By Lydia Jebakumar. This piece is part of our September focus on Women’s Rights. See all of this month’s articles here.
“Detention is the deliberate policy of the Australian Parliament, repeatedly affirmed. In default of a constitutional basis for invalidation, it is the duty of the court to give effect to the Act, whatever views might be urged about the wisdom humanity and justice of that policy…”
Despite official government policy announced in 2008 that children and their families will no longer be held in detention centres, mandatory detention remains a cornerstone of the Australian approach to unauthorised arrivals in excised offshore places. In 2012, over a thousand women and children remain in immigration detention for increasingly prolonged periods and the reopening of centres in Nauru and Manus Island render indefinite and mandatory detention a real and likely outcome.
Australian immigration law and constitutional discourse has frequently failed to accord attention to the particular needs and vulnerabilities of child asylum seekers, rendering them effectively invisible on the legal landscape.
This is particularly worrying in light of the link repeatedly shown between time spent in detention and declining mental and developmental wellbeing, together with its lingering long-term effects which support the notion that “detention … is never in the best interests of the child”. The statement of one unaccompanied minor – “I am totally broken and I feel I will be in this cage forever” – illustrates the fashion in which the detention environment inflicts further trauma and suffering upon children who have already come to embody it in many ways directly as a result of their immigration experience. The precarious nature of their situation is compounded by the fact that Australian immigration law and constitutional discourse has frequently failed to accord attention to the particular needs and vulnerabilities of child asylum seekers, rendering them effectively invisible on the legal landscape.
Gender guidelines issued by the Refugee Review Tribunal (RRT) and Department of Immigration and Citizenship (DIAC) attempt to make decision-makers sensitive to, and aware of, specific forms of violence and persecution affecting women. However, the specific needs of women, who are a minority in detention centres, are overlooked.
Guardianship issues and the Courts
“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…”
While Australian immigration law may make no distinction between adults and children, guardianship laws do confer special protection on children whether in detention or released into the community, through the requirement they must have a legal guardian. In spirit and in form the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) attempts to incorporate the care and assistance principles contained in the Convention on the Rights of the Child (CRC) into Australian domestic law. Although section 6 of the IGOC Act provides the Minister “shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child” it does not provide any guidance for these rights, powers and duties. Justice North of the Federal Court, in attempting to give some meaningful content to the role, suggested the concept of guardianship includes the obligation to ensure the fundamental human rights set out in the CRC. Article 18 (1) of the CRC states “the best interests of the child will be the legal guardian’s basic concern”, suggesting the best interests of the child should not merely be a primary consideration for the guardian but their paramount concern.
…mandatory detention is considered the rule and not a “last resort”.
This creates a conflict of interest for Minister Chris Bowen, whose protective role under the IGOC Act is in stark contrast with the obligations and powers conferred by the Migration Act 1958 (Cth), which casts him simultaneously as prosecutor, judge and jailer. The tension between these competing and contradictory roles was evident in the case of X v Minister for Immigration, where Bowen was found in breach of his duty as guardian, but his powers under the Migration Act meant there was no enforceable obligation to feed, house or maintain the children. Similarly, in the case of Odihambo, the court acknowledged real possibility for conflict in the Minister’s roles. In spite of this, the court held the IGOC Act did not qualify the duties imposed by the Migration Act and refused to read the Migration Act so that it complied with obligations assumed by Australia as signatory to the CRC and other international instruments. In the case of Jaffari, counsel had more success when Jaffari indicated his client had not been notified because provisions of the Migration Act, requiring physical delivery, had not been complied with. The issue with reducing the claims of a child to pure interpretation of statue is that the relief afforded is narrow and generally confined to that one litigant; and subsequent amendments to legislation continue to leave other children in a precarious situation.
These cases appear to support the notion that the Minister’s role as guardian is a nominal one with very little practical significance for the migrant child in need of protection. Crucially, a guardian is absent during much of the immigration process, leaving the unaccompanied child to navigate significant steps, such as the entry interview, on their own. The decision in Plaintiff M168/10 and Ors v Commonwealth seems to confirm this further, as it was held failure to release the children into the community did not amount to a breach of the Minister’s duty of care according to section 6 of the IGOC Act. The court would not compel the Minister to exercise a discretionary power of release even where continued detention involved a serious risk of psychological and other harm and alternatives to detention were readily available. This approach reveals the limited way in which Australia’s obligations under the CRC are implemented through the guardianship act, and suggest the policy announcement made by Minister Bowen to move children into community detention still remains regulated by an overarching scheme where mandatory detention is considered the rule and not a “last resort”.
Given the limited protection unaccompanied minors can derive from the Minister as their guardian, the court in B & B v MIMIA ordered the release from detention of the five Bakhtiyari children. Justice Nicholson and Justice O’Ryan allowed the court to order their release where that detention was unlawful. Justice Ellis on the other hand argued the subject matter of order for release of children was not sufficiently connected to the constitutional powers of marriage and divorce, depriving the court of jurisdiction to order releases; but allowing them to deal with matters relating to the treatment and care of children held in detention. The court in Re Woolley followed Justice Ellis’s reasoning, holding that any parens patriae jurisdiction enjoyed by the court was subject to clear and valid provisions of the Migration Act which prevented the release, even by a court, of an unlawful non-citizen from detention unless they had been granted a visa.
A situation where the Minister for Immigration is both the “detainer” and the guardian represents a serious and unacceptable conflict of interest…
The court has been willing to add some meaning to the Minister’s rather empty role as guardian for unaccompanied minors in the context of decisions made to remove a non-citizen child from Australia. In that case, the High Court held section 6A (1) of the IGOC Act requires written consent of the Minister accompanied by reasons for the decision, which would then be subject to judicial review. The Minister is not able to give valid consent unless satisfied the removal would not be prejudicial to the interests of the child, which may be difficult to establish where it involves removal to a “third country”, Malaysia, which is not party to the Refugee Convention. The government has responded by abolishing the requirement of writing, allowing unaccompanied minors to be sent to Nauru without review or a guardian – once again privileging border control and deterrence over a child’s best interests.
These cases particularly highlight the tension between the Minister’s obligations under the IGOC Act and the Migration Act, and demonstrate the need for an independent guardian who can more adequately serve the interests of unaccompanied minors and fulfil Australia’s obligations under international law. A situation where the Minister for Immigration is both the “detainer” and the guardian represents a serious and unacceptable conflict of interest undermining the unaccompanied child’s right to protection and participation in proceedings.
International Human Rights Law and children and women in detention
Although Behrooz tends to suggest the impact of conditions of detention will have no effect on its legality, Justice Gummow in Woolley conceded indefinite mandatory detention could become unlawful if conditions were so harsh, inhumane and degrading that the purpose of the detention went beyond what is considered permissible. While Chief Justice Gleeson claimed it “impossible to identify the criterion by which the severity of the application” altering the character of detention would be measured, Tobin suggests the prohibition against torture, cruel, inhuman and degrading treatment provides a clear basis on which to assess the severity of the conditions of detention. Children are necessarily more vulnerable to the effects of torture as they are in the critical stages of physical and psychological development. As Justice Kirby stated in Woolley: “It is inescapable that the lengthy detention of a child, necessarily in a state of personal development, impinges adversely on the physical, intellectual and emotional advancement of a child to some degree”. Viewed in this context, reports that over 80 per cent of the 66 children detained in Leonora in 2010 had been there for longer than three months and 50 per cent six months are particularly worrying, as is the prospect of indefinite detention under the revisited Pacific Solution.
The harsh conditions prevailing in Australia’s detention centres raise questions about Australia’s compliance with a range of international obligations including article 37 (a) of the CRC, article 7 of the International Convention on Civil and Political Rights (ICCPR) and article 2 of the Conventional Against Torture. The conditions are also unlikely to foster the health, self respect and dignity required to ensure recovery from past torture and trauma in accordance with art 39 of the CRC. The detention environment infringes the prohibition against torture or cruel, inhuman or degrading treatment through violations of the economic, social and cultural rights enshrined in the CRC: such as the highest attainable standard of health, a standard of living adequate for physical, mental, spiritual, moral and social development, and the right to education.
The experience of many refugee children detained by the Australian government amounts to, if not torture, then cruel, inhuman or degrading punishment.
Such basic needs are not being met in the detention environment, as evident in the statement by an Afghani minor that “they are keeping me alive physically, but mentally and spiritually they are killing me.” Lengthy periods of detention and uncertainty and delays surrounding the outcome of visa applications inflict considerable trauma upon all detainees, especially unaccompanied children. A caseworker at the Refugee Advice and Casework Services (RACS) reported her 16-year-old client had been placed on antidepressants and had attempted suicide after further delays in the processing of his visa application. In addition, a report compiled by Chilout’s visit to Leonora revealed that while primary aged children had previously been allowed to attend a local school, teenagers detained there are no longer afforded the opportunity to do so. McBride suggests such deprivations of economic, social and cultural rights, experienced through the heightened vulnerability of childhood, may amount to torture where “Inadequate or incompetent care by the very institutions that are supposed to help those who are weak emotionally or mentally could well be degrading, and lead to the infliction of severe mental or physical suffering”. The experience of many refugee children detained by the Australian government amounts to, if not torture, then cruel, inhuman or degrading punishment.
…detainees had to earn the right to shower by completing certain jobs that were often manual in nature and could only be completed by men.
Conditions in detention could also have a disproportionately negative effect on women. While they make up at least half of the world’s refugees, only a minority of asylum seekers who reach the West are female. For example women account for approximately 8 per cent of the detainee population in Villawood. The particular needs of women are easily overlooked and a lack of gender sensitivity often compounds the torture and trauma suffered in their country of origin. Lack of staff and resources in Australian detention centres may result in limited shower and toilet facilities. Zurek reports in one centre, detainees had to earn the right to shower by completing certain jobs that were often manual in nature and could only be completed by men. A shortage of female staff could also mean male guards were employed in female areas, creating potentially humiliating or shameful situations. One woman explains that when a woman needed sanitary products the guards would “be telling everybody. They would be yelling at her and saying this when everybody was in the room” . Mixed accommodation arrangements also created real fear of harm amongst detainees; 15-year-old Halimi reports being afraid to go the toilets at night: “I lived with lots of single men and they are very bad man … they are shouting … use bad words…”
The detention of children in this situation appears arbitrary and deeply problematic, as while detention is not in the best interests of the child neither is being separated from a parent.
While the High Court has held conditions of detention are insufficient to nullify the legality of immigration detention, when determining whether a law is punitive in nature it is necessary to look beyond its stated purpose to its objective effects and practical operation. In Woolley, the prolonged detention of four Afghani children for three years was not considered enough to convert authorised detention into punishment. However, in the wake of a return to the Pacific Solution, we desperately need to recognise that certain groups such as children are more vulnerable to particular forms of torture or degrading treatment.
Conclusion: “No Advantage” – Leaving Children and Women in the Dark?
Tobin acknowledges domestic and international law have been treated as two separate rather than interrelated fields in the migration discourse, expressed in Justice McHugh’s statement in Al Kateb that “It is not for courts … to determine whether the course taken by Parliament is unjust or contrary to basic human rights – [it] is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution”. The majority judgement in Al Kateb suggested the administrative purpose of detention was not exhausted in the case of a failed asylum seeker, even when there was no real likelihood or prospect of removal in the foreseeable future.
perhaps it is time to “bring international law home” and enforce its fundamental principles to question the validity of the mandatory detention regime as it currently operates.
The apparent authorisation of indefinite mandatory detention is worrying, particularly as it can apply equally to children. The recent case of Plaintiff M47 deals with the indefinite detention of genuine refugees subsequently issued with an adverse ASIO security assessment. The detention of children in this situation appears arbitrary and deeply problematic, as while detention is not in the best interests of the child neither is being separated from a parent. In such a context, perhaps it is time to “bring international law home” and enforce its fundamental principles to question the validity of the mandatory detention regime as it currently operates.
While parliament seeks to restrict judicial review of its detention regime through offshore processing, courts should not voluntarily restrain themselves or disregard international standards when making decisions affecting a group as vulnerable as asylum seekers.
Lydia Jebakumar is currently studying Law and Global Studies at Sydney University, and recently completed an internship at the Refugee Advice and Casework Services (RACS).