Minister for Immigration and Multicultural and Indigenous Affairs v B involved a challenge to the mandatory detention of children in migration detention. PIAC acted for Amnesty International Australia, which was granted leave to make submissions as a ‘friend of the court’ (amicus curiae) .
The case related to the welfare of children in immigration detention. Amnesty International submitted, amongst other things, that the Family Court had jurisdiction to determine the welfare of children in immigration detention in Australia, including the power to release them from detention. Such an approach gave effect to Australia’s international obligations under the United Nations Convention on the Rights of the Child (CRC) which strictly limits the circumstances under which a child can be detained.
In April 2004, the High Court handed down its decision, finding that the Family Court of Australia does not have the power to order the release of children from immigration detention. The 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.
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.
PIAC acted with Felicity Hampel SC and Kate Eastman as counsel, on a pro bono basis for Amnesty International.