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Submission to the National
Inquiry into Children in Immigration Detention from
the Office of the Tasmanian
Commissioner for Children
Dear Sir/Madam
Submissions to
National Inquiry into Children in Immigration Detention
As Commissioner for
Children in Tasmania, my Office is set up under Part 9 of the Children,
Young Persons and their Families Act 1997 ("the Act"). The
Act is informed by the United Nations Convention on the Rights of the
Child, and has been in operation in Tasmania since 1st July 2000.
This Office is uniquely
placed to independently assess the situation of children in Tasmania with
respect to their health, welfare, care, protection, education and development.
Our advocacy and advisory functions under the Act allow us to assess if
the rights of all children in Tasmania with respect to their health, welfare,
care, protection, development (and education where they are under the
custody or guardianship of the Secretary) are protected and promoted.
This includes children in Tasmania on refugee status, whether accompanied
or not.
Tasmania has shown
legislative and regulatory compliance with every Article of the Convention
on the Rights of the Child (the Convention), as shown in the Report
this Office submitted to the Committee on the Rights of the Child. Our
compliance is the first step, and effective implementation is the next.
Tasmania as a State can work together with HREOC to improve the situation
for all children in Australia. Tasmania aspires to be a leader in the
field of protecting and promoting children's rights, and with respect
to the treatment of refugees, Tasmania as a community has a commendable
record for providing a 'safe haven' for refugees in need. This was demonstrated
recently in our assistance of Kosovo refugees. We have shown support for
refugees and their children. This is a commitment shown by the entire
State, from the Premier down to the community. Such a position is unique
in Australia and we have a reputation we can justifiably be proud of,
and is one that we wish to maintain, especially with regard to children.
Should any children
be discharged from immigration detention to Tasmania, this Office would
strongly advocate that they be treated in strict accordance with the Convention
on the Rights of the Child, the Children, Young Persons and their Families
Act 1997 and all other relevant legislation in Tasmania, taking their
the best interests into account. This is the minimum we would expect,
given that we have now demonstrated
to the United Nations Human Rights Commission, Tasmania's legislative
and regulatory compliance with every article of the Convention.
This position is
supported by the Commissioner for Children's Consultative Council (CCCC),
consisting of children and youth from age 8 to 18 from various backgrounds
and cultures. The CCCC meets regularly to discuss current issues of interest
to them, and they advise the Commissioner on the position of children
and youth in Tasmania. Some of the views of the Council are as follows:
- children in immigration
detention should be treated properly and humanely;
- they should be
assisted in accordance with their right of being innocent until proven
guilty;
- they have not
committed a crime to be detained;
- unaccompanied
minors appear to being punished for their parents matters;
- children are treated
as illegal immigrants which is unjust
These are also views
that this Office strongly advocates as it is a common law principle not
to detain those who are not suspected of committing a crime, or detaining
them and treating them as if they are guilty of a crime before they have
had the benefit of the due process of law. Proper procedures in accordance
with natural justice also appear to have been neglected for such children
in immigration detention. This country is committed to maintaining the
Rule of law, and this is not evident in the manner in which children (especially
unaccompanied minors) have been detained.
Policies and practices
affecting children in immigration detention, as well as those that govern
their discharge, should reflect the legal status of their not being 'prisoners'
convicted of criminal offences. They should instead be treated in accordance
with the Convention on the Rights of the Child, the Refugee
Convention and all other relevant international instruments that Australia
is a signatory to.
Best Interests
of the Child
Article 20(1) of
the Convention should be noted in particular. It states that:
A child temporarily
or permanently deprived of his or her family environment, or in whose
best interests cannot be allowed to remain in that environment, shall
be entitled to special protection and assistance provided by the State.
This Office advocates
that Article 20 is not restricted to children in the welfare system of
the States, but can be equally applicable to children in immigration detention,
as they are children deprived or their family environment. As such, they
are entitled to special protection and assistance, and should therefore
be treated accordingly. This is consistent with the concept of 'humane
governance'.
Furthermore, consistent
with Article 3 of the Convention on the Rights of the Child, this Office
strongly advocates that in all decision making processes relating to children
in immigration detention, their best interests be a primary consideration.
On their subsequent release into the community, whether they are accompanied
or not, their best interests with respect to their health, welfare, care,
protection, development and education must also be the paramount consideration.
We respectfully submit that the concept of 'humane governance' and consideration
of their best interests would require taking into account the reason that
they become refugees in the first place. Article 1(A)(2) of the Refugee
Convention is relevant in that it would be humane to give such children
the benefit of the doubt initially and consider that they undertook the
perilous journey to Australia on the grounds of:
fear
of being persecuted for reasons for 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 formal habitual residence
as a result of such event, is unable or owing to such fear, is unwilling
to return to it.
It is our respectful
submission that the Department of Immigration and Multicultural Affairs,
and detention and control authorities take the above definition into account
in the formulation of policies and practices relating to refugee children.
We are concerned to ensure that practices and policies do not violate
the above Articles in Conventions and have instead the effect of scapegoating
and demonising them, whether deliberately (See evidence to the Senate
Inquiry on "The Children Overboard" allegations) or inadvertently.
Discrimination
Article 2 of the
Convention on the Rights of the Child deals with this issue, and once
again, Tasmania has the most advanced legislation in this area in the
Anti Discrimination Act 1997. This Office is also in a position
to appraise and assess any discriminatory practices or policies of Government
Departments or any other person and would refer the matter to the Anti
Discrimination Office in Tasmania. Any such discrimination could impact
on the child's health, welfare, care, protection and development and so
could also be the subject of advice to the Minister under the statutory
function of this Office. This would be especially important if it such
discriminatory conduct is not in keeping with how we would like to be
viewed as a nation that gives everyone a 'fair go'. It is our respectful
submission that it would be discriminatory to treat child refugees in
immigration detention less favourably than children in the general community.
Even children on remand in Australia for alleged criminal offences are
given recognition of their legal status of being treated as innocent until
proven guilty. As stated above, policies and practices need to reflect
these principles.
Participation
Article 12 of the
Convention requires that a child who is capable of forming his or her
own views have the right to express those views freely in matters that
affect them, and to have these views taken into account. This Office would
respectfully submit that the fact that children refugees have risked their
lives to leave their countries of birth should be taken as an expression
of their views and wishes to leave their home country for fear of being
persecuted to seek safe home here. Their views should be taken into account
to enable them to be active participants in control of their own future.
In particular, unaccompanied minors must be given this opportunity to
the full, given that they have no adults to seek advice from. Due weight
should be given to their age and maturity, and a humanitarian response
should be reflected in decisions that are made after such consultation.
The right to family
life
This Office advocates
that compliance with Article 5 of the Convention, in relation to unaccompanied
child refugees, would require consideration of whether it would be in
their best interests to be placed in foster care type arrangements whilst
they remain in Australia outside immigration detention. Appropriate arrangements
should then be made to ensure that the child's cultural identity remains
intact. Where the child refugee is accompanied by family members, keeping
them together out of detention should be a paramount consideration in
their best interests.
Yours sincerely,
Patmalar
Ambikapathy
Commissioner for Children
Last
Updated 9 January 2003.