Australia is the only party to the Refugee Convention to adopt a policy of mandatory and indefinite detention of asylum seekers.
When a child (or any person) attempts to reach Australia and claim protection as a refugee, he or she is not violating any laws. Instead, asylum seekers are asserting a fundamental human right to flee persecution and seek protection outside their home state. In joining the Refugee Convention in 1954, Australia signalled to the international community its willingness to share responsibility for the protection of refugees and asylum seekers. That commitment applies, regardless of how or from where asylum seekers travel to Australia, or whether they arrive with a valid visa.
I was one of over 200 concerned Australians to make a submission to the Australian Human Rights Commission’s 2014 National Inquiry into Children in Immigration Detention. My submission highlighted the numerous human rights violations Australia is inflicting on child asylum seekers – among the most vulnerable people in the world.
Since the Keating government established mandatory detention of asylum seekers in 1992, successive Australian governments have abdicated their responsibilities to honour the rights of asylum seekers and refugees. As a teacher of international law and human rights in a law school, I find it exceptionally challenging to convince students of the value of human rights or the effectiveness of international law in this context. Australia’s international reputation and self perception as a responsible member of the international community are called into question by our treatment of these particularly vulnerable people. I believe that Australia takes advantage of the fact that international law is not automatically absorbed into domestic law in our system. We pay lip service to human rights standards at the international level and adhere to them at home only when considered politically expedient.
Australia is a party to three key treaties which guarantee human rights principles that are particularly relevant to child asylum seekers: the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966) and the Convention on the Rights of the Child (1989).
International Covenant on Civil and Political Rights (ICCPR)
Australia violates Article 7 of the ICCPR by inflicting cruel, inhuman and degrading treatment on child asylum seekers who are forcibly detained. The physical and psychological suffering of these children has been well documented, and is also apparent in the heart-wrenching drawings of children in immigration detention. Australia also violates Article 9 of the ICCPR by imposing an arbitrary mandatory detention policy on child asylum seekers. The foundation principle of the Refugee Convention is protection, and Australia arguably bears a particular obligation of protection towards asylum seeker children, yet they are forcibly detained with the aim of sending a deterrence signal to others who would seek Australia’s protection. Under Article 10 of the ICCPR, Australia is obliged to treat asylum seeker children humanely, especially while they are deprived of their liberty. Yet children in detention do not have access to a range of basic features of human dignity, including privacy, adequate health care, access to education and protection for their family life.
Australia has constructed a legal apparatus which functions to prevent asylum seeker children and their families from having access to the reasons why they may have been expelled from Australia or seeking adequate review of their claims. This violates Article 13 of the ICCPR, and more broadly the principles of natural justice and the rule of law. Also, in violation of Article 16, Australia refuses to accord proper recognition to asylum seeker children as persons before Australian law. This is particularly reprehensible considering the Australian government’s decision to manoeuvre asylum seeker children to the territory of other states (for example, the under-resourced states of Papua New Guinea and Nauru) and finance their indefinite detention there. The conditions in detention facilities, in Australia and particularly offshore, contravene Australia’s obligation under Article 23 ICCPR to protect asylum seeker families.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Many child asylum seekers travel towards Australia at the instigation of their parents, and as such are arguably being punished with detention based on their parentage. This contravenes Australia’s obligation under Article 10(3) of the ICESCR to provide special protection and assistance to children without discrimination. The United Nations High Commission for Refugees has determined that children in offshore immigration detention facilities face difficult conditions with inadequate access to recreation and education facilities. This violates Australia’s recognition of the right of all people to adequate standards of living, under Articles 11 and 13 ICESCR. It has been firmly established by medical experts that the practice of detaining asylum seeker children is highly damaging to their mental health, particularly considering the indefinite nature of their detention. Australia can only adequately meet its obligations under Article 12 ICESCR to protect the health of asylum seeker children by ending their detention and providing them with access to onshore health facilities.
Convention on the Rights of the Child (CROC)
Visitors to detention centres have observed children referring to each other by their Immigration Department-issued numbers rather than by their names. Australia is failing to respect the rights of all children to a name and nationality, in a manner which is dehumanising and violates Article 7 of the CROC. Further, detention and other immigration procedures which damage family unity and cohesion violate Australia’s obligation under Article 10 to enable children to remain with their families. The experience of mandatory and indefinite detention is detrimental to the capacity of children to play and enjoy leisure and recreation, which are essential developmental experiences for healthy children, and protected by Article 31 of the CROC.
According to Article 22 of the CROC, children who come into Australia as asylum seekers should have the same rights as children born in Australia. Australia fails to honour this right, not only by denying a wide range of rights to asylum seeker children, but by investing massive resources in preventing asylum seeker children from reaching Australian territory and the legal protections that can be claimed before Australian courts.
The way Australia treats child asylum seekers makes us an outlier in the international community. This was demonstrated by international reactions to two recent cases, in which the government returned a group of asylum seekers to Sri Lanka after “expedited processing” at sea, and in which a group of individuals and families was detained on the high seas for nearly a month until a High Court action forced the government to fulfil its assessment obligations. Our practices violate numerous international legal commitments which Australia has voluntarily assumed. By forcibly detaining innocent children, many of whom have already experienced terrible trauma, Australia causes unconscionable harm and shames itself as a nation.
Amy Maguire is a lecturer and undergraduate program convenor at Newcastle Law School, University of Newcastle. Amy’s fields of research include international law, human rights, Indigenous peoples, colonialism, refugees and climate change.