The Australian Human Rights Commission’s (AHRC) Forgotten Children Report (Report) was tabled in Parliament on 11 February 2015. Whilst the Report has been the subject of significant political controversy, there has been limited discussion or analysis of its content.

This article seeks to highlight two important findings in the Report. First, Australia’s indefinite detention of asylum-seeking children and their families reveals a tension between our domestic legislation and our obligations to protect children under international law. Secondly, the indefinite or prolonged length of the detention of children gives rise to a multitude of harms, compounding the gravity of Australia’s violations of its international obligations.

The findings of the Report are startling. At the time of its publication, Australia held 800 children in mandatory closed immigration detention (including 186 children detained on Nauru) for indefinite periods, ‘with no pathway to protection or settlement’. Over 100 babies had been born in detention, with no experience of life outside detention centres. As at March 2014, children and their parents had been detained for an average of 413 days, with some children detained for over 27 months due to their parents having had adverse security assessments. In 2013, over 200 physical and sexual assaults involving children were reported in immigration detention centres. During a 15-month period from January 2013 to March 2014, 128 children in detention engaged in self-harm, whilst 34 per cent of detained children had developed serious mental health disorders. The Report also establishes clear correlations between the length for which children are detained and the deterioration of their mental health and development.

The detention of children under Australian law

Australia is the only country in the world that mandates the closed and indefinite detention of asylum-seeking children as a first action. Section 189 of the Migration Act 1958 (Cth) (Act) requires an officer to detain an ‘unlawful non-citizen’ in the ‘migration zone’. Under section 5AA of the Act, mandatory detention extends to ‘unauthorised maritime arrivals’ (which includes children) as well as the children of unauthorised maritime arrivals subsequently born in detention.

The Report notes that countries including Greece, Malaysia and the US detain children for immigration matters, however, unlike Australia, ‘detention … is not mandatory and does not occur as a matter of force’. Whilst Australia was one of the first states to sign and ratify the United Nations Convention on the Rights of the Child (CRC) in 1990, the CRC has not been incorporated into Australian law by legislation.

The High Court held in Al-Kateb vs Godwin that it is not contrary to Australian law to keep a person in immigration detention, even if the removal of that person from Australia would not occur in the foreseeable future. As a result of the decision, the Department of Immigration and Border Protection insists that ‘there is no time limit on the lawfulness of detention under Australian law’. Nonetheless, when considering the indefinite detention of children, the High Court confirmed in Teoh’s Case that, when making decisions that affect children, government officials should take into account the rights guaranteed by the CRC. As discussed below, the rights afforded to children under the CRC have been superseded by the indefinite nature of their detention.

Breaches of the United Nations Convention on the Rights of the Child

The Report argues that the detention of asylum-seeking children in Australia violates the basic protection provided to children under international law.

Pursuant to article 37(b) of the CRC, the detention of children is ‘only as a measure of last resort’ and must not be arbitrary. The detention of children will not be ‘arbitrary’ where it is ‘necessary and reasonable’ in all the circumstances of the child’s claims for asylum. Further, the detention of the child must be a proportionate means to achieving a legitimate aim.

The AHRC finds that, in the majority of cases, the detention of children has been arbitrary within the meaning of article 37(b). This is due to children being detained as a first action and held in detention irrespective of whether the child or their family poses an unacceptable risk to the Australian community. The finding underlines a serious failure to give effect to international human rights law in Australia’s domestic legislation, namely the above-mentioned sections of the Act.

The AHRC also determines that the indefinite detention of children undermines the ‘best interests’ principle enshrined in the CRC. Article 3(1) of the CRC stipulates that ‘in all actions concerning children … the best interests of the child shall be a primary consideration’. The Report provides a breakdown of the psychological, developmental and physical effects of immigration detention on children of varying ages and argues that current immigration law fails to address the particular vulnerabilities of those children. Further, it states that indefinite detention fails to consider the individual circumstances of children and does not address the best interests of the child as a primary consideration.

Importantly, the AHRC finds that the adverse effects of detention, such as instances of self-harm and abuse, mental health disorders and developmental delays have almost always been exacerbated by the length at which children are detained. Accordingly, the longer a child is held in detention the more serious the violation of their rights under the CRC becomes.

In the eyes of this author, it is uncontroversial that children are subject to specific vulnerabilities and, as such, should be afforded special protection under both domestic and international law.

And yet, the disparity between Australia’s domestic legislation and its international obligations, as well as the indefinite nature of immigration detention, illustrates that both sides of Australian politics have failed to recognise the vulnerabilities of asylum-seeker children and protect them from the multitude of harms arising from immigration detention.

Nina Gibson works in public international policy, having held positions at UN Women, the Australian Institute of International Affairs and the Extraordinary Chambers of the Courts of Cambodia. Nina holds a Bachelor of International Relations and a Masters of Law, Governance and Development, both from the ANU. The views in this article are solely her own.