Since that time, successive governments have been reluctant to elaborate on their practices of detaining children. The Rudd government went to bizarre lengths to distance itself from its own practice, engaging in the disingenuous rhetorical exercise of re-naming various detention settings in which children were residing (which remained places of detention under the Migration Act 1958), then declaring that they were not places of immigration detention. One month after denying that children were being held in immigration detention, the Gillard government announced plans to remove children from the facilities in which it had denied they were being held.
Children are currently being detained in mainland Australia, Christmas Island and Nauru. Under the Abbott government’s secretive approach to matters falling within the broad ambit of ‘border protection’, little has been said about the plight of child detainees. While it is regrettable that a further public enquiry is necessary, it is not difficult to comprehend the need for such an initiative.
In the course of its public hearings, the committee heard disturbing evidence which has the capacity to shock even those familiar with the area. The revelation from the former medical director of mental health services (for the Immigration Department’s medical services contractor) that the Department had instructed its contractor to withdraw the figures of children experiencing significant mental distress and disorder from its reporting was met with audible gasps. Further evidence was led with respect to the confiscation of glasses, hearing aids and essential medicines, including epilepsy medication required by a three year old girl who subsequently experienced seizures. The Commission was told of sexual and physical assaults on children by guards and fellow detainees, verbal abuse and threats and numerous acts of self-harm. The Commission has received over 230 submissions to its enquiry, including personal accounts from children, parents and other persons held in immigration detention. Its report to the federal government is expected by the end of 2014.
On 19 August 2014, 3 days before his scheduled appearance before the Australian Human Rights Commission’s enquiry into children in closed detention, Immigration Minister Scott Morrison issued a media release entitled ‘Getting children safely out of detention’. He announced that the government had finalised new bridging visa arrangements to provide greater protection and support for young children (under 10 years), and their families. The arrangements will enable these children to be released from detention into the community on bridging visas, if they arrived prior to 19 July 2013. This initiative, which is likely to have resulted in no small part from the efforts of the Australian Human Rights Commission, will result in the release from detention of some 150 children. While it is a welcome development, it does not extend to the 148 children currently detained in the remote offshore territory of Christmas Island or the 193 detained in appalling conditions in Nauru.
Interception, detention and transfer at sea
A boat carrying 157 Tamil asylum seekers which left India bound for Christmas Island in mid-June 2014 was intercepted and its passengers transferred to a customs vessel some two weeks later. The asylum seekers were detained on the customs vessel for almost a month, during which they were reportedly held in windowless rooms and family groups separated.
Due to the government’s approach of operational secrecy, accurate details have not been made available. It has been alleged that the customs vessel travelled towards India and a number of passengers trained to use the orange lifeboats which have come to characterise the Abbott government’s Operation Sovereign Borders.
The government only acknowledged the presence of the vessel on 7 July 2014, the day that the High Court granted an interim injunction preventing the transfer of the asylum seekers to Sri Lanka. It emerged that the previous day, a boat carrying 41 Sinhalese and Tamil asylum seekers had been intercepted by Australian authorities, its passengers subjected to rapid screening via teleconference and transferred at sea to Sri Lankan criminal investigators. The case raised serious concerns with respect to the treatment to be faced by the asylum seekers and Australia’s compliance with its obligations under the Refugee Convention and other international instruments such as the International Covenant on Civil and Political Rights.
The 157 Tamil asylum seekers were then transferred to the immigration detention facility at Curtin, Western Australia on 26–7 July and on 1–2 August were subjected to a clandestine overnight transfer to Nauru. According to immigration minister Morrison, the transfer was a consequence of the asylum seekers’ refusal to speak with Indian authorities.
The treatment of the asylum seekers by the Australian government is currently before the High Court. Since their commencement in early July, the proceedings have required reframing in light of the evolving circumstances of the asylum seekers’ detention, the Australian government’s plan to transfer the group to India and its eventual transfer of the group to Nauru. The questions to be determined by the court will include whether the Australian government had the power to detain the asylum seekers and take them to a place outside Australia.
TANIA PENOVIC teaches law at Monash University.