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4. AUSTRALIA'S HUMAN RIGHTS OBLIGATIONS


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A LAST RESORT?

NATIONAL INQUIRY INTO CHILDREN IN IMMIGRATION DETENTION

 

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4. AUSTRALIA'S HUMAN RIGHTS OBLIGATIONS

The purpose of this chapter is to explain the relevance of international human
rights law to children in Australia's immigration detention centres and to
provide a quick reference point on the fundamental human rights principles that
have influenced the approach of this Inquiry. This chapter also explains the
role of United Nations (UN) guidelines in the Inquiry's analysis of Australia's
human rights treaty obligations.

More specifically, the Inquiry addresses the following questions:

> 4.1 Does international human rights law threaten Australia's sovereignty?
> 4.2 How does international law become part of Australian law?
> 4.3 What are the rights of children in immigration detention in Australia?
> 4.4 What tools assist in the interpretation of treaty obligations?

A more detailed analysis of the human rights principles relevant to children in
immigration detention can be found in the topic-specific chapters in the
remainder of this report.




4.1 DOES INTERNATIONAL HUMAN RIGHTS LAW THREATEN AUSTRALIA'S SOVEREIGNTY?

Public debate in recent years has increasingly linked the concept of border
protection with the arrival of asylum seekers to Australian shores. The Minister
for Immigration and Multicultural and Indigenous Affairs (the Minister) has
stated on many occasions, in the context of unauthorised boat arrivals, that as
a sovereign country Australia has the right to defend the integrity of its
borders.(1) Australian courts have also affirmed the right of Australia to
determine who does and does not enter and remain in Australia.(2) It is clear
that Australia has the right to establish, administer and enforce its
immigration policy and maintain national security. Border protection will
inevitably be a part of these objectives.

The modern concept of sovereignty, however, is not absolute. Sovereignty does
not mean that nations can do whatever they want, whenever they want, to whomever
they want. This would inevitably lead to a breakdown in international
cooperation. Australia, as a sovereign nation, has recognised the need to
respect certain obligations and rights if it wants to maintain its position
among the community of nations.

Australia has chosen to participate in the international system of law and enter
into agreements - treaties - with other sovereign States. It has thereby agreed
to be bound by the international scheme of rights and responsibilities that
governs the way in which sovereign States act. As the Department of Immigration
and Multicultural and Indigenous Affairs (the Department or DIMIA) states:

> In signing up to and ratifying treaties, States may accept qualifications on
> the exercise of their sovereign powers. This is a sovereign act of the State
> itself.(3)

The Department of Foreign Affairs and Trade (DFAT) reiterates this point in its
Information Kit on treaties:

> Ratification of international treaties does not involve a handing over of
> sovereignty to an international body. Treaties may define the scope of a
> State's action, and treaties which Australia ratifies may influence the way in
> which Australia behaves, internationally and domestically. Implicit, however,
> in any Australian decision to ratify a treaty is a judgment that any
> limitations on the range of possible actions which may result are outweighed
> by the benefits which flow from the existence of a widely endorsed
> international agreement.(4)

For the purposes of this Inquiry the most important of the various international
rules to which Australia has agreed to be bound are those contained in the
Convention on the Rights of the Child (CRC) which imposes obligations on
Australia to give all children, including asylum-seeking children, special
treatment. Also relevant to the Inquiry are some of the rights contained in the
International Covenant on Civil and Political Rights (ICCPR).

Further, the Inquiry refers to the 1951 Convention relating to the Status of
Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the
Refugee Convention), which specifically requires Australia to apply domestic
laws that establish border integrity in such a way that persons fleeing
persecution for specific reasons will be protected.(5) Article 22 of the CRC
makes the Refugee Convention immediately relevant to a consideration of the
human rights of children in detention because it requires that a child who is
seeking refugee status receive appropriate protection and humanitarian
assistance in the enjoyment of the rights contained in the CRC and in other
international human rights or humanitarian instruments to which Australia is a
party.

By ratifying the CRC, Refugee Convention and other treaties, Australia has
explicitly agreed to ensure that new laws be enacted or existing laws be applied
in a manner that gives proper expression to its treaty obligations. Such an act
of national will is a positive expression of Australia's independence and an
affirmative exercise of sovereignty.

As one leading commentator has stated:

> Refugee law is a politically pragmatic means of reconciling the generalized
> commitment of states to self-interested control over immigration to the
> reality of coerced migration. Since the early part of this century,
> governments have recognized that if they are to maintain control over
> immigration in general terms, they must accommodate demands for entry based on
> particular urgency. To fail to do so is to risk the destruction to those
> broader policies of control, since laws and institutional arrangements are no
> match for the desperate creativity of persons in flight from serious harm. By
> catering for a subset of those who seek freedom of international movement,
> refugee law legitimates and sustains the viability of the protectionist
> norm.(6)

Therefore, sovereignty, border protection and human rights can operate as
complementary, rather than opposing, concepts. Australia, as a sovereign State,
has the right to protect its borders as well as having undertaken a
responsibility to achieve this in a manner that accords with human rights and
humanitarian treaties. Furthermore, Australia, as a sovereign State guided by
the rule of law, has committed to ensuring that those rights and
responsibilities are integrated into the practices of the domestic legislature,
executive and courts.




4.2 HOW DOES INTERNATIONAL LAW BECOME PART OF AUSTRALIAN LAW?

Australia, as a party to the CRC, the ICCPR and the Refugee Convention, has
voluntarily committed to comply with their provisions in good faith and to take
the necessary steps to give effect to those treaties under domestic law.(7) The
Department has rightly acknowledged that 'Australia has a duty to respect and
apply its international human rights obligations to all individuals within its
jurisdiction'.(8)

Under Australian law a treaty only becomes a 'direct source of individual rights
and obligations' when it is directly incorporated by legislation.(9) This is
because under Australia's Constitution the making and ratification of treaties
is a function of the Commonwealth Executive, whereas the making and alteration
of Commonwealth laws is a function of the Commonwealth Parliament. The Executive
would be usurping the role of Parliament if the treaties it made and ratified
automatically became sources of new rights and obligations.

While the CRC, ICCPR and the Refugee Convention have not been directly
incorporated into Australian law in their entirety, certain provisions of those
treaties are reflected in domestic legislation. For instance, the Migration Act
1958 (Cth) (Migration Act) makes reference to the protection obligations under
the Refugee Convention in defining the criteria for a 'protection visa' under
that Act.(10) Other domestic legislation, much of it State legislation, can be
said to mirror the intent of international conventions without referring
directly to them. For instance, all States have child protection laws which
reflect the obligation to protect children from abuse in article 19 of the CRC,
but do not necessarily refer specifically to the CRC.(11) The provisions of the
Family Law Act 1975 (Cth) relating to children also mirror rights and principles
established by the CRC.

The Commonwealth Parliament has also enacted the Human Rights and Equal
Opportunity Commission Act 1986 (Cth) (HREOC Act) which specifically empowers
this Commission to examine Commonwealth legislation and the acts and practices
of the Commonwealth in order to determine their consistency with 'human rights'.

'Human rights' is defined by the legislation to include the CRC and the ICCPR.
However, this legislation falls short of direct incorporation.(12)

Nevertheless, even when treaties have not been directly incorporated by
legislation, they are an indirect source of rights. In particular, treaties
ratified by Australia have relevance in the common law of Australia which is
enforced by courts.

The High Court of Australia's decision in 1995, in Minister for Immigration and
Ethnic Affairs v Ah Hin Teoh, confirmed that legislative provisions should be
interpreted by courts in a manner that ensures, as far as possible, that they
are consistent with the provisions of Australia's international obligations:

> It is well established that the provisions of an international treaty to which
> Australia is a party do not form part of Australian law unless those
> provisions have been validly incorporated into our municipal law by statute
> ...
> 
> But the fact that the Convention [on the Rights of the Child] has not been
> incorporated into Australian law does not mean that its ratification holds no
> significance for Australian law. Where a statute or subordinate legislation is
> ambiguous, the courts should favour that construction which accords with
> Australia's obligations under a treaty or international convention to which
> Australia is a party, at least in those cases in which the legislation is
> enacted after, or in contemplation of, entry into, or ratification of, the
> relevant international instrument. That is because Parliament, prima facie,
> intends to give effect to Australia's obligations under international law.(13)

The High Court also held that ratification of a treaty raised a legitimate
expectation that an executive decision-maker will act consistently with its
terms:

> ... ratification of a convention is a positive statement by the executive
> government of this country to the world and to the Australian people that the
> executive government and its agencies will act in accordance with the
> Convention. That positive statement is an adequate foundation for a legitimate
> expectation, absent statutory or executive indications to the contrary, that
> administrative decision-makers will act in conformity with the Convention and
> treat the best interests of the children as "a primary consideration". It is
> not necessary that a person seeking to set up such a legitimate expectation
> should be aware of the Convention or should personally entertain the
> expectation; it is enough that the expectation is reasonable in the sense that
> there are adequate materials to support it.(14)




4.3 WHAT ARE THE RIGHTS OF CHILDREN IN IMMIGRATION DETENTION IN AUSTRALIA?

The CRC is a comprehensive treaty, which incorporates most of the provisions of
the ICCPR and the International Covenant on Economic Social and Cultural Rights
(ICESCR), and adapts them to the needs of children. It also protects children
from non-discrimination on the basis of sex, race, disability and other grounds,
thereby reflecting provisions of the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW), the Convention on the Elimination of
All Forms of Racial Discrimination (CERD) and the Declaration on the Rights of
Disabled Persons amongst others. The CRC also introduces specific provisions
that relate only to children.

There are only two United Nations members who have not ratified the CRC - the
USA and Somalia - making it the most widely ratified convention in the history
of the UN.(15) It is the most relevant instrument for children in immigration
detention and is therefore the primary reference point for this Inquiry.

The CRC applies to all children within Australia's jurisdiction. A 'child' is
defined to include any person under 18 years of age.(16)

Almost all of the provisions of the CRC are discussed at some point throughout
the report. However, the following key principles have guided the Inquiry's
examination of Australia's treatment of children in immigration detention:

 1. the best interests of the child must be a primary consideration in all
    actions concerning children (article 3(1))
 2. detention must be a measure of last resort and for the shortest appropriate
    period of time; children must not be deprived of liberty unlawfully or
    arbitrarily (article 37(b))(17)
 3. children in detention have the right to be treated with humanity and respect
    for the inherent dignity of the person (article 37(a), (c))(18)
 4. children have the right to enjoy, to the maximum extent possible,
    development and recovery from past trauma (articles 6(2), 39)
 5. asylum-seeking and refugee children are entitled to appropriate protection
    and assistance (article 22(1))(19)

These five themes and their impact on the Inquiry's analysis are discussed
below.

Other important aspects of the CRC which are considered in separate chapters in
this report include the right to:

 * protection from all forms of physical or mental violence (article 19)
 * the highest attainable standard of physical and mental health (article
   24)(20)
 * special care for children with disabilities (article 23)
 * education (articles 28 and 29)(21)
 * rest, recreation and play (article 31)(22)
 * special assistance for children who have been separated from their parents
   (article 20)(23)
 * practise culture, language and religion (article 30)(24)

The Inquiry also addresses the issue of non-discrimination in various places
throughout the report (article 2).(25)

 


4.3.1 THE BEST INTERESTS OF THE CHILD AS A PRIMARY CONSIDERATION

> In all actions concerning children, whether undertaken by public or private
> social welfare institutions, courts of law, administrative authorities or
> legislative bodies, the best interests of the child shall be a primary
> consideration.
> 
> > Convention on the Rights of the Child, article 3(1)

The words of article 3(1) make it very clear that the 'best interests' principle
is a fundamental principle of the CRC.(26)The principle expressly requires
Australia's Parliament, Executive (including private institutions acting on
their behalf, as in the case of Australasian Correctional Management Pty Limited
(ACM)) and judiciary to ensure that the best interests of the child are a
primary consideration in all actions concerning children.

While there is no one definition of what will be in the best interests of each
and every child, a child's ability to enjoy all of his or her rights in a given
environment is a good indication of whether the child's best interests are being
met.(27)

Furthermore, while the CRC does not explicitly define 'best interests' it is
clear that in the case of actions and decisions affecting a child, it is the
best interests of that individual child which must be taken into account rather
than children generally.

The Inquiry addresses two issues in the context of mandatory detention.

First, whether the best interests of the child was and is a primary
consideration in the introduction and maintenance of the current mandatory
detention laws. In answering this question the Inquiry considers whether the
specific rights of children can be met within the terms of those laws.

Second, whether in the administration of those laws, the Department has made the
best interests of the child a primary consideration in all actions affecting
children. The Inquiry therefore considers the choices that the Department has
made within the detention environment regarding education, health care and other
issues impacting on children.

The Inquiry is mindful that the CRC does not require the best interests of the
child to be the sole or paramount consideration in all decision-making. However,
as the United Nations Children's Fund (UNICEF) states:

> The child's interests ...must be the subject of active consideration. It needs
> to be demonstrated that children's interests have been explored and taken into
> account as a primary consideration.(28)

This approach was reflected by members of the High Court of Australia in the
Teoh case:

> A decision-maker with an eye to the principle enshrined in the Convention
> would be looking to the best interests of the children as a primary
> consideration, asking whether the force of any other consideration outweighed
> it.(29)

Thus for a consideration of the best interests of a child or children to be
meaningful, an attempt must be made to identify the interests of children and
the ways in which they are, or may be, different to those of adults. Furthermore
the detention framework must permit individualised decisions and the
administering authorities must address their minds to the specific circumstances
of each child. It is therefore not consistent with article 3(1) to treat child
detainees as simply a subset of detainees generally as this would ignore the
special needs and vulnerabilities of children.

The 'best interests' principle is reiterated in article 9(1) of the CRC which
states that children should never be separated from their parents against their
will except when 'necessary for the best interests of the child'. The
interaction between the 'best interests' principle, family unity and immigration
detention is discussed specifically in Chapter 6 on Australia's Detention Policy
and more generally throughout the report. However, the Preamble to the CRC
provides the reference point by recognising that:

> [T]he child, for the full and harmonious development of his or her
> personality, should grow up in a family environment, in an atmosphere of
> happiness, love and understanding.


4.3.2 DETENTION OF CHILDREN AS A MEASURE OF LAST RESORT AND FOR THE SHORTEST
APPROPRIATE PERIOD OF TIME

> No child shall be deprived of his or her liberty unlawfully or arbitrarily.
> The arrest, detention or imprisonment of a child shall be in conformity with
> the law and shall be used only as a measure of last resort and for the
> shortest appropriate period of time.
> 
> > Convention on the Rights of the Child, article 37(b)

The protection of individual liberty is one of the most fundamental human rights
protections under international law. The CRC goes further than the general
prohibition on arbitrary and unlawful detention in article 9(1) of the ICCPR, by
adding that detention of children should be a 'measure of last resort and for
the shortest appropriate period of time'.

While there is no set definition of the 'shortest appropriate period', when read
with the 'last resort' principle it is clear that the Commonwealth must consider
any less restrictive alternatives that may be available to an individual child
in deciding whether and/or for how long a child is detained. Detention of
children should only occur in exceptional cases.(30)If, after considering the
available alternatives, detention is considered to be appropriate in the
specific circumstances then it should be as short as possible.

This principle is clearly of primary relevance to an inquiry into immigration
detention of children and Chapter 6 on Australia's Detention Policy directly
examines whether Australia's detention policy and practices comply with article
37(b) (and article 9(1) of the ICCPR). The Inquiry also examines any links
between a breach of article 37(b) and the enjoyment of other rights under the
CRC. In particular, the Inquiry examines the impact that long-term detention may
have on a child's ability to enjoy other specific rights in the CRC (protection
from violence, physical and mental health, education, recreation, culture and so
on).


4.3.3 THE RIGHT TO BE TREATED WITH HUMANITY AND RESPECT

> (a) No child shall be subjected to torture or other cruel, inhuman or
> degradingtreatment or punishment ...
> 
> (c) Every child deprived of liberty shall be treated with humanity and
> respectfor the inherent dignity of the human person and in a manner which
> takes into account the needs of persons of his or her age ...
> 
> > > Convention on the Rights of the Child, article 37(a),(c)
> 
> The CRC applies to children the fundamental protections against torture and
> inhuman treatment while in detention, originally expressed in articles 7 and
> 10 of the ICCPR.
> 
> Generally speaking, the prohibition on torture seeks to prevent physical or
> mental mistreatment whereas the right to be treated with dignity imposes a
> positive duty to ensure a humane environment. The difference between the two
> protections can, however, be a matter of degree.
> 
> As this Inquiry has been more concerned with systemic issues than individual
> complaints, the Inquiry has not conducted an examination into whether there
> have been any specific acts of cruel, inhuman or degrading punishment of
> children under article 37(a). Any such allegations are more suited to an
> investigation under the Human Rights and Equal Opportunity Commission's
> complaints function.(31)
> 
> However, the Inquiry has considered whether the detention environment as a
> whole takes into account the age and development of children in a manner which
> succeeds in ensuring that they are treated with humanity and respect for their
> inherent dignity.
> 
> Since the overall conditions of detention are an accumulation of a variety of
> different circumstances, the individual chapters of this report generally do
> not come to any conclusions about whether there has been a breach of article
> 37(c). Rather, the summary of findings in each chapter highlights the aspects
> of that particular issue (for example, security, physical and mental health,
> education, recreation) which, when taken together with other issues, might
> contribute to a breach. The overall finding regarding article 37(c) is set out
> in Chapter 17, Major Findings and Recommendations.


4.3.4 THE RIGHT TO SURVIVAL, DEVELOPMENT AND RECOVERY

> States Parties shall ensure to the maximum extent possible the survival and
> development of the child.
> 
> > Convention on the Rights of the Child, article 6(2)
> 
> States Parties shall take all appropriate measures to promote physical and
> psychological recovery and social reintegration of a child victim of: any form
> of neglect, exploitation, or abuse; torture or any other form of cruel,
> inhuman or degrading treatment or punishment; or armed conflicts. Such
> recovery and reintegration shall take place in an environment which fosters
> the health, self-respect and dignity of the child.
> 
> > Convention on the Rights of the Child, article 39

The principle of survival and development is an extension of the right to be
treated with dignity and respect, in that it imposes a general obligation to
ensure an environment for children that fosters their positive development to
'the maximum extent possible' - whether or not children are in detention.

The right to survival and development refers not only to a child's physical
survival and healthy development, but also to a child's mental and emotional
development. As the Committee on the Rights of the Child has stated, what is
important is:

> to create an environment conducive to ensuring to the maximum extent possible
> the survival and development of the child, including physical, mental,
> spiritual, moral, psychological and social development ...and to prepare the
> child for an individual life in a free society.(32)

The obligation on Australia to promote physical and psychological recovery from
past trauma in a healthy environment has special relevance to children in
immigration detention in Australia since many are asylum seekers who have come
from situations of armed conflict, or who have otherwise been victims of abuse,
torture or cruel treatment. The principle of survival and development should
therefore be read with article 39 which requires that the healing of child
victims take place in an environment appropriate to their 'recovery and
reintegration' into society.

As with the 'best interests' principle, the Inquiry examines specific rights in
light of the more general principle that children should live in a nurturing
environment that fosters, to the maximum extent possible, development, recovery
and social integration. The Inquiry first asks whether the policy of mandatory
detention of children sufficiently allows for the provision of a nurturing
environment. Second, it examines whether initiatives have been taken within the
context of that detention policy to provide the appropriate environment and
opportunities for development and recovery.

Many of the obligations under the CRC are relevant to these questions. For
example, protection from violence, the highest attainable standard of physical
and mental health, special care for children with disabilities, education,
recreation and the right to a full cultural life are all factors that create a
nurturing environment. In some chapters it is possible to determine whether the
circumstances giving rise to the breach of a specific right also cause a breach
of articles 6(2) and 39. In others the Inquiry notes that specific concerns may
not themselves breach articles 6 and 39 but may be factors which contribute to a
breach, considering circumstances overall, of those articles.


4.3.5 SPECIAL PROTECTIONS FOR ASYLUM-SEEKING AND REFUGEE CHILDREN

> States Parties shall take appropriate measures to ensure that a child who is
> seeking refugee status or who is considered a refugee in accordance with
> applicable international or domestic law and procedures shall, whether
> unaccompanied or accompanied by his or her parents or by any other person,
> receive appropriate protection and humanitarian assistance in the enjoyment of
> applicable rights set forth in the present Convention and in other
> international human rights or humanitarian instruments to which the said
> States are Parties.
> 
> > Convention on the Rights of the Child, article 22(1)

This article acknowledges the special vulnerability of refugee and
asylum-seeking children. Since most children in Australia's immigration
detention centres are, upon entry, seeking asylum, this principle is of special
importance to the Inquiry.

Article 22(1) aims to ensure that these children get the assistance they need so
that they are in a position to enjoy all the rights that other children enjoy.
What measures are 'appropriate' to ensure the enjoyment of the child's rights
are likely to differ from, or be additional to, the measures which may be in
place for other children who do not confront the disadvantages faced by children
who are refugees or seeking asylum. The Inquiry therefore examines whether extra
measures need to be taken by the Department in order to overcome the
difficulties faced by asylum-seeking children in detention. For example, there
may need to be special education, specific physical and mental health care,
cultural provisions, special attention to girls' needs and so on.

Article 22(1) of the CRC requires Australia to make appropriate efforts to
ensure that children enjoy their rights not just under the CRC, but also under
other treaties which Australia has ratified. The most important of these in the
context of this Inquiry is the Refugee Convention. The most relevant provisions
of the Refugee Convention for the purposes of this Inquiry are the definition of
a refugee (article 1(A)(2)), the principle of non-refoulement (article 33), the
prohibition on imposing penalties on persons on account of their illegal entry
and the prohibition of restricting the movement of refugees 'other than those
which are necessary' (article 31). Each of these concepts is outlined below.

(A) WHO IS A REFUGEE?

A refugee is defined in article 1(A)(2) of the Refugee Convention to be someone
who:

> owing to well-founded fear of being persecuted for reasons of race, religion,
> nationality, membership of a particular social group or political opinion, is
> 
> outside the country of his nationality and is unable, or owing to such fear,
> is unwilling to avail himself of the protection of that country; or who, not
> having a nationality and being outside the country of his former habitual
> residence as a result of such events, is unable or, owing to such fear, is
> unwilling to return to it.

The process of identifying a child as a refugee is discussed in some detail in
Chapter 7 on Refugee Status Determination.

(B) WHAT IS NON-REFOULEMENT?

The principle of non-refoulement protects persons from being forced to go back
to a country where they risk facing persecution.

Refugees, by definition, have a well-founded fear of persecution in the event
they are returned to their country of nationality or habitual residence.(33)
Refugees are therefore protected by the principle of non-refoulement. However,
protection from return (refoulement) can also apply to persons who may not have
a fear of persecution for the reasons set out under the Refugee Convention, but
who do face a 'real risk' of a violation of their rights under the CRC and the
ICCPR.(34) For example a child may be protected from being returned to a country
where he or she faces a real risk of being killed.

(C) WHAT DOES THE REFUGEE CONVENTION SAY ABOUT DETENTION OF ASYLUM SEEKERS?

>  1. The Contracting States shall not impose penalties, on account of
>     theirillegal entry or presence, on refugees who, coming directly from a
>     territory where their life or freedom was threatened in the sense of
>     Article 1, enter or are present in their territory without authorization,
>     provided they present themselves without delay to the authorities and show
>     good cause for their illegal entry or presence.
>  2. The Contracting States shall not apply to the movements of such
>     refugeesrestrictions other than those which are necessary and such
>     restrictions shall only be applied until their status in the country is
>     regularized or they obtain admission into another country. The Contracting
>     States shall allow such refugees a reasonable period and all the necessary
>     facilities to obtain admission into another country.
> 
> > Refugee Convention, article 31

The Refugee Convention recognises that where persons are in fear for their life
or freedom they may be forced to enter a country of refuge unlawfully. It
therefore prohibits nations from penalising refugees 'on account of their
illegal entry' where they are 'coming directly from a territory where their life
or freedom was threatened'. Penalties may include prosecution and fines as well
as punitive measures such as detention.(35)

The Refugee Convention also states that detention should only occur where
'necessary and such restrictions shall only be applied until their status in the
country is regularised or they obtain admission to another country' (article
31(2)). The United Nations High Commissioner for Refugees (UNHCR) has issued
guidelines on how to interpret these provisions in the light of the CRC and has
stated that:

> Children seeking asylum should not be kept in detention. This is particularly
> important in the case of unaccompanied children.(36)

These guidelines are discussed further in section 4.4.2 below.

While article 31 is clearly of relevance to the issue of immigration detention,
in the Inquiry's view the protection of liberty in article 37(b) of the CRC
provides stronger protection to children than article 31 of the Refugee
Convention. On that basis, the Inquiry has focussed its analysis on article
37(b).




4.4 WHAT TOOLS ASSIST IN THE INTERPRETATION OF TREATY OBLIGATIONS?

A treaty should be 'interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in light of
its object and purpose'.(37) Some of the minimum standards required by
international treaties are quite clear from the words of the treaty itself and
the CRC is more specific than many other instruments. However, where there is
some ambiguity as to the minimum requirements for complying with an
international obligation, there is a substantial body of international
jurisprudence to assist in the interpretation.

The Department has highlighted to the Inquiry that there is a 'margin of
appreciation' which 'allows States to determine the best means by which to
implement their international legal obligations given their particular
circumstances'.(38) It is uncontroversial to suggest that nations must be able
to determine the manner in which they implement their international legal
obligations taking into account the circumstances of that nation. However, it is
important to note that a 'margin of appreciation' concept does not permit
nations to determine the meaning of those obligations in order to suit their
particular circumstances.(39) This is particularly the case when dealing with
fundamental rights like the right to liberty.(40)

In construing the provisions of an international human rights instrument,
Australian courts give weight to the views of specialist human rights bodies
established to supervise implementation of treaties and international law. The
High Court of Australia and the Federal Court of Australia have often referred
to the international body of law to assist in their interpretation of
international rights and obligations as they apply to Australia.(41)

In August 2000, the Minister for Foreign Affairs, the Attorney-General and the
Minister for Immigration questioned the appropriateness of UN treaty committees
to provide authoritative interpretations of the treaties they were designed to
monitor.(42) This reluctance to defer to the international treaty bodies
regarding interpretation of international law is reiterated in the Department's
submission to the Inquiry. The Department, while acknowledging that it 'has
regard to [international] principles and guidelines in formulating immigration
detention policy and procedures', also states that it 'does not accept, and it
does not follow, that non-binding pronouncements by international treaty bodies
conclusively represent the correct interpretation of a treaty obligation'.(43)
The Department goes on to state that it is possible to 'take a different view to
legislative and policy responses' without affecting its ability to comply with
international legal obligations.(44)

While the instruments of the UN treaty and charter bodies do not represent the
only interpretation of international obligations, they do represent the most
persuasive interpretation of what should be done to ensure compliance with the
CRC, the ICCPR and the Refugee Convention. They do not impose new obligations,
but the guidelines and standards which are adopted by UN charter bodies, like
the General Assembly, represent international consensus on what principles
should govern the detention and treatment of children generally. The findings
and general comments issued by treaty bodies are written by a Committee composed
of experts from a wide range of countries charged with the specific purpose of
interpreting and applying the provisions of the treaty and are thus highly
significant.

The following sections set out the key interpretive instruments for
international human rights law treaties. Together these instruments help explain
the benchmarks to be applied when considering Australia's compliance with its
treaty obligations. Specific provisions of these instruments are referred to
throughout this report.


4.4.1 TREATY COMMITTEES AND UN PRINCIPLES, RULES AND STANDARDS

Treaty committees are specifically set up within the provisions of a treaty to
monitor compliance. Thus, when Australia ratified the CRC and the ICCPR it
agreed to be subject to the monitoring of the Committee on the Rights of the
Child and Human Rights Committee respectively.

The Committee on the Rights of the Child is established by article 43 of the CRC
to monitor and supervise implementation and adherence to the CRC through
examining the periodic reports of States every five years and issuing Concluding
Observations on State reports.(45) The Committee also issues General Comments
which interpret the meaning of specific provisions of the treaty.

The Committee on the Rights of the Child has indicated, in its general
guidelines for periodic reports, that parties to the CRC should utilise UN
guidelines to interpret the meaning of the treaty's provisions. For example, the
United Nations Rules for the Protection of Juveniles Deprived of their Liberty
(1990) (the JDL Rules) are a particularly useful tool for interpreting the
meaning of article 37 of the CRC.(46)

Like the Committee on the Rights of the Child, the UN Human Rights Committee
reviews periodic reports submitted by States and issues findings and General
Comments that interpret the provisions of the ICCPR. Both the Committee on the
Rights of the Child and the Human Rights Committee have examined the detention
of asylum seekers in Australia in response to those periodic reports and have
expressed concern about the practice.(47)

Australia has also ratified the Optional Protocol to the ICCPR thereby agreeing
that the Human Rights Committee can adjudicate claims of individuals who believe
their rights have been violated. The findings of the Human Rights Committee in
relation to these complaints are, according to courts and leading commentators,
of 'considerable persuasive authority'(48) or 'highly influential, if not
authoritative'(49) in relation to Australia's international legal obligations.

The Human Rights Committee has directly considered whether Australia's
immigration detention system complies with the ICCPR in several cases including,
A v Australia,(50)Baban v Australia,(51)C v Australia(52) and Bakhtiyari v
Australia.(53) In each of those cases the Human Rights Committee found that
Australia had breached the ICCPR. These findings are discussed further in
Chapter 6 on Australia's Detention Policy.

The Human Rights Committee has also stated that the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Standard Minimum Rules) and
the United Nations Body of Principles for the Protection of All Persons under
any form of Detention or Imprisonment (the Body of Principles) represent minimum
requirements for compliance with article 10 of the ICCPR which, like article
37(c) of the CRC, requires that persons in detention be treated humanely.(54)In
other words, those principles elaborate the standards which the international
community considers to be the minimum acceptable treatment of persons deprived
of their liberty.(55)

The UN Working Group on Arbitrary Detention, a body of the Commission on Human
Rights (a UN charter body), has devoted its attention to the detention of asylum
seekers since 1997.(56) It is regarded as one of the most authoritative bodies
concerning arbitrary detention. The Working Group noted several concerns
regarding Australia's immigration detention practices in an October 2002
report.(57) The Australian Government rejected the report in December 2002.(58)


4.4.2 UNHCR GUIDELINES

Although the Refugee Convention does not itself set up a monitoring body, the
Executive Committee of the High Commissioner for Refugees, created by the UN
General Assembly in 1957, issues conclusions that are regarded as persuasive
interpretations of that Convention. Further, the United Nations High
Commissioner for Refugees (UNHCR) is the intergovernmental body with
responsibility to provide international protection to refugees and to find
long-term solutions to their problems.(59) Since Australia is a party to the
Refugee Convention, it is obliged under article 35 to cooperate with UNHCR.(60)

UNHCR has developed several guidelines and handbooks to guide States on how to
apply the Refugee Convention. According to advice received by the Inquiry from
UNHCR in Australia, these are standards that are usually considered to be
minimum requirements.

UNHCR guidelines entitled Refugee Children: Guidelines on Protection and Care
(1994) (UNHCR Guidelines on Refugee Children), are recognised internationally as
appropriate standards for the protection and assistance of refugee and
asylumseeking children. The Committee on the Rights of the Child has reaffirmed
the importance of the UNHCR Guidelines on Refugee Children, noting that they
were 'fully inspired by the Convention and shaped in the light of its general
principles'.(61)

The Guidelines on Policies and Procedures in dealing with Unaccompanied Children
Seeking Asylum (1997) (UNHCR UAM Guidelines) and the Statement of Good Practice
of the Separated Children in Europe Programme (2000) (which was a joint effort
of UNHCR and Save the Children) are specifically directed to protecting children
who have been separated from their family. They include special measures
designed to address the increased vulnerability of children who do not have the
support of their parents. They are also a persuasive interpretation of how the
Refugee Convention applies to all children and clearly refer to the provisions
of the CRC.

The UNHCR Revised Guidelines on Applicable Criteria and Standards relating to
the Detention of Asylum-Seekers (1999) (UNHCR Detention Guidelines) were first
issued by UNHCR in 1995 to provide guidance to States on the limits to detention
and were then revised in 1999 to reflect developments in human rights law,
especially with respect to arbitrary detention. According to the Executive
Committee of UNHCR, '[t]hey set out minimum standards for what might be
considered acceptable state practice'.(62) In its submission to the Inquiry the
Department acknowledges the importance of these guidelines and states that its
practices are consistent with them.(63)

Similarly, the Department states that its practices are consistent with the
UNHCR ExCom Conclusion No 44 regarding detention. The UNHCR Executive Committee
has stated that all persons detained should be treated in conformity with
internationally accepted norms and standards including the Body of Principles,
the JDL Rules, and the Standard Minimum Rules. In the Executive Committee's
view:

> These rules represent a consensus among states on how the basic principles
> should be respected. Asylum-seekers have a right, as all other individuals, to
> be treated in accordance with these standards.(64)

Finally, UNHCR has produced a Handbook on Procedures and Criteria for
Determining Refugee Status (UNHCR Procedures Handbook), which provides a
'practical guide' for those who are required to determine whether or not a
person is a refugee.(65)


4.4.3 UNICEF IMPLEMENTATION HANDBOOK

The CRC recognises the special competence of the United Nations Children's Fund
(UNICEF) and other United Nations organs 'to provide expert advice on the
implementation of the CRC in areas falling within the scope of their respective
mandates' (article 45). UNICEF has produced a guide to the implementation of the
various provisions of the CRC, the Implementation Handbook for the Convention on
the Rights of the Child (UNICEF Implementation Handbook), which helps explain
the CRC's provisions. The Inquiry has made reference to this handbook
extensively throughout this report.




4.5 SUMMARY

Sovereignty brings with it rights and obligations. While Australia has the right
to protect its borders, it also has the obligation to ensure that border
protection occurs in a manner consistent with the human rights obligations that
Australia has agreed to uphold. In the context of this Inquiry, those
obligations are primarily set out in the CRC.

While the CRC has not been fully incorporated into Australian law, the
Department acknowledges that Australia has a duty to respect and apply its
international human rights obligations contained within the CRC and other
treaties to which Australia is a party.

The key principles of the CRC discussed throughout this report include: .

 * ensuring that the best interests of the child are a primary consideration in
   all decisions concerning children .
 * detention as a measure of last resort and for the shortest appropriate period
   .
 * humane and respectful treatment while in detention .
 * survival, development and recovery from past trauma .
 * special protections for asylum-seeking and refugee children.

These principles influence the way the Inquiry has approached its examination of
more specific rights, like the right to protection from violence (Chapter 8),
the right to the highest attainable standard of mental and physical health
(Chapters 9 and 10), the right to special care for children with disabilities
(Chapter 11), the right to education and recreation (Chapters 12 and 13), the
right to special assistance for unaccompanied children (Chapter 14) and the
right to practise religion and culture (Chapter 15).

The findings and comments of UN treaty bodies, together with UN guidelines and
principles, assist in interpreting what minimum standards are required to ensure
compliance with all those rights.

Together, these treaties and interpretive tools create the framework within
which Australia must work to maintain its status as a responsible member of the
international community and ensure that children within its jurisdiction enjoy
their basic human rights.


ENDNOTES

 1.  DIMIA, Fact Sheet 70, Border Control, at
     http://www.immi.gov.au/facts/70border.htm, viewed 23 November 2003;
     Minister for Immigration and Multicultural and Indigenous Affairs and
     Minister for Foreign Affairs, Government Rejects UN Report on Arbitrary
     Detention, Joint Media Release, Parliament House, Canberra, 13 December
     2002, at http://www.minister.immi.gov.au/
     media_releases/ruddock_media02/r02107.htm, viewed 2 December 2003.
 2.  See for example Chu Kheng Lim v Minister of Immigration, Local Government
     and Ethnic Affairs (1992) 176 CLR 1 at 29; Ruddock v Vadarlis (2001) FCA
     1328 at [193].
 3.  DIMIA, Response to Draft Report, 4 July 2003.
 4.  Department of Foreign Affairs and Trade, Australia and International Treaty
     Making Information Kit, at
     http://www.austlii.edu.au/au/other/dfat/infokit.html#QnA, viewed 23
     November 2003.
 5.  See generally J Hathaway, The Law of Refugee Status, Butterworths, Toronto,
     1991, pp1-2, 31-32, 231-233.
 6.  Hathaway, p231.
 7.  Vienna Convention on the Law of Treaties, article 26.
 8.  DIMIA, Submission 185, p15. See also DIMIA, Submission 185, p2 and DIMIA,
     Transcript of Evidence, Sydney, 2 December 2002, p23.
 9.  Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR
     273 at 287 per Mason CJ and Deane J.
 10. Migration Act, s36(2)(a).
 11. See Chapter 8 on Safety for further discussion of article 19 of the CRC.
 12. HREOC Act, s3. In its comments on the report of the United Nations Working
     Group on Arbitrary Detention, the Australian Government has pointed out
     that the scheduling of the ICCPR to the HREOC Act does not mean that it has
     general effect in Australian law. However, it states that 'as a signatory
     to all of the UN's core human rights instruments, the Government takes its
     international obligations, including its human rights obligations, very
     seriously'. See Minister for Immigration and Multicultural and Indigenous
     Affairs and Minister for Foreign Affairs, Government rejects UN Report on
     Arbitrary Detention, Joint Media Release, Parliament House, Canberra, 13
     December 2002.
 13. (1995) 183 CLR 273 at 287 (footnotes omitted).
 14. (1995) 183 CLR 273 at 291 (footnotes omitted). Recent comments by members
     of the High Court have suggested that the 'legitimate expectation'
     principle outlined in Teoh may be the subject of reconsideration by the
     High Court in future (Re Minister for Immigration and Multicultural
     Affairs: Ex parte Lam [2003] HCA 6). However, the principle is still
     binding law in Australia. Note, in particular, that there have been three
     attempts to introduce legislation that overrules the 'legitimate
     expectation' principle - Administrative Decisions (Effect of International
     Instruments) Bill 1995, Administrative Decisions (Effect of International
     Instruments) Bill 1997, Administrative Decisions (Effect of International
     Instruments) Bill 1999. However, none of those bills were passed. The
     Executive also attempted to overturn this principle in 1995 by issuing a
     statement which asserted 'that entering into an international treaty is not
     reason for raising any expectation that government decision-makers will act
     in accordance with the treaty ...'; Minister for Foreign Affairs and
     Attorney-General, International Treaties and the High Court Decision in
     Teoh, Joint Statement, 10 May 1995. A statement in similar terms was
     released by the Attorney-General of South Australia on 8 June 1995. See
     generally S Roberts, 'Minister for Immigration and Ethnic Affairs v Ah Hin
     Teoh: The High Court Decision and the Government's Reaction to it',
     Australian Journal of Human Rights, vol 2, 1995, p135. These statements
     have been found to be of no effect by the courts; see, for example,
     Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431;
     Browne v Minister for Immigration and Multicultural Affairs (1998) 566 FCA;
     Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80.
 15. 192 countries have ratified the treaty. The USA and Somalia have signed but
     not ratified the CRC. See UNICEF, 'Convention on the Rights of the Child',
     at http://www.unicef.org/crc/crc.htm, viewed 26 November 2003.
 16. CRC, article 1.
 17. See also ICCPR, article 9.
 18. See also ICCPR, articles 7 and 10.
 19. See also Refugee Convention, articles 1A, 31 and 33.
 20. See also ICESCR, article 12; CEDAW, article 12.
 21. See also ICESCR, article 13.
 22. See also ICESCR, article 7.
 23. See also ICESCR, article 10.
 24. See also ICESCR, article 15; ICCPR, article 18.
 25. See also CEDAW, CERD, the Declaration on Elimination of All Forms of
     Intolerance and of Discrimination Based on Religion or Belief, the
     Declaration on the Rights of Disabled Persons and the UN Declaration on the
     Rights of Mentally Retarded Persons.
 26. As UNICEF notes, the concept of 'best interests' of children has been the
     subject of more academic analysis than any other provision of the
     Convention; see UNICEF, Implementation Handbook for the Convention on the
     Rights of the Child (UNICEF Implementation Handbook), United Nations
     Publications, Geneva, 2002, p41.
 27. UNICEF Implementation Handbook, 2002, p246.
 28. UNICEF Implementation Handbook, 2002, p43. See also Family Law Act 1975
     (Cth), s65E, which requires courts to 'regard the best interests of the
     child as the paramount consideration' when making parenting orders.
 29. Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR
     273 at 292 per Mason CJ and Deane J.
 30. UNICEF Implementation Handbook, 2002, p550; UNHCR, UNHCR Revised Guidelines
     on Applicable Criteria and Standards relating to the Detention of
     Asylum-Seekers, 1999, guideline 3.
 31. Note, however, that Chapter 9 on Mental Health discusses this article in a
     more general sense.
 32. Committee on the Rights of the Child, General guidelines regarding the form
     and contents of periodic reports to be submitted by States Parties under
     article 44, paragraph 1(b) of the Convention (Guidelines for Periodic
     Reports), 11 October 1996, cited in UNICEF Implementation Handbook, 2002,
     p677.
 33. Note, however, that a refugee may be excluded from the protection of
     non-refoulement in the limited circumstances set out in article 33(2) of
     the Refugee Convention.
 34. See further, HREOC, Submission to the Senate Select Committee on
     Ministerial Discretion in Migration Matters, 7 August 2003, available at
     http://www.hreoc.gov.au/human_rights/ migration_matters.html. See Kindler v
     Canada (470/91); Ng v Canada (469/91); Cox v Canada (539/93); T.T. v
     Australia, Communication No. 706/96, UN Doc CCPR/C/61/D/706/1996, in the
     jurisprudence of the Human Rights Committee (HRC). See also HRC, General
     Comment 20: Replaces general comment 7 concerning prohibition of torture
     and cruel treatment or punishment (Article 7), para 9. Note that in the
     case of T.T. v Australia, the submission made by the Australian Government
     was that the obligation of a State party in relation to future violations
     of human rights by another State arises only in cases involving a potential
     violation of the 'most fundamental human rights'.
 35. DIMIA, 'Article 31: Refugees Unlawfully in the Country of Refuge', UNHCR
     Global Consultations on International Protection of Refugees, at
     http://www.immi.gov.au/refugee/publications/ convention2002/index.htm,
     viewed 26 November 2003.
 36. UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied
     Children Seeking Asylum, Geneva, 1997, para 7.6.
 37. Vienna Convention on the Law of Treaties, article 31(1).
 38. DIMIA, Response to Draft Report, 4 July 2003. See also, DIMIA, Submission
     185, p15.
 39. In the context of the ICCPR, for example, Joseph et al note that such a
     doctrine 'dilutes human rights protection' and argue that it would be
     'unwise to apply such a doctrine under the ICCPR': see S Joseph et al, The
     International Covenant on Civil and Political Rights, Clarendon Press,
     Oxford, 2000, p394 for a full discussion. See also E Evatt, 'The Impact of
     International Human Rights on Domestic Law' in G Huscroft and R Rishworth,
     (eds) Litigating Rights: Perspectives from Domestic and International Law,
     Hart Publishing, Oxford, 2002, pp281-303 at 295.
 40. See, for example, jurisprudence in the United Kingdom dealing with this
     issue: Amirthanathan, R (on the application of) v Secretary of State for
     the Home Department [2003] EWHC 1107 (Admin) at [54]; The Queen v Secretary
     of State for the Home Department ex parte Khawaja [1984] AC 74 per Lord
     Scarman at 108-111.
 41. Mabo v Queensland (No 2) (1992) 175 CLR 1 per Brennan J at 42; Dietrich v
     The Queen (1992) 177 CLR 292 per Mason CJ and McHugh J at 305-307; Johnson
     v Johnson (2000) 201 CLR 488 per Kirby J at [38]; Commonwealth v Bradley
     (1999) 95 FCR 218 per Black CJ at [35]; Minister for Immigration and
     Multicultural Affairs v Ibrahim (2000) 174 ALR 585 per Gleeson CJ at [5].
     See also H Burmester, 'National Sovereignty, Independence and the Impact of
     Treaties and International Standards', Sydney Law Review, vol 17, 1995,
     p145.
 42. Minister for Foreign Affairs, Attorney-General and Minister for Immigration
     and Multicultural Affairs, Improving the Effectiveness of United Nations
     Committees, Joint Media Release, Parliament House, Canberra, 29 August
     2000, at
     http://www.dfat.gov.au/media/releases/foreign/2000/fa097_2000.html, viewed
     26 November 2003.
 43. DIMIA, Submission 185, p18.
 44. DIMIA, Submission 185, p19; DIMIA, Response to Draft Report, 4 July 2003.
 45. Office of the High Commissioner for Human Rights, Fact Sheet No.10 (Rev.1),
     The Rights of the Child, at http://www.unhchr.ch/html/menu6/2/fs10.htm,
     viewed 26 November 2003.
 46. Committee on the Rights of the Child, Guidelines for Periodic Reports,
     1996, para 138. See also HRC, General Comment 8: Right to liberty and
     security of persons (Art. 9), 30 July 1982; UNICEF Implementation Handbook,
     2002, p543.
 47. Committee on the Rights of the Child, Concluding Observations of the
     Committee on the Rights of the Child: Australia, UN Doc CRC/C/15/Add.79, 10
     Oct 1997, para 20; HRC, Concluding Observations of the Human Rights
     Committee: Australia, UN Doc A55/40, paras 498-528, 24 July 2000.
 48. Nicholls v Registrar Court of Appeal [1998] 2 NZLR 385 at 404 per
     Eichelbaum CJ. Examples of references to the jurisprudence of human rights
     treaty bodies by Australian courts include: Mabo v Queensland (No 2) (1992)
     175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed);
     Dietrich v The Queen (1992) 177 CLR 292 at 305-307 per Mason CJ and McHugh
     J and Johnson v Johnson (2000) 201 CLR 488 per Kirby J at [38]. See also R
     Rishworth, 'The Rule of International Law' in Huscroft and Rishworth, 2002,
     p275.
 49. Evatt, p295. See also Joseph, p14.
 50. HRC, A v Australia, Communication No. 560/1993, UN Doc
     CCPR/C/59/D/560/1993, 30 April 1997.
 51. HRC, Baban v Australia, Communication No. 1014/2001, UN Doc
     CCPR/C/78/D/1014/2001, 18 September 2003.
 52. HRC, C v Australia, Communication No 900/1999, UN Doc CCPR/C/76/D/900/1999,
     13 November 2002.
 53. HRC, Bakhtiyari v Australia, Communication No 1069/2002, UN Doc
     CCPR/C/79/D/1069/2002, 6 November 2003.
 54. HRC, General Comment 21: Replaces general comment 9 concerning humane
     treatment of persons deprived of liberty (Article 10), 10 April 1992, para
     5.
 55. The Department does not accept this interpretation by the HRC. See DIMIA,
     Response to Draft Report, 4 July 2003.
 56. Standing Committee of the Executive Committee of UNHCR, Detention of
     Asylum-Seekers and Refugees: The Framework, The Problem and Recommended
     Practice, EC/49/SC/CRP.13, 4 June 1999, para 8.
 57. UN Economic and Social Council, Civil and Political Rights, including the
     question of torture and detention: Report of the Working Group on Arbitrary
     Detention: Visit to Australia, E/CN/.4/2003/8/ Add.2, 24 October 2002.
 58. Minister for Immigration and Multicultural and Indigenous Affairs and
     Minister for Foreign Affairs, Government Rejects UN Report on Arbitrary
     Detention, Joint Media Release, Parliament House, Canberra, 13 December
     2002.
 59. Statute of the Office of UNHCR, article 1.
 60. See also article 11 of the 1967 Protocol to the Convention. Both Resolution
     428 (V) of the UN General Assembly and the Statute of UNHCR, which was
     annexed thereto, called for cooperation between governments and the High
     Commissioner's Office in the performance of the High Commissioner's
     functions.
 61. Committee on the Rights of the Child, Report on the seventh session, UN Doc
     CRC/C/34, (1994) p61. See also UNICEF Implementation Handbook, 2002, p282.
 62. Standing Committee of the Executive Committee of UNHCR of 4 June 1999,
     Detention of Asylum- Seekers and Refugees: The Framework, The Problem and
     Recommended Practice, EC/49/SC/ CRP.13, para 12.
 63. DIMIA, Submission 185, p16.
 64. Standing Committee of the Executive Committee of UNHCR of 4 June 1999,
     Detention of Asylum- Seekers and Refugees: The Framework, The Problem and
     recommended Practice, EC/49/SC/ CRP.13, para 11.
 65. Chan v Minister for Immigration (1989) 169 CLR 392./

13 May 2004




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