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Australian Human Rights Commission Amendment (National Children?s Commissioner) Bill 2012

The Society has conducted consultations with its Social Justice Committee and Family Law Committee in developing this response to the Bill and the following issues in particular:

The Society congratulates the Australian Government on its decision to establish a National Children?s Commissioner (NCC) and welcome the introduction of the Bill. The Society strongly supports the establishment of a full-time and well-resourced National Children?s Commissioner.

  1. The adequacy of funding for the functions of the Commissioner, and whether any of the Australian Human Rights Commission?s existing functions are likely to be compromised as a result.

The Society is concerned that the NCC needs to be properly funded.

  1. How the Commissioner?s function will interact and operate with the State and Territory welfare and guardian responsibilities.

The Children?s Commissioner Northern Territory (CCNT) is an independent statutory officer charged with promoting the wellbeing of vulnerable children. The CCNT is not responsible for investigations of child abuse or neglect. Furthermore, the CCNT is not responsible for children in detention[1].

In the Society?s view it is important that the human rights of all children and young people are promoted and protected. It is crucial that the NCC and the CCNT work collaboratively and that the work of each office compliments that of the other, to achieve a holistic approach. Together both offices ought have own motion inquiry and reporting powers to cover all children and all children?s rights. It is essential that one or the other is dedicated to investigate and advocate on children?s issues whenever they arise. Thus the NCC would deal with Northern Territory children that were not ?vulnerable? as well as those in immigration detention facilities.

LEGAL ASSISTANCE FOR DETAINED MINORS
Children in detention is a major concern of the Society. The liberty of the child is a fundamental right, as outlined under Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Article 37 of the Convention on the Rights of the Child (CRC). Children have particular vulnerabilities because of their age, dependence on caregivers. The detention environment has been found to have a negative impact on the physical, mental and social wellbeing of children, particularly for unaccompanied minors.

As at 31 March 2012, there were 428 children (aged under 18 years) in immigration detention facilities and alternative places of detention[2]. These figures include unaccompanied non-citizen children who arrive in Australia with the intention of becoming permanent residents, as well as Indonesian minors apprehended and detained who are crew on people smuggling or fishing vessels and who do not seek asylum.

There are currently two immigration detention facilities in the Northern Territory that detain children. Delegates of the Society visited both centres on 13 June 2012 and talked to Department of Immigration and Citizenship (DIAC) and Serco personnel.

The Northern Immigration Detention Centre (NIDC) holds single males who are alleged foreign fishers. There are up to 70 children in this facility, including 7 unaccompanied minors (UAMs).

The Darwin Airport Lodge (DAL) is an Alternative Place of Detention (APOD) facility that holds families and unaccompanied minors. According to the DIAC Deputy Regional Manager North there are 120 children, including 40 UAMs.

The Society has reports that 25 children (16 UAMs and 9 accompanied) have been in immigration detention for over one year. The youngest child with parents in detention is 2 years old and was born there. The youngest unaccompanied child in the Australian Immigration minister?s care has spent over one year in detention and is 7 years old[3]. The girl was only six years old when she arrived as an unaccompanied minor by boat. She is presently detained in her third detention facility with no prospects of release[4]. Both children are currently detained at the DAL in Darwin.

Detention has severe effects on human beings, particularly children, for instance delayed development, loss of normal play, separation anxiety, disrupted conduct, suicide attempts, loss of language, eating poorly, nightmares, self-harm and mutism[5]

There is no immigration legal service in Darwin or elsewhere in the NT similar to those operating interstate. The Society is concerned that children detained in immigration detention have complex legal needs and should have access to legal advice and assistance. Northern Territory Legal Aid Commission (NTLAC) is providing some legal assistance to UAMs both those seeking residency and those seeking to return to their home. This is not funded and is likely to cease as at 31 August 2012.

GUARDIANSHIP OF DETAINED MINORS
The Society is concerned about the arrangements that are currently in place for the independent legal representation of UAMs in immigration detention in the NT. The Immigration (Guardianship of Children) Act 1946 (IGOC Act) provides that the Minister for Immigration and Citizenship is the guardian of unaccompanied non-citizen children who arrive in Australia with the intention of becoming permanent residents. This causes a conflict of interest between the Minister's role as guardian under the IGOC Act and as the decision-maker under the Migration Act 1958.

This conflict of interest has been identified by the Commonwealth Ombudsman, Senate Inquiry and Australian Human Rights Commission. The Australian government recognises that the IGOC Act is outdated and not designed for the purpose for which it is now used.

Additionally those UAMs that are not seeking residency but are detained pending Australian Federal Police investigations are under the guardianship of a different agency

The Society would propose that the National Children?s Commissioner ought be the guardian for all UAMs:

It is essential that the guardianship arrangements for UAMs facilitate access to independent legal advice and assistance.

SECURE CARE FACILITIES FOR CHILDREN
Currently the Northern Territory draft Care and Protection of Children (Therapeutic Orders) Amendment Bill 2012[6] is available for comment (until 22 June 2012). The Secure Care Service is one element of a therapeutic service, care and support system that the Department of Children and Families is developing for young people with complex needs and high risk patterns of behaviour. The Bill outlines a scheme for detention for therapeutic purposes. The construction of these facilities is already complete though many practical issues remain uncertain.

This proposed legislation is of significant concern for the Society and would arguably not be a matter for advocacy of the NTCC. The concerns of the Society are as follows:

  • The eligibility criteria are imprecise, i.e. criteria require a young person to be at significant risk of extreme harm to the young person or others.
  • There is no funding commitment to provide legal assistance though legal representation is contemplated in the Bill.
  • Legal representation is on a best interests rather than on instructions.
  • There is no proposal or funding for Legal representatives for Aboriginal children to be sourced from Aboriginal and Torres Strait Islander Legal Services.
  • The duration of stays in the facility can be up to six months. It is the Society?s submission that therapeutic residential Orders should be for a maximum duration of 21 days and ought to only be extended for one further period, not exceeding 21 days with mandated reviews by the Court of therapeutic care plans at the end of 21 day orders, rather than three monthly.
  • The Bill does not specify a minimum age for young people who can be the subject of a Therapeutic Residential Orders. It is the Society?s submission that a minimum age be mandated.
  • There is no entitlement for parents and family to be heard by the Court in any application for a Therapeutic Residential Order of which their child is the subject and this legal representation needs to be provided at the Department?s expense.

Whilst this has been the subject of comment by the NTCC it may be appropriate for national standards of such facilities to be implemented.

The Society is pleased to comment on the the Australian Human Rights Commission Amendment (National Children?s Commissioner) Bill 2012. We look forward to contributing further to this process if required.

Office Location

Level 3, 9 Cavenagh Street
Darwin NT 0800

Mailing Address

GPO Box 2388
Darwin NT 0801

Contact

Phone: 08 8981 5104
Fax: 08 8941 1623
Email: lawsoc@lawsocietynt.asn.au

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