Larking, Emma --- "The Forgotten Children report" [2015] PrecedentAULA 40; (2015) 128 Precedent 48

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THE FORGOTTEN CHILDREN REPORT

By Emma Larking

The report of the Australian Human Rights Commission’s (AHRC) most recent national inquiry into the impact of immigration detention on children, The Forgotten Children, was publicly released in February this year and immediately dismissed by the Prime Minister, Tony Abbott, as ‘a political stitch-up’.^[1] The PM claimed that the timing of the inquiry was evidence of its politically partisan nature. The inquiry was launched six months after his government took power, when the number of children in detention had fallen from the record high reached under Labor in July 2013. AHRC President, Professor Gillian Triggs, claimed that because a federal election was imminent, she decided to wait on its outcome and possible changes to Australia’s asylum seeker policies before launching an inquiry.^[2] The Coalition government took power in October 2013. The number of children in detention then decreased significantly, but Triggs claimed that over the next six months ‘children were being held for significant periods and were not being released. While the [asylum seeker] boats were stopping, the children were being detained for lengthening periods of time. When the inquiry was announced ... children had been held on average for seven months and 1,006 remained in closed indefinite detention.’^[3]

OVERVIEW

The inquiry launched by the AHRC in February 2014 was conducted over eight months to October 2014. It had two aims: (1) to assess the impact of prolonged immigration detention on children’s health, wellbeing and development; and (2) to promote compliance with Australia’s international obligations to act in the best interests of children.^[4] It involved visits by AHRC teams and medical experts to 11 detention centres. During these visits, children and their families were asked to answer standardised questionnaires about the health impacts of detention. Responses were provided by 1,129 participants. The inquiry also held five public hearings with 41 witnesses, and received 239 submissions from schools, medical service providers, and NGOs. Finally, focus groups were held with young adults who had been detained as children and who could testify about the long-term impacts of detention. The AHRC was assisted throughout its inquiry by child psychiatrists, paediatricians, and health professionals: its findings are based on the medical evidence thus obtained.^[5]

THE IMPACT ON CHILDREN

In relation to the inquiry’s first aim, the report’s assessment of the impact of detention on children supports what we know already: that immigration detention is a dangerous and damaging place for children.^[6] The Commission found that ‘children in immigration detention have significantly higher levels of mental health disorders compared with children in the Australian community’^[7] and that ‘the deprivation of liberty and the exposure to high numbers of mentally unwell adults are causing emotional and developmental disorders amongst children’.^[8] It also documented ‘numerous reported incidents of assaults, sexual assaults and self-harm involving children’ in detention.^[9] It concludes that children detained on Nauru, in particular, are ‘suffering from extreme levels of physical, emotional, psychological and developmental distress’.^[10] This is consistent with a recent inquiry into allegations of sexual and other physical assaults on detainees, including children, held in immigration detention on Nauru. The ‘Moss Review’ found many of these allegations to be credible,^[11] and also noted that assaults on Nauru are under-reported.^[12]

We have known that immigration detention has terrible impacts on children since at least 2004, when the AHRC’s predecessor, the Australian Human Rights and Equal Opportunity Commission (HREOC), released the findings of a three-year national inquiry that investigated the circumstances of children and their families in Australia’s immigration detention centres.^[13] In its report of its inquiry, A Last Resort?, HREOC concluded that detention has a negative impact on children’s wellbeing and particularly on their mental health,^[14] a conclusion which is hardly surprising. As then Human Rights Commissioner, Dr Sev Ozdowski, pointed out in his ‘foreword’ to the report:

‘Australians don’t need a team of experts or dramatic media stories to convince them that detention centres are no place for children to grow up. However, this Inquiry analysed evidence from an enormous number of sources in order to objectively assess whether this gut reaction was right. The answer is conclusive – even the best-run detention centre is no summer school or holiday resort. In fact, they are traumatising places which subject children to enormous mental distress.’^[15]

Many of HREOC’s findings and recommendations from 2004 are duplicated in the findings of The Forgotten Children report.^[16] A Last Resort? found that Australia’s immigration detention laws, as they are applied to children, ‘are fundamentally inconsistent with the Convention on the Rights of the Child (CRC)’.^[17] The Forgotten Children concurs, finding that the detention of children breaches Australia’s obligations under the CRC, including its obligations to:

• detain children only as a measure of last resort and for the shortest appropriate period of time (article 37(b));

• ensure that children are not arbitrarily detained (article 37(b)); and

• ensure prompt and effective review of the legality of their detention (article 37(d)).^[18]

The Forgotten Children report also finds that children in immigration detention have at various times not been able to enjoy other rights recognised by the CRC, including rights to have their survival and development protected to the maximum extent possible (article 6(2)); to protection from physical or mental violence, injury or abuse, neglect or negligent treatment (article 19(1)); to the highest attainable standard of health and to facilities for the treatment of illness (article 24(1)); to a standard of living adequate for their physical, mental, spiritual, moral and social development (article 27); to education (article 28); and – if deprived of liberty – to 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 their age (article 37).^[19]

A Last Resort? found that children held in immigration detention for long periods of time are at high risk of serious mental harm.^[20] The Forgotten Children is emphatic in its conclusion that ‘prolonged detention is having profoundly negative impacts on the mental and emotional health and development of children’.^[21]

The point of highlighting the close parallels between the findings of A Last Resort? and those of The Forgotten Children is to emphasise that although the implementation of Australia’s mandatory detention policies has varied slightly over the years between the reports, the core elements remain or have been strengthened. As a result, we continue to inflict egregious harm on children, knowing that they will suffer the impacts of this harm for the rest of their lives.

AUSTRALIA’S INTERNATIONAL OBLIGATIONS

In relation to The Forgotten Children’s second aim, the AHRC emphasises that the content of Australia’s international obligations in respect of children, and its finding that mandatory immigration detention breaches those obligations, has been its ‘settled view of the law’ for ‘the last 25 years’.^[22] Rather than advancing a novel or contentious reading of Australia’s human rights obligations under international treaties to which it is party, the AHRC hopes to push Australia towards actually complying with those obligations. The AHRC’s findings regarding international human rights law are supported by the treaty bodies^[23] and by the United Nations High Commissioner for Human Rights, who recently described Australia’s offshore detention regime and policy of boat turn-backs as ‘leading to a chain of human rights violations, including arbitrary detention’.^[24] Given our failure to change course and to reject mandatory detention in the decade since the release of A Last Resort?, however, one wonders how likely it is that The Forgotten Children will succeed in its aim of promoting compliance with Australia’s international obligations to act in the best interests of children.

The report has certainly had some impact in the short term. During the course of the AHRC’s inquiry, the government released around 220 children into community detention or the community on bridging visas, and it also acted to provide schooling for asylum seeker children on Christmas Island – many of whom had been deprived of access to education for an entire year.^[25] The government now claims that the number of children in detention has fallen by 1,400 to ‘just 126’ since it took office.^[26] This figure does not include the 116 children still detained on Nauru.^[27] Although this means that we are continuing to deliberately inflict grave harm on 242 children, it is certainly an improvement on the situation at the time that the AHRC’s inquiry was first announced.^[28]

HUMAN RIGHTS AND MANDATORY DETENTION

It is far too early, however, to pronounce this a victory for human rights. To understand why, it is helpful to return to our comparison with HEROC’s earlier report, A Last Resort? The 2004 inquiry was initiated in response to concerns over the number of children in immigration detention. During the conduct of the inquiry between 1999 and 2002, these numbers reached 842 at their highest point,^[29] as compared with the high reached in July 2013 of 1,992 children in detention.^[30] Replicating the attacks on the AHRC during The Forgotten Children inquiry and upon the release of its report,^[31] HREOC was ‘subject to intense scrutiny and hostility regarding the inquiry’ and the Howard government ‘was initially dismissive of its findings’.^[32] Nevertheless, A Last Resort? played a role in galvanising community opposition to the detention of children and helped spark a backbench revolt in the Howard government.^[33] This led to the release of children from detention and the adoption of amendments to the Migration Act (successfully championed by Liberal backbencher, Petro Georgiou) to provide that ‘a minor shall only be detained as a matter of last resort’.^[34] While these amendments were widely celebrated as an advance for human rights, they were quite the opposite. Rather than entrenching the legislative protection of rights, they simply expanded the Minister for Immigration’s discretionary and non-compellable powers, thus ensuring – as I wrote at the time – ‘that people’s lives [would] continue to be governed by whim and political caprice’.^[35]

This helps us to answer the AHRC’s question in its ‘Introduction’ to The Forgotten Children: ‘How [have] we move[d] so far away from the explicit guarantee in s4AA of the Migration Act ... that “a minor shall only be detained as a matter of last resort”?’^[36] We have moved away from this ‘guarantee’ because successive governments have found it politically expedient to do so, and because s4AA does not in fact provide a legal guarantee or secure a human right – instead, it provides a guiding principle that can be ignored at will.^[37]

It is impossible to reconcile a mandatory immigration detention regime with human rights. This is the true import of The Forgotten Children report and of the countless investigations, inquiries, and reports that have preceded it, including A Last Resort? Mandatory detention deprives men, women, and children of access to the equal protection of the law. It refuses to consider their specific circumstances and claims under the law and, in doing so, denies them treatment as human beings who have inherent dignity. While Australia continues to implement a mandatory immigration detention regime, it cannot consider itself a country committed to the recognition of basic human rights.^[38] Australia will continue to violate the rights of the vulnerable, including children. It will do so even when it happens to be politically expedient in the short term for governments to release significant numbers of children from detention.

Dr Emma Larking is an Australian Research Council Laureate Postdoctoral Fellow at the Centre for International Governance and Justice, Australian National University. EMAIL [e-mail].

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^[1] Michael Gordon & Sarah Whyte, ‘Labor refers offer to find another job for Gillian Triggs to federal police’, The Sydney Morning Herald, 25 February 2015. The report was released by the government at the last possible moment for tabling under the Australian Human Rights Commission Act 1986 (Cth) – it was provided to the government in October 2014 (Gillian Triggs, ‘Protecting Children is Commission’s aim, not political points’, Australian Human Rights Commission Media Release, 16 February 2015).

^[2] Australian Human Rights Commission (2014) The Forgotten Children, p11.

^[3] Gillian Triggs, ‘Protecting Children is Commission’s aim’ – see note 1 above.

^[4] The Forgotten Children, p10.

^[5] Ibid, p12.

^[6] Ibid, p10.

^[7] Ibid, p13.

^[8] Ibid, p30.

^[9] Ibid, p13.

^[10] Ibid.

^[11] Philip Moss, Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, 6 February 2015, Executive Summary paras 20-21; 1.33 & 1.55.

^[12] Ibid, paras 16-17.

^[13] The Forgotten Children, p17.

^[14] Human Rights and Equal Opportunity Commission (April 2004) A Last Resort? National Inquiry into Children in Immigration Detention.

^[15] Ibid, p2.

^[16] Appendix 1 of The Forgotten Children report outlines the key findings and recommendations of A Last Resort? (The Forgotten Children, pp239-40.)

^[17] A Last Resort?, p5.

^[18] The Forgotten Children, p29.

^[19] Ibid, pp29-37, and A Last Resort?, p6.

^[20] A Last Resort?, p6.

^[21] The Forgotten Children, p29.

^[22] Ibid, p10.

^[23] See, for example, the cases relating to immigration detention in Remedy Australia, ‘Follow Up Report on violations by Australia of ICERD, ICCPR & CAT in individual communications (1994-2014)’, 11 April 2014, available at http://remedy.org.au/reports/2014_Follow-Up_Report_to_treaty_bodies.pdf.

^[24] See The Forgotten Children, p11.

^[25] Ibid, pp13 and 31.

^[26] James Massola, ‘Malcolm Turnbull contradicts Tony Abbott on Gillian Triggs strategy’, The Canberra Times, 25 February 2015.

^[27] As of 23 February 2015: Lisa Martin, ‘Kids in Aust detention to return to Nauru’, The West Australian/AAP, 23 February 2015.

^[28] Gillian Triggs, see note 3.

^[29] The Forgotten Children, p17.

^[30] Gillian Triggs, see note 3; Australian Human Rights Commission, The Forgotten Children: Report of the National Inquiry into Children in Immigration Detention, 2014, p11.

^[31] Michael Gordon & Sarah Whyte, see note 1.

^[32] The Forgotten Children, p17.

^[33] Also significant at the time was public outrage over the mistaken detention of Australian citizens, Cornelia Rau and Vivian Alvarez Solon.

^[34] Migration Act 1958 (Cth), s4AA: ‘(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.’

^[35] Emma Larking, ‘Rights under attack’, Refugee Action Collective (Victoria) Newsletter, December, 2005.

^[36] The Forgotten Children, p18.

^[37] HREOC pointed out that s4AA is couched only as a statement of principle and does not create legally enforceable rights in its 2008 submission to the Joint Standing Committee on Migration’s Inquiry into immigration detention in Australia (4 August 2008), para.51, available at http://www.hreoc.gov.au/legal/submissions/2008/20080829_immigration_detention.html#fnB24.

^[38] See Emma Larking, ‘Realism and Refugees’, Regarding Rights Blog, 28 November 2012, available at http://asiapacific.anu.edu.au/regarding-rights/2012/11/28/realism-and-refugees.