Over 100 child asylum seekers could be released from detention after the Family Court ruled today that it is unlawful for the Federal Government to detain children indefinitely.

Chief Justice of the Family Court, Justice Alastair Nicholson, and Justice Stephen O'Ryan made the majority ruling while dealing with an appeal against another judge's decision that the court had no jurisdiction over children being held in immigration detention.

The judges agreed that the court's welfare jurisdiction extended to the protection of children in immigration detention.

The appeal was originally brought on behalf of two boys aged 14 and 12 by their mother and later extended to three younger sisters. All members of the family concerned with the case are in detention. But the judges ordered that a re-hearing be held to make a final determination as to the legality of the children's detention.

The children had sought their release by the Minister for Immigration, Philip Ruddock, on the grounds that their continued detention was harmful to their welfare.

"Where the welfare of children is involved, we are of the view that there are strong reasons why the courts have and should exercise their powers to protect children," the judges held.

"[The] greatest danger to children may arise from the failure of ... a public official to pay proper regard for the welfare of children under his/her care and control."

The two judges, with Justice John Ellis dissenting, also held that the indefinite detention of children would constitute unlawful activity.

It was held that Australia's entry into the United Nations Convention on the Rights of the Child precluded the Federal Government from indefinitely detaining children under the Migration Act.

"We can find nothing in the scheme under the Migration Act ... that suggests that Parliament contemplated such a departure from fundamental freedoms and individual liberty," the two judges said.

The decision of the full Family Court related to an action originally brought on behalf of two boys aged 14 and 12 by their mother and later extended to three younger sisters. All members of the family concerned with the case are in detention.

The five children are seeking their release by the Minister for Immigration, Philip Ruddock, on the grounds that their continued detention is harmful to their welfare. The court said today that "the continued detention of these children appears to be, so far as they are concerned, an indefinite detention."

A finding that the detention of the children is "indefinite" and consequently unlawful would pave the way for over 100 other young asylum seekers to be released from detention.

A court order has prohibited the identification of the children.

the age

ABC ONLINE NEWS
Thursday June 19 2003 1:03pm (AEST)

The Family Court has ruled the indefinite detention of children in immigration centres is illegal.

A family of asylum seekers wants the Family Court to order the Minister for Immigration to release its five children from a detention centre.

The Family Court of South Australia last year ruled it had no jurisdiction to make the orders but judges presiding over the appeal today found the court's powers do extend to protecting children in immigration detention.

Chief Justice Nicholson and Justice O'Ryan said it is unlawful to detain children indefinitely, and under Australia's obligations to the United Nations Convention on the Rights of the Child, the Migration Act could not have intended indefinite detention to occur.

The court ordered the case to be re-heard.

The majority of judges found that if the Family Court cannot order the children's release, it can give directions about the nature of their detention and other welfare issues.

Lawyer Jeremy Moore, who appeared for a family of five children currently held in South Australia's Baxter detention centre, has welcomed the ruling.

"This is a test case, a very significant precedent. It's a case that's going to be relied upon," he said.

"There are 108 children in detention in Australia at the moment and they'll all be relying upon this decision to have their cases brought before the Family Court and ask the Family Court to let them out of those horrible places."

http://www.abc.net.au/news/newsitems/s883371.htm

Detention children 'wrongly held'

news.com.au
June 19, 2003

THE Federal Government's indefinite detention of children on immigration issues was unlawful, the Family Court ruled today in a landmark decision.

Chief Justice of the Family Court, Justice Alastair Nicholson, and Justice Stephen O'Ryan made the majority ruling while dealing with an appeal against another judge's decision that the court had no jurisdiction over children being held in immigration detention.

The judges agreed that the court's welfare jurisdiction extended to the protection of children in immigration detention.

The appeal was originally brought on behalf of two boys aged 14 and 12 by their mother and later extended to three younger sisters. All members of the family concerned with the case are in detention.

The two children had sought their release by the Minister for Immigration, Philip Ruddock, on the grounds that their continued detention was harmful to their welfare.

The court set aside the original judge's decision and ordered a re-hearing of the case.

Justice Nicholson stated that the majority (he and Justice O'Ryan) "took the view that if it was to be determined at trial that the children were being held in indefinite detention, then this would be unlawful".

The two judges, with Justice John Ellis dissenting, found that for the purposes of the present case, there was an obligation under the United Nations Convention on the Rights of the Child.

"If this was done the majority considered that given the interference with liberty involved the (Migration) Act could not have intended the indefinite detention of children," the judgment stated.

The court ruled that the children should not be identified.

AAP

Child ruling: Ruddock may appeal

news.com.au
June 19, 2003

IMMIGRATION Minister Philip Ruddock may appeal against a Family Court ruling that keeping children in immigration detention is unlawful.

The Family Court today ruled it had jurisdiction over children held in immigration detention centres when it overturned another judge's ruling in an appeal.

The Chief Justice of the Family Court, Justice Alastair Nicholson, and Justice Stephen O'Ryan agreed its welfare jurisdiction extended to the protection of children in detention.

The appeal was originally brought on behalf of two boys aged 14 and 12 by their mother and later extended to three younger sisters.

A spokesman for Mr Ruddock said the government was awaiting legal advice on the case before making a statement.

However, an appeal was being considered.

"In terms of an appeal, it's under consideration," the spokesman said.

AAP

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http://baxterwatch.net

Family Court decision summary

In keeping with the practice of the Court in cases of public interest, this summary has been prepared to help explain the decision. It does not form part of the formal reasons for judgment

Background

This was an appeal against a decision of Justice Dawe given in October 2002 to the effect that the Family Court had no jurisdiction to make orders in respect of certain children held in immigration detention. In July last year the two older children applied to the Family Court for orders, that the Minister for Immigration and Multicultural and Indigenous Affairs release them from a detention centre because their continuing detention was harmful to their welfare. The father also intervened in the proceedings, asking that all five children live with him, or if this was refused, that he have regular contact with them and that certain orders should be made to protect them while they remained in detention.

This appeal was initially brought on behalf of two boys, aged 14 and 12, by their mother. Although not parties to the original application, the mother also was given leave to add as appellants the boys' three sisters who are 11, 9 and 6. The children's father was also an appellant.

At the time of the hearing of the appeal the children and their mother were detained at one detention centre, but they have since been transferred to another. At the time of the trial the father was living in the general community but is now also detained. All family members are unlawful non-citizens within the meaning of the Migration Act.

The Full Court's Decision

On appeal, the Full Court (Chief Justice Nicholson and Justices Ellis and O'Ryan) considered whether the Family Court, in exercising its welfare jurisdiction and injunction powers, can make orders to release the children from detention. If the Court could not make such orders, they also considered whether the Court had the power to make other types of orders for the protection of the children.

The Court found that the Family Court has a broad jurisdiction in relation to the welfare of children. This power is akin to the ancient parens patriae jurisdiction of the English Courts exercised on behalf of the Sovereign who was considered to have the power to protect those who could not otherwise care for themselves. It extends to protection against prospective as well as present harm, and to orders generally which affect the welfare of children. In the 1992 case of Marion the High Court confirmed that the welfare power extends to applications to sterilise minors with serious intellectual disabilities, which require Court, (not parental), authorisation.

The Court agreed that its welfare jurisdiction extended to the protection of children in immigration detention.

The children and their father sought "the assistance of the Court to protect [the children] from the harm which they are said to be suffering as a result of the nature of the detention imposed upon them." The Court found that the marriage, divorce and incidental powers contained in the Constitution allows the Family Court to protect children from abuse by third parties.

In addition the majority of the Court (Chief Justice Nicholson and Justice O'Ryan) with Justice Ellis dissenting, found that for the purposes of this case the United Nations Convention on the Rights of the Child (UNCROC), (which was ratified by Australia in January 1991), had been incorporated into the Family Law Act by the Family Law Reform Act 1995 pursuant to the external affairs power contained in the Constitution. They considered that the external affairs power is therefore an additional source of the Family Court's power (together with the marriage, divorce and incidental powers) when it is considering the welfare of children.

The Court considered the effect of the Migration Act in relation to its exercise of its powers under the welfare jurisdiction. The majority (Chief Justice Nicholson and Justice O'Ryan) took the view that if it was to be determined at trial that the children were held in indefinite detention, then this would be unlawful. They considered that the Migration Act should be interpreted as having been passed subject to Australia's obligations under UNCROC or having regard to them. If this was done, the majority considered that given the interference with liberty involved, the Act could not have intended the indefinite detention of children. They also considered the capacity of children to unilaterally end their detention, as distinct from their parents and expressed the view that it was unlikely that these children had the capacity to make a request for repatriation under s.198(1) of the Migration Act. If they were found not to have such a capacity, the majority therefore considered their detention would be unlawful.

Justice Ellis did not consider that the continued detention of the children was unlawful as it could not be said that there is no real likelihood or prospect in the reasonable foreseeable future of the children being removed and thus released from detention.

The majority of Judges found that, if they are wrong in determining that the Family Court has the power to order the release of the children, the Court may still give directions about the nature and type of detention in which the children are held, and may also decide issues relating to the medical and educational facilities available to them while in immigration detention.

Justice Ellis considered that the Court did have jurisdiction to make certain protective orders concerning children in immigration detention.

The Court set aside the relevant orders of Justice Dawe and ordered that the case be remitted for rehearing as a matter of urgency.

www.familycourt.gov.au/judge/2003/html/bb2.html