Child immigration detention: 2004–2014

On this day, 13 May 2004 – ten years ago – the Australian Human Rights Commission (AHRC), then HREOC, released A last resort? the report of the National Inquiry into Children in Immigration Detention. The Inquiry found Australia’s mandatory immigration detention system was fundamentally inconsistent with its obligations under the Convention on the Rights of the Child (CRC). Under the CRC, a child should only be detained as a measure of last resort and for the shortest appropriate period of time. 

After the Inquiry the Federal Parliament amended the Migration Act 1958 (Cth) in 2005 to affirm ‘as a principle’ that a minor should only be detained as a measure of last resort. Gradually children were removed from Australia's high security immigration detention centres, and moved in significant numbers into community detention.

A few years later children started to be held in larger numbers in lower security immigration detention facilities such as immigration residential housing, immigration transit accommodation and various so-called ‘alternative places of detention’ on Christmas Island and on the mainland. Despite the terminology, this was a slippery slope and the reality was most definitely secure detention, a child locked up. By May 2013 it was announced that high security immigration detention facilities on Christmas Island, at Curtin in Western Australia, and Wickham Point in the Northern Territory would be adapted to hold children and families. The AHRC, ChilOut and many others expressed significant concerns about this change in policy. 

In May 2013 the government announced that asylum seeker families would be transfered to a third country and some would be granted bridging visas and allowed to live in the community, without the right to work. (See Tell Me About: Bridging Visas for Asylum Seekers). 

Today, any child who arrived by boat after 19 July 2013 is subject to offshore detention and will never be resettled in Australia, even if found to be a refugee. This means indefinite detention in a facility with no school, insufficient medical care, no dentist, no recreation space and very limited infrastructure. When and if the child (and adult's) claim for asylum is processed and they are determined to need protection, apparently this will be provided in Nauru by the Nauruan Government. This applies to all children, alone, newborn, sick, with disability, all children. 

We take a look at some of the key recommendations from: A last resort? National Inquiry into Children in Immigration Detention: 13 May 2004 and see where we are at ten years on...

2004 Recommendation: Children should be released as soon as possible, but no later than four weeks after tabling of the report 13 May 2004.

2014 – over 1000 children in indefinite detention, no time limit for their detention]

2004 Recommendation: Australia's detention laws should be amended, as a matter of urgency, to comply with the Convention on the Rights of the Child.

2014 – CRC has been implemented in both state and federal laws – and the principle of detention of children as a matter of last resort is enshrined in the Migration Act. But what is missing is the presumption against detention – see below.

2004 Recommendation: New laws should incorporate the following minimum features:

• There should be a presumption against the detention of children who do not hold a valid visa.

2014 – there is no such presumption, all children who arrive by boat are all summarily detained.

• Within 72 hours of any detention, a court or independent tribunal should assess whether there is a need to detain children for immigration purposes (eg for health, identity or security checks).

2014 – not even close

• Prompt and periodic review by a court of the legality of continuing detention of children for immigration purposes.

2014 - The Ombudsman can review after 6 months – but has no power to compel the minister to act.

2004 Recommendation: All courts and independent tribunals should be guided by the following principles: 

• detention of children must be a measure of last resort and for the shortest appropriate period of time

2014 – children are detained as first resort not last.

• the best interests of the child must be a primary consideration

2014 – numerous reports see below clearly this is not the primary consideration – current driving force of govt policy is “stop the boats”.

2004 Recommendation: families should remain united

2014 – children and parents are separated across the detention network, sometimes for many months (medical transfers, one parent arrived earlier and is in the community, others locked up, some arrived later and are detained offshore, others detained on mainland etc, pregnant women have been forced to travel to mainland alone leaving spouse and very young children behind on CI)

2004 Recommendation: special protection and assistance for unaccompanied children.

2014 – unaccompanied children are summarily sent to offshore processing, generally with no access to legal advice, never with special considerations. 

2004 Recommendation: Bridging visa regulations for unauthorised arrivals should be amended so as to provide a readily available mechanism for the release of children and their parents.

2014 – some families have been released into the community, but 1000+ children remain in detention, some in offshore detention indefinitely. Bridging visas are issued with no work or study rights, the ability to support one's family and children is impossible without assistance of charities. 

2004 Recommendation: An independent guardian should be appointed for unaccompanied children and they should receive appropriate support.

2014 – no – in some cases children are more vulnerable than ever. Guardianship for children on Nauru has been transferred to the Nauruan Justice Minister and a contracted agency paid by the Australian Government. 

2004 Recommendation: Minimum standards of treatment for children in immigration detention should be codified in legislation.

2014 – no.

2004 Recommendation: There should be a review of the impact on children of legislation that creates 'excised offshore places' and the 'Pacific Solution'.

2014 – no, offshore processing has been expanded without any such review taking place and despite much evidence to show the damage it caused to adults and children the first time around. 

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In 2014, 10 years after the last report, a new Inquiry into children in immigration detention is being held. With regards to current circumstances:

• over one thousand children held in secure immigration detention
• almost 200 held offshore in appalling conditions (this is outside the scope of the new Inquiry)
• low security facilities being closed in preference to high security centres
• a new attitude of operational secrecy in regards to all matters pertaining to asylum seekers in detention,

So, is this new Inquiry necessary? ChilOut belives it is well and truly needed. We must shed light on the conditions and impacts of Australia's system of detaining children. If this practice is set to continue indefinitely as it appears to be, the effects must be understood, there must be scrutiny, the public must know what is being done to children in their name and with ALOT of their tax dollars.

AHRC submissions are open until 31 May 2014 and we would encourage people to have their say. 

For more information see:

• •Asylum seekers, refugees and human rights: snapshot report (2013), AHRC

• Immigration detention on Christmas Island: Observations from visit to Immigration detention facilities on Christmas Island (2012), AHRC

• Immigration detention in Leonora, Western Australia (2011), AHRC

• Many other relevant reports listed here, including ChilOut's visits to Christmas Is, Darwin, UNHCR visits to Nauru and Manus Is

Compiled by Jessica Perini and Alanna Hector, ChilOut Board Members