Children in detention: Is Australia breaching international law?

Updated

The Australian Human Rights Commission is conducting an inquiry into Australia's practice of placing asylum seeker children in detention. Following a visit to Christmas Island's detention facilities in March, the president of the Human Rights Commission, Gillian Triggs, said Australia was in breach of international law.

"As a matter of very clear international law children should not be detained for anything more than what is absolutely necessary for health checks and security checks," Professor Triggs told ABC News 24.

ABC Fact Check investigates the legal responsibility the Australian government has for asylum seeker children under its care.

The claim: Gillian Triggs says under international law, children should not be detained for longer than absolutely necessary for health and security checks. The verdict: Experts agree with Professor Triggs, and UN treaties also make it clear that children should not be placed in detention for any length of time.

Children in detention

Under Australian law, asylum seekers who arrive by boat are put in detention until their claim has been processed and their refugee status determined. This applies to people of all ages.

The Immigration Department said at the end of February there were 929 children "in immigration detention facilities and alternative places of detention" in Australia, and a further 177 children in offshore detention in Nauru. The average amount of time people spend in detention is more than eight months.

What is the law?

Fact Check asked the Human Rights Commission for evidence to support Professor Triggs's claim. The commission said it was based on two United Nations treaties.

Australia is a signatory to the Convention on the Rights of the Child, which sets out international benchmarks for the care and rights of all children. The age limit in Australia is the 18th birthday. It is lower in a country that specifies adulthood as beginning at a younger age.

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. Convention of the Rights of the Child

Article 37 of the convention says that "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," it says.

Article nine of the International Covenant on Civil and Political Rights, which Australia ratified in 1980, says "everyone has the right to liberty and security of person".

"No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law," it says.

United Nations guidelines on the detention of refugees also clearly state that children should not be placed in detention. "Minors who are asylum-seekers should not be detained," the guidelines say.

John Howell, a lawyer for the commission, says the UN Human Rights Committee recently ruled that Australia's detention of people in immigration - not just children - was arbitrary and in violation of the civil rights covenant.

"Detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in light of the circumstances and reassessed as it extends in time," the committee said in its August 20, 2013 ruling.

"Asylum-seekers who unlawfully enter a State party's territory may be detained for a brief initial period in order to document their entry, record their claims, and determine their identity if it is in doubt.

"To detain them further while their claims are being resolved would be arbitrary absent particular reasons specific to the individual, such as an individualised likelihood of absconding, danger of crimes against others, or risk of acts against national security.

"The decision must consider relevant factors case-by-case, and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties, or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review," the committee said.

How does it apply to Australia?

Kevin Boreham, a lecturer in international law at the Australian National University, tells Fact Check that because Australia is a signatory to the Convention on the Rights of the Child there is an obligation to abide by its conditions, including Article 37 outlined above.

"Australia is bound under international law to obey this obligation," he said. Mr Boreham says it is "theoretically possible" for a child held in immigration detention to make a complaint to the UN Committee on the Rights of the Child, but that Australia has not ratified the optional protocol attached to the convention that would allow children to do so.

International law and children's rights expert Professor John Tobin from the University of Melbourne agrees that Australia is in breach of Article 37 of the Convention on the Rights of the Child and also Article Nine of the International Covenant of Civil and Political Rights.

Professor Tobin says several complaints about Australia's detention policy have been made to the United Nations Human Rights Committee, the international body that monitors compliance with the covenant. He says the committee has previously found Australia's policy of mandatory detention of both children and adults to be in violation of the covenant.

The verdict

The experts Fact Check spoke to said Professor Triggs was right that international law does not allow for the detention of children for longer than absolutely necessary.

The United Nations guidelines on the detention of asylum seekers also make it clear that children, protected by the Convention on the Rights of the Child, should not be placed in detention for any length of time.

Professor Triggs is correct.

Sources

Topics: immigration, government-and-politics, international-law, federal-government, human, australia, nauru

First posted