Still waiting for life to begin

The phenomenon of child refugees is an unhappy constant in human history, although the modern iteration of the child asylum seeker has had some novel features for Australia. In recent years, the number of children seeking asylum alone or in the company of family members has risen sharply and the routes they have taken to travel to Australia have become increasingly long and dangerous.

By Mary Crock and Hannah Martin

Image of refugee children

Credit: iStock

More troubling still is the fact that more children than ever are being held in immigration detention. Overlaying already bad practice is a new ‘no advantage’ test which operates to prolong time spent in detention and to dramatically reduce the entitlements of asylum seekers faced with years living on temporary visas carrying no rights to work or family reunification.

Few issues provoked as much public debate and communal angst as that of children in immigration detention in the mid-2000s. The campaign to free the children was spearheaded by lawyers and advocates who prosecuted a series of cases in the High Court and other forums, arguing that Australia’s laws and policies were either unlawful under Australian law or in breach of Australia’s obligations under international law.

The High Court provided no succour for any of the detainees - adult or child. Indeed, it seems that lawyers all but exhausted the options for arguing against the detention of non-citizen children. The law still provides that no matter how damaging detention may be to mental and physical health, mandatory immigration detention is valid for the purposes of Australia’s Constitution.

In the absence of legal redress using arguments of constitutional and administrative law, the Australian Human Rights Commission took up the fight. Its National Inquiry into Children in Immigration Detention in 2004 made a conclusive case against mandatory detention of children as a matter of both international law and basic human decency. Finally accepting the imperative of Article 37 of the Convention on the Rights of the Child, the government responded in 2005 by amending the Migration Act to provide that children should only be detained as a measure of ‘last resort’.

The Minister for Immigration was empowered to make a ‘residence determination’ which allows a person to be held in community detention. The changes were a step in the right direction, but a very timid step, for the simple reason that the Minister’s power to release children was expressed as a non-compellable, non-reviewable power. In effect, this has made the provision unenforceable at law. Successive Ministers have made pronouncements underscoring a desire to see children released from detention: in 2008, Minister Chris Evans and in May 2013 Minister Brendan O’Connor issued statements to this effect.

While repeated claims have been made since 2005 that ‘no children are detained under the Migration Act’, few people are persuaded that this is true in practice. While residence determinations have been and are being used to see families and children released into the community, most children travelling to Australia in search of protection as refugees are still taken into immigration detention as a default measure. The claim that no child is in detention is based on the fact that children are being housed in places referred to as ‘Alternative Places of Detention’ or APODs. The facilities converted for use as APODs include demountable housing (on Christmas Island), hotels and other residential buildings. The problem is that persons kept in these places are not free to leave or to move about. Indeed, in many cases the families placed in APODs have access to fewer facilities than they would in a formal detention centre.

The truth is that the number of children in immigration detention - viewed in terms of restraint on personal liberty - has skyrocketed since 2008. By early 2013, 7000 asylum seekers were living in detention (down from more than 10,000 in December 2012). Of these, 1062 were children living in immigration detention facilities and APODs. A further 946 were living in the community under residence determinations. To these figures one must add the 34 children who are not included in the Australian statistics because they are held outside Australia’s jurisdiction, but entirely at its behest, in a ‘Regional Processing Centre’ on Manus Island, Papua New Guinea. The conditions in which these children are being held would make a crow blush.

On 7 May 2013, Minister Brendan O’Connor announced that asylum seeker families would be released into the community on bridging visas - but only after spending four months in APODs. We can put to one side the inordinate length of such detention (in Europe the norm is closer to six weeks’ detention for health, character and identity checks). The most alarming aspect of the announcement is that Curtin detention centre in the remote Kimberley region and Wickham Point near Darwin are to be reconfigured as APODs for children and families.

As Human Rights Commissioner (and former Dean of Sydney Law School), Professor Gillian Triggs has been quick to point out, the features of these centres most damaging to children cannot be changed. These are the geographical isolation, the physical harshness of the climate and the inaccessibility of the centres to support services. The view from inside is as hopeless and soul-destroying to young lives and futures as has ever been the case.

After years of public outcry, how can Australia still be acting in such disregard of its international legal obligations and of basic precepts of human rights? It is now indisputable that detention, particularly long-term and indefinite detention, does great damage to children. Is the still-harsh effect of Australia’s immigration policies on children the product of shortcomings in Australia’s legal framework or have Australia’s lawyers simply failed to explore and invoke the protective force of the law as it should apply to refugee children?

Australia’s legal framework certainly could do more to recognize and protect children. In its 2012 Concluding Observations on Australia, the UN Committee on the Rights of the Child noted its deep concern and urged Australia to reconsider mandatory detention and to ensure that the incarceration of refugee children is subject to time limits and judicial review. The Committee noted that Australian law still fails to acknowledge that children are entitled to special treatment simply because they are children.

Asylum seeker children are not being detained because they pose health risks or threats to national security. They are incarcerated to send a political message that asylum seekers arriving by boat without visas are unwelcome. Blind acceptance of deterrence theory has left many people thinking that the detention of men, women and children is a (regrettable) necessity.

The simple truth, borne out in many refugee receiving countries around the world, is that detention is not a necessity. Nor has it ever worked as a deterrent. The surge in arrivals that has occurred since the reopening of Nauru and Manus Island is but the most recent manifestation of this truth. In fact, the reintroduction of the ‘Pacific Solution’ has brought a dramatic increase in the percentage of boat arrivals who are women and children.

While the law is a powerful shield, the real battle for children’s liberty is being fought in an arena where the law has little sway: that of party politics. As Australia braces for another federal election, one can only hope that good sense and decency will one day prevail so that refugee children can be offered the protections to which they are entitled - for no other reason but that they are children. And they need protection.

Professor Mary Crock’s main field of research is migration, citizenship and refugee law. Through her work with her husband, Emeritus Professor Ron McCallum AO, she has been involved in internal United Nations initiatives for the reform of the UN Human Rights treaty body system. She is currently working on research projects on: comparative law and policy, in conjunction with Harvard University and the London School of Economics (and a range of other universities both in Australia and overseas); refugee children and youth; and a study of refugees with disability, conducted in collaboration with UNHCR and the Women’s Commission for Refugees, and funded by AusAID.

Hannah Martin (BA 2011, LLB 2013) graduated from Sydney Law School with a Bachelor of Laws (Hons I). She also holds a Bachelor of Arts (Hons I) from The University of Sydney. Before commencing a job in legal practice Hannah is working as a research assistant to Professor Mary Crock and Emeritus Professor Ron McCallum, across a variety of projects, focusing particularly on administrative and public law.