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HREOC Inquiry into Children in Immigration Report tabled.

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Media Centre HREOC Inquiry into Children in Immigration Report Tabled

Joint media release with the Attorney-General the Hon. Philip Ruddock MP

VPS 68/2004

The Human Rights and Equal Opportunity Commission's Report, following its inquiry into children in immigration detention over the period 1 January 1999 to 31 December 2002, was tabled in Parliament today.

The government rejects the major findings and recommendations contained in this report. The government also rejects the Commission's view that Australia's system of immigration detention is inconsistent with our obligations under the United Nations Convention on the Rights of the Child. (CROC).

The government takes very seriously its international obligations towards children in immigration detention, and its responsibility for the care of all asylum seekers and protection of their human rights. The government considers that current Australian policies take all measures necessary to ensure that the rights of children are protected.

In May 1992 mandatory detention was introduced for certain boat people. On 1 September 1994, with the commencement of the Migration Reform Act 1992, mandatory detention was subsequently broadened to encompass all unlawful non-citizens including unauthorised arrivals.

Australia's obligations under the CROC, including the 'best interests of the child' principle and the principle of detention 'as a measure of last resort', were taken into consideration when Australia's immigration detention regime was established.

The Convention recognises that detention of children can occur 'in conformity with the law', as occurs in Australia in accordance with the Migration Act 1958. Australia has the right under international law to determine who it admits to its territory and under what conditions.

Immigration detention achieves a number of public policy objectives, including monitoring the integrity of Australia's migration program. Immigration detention also ensures that people who arrive in Australia without proper authority are available for health, character, security and identity checking. If their claims to remain are unsuccessful, it ensures people are available for removal.

Consistent with the Convention, children who have entered Australia unlawfully, as well as adults, have the right to seek judicial review of their detention. The government is committed to ensuring that applicants seeking judicial review of protection visa decisions have their claims processed quickly and efficiently.

Last week the government announced a major package of reforms to migration litigation.

This package included a substantial injection of resources into the Federal Magistrate's Court to enable the appointment of eight additional magistrates to handle migration cases more quickly. These important reforms will benefit all judicial review applicants in migration matters including, of course, children.

The HREOC report is very disappointing. In proposing that there should be a presumption against the immigration detention of children, and that family unity should be preserved, the report recommends a model that would in practice encourage the inclusion of children in people smuggling operations. The government will not be encouraging such activity.

The report is unbalanced and backward looking. There is a concerning tendency for the Report to build its case on largely untested statements and anecdotes drawn from groups or individuals with an ideological opposition to detention. Neither the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) nor the detention services provider was accorded complete procedural fairness. For example the public hearing for the department was conducted in an adversarial manner and with a narrow focus which showed little appreciation of the complexity of the issues involved.

The report itself acknowledges that most of the evidence from children, and some from parents and former detention staff, was provided on a confidential basis with the result that the substance of many of the allegations could not be disclosed to DIMIA in sufficient detail to allow it to properly respond to that evidence. The report tends to claim systemic problems on the basis of a small number of cases. Information provided by DIMIA has been inadequately and selectively summarised and then routinely dismissed.

The report has given weight selectively to interpretations of events, rather than grappling with the complexity of the issues.

The report's findings and recommendations fail to appropriately acknowledge the significant practical improvements that have been made to the arrangements for children in immigration detention.

HREOC has also failed to recognise the significance of measures taken by DIMIA to further enhance the safety, welfare and well-being of children in immigration detention.

Over the years there have been varying numbers of children in immigration detention. Back in 1994, at the time that mandatory immigration detention was introduced, there were 342 illegal boat arrival children in immigration detention.

As at 5 May 2004, there were only twelve unauthorised boat arrival children in mainland detention centres. Of those, seven could have moved into alternative detention arrangements, had the parents agreed to do so. The remaining five children were not eligible because of risks to health or security.

As at 5 May 2004, there were twenty-eight children in alternative detention arrangements in the community, including foster care and residential housing projects. Of these, five are unaccompanied youths in home-based foster care arrangements with a State government. All unaccompanied minors are released from detention facilities on the mainland unless they pose a significant flight risk or there are concerns for their safety and welfare. There was only one unaccompanied minor in a mainland detention centre, a seventeen year old who has been detained as a result of compliance action, pending removal

from Australia.

The government has now established residential housing projects in Port Augusta and Woomera in South Australia and at Port Hedland in Western Australia, providing more home-like living conditions for mothers and children. In the Budget, the government announced further Residential Housing Projects would be developed in Sydney and Perth. DIMIA is also continuing to talk to community organisations about expanding their role in providing community-based detention arrangements.

Virtually all children attend school in the community, and all have unrestricted access to comprehensive health care, including access to specialist treatment where necessary. These, and other measures such as ongoing consultations with child protection authorities, and a program of activities and excursions, are designed to properly care for the physical and mental health of children in detention.

If these children or their parents have any concerns about their treatment, or the conditions they are in, they are able to raise such concerns through a range of internal and external complaints mechanisms.

These examples serve to illustrate that the government has diligently worked toward responding to a real and unpredictable challenge. The government's strong but fair border protection policies have had an impact. The number of unauthorised arrivals has dramatically reduced from 4,137 in 2000-01 to 82 in this financial year. This means that the people smuggling trade has also reduced and children have not had to undertake a hazardous journey which may have jeopardised their lives.

The government has developed a system that ensures that the number of children in immigration detention is very limited and that those who are detained are well cared for, without detracting from the level of border integrity that ensures the safety and protection of all Australians.

13 May 2004