Alternatives to detention
Children are not treated differently under the laws making detention mandatory. As a result of a law passed in 2005, the Migration Act recognises a ‘principle’ that children only be detained as a last resort. This does not, however, prevent children from being detained.
How many children have been detained?
This section was inserted because of concern about some backbenchers in the then Howard government at the number of children in detention. Large numbers of children were detained between 1999-2003, with 1,923 children detained in 2000-2001 and 1,696 children the following year. These numbers had decreased significantly to 111 children by 26 December 2003.
These numbers increased once again from 2009, peaking in July 2013 at 1,992 children in a detention facility. Children were progressively moved into the community using the ‘residence determination’ from 2011 (also known as ‘community detention’).
By May 2016, there were no children in a detention facility in Australia, although there remain nearly 300 children in community detention.
Since 2016, there have been a handful of children in detention facilities, including the two children who lived as part of the Bileola family who are held on Christmas Island.
Children have also been detained in large numbers on Nauru. In both the first round of offshore processing and in the latest round, there have been over 200 children on Nauru.
Concerns about children in detention
The harm caused by detention is even worse for children, because their age and stage of development means they are more profoundly affected by the environment. This can be made worse by family separation and by conditions that are generally not designed for children, and the lack of access to child-specific services.
We have published some of the stories of children who were detained on Nauru, and the horrific trauma that led them to self-harm and to withdrawn from the world.
It is also unfair to punish children for the actions of their parents, especially when those actions do not themselves constitute a crime but rather the exercise of a human right.
Under international law, it is clear that children should never be detained because of their immigration status. According to the UN:
Every child, at all times, has a fundamental right to liberty and freedom from immigration detention. … [T]he detention of any child because of their or their parents’ migration status constitutes a child rights violation and contravenes the principle of the best interests of the child. In this light, … children should never be detained for reasons related to their or their parents’ migration status and States should expeditiously and completely cease or eradicate the immigration detention of children. Any kind of child immigration detention should be forbidden by law and such prohibition should be fully implemented in practice.
In Australia, children who come without their family (unaccompanied minors) are also in the strange position where their legal guardian is the Minister for Immigration. This is a clear conflict of interest.