The High Court of Australia has today found that the Commonwealth’s role in funding offshore detention does not breach Australian law. This ruling, however, has no bearing on Australia’s moral responsibility or its obligations to protect the rights of children in accordance with international human rights law.
The 240 plaintiffs in the M68/2015 v Minister of Immigration and Border Protection
case are people the Government identified from both Nauru and Manus Islands as being the most in need of medical or other health care. The group includes women who have been sexually assaulted and, of particular concern to UNICEF Australia, 54 children in addition to 37 babies who were born in Australia. For all, the best available care for them is in Australia and not on Nauru or Manus Islands.
UNICEF Australia invites Minister Dutton to use his discretionary powers, as set out in the Migration Act 1958
, to allow children and families party to the High Court case to remain in Australia.
The Australian Government has acted in good faith and exercised its duty of care by identifying the most vulnerable children and families on Nauru and returning them to Australia for treatment and support. In accordance with their obligations under the UN Convention on the Rights of the Child
the Australian Government must consider the best interests of each child potentially affected before making any further decisions regarding their status or transfer.
It is unreasonable for the Australian Government to shift responsibility for this group of children and families with complex needs to a developing state in the region. The Nauru Government faces significant challenges in meeting its existing obligations in regard to children’s rights. It does not yet have the education, child protection, health or social welfare systems required to adequately support people with complex, ongoing needs.
In accordance with standards set out by the Interagency Standing Committee on Mental Health and Psychosocial Support, UNICEF provides crucial and quality psychosocial support to children globally following conflict, natural disasters, displacement, family separation and other difficult experiences. Children should never be returned to situations where they may experience serious harm.
UNICEF Australia is also concerned for children who were born in Australia but who may be transferred to Nauru on the basis of a decision by the Minister for immigration and Border Protection. These children will have their education and development acutely disrupted should they be removed from the care they now have. As identified by the Committee on the Economic, Social and Cultural Rights, quality education is a right in itself and an indispensable means to realising all other human rights.
The current offshore immigration network is a system in crisis and is creating crisis for affected children and families. The Australian Government should give urgent consideration to addressing forced displacement in the Asia Pacific region and strengthening regional protection frameworks as a more sustainable approach to meeting our international human rights obligations.
Update: 9 February 2016
Statement by UNICEF East Asia and Pacific Regional Director, Daniel Toole, following the Australian High Court finding on offshore detention of asylum seekers
The Convention on the Rights of the Child, to which Australia is a signatory, underscores that the best interests of a child must be a primary consideration in all decisions and actions affecting that child.
Any action that increases the risks a child faces, including removal to a place where a child’s rights are less well-protected, is clearly not in the best interest of that child.
The rights of children are paramount and must be respected in every situation, including in actions to protect sovereign borders. All children should be protected by these rights, irrespective of their citizenship or status.
Read more: Relevant legal standards and expert comments on child rights law and immigration