High Court decides children to remain in detention centres

The High Court today handed down its decision that the Family Court of Australia does not have the power to order the release of children from immigration detention. The case concerned an appeal from the decision of the Full Court of the Family Court, which released the five applicant children from immigration detention last year.

The Public Interest Advocacy Centre (PIAC) represented Amnesty International Australia who intervened in the proceedings as a ‘friend of the court’. Amnesty’s submissions to the Court focussed on the fact that Australia had ratified the United Nations Convention on the Rights of the Child (UNCROC).

UNCROC prescribes that the detention of children, except in very limited circumstances, is a violation of international human rights obligations. In fact, the United Nations Human Rights Committee determined that the detention of the five applicant children was arbitrary and in breach of international law in 2003.

In the High Court’s judgment, Justice Kirby, while not required to come to a conclusive decision on this issue, stated that it was strongly arguable that Australia’s detention of children was in breach of international law.

The High Court found that the provisions of the Migration Act 1958 (Cth) were clear and unambiguous, providing for the mandatory detention of both adult and children unlawful non-citizens and that the jurisdiction of the Family Court, provided for in the more general provisions of the Family Law Act 1975 (Cth), could not override these provisions.

PIAC’s Senior Solicitor, Alexis Goodstone said:

“The detention of children is in breach of international law, human rights principles and community standards.
The case highlights the need for the Australian Government to change the law so that children’s welfare and human rights are protected in Australia.
We call on the Australian Government to release the more than 150 children in detention in Australia and on Nauru, together with their families.”

MEDIA CONTACT: Dominic O’Grady, Media and Communications Officer,
Public Interest Advocacy Centre. Ph: 02 8898 6532 or 0400 110 169

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