Since 1992, Australian law has stated that all asylum seekers who arrive in Australia by boat must be held in mandatory detention until their claim for asylum has been processed and their refugee status determined. This includes children who arrive by boat. Australian immigration detention centres have been described as very similar to prisons, and some children have spent 5 years in detention. As these children are forced to live in a prison-like environment with adults that are often traumatised and mentally unwell, they are exposed to violence, assault and sexual assault.
The Australian Migration Act contains a principle that a minor shall only be detained as a measure of last resort. It has, however, been a source of significant concern that, despite this, children and their families and unaccompanied minors continue to be subject to routine, prolonged and sometimes indefinite detention, with only temporary protection granted even when refugee status has been confirmed. Australia is the only country in the world to detain children seeking asylum as a first resort, rather than a last resort.
Since 2013, children seeking asylum by boat have been held in an offshore detention centre in Nauru. Children in detention in Nauru are suffering extreme levels of physical, emotional and psychological distress. In some cases, children have gone for over a year without education due to their status in immigration detention. An Australian Human Rights Commission inquiry into the impacts of immigration detention on children found that, over a 14-month period, there were:
- 128 incidents of children self-harming
- 171 incidents of children threatening self-harm
- 233 assaults involving children, including sexual assault
Children and adolescents in detention are 12 times more likely to self-harm and 10 times more likely to attempt suicide than Australian children who are not detained. Additionally, 34% of children in detention were found to have mental health disorders so serious that, if they were living in Australian community, it would warrant immediate psychiatric treatment. By comparison, less than 2% of children in the Australian community have the same high levels of mental health disorders. Recent independent medical reports have outlined that the mental health situation on Nauru is equivalent to victims of torture, with two prominent psychiatrists accusing the Australian Government of ignoring evidence of an unfolding mental health crisis among children on Nauru.
In August 2013, there was an all-time high of 1,992 children held in immigration detention. Luckily, the impact of advocacy groups and their campaigns, such as the Kids Off Nauru campaign, has resulted in huge progress for the situation of children held in immigration detention centres in Australia and in offshore detention centres. Recent reports outline that there are 17 children left on Nauru, with a recent bill introduced in Parliament requiring the temporary removal of all remaining children and their families from Nauru to Australia for medical assessment.
The practice of detaining children should only occur as a last resort, for the shortest possible period of time and with the decision informed by the best interests of the child (for example, to enable the most essential health and safety checks). Australia’s treatment of children seeking asylum by boat, by arbitrarily and indefinitely detaining them in immigration detention centres, is in violation of international law, including the UN Convention on the Rights of the Child (CRC). On 20 November 1989, the CRC was adopted by the UN. The CRC recognised the need for children under the age of 18 to receive special care and protection. Australia ratified the CRC in December 1990, agreeing to protect the rights of children and meet the responsibilities of this treaty, upholding its principles in the policies and practices of the government. As a party to the CRC, the Australian Government needs to report to the UN Child Rights Committee every 5 years on how they are protecting, upholding and realising the rights of children in this country.
Australia’s immigration detention laws, policies and practice should be amended to comply with the CRC. The Royal Australian and New Zealand College of Psychiatrists (RANZCP) have recommended that children should be processed within 7 hours in order to reduce the likelihood of mental distress or disorders. This should be applied to both onshore and offshore Australian detention facilities, which would comply with Article 37 of the CRC 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”. Implementing the articles within the CRC in Australia’s domestic legal system would create a legal framework that will protect the rights of children.
Other international law instruments breached include the Geneva Convention Relating to the Status of Refugees, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
In other jurisdictions
In the US, the Trump administration has recently overturned policy which included separating families who seek asylum in the US by crossing the border illegally, classifying 2,500 separated children as ‘unaccompanied’. The Trump administration has also moved to detain children indefinitely, by introducing a regulation which abolished the longstanding court agreement which required the US government to release immigrant children after 20 days in detention. This has led to a sharp increase in the detention of unaccompanied children, where the number of migrant children in detention has increased substantially, reaching 12,800 in September this year in comparison to 2,400 in May last year.
In the UK, the indefinite detention of immigrant families with children was abolished in 2010. Following this, the 2014 Immigration Act banned the detention of unaccompanied children who arrived in the UK without a responsible adult for more than 24 hours at any one time, but there are still circumstances where unaccompanied children are detained. Prior to this legislative change, statistics suggest that in 2009, more than 1,100 children entered immigration detention. Following this, the number of detained children fell to 127 in 2011 and fell further to 42 in 2017. While the UK’s immigration detention policy regarding children has been favourable for children’s rights, dozens of children – and possibly hundreds – are separated from a parent or carer in the UK every year, according to a charity that challenges immigration detention.
 Chemali, N. 2018, ‘It’s great to get kids off Nauru, but detention centres in Australia are like prisons’, The Guardian, 31 October 2018.
 Doherty, B. 2018, ‘Each time Australia delays bringing a sick child from Nauru, the stakes get higher’, The Guardian, 11 July 2018.
 Millar, L. 2015, ‘Australia’s asylum seeker policies heavily criticised at UN Human Rights Council Review’, ABC News, 10 November 2015.
 Australian Human Rights Commission, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention’ 2014.
 Metherell, L. 2018, ‘Nauru mental health situation equivalent to ‘victims of torture’, Medecins Sans Frontieres says’, ABC News, 3 December 2018.
 Rousset, O., Worthington, A. & Lewis, D. 2018, ‘Early warnings of child mental health crisis on Nauru fell on deaf ears, health experts say’ ABC News, 31 October 2018.
 ‘Human rights groups call for children to be taken off Nauru’, BBC News, 20 August 2018.
 ‘Five more kids evacuated off Nauru’, SBS News, 19 November 2018.
 Migration Amendment (Kids off Nauru) Bill 2018, Australian Parliament, 22 October 2018.
 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3
 The Royal Australian & New Zealand College of Psychiatrists, ‘Mental health needs of child asylum seekers and refugees’, November 2018.
 Meng, G. 2018, ‘Trump Administration Seeks to Detain Children indefinitely’, Human Rights Watch, 7 September 2018.
 Dickerson, C. 2018, ‘Detention of Migrant Children Has Skyrocketed to Highest Levels Ever’, The New York Times, 12 September 2018.
 ‘Detaining children of failed asylum seekers to end’, BBC News, 16 December 2010.
 McIntyre, N. & Taylor, D. 2018, ‘Britain’s immigration detention: how many people are locked up?’, The Guardian, 11 October 2018.
 The Migration Observatory at the University of Oxford, Immigration Detention in the UK, 3 July 2018.
 Cobain, I. 2018, ‘UK immigration authorities separating children from parents’, The Guardian, 3 July 2018.
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