Children in Detention
E-Brief: Online Only issued 13 October 2003; updated 15 October 2003
Janet Phillips, Information/E-links
Social Policy Group
Catherine Lorimer, Information/E-links
Law and Bills Digest Group
This page is a copy of a page on the Federal Parliamentary Library Web Site. All contents is copyright of the Australian Parliamentary Library.
For copyright reasons some linked items on this page are only available to Members of Parliament.
The United Nations High Commissioner for Refugees (UNHCR) estimates that there are currently 25 million children who have been uprooted from their homes worldwide and that unaccompanied children make up approximately four per cent of people seeking asylum in European countries. The 2001 UNHCR Population Statistics provide a breakdown of populations of concern by age and country of asylum.
The mandatory detention of all asylum seekers who arrive unauthorised in Australia-a measure introduced in 1992-has attracted a great deal of attention and debate over the last few years both at home and internationally. Many countries in the Western world are adopting harsher measures in an attempt to deter illegal immigrants, and many countries have onshore immigration detention centres or reception centres to deal with those who do arrive, including children. However, Australia is still the only country where detention is mandatory for adults and children seeking asylum for the duration of their processing by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). Particular concerns have been expressed by many, including members of the medical profession, over the detention of children in Australia's Immigration Detention Centres.
This e-brief is intended as an overview and a guide to the internet resources, research and comment on the issue of the detention of children in Australia. It includes current numbers of children in detention, an outline of the services provided in each Immigration Detention Centre (IDC), relevant court cases and legislation, and links to key international documents.
The international framework for the protection of child refugees is covered by a UN human rights treaty, the 1989 Convention on the Rights of the Child (CROC). This convention has been ratified by almost every country in the world (including Australia on 17 December 1990) and it articulates civil, political, economic, social and cultural human rights and obligations for those countries. Article 37 of this convention requires States Parties to ensure that:
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
A child's right to protection, education, recreation, medical care and humanitarian consideration are also covered in this convention.
Other international agreements relevant to the detention of refugees (all ratified by Australia) are the 1951 UN Convention relating to the Status of Refugees, the 1967 UN Protocol relating to the Status of Refugees and the 1984 UN Convention against Torture.
The UNHCR has produced guidelines for the protection and care of refugee children to assist countries around the world to implement UNHCR policy on refugee children. In recent years the UNHCR has implemented various strategies and policies that focus on refugee children outlined in a 2002 Summary Note on UNHCR's Strategy and Activities Concerning Refugee Children. Another 2002 report
and the executive summary (Meeting the Needs and Protection Rights of Refugee Children: an Independent Evaluation of the Impact of UNHCR's Activities) outlines UNHCR activities and recommendations for the future.
While many countries detain illegal immigrants for varying periods of time, to date Australia is the only country where detention is mandatory for adults and children for the duration of processing by DIMIA. Mandatory detention for unlawful non-citizens was introduced in Australia in 1992. A history of the mandatory detention of asylum seekers, including children, in Australia is outlined in The Detention of Boat People (Adrienne Millbank, Current Issues Brief, no. 8, Parliamentary Library, 2000-01).
Most Western countries, in reviewing their responses to asylum seekers and illegal migrants, are now favouring detention:
This year the European Union (EU) considered a proposal to introduce 'offshore' processing camps in the Balkans to process all asylum claims for EU countries. See, for example, 'Secret Balkan Camp Built to Hold UK Asylum Seekers', (The Observer, 15 June 2003).
In the US the Bureau of Citizenship and Immigration Services (BCIS) on its Detention and Removals page states that the US 'detains aliens who enter the United States illegally or otherwise violate immigration laws who are not otherwise released on bond or personal recognizance pending disposition of their case'. This detention system in the US includes juveniles.
The UK has introduced various measures, including immigration detention, in order to clamp down on the number of illegal immigrants entering the country, giving rise to criticism of the practice of detaining children in press articles such as 'The Scandal of Britain's Asylum Children', (The Independent, 15 June 2003).
Children in Detention in Australia
In Australia today, the numbers of children in detention fluctuate with the asylum seeker population. Most child detainees are in the company of adults who have overstayed their visa or who are seeking asylum. Only a handful of child detainees are unaccompanied. On 25 September 2003 there were 83 children in detention on the Australian mainland and 16 offshore on Christmas Island-99 children in all out of a total of 1117 immigration detainees. Three of the children detained on Christmas Island, four at Villawood IDC and one at Port Hedland IDC were unaccompanied. Regular updates of current detention figures are posted on the Border Protection page of the Minister for Immigration, Senator Amanda Vanstone. This site links to the individual IDCs and their current detention populations.
The DIMIA Women and Children in Immigration Detention page shows that there has been a decrease in the number of children in immigration detention facilities in recent years due to:
decreasing numbers of unauthorised air and sea arrivals to Australia
an increase in persons being released from immigration detention, particularly unaccompanied minors
minors who have turned 18 years of age while in detention
In an answer to a Question on Notice on 5 February 2003, the then Minister, the Hon. Phillip Ruddock MP, stated that at that time the average period of detention for a child detained in an Immigration Detention Centre was 1 year, 3 months and 17 days. In Senate Estimates on 28 May 2003 it was estimated that approximately half of the children in detention at that time had been in detention for two to three years.
Immigration Detention: Facilities and Care
A summary of Australia's detention facilities and services, including regularly updated detention figures for each Immigration Detention Centre, is available from the Minister's Border Protection page.
The management of Immigration Detention Centres was outsourced by DIMIA in 1997 and an Immigration Detention Agreement was signed in February 1998. The latest Detention Standards on the department's website outlines the responsibilities of the service providers, including the safety, care and welfare of detainee children.
An alternative detention program recently introduced for women and children was the Woomera Residential Housing Project (RHP). The project, established by DIMIA in August 2001, was an alternative detention arrangement that enabled eligible women and children to live in family-style accommodation at Woomera while remaining in immigration detention. In a press release on 9 May 2003 the Minister announced the expansion of the Woomera RHP from 20 to 40 places. On 25 September 2003 there were five women and four children in residence at the Woomera RHP. The Woomera RHP has since closed following a transition period for those residents who will be progressively accomodated in the Port Augusta Residential Housing Project (opened in November 2003). In another press release on 15 May 2003 Consultations on Alternative Detention Arrangements in Port Hedland the Minister announced the commencement of a similar project at Port Hedland, and on 18 September 2003 the Port Hedland alternative detention project became operational, New Residential Housing for Port Hedland Detainees.
The Women and Children in Immigration Detention page on the department's website includes a list of health and education services. Specific services and assistance for unaccompanied minors are outlined on the department's Caring for Unaccompanied Minors fact sheet. More general services for all detainees are given on the department's Immigration Detention fact sheet.
The Education of Children in Detention
The Immigration Detention Centre service providers are obliged to ensure that child detainees have access to education services. These obligations are outlined in the Detention Standards.
According to the Minister in an answer to a Question on Notice on 5 February 2003, over half of the children in immigration detention as at 15 November 2002 were attending external schools. The remainder had access to education within immigration detention facilities. He went on to say:
The IDS (Immigration Detention Standards) require that all detainees have access to education programs, and that social and education programs appropriate to the child's age and abilities is available to all children in detention.
Within this framework, services for children include:
Programs for pre-school, primary and secondary aged children;
Provision of 'after school' activities such as sports, arts and crafts;
Entertainment facilities, such as videos and computers;
Regular excursions; and
Case management of unaccompanied minors and other children with special needs (such as learning difficulties).
The Psychological Health and Welfare of Child Detainees
There has been much discussion in the press and the community on the mental health implications of detaining children and there is an increasing body of medical literature on the psychological effects of detention on children:
A 2002 study of the mental health of refugee children in the UK (reported in the British Medical Journal, vol. 327, 19 July 2003) found that more than a quarter of refugee children had significant psychological disturbance-more than three times the national average.
In Australia, similar findings have been reported in the medical journals. In Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention, (Australian Psychiatry, vol. 10, no. 2, June 2002) the authors found:
Parents and children in immigration detention are often vulnerable to mental health problems before they reach Australia. Experiences in prolonged detention add to their burden of trauma, which has an impact not only on the individual adults and children, but on the family process itself. Immigration detention profoundly undermines the parental role, renders the parent impotent and leaves the child without protection or comfort in already unpredictable surroundings where basic needs for safe play and education are unmet. This potentially exposes the child to physical and emotional neglect in a degrading and hostile environment.
In a recent article, A Child in Detention: Dilemmas faced by Health Professionals, (Medical Journal of Australia, 15 September 2003) the authors discuss the clinical and ethical dilemmas faced by clinicians treating child detainees.
The Royal Australian College of General Practitioners (RACGP) recently issued a position statement expressing concerns for the psychological health of children in detention.
The Royal Australian and New Zealand College of Psychiatrists (RANZCP) has also expressed concerns in press releases over the last few years, including this May 2003 press release:
The mandatory detention of refugees is detrimental to the mental health of children and adults with an alarming rate of mental disorder developing, according to figures to be released today at the 38th International Congress of the Australian and New Zealand College of Psychiatrists (RANZCP). RANZCP delegate, Zachary Steel, who has researched the mental health of children and adults in remote detention centres across Australia will present for the first time, the results of his study. 'Twenty children and 14 adults were assessed for their psychological well-being and it was found that there was a 10-fold increase and a three-fold increase in the number of psychological disorders respectively, over a two year period', Mr Steel said.
In 2002 the Human Rights and Equal Opportunity Commission (HREOC) conducted a national inquiry into the human rights of children in Immigration Detention Centres. The final report A Last Resort: a Report of the National Inquiry into Children in Immigration Detention was released in May 2004 and includes discussion of educational needs and mental health issues. As part of this inquiry a paper (Psychological Well Being of Child and Adolescent Refugee and Asylum Seekers: Overview of Major Research Findings of the Past Ten Years) was prepared summarising the research findings on this issue. In a press release (Literature Review on the Mental Health and Development of Child Refugees and Asylum Seekers) the Commission expresses concern for the mental health of child detainees and concludes that 'particular groups in asylum seeker and refugee populations constitute higher psychological risk than others, namely those with extended trauma experience, unaccompanied or separated children and adolescents and those still in the process of seeking asylum'.
As part of this inquiry HREOC also commented more generally on the welfare of children in detention. In a press release (Detention Still No Good for Children) the Human Rights Commissioner said '[a] detention centre is no home for a child. Action needs to be taken to ensure the removal of children from detention is of the highest priority.'
The general welfare of child detainees has also been the topic of much discussion in the general community. In Australia's Child Asylum Seekers (Alternative Law Journal, vol. 27, no. 4, August 2002), Judith Bessant notes that there is:
documented evidence of child sexual abuse, maltreatment, self-harm, serious health and social pathologies among young detainees; and the provision of inadequate health, social and educational services for child and teenage detainees. If any civil parent or guardian acted in the way the Australian government has towards children in immigration centres, they would be immediately subject to child care and protection orders.
The government has responded to the HREOC inquiry findings on the department's website. The Children in Detention page on the Minister's Border Protection website discusses some of the child welfare issues for children in detention, including psychological effects, and lists the services and care available to children in detention.
The UNHCR has reported on conditions for adults and children in immigration detention facilities in Australia. In June 2002, Justice P. Bhagwati reported on a mission to Australian immigration detention centres in his report Human Rights and Immigration Detention in Australia. Louis Joinet released a follow-up report in October 2002, Civil and Political Rights, including the Question of Torture and Detention: report of the Working Group on Arbitrary Detention: addendum: visit to Australia.
On 13 October 2003 the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee presented a 'Statement to the Parliament on the JSCFADT Human Rights Sub-Committee's recent activities concerning conditions within immigration detention centres and the treatment of detainees'. The statement expresses concerns over the housing of childen in 'inappropriate detention facilities'.
Child Protection Legislation in Australia
In Australia child protection is governed primarily by state and territory legislation. The table below sets out the relevant legislation which contain mandatory protection provisions and also the agencies to which actual or suspected abuse can be reported.
With respect to children in detention, DIMIA requires that all incidents, suspicions or allegations of abuse or neglect are reported both to local child welfare authorities, and under the detention services contract, to DIMIA. In most states, the child welfare authority will decide if other parties, such as the police, need to be involved. In a response to the Children out of Detention lobby group (ChilOut) 2002 report to DIMIA (The Heart of the Nation's Existence: a Review of Reports on the Treatment of Children in Australian Detention Centres), the department outlined in some detail the child protection measures taken by the department in every detention centre.
State and Territory legislation applies in detention centres, except where there is inconsistency with Commonwealth law.
Commonwealth legislation relevant to children in detention includes:
Immigration (Guardianship of Children) Act 1946
Guardianship of non-citizen children
The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.
Immigration (Guardianship of Children) Regulations 2001
Migration Act 1958
Migration Regulations 1994
Family Law Act
This Act contains provisions relevant to the rights of children; notably section
43(c) which directs specific attention to the issue.
(Duration of Detention) Act 2003
This Act seeks to prevent or limit courts from issuing interim orders for the release of immigration detainees. The Minister presented the second reading speech to the House of Representatives on 18 June 2003. The Bill passed through the House of Representatives on 26 June 2003. In the Senate, the Opposition did not support the Bill in its original form and strongly argued for children in detention to be released immediately. However, it supported government amendments limiting the application of the Bill. The Bill now only applies to people in detention because of criminal offences or security risks, and people who have had their visas cancelled on character grounds. These people cannot be released on an interim basis by the courts and must wait for final determination. The Bill passed the Senate with amendments on 8 September 2003. The Bill received Royal Assent on 23 September 2003.
There have been several recent cases heard in the Family Court of Australia which have sought orders to have children released from detention centres:
This was an appeal against a decision of Justice Dawe given in October 2002 to the effect that the Family Court had no jurisdiction to make orders in respect of certain children held in immigration detention.
The Full Court's Decision-Summary
On appeal, the Full Court (Chief Justice Nicholson and Justices Ellis and O'Ryan) considered whether the Family Court, in exercising its welfare jurisdiction and injunction powers, can make orders to release the children from detention. If the Court could not make such orders, they also considered whether the Court had the power to make other types of orders for the protection of the children.
The Court found that the Family Court has a broad jurisdiction in relation to the welfare of children. This power is akin to the ancient parens patriae jurisdiction of the English Courts exercised on behalf of the Sovereign who was considered to have the power to protect those who could not otherwise care for themselves. It extends to protection against prospective as well as present harm and to orders generally which affect the welfare of children.
The Court agreed that its welfare jurisdiction extended to the protection of children in immigration detention
In addition the majority of the Court (Chief Justice Nicholson and Justice O'Ryan) with Justice Ellis dissenting, found that for the purposes of this case the United Nations Convention on the Rights of the Child (UNCROC) (which was ratified by Australia in January 1991), had been incorporated into the Family Law Act by the Family Law Reform Act 1995 pursuant to the external affairs power contained in the Constitution. They considered that the external affairs power is therefore an additional source of the Family Court's power (together with the marriage, divorce and incidental powers) when it is considering the welfare of children.
The majority of Judges found that, if they are wrong in determining that the Family Court has the power to order the release of the children, the Court may still give directions about the nature and type of detention in which the children are held, and may also decide issues relating to the medical and educational facilities available to them while in immigration detention.
The Court set aside the relevant orders of Justice Dawe and ordered that the case be remitted for rehearing as a matter of urgency. Since the making of that order the Full Court issued a certificate allowing an appeal by the Minister for Immigration to the High Court of Australia but declined to stay the operation of its orders pending the hearing of that appeal. The appeal was fixed for hearing on 30 September 2003.
B and B v The Minister for Immigration and Multicultural and Indigenous Affairs [unreported] 1 & 5 August 2003
This was an application for release from detention on an interim basis by five children held in the South Australian Baxter Detention Centre. Justice Strickland found that the children were being held indefinitely in unlawful detention. However, Strickland J found it was not in their best interests to order their short-term release. His reasons for refusing to order the release of the children included that they would not be separated from their parents and he was not convinced that the proposed arrangements for the children on release were adequate.
This was an appeal from the decision of Strickland J made on 5 August 2003. The Full Court of the Family Court (Kay, Coleman and Collier JJ) ordered the immediate release of the children from detention. The Family Court claimed jurisdiction over the welfare of children in detention.
However, the Commonwealth is appealing to the High Court against the Family Court's jurisdiction in this matter.
Parliamentary Library Publications
Hancock, N.,'Refugee Law:
Recent Legislative Developments', Current Issues Brief, no. 5, 2001-02.
Millbank, A., 'The Detention
of Boat People', Current Issues Brief, no. 8, 2000-01.
Millbank, A., 'The Problem with
the 1951 Refugee Convention', Research Paper, no. 5, 2000-01.
Millbank, A., 'Boat
People, Illegal Migration and Asylum Seekers: In Perspective', Current
Issues Brief, no. 13, 1999-2000.
York, B., 'Australia
and Refugees, 1901-2002: Annotated Chronology Based on Official Sources'.
is also available (Chronology, no. 2, 2002-03).
Department of Immigration and Multicultural and Indigenous Affairs (DIMIA)
Human Rights and Equal Opportunity Commission (HREOC)
Joint Standing Committee on Migration, Not the Hilton: Immigration Detention Centres: Inspection Report, September 2000
Ombudsman reports and publications page for reports on detention centres and related issues
Refugee Council of Australia
Refugee Review Tribunal
Amnesty International Children in Detention page with comment on the detention of children in Australia
Citizenship and Immigration Canada (CIS) Refugee page, Asylum page and the Canadian Immigration and Refugee Board
Human Rights Watch Refugee Children page with comment on Australia and a report on Australian Asylum Policy
New Zealand Immigration Service and Removal Review Authority
UK Home Office Immigration Asylum page
UK Children out of Detention (ChilOut) (there is also an Australian lobby group of this name)
UK Refugee Council Child refugee
United Nations documents:
UNHCR Child Refugee page
UN, Human Rights and Immigration Detention in Australia: report of Justice P. N. Bhagwati, Regional Advisor for Asia and the Pacific of the United Nations High Commissioner for Human Rights, mission to Australia, 24 May to 2 June 2002
UN, Working Group on Arbitrary Detention, visit to Australia report, led by Mr Louis Joinet, Chairman/Rapporteur of the Working Group, January 2002
US Bureau of Citizenship and Immigration Services (formerly the INS, now the BCIS) Detention page, Asylum page, Refugee page and Juvenile Detention page
US Committee for Refugees Child asylum seekers guidelines and specific reports on Australia
Bessant, J., 'Australia's Child Asylum Seekers', Alternative Law Journal, vol. 27, no. 4, August 2002.
Fazel, M. and A. Stein, 'Mental Health of Refugee Children: Comparative Study', British Medical Journal, vol. 327, 19 July 2003.
Goodchild, S. and J. Dillon, 'The Scandal of Britain's Asylum Children', The Independent, 15 June 2003.
Millbank, A., 'The Detention of Boat People', Current Issues Brief, no. 8, Department of the Parliamentary Library, 2000-01.
Newman, L. et al., 'Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention', Australian Psychiatry, vol. 10, no. 2, June 2002.
Zwi, K. et al., 'A Child in Detention: Dilemmas faced by Health Professionals, Medical Journal of Australia, vol. 179, no. 6, 15 September 2003.
For copyright reasons some linked items are only available to Members of Parliament.