Australia has voluntarily entered into treaties and agreements with other sovereign states. These international instruments create a framework within which Australia must work to maintain its status as a responsible member of the international community. However, Australia’s current offshore processing laws and policy are fundamentally incompatible with Australia’s obligations under international law. ChilOut believes that Australia must honour its agreement to respect and be bound by the rules and obligations concerning children and ensure children are given the opportunity to enjoy their basic human rights.
Convention on the Rights of the Child
The Convention on the Rights of a Child contains 54 articles that assure children are granted the right to education, medical treatment and more. Apart from establishing these basic human rights, the Convention also covers rights regarding privacy, free religion and legal aid. The Convention also states that child refugees are to have the same rights as a child born in the host country. Notably, Article 37 states 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."
The Australian Human Rights Commission has publicly stated that Australia is clearly violating article 37 of the Convention as its use of immigration detention is not a last resort, but a mandatory first measure. In the majority of cases, children seeking asylum are held in Australian detention centres for eight months or more, which is not in accordance with the Convention’s ‘shortest appropriate period of time’ stipulation.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The United Nations Special Rapporteur on Torture has found that several aspects of the Australia’s asylum seeker policies violate the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention prohibits subjecting people to cruel, inhuman or degrading treatment. The report states that by indefinitely holding asylum seekers in immigration detention centres, Australia is failing to meet the basic standards of the Convention.
The recent amendments to the Maritime Powers Act, which give the government unprecedented powers to detain and return asylum seekers intercepted at sea, along with the government’s failure to protect vulnerable individuals amounts to several serious violations of the Convention. The Rapporteur's report states that Australia has repeatedly breached its obligation to fully cooperate with the UN Special Rapporteur during investigations; it criticises the Australian government for providing inadequate responses to complaints.
International Covenant on Civil and Political Rights
Article 9 of the Covenant states that:
"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."
Australia’s offshore processing laws and policy are clearly breaching this international rule as asylum seekers are placed arbitrarily into mandatory detention centres.
Convention Relating to the Status of Refugees
The United Nations High Commissioner for Refugees (UNHCR) has issued guidelines on how to interpret the provisions of the Refugee Convention and has stated that, "[c]hildren seeking asylum should not be kept in detention. This is particularly important in the case of unaccompanied children." Article 31 of the Refugee Convention specifically states:
"1. The Contracting States shall not impose penalties, on account of the illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country."
Again, Australia’s laws and policy regarding immigration detention are clearly breaching its obligations under this Convention.