Children in Detention: Is Australia breaching International Law?

The Australian Human Rights Commission is conducting an inquiry into Australia’s detention policy in relation to children who are seeking asylum and are placed in detention during the process. As of the end of February, the Immigration Department reported, “there were 929 children in immigration detention facilities and alternative places of detention in Australia, and a further 177 children in offshore detention in Nauru. The average amount of time people spend in detention is more than eight months.” Australia is a signatory to the Convention on the Rights of Child; before that, it ratified the International Covenant on Civil and Political Rights, commonly referred to as the ICCPR. These conventions incorporate articles that protect children’s rights to liberty and prohibit arbitrary detention.

It is important to note the protections established in these Conventions. Specifically, Article 37 of the Convention on the Rights of the Child states that “no child shall be deprived of his or her liberty unlawfully or arbitrarily.” Furthermore, “[t]he 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.” For its part, Article 9 of the ICCPR states that “[n]o 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.”

The president of the Human Rights Commission, Gillian Triggs, preceding a visit to the detention centers stated that Australia’s detention policies could be in violation of international law. Indeed, the Human Rights Committee has already ruled that Australia’s immigration detention practices, for all ages, violate the ICCPR. Furthermore, the United Nations Guidelines for the detention of refugees also state that minors seeking asylum should not be placed in detention centers.

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