The Invisible Children: A Perspective from a Children’s Rights Lawyer

As an advocate for children’s rights, I have seen consistent development in the child rights doctrine in Australia except in the area of immigration law. Children have the right to legal representation in all areas of the law except migration. There are guidelines in Australia concerning the representation of children which provides the foundations and expectations of ensuring a child’s right to be heard and participate in decisions that affect them in the legal system. A child can obtain legal representation either by approaching a lawyer directly or a lawyer being appointed by the differing Courts in every area of the law except where a child is considered to be an unlawful citizen. Under Australian law, the role of a Children’s Lawyer is different dependent on the jurisdiction and the age of the child. A child can either be represented on direct instructions or on a best interest model. There has been significant progress in Australia concerning the representation of children and a child rights based approach, which includes the amendments to the Family law Act of 1975 that provides for consideration of the United Nations Convention on the Rights of the Child and the case of Re Tracey (NSWCA 2011) in the NSW Court of Appeal that also addressed the issue of the application of the United Convention of the Rights of the Child in the Care and Protection jurisdiction. Notably, however, there is stark contrast when considering the representation of child asylum seekers. There is a complete absence of a right for a child to be represented under the Australia Migration Act of 1958 which in my view has contributed to a failure to protect child asylum seekers who in Australia. 

Australia’s failure to protect child asylum seekers is reflected in the inherent conflict between Australian law, practice and the Human Rights treaties. There is a clear disregard in Australia of the rights of child asylum seekers to be protected, heard and participate in decisions that affect them.

Article 22 of the Convention on the Rights of the Child[1] requires State parties to take appropriate measures so that child asylum seekers: “receive appropriate protection and humanitarian assistance. Article 37 requires that “no child shall be deprived of his or her liberty unlawfully or arbitrarily”. Article 9 of the International Covenant on Civil and Political Rights[2], states that:”everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Further, the United Nations guidelines[3] on the detention of refugees also clearly state that children should not be placed in detention.

Australia’s Migration Act 1958[4] provides that children who do not hold a valid visa are detained. These children have no rights for work, study, access to Medicare, social security benefits, housing or support. They are placed in detention until their claim has been processed and their refugee status determined. There is no protection afforded to these children and they can be detained for lengthy periods. A separated or unaccompanied child must demonstrate that they are claiming asylum and that they do not have an unfounded claim, just as an adult would[5]. It is only then that a child asylum seeker is permitted to make a formal written application for a protection visa. However, officials only make such a decision based on a ‘screening in’ interview from Department of Immigration Migration Agency (DIMA). Whilst ‘screening in’ interviews are to be conducted as soon as possible after the detention, in practice for some children who arrive by boat, are kept in ‘separation detention’ for significant periods before the screening process is completed[6]. One challenge for a child asylum seeker is that there is no legal duty on immigration officials to advise children who arrive unlawfully that they have a right to claim refugee status. Although DIMA officers interview unaccompanied or separated child as part of the pre-screening process they are not informed about the determination process or the claims that they can make. For children who come as part of a perceived family group are not interviewed at all. In most circumstances the child will not have any idea what is being said to them due to language difficulties, cultural difficulties and their lack of understanding child. If a child is unable to articulate the fear, persecution or harm then are screened out and not be provided with further opportunities to be assessed. There are no written reasons provided to screen out or accept a claim and no right of review. It is clear that the Migration Act (1958) is deficient in regards to the right of representation for children. It is also clear that there is no provision at law for an effective guardian that is independent of the Immigration Minister.

It appears that the approach taken for child asylum seekers who arrives unlawfully in Australia is contradictory any other approach for children in this country.


Photograph supplied by Ayden Shepherd –

[1] Convention on the Rights of the Child (1989)

[2] International Covenant on Civil and Political Rights (1966)

[3] UNHCR Revised Guidelines On Applicable Criteria And Standards Relating To The Detention Of Asylum Seekers, (February 1999)

[4] s178 Migration Act 1958

[5] Crock, M : Seeking Asylum Alone (pg 119)

[6] Crock, M Seeking Asylum Alone (pg 120)