late back from lunch as they had to wait for a long time until they received their lunch); 3pm to 5pm - male adult students (18 years and over);
• The Teachers state that the curriculum consisted of teaching English as a priority. Individual teachers set the curricula from time to time at the commencement of their employment. A very small proportion of classes involved mathematics, geography, Australian history art and music. The Teachers noted that whilst learning English was a priority, it should have been supplemented on a daily basis with mathematics, society and environment, lessons in the native language of the children, art and craft, music and most importantly, physical activity. One of the Teachers noted some students had poorly developed co-ordination due to the uncomfortable nature of play areas in extreme heat and lack of physical education classes;
• The Teachers advised that ACM staff actively discouraged contact after class with individual students by the Teachers. The Teachers explained that contact with students in educational institutions is a norm and is strongly encouraged in order to meet the specific educational needs of individual students;
• The Teachers advised that the current theory of teaching is "student-centred learning" which involves the setting of assignments and projects to be completed by students. In the detention centre teaching environment, this mode of teaching was impossible due to the lack of resources, language barriers, lack of enforcement, and lack of motivation and concentration of children (due to the conditions of detention). As such, the mode of teaching which had to be adopted by the Teachers was the outdated "teacher-centred learning" which involves instruction by the teacher to be followed by the student thereby denying any autonomy of thought on the part of the student; and
• The Teachers also observed that ACM staff generally addressed children not by name but by number. The Teachers each overheard certain ACM staff threaten children with words to the effect that the child would not get a visa, or would never be released from the detention centre if that child did not behave.

Amnesty International has obtained a copy of a speech entitled "Standards and Accountability in the Administration of Prisons and Immigration Detention Centres: A Description of the Role of the Western Australian Inspector of Custodial Services and a Proposal for Bringing Equity and Decency to the Operation of Australia's Immigration Detention Centres" made by Professor Richard Harding, inspector of custodial services of Western Australia [59], who inspected Curtin Detention Centre for 9 hours on 25 June 2001. Professor Harding states that immigration detention centres in Australia "are an absolute disgrace in terms of the conditions and standards that are applied". [60]

In relation to his observation of the education being provided to detainee children he states:

"ACS/DIMA [sic] had been very anxious that one should arrive before 9am so as to be able to see the Centre's education classes in progress. They were evidently very proud of this initiative. A glossy brochure indicated that children were receiving 5 hours' daily education in four different groups. In reality, they were receiving one hour's education. Teaching took place between 9.00am and 10.00am; thereafter, the children stayed in the teaching area until 11.00am, during which time some contact with the teachers might occur; then there was a lunch break until 1.00pm; and after that so called 'homework', if the children felt like doing it, occurred in the classroom area until about 2.00pm. The so called 'education program' was largely a charade - though doubtless five hours' full education was being paid for and signed off by the Canberra-based 'monitors' [referring to the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA)]." [61]

These accounts indicate that the level of education being provided in these two immigration detention centres are well below the standards mandated by both domestic and international law.

3.4 Conclusion

Australia has undertaken obligations at international law to provide education of a certain standard to refugees under the Refugee Convention and to ensure the proper education of children under CROC and ICESCR. Furthermore, the interests of children in respect of their physical, mental and educational well-being and personal development are to be a paramount concern under these Conventions.

Standards of education to be afforded to children, irrespective of immigration status and without discrimination generally are set by domestic standards enshrined in each Australian state's law. Education is compulsory for children between the ages of 6 and 15 years old and minimum key learning areas should be covered in courses of study, which are set out above, according to the level of education of individual students.

It is apparent from the accounts reproduced above that these minimum standards for curricula of primary and secondary education are not being met.

As such, Amnesty International is concerned that children in immigration detention centres are being denied their rights to a proper education mandated by international and domestic law.

Education is a fundamental part of a child's healthy development into adulthood. Children in immigration detention centres are often victims of exceptionally traumatising experiences prior to their arrival in Australia. These terrible experiences are compounded by Australia's policy of mandatory detention, the length of time of detention and the appalling conditions within the immigration detention centres themselves.

 

4. Mandatory Detention

Under the Migration Act 1958 (Cth) ('Migration Act') all unlawful non-citizens who are in Australia's migration zone must be detained.[62] Unlawful non-citizens are non-citizens who do not hold a valid visa. [63]

The Australian Government justifies the policy of mandatory detention on several grounds. The practice is asserted to be a reflection of Australia's status as a sovereign state, in that Australia has the right to determine which non-citizens may enter or remain in Australia. Amnesty International does not question Australia's right to control immigration. However, Amnesty International does not consider a policy of mandatory detention to be a necessary and appropriate means of achieving this objective.

Amnesty International does not reject the detention of asylum seekers per se; there may be exceptional circumstances in which detention is justified, although it is difficult to envisage such circumstances in relation to children. However, Australia's mandatory detention regime cannot be seen as consistent with these exceptional circumstances. Amnesty International believes that the current policy of mandatory, non-reviewable, indefinite detention is clearly in breach of international law.

The Office of the United Nations High Commissioner for Refugees ('UNHCR') describes the detention of asylum seekers as 'inherently undesirable', emphasising that this is even more the case in relation to children and unaccompanied minors. [65] Under the UNHCR's Guideline 2, the general principle is that asylum seekers should not be detained. Article 14 of the UDHR grants to all human beings the fundamental human right to seek and to enjoy asylum. The UNHCR appropriately advises that the position of asylum seekers is fundamentally different from that of other immigrants;[66] it is not always possible for asylum seekers to comply with Australia's immigration requirements.

The UNHCR states further that '[i]n accordance with the general principle stated at Guideline 2 and the UNHCR Guidelines on Refugee Children, minors who are asylum-seekers should not be detained.' [67] (emphasis added).

Detention of asylum seekers is only condoned by the UNHCR if there are exceptional grounds for detention. [68] The UNHCR recommends a 'presumption against detention' and emphasises that alternatives to detention should generally be applied first. [69] The UNHCR states that:

[i]n assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportionate to the objectives to be achieved. If judged necessary it should only be imposed in a non discriminatory manner for a minimal period. [70]

4.1 Treaty Provisions Relevant to the Detention of Child Asylum Seekers

Amnesty International is concerned that Australia's policy of mandatory, non-reviewable and indefinite detention of child asylum seekers violates international law in a number of respects. In particular the policy is in breach of Article 31 of the Convention Relating to the Status of Refugees, [71] which prohibits States Parties from imposing penalties on refugees on account of their illegal entry or presence, as long as they 'present themselves without delay to the authorities and show good cause for their illegal entry or presence'. Furthermore, Article 31 also prohibits States Parties from applying 'to the movements of such refugees restrictions other than those which are necessary'. As the refugee determination process is declarative, rather than constitutive, Article 31 applies to asylum seekers as well as to refugees.

As set out above, Amnesty International believes that Australia's policy of mandatory, non-reviewable and indefinite detention of child asylum seekers is also in breach of several provisions contained in the CROC [72], including Article 37 of the CROC.

Child asylum seekers are entitled, like all other human beings, to the rights accorded to them by various international and regional human rights treaties. Freedom from arbitrary detention is one of these rights. It is contained in Article 9 of the ICCPR, [73] which provides that:

[e]veryone 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.

4.2 Arbitrary Detention

The UNHCR considers detention to be arbitrary where that detention is not subject to either administrative or judicial review. [74] The UNHCR is of the view that 'there should be prompt, mandatory and periodic review of all detention orders before an independent and impartial body'. Australia can be seen to be in breach of both Article 37(d) of the CROC and Article 9(4) of the ICCPR. Article 9(4) of the ICCPR provides that:

[a]nyone who is deprived of his [sic] liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his [sic] detention and order his [sic] release if the detention is not lawful.

In A v Australia the UN Human Rights Committee upheld A's submission that there was no effective review of the grounds for detention of asylum seekers in Australian courts in breach of Article 9(4) of the ICCPR. Importantly, the Committee held that the test of 'lawfulness' under Article 9(4) means lawfulness under the ICCPR, not under domestic law. It found that Article 9(4) requires judicial review of the lawfulness of detention that is not merely formal, with the power to order release if the detention is incompatible with the requirements of Article 9(1), or in other provisions of the ICCPR.

The Human Rights Committee criticised Australia in its Concluding Observations on Australia's Third and Fourth reports to the Committee:

The Committee is concerned over the approach of the State party to the Committee's Views in Communication No 560/1993 (A. v. Australia). Rejecting the Committee's interpretation of the Covenant when it does not correspond with the interpretation presented by the State party in its submissions to the Committee undermines the State party's recognition of the Committee's competence under the Optional Protocol to consider communications. [75]

The fact that the provisions of the Migration Act have been found to breach Article 9 of the ICCPR is of concern to Amnesty International for various reasons. Firstly, detention should only occur if it is in accordance with both domestic and international law. A decision to detain an asylum seeker should be on the basis that it is necessary, appropriate and not arbitrary. The particular circumstances of the asylum seeker should be considered. Secondly, whether or not an asylum seeker's continuing detention is reasonable should be a matter for the courts to decide. Courts should be able to order the release of a detained asylum seeker. Australia's human rights obligations towards detained asylum seekers, particularly children, are not given adequate effect by the few exceptions allowing for temporary release from immigration detention. These exceptions are set out in section 6 below.

Also of great concern to Amnesty International is the indefinite nature of the detention of child asylum seekers. Article 37 of the CROC states that detention is to be 'used only as a matter of last resort and for the shortest appropriate period of time'. Not only is detention clearly not being used as a matter of last resort, but many child asylum seekers are being detained for substantial periods of time. The length of detention is one factor which may render it arbitrary in a particular case. The UNHCR states that detention may be arbitrary if it is 'disproportionate, or indefinite'. [76]

The Australian Government seeks to blame asylum seekers for the length of their detention. In the case of A v Australia, for example, the Australian Government partially blamed the 'many layers of review utilised by Mr. A' for his prolonged detention. Amnesty International believes that delays in processing an application for protection, even when caused by appeals, are inadequate reason to continue the detention of an asylum seeker.

4.3 Conclusion

Amnesty International strongly condemns Australia's policy of mandatory detention of asylum seekers, finding its application to children to be of particular concern. Australia's policy of mandatory, non-reviewable, indefinite detention is simply indefensible with regard to a number of Australia's international treaty obligations.

Amnesty International remains gravely concerned that mandatory detention in Australia has been recognised as amounting to arbitrary detention. It is arbitrary because it is applied on the basis of how an asylum seeker entered the country, without the asylum seeker's particular circumstances being considered. Mandatory detention is also arbitrary because of the lack of judicial review of detention. Furthermore, detention is arbitrary because of its indefinite length and as such can quickly become disproportionate to state concerns regarding mode of arrival.

NOTE: CASE STUDIES ORIGINALLY FORMING SECTION 5 HAVE BEEN PLACED IN A SEPARATE CONFIDENTIAL SUBMISSION

5. Provision for the Release of Children Held In Immigration Detention

There are provisions for the release of children held in immigration detention, which are set out below. However, such provisions are woefully inadequate to address the multitude of humanitarian concerns in relation to the detention of children, particularly given that their adoption lies wholly within the discretion of the Minister. In any event, on a practical level, the provisions have been rarely used. A HREOC report into the immigration detention system noted that in a four year period since the inception of the "bridging visa" program only two children had been released from immigration detention of a possible 581 child detainees. [77]

The reluctance or inability to utilise the current provisions for release of children may have more to do with the effect the construction of the legislation has on the provision of practical and emotional support for children once released. For example, a child released on a bridging visa ordinarily has no authority to work and requires the concerted support of an Australian citizen. Most substantially, there is no provision for the release of a child's parents at the same time. This means that often a child welfare authority will weigh up the conflicting interest of a separating a child from its parents and determine that it is in the best interests of the child that the family unit remain intact, despite the proven adverse effects of immigration detention on all concerned.

Children and all other persons who arrive in Australia and are determined to be "unlawful non-citizens" must be automatically sent to an immigration detention centre under the current migration system. However, the legislation allows for the provisional release of a person under the age of 18 years on a Bridging Visa until such time as the child's immigration detention has been determined.

Section 73 of the Migration Act 1958 provides for the granting of bridging visas to persons of a specified class as set out in regulation 2.20 of the Migration Regulations 1994. The criteria in reg.2.20(4) and (7) set out the requirements for a "child" to be deemed an "eligible non-citizen" and therefore granted temporary release from immigration detention. These criteria are:

Reg 2.20(7)

A non- citizen who:

• was refused immigration clearance or found to be an unlawful non-citizen and held in an immigration detention centre
• has applied for the grant, determination or review of a Protection Visa
• the Minister has applied for judicial review of a decision in relation to the granting of the child's Protection Visa
• a child welfare authority of a State or Territory has certified that release from detention is in the best interests of the child
• the Minister is satisfied that:
  • an Australian citizen or permanent resident has arranged for the care and welfare of the child
  • that those arrangements are in the best interests of the child
  • that release would not prejudice the rights and interests of the child's parents or guardian.

Reg 2.20 (4)

This sub-regulation retains the criteria set out above and makes provision for a non-citizen under 18 who is a member of the family unit of a person applying for a bridging visa on the grounds that they are the spouse of an Australian citizen, permanent resident or eligible New Zealand.

Amnesty International remains deeply concerned at both the limited application of the provisions for release of children to date (even taking into account the release in to alternative detention of a small number of children from the Woomera IRPC this year) and the discretionary nature under which they operate. The fact that the Minister does not have to look at the case of a child in detention nor explain why a bridging visa has not been granted raises concerns as to the government's commitment to a number of elements of the CROC (as set out above), as does the provision that in practice the parents, or a parent, must remain in detention and hence be separated from their child. Also, as highlighted by the case studies above, Amnesty International believes that the importance in providing children, especially those whose deteriorating mental state can be directly attributed to their ongoing detention, with prompt access to bridging visas should be of paramount concern to the Australian government.

While Amnesty International's health concerns for children in detention have been outlined in greater detail above it is worth noting that for the first time virtually every independent medical body in Australia has united to call on the Federal Government to get children and their families out of the detention centres. The Minister's response on the ABC "Lateline" program (19 March 2002) however, made it very clear that any parent in detention, whose child is diagnosed as increasingly suffering mental health problems due to their ongoing detention, has one of three choices. They can either: agree to be separated from their child; stay with their child in detention and watch them suffer the psychological damage it is causing; or, return to their home country where many fear persecution. This commitment to either separate families or keep children in situations where their health will continue to deteriorate, or force families to return home where their lives may be at risk, due to an unwillingness not to "unwind" mandatory detention, raises serious concerns about Australia's commitment to both the 1951 Refugee Convention and the CROC.

 

7. Alternatives to detention: Towards the goal of a more humane asylum system

Amnesty International recognises the need to move beyond a mere critique of the status quo and focus resources on the development of viable alternatives. To be feasible any such model must satisfy the legitimate concerns of the government while upholding Australia's human rights obligations. It is important to note that while Amnesty International does not propose a specific alternative, none-the-less more appropriate alternatives do exist and Amnesty International would certainly support alternatives that are in keeping with Australia's human rights obligations.

Following from the presumption against detention, alternatives should be considered and where viable alternatives exist these should be applied first, unless relevant mitigating circumstances have been identified. Consistent with the individual focus of international human rights law, the choice of alternative should be "influenced by an individual assessment of the personal circumstances of the asylum-seeker concerned" [78], taking into account prevailing local conditions.

In a pointed statement released late last year, Kenneth Rivett a life-time member of the Refugee Council Of Australia (RCOA), observed that:

"…, other organisations have failed again and again to end Mandatory Detention. We will keep failing until we can give sensible answers to the plain man's question: What is your alternative?" [79]

This is a point well-made, and one Amnesty International is acutely aware of. The models canvassed below represent concerted efforts to articulate comprehensive, viable answers to the "plain man's" question. In a recent defence of Australia's policy of mandatory detention, Prime Minister Howard acknowledged that:

"Nobody likes the present situation. We don't like having to detain people but there is no alternative if we are to keep control of the flow of people into this country." (emphasis added) [80]

Only mandatory detention, it is argued, fulfils the dual function of deterrence (discouraging further unauthorised entry), and border integrity (preventing arrivals from absconding into the community). Even ignoring the many constructive alternatives mooted in the Australian context, Amnesty International stresses that global conduct offers nothing but alternatives, Australia being the only country in the world that practises mandatory detention.

7.1 The plight of children

One of the key points established in The Guidelines [81] is the recognition that not all asylum seekers are the same. This principle assumes the greatest moral weight in the case of children, but applies equally to all vulnerable groups. It seems only reasonable that such consideration be extended to family groups, both in light of the principle of family unity and the fact that women and children comprise integral parts of family unit.

For detention of these groups to be justifiable it must not merely be shown to be necessary, but enforced only as a measure of last resort. Authorities are required to examine all possible alternatives before imposing detention on such vulnerable groups. Moreover detention must still be for the shortest possible time. Therefore states, in the short term, are required to examine the viability of community release in some form or other.

However, practical dangers accompany any special pleading for children. With respect to the current regime there is a demonstrable tension between the best interests of the child and the principle of family unity [82], which in practice is consigning children to continuing incarceration in the company of their parents. Why? Because in most cases the 'best interests of the child' are deemed best served by maintaining the integrity of the family unit. As HREOC has pointed out in Briefing Paper 8:

"Under bridging visa requirements, child asylum seekers cannot be released from immigration detention unless a State or Territory child welfare authority certifies that a release from detention is in the child's best interests and the Minister for Immigration and Multicultural and Indigenous Affairs is satisfied that appropriate arrangements have been made for the care and welfare of the child outside of detention. [20] As it is usually in a child's best interests to remain with her or his family, and there is no provision for release of families from detention, children are rarely granted bridging visas."

And not without justification, for what impact would such separation have on the child, not to mention the one or both parents left in detention? Ironically, under mandatory detention the principle upholding the 'best interests of the child' merely compounds the child's trauma. Mandatory detention places even the most well-meaning decision maker on the horns of a dilemma. What is the kindest form of cruelty that can be imposed on the child - an indefinite stay in detention or separation from the family?

It is Amnesty International's considered position that any selective alternative to detention, whereby, children alone, or children with their mothers are removed from detention, would be inherently problematic. A more appropriate alternative would be to release all families, thus preserving the family unit and ensuring the best interests of the child. For others however, this would serve only to legitimate 'mandatory' detention by default, and hence would still consign those detained contrary to international standards - that is unnecessarily - to automatic, non-reviewable and indefinite detention.

7.2 The importance of a workable alternative model

Amnesty International believes that the only appropriate solution, therefore, lies with the institution of a comprehensive alternative detention model, founded on the principle of case-by-case assessment consistent with international standards. Such a model would resolve a number of the identified tensions because consideration of mitigating factors would be built into the process of case-by-case assessment. Several alternative models, tailored to the Australian context, already exist. Chief among them are those developed by the RCOA, HREOC, and more recently the Justice for Asylum Seekers (JAS) coalition. [83]

Essentially, such models prescribe not an alternative but rather several alternative arrangements fulfilling different imperatives and existing side-by-side. It is useful to imagine these alternatives occupying consecutive points along a continuum representing progressively greater restrictions on an asylum seeker's movement. They presuppose a release screening process, although the exact details remain undefined. Nevertheless, the intent is clear, a flexible system in which the level of restriction imposed on each individual asylum seeker can be linked directly to the level of risk identified via screening. No explicit dispensation is extended on the basis of age or sex because all models accord with relevant UNHCR prescription and proceed on a case-by-case rather than categorical basis. That is, special provision for vulnerable categories of asylum seeker, i.e. progressively higher thresholds for women, and children, are built into the proposed community release assessment procedures.

From Amnesty International's perspective, all the proposed alternatives share the following positive features:

• A more humane regime;
• Greater flexibility;
• Enhanced equity in the treatment extended to community and irregular asylum seekers respectively;
• Reduced economic, social and political costs in processing;
• Increased harmony with international human rights instruments.

The JAS coalition's model incorporates many of the features of its contemporaries, but in a key innovation places the person of the case-officer at the nexus of its proposed framework. The case-officer mediates between the community and department, and monitors the progress of the individual applicants throughout the reception and determination process. Notably, the status of the case-officer reflects inter alia, reservations that DIMIA determination officers may not have the resources necessary to make comprehensive risk assessments. [84]

A feature as yet absent from all such models, and one that Amnesty International believes to be a significant obstacle to the ultimate implementation of any of them, is a mechanism that explicitly addresses legitimate government concerns with respect to absconding. Amnesty International hopes that what follows might serve not only as a spur to constructive debate, but as a first rudimentary step towards the goal of answering government disquiet.

7.3 Absconding:

"It has been said that the supporters of Mandatory Detention are not raising the question of absconding. If that's the case, then so much the worse for its opponents, who have evidently not pushed them until they were forced to have recourse to this, much the most plausible of all the arguments for detaining asylum seekers at all. The people one talks to outside refugee circles can see that there is a problem of absconding. They want to know how we'd handle it." Kenneth Rivett, Detention Proposals

Amnesty International acknowledges that the risk of absconding may be a legitimate factor in any decision to detain, and on the flipside, in any subsequent decision with respect to when and if an individual should be released from detention. [85]

Given that detention is mandatory for all unauthorised arrivals it must be assumed that this presumption of abscondment extends to all unauthorised arrivals without distinction. This orientation is contrary to the prescription of international law, which places the onus on governments to demonstrate this risk on a case-by-case basis. [86] No such universal assessment framework exists in Australia, because the government countenances no widely applicable alternatives to mandatory, indefinite detention.

Those that enter Australia on valid visas remain free in the community. Conversely, unauthorised entrants who apply for asylum are detained for the entirety of the determination process. The inequities and absurdities of this absolute differentiation become clear upon examination

Minister Ruddock has explained this disparity with the suggestion that since we can be certain of the identity of visa-holding asylum seekers we do not need to detain them. [87] But once the identity of irregular entrants has been established what differentiates the two? Where is the evidence that 'irregular' asylum seekers are any more likely to abscond than those housed in the community? Attention would no doubt then be drawn to the negative inferences arising from unauthorised entry. Amnesty International believes however that little can be inferred from this factor in isolation. Experience shows that the current 'wave' of 'boatpeople' do not employ irregular channels as a means of infiltrating the community undetected - as a means of achieving a 'migration' outcome, but as a means of obtaining legitimate access to the refugee determination process. Far from seeking to avoid official scrutiny, these people actively seek to engage it. The vast majority of those arriving by such means are subsequently determined to be Convention refugees. Indeed, the comparative success of such arrivals relative to that of 'community' asylum seekers casts further doubt on the logical basis for current detention practice. Generally speaking the currently detained asylum seekers have greater incentive not to abscond because they are far more likely to win official leave to remain (albeit grudging and temporary).

Conclusion

Any alternative model to the current mandatory regime must take into account Australia's obligation under the CROC. The CROC clearly states that children should be detained only 'as a measure of last resort and for the shortest appropriate period of time', while UNHCR guidelines clearly articulate a presumption against detention. Any decision to detain needs to be made on an individual basis and if fears of absconding are a primary reason given by the government for detention then when a children is to be detained the Australian authorities must demonstrate why, for example, a two year old, or a five year old, or an eleven year old, etc, is likely to abscond. The presumption that someone is likely to abscond simple because of their "unauthorised" arrival must be seen as inconsistent with Australia's obligations under article 31(1) of the 1951 Refugee Convention.

Children represent a vulnerable group in society deserving of special protection. Children asylum seekers, many of whom have experienced persecution in their homeland and who have undergone the trauma of fleeing their homes represent an even more vulnerable group deserving of special protection from abuse and exploitation. As outlined in this submission there are a number of specific issues that arise in relation to the detention of children, including the fact of detention, the length of detention, the conditions of detention and the long term impact of detention, which are all of particular concern. Amnesty International is concerned that the mandatory institutionalization of these children poses significant risks to their emotional, physical, psychological, social and intellectual well-being and development. Their detention is, in the view of Amnesty International, contrary to Australia's international law obligations.

Australia has an international legal obligation to ensure that the detention of a child shall be used only as a "measure of last resort" and for the "shortest period of time". If a child is placed in an institution, Australia has an obligation to "..take measures to ensure that they are provided with well-trained staff, that the children's needs are met and their quality of life is good and they are protected from abuse." [88]

In order for Australia to meet its obligations to child asylum seekers Amnesty International recommends:

• The introduction of alternatives to mandatory detention.
• In particular, the detention of children should not be automatic.
• It should only be applied in exceptional cases, and each case should be considered on an individual basis, having regard to such considerations as security and health risks in accordance with the prescriptions of international law.
• Further, when considering the release of children from detention a non-discriminatory treatment must be applied equally to accompanied and unaccompanied minors.
• This would include a provision enabling children to be released with their families, in the best interests of the child.
• Legislation needs to be put in place to establish an independent body responsible for the guardianship of any unaccompanied minor held in detention in order to ensure there can be no conflict of interest.
• A more formalised mechanism of federal/state assistance for unaccompanied minors released from detention needs to be initiated.
• There needs to be a long-term impact study which monitors psychological and social development over an extended period of time of children in detention.
• The study should be entirely independent of the government and should monitor the psychological and social development of children while they are in detention and after they have been released. (There would need to be unrestricted access to detention centres for this purpose).
• Prior to this study, further mechanisms need to be put in place to ensure the educational and health needs of children in detention meet Australia's international obligations.

It is imperative that the human rights of all children in this country are respected. Amnesty International urges the Australian government to honour and fulfil its international law obligations.

---

1. Opened for signature 20 November 1989, 1577 UNTS 44, 28 ILM 1457 (entered into force 2 September 1990).

2. Only the United States of America and Somalia have not ratified.

3. (1995) 183 CLR 273.

4. Ibid. at 291 per Mason CJ and Deane J.

5. 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 October 1997).

6. CROC, article 3(1).

7. Opened for signature 16 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976).

8. Savitri Taylor, 'Protecting the Human Rights of Immigration Detainees in Australia: An Evaluation of Current Accountability Mechanisms' (2000) 22 Sydney Law Review 50, 55.

9. Office of the High Commissioner for Human Rights, Fact Sheet No 26, The Working Group on Arbitrary Detention at <http://www.unhchr.ch/html/menu6/2/2/fs26.htm&gt;; Henry Steiner and Philip Alston, International Human Rights in Context: Law Politics Morals (2nd edn, 2000) 642.

10. Working Group on Arbitrary Detention, Civil and Political Rights, Including Questions of Torture and Detention: Report of the Working Group on Arbitrary Detention, UN Doc E/CN.4/1999/63 (18 December 1998) para 69. See also Henry Steiner and Philip Alston, International Human Rights in Context: Law Politics Morals (2nd edn, 2000) 644-5.

11. UNICEF, United Nation's Children's Fund, Implementation Handbook for the Convention on the Rights of the Child (1998, Geneva) p259.

12. Ibid. p260.

13. CROC, article 20.

14. UNICEF, United Nation's Children's Fund, Implementation Handbook for the Convention on the Rights of the Child (1998, Geneva), 262.

15. CROC, article 3(3).

16. Nigel Rodley, The Treatment of Prisoners under International Law (2nd edn, 1999) at 304-5; Taylor, Op. Cit., 56.

17. CROC, article 2.

18. CROC, article 13.

19. CROC, article 14.

20. CROC, article 15.

21. CROC, article 16.

22. CROC, article 27.

23. CROC, article 31.

24. Hodgkin, R. and Newell, P. (1998) Implementation Handbook for the Convention on the Rights of the Child, United Nations Children's Fund, USA, p257

25. Ibid, p259

26. UNHCR, "Protecting Refugees: A Field Guide for NGO' s", 1999, Geneva at p94

27. 2000-2001 Cambridgeshire Against Refugee Detention, c/o CUSU, 11-12 Trumpington Street, Cambridge, CB2 1QA.

28. Suffer the Children, an article by Jaqueline Everett, The Sydney Morning Herald, August 1, 2001.

29. Parents face Sophie' s Choice at Villawood, an article by Robert Manne, The Sydney Morning Herald, August 13, 2001.

30. Report of Inquiry into Immigration Detention Procedures. Philip Flood AO, February, 2001 and

31. Report of an Own Motion Investigation into The Department of Immigration and Multicultural Affairs' Immigration Detention Centres (Report under section 35a of the Ombudsman's Act 1976) March 2001.

32. Transcultural Psychiatry, Vol 37 (3), Sept 2000.

33. F. L. Ahearn and J. L. Atley (eds), Refugee Children: Theory, Research and Services. Baltimore; The John Hopkins University Press.

34. Winnicott D. The child, the family and the outside world. Harmondsworth, Penguin, 1964. And Cassidy J. "The nature of the child's ties." In J. Cassidy and P. Shaver, Handbook of Attachment: Theory, Research and Clinical Application. The Guilford Press, New York, pp3-20.

35. Statement taken from telephone interview with Dr. Louise Newman, Chair of the Faculty of Child and Adolescent Psychiatry of the Royal Australian and New Zealand College of Psychiatry, Sydney, NSW.

36. "The children alone behind the wire", by Mathew Moore. Sydney Morning Herald. November 28, 2001.

37. Ibid.

38. Dr Ozdowski quoted in Ibid.

39. UNICEF, United Nations Children's Fund, Implementation Handbook for the Convention on the Rights of the Child, 1998, Geneva at p490

40. Australia acceded to the Refugee Convention on 22 January 1954, and its Protocol on 13 December 1973. Australia was in fact the sixth signatory of the Convention, thus activating the operation of Article 43 and bringing the Refugee Convention into operation on that date in 1954.

41. UNICEF, the United Nations Children's Fund, was created by the United Nations General Assembly in 1946 and seeks to promote the rights of children worldwide. Australia is one of the 36 members currently on the Executive Board.

42. Article 3 (1) of CROC states that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration".

43. http://untreaty.un.org/English/TreatyEvent2001/8.htm

44. at page 2, paragraph 5.

45. Guideline 10: "Conditions of Detention"

46. Ibid. point (vii)

47. Education Act 1937 (ACT); Education Act 1979 (NT); Education (General Provisions) Act 1989 (Qld); Education Act 1972 (SA); Education Act 1994 (Tas); Education Act 1958 (Vic); and School Education Act 1999 (WA).

48. Section 3 (1).

49. Section 7 of the Act

50. Section 8 of the Act

51. Section 8 (1) (b) of the Act

52. Section 8 (1) (c) of the Act

53. Section 8 (1) (a) of the Act

54. Section 8 (2) of the Act

55. Section 10 (1) (b) of the Act

56. Section 10 (1) (c) of the Act

57. Sections 11 and 12 of the Act

58. Section 6 (e) of the Act

59. [The teachers were] interviewed by [words deleted] Amnesty International Australia on 15 March 2002, and during the period from 5 April 2002 to 13 April 2002, [respectively].

60. Paper delivered to the International Corrections and Prisons Association Conference, held in Perth on 30 October 2001

61. Ibid. p7

62. Ibid. p10

63. Migration Act 1958 (Cth) s 189.

64. Migration Act 1958 (Cth) ss 13 and 14.

65. Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA'), Immigration Detention, Fact Sheet 82, at <http://www.immi.gov.au/facts/82detention.htm&gt;.

66. Office of the United Nations High Commissioner for Refugees, UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999), para 1.

67. Ibid.

68. Ibid para 6, Guideline 6. Emphasis in original.

69. Ibid, para 6, Guideline 3.

70. Ibid.

71. Ibid.

72. Opened for signature 28 July 1951, 189 UNTS 150, ATS 1954 No 5 (entered into force 22 April 1954) ('Refugee Convention'). The Refugee Convention was amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, 6 ILM 78 (entered into force 4 October 1967).

73. Opened for signature 20 November 1989, 1577 UNTS 44, 28 ILM 1457 (entered into force 2 September 1990) ('CROC').

74. Opened for signature 16 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976) ('ICCPR'). Similar provisions are contained in Article 9 of the Universal Declaration of Human Rights; Article 6 of the African Charter on Human and People's Rights; Article XXV of the American Declaration; Articles 7(2) and 7(3) of the American Convention on Human Rights; Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Article 55(1)(d) of the Statute of the International Criminal Court; and Article 37 of the Convention on the Rights of the Child.

75. UNHCR, UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999), para 16.

76. Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia, UN Doc A/55/40 (28 July 2000), paras 498-528.

77. Standing Committee of the Executive Committee of the United Nations High Commissioner for Refugees' Programme, Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice, UN Doc EC/49/SC/CRP.13, para 10.

78. HREOC, Those who've come across the seas Detention of unauthorised arrivals, Commonwealth of Australia, 1998, p22

79. Guideline 4 of the UNHCR revised guidelines on applicable criteria and standards relating to the detention of asylum seekers, UNHCR, (February 1999).

80. Detention proposals, K. Rivett, 10 September 2001, (http://www.refugeecouncil.org.au/Rivettmodel.htm)

81. "Howard stands by policies", AAP, 25/1/2002.

82. UNHCR revised guidelines on applicable criteria and standards relating to the detention of asylum seekers, UNHCR, (February 1999).

83. Consider for example this from UNHCR's Refugee Children: Guidelines on Protection and Care, 1 January 1994, (http://www.asylumsupport.info/publications/unhcr/refugeechildren.htm): "Families must be kept together at all times, which includes their stay in detention as well as being released together".

84. Both the HREOC and RCOA models have previous been displayed on their websites, the JAS, Detention Reform Group, "Reception and Transitional Processing System" model has been included as part of the JAS submission to this inquiry.

85. Personal conversation with Grant Mitchell (5 April, 2002), Project Coordinator, Hotham Mission, Aslum Seeker Project

86. See for example Australia - A continuing shame: the mandatory detention of asylum seekers, Amnesty International, 1998 (http://www.amnesty.org.au/whatshappening/refugees/index-16.html): "It is internationally accepted that protecting national security and preventing illegal immigration can be legitimate grounds for exceptional, temporary detention of unauthorised asylum-seekers in individually determined cases. (See UNHCR EXCOM Conclusion No. 44, paragraph b, outlined in Chapter 2.1, supra.) Amnesty International acknowledges Australia's right to control entry into the country and that there is a possibility that some asylum-seekers may abscond into the community if released from initial detention. However, this possibility should be assessed case by case."

87. See Amnesty International's response to the White Paper on asylum and immigration (UK) (www.amnesty.org.uk/action/camp/refugees/asylum.shtml) and Australia - A continuing shame: the mandatory detention of asylum seekers, Amnesty International, 1998.

88. This argument has been put forward by the Minister for Immigration in a number of meetings with representatives of Amnesty International.

89. UNICEF, United Nations Children's Fund, Implementation Handbook for the Convention on the Rights of the Child, 1998, Geneva at 262

Last Updated 9 January 2003.