Submission to the National Inquiry into Children in Immigration Detention from UNICEF Australia - United Nations Children's Fund

Background

The Australian National Committee of the United Nation's Children's Fund, ('UNICEF Australia'), welcomes the opportunity to present a written submission to the Human Rights and Equal Opportunity Commission, ('HREOC'), in regard to their national inquiry into children in immigration detention, ('the Inquiry').

UNICEF Australia is a non-government organization established in Australia to support the work of the United Nation's Children's Fund, ('UNICEF'). UNICEF is the only United Nations organization dedicated exclusively to children. UNICEF Australia is bound and guided by the United Nations Convention on the Rights of the Child, ('the Convention'), and the Convention on the Elimination of All Forms of Discrimination against Women, which Australia has ratified. Article 45 of the Convention acknowledges the special competence of UNICEF and other United Nations' organs "to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates".

Introduction

UNICEF Australia wishes to reaffirm its uncompromising position that children should not be detained in immigration detention centres. Australia ratified and thus agreed to be bound by the Convention in December 1990. In accordance with Article 37(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."

Australia is the only Western country that has a policy of mandatory detention of all "unauthorized arrivals", including children . [1] There are alternatives. These children have not been detained "as a measure of last resort." There is no legitimate justification for this policy.

UNICEF Australia wishes to acknowledge that this submission relates to all children in immigration detention, however, shall primarily focus on the particular vulnerabilities of asylum seeking children. As of 1 February 2002, there were 365 children in mainland Australian immigration detention centres, including 13 unaccompanied minors [2]. The Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA') noted that there has been a recent decrease in the number of children in immigration detention centres, which, "can be attributed to:

·        Decreasing numbers of unauthorised air & sea arrivals to Australia;

·        Increase in persons being released from immigration detention, particularly unaccompanied minors; and

·        Minors turning 18 years of age while in detention. [3] "

In late August 2001, the Australian Government initiated a new policy ('the Pacific Solution') whereby, prospective asylum seeking "unauthorised arrivals", including children, have been diverted and detained in other countries, including Nauru and Papua New Guinea. In effect, since September 2001, asylum-seeking children arriving by boat, who would have otherwise been detained in Australian immigration detention centres, are being detained in other "declared countries." As of 26 March 2002, 1155 "unauthorised arrivals" were detained at Nauru and 356 [4], including over 100 children [5] , on Manus Island, Papua New Guinea. These children are of particular concern to UNICEF Australia, given the lack of transparency of their situation, the unpredictability of their future [6], their limited access (if any) to legal resources [7]and the detrimental impact of recent amendments to the Migration Act [8]. UNICEF Australia urges the Inquiry to visit and make recommendations in relation to the children detained due to Australian Government immigration policy in "mainland" Australia, "excised territories" and "declared countries."  

Summary of Recommendations:

1. Release all children from detention - an alternative system must be developed

a. Children, especially those seeking asylum, should not be detained. Children should never be subjected to the conditions of the current immigration detention centres.

b. The Government must, as a matter of extreme urgency, implement an alternative. The Government should adopt one of the range of proposed alternative models or immediately set up a Task Force, comprising of the Government, policy makers and key stakeholders to examine the best international practices of processing children seeking asylum. An alternative to detention model should subsequently be formed, that is appropriate to the Australian context and child friendly that embraces the principle of family unity and is in the best interests of the child.

c. Once the children and families have been released from detention, immediate physical and mental health assessments should be undertaken. Rehabilitative measures, where necessary, should also be commenced. They should also have immediate access to all necessary services. At a minimum, such services should include language, financial, educational, health, psychosocial, rehabilitative and other basic resettlement support.

2. Whilst the new liberated system is developed, immediate action is required in the detention centres

a. In the case of an unaccompanied child, an independent, appropriately qualified guardian must be appointed to ensure the best interests of the child. 

b. The contract with Australasian Correctional Management should be immediately aborted. Independent and qualified inspectors should be empowered to regularly monitor and implement the required action to cater for the specific vulnerabilities of children in immigration detention centers. All staff that are involved with the children in detention centers, should have culturally appropriate child welfare training.

c. All children in immigration detention centres should have access to independent legal, health and educational professionals. Further, all children should be immediately provided with culturally appropriate recreational equipment.

d. The particular vulnerabilities of asylum seeking children should be acknowledged. Appropriate care, in accordance with UNHCR guidelines, needs to be ensured. With regard to the refugee determining process, child asylum applications should be assessed swiftly, with a liberal application of the "benefit of the doubt" principle. Decision-makers should receive specific training in assessing child asylum applications. 

e. All children should be informed of all matters concerning their welfare and their right to participate in the decision making process guaranteed, with due weight given to their maturity, level of comprehension and psychological state. 

3. Revise policy, with the primary consideration being the best interests of the child

a. The Australian Government should immediately provide a clear policy statement regarding the viability of the "Pacific solution," including re-settlement plans. All territories influenced by Australian Government immigration policy, including "mainland Australia", "excised territories" and "declared countries", should be made subject to independent monitoring in order to ensure transparency and accountability.

b. All children in immigration detention centres should have a guaranteed avenue for administrative and judicial review of their detention and immigration decisions.

c. Discriminatory policies, such as the various classes of protection visa and the detention of "unauthorized arrivals," should be revoked. All children in Australia, including asylum seekers and refugees, are entitled to enjoy all of the rights under the Convention, without discrimination. As such, all children recognized as refugees should be granted permanent protection visas with the ability to sponsor their families and have access to all necessary services. 

UNICEF Australia's position

It is UNICEF Australia's view that a multitude of Articles of the Convention have been breached by the Australian Government's policy of non-reviewable, mandatory detention of all "unauthorized arrivals," including asylum seeking children. Violations of particular, but not exclusive concern [9] include:

1. Article 2 - Non-discrimination
2. Article 3 - Best interests of the child
3. Article 6 - Survival and development
4. Article 22 - Refugees
5. Article 37(b) & (c) - Deprivation of liberty
6. Article 37(d) & Article 40 - Juvenile justice

1. Article 2 - Non-discrimination

1. States Parties shall 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, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. 

Article 2 of the Convention, prohibits discrimination on any ground, including immigration status. As such, every child in Australia [10] is entitled to all of the rights under the Convention free from discrimination. Australia is obliged to protect children from any form of discrimination and to take positive action to promote their rights. 

Children in Australian immigration detention centres are fundamentally discriminated against and do not enjoy the same rights under the Convention as those outside of detention. It is UNICEF Australia's considered opinion that the Australian Government's policy is discriminatory as:

·         It discriminates on the grounds of the immigration status of the children upon arrival to Australia. Children who are deemed to hold the appropriate documentation, such as a visa, are able to apply for asylum whilst living in the community. Those without documentation are punished and mandatorily detained, usually for the entire period of the refugee status determining process. This policy disregards the particular difficulties of asylum seekers, often from Afghanistan and Iraq, in obtaining the necessary documentation .[11]

·         Different legal status is given to those people found to be refugees according to their status on entry to Australia and according to the time spent in countries outside their country of origin. The Australian Government admits that, "the new visa regime intentionally discriminates between groups of refugees (those fleeing directly and refugees making unnecessary secondary movements) in their capacity to access local integration in Australia [12]." The differing legal status, by classification of visa, translates into different rights and benefits for children. "Unauthorized arrivals" who are recognized as refugees, are entitled to only temporary protection for three years and are prohibited from accessing any permanent status and cannot sponsor their families. This policy has encouraged other family members, often women and children to "take to the seas" and risk their lives in order to be reunited with their families. They are further discriminated against as they receive restricted access to services and rights that are essential for the child's development. The Australian Government's policy, in this regard is irreconcilable with the best interests of the child, including the principle of family reunification . [13]

Recommendations:

1.1 The Australian Government should revoke all immigration legislation that is discriminatory to children. 

1.2 The Australian Government should ensure that all children in Australia, including asylum seekers and refugees, are able to enjoy all rights under the Convention, without discrimination. As such, all children recognized as refugees, regardless of the manner in which they entered Australia or the time spent in countries outside of their country of origin, should be granted permanent protection visas with the ability to sponsor their families and have access to all services. At a minimum, such services should include language, financial, educational, health, psychosocial, rehabilitative and other basic resettlement support. 

2. Article 3 - Best interests of the child

1. 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 a primary consideration.

2. States Parties undertake to ensure the child such protection and care as necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

Article 3(1) emphasises that in order to ensure that the best interests of the child are a primary consideration, government, public and private institutions must actively ascertain the impact of their actions upon children. In accordance with the best interests of the child, numerous areas of a child's life need to be nurtured and sustained. As a foundation, the following three elements must be maintained:

Preservation of family life

The Preamble to the Convention recognises that, "the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding." All children are entitled to live in a loving, family environment under the primary care and supervision of their parents or legal guardians . [14] All children are entitled to live with both of his or her parents unless it is deemed to be incompatible with the child's best interests. Separation from parents should only be contemplated in the exceptional circumstance, "such as one involving abuse or neglect of the child by the parents or one where the parents are living separately and a decision must be made as to the child's place of residence." [15]

Under Article 37(c) of the Convention, children who are deprived of their liberty must be separated from adults "unless it is considered in the child's best interest not to do so." The Government has considered that it is in the child's best interest "to remain with their parents, family or fellow country people," however the Government has used the principle of the best interests of the child as the justification for detaining children . [16] The preservation of the family unit is essential for the best interests of the child. However, the devastating and enduring ramifications of detention on children, especially as they are detained with adults, should not be bargained against the principle of family unity. UNICEF Australia strongly opposes the separation of children from either or both of their parents [17]. The implications of children and adults being detained in the same area are also not in the best interests of the child [18]. The detention of children is inherently undesirable for a multitude of reasons. The only option is to release the child with their family. Alternative models to detention must be developed that encompass all aspects of the child's best interests, including the preservation of family unity. 

Guardianship

In the case of an unaccompanied child, Australia is obliged to provide special protection and ensure that culturally appropriate alternative family care or institutional placement is available [19]. In Australia, an unaccompanied minor becomes the ward of the Minister for Immigration and Multicultural and Indigenous Affairs. The child may then be delegated to an official of a government welfare department [20]. UNICEF Australia is concerned about the lack of independence of the guardian appointed to unaccompanied children, as the guardian should advocate for the child's best interests in all matters and a conflict of interest may arise. The guardian should also possess the appropriate training and expertise in child welfare issues. In accordance with the UNHCR Guidelines on Unaccompanied Children ,[21] it is recommended that, "an independent and formally accredited organisation appoint a guardian or adviser as soon as the unaccompanied child is identified. The guardian/adviser would be charged with ensuring that the best interests of the child are respected throughout the status determination procedure and in all care and welfare decisions concerning the child."

Independent monitoring

Article 3(3): State Parties shall ensure that the 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, in the number and suitability of their staff, as well as competent supervision.

While the overall responsibility for the detention centres, rests with the DIMIA, the day-to-day operation of the centres has been contracted out to a private sector service provider, Australasian Correctional Management (ACM). ACM has a background in operating correctional facilities. UNICEF Australia believes that ACM is an entirely inappropriate service provider to care for the needs and special vulnerabilities of children in detention. In accordance with theUnited Nations Rules for the Protection of Juveniles Deprived of their Liberty , [22] UNICEF Australia opines that independent qualified inspectors, should be empowered to monitor detention facilities on a regular basis and implement the action required in the best interests of the child. The lack of transparency and accountability of the activities in the detention centres has to be rectified.

Recommendations:

2.1 The detention of children in Australian immigration detention centers, in the manner and for the prolonged period of time that they are detained is in violation of Article 3 of the Convention. Alternatives to detention must be immediately implemented .[23]

2.2 All children and their families should be removed from immigration detention centers and settled in the community with access to all necessary services .[24]

2.3 In the case of an unaccompanied child, an independent, appropriately qualified guardian must be appointed to ensure the best interests of the child.

2.4 Whilst alternative liberated arrangements are being established, independent and qualified inspectors should be empowered to regularly inspect and implement the necessary action required to cater for the specific vulnerabilities of children in immigration detention centers. In addition, all children in detention should have access to necessary resources . [25]

2.5 Whilst alternative liberated arrangements are being established, all staff that have contact with the children in detention centers should have culturally appropriate child welfare training.

3. Article 6 - Survival and development

1. State Parties recognize that every child has the inherent right to life.

2. State Parties shall ensure to the maximum extent possible the survival and development of the child.

Every child has an inherent right to life, and Australia has an obligation to ensure the child's survival and development. "Survival and development" encompasses both the child's physical survival and healthy development and his or her mental and emotional development. Further, the ability of a child to participate and freely express his or her opinions is essential to his or her development . [26]

As it is the decision of the Australian Government to detain children, under the Convention, it is directly responsible to:

·         ensure every child's survival and development.

·         protect every child from all forms of "physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse," by parents or others responsible for the care of the child and establish appropriate social programmes for the prevention of abuse and the treatment of victims . [27]

·         ensure that every child, receives the highest standard of health and medical care attainable and access, "to facilities for the treatment of illness and rehabilitation of health ." [28]

·         ensure that every child, especially those suffering form torture and trauma receives appropriate treatment for their recovery and social integration, in an environment which fosters the health, self-respect and dignity of the child ." [29]

·         ensure that every child receives a standard of living adequate for his or her, "physical, mental, spiritual, moral and social development ."[30]

·         ensure that every child receives education [31] that develops, "the child's personality, talents and mental and physical abilities to their fullest potential;[32] " develops, "respect for human rights and fundamental freedoms; [33] " fosters 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 civilisations different from his or her own;[34] " and that prepares, "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 origins ."[35]

·         ensure that every child engages in leisure, play and participation in cultural and artistic activities .[36]

The myriad of reports and testimonials of the environment in the immigration detention centres, including images of detainees throwing themselves on razor wire, evidence of riots, suicide, lip-sewing and other self-mutilations, allegations of sexual assault and other forms of violence, overwhelmingly confirms that it is entirely inappropriate and unjustifiable to detain children in these centres. In UNICEF Australia's opinion, the detention in the manner and for the length of time suffered by children in immigration detention centres contravenes the child's right to survival and development and flagrantly disregards the best interests of the child.

Recommendations:

3.1 All children and their families should be immediately removed from immigration detention centres and settled in the community with access to all necessary services .[37]

3.2 All children should have immediate independent clinical assessments as to their physical and mental health. Rehabilitative measures, where necessary, should be undertaken.

3.3 Whilst awaiting release, all children in detention should have access to independent health and educational professionals. In addition, all children in detention should have immediate access to culturally appropriate recreational equipment.

4. Article 22 - Refugee children

1. State 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, received 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.

2. For this purpose, State parties shall provide, as they consider appropriate, cooperation in any effort by the United Nations and other competent intergovernmental organizations or non-governmental organizations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.

Refugee children are among the most vulnerable groups in the world. Australia, as a signatory to the Convention and of the Convention relating to the Status of Refugees, is obliged to ensure that a refugee child or a child seeking refugee status is granted special protection. The "appropriate protection and humanitarian assistance" should be guided by the principle of the best interests of the child, including respect for the principle of family unity and due consideration to a standard of living, "adequate for the child's physical, mental, spiritual, moral and social development ". [38] Unaccompanied asylum seeking children are especially vulnerable and are entitled to additional protection [39] . Further, Australia is obliged to co-operate with the competent organizations that provide such protection and assistance. 

With regard to the refugee status determination, particularly if the child is detained, a fair and swift refugee determining procedure with the right to formally appeal to an independent body [40], must be ensured. The right of the child to participate [41] must be acknowledged and ensured, however due weight must be given to the maturity, comprehension of the process, educational and psychological state of the child. In this regard, UNICEF Australia recommends that an extremely liberal approach to the principle of "the benefit of a doubt" [42]should be accorded to asylum seeking children. Further, access to independent legal advisers and an independent guardian, to advocate in the child's best interests, must be ensured.

The policy of non-reviewable, mandatory detention, of all "unauthorized arrivals," including children contravenes Article 22. Rather than acknowledging the exceptionally difficult and vulnerable circumstance of asylum-seeking children and offering due protection and humanitarian assistance, Australia penalizes asylum seeking "unauthorized arrival" children by detaining them for long periods of time, which further exacerbates their vulnerability and development. Article 14(1) of the Universal Declaration of Human Rights provides that "everyone has the right to seek and to enjoy in other countries asylum from persecution." Asylum seeking children should not be punished for doing so. This inflexible and arbitrary policy does not appreciate the nature of the flight of the child asylum seeker and their often inability to seek the formal documentation, prior to arriving in Australia. 

Recommendations:

4.1 The right to judicial appeal should be immediately guaranteed, in order for asylum seeking children to challenge any administrative decisions relating to their detention. 

4.2 The particular vulnerabilities of asylum seeking children should be acknowledged. Appropriate care, in accordance with UNHCR guidelines, needs to be ensured. 

4.3 Child asylum applications should be determined in accordance with UNHCR guidelines and assessed swiftly, with a liberal application of the principle of the benefit of the doubt. Decision-makers should receive specific training in assessing child asylum applications.

4.4 Child asylum seekers should be informed of all matters concerning their welfare and allowed to participate in the refugee determining process, with due weight given to their maturity and comprehension.

5. Article 37 (b) and (c) - Deprivation of liberty

States Parties shall ensure that;… 

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

UNICEF Australia's uncompromising position is that children, especially asylum-seeking children, should not be detained in immigration detention centres. In UNICEF Australia's opinion, the Australian Government policy of non-reviewable, mandatory detention of all unauthorized arrivals, including children, breaches Article 37(b) of the Convention and obligations under Article 9(1) of the International Covenant of Civil and Political Rights, for the following reasons:

It is arbitrary

In UNICEF Australia's view [43], the Australian Government policy of non-reviewable mandatory detention is arbitrary as it is not a proportionate [44] means to achieve a legitimate aim. Further, it is unjust, unpredictable [45], for inexcusably prolonged periods and the detention of unauthorised arrivals is not an exceptional occurrence but the norm. 

It is not a measure of last resort

Australia is the only Western country in the world that has mandatory detention of all "unauthorized" arrivals, including children [46]. A range of alternatives to detention models have been, and will continue to be, presented to the Government. UNICEF Australia urges the Government to seriously consider and implement an alternative to detention model. In addition, if the proposed models are seen as inappropriate to the Australian context, the Government, policy makers and key stakeholders should establish a Task Force, instructed to examine the best international practices of processing children seeking asylum. The information would thus be consolidated, in order to establish an alternative to detention that is appropriate to the Australian context, whilst embracing the importance of the family unit [47] and in accordance with the best interests of the child.

Detention is not for the shortest appropriate period of time

The arbitrariness of the detention is further supported by the prolonged periods of detention. It is UNICEF Australia's view that children should not, as a general rule, be detained. In Australia, unauthorised asylum seekers, including children are detained for the entire refugee status determining period, which is often for many months and on occasions, for years. UNICEF Australia finds this to be entirely inappropriate, especially considering the vulnerabilities of asylum seeking children. If a child is to be detained, UNICEF Australia views that it should be done in accordance with UNHCR Guidelines. 

The Tampa provides a well-documented case study, of the processing of asylum seekers, including children, by the Australian Government. Within three months, New Zealand processed and granted refugee status and permanent residency to all but one of the 131 asylum seekers from the Tampa [48]. UNICEF Australia applauds the New Zealand Government for acknowledging the specific vulnerabilities and deliberately selecting family groups and unaccompanied minors, and processing their claims expeditiously. The fate of the asylum seekers from the Tampa, under the responsibility of the Australian Government, eight months on, is still unknown [49] . Children are clearly being detained for more than 'the shortest appropriate period of time' under the Australian system.

(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; 

UNICEF Australia is deeply concerned that children are detained with adults in the immigration detention centres. This exposes the child to an entirely inappropriate environment that heightens the child's vulnerability and exposure to harm including sexual abuse. Many allegations of child sexual abuse have been noted in Australian immigration detention centres [50] and well documented internationally in refugee camps [51] . Children detained with adults for prolonged periods of time, are also exposed to increased levels of violence, including self-mutilations and physical attacks that would have incalculable ramifications upon the development of a child. UNICEF Australia also strongly opposes the separation of children from either or both of their parents, other than under the conditions expressed in Article 9. The detention of children in immigration detention centres is entirely inappropriate and to the absolute detriment of a child.

Recommendations:

5.1 The right to liberty is recognised under international human rights law as a fundamental human right. Further, the right to seek asylum is an inherent right [52]. A child asylum seeker should not be penalised for the manner in which he or she entered Australia. Children should never be detained in centres such as the immigration detention centres in Australia. 

5.2 The Government should adopt one of the range of proposed alternative models or immediately set up a Task Force, comprising of the Government, policy makers and key stakeholders to examine the best international practices of processing children seeking asylum [53]. An alternative to detention model shall thus be formed that is appropriate to the Australian context and child friendly that embraces the family unit and the best interests of the child. 

6. Article 37 (d) and Article 40 - Administration of juvenile justice

Article 37(d) provides:

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.

Further, Article 40 provides:

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. 

2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: …

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: 

(i) To be presumed innocent until proven guilty according to law; 

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; 

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;… 

In Australia, detention is mandatory for all unauthorised arrivals, including children and does not consider the individual circumstances of cases. Further, the courts cannot determine the reasonableness and appropriateness of the detention. The recent amendments to the Migration Act further restricts access to judicial review, especially in "declared countries," and effectively gives greater weight to DIMIA assessments [54], contrary to the rule of law [55].The participation of children [56] and access to the provision of legal services is also questionable [57] and of concern to UNICEF Australia, especially for asylum seeking children involved in the "Pacific solution." 

In UNICEF Australia's opinion, Australia is in breach of its obligations under Article 37(d) and Article 40(2)(b)(ii) and 40(2)(b)(iii) of the Convention and Article 9.4 and Article 14 of the International Covenant on Civil and Political Rights (ICCPR) . [58]

Recommendations:

6.1 All children in immigration detention centres, particularly asylum seeking children, should have access to independent legal advice and an appropriate guardian appointed to unaccompanied children.

6.2 All children in immigration detention centres should have a guaranteed avenue for administrative and judicial review of their detention and immigration decisions. 

6.3 All children should be informed of all decisions involving their welfare and their right to participate in the refugee determining process should be guaranteed.

Conclusion

Children in immigration detention centres must be immediately released.

Footnotes

1. See Amnesty International, Alternatives to mandatory detention, Refugee Fact Sheet July 2001: http: www.amnesty.org.au/whatshappening/refugees/ accessed April 2002.

2. Per DIMIA figures, accessed April 2002 from http://www.immi.gov.au/detention/women.htm. 

3. Ibid.

4. Per DIMIA figures per http://www.immi.gov.au/facts/76offshore.htm accessed April 2002.

5. Per Foreign Correspondent, ABC Television, 17 April 2002, noted that a third of 364 asylum seekers were under the age of 17. We have been unable to ascertain the number of children on Nauru.

6. If they are recognised as genuine refugees when and where will they be re-settled? If they are not recognised by DIMIA to be refugees, when and where will they go? For how long will they be detained? The impact of the Constitutional challenges, (that the detention is unlawful) on both Nauru and PNG? See note 5 and Oxfam report, Adrift in the Pacific: The implications of Australia's Pacific Refugee Solution, February 2002. 

7. Per DIMIA website: www.immi.gov.au/legislation/refugee/04.htm accessed 4 May 2002: "Will offshore entry persons and individuals on a declared country be provided with migration assistance under the Immigration Application, Advice and Assistance Scheme (IAAAS)? No. Such persons will not have access to IAAAS. Revised administrative procedures will ensure active exploration of individual cases by DIMIA officers to identify any persons in need of refugee protection. This practice accords with UNHCR operational arrangements for refugee determination. Individuals are free to make their own arrangements for assistance at their own expense."

8. Including the non-compellable discretionary power of the Minister of Immigration to allow an application for a visa, discriminatory visa classes and the removal of any form of independent review of the refugee assessment. The only review of the initial refugee assessment by the DIMIA officer is made by another DIMIA officer. Further, "under s494AA of the Act offshore entry persons will not have access to litigation to challenge review decisions apart form the High Court under s75 of the Constitution," per http://www.immi.gov.au/legislation/refugee/03.htm accessed April 2002

9. The six listed categories are not mutually exclusive and also consider various other Articles.

10. Whether they are an Australian citizen, a recognized refugee, an asylum-seeker or rejected asylum seeker etc.

11. This could also raise concerns regarding Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and other human rights instruments to which Australia is a party.

12. Per DIMIA website: www.immi.gov.au/legislation/refugee/01.htm accessed April 2002.

13. Article 10, Convention on the Rights of the Child (1989).

14. Article 5, Convention on the Rights of the Child (1989).

15. Article 9, Convention on the Rights of the Child (1989).

16. Per the Minister for Immigration and Multicultural and Indigenous Affairs website: www.minister.immi.gov.au/faq/detention.htm accessed April 2002.

17. Except under Article 9 or if it truly is in their best interests under Article 37 (c) Convention on the Rights of the Child (1989).

18. See later s37(c) discussion.

19. Article 20, Convention on the Rights of the Child (1989).

20. Immigration (Guardianship of Children) Act.

21. UNHCR Guidelines on Unaccompanied Children, paragraph 5.7

22. Rule 72,

23. See later discussion under Article 37.

24. See Recommendation 1.2

25. See Recommendation 1.2

26. Articles 12 & 13, Convention on the Rights of the Child (1989).

27. Article 19(1), Convention on the Rights of the Child (1989).

28. Article 24, Convention on the Rights of the Child (1989).

29. Article 39, Convention on the Rights of the Child (1989).

30. Article 27, Convention on the Rights of the Child (1989).

31. Article 28, Convention on the Rights of the Child (1989).

32. Article 29 (1a), Convention on the Rights of the Child (1989).

33. Article 29 (1b), Convention on the Rights of the Child (1989).

34. Article 29 (1c), Convention on the Rights of the Child (1989).

35. Article 29 (1d), Convention on the Rights of the Child (1989).

36. Article 31, Convention on the Rights of the Child (1989).

37. See Recommendation 1.2

38. Article 27, Convention on the Rights of the Child (1989).

39. Article 20, Convention on the Rights of the Child (1989).

40. See Article 40, Convention on the Rights of the Child (1989); Article 14 of the International Covenant of Civil and Political Rights and UNHCR Guidelines on Unaccompanied Children, paragraph 8.2.

41. Article 12 & 13, Convention on the Rights of the Child (1989).

42. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paragraphs 196, 203, 204 and 219.

43. In accordance with the reasoning in the Human Rights and Equal Opportunity Commission report, Those who've come across the seas: detention of unauthorised arrivals, May 1998.

44. In assessing the balance, the best interests of the child must be the primary consideration.

45. UNICEF Australia draws particular concern to the situation of the asylum seekers involved in the "Pacific Solution."

46. See note 1.

47. Note UNICEF Australia's earlier objection to separation of family members, in the best interest of the child.

48. NZ may take in Nauru refugees, The New Zealand Herald, dated 10 April 2002 accessed from www.nzherald.co.nz/storydisplay.cfm?storyID=1294166&thesection=news&th 27/4/02; Calls for refugee review after UN rejects Tampa asylum seekers, The New Zealand Herald, dated 9 April 2002 accessed from www.nzherald.co.nz/storydisplay.cfm?storyID=1294016.

49. See http://www.refugeecouncil.org.au/newsApr2002.htm, accessed May 2002.

50. Including a report on the UNHCR website: www.unhcr.org, Watchdog slams Australian immigration detention centres, dated 5 March 2001. 

51. BBC news report dated 27 February 2002, regarding the UNHCR and Save the Children report, Sexual Violence and Exploitation: The Experience of Refugee Children in Guinea, Liberia and Sierra Leone.

52. Article 14(1) of the Universal Declaration of Human Rights provides that "everyone has the right to seek and to enjoy in other countries asylum from persecution."

53. As well as other children in immigration detention centres.

54. See note 8.

55. See discussion, 'Illegal refugees' or illegal policy?, J. P. Fonteyne, Refugees and the Myth of the Borderless World, National Library of Australia, Canberra February 2002.

56. Article 12, Convention on the Rights of the Child (1989).

57. See note 7.

58. Article 14(1), ICCPR provides: "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."