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Submission to the National
Inquiry into Children in Immigration Detention from
the Beijing Committee - Western
Australian Chapter
A Joint Committee of the International
Commission of Jurists WA Chapter and Women Lawyers Inc WA
About The Beijing Committee
- WA Chapter
1. In Beijing in
1995 the Australian government was one of 73 governments that made commitments
for national action during their plenary speeches at the Beijing Conference.
The Western Australian
chapter of the Beijing Committee is a joint initiative of the West Australian
chapter of the International Commission of Jurists and Women Lawyers Inc
(WA). It is chaired by Penelope Giles from Wickham Chambers, and is constituted
by District Court Judge Mary Ann Yeats, lawyers Anna Liscia, Gregory McIntyre,
Alisdair Putt and Megan Hoey, and Alison Gaines from the Law Society of
Western Australia.
The Committee aims
to monitor the implementation, by the State government, of the Beijing
Declaration, which has since become the benchmark by which various governments'
records on women and human rights has been measured.
Its current projects
concern the detention of women and children refugees in West Australian
camps, the effectiveness of stalking legislation, and the level of protection
extended to Western Australian residents with respect to female genital
mutilation.
The Fourth World Conference
on Women Beijing Declaration
2. We attach a copy
of the Fourth World Conference on Women Beijing Declaration for your reference.
In particular we refer to Article 8 where Australia affirmed its commitment
to:
The equal rights
and inherent human dignity of women and men and other purposes and principles
enshrined in the Charter of the United Nations, to the Universal Declaration
of Human Rights and other international human rights instruments, in
particular the Convention on the Elimination of All Forms of Discrimination
Against Women and the Convention on the Rights of the Child, as well
as the Declaration on the Elimination of Violence Against Women and
the Declaration on the Right to Development.
Among our commitments
as a nation, we have pledged to ensure the full implementation of the
human rights of women and of the girl child as an inalienable, integral
and indivisible part of all human rights and fundamental freedoms (Article
9). We have bound ourselves to:
- Ensure the full
enjoyment by women and the girl child of all human rights and fundamental
freedoms and take effective action against violations of these rights
and freedoms (Article 23);
- Encourage men
to participate fully in all actions towards equality (Article 25);
- Prevent and eliminate
all forms of violence against women and girls (Article 29);
- Ensure equal access
to and equal treatment of women and men in educational health care and
enhance women's sexual and reproductive health as well as education
(Article 30);
- Promote and protect
all human rights of women and girls (Article 31);
- Intensify efforts
to ensure equal enjoyment of all human rights and fundamental freedoms
for all women and girls who face multiple barriers to their empowerment
and advancement because of such factors as their race, age, language,
ethnicity, culture, religion, or disability, or because they are indigenous
people (Article 32);
- Ensure respect
for international law, including humanitarian law, in order to protect
women and girls in particular (Article 33).
3. Our submissions
address some of the issues raised by the first and third terms of reference
and may be broadly categorised as the legal and administrative framework
for dealing with child asylum seekers.
The Legal Framework
4. The Committee
is aware of the emerging international and domestic debate about the future
of the Refugee Convention and current global challenges. Nonetheless,
that debate is evolving and Australia must meet its international obligations
as they now stand. Australia cannot abrogate its responsibility to treat
asylum seekers justly and compassionately.
5. The government's
border protection legislation and excision legislation have drawn significant
criticism on the basis that the enactments undermine Australia's commitment
to international human rights obligations.
We have a number
of concerns with respect to the interaction of the laws [1]
for border protection and excision with the treaties:
- Australia is
at risk of breaching its non-refoulement obligations.
- Australia is at
risk of breaching the rights of asylum seekers to remain free from arbitrary
detention.
- No legal action
may be initiated against the officer concerned or the Commonwealth in
any case where people are restrained or detained under the detention
powers in the border protection legislation. Asylum seekers are thereby
denied access to Australian courts and judicial protection of human
rights should they wish to protest against their treatment by Australian
authorities while on board an ocean vessel.
- Any person defined
as an 'offshore entry person' under the excision legislation can no
longer make a valid application for a visa. The person is thereby denied
any right to apply for protection and cannot remain in Australia for
any reason. Again the judicial protection of human rights is denied.
- Any person believed
by a Commonwealth Officer to be attempting to enter an off-shore entry
place without a valid visa can be detained by the officer concerned
and restrained from entering the Australian migration zone and removed
from Australian territory. These persons are deemed to not be under
immigration detention and therefore have no right to seek legal advice
or assistance, which is otherwise available to those within the migration
zone. Such rights should be made available to all. The arbitrary manner
in which the excision legislation has now created two different classes
of asylum seeker- those entitled to have their human rights respected
and those who are not so entitled. [2] Asylum seekers
in the excised territories still fall within the international treaties
to which Australia is a signatory.
6. Of particular
concern is the increasing foreclosure of access to Australian courts to
asylum seekers. [3] When introducing the bill that became
the Migration Legislation Amendment (Judicial Review) Act (1998),
the Minister referred to the cost and futility of much of the Federal
Court litigation. It is the case that many applicants initiate appeals
with little understanding of legal principles and court procedures.
"Where
asylum seekers are often without legal assistance and have no grasp
of the language, let alone the legal principles in which the proceedings
are conducted, the process comes close to a farce. The counsel for the
Minister is often called upon to present the law for both sides. Although
there is a court interpreter provided, the submissions of the Minister's
counsel, supplied to an applicant before the hearing, may not be understood
by the applicant and if they have no lawyer may not even be translated
for them to comprehend. In these circumstances, an elaborate appeal
system becomes futile, and to provide the resources for the applicant
to be fully seized of the law and procedures would mean a large increase
in the budget, with the consequential argument that applicants would
be receiving a level of assistance certainly not available to Australian
residents. On the other hand keeping applicants in the dark about when
their applications will be resolved, how the legal system works, and
what is likely to occur to them in the end must increase tension and
suspicion leading to demonstrations and hunger strikes." [4]
7. Although the cost
and futility of many appeals are important issues for consideration, it
is no answer to allow refugee review tribunals (RRT) to determine questions
of life and death (in some instances) with no recourse to a court of law.
There is a perception in the legal community that the RRT has a reputation
for making adverse findings on little or no evidence. [5]
Further, it is believed that the government has considerable influence
over the composition of the RRT and similar bodies, and officer holders
hold short-term fixed contracts and do not have judicial independence.
These perceptions and criticisms may or may not be unfair and it is noted
that the RRT does make these types of findings when it has little independent
investigative capabilities and resources. It is often very difficult to
determine the veracity of a claimant's story, relating to countries where
there is limited information-gathering. Whatever one's position is with
respect to the RRT it is disturbing and unacceptable that the government's
intention is to circumscribe any judicial review of the administrative
bodies' decisions.
8. To abolish judicial
review entirely is irresponsible and may mean that some asylum seekers
are returned to their country of origin and are placed at serious risk.
An answer that may strike the appropriate balance may be to find an independent
authority that determines what matters may be granted a review hearing.
No doubt there will be a constitutional challenge to these provisions
but the outcome of judicial challenges cannot be predicted.
Guardianship of Children
9. The Committee
supports the release of unaccompanied minors and women with children,
to ordinary accommodation in the community.
10. Section 6 of
the Immigration (Guardianship of Children) Act 1946 states that
the Minister shall be the guardian of the person, and of the estate in
Australia, of every non-citizen child [6] who arrives
in Australia after the commencement of this Act to the exclusion of the
father and mother and every other guardian of the child, and shall have,
as guardian, 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 until the provisions
of this Act cease to apply to and in relation to the child, whichever
first happens.
In regard to non-citizen
children, section 5 of the Act allows the Minister to delegate his powers
and functions to any officer or authority of the Commonwealth or of any
State or Territory.
11. The detention
of any children and the release of unaccompanied children from detention
raise guardianship issues that have not been addressed by either the government
or shadow government. We understand that in December 1999 delegations
were given to the various State family services departments to exercise
the Minister of Immigration's guardianship powers yet many detained unaccompanied
minors have not been approached by these departments to apply for their
release on bridging visas although there is no shortage of persons ready
to accommodate them.
12. Apart from the
questions about the common law fiduciary duties of guardians, and the
potentials for conflicts apparent in the current arrangement, we are aware
that the information flow from Immigration Department to these State departments
about these children is poor. We are aware that the relevant Western Australian
body, the Department for Community Development, is seeking a legal opinion
from the Crown Solicitor's Office about its legal obligations to the children.
The guardianship status of the Minister and his power of delegation of
those functions are issues to be clarified as a matter of high priority.
Yours sincerely
Megan Hoey
The Secretary
For and on behalf of the
Beijing Committee - WA Chapter
Fourth World Conference on
Women - Beijing Declaration
Declaration
1. We, the Governments
participating in the Fourth World Conference on Women,
2. Gathered here
in Beijing in September 1995, the year of the fiftieth anniversary of
the founding of the United Nations,
3. Determined to
advance the goals of equality, development and peace for all women everywhere
in the interest of all humanity,
4. Acknowledging
the voices of all women everywhere and taking note of the diversity of
women and their roles and circumstances, honouring the women who paved
the way and inspired by the hope present in the world's youth,
5. Recognize that
the status of women has advanced in some important respects in the past
decade but that progress has been uneven, inequalities between women and
men have persisted and major obstacles remain, with serious consequences
for the well-being of all people,
6. Also recognize
that this situation is exacerbated by the increasing poverty that is affecting
the lives of the majority of the world's people, in particular women and
children, with origins in both the national and international domains,
7. Dedicate ourselves
unreservedly to addressing these constraints and obstacles and thus enhancing
further the advancement and empowerment of women all over the world, and
agree that this requires urgent action in the spirit of determination,
hope, cooperation and solidarity, now and to carry us forward into the
next century.
We reaffirm our commitment
to:
8.
The equal rights and inherent human dignity of women and men and other
purposes and principles enshrined in the Charter of the United Nations,
to the Universal Declaration of Human Rights and other international human
rights instruments, in particular the Convention on the Elimination of
All Forms of Discrimination against Women and the Convention on the Rights
of the Child, as well as the Declaration on the Elimination of Violence
against Women and the Declaration on the Right to Development;
9. Ensure the full
implementation of the human rights of women and of the girl child as an
inalienable, integral and indivisible part of all human rights and fundamental
freedoms;
10. Build on consensus
and progress made at previous United Nations conferences and summits -
on women in Nairobi in 1985, on children in New York in 1990, on environment
and development in Rio de Janeiro in1992, on human rights in Vienna in
1993, on population and development in Cairo in 1994 and on social development
in Copenhagen in 1995 with the objective of achieving equality, development
and peace;
11. Achieve the full
and effective implementation of the Nairobi Forward-looking Strategies
for the Advancement of Women;
12. The empowerment
and advancement of women, including the right to freedom of thought, conscience,
religion and belief, thus contributing to the moral, ethical, spiritual
and intellectual needs of women and men, individually or in community
with others and thereby guaranteeing them the possibility of realizing
their full potential in society and shaping their lives in accordance
with their own aspirations.
We are convinced that:
13. Women's empowerment
and their full participation on the basis of equality in all spheres of
society, including participation in the decision-making process and access
to power, are fundamental for the achievement of equality, development
and peace;
14. Women's rights
are human rights;
15. Equal rights,
opportunities and access to resources, equal haring of responsibilities
for the family by men and women, and a harmonious partnership between
them are critical to their well-being and that of their families as well
as to the consolidation of democracy;
16. Eradication of
poverty based on sustained economic growth, social development, environmental
protection and social justice requires the involvement of women in economic
and social development, equal opportunities and the full and equal participation
of women and men as agents and beneficiaries of people-centred sustainable
development;
17. The explicit
recognition and reaffirmation of the right of all women to control all
aspects of their health, in particular their own fertility, is basic to
their empowerment;
18. Local, national,
regional and global peace is attainable and is inextricably linked with
the advancement of women, who are a fundamental force for leadership,
conflict resolution and the promotion of lasting peace at all levels;
19. It is essential
to design, implement and monitor, with the full participation of women,
effective, efficient and mutually reinforcing gender-sensitive policies
and programmes, including development policies and programmes, at all
levels that will foster the empowerment and advancement of women;
20. The participation
and contribution of all actors of civil society, particularly women's
groups and networks and other non-governmental organizations and community-based
organizations, with full respect for their autonomy, in cooperation with
Governments, are important to the effective implementation and follow-up
of the Platform for Action;
21. The implementation
of the Platform for Action requires commitment from Governments and the
international community. By making national and international commitments
for action, including those made at the Conference, Governments and the
international community recognize the need to take priority action for
the empowerment and advancement of women.
We are determined to:
22.
Intensify efforts and actions to achieve the goals of the Nairobi Forward-looking
Strategies for the Advancement of Women by the end of this century;
23. Ensure the full
enjoyment by women and the girl child of all human rights and fundamental
freedoms and take effective action against violations of these rights
and freedoms;
24. Take all necessary
measures to eliminate all forms of discrimination against women and the
girl child and remove all obstacles to gender equality and the advancement
and empowerment of women;
25. Encourage men
to participate fully in all actions towards equality;
26. Promote women's
economic independence, including employment, and eradicate the persistent
and increasing burden of poverty on women by addressing the structural
causes of poverty through changes in economic structures, ensuring equal
access for all women, including those in rural areas, as vital development
agents, to productive resources, opportunities and public services;
27. Promote people-centred
sustainable development, including sustained economic growth, through
the provision of basic education, life-long education, literacy and training,
and primary health care for girls and women;
28. Take positive
steps to ensure peace for the advancement of women and, recognizing the
leading role that women have played in the peace movement, work actively
towards general and complete disarmament under strict and effective international
control, and support negotiations on the conclusion, without delay, of
a universal and multilaterally and effectively verifiable comprehensive
nuclear-test-ban treaty which contributes to nuclear disarmament and the
prevention of the proliferation of nuclear weapons in all its aspects;
29. Prevent and eliminate
all forms of violence against women and girls;
30. Ensure equal
access to and equal treatment of women and men in education and health
care and enhance women's sexual and reproductive health as well as education;
31. Promote and protect
all human rights of women and girls;
32. Intensify efforts
to ensure equal enjoyment of all human rights and fundamental freedoms
for all women and girls who face multiple barriers to their empowerment
and advancement because of such factors as their race, age, language,
ethnicity, culture, religion, or disability, or because they are indigenous
people;
33. Ensure respect
for international law, including humanitarian law, in order to protect
women and girls in particular;
34. Develop the fullest
potential of girls and women of all ages, ensure their full and equal
participation in building a better world for all and enhance their role
in the development process.
We are determined to:
35. Ensure women's
equal access to economic resources, including land, credit, science and
technology, vocational training, information, communication and markets,
as a means to further the advancement and empowerment of women and girls,
including through the enhancement of their capacities to enjoy the benefits
of equal access to these resources, inter alia, by means of international
cooperation;
36. Ensure the success
of the Platform for Action, which will require a strong commitment on
the part of Governments, international organizations and institutions
at all levels. We are deeply convinced that economic development, social
development and environmental protection are interdependent and mutually
reinforcing components of sustainable development, which is the framework
for our efforts to achieve a higher quality of life fo rall people. Equitable
social development that recognizes empowering the poor, particularly women
living in poverty, to utilize environmental resources sustainably is a
necessary foundation for sustainable development. We also recognize that
broad-based and sustained economic growth in the context of sustainable
development is necessary to sustain social development and social justice.
The success of the Platform for Action will also require adequate mobilization
of resources at the national and international levels as well as new and
additional resources to the developing countries from all available funding
mechanisms, including multilateral, bilateral and private sources for
the advancement of women; financial resources to strengthen the capacity
of national, subregional, regional and international institutions; a commitment
to equal rights, equal responsibilities and equal opportunities and to
the equal participation of women and men in all national, regional and
international bodies and policy-making processes; and the establishment
or strengthening of mechanisms at all levels for accountability to the
world's women;
37. Ensure also the
success of the Platform for Action in countries with economies in transition,
which will require continued international cooperation and assistance;
38. We hereby adopt
and commit ourselves as Governments to implement the following Platform
for Action, ensuring that a gender perspective is reflected in all our
policies and programmes. We urge the United Nations system, regional and
international financial institutions, other relevant regional and international
institutions and all women and men, as well as non-governmental organizations,
with full respect for their autonomy, and all sectors of civil society,
in cooperation with Governments, to fully commit themselves and contribute
to the implementation of this Platform for Action.
Border Protection (Validation and Enforcement Powers) Act 2001; Migration
Amendment (Excision from Migration Zone) Act 2001; Migration Amendment
(Excision from Migration Zone)(Consequential Provisions) Act 2001
See n 1
Migration Legislation Amendment (Judicial Review) Act (1998).
Robert Lindsay 'Who is a Refugee, How Are They Processed and the Government
Reforms" (2001); Barrister, Sir Lawrence Jackson Chambers, Perth
p. 7
See P Nygh "Recent Developments in Refugee Law" (2000) 26 AIAL
Forum 1-25;and for an analysis of the administrative system for refugee
determination see J McMillan, "Recent Developments in Refugee Law"
(2000) 26 AIAL Forum 26-32.
Defined in Section 4AAA of the Act.
Last
Updated 9 January 2003.