Detention of children?

Kasey Tyler is the Senior Policy Advisor to the Children's Court of Victoria and a former student of St Pius X, Adamstown and St Francis Xavier's College Hamilton. At the time of the year when children are often the focus, she reflects on how the world has addressed matters relating to asylum seeking children.

Detention of children?

Do our philosophical beliefs really transfer to our treatment of others?


One of the most striking and well known passages of the Bible, recounted in both Matthew 19:14 and Mark 10:13, is Jesus saying to his disciples “Let the little children come to me, and do not hinder them, for the kingdom of heaven belongs to such as these...”.


I often reflect on this passage when I contemplate Australia’s treatment of children – both those born into our community and those that arrive under more adverse circumstances – and how, as a community, we can translate this philosophy into meaningful response to the suffering of children. This article will reflect on how the world has addressed matters relating to asylum seeking children and whether the world’s focus on this as a logistical challenge, rather than an individual trauma, has removed the person from the problem.


International treatment of children as asylum seekers and refugees


In the 21st century children are considered rights bearers and individuals. This was not always the case as historically children were regarded as property or as potential adults needing protection. When members of the United Nations negotiated the Refugee Convention in 1951, for example, discussion that focused on the interests of children was limited to issues that affected their parents (generally the father) or the state. It is notable, however, that during these negotiations representatives of the Holy See argued for member states to take particular responsibility for those who required special protection, specifically unaccompanied children and young women. Unfortunately these extra protections were not translated into the final document.


Despite decades of progress, and the recognition of the international community of the unique rights, needs and vulnerabilities of a child the Refugee Convention has yet to be updated to adequately recognise and protect the asylum seeking and refugee child[1]. Both adults and children must seek to satisfy the same criteria to prove their refugee status.


As a result, when looking to protect the interest of asylum seeking children, it is usual for the adult-centred Refugee Convention to be bypassed for the protections granted by the most popular piece of international law - the Convention on the Rights of the Child (CRC) 1989. Only two states in the world have not pledged to implement this Convention for the protection of children – Somalia and the United States of America.


The CRC specifically addresses circumstances where a child is seeking, or has been granted, refugee status (Article 22). The CRC requires a state to take a child centred approach by considering what the best interests and future needs of each individual child is when making decisions that affect them. Asylum seeking and refugee children must be afforded the same human rights granted to other children who live in the country. This can include complementary forms of protection, such as trauma counselling and an independent legal advocate, as well as the rights Australian children take for granted, such as access to education and health services.


Despite the strengths and almost universal popularity of this Convention, refugee and asylum seeking children remain vulnerable to the way in which the CRC protections are translated into domestic law.


Is Australia meeting its obligations to asylum seeking and refugee children?

The United Nations is sometimes referred to as a “toothless tiger”. This is because, although they can encourage countries to honour their promise to the international community, it has no actual power to ensure that commitment is implemented. The United Nations has expressed concern on multiple occasions that Australia is not fulfilling its promises to the international community with respect to asylum seeking children.


Australia responded to its international obligation to implement the Refugee Convention by creating the Migration Act 1958 (Cth). However, since 1992 this legislation has subjected asylum seekers who arrive off-shore, including children, to mandatory detention in direct contradiction of the CRC and various other international instruments.


In addition to detaining all asylum seeking children, Australia has nominated the Minister for Immigration, the same person who authorises the detention of refugees and is the final decision maker in visa applications, as the guardian of unaccompanied and separated children. Australia retains this policy despite international guidelines requiring an independent guardian with childcare qualifications to be appointed for unaccompanied and separated children. In addition, the Australian Human Rights Commission has reported insufficient resources in the Department of Immigration to support unaccompanied minors which has resulted in further breaches of rights, including children being interviewed without an independent advocate and being without a constant carer (2010)


The United Nations Committee that oversees the CRC has expressed concern regarding Australia’s laws regarding children in detention. Within Australia in 2004, the then Australian Human Rights and Equal Opportunity Commission conducted a national enquiry on the effects of detention on children in mandatory detention entitled A Last Resort? The report concluded that Australia’s immigration detention system was inconsistent with the CRC and children in detention were at ‘high risk of serious mental harm’[2]. Many other advocacy groups seek to continue draw attention to an issue where the vulnerabilities of the individual make it almost impossible to make their own voices heard.


Can we do better?

Thankfully, there have been some improvements in the treatment of refugee children in Australia[3] including a new government policy called ‘New Directions in Detention’[4] and an amendment to the Migration Act stating that detention is to be used only as a last resort. However, as of July 2012, Australia has 1208 children in immigration detention as reported by the Department of Immigration and Citizenship.


The CRC seeks to give children a voice in their own lives, it is a complex system of domestic policy, legislative application and, where applicable, judicial review,  that will ensure their small voices can be heard.


What next?

International law does not in itself have the capacity to inspire immediate change or have the authority to prevent State parties from acting outside its commitment to the Convention. Instead, its power is as the source of a single point to which all interested parties, including interests groups, political groups and individuals, can look to insist their own government act in a way consistent with its pledge to the international community and to a common human standard.


As Australians we may wish to reflect on how the words “Let the little children come to me” may apply to us as our representatives resists our obligation to keep Australia’s commitment to the international community by translating the CRC protections into domestic law.


[1] In the most simplest terms, an asylum seeker is a person claiming asylum and a refugee is a person who’s asylum seeking claim has been accepted.


[2] HREOC, ‘The National Inquiry into Children in Immigration Detention: A Last Resort?’ 2004


[3] Zifcak, S. Above at no. 136 3.


[4] Minister Chris Bowen, 'New Directions in Detention - Restoring Integrity to Australia’s Immigration System' (Canberra, Australia. 29 July 2008)

Aurora Facebook Ad

Share Aurora Article

Aurora on Twitter