Report Cards

• Article 2: The right to enjoy the rights guaranteed by the Convention without discrimination
• Article 3: Best interests of the child to be a primary consideration
• Article 8: The right to preserve identity, including name, nationality and family relations without unlawful interference
• Article 9: The right not to be separated from parents Article 10: Applications to leave or enter state for family reunification will be dealt with in a positive, humane and expeditious manner
• Article 16: The right against arbitrary or unlawful interference with family
• Article 20: The protection of children deprived of family environment
• Article 2: Children seeking refugee status to receive protection and humanitarian assistance
• Article 37: The treatment and punishment of children, including their right not to be subject to cruel or inhumane treatment and the principle of detention as a last resort

Areas lacking progress

 NATIONAL: Detaining child asylum-seekers

In its Concluding Observations in June 2012, the CRC raised concerns over Australia’s mandatory detention of child asylum-seekers and recommended that Australia reconsider its policy of detaining child asylum-seekers and ensure that immigration detention of children is subject to time limits and judicial review. Article 37 of the Convention requires that the detention of a child be a last resort and that a child has the right to legally challenge their detention.

The Migration Act 1958 (Cth) still requires the mandatory detention of all unlawful non-citizens, including children. [1] It further provides that detention will continue until the non-citizen is removed from Australia, deported or granted a visa. [2] The government has expressed the intention that immigration detention be for the shortest time possible and has identified that the Department of Immigration and Citizenship and the Commonwealth Ombudsman carries out regular reviews into the appropriateness of detention. [3] Despite this, there are no time-limits for the detention of children or provisions for periodic judicial review in place.

The government’s immigration policy states that children will not be placed in immigration detention centres and, although they may be placed in low security immigration detention facilities, the priority is that children and their families are promptly placed in community detention centres. [4] Further, section 4AA of the Migration Act 1958 (Cth) affirms the principle that a minor should only be detained as a last resort. Despite this, on 31 May 2013 there were 1731 children in immigration detention facilities, including 32 in immigration detention centres. There was an additional 1326 children in community detention under a Residence Determination. [5]

The Australian Human Rights Commission (AHRC) has raised concerns over placing children in ‘low security immigration detention facilities’ after a visit to two of these facilities at Christmas Island, the Aqua and Lilac compounds. [6] The AHRC believe that referring to these facilities as ‘low security’ is misleading and that the facilities are inappropriate for children and families. [7] In addition, the AHRC raised concerns over the detention of families and single adult males in the same facility. [8]

Doctors have recently revealed the ‘harmful’ standards of medical care for asylum seekers at Christmas Island detention centre. [9] The report documents “numerous unsafe practices and gross departures from generally accepted medical standards which have posed significant risk to patients and caused considerable harm.” [10] Doctors also report a high risk of depression among children and no effective system for identifying children at risk. [11]

NATIONAL: Best interests of the child

The CRC in June 2012 recommended that Australia

• Ensure that migration and asylum legislation and procedures have the best interests of the child as the primary consideration in all immigration and asylum processes; and
• Ensure that determinations of the best interests are consistently conducted by professionals who have been adequately trained in best interests determination procedures. [12]

The National government has not incorporated this principle into the Migration Act 1958 (Cth). [13] The government has identified that the best interests of the child is a primary consideration in any dealings with children, [14] in compliance with Article 3 of the Convention. Nevertheless, professionals are not engaged in best interest considerations for child asylum-seekers and it is not obvious that the best interest of the child is the primary consideration in asylum-seeker and refugee determinations.

NATIONAL: Lack of independent guardianship

The CRC recommended that Australia establish an independent guardianship institution for unaccompanied immigrant children. Notwithstanding this, the Minister of Immigration remains the legal guardian of unaccompanied children, raising concerns over the high risk of conflict of interest.

NATIONAL: Children forcibly returned to Afghanistan

The CRC recommended that Australia evaluate reports of hardship suffered by children returned to Afghanistan without a best interests determination. Australia and Afghanistan signed a Memorandum of Understanding on Migration and Humanitarian Cooperation on 17 January 2011 allowing unsuccessful Afghan asylum-seekers to be forcibly returned to Afghanistan. The agreement includes provision for sending back children: unaccompanied minors and other Afghan children who have become separated from their families. This policy remains unchanged despite reports of suffering and hardship. A group of 30 Afghan MPs wrote to the Federal Government in March 2013 urging it to abandon plans to return asylum seekers to Kabul. [15] Kabul MP Mohammed Ibhrahim Qasemi stated that the Afghan government would not be able to protect returnees from persecution as it already struggles to provide security and basic services to existing residents. [16] It is difficult to see how returning children to Afghanistan could be in their best interests.

Negative Developments

NATIONAL: Offshore and third country processing

In June 2012 the Australian Government formed an Expert panel on Asylum seekers to advise the government about how to solve the problems concerning the arrivals of asylum seekers by unseaworthy boats. On 13 August 2012 the expert panel released their report containing 22 recommendations, [17] all of which were adopted by the Australian government through legislative changes. The ‘Migration Package of Legislation’ includes:

• The Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), which amended the Migration Act 1958 (Cth)to allow the Immigration Minister to designate a ‘regional processing country’ to process asylum-seekers and refugees arriving at an excised offshore location. [18]  In addition, the Migration Legislation Amendment (Regional Processing and Other Measures) Act removes the Immigration Ministers legal guardianship responsibilities of unaccompanied children who are sent to a regional processing country. [19]
• The Migration Amendment Regulation 2012 (No. 5) removes the ability of asylum seekers arriving by boat to apply for family reunification through the Humanitarian program.
• The Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 extends the application of the regional processing regime to include those arriving by boat to mainland Australia. [20]

This legislation has been guided by the ‘no advantage’ principle, as recommended by the Expert Panel on Asylum seekers. [21] The ‘no advantage’ principle holds that Asylum-seekers arriving by boat will gain no advantage by arriving by boat than if they were to follow the ordinary established procedures.

On 12 September 2012 Nauru was designated as the first ‘regional processing country.’ [22]  Shortly after this, on 9 October 2012 Papua New Guinea became the second ‘regional processing country.’ [23] Asylum seekers were transferred to Nauru on 24 September 2012 and Manus Island PNG on 21 November 2012. [24]

In June 2013 the Parliamentary Joint Committee on Human Rights (PJCHR) examined the migration package of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). [25] The PJCHR raised a number of human rights concerns over the arrangements with Nauru and PNG, including worries over how Australia will meet its human rights treaty obligations. The PJCHR found that the government’s approach to the ‘no advantage’ principle has gone too far so that those arriving by boat are actually disadvantaged. [26] Further, the PJCHR raised concerns that:

• Removing family reunification rights may encourage whole families to travel together by boat. [27]
• Children and vulnerable people are among those being transferred; the conditions of Manus Island are not of a high enough standard to accommodate for children and vulnerable people. [28]
• There is an absence of legally-binding requirements regarding the facilities at Nauru and PNG.[29]
• The ‘no advantage’ principle appears to be a deliberate slowing down of processing asylum applications, resulting in asylum seekers being detained for extended periods contrary to the prohibition of arbitrary detention. [30]
• The regime discriminates against Asylum seekers based on their mode of arrival contrary to the right against discrimination, and will have a ‘disproportionate impact on asylum seekers (in particular children) who arrive by boat after 13 August 2012.’ [31]

Children and families started to be removed from Manus Island  by the previous government on 20 June 2013. [32] As at 9July 2013, there were no child asylum-seekers in detention on Manus Island. [33]

In August 2013, Kevin Rudd entered into an official resettlement agreement with Papua New Guinea. [34] The agreement provides that unlawful non-citizens arriving by boat will be sent to Manus Island, PNG, for processing following a short health, security and identity check. Those found to be genuine refugees under PNG law will be resettled in Papua New Guinea and others will be detained, returned home or sent to another country where they can legally reside. A similar agreement has been entered into with Nauru. [35]  The purpose of these agreements is to deter asylum-seekers from arriving by boat, by making it clear that those arriving unlawfully to Australia by boat will never be settled in Australia.

In October 2013, the UNHCR reported 2 unaccompanied minors being held on Manus Island in inhumane conditions. [36] In December 2013, the government confirmed that there are 109 of children held in Nauru for offshore processing. [37] The UNHCR found the youngest child being held is 4 years old. [38]

The Australian Human Rights Commission (AHRC) has questioned the compatibility of the Governments resettlement plan with Australia’s International human rights obligations and has raised particular concerns over the rights of children. [39] Australia’s resettlement policy raises a number of concerns under the Convention of the Rights of the Child, including:

• Article 3 requires that states, in all actions concerning children, have the best interests of the child as a primary consideration. Under the new arrangements, all children and families arriving by boat will detained in Australia before being sent to Papua New Guinea or Nauru without a best interests consideration. AHRC President, Professor Gillian Triggs has argued that ‘[i]t is difficult to see how, in the vast majority of cases, transferring unaccompanied minors to Papua New Guinea could possibly be in their best interests.’ [40] This is especially true in cases involving unaccompanied children where it is uncertain who will be responsible for their welfare upon arrival to the regional processing country.
• Article 20 provides that unaccompanied children are to be protected by state parties to the Convention. The Minister of Immigration is the legal guardian for all children arriving to Australia unaccompanied; in the case of an unaccompanied child the primary consideration should be the best interests of the child. Tony Burke has insisted that unaccompanied children will be sent to PNG or Nauru [41] which is unlikely to be in the best interest of the child. This further emphasises the fundamental risk of conflict of interest for the Minister of Immigration.
• Article 20 requires that member states protect child asylum seekers. There is no guarantee that the rights of children sent to PNG or Nauru will be protected.
• Article 2 provides children with the right to be free from discrimination. The criticism made by the PJCHR of the regional processing arrangements in this regard is equally relevant here; children will be disadvantaged simply because of their mode of arrival to Australia.
• Article 37(b) states that the detention of a child should be a last resort. The mandatory detention of Asylum-seeking children before they are sent to a regional processing country is contrary to this principle. Further, detaining children in Nauru and PNG will contravene Article 37(b) of the Convention.
• Article 10 requires that states process family reunification applications in a positive, humane and expeditious manner. Hindering the chance of family reunification of those arriving by boat, as is seen by the Migration Regulations Amendment (No. 5) 2012, contravenes this right.
• Article 8 guarantees the right to preservation of identity. Family separation occurring as a consequence of the new arrangement is likely, in many cases, to infringe this article.
• It is also essential that the conditions of the detention facilities and the resettlement plans generally guarantee respect for other rights ensured by the Convention, such as the right to education (Article 28), the right not to be subjected to torture or inhumane and degrading treatment (Article 37) and the right to the enjoyment of the highest attainable standard of health (Article 24)

NATIONAL: Abbott sacks asylum seeker health advisors

The Federal government disbanded the Immigration Health Advisory Group (IHAG) in December 2013. [42] The IHAG was made up of psychiatrists, psychologists and GPs with specialist knowledge about refugees and provided advice on the health of asylum seekers in detention. The IHAG has been replaced with a sole independent health advisor. A member of the group, Professor Louise Newman, described the move as, “a shutdown of government accepting the need for independent expert professional advice.” [43] This development is particularly worrying following reports that 146 children in immigration detention in Darwin had visited the Royal Darwin Hospital emergency department for psychiatric problems in 2011. [44]

NATIONAL: Removal of legal aid for asylum seekers

The Coalition announced plans to remove legal assistance funding for people seeking protection in Australia in September 2013. [45]  Law Council of Australia President, Michael Colbran QC, said that without access to independent legal assistance vulnerable men, women and children will be at risk and the fairness of Australia’s refugee processes undermined. [46] In November 2013, the Asylum Seeker Resource Centre reported that detainees are no longer being offered access to the government-funded service. [47] The Federal government should reconsider its policy and reinstate funding to ensure access to justice for asylum seekers.

• Reconsider its policy on detaining asylum-seeking and refugee children. If the detention of asylum seeking or refugee children is necessary, children should only be detained in appropriate facilities and this should be subject to time-limits and judicial review.
• Ensure that the best interest of the child is the primary consideration in asylum and refugee considerations; best interest determinations should be carried out by trained professionals and their recommendations should be adhered to.
• Establish an independent guardianship institution.
• Evaluate reports of hardship suffered by children returned to Afghanistan without a best interests determination.
• Reconsider their its agreements with Nauru and Papua New Guinea. The government should ensure that the best interest of the child is a primary consideration, especially in cases involving unaccompanied children. The government should ensure that the detention of a child is a last resort and that all children seeking asylum are afforded all the rights guaranteed by the Convention.
• Maintain funding for legal assistance for asylum seekers.

1. Migration Act 1958 (Cth) s189
2. Migration Act 1958 (Cth) s196
3. See Department of Immigration and Citizenship, ‘Government Response to Recommendations by the Joint Select Committee on Australia’s Immigration Detention Network.’ November 2012, available at<http://www.immi.gov.au/media/publications/pdf/2012/response-recommendations-joint-select-committee-aust-immi-detention.pdf>, (accessed 27 August 2013) 28
4. See Australian Government Department of Immigration at Citizenship, Media Factsheets, ‘Factsheet 82- Immigration Detention,’  as at 16 August 2013, available at <http://www.immi.gov.au/media/fact-sheets/82detention.htm> (accessed 27 August 2013)
5. See Australian Government Department of Immigration and Citizenship , ‘Immigration detention statistics summary,’ 31 May 2013, available at <http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/> (accessed 27 August 2013)
6. Australian Human Rights Commission, Immigration detention on Christmas Island: OBSERVATIONS FROM VISIT TO IMMIGRATION DETENTION FACILITIESON CHRISTMAS ISLAND 2012, available at<https://www.humanrights.gov.au/publications/immigration-detention-christmas-island-observations-visit-immigration-detention#fnB21> (accessed 29 August 2013)
7. Ibid, 12.
8. Ibid
9. The Guardian, David Marr, ‘Doctors reveal ‘harmful’ standards of medical care for asylum seekers
10. Ibid
11. Ibid
12. Committee on the Rights of the Child, Concluding Observations: Australia, 2012, 20
13. Department of Immigration and Citizenship, ‘Government Response to Recommendations by the Joint Select Committee on Australia’s Immigration Detention Network.’ November 2012 n.3 above. 29 the Government do not accept recommendation 4 that ‘the best interests of the child should be enshrined in the Migration Act as the paramount in decisions regarding the accommodation of all children’
14. Ibid, 28
15. ABC News, Sally Sara, ‘Australia warned against returning Afghan refugees,’ 13 March 2013 http://www.abc.net.au/news/2013-03-12/afghan-letters/4568656 (accessed on 21 January 2014)
16. Ibid
17. Report of the Expert Panel on Asylum Seekers, August 2012, see Recommendations, 14-18, available at <http://expertpanelonasylumseekers.dpmc.gov.au/> (accessed 28 August 2013).
18. Migration Act 1958 (Cth) s198 AB
19. Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) Sch. 2.
20. See Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), s.5AA, ‘unauthorised maritime arrivals’
21. Report of the Expert Panel on Asylum Seekers, August 2012, see Recommendation 1, p.14
22. Instrument of Designation of the Republic of Nauru as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958 -September 2012 available at http://www.comlaw.gov.au/Details/F2012L01851 (accessed 29 August 2013)
23. Instrument of Designation of the Independent State of Papua New Guinea as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958 -October 2012 available at <http://www.comlaw.gov.au/Details/F2012L02003> (accessed 29 August 2013)
24. Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the

Human Rights (Parliamentary Scrutiny) Act 2011: Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation, Ninth Report of 2013, June 2013, available at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=humanrights_ctte/reports/2013/9_2013/index.htm (accessed 29 August 2013) 13

5. Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the
6. Human Rights (Parliamentary Scrutiny) Act 2011: Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and related legislation, Ninth Report of 2013
7. Ibid, 82
8. Ibid
9. Ibid
10. Ibid
11. Ibid, 83
12. Ibid
13. G. McGregor,  Children are being removed from Manus Island, Amnesty International 21 June 2013, available at http://www.amnesty.org.au/refugees/comments/32111/, (accessed 29 August 2013); World News Australia, Asylum families removed from Manus Island: DIAC, SBS 21 June 2013, available http://www.sbs.com.au/news/article/2013/06/21/asylum-families-removed-manus-island-diac, accessed (29 August 2013)
14. AHRC, Children in Immigration Detention: Are Children Detained on Nauru or Manus Island? available at https://www.humanrights.gov.au/children-immigration-detention#children on Nauru or Manus Island.
15. For a copy see http://www.dfat.gov.au/geo/png/joint-mou-20130806.html (accessed 29 August 2013)
16. For a copy see http://www.minister.immi.gov.au/media/media-releases/_pdf/australia-nauru-mou-regional-processing.pdf
17. Department of Immigration and Border Control,  Immigration Detention and Community Statistics Summary, 30 November 2013, http://www.immi.gov.au/managing-australias-borders/detention/_pdf/immigration-detention-statistics-nov2013.pdf
18. UNHCR monitoring visit to the Republic of Nauru 7 to 9 October 2013 http://unhcr.org.au/unhcr/images/2013-11-26%20Report%20of%20UNHCR%20Visit%20to%20Nauru%20of%207-9%20October%202013.pdf (accessed on 21 January 2014)
19. AHRC, Regional Resettlement Arrangement raises human rights questions, 25 July 2013, available at <https://www.humanrights.gov.au/news/stories/regional-resettlement-arrangement-raises-human-rights-questions> (accessed 29 August 2013)
20. Ibid
21. Tony Burke, Minister for Immigration, Multicultural Affairs and Citizenship, ‘First transfer to Manus Island under regional settlement arrangement, expansion of Manus facility, anti-people smuggling advertising campaigns, Greens policy, corruption in NSW Labor party’ (Press Conference), above n31
22. Sydney Morning Herald, Stephanie Wood,  ‘Abbott sacks asylum seeker health advisers,’ 16 December 2013, http://www.smh.com.au/federal-politics/political-news/abbott-sacks-asylum-seeker-health-advisers-20131215-2zfg8.html (accessed on 21 January 2014)
23. Ibid
24. Ibid
25. Law Council of Australia Media Release, ‘Legal assistance critical for fair asylum outcomes’ 3 September 2013 http://www.vicbar.com.au/GetFile.ashx?file=GeneralFiles%2F1340+–+Legal+assistance+critical+for+fair+asylum+outcomes.pdf (accessed on 22 January 2014)
26. Ibid
27. SBS News, ‘Asylum seekers ‘being denied legal aid,’’20 November 2013 http://www.sbs.com.au/news/article/2013/11/20/asylum-seekers-being-denied-legal-aid (accessed on 22 January 2014)