Government kicks kids back into custody

Peter Mac

In an astonishingly cynical ploy, the Howard Government last week 
declared the current Adelaide home and school of five asylum 
seeker children to be detention centres, and their carers 
detention officers.

Rather than liberating the children, the move has actually 
changed their home and school into places of imprisonment, and is 
a cynical attempt to consolidate the government's rigidly 
inhumane policies towards asylum seekers.

Last August the Family Court of Australia ordered the release of 
the children, who cannot be named, from the Baxter Detention 
Centre. The Howard Government then launched a High Court 
challenge as to whether the Family Court had the right to make 
such a determination.

Note that the government was dealing with the issue of legal 
jurisdiction, not with the justice of the decision itself. 
Throughout the case the government's actions have demonstrated 
that its real concern is not the children's welfare, but rather 
the retention of its asylum seeker policies.

Two weeks ago the High Court found that the Family Court did not 
in fact have the right to deal with the case under the current 
law. While agreeing with the legality of this decision, Justice 
Michael Kirby said it was "strongly arguable" that the 
government's actions breached Australia's obligations under the 
UN Convention on the rights of the child.

Commenting on the decision, the Attorney-General Phillip Ruddock 
said that the Family Law Act does not override migration law, 
which clearly states that anyone without a visa has to be 
detained. "The system has worked as intended", he exclaimed 
smugly.

Of course the government could enact legislation, with bipartisan 
parliamentary support, to release children from detention on 
humanitarian grounds.

But this would undermine its asylum seeker policy, by introducing 
the precedent of humane considerations for child asylum seekers. 
The same principle — humane considerations — might then be 
extended to members of the child's immediate family, and to other 
detainees.

The declaration by Minister for Immigration Amanda Vanstone that 
the home and school of the five children are detention centres 
for legal purposes has pre-empted a further Federal Court 
decision on the rights of the children.

The government's claim that it has already released the children 
from the detention centre will in effect inhibit the Federal 
Court's decision from setting a legal precedent for other child 
detainees. This will allow the government to retain discretionary 
control over detention, rather than establishing clear legal 
rights for detainees based on humanitarian principles.

By not forcibly returning the children to the misery of the 
Baxter Detention Centre, the government also hopes to limit the 
political fallout from the case.

By retaining rigid restrictions on the admission of asylum 
seekers it hopes to confirm its standing with "redneck" voters, 
and perpetuate the climate of xenophobia that it has deliberately 
generated through the asylum seeker issue.

The government's behaviour is patently cynical, and although the 
children's situation is not as vile as being in the detention 
centre, they are still under a form of arrest.

As Democrats leader Andrew Bartlett commented, "Even though the 
conditions in housing are far better, the lack of freedom, the 
separation of families and the absence of hope are just as 
damaging."

And an angry Federal Court judge Bruce Lander condemned the 
government's action, declaring: "What the minister has done has 
frustrated the application before it was heard and determined by 
me. It's not for the minister, by executive decision, to 
frustrate these children's rights."