children rights

Children in detention

This month’s newsletter addresses the issue of ‘Children in Detention’. Recently, the Australian Human Rights Commission released a report, The Forgotten Children. This was a national inquiry into the treatment of children in mandatory detention, and whether such treatment accorded with Australia’s human rights obligations.

The facts, as published in the report, paint a picture of severe neglect, human rights abuses and general lack of concern for child welfare. These findings form the basis of this month’s issue.

Children in detention – an overview

Danger in Detention

The Australian Human Rights Commission (AHRC) reported in November 2014 that there are over 800 children kept in mandatory immigration detention centres.

The AHRC has emphasised that these detention centres are a dangerous and unsafe environment for children to live.

Such a statement is neither an exaggeration nor politically biased: it is a fact. There is undeniable evidence to suggest that detention centres have severe effects on the physical, psychological and emotional wellbeing of children.

The AHRC stated in the report ‘The Forgotten Children’ (the AHRC Report) that the children detained on Nauru Island are currently experiencing an insufficient education, with a lack of books, tables and chairs and paper and pens.

Children are not provided with the appropriate clothing and are wearing long sleeve shirts in temperatures reaching 45 to 50 degrees.

Most significantly, there has also been evidence from staff working in Nauru detention centre of incidents of harassment, bullying and abuse.

For instance, in November 2013, a 16 year old boy was allegedly sexually assaulted by a cleaner, in view of security staff. Such an occurrence is not an isolated incident. Indeed, data from the Department of Home Affairs reveals that there have been numerous incidents of assault, sexual assault and self-harm among children.

These are fundamentally traumatic events that can be severely detrimental to a child’s development, ensuring that children remain affected long into their adult life.

Asylum-seeking children: We are not criminals…

The AHRC questioned children about the impacts of detention on their lives after they had been released into the Australian community.

Rahim from Afghanistan arrived on Christmas Island and was detained for a year when he was 17. He said that immigration detention had ruined him physically and mentally. “I had dreams”, he told the AHRC. “I had wishes, I had desires for my future. [But] I was seeing only the darkness around me… As a refugee I want to say we are not the criminals.”

Mental health experts report that detention has “undeniable immediate and long-term mental health impacts on asylum-seeking children and families”.

Troubling Effects of Detention

Professor Louise Newman reported that she is currently treating adults who she met as children in detention in the period 2000 to 2005. “I treat several people who I first met during the first round of detention as children, who have ongoing post traumatic symptoms and preoccupations…classical symptoms of having nightmares memories and recollections of things that happened to them that still remain troubling. Some have quite marked depression.”

It is clear that the consequences of detention can be long term, impacting on former detainees’ lives and relationships.

Detention can both exacerbate existing physical and mental health problems in children and create new problems. The longer that children are detained, the more likely they are to suffer the effects of detention. On Nauru Island there is currently no time limit on how long children can be detained for.

Act now

The AHRC has set out recommendations to the Australian Government advising that all children and their families be released into community detention or the community on bridging visas with a right to work. Additionally it is recommended that no child be sent offshore for processing unless it is clear that their human rights will be respected.

The AHRC have urged the Government to never again use the lives of children to achieve political or strategic advantage.

Lauren Lamarque

Australia’s international obligations

Preserving the rights of Children in detention

It is well accepted within international law that children, given their inherent vulnerability and lack of self-reliance, require special protection.

Of the various international instruments which are concerned with protecting child welfare, none is more fundamental than the United Nations Convention on the Rights of the Child (CROC).

The CROC entrenches a number of rights relating to the treatment, education and basic needs of children, which all signatories are obliged to uphold.

Whilst Australia is a signatory to this convention, its commitment to subjecting child asylum seekers to mandatory detention casts serious doubt to its ability to meet its international obligations. This is because mandatory detention essentially puts the lives of those children on hold.

It should be emphasised that as a signatory to the CROC, Australia is obliged to uphold the rights of all children within its jurisdiction. As such, Australia maintains an obligation to preserve the rights of children in detention.

Children in mandatory detention: Violation of the CROC

The Australian Human Rights Commission has emphasised how subjecting children to mandatory detention is clearly in violation of the CROC. In particular, it breaches Article 16(1), which provides that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

Additionally, the current state of the detention centres also breaches Article 34, which provides that parties to the convention must undertake to protect children from all forms of sexual exploitation and sexual abuse.

The inherent tragedy of these circumstances when one recognises that out of the total number of children being held in detention, 153 are babies, 204 are pre-schoolers (aged 2 to 4 years old), and 336 primary school aged children. In addition, 128 children have been born in detention.

Migration Law Framework affecting refugee rights

However the problem goes far beyond the conditions found within migration detention centres. Instead, this can be regarded as an issue relating to the nature of Australia’s migration law framework.

When one considers the centrepiece of Australia’s migration legislation, the Migration Act 1958 (Cth) (Migration Act), along with its legislation surrounding child refugees, Immigration (Guardianship Children) Act 1946 (Cth) (IGOC), one notices that one necessarily contradicts the other.

The central problem is the conflict between the Immigration Minister’s under s 6 the IGOC Act and the Minister’s duties under the complicated matrix of the Migration Act.

Whilst under the former, the Minister retains a “responsibility as guardian” in relation to unaccompanied/separated minors, he is also required to act as their “prosecutor, judge and gaoler” under the latter.

This conflict creates significant ambiguity in relation to the rights of child asylum seekers.

Scholars have noted that the central emphasis of the Migration Act is the protection of Australia’s borders, rather than the preservation of refugee rights.

For instance, recent amendments to the Migration Act ensure that asylum seekers that arrive without adequate documentation in Australia’s states and territories have been ‘excised from the migration zone and are prohibited from applying for protection visas in Australia.

According to Mark Evenhuis, the disproportionate emphasis placed on border protection (as opposed to child or refugee rights) ‘underpins an expansive concept of persecution’ in Australian migration law.

In conclusion, it is evident that Australia’s current legislative framework surrounding asylum seekers does not accord with international law.

In failing to do so, children seeking asylum are placed in a position where they are subject to mistreatment and abuse. Ideally, Australian migration law should reflect the notion that all people have a right to seek asylum and abolish the practice of mandatory detention.

However at the very least, there must be a change to ensure that Australia’s deterrent measures towards refugees and asylum seekers do not ‘override the needs of the embodied child.’

As such, amendments could be made to ensure that child refugees are provided with adequate care and protection as they attempt to seek refuge in Australia. Such change is justified on humanitarian and ethical grounds, as well as on the basis of international law.
Ariza Arif