Report Cards

• Article 3: the right of the child to have his or her best interests taken as a primary consideration

Areas lacking progress

NATIONAL: Best interests principle

Whilst the principle of the best interests of the child is widely known in Family and Child Protection Law in Australia, it is important that this principle is taken into account as a primary consideration in the enactment of laws and in all decision-making relating to children. The principle means that the federal and state legislatures and executives are required to make the best interests of the child a primary consideration when enacting any laws or implementing any policy relating to children. However, the principle is not widely know and procedures and criteria for applying the principle have not been published outside of the child protection context.

Only Victoria has enacted legislation requiring public authorities, including Ministers and government schools, to act consistently with human rights and to take relevant human rights into account when they are making decisions [1] including the child’s right to such protection as is in his or her best interests. [2] All jurisdictions should ensure that the best interests principle is consistently applied by public authorities and private institutions when making decisions that impact on children.

Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires the member of Parliament who introduced a Bill into a House of Parliament to prepare a statement of compatibility assessing whether the Bill is compatible with human rights. However, statements of compatibility often do not include a best interests assessment even when the Bill clearly impacts children.

An example of this is the statement of compatibility provided for the Social Security Legislation Amendment (Fair Incentives to Work) Bill 2012. [3]  This bill reduced the amount of social security support for certain single parents. The Parliamentary Joint Committee on Human Rights (PJCHR) expressed concern that the Bill would cause single parents to face additional financial stress in meeting the basic costs of living for them and their children without providing better work prospects. [4] Despite the Bill having an impact on children, the statement of compatibility did not mention children’s rights or give primary consideration to the best interests of the child. This indicates that the decision to introduce the legislation was made without making the best interests of children a primary concern.

NATIONAL: Migration and asylum legislation

The Committee 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.’

The National government has not incorporated the best interests principle into the Migration Act 1958 (Cth). [5] The government has identified that the best interests of the child is a primary consideration in any dealings with children, [6] 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.

Negative Developments

NATIONAL: Offshore and third party processing

In 2012 and 2013, the Australian government introduced a ‘Migration Package of Legislation’ allowing the Immigration minister to process asylum-seekers and refugees in Nauru and Manus Island in Papua New Guinea (PNG). [7] The legislation also removed the Immigration Minister’s legal guardianship responsibilities of unaccompanied children who are sent to a regional processing country. [8]

The legislation package provides that all asylum seekers who arrive by boat after 13 August 2012 must be transferred to a regional processing country to have their protection claims assessed unless they are granted an exemption by the Immigration Minister. Their claims will be assessed in the country of processing and they will never be resettled in Australia. It is difficult to see how offshore processing of asylum seeker and refugee children could ever be in their best interests.

In June 2013 the PJCHR examined the migration package of legislation and raised a number of human rights concerns over the arrangements with Nauru and PNG. [9] The PJCHR noted Nauru and PNG’’s limited capacity to guarantee human rights, in particular:

• Nauru is not a party to many international conventions meaning that it has not agreed to non-refoulement obligations based on the right to life and the right to be free from torture or cruel, inhuman or degrading treatment or punishment;
• although PNG is a party to international conventions, it does not accept the many rights under the Refugee Convention including education and housing rights so there is a significant curtailment of the rights of refugees and asylum seekers in PNG;
• both countries have inadequate mechanisms for refugee status determination and protection; and
• both countries have inadequate facilities to deal with vulnerable groups such as children, unaccompanied minors, pregnant women, people with disabilities and other complex health needs or survivors of torture and trauma. [10]

Further, the United National High Commissioner for Refugees (UNHCR) noted, given the findings that Manus Island falls short of international standards of protection, it is difficult to see how the ‘best interests’ of transferee children could have been appropriately weighed and led to a conclusion that adequate and appropriate levels of care and support are currently available on the island. [11]  In November 2013 the UNHCR reported that asylum-seekers transferred from Australia to processing centres on Nauru and Manus Island in PNG are living in harsh physical conditions in centres that fail to meet international standards and this has a profound impact on the children housed there. [12]

In Australia, the immigration minister is the guardian for unaccompanied asylum seeker children until they are transferred offshore.  Jane McAdam, Director of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW, noted:

There is a clear conflict of interest between the minister’s obligation to make the best interests of such children a primary consideration in any decision concerning them, and his desire to enforce a policy of offshore processing. This is why the Australian Human Rights Commission and others have called for an independent guardian for unaccompanied children. [13]

Australia is failing to give primary consideration and protection to asylum seekers children’s best interests. As at 30 November 2013 there were 990 children in immigration detention facilities and alternative places of detention, 109 of which were held in Nauru for offshore processing. [14] Australia must give due primacy to the best interests of children and end offshore processing of children.

• Strengthen efforts to ensure that the principle of the best interests of the child is widely known and appropriately integrated and consistently applied in all legislative, administrative and judicial proceedings and all policies, programmes and projects relevant to, and with an impact on children.
• Develop procedures and criteria to provide guidance for determining the best interests of the child in every area, and to disseminate them to public and private social welfare institutions, courts of law, administrative authorities and legislative bodies.
• Pay particular attention to ensuring that its policies and procedures for children in asylum seeking, refugee and/or immigration detention give due primacy to the principle of the best interests of the child.

ADDITIONAL RECOMMENDATIONS

• Establish an independent guardianship institution for unaccompanied minors.
• End offshore processing of children in Nauru and Manus Island.
• Reduce the amount of children in immigration detention.

1. Charter of Human Rights and Responsibilities Act 2006  (Vic), section 38
2. Ibid, section 17(2)
3. Social Security Legislation Amendment (Fair Incentive to Work) Bill, Explanatory Memorandum http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4843_ems_527da47c-6da0-471b-81fd-414452255607%22
4. Parliamentary Joint Committee on Human Rights, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Social Security Legislation Amendment (Fair Incentives to Work) Act 2012, Final Report, Fifth Report of 2013 p28 http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries/2013/2013/52013/~/media/Committees/Senate/committee/humanrights_ctte/reports/2013/5_2013/pdf/report.ashx
5. Department of Immigration and Citizenship, ‘Government Response to Recommendations by the Joint Select Committee on Australia’s Immigration Detention Network.’ November 2012. 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.’
6. Ibid, 28.
7. This package of legislation included Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), Migration Amendment Regulation 2012 (No. 5) (Cth), (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), 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), 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)
8. Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) Sch. 2.
9. 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
10. Ibid
11. UNHCR, Manus Island report, para 116
12. UNHCR, UNHCR reports harsh conditions and legal shortcomings at Pacific Island asylum centres, 27 November 2013 http://www.unhcr.org/52947ac86.html  (accessed on 15 January 2014)
13. UNSW Australia, “Newsroom – Offshore processing centres are no place for children” 27 November 2013 http://newsroom.unsw.edu.au/news/law/offshore-processing-centres-are-no-place-children (accessed on 15 January 2014)
14. 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