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Detaining children offends legal and moral principles


While technically lawful, the indefinite detention of asylum-seeker children offends Australia’s legal and moral principles, argues Morry Bailes.

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The circumstances of the baby known as ‘Asha’ have gripped Australia in recent weeks with intense media focus and public interest.  Would the child be returned to detention in Nauru or allowed to remain in Australia?

In an interim decision, the Federal Government has allowed the child to be released into community detention in Australia. It would be a very few who do not support that decision.

Looming large however is the reality that other children remain in detention in Nauru. Recently the High Court upheld the validity of amendments to the Migration Act, further finding that a Memorandum of Understanding signed by Australia and Nauru relating to regional processing was constitutionally within the power of Australia to execute, thus allowing the Australian Government to lawfully hold people in offshore facilities as part of its offshore immigration processing policy.

The lawfulness of the policy only came about because of an amendment to the Migration Act passed by the federal parliament in 2015, designed to act retrospectively.  The relevant amendment was the insertion of section 198AHA in the Act which makes lawful a variety of ‘actions’ to do with ‘regional processing functions’, with an ‘action’ defined to include ‘exercising restraint over the liberty of a person…’

Justice Gageler of the High Court in his judgement remarked that the plaintiff’s claim that ‘the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre…(would) have been well-founded until 30 June 2015, when section 198AHA was inserted with retrospective effect’.

So there we have it. It was no surprise Bill Shorten was booed at a recent ALP conference when the ALP’s immigration policies were mentioned. Other Labor members have been publicly jeered. The ALP, complicit in the amendment to the Migration Act, voted with the government to enact the provision. It did so on the third reading of the amendment Bill on June 25 last year. There is no moral high ground to be claimed, it would seem, for either of our major parties in this debate.

After the interim release of baby ‘Asha’ the Law Council of Australia reminded Australians of the position taken by the legal profession in relation to this question.

In its public statement the Law Council noted that the Federal Government’s position is a “complex one”. There is no point trying to pretend it is not. There is a high level of concern in Australia about maintaining the sovereignty of our borders. Britain, on the brink of exit from the European Union, is evidence enough that a loss of control of one’s borders can ratchet up concerns within the community that can have knock-on effects.

All of that said, let’s maintain some perspective. If we think the flood of asylum seekers to Europe is confronting give a thought to the plight of Lebanon, where more than one million Syrians have crossed the border seeking asylum, equivalent to about 20 per cent of the total population of that country. The EU by comparison has a population of about a half a billion to cope with its influx. While Australians were and are deeply affected by the many deaths of asylum seekers coming by boat to our shores, our problem is dwarfed by experiences elsewhere.

Aside from the sovereignty of our borders, there are also real security concerns that cannot be dismissed. On that subject, the Law Council, however, makes the point that when it comes to children, their detention ‘should be only for a period that is strictly necessary to conduct health, identity and security checks’.

When one is confronted with a difficult moral issue it is best to strip it back to principle, and the immutable principle is this: no child should be held in indefinite detention when there is no crime alleged or committed. Indeed, even if a child commits a crime in our society their sentence, if it is one of detention, is finite.

There are good reasons for this. First, indefinite detention of children is harmful to their wellbeing, mentally and at times physically. In our law the interests of the child are paramount. That principle anchors our Family Law Act and is the reason for our revulsion at the seemingly endless evidence heard day in day out at the Royal Commission into Institutional Responses to Child Sexual Abuse. The welfare of a child must come first.

Second it offends the rule of law. Law Council president Stuart Clarke said that indefinitely detaining children is “unacceptable and contrary to the rule of law”. It is also contrary to every other legal principle in this country. The retrospective amendment to the Migration Act making this lawful does not make it right.

The Law Council has acknowledged the work of the Australian Government in substantially reducing the number of children detained in recent years, thus there is a silver lining to the cloud. We have also seen far fewer deaths at sea. Many Australians, however, will not be satisfied until the number of asylum seeker children in detention is nil. To seek to justify the holding of child asylum seekers by arguing it is part of Australia’s overall immigration stance is confusing two issues – the welfare of the child and our border protection policies. When considering these two priorities there is no contest – the interests of the child must come first.

In summarising Mr Clarke said “steps should be taken to resolve the future of these detainees immediately. Australia should immediately stop sending children offshore and beyond the reach of Australia’s standards of detention”. The Law Council accepts there is a place for community detention where necessary but only when a child “can live under conditions appropriate for a child”.

When it comes down to it and to borrow the now famous line from The Castle, “it’s the vibe”. Australia holding children in detention? The vibe ain’t good.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, treasurer of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.


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