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The Commission, which conducted a 10-month inquiry into children in detention, called for all children to be moved into the community within a month.
Tabled on Wednesday, its long-awaited report stated that the "prolonged, mandatory detention of asylum seeker children" was in breach of Australia's international obligations and the use of force to transfer some children had breached their human rights.
It further stated that the Minister for Immigration and Border Protection had failed in his responsibility to act in the best interest of unaccompanied children.
But the Federal Government has dismissed the finding that the Commonwealth had breached its international obligations, labelling the Commission’s views “contestable”.
The inquiry found that children in immigration detention had significantly higher rates of mental health disorders than children in the Australian community, with more than a third of children suffering from serious mental health problems.
‘Australia is better than this’
Commission President Gillian Triggs hoped the inquiry’s findings would result in the immediate release of children in immigration detention.
Professor Triggs said it was of “profound concern” that the Government has recently introduced amendments to the Migration Act to redefine the definition of ‘refugee’ to meet government policy rather than international law.
“It is imperative that Australian governments never again use the lives of children to achieve political or strategic advantage,” she said.
“The aims of stopping people smugglers and deaths at sea do not justify the cruel and illegal means adopted.
“Australia is better than this.”
‘Children in detention is a problem created exclusively by the former Labor Government’
Attorney-General George Brandis said the government was “disappointed and surprised” that the Commission did not start this inquiry until 2014.
“This government, like the Howard Government before it, is committed to removing all children from detention,” he said.
“In short, children in detention is a problem created exclusively by the former Labor Government, which has largely been solved by the current Abbott Government.”
Mr Brandis said the government had made “significant progress” in policies and practise since the inquiry began.
“All people in immigration detention, including families and children, are provided with appropriate care, treated with dignity and respect, and have their claims addressed as soon as is reasonably practicable and consistent with government policy,” he said.
Amnesty International and child protection groups are calling for the immediate release of all children in detention, following the release of the report, the timing of which was criticised by Greens Senator Sarah Hanson-Young.
Senator Hanson-Young condemned the delayed tabling of the report, claiming the government had “done its best to bury” it.
The Commission’s recommendations
The Commission recommended that all children be released into community detention with their families or into the community on bridging visas.
It also called for legislation to be put in place to ensure children detained under immigration laws are only held for "so long is necessary for health, identity and security checks."
Further recommendations included:
- Assessment of refugee status be commenced immediately according to the rule of law.
- No child be sent offshore for processing unless it is clear that their human rights will be respected.
- An independent guardian be appointed for unaccompanied children seeking asylum in Australia.
- An independent review be conducted into the decision to approve the use of force to transfer unaccompanied children on Christmas Island on 24 March 2014.
- All detention centres be equipped with sufficient CCTV or other cameras to capture significant incidents in detention.
- ASIO review the case of each parent with an adverse security assessment in order to identify whether their family can be moved into the community.
- Alternative community detention be available for children of families assessed as security risks.
- Children in immigration detention be assessed regularly using the HoNOSCA mental health assessment tool.
- Children currently or previously detained at any time since 1992 have access to government funded mental health support.
- Children in detention who were denied education on Christmas Island for a year be assessed to determine what educational support they require.
- Children and families in immigration detention receive information about the provision of free legal advice and access to phones and computers.
- Legislation be enacted to give direct effect to the ‘Convention on the Rights of the Child’ under Australian law.
- An independent review of the implementation of these recommendations be conducted in 12 months.
Advocates call for ban on detention
Australia’s human rights groups and child rights advocates have urged a bi-partisan commitment to end the detaining of children in immigration detention.
GetUp Campaigns Chief Erin McCallum said the report records alarmingly high levels of self-harm and significant mental health problems amongst children.
“Whatever your political persuasion, locking up innocent kids in hideous detention camps is barbaric and it has to stop,” she said.
Save the Children’s Director of Policy and Public Affairs Mat Tinkler said the government needed to “immediately end the practice of mandatory detention”, while UNICEF Australia’s Chief Technical Adviser Amy Lamoin said “you can’t keep children safe in detention”.
Human Rights Law Centre’s Director of Legal Advocacy Daniel Webb labelled Australia’s mandatory and indefinite detention of children as “one of the most punitive policy approaches in the world”
“It’s harmful,” he said.
“It’s a breach of international law. It must end.”
Save the Children, Amnesty International and the Asylum Seeker Resource Centre also urged the government to act on the report’s recommendations.