Australia holds about 800 children in mandatory closed immigration detention for indefinite periods, with no pathway to protection or settlement. This includes 186 children detained on Nauru.
Children and their families have been held on the mainland and on Christmas Island for, on average, one year and two months. More than 167 babies have been born in detention in the last 24 months. The The Forgotten Children: National Inquiry into Children in Immigration Detention report gives a voice to these children.
It is of profound concern that the government has recently introduced amendments to the Migration Act to redefine the definition of ‘refugee’ to meet government policy rather than international law.
It provides compelling firsthand evidence of the negative impact that prolonged immigration detention is having on their mental and physical health. The evidence given by the children and their families is fully supported by psychiatrists, paediatricians and academic research. The evidence shows that immigration detention is a dangerous place for children. Data from the Department of Immigration and Border Protection describes numerous incidents of assault, sexual assault and self-harm in detention environments.
Importantly, the government recognises that the fact of detention contributes significantly to mental illness among detainees.
There is nothing new in the finding that mandatory immigration detention is contrary to Australia’s international obligations. The Australian Human Rights Commission and respective presidents and commissioners over the last 25 years have been unanimous in reporting that such detention, especially of children, breaches the right not to be detained arbitrarily.As the medical evidence has mounted over the last eight months of the inquiry, it has become increasingly difficult to understand the policy of both Labor and Coalition governments. Two former immigration ministers, MP Chris Bowen and Social Services Minister Scott Morrison, agreed on oath before the inquiry that holding children in detention does not deter either asylum seekers or people smugglers. No satisfactory rationale for the prolonged detention of children seeking asylum in Australia has been offered.
Australia is unique in its treatment of asylum-seeker children. No other country mandates the closed and indefinite detention of children when they arrive on our shores. Unlike all other common law countries, Australia has no constitutional or legislative Bill of Rights to enable our courts to protect children. The Convention on the Rights of the Child is not part of Australian law, although Australia is a party. The convention is, however, part of the mandate of the Australian Human Rights Commission to hold the government to account for compliance with human rights.
The evidence documented in this report demonstrates unequivocally that prolonged detention of children leads to serious negative impacts on their mental and emotional health and development. This is supported by robust academic literature.
It is also clear that the laws, policies and practices of Labor and Coalition governments are in serious breach of the rights guaranteed by the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The United Nations High Commissioner for Human Rights also suggests in his opening address to the Human Rights Council that Australia’s policy of offshore processing and turning back boats is “leading to a chain of human rights violations, including arbitrary detention and possible torture following return to home countries”.
By July 2013, the number of children detained reached 1992. As the federal election was imminent, I decided to await the outcome of the election, and any government changes in asylum-seeker policy, before considering launching an Inquiry. By February this year, it became apparent that there had been a slowing down of the release of children. Over the first six months of the new Coalition government the numbers of children in detention remained relatively constant. Not only were more than 1000 children held in detention by February 2014, but also they were being held for longer periods than in the past, with no pathway to resettlement.
In these circumstances, I decided to exercise the commission’s powers under the Australian Human Rights Commission Act 1986 (Cth) to hold a national inquiry into children in immigration detention.
The evidence collected in this report is powerful. The overarching finding of the Inquiry is that the prolonged, mandatory detention of asylum-seeker children causes them significant mental and physical illness and developmental delays, in breach of Australia’s international obligations.
The findings include the following:
- The Minister for Immigration and Border Protection, as the guardian of unaccompanied children, has failed in his responsibility to act in their best interests.
- The Commonwealth’s decision to use force to transfer children on Christmas Island to a different centre breached their human rights.
- The numerous reported incidents of assaults, sexual assaults and self-harm involving children indicate the danger of the detention environment.
Since the inquiry was announced, changes have been made in government policy and practice, along with decisions of the High Court, that affect asylum-seeker children in detention. The commission is pleased to recognise these as being in the best interests of many asylum-seeker children.
It is recommended, among other things, that:
- All children and their families be released into community detention or the community on bridging visas with a right to work.
- Legislation be enacted to ensure that children may be detained under the Migration Act for only so long as is necessary for health, identity and security checks.
- An independent guardian be appointed for unaccompanied children seeking asylum in Australia.
- Legislation be enacted to give direct effect to the Convention on the Rights of the Child under Australian law.
- A royal commission be set up to examine the continued use of the 1992 policy of mandatory detention, the use of force by the Commonwealth against children in detention and allegations of sexual assault against these children and to consider remedies for breach of the Commonwealth’s duty of care to detained children.
It is troubling that members of the government and Parliament and departmental officials are either uninformed, or choose to ignore, the human rights treaties to which Australia is a party. The High Court of Australia in Teoh has confirmed that, when making decisions that affect children, government officials should take account of the rights guaranteed by the Convention on the Rights of the Child.
My hope is that the evidence detailed in this report will prompt fair-minded Australians, members of parliament and the federal government to reconsider our asylum-seeker policies and to release all children and their families immediately, or as soon as practical.
It is of profound concern that the government has recently introduced amendments to the Migration Act to redefine the definition of “refugee” to meet government policy rather than international law. It is also proposed that people may be removed from Australia under the act even if this does not comply with Australia’s international non-refoulement obligations. If passed, this will be a rare and internationally embarrassing instance in which Australia has explicitly declared that its laws remain valid, even if they violate international law.
It is imperative that Australian governments never again use the lives of children to achieve political or strategic advantage. The aims of stopping people smugglers and deaths at sea do not justify the cruel and illegal means adopted.
Australia is better than this.
As the arrival of asylum-seeker children by sea without visas has ended for the moment, it is time to refocus on the plight of the 800 children who remain in Australian detention centres and on Nauru.
Australia should return to its historical generosity of spirit by welcoming to our shores those who seek our protection from conflict and persecution.
Gillian Triggs is the president of the Australian Human Rights Commission. This is an edited version of the Foreword to The Forgotten Children: National Inquiry into Children in Immigration Detention.