The past, the present and the future: Australia's policy and practice of detaining child asylum seekers

Belinda Giles

Child asylum seekers subject to Australia's immigration law have been consistently placed in immigration detention facilities, despite Australia's international human rights obligations to the contrary. An examination of past and present detention policies envisages an uncertain future for incoming children seeking asylum in Australia, calling for legislative reform and the increased use of community based alternatives to detention. This is an important area of Australian law to consider because the detention of child asylum seekers has recently been a topical area of legal and political debate in Australia. Furthermore, immigration detention has a profound impact on children and accordingly, the protection of child asylum seekers from such detention is a fundamental humanitarian and legal responsibility. An examination of the past immigration detention regime and present circumstances regarding child asylum seekers in Australia, from an international human rights law perspective, shows consistent and systematic breaches of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. Specifically, these breaches related to the obligations to only detain children as a last resort and to make a child's best interests a primary consideration in decision making, and the prohibition against arbitrary detention. This is significant to the future treatment of child asylum seekers because the breaches identify the key problem areas in Australian law that require reform. Accordingly, legislative reform is required to incorporate community based alternatives to detention, the best interests of children and adequate judicial review of immigration detention.

The past, the present and the future: Australia's policy and practice of detaining child asylum seekers

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