Should Kids be Held in Immigration Detention Centres?

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More than 400 doctors from the Royal Children’s Hospital in Victoria are refusing to send children back to the Nauru offshore detention centre, creating tensions between the hospital and Immigration Department.

The doctors believe that discharging children into the inhumane conditions of Nauru would amount to a breach their ethical obligations, a spokesperson telling the ABC that:

“In children from detention, our team see children with nightmares, bed wetting and severe behaviour problems, children from detention develop anxiety and depression.”

Doctors report that it is nearly impossible to effectively treat children at offshore detention centres, 93 of whom are being held at Nauru.

Victorian Health Minister Jill Hennessy supports the doctors, saying:

“I am extremely proud to be a health minister in a state where its doctors and nurses are putting the interest of children first. If the staff of the Royal Children’s Hospital came to the clinical view that it is not in the interests of those children to go back into detention, then we will support them.”

Legal Implications

There is no doubt that doctors have both an ethical and legal duty of care towards their patients.

But the question of whether the Australian government has a legal responsibility towards those in offshore centres depends largely on whether it has “effective control” over those facilities. If so, it can be argued that the government owes a similar duty of care towards detainees as state governments currently owe to inmates in Australian prisons.

The Immigration Department claims that it does not have “effective control” over offshore detention centres. It says that the responsibility for detainees rests solely with the Nauruan government.

But the fact is that Australia paid for the Nauru detention centre to be built in order to serve Australia’s perceived interests. Australia pays contractors to run the centre and makes decisions regarding how it is run. Nauru essentially acts upon directions by the Immigration Department – for an enormous fee. In those circumstances, it is difficult to see how the Department could sensibly argue that the Centre is under the “effective control” of Nauru, rather than Australia.

Rather, there appears to be a strong argument that – despite its geographical location – Australia effectively controls the Nauru detention centre and therefore has a duty of care to protect the welfare of detainees, including children.

Passing the Buck

In a tragic example of blame shifting, the Australian government refused to take action when reports emerged of a 26-year-old female asylum seeker being raped by two Naruan men at the facility. This is despite the fact that the woman was sent to Nauru after seeking asylum in Australia.

In another shocking case, the Australian government initially refused to fly an asylum seeker to Australia for an abortion despite the fact that she was also raped at the Nauru centre. The government ultimately caved-in to pressure and allowed her to have the abortion on Australian shores.

So while our government ‘talks-the-talk’ when it comes to protecting the rights of women, it seems that this does not apply to vulnerable women who are raped in our offshore immigration detention centres.

International Law

The 2015 Human Rights Watch World Report and the United Nations Human Rights Council have criticised Australia for breaching its international obligations by failing to protect asylum seekers against physical and sexual abuse at detention centres, and for the inhumane treatment of asylum seekers generally.

United Nations Special Rapporteur, Juan Mendez, expressed concerns that Australia is allowing children to be detained in places where they are at risk of physical and sexual abuse, and in conditions that can have a devastating long term impact upon their mental health.

Australia has signed and ratified the UN Convention on the Rights of the Child. Article 3(3) of that treaty says:

“States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff.”

It seems that by denying “effective control” over offshore detention centres, Australia is trying to circumvent its duty to keep children safe and healthy, among other things.

Article 37 of the Convention requires that:

“(b) 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;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person …”

Again, denying “effective control” is a convenient way for the government to circumvent the prohibition against depriving children of their liberty except as a last resort, and the requirement to treat children with humanity and respect. Immigration detention centres are certainly not a ‘last resort’, and the fact that asylum seekers, including children, can be detained indefinitely – often spending years in detention – appears to breach the requirement that any unavoidable detention must be for the ‘shortest appropriate period of time’.

So kudos to the doctors for standing up for the rights of children in detention centres, and for drawing attention to the inhumanity of indefinitely detaining frightened and vulnerable kids together with adults in camp-like conditions behind barbed-wire fences.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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