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Thursday, 12 February 2015

Children in detention: A government without compassion

Children in detention: A government without compassion

Prime Minister Tony Abbott dismisses a damning Human
Rights Commission report into children in refugee detention, saying he
feels no guilt about their plight whatsoever. Human rights lawyer Joshua Dale says there needs to be complete overhaul of attitudes amongst Australia's politicians and their constituents.

IT IS with sadness, that one must now accept that the rights of
children in Australia, particularly so far as it concerns Australia’s
immigration policies, have fallen by the wayside

There is now a common theme amongst Australian governments to dismiss
human rights issues when it concerns Australia’s detention facilities
and the treatment of their occupants.

Recently, the Australian Human Rights Commission under the guidance of its president, Gillian Triggs, has engaged in a national inquiry
into children in immigration detention. The report has now been
released, making 16 recommendations, including that all children should
be released from detention in the next four weeks and that a Royal
Commission into the treatment and detention of children should be

This report has been met with strong opposition by the Abbott Government.

The Federal Government’s current approach to ensuring Australia’s
international obligations are upheld is by delegating authority to the Australian Human Rights Commission to investigate and advise.

Outside of the Human Rights Commission's recent findings, there
remains the question of how children or minors accused of people
smuggling are affected by current Government policies.

You may recall reports in 2012 and also 2013 where young Indonesian children, accused with people smuggling crimes, were detained in Silverwater Prison.

Many of these children came from impoverished backgrounds, in which
they were forced into operating vessels on the high seas where they
risked death, all for the purpose of being able to return what can only
be described as a dismal income to their families. Evidence submitted to a Senate Inquiry suggested that many of these individuals had very little knowledge as to whether or not they were, in fact, committing a crime.

When detained in Australia, many of these minors did not have any
identification or birth documents in their possession. In the absence of
identification data, their age was determined by the performance of a
wrist X-ray, which would then be examined for certain levels of
deterioration in the wrist, which could then estimate age of the minor.

Various studies had been in existence prior to the implementation of
law that allowed for age testing with the use of X-ray. These
anthropological studies concluded that there existed a significant
variation in findings and concluded that unreliable results concerning
bone ages had arisen. The conclusions generally were that the testing
methods did not accurately represent multi ethnic child populations. 

For example, a study conducted in 2001 [Mora Et Al, “Skeletal Age Determinations in Children of European and African Decent; Applicability of the Greulich and Pyle Standards”, Paediatric Research
(2001) 50, pp624-628] indicated that African American children had a
greater bone age than those of European decent. The testing standards
made no allowances for differences in genetic make up in so far as it
affected bone age. As a result, the study rejected the adequacy of the
testing method and determined that new standards were thus required.

Despite this, the Australian Government continued to apply this
testing. Indeed, from September 2008 to January 2012, 208
people detained as members of smuggling crews who claimed to be minors
had been detained. After the result of X-ray testing, 86 of these
persons were determined to be adults, despite truly being minors. This
means, in effect, that  Australia’s Government was advocating and
allowing the detention of children in adult prisons based on testing
that, anthropologically speaking, had been rejected almost a decade

A Senate inquiry ensued and a number of recommendations were
made. Whilst the Government generally accepted the recommendations
arising out of the majority report, it disagreed with all further
recommendations made by the Senate Committee, except for the funding of
Government funded legal agencies, such as Legal Aid, to assist
Indonesian minors detained and accused of people smuggling to return to
Indonesia in order to substantiate their age.

Of most concern regarding the outcome is that it took until 2013
before any amendments to crime regulations were made removing the use
of x-ray testing for age. Furthermore, the Human Rights Commission was
not consulted prior to implementing x-ray testing for age despite this
avenue being available to them.

There have remained ongoing issues arising from these events and this inquiry.

For example, there remains a significant issue for children detained
in circumstances where their age is not known, so far as legal
representation is concerned, particularly in relation to any criminal
proceedings arising from minors being detained on people smuggling
charges. Depending on how they plead to criminal offences, this can also
affect other recovery actions against the Government should there be
untoward treatment, such as detaining a minor in an adult prison and any
subsequent injury.

Furthermore, there is an ongoing fear that anyone pleading guilty to
such offences are doing so without adequate advice, legal
representation, or proper knowledge and understanding of the crimes in
which they are charged.  Without ensuring this advice and access to a
proper defence it is clear that Australia will continue to advocate for
laws that allow for breaches of international treaties and procedural

The point here is that there should be no excuse for delaying the
implementation of comprehensive rights based laws that advocate for the
rights of children. Nor should there be any politically motivated attack on a commission charged with protecting Human Rights in Australia.

What history confirms is that the current political landscape looks
to solve immigration and people smuggling policies with short term fixes
without implementing a longstanding agenda that creates a system
whereby Australia maintains its Human Rights obligations, yet maintains a
tough stance on people smuggling and national security issues.

Despite what the current government would have you think with their
mantra and partisan stance of “stop the boats”, this can be achieved by
ongoing consultation with Human Rights based groups, including the Human
Rights Commission.

From an international perspective, policies need to be shifted to
create a more collaborative approach internationally to shut down
illegal people smuggling operations. And more importantly, greater
education needs to be provided to the regions where the operators of the
boats that come to Australia are recruited.

Domestically, it seems that Australia is crying out for human rights
based legislation to be enacted to ensure that breaches of international
human rights are recognised at their earliest stage, not only by our
government when making laws, but also so that they are actionable should
they be breached.

It is clear there needs to be a complete overhaul of attitudes
amongst not only our members of Parliament but also their constituents.
There needs to be current and ongoing checks and balances and there
needs to be an underlying concern and motivation to ensure change not
only to minors held in detention centres but any minor that finds
themselves at the mercy of Australia’s current immigration policies.

Creative Commons Licence

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License

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