Children in immigration detention
In July 2002, the Family Court of Australia ordered the release of five Afghan children from Baxter Immigration detention centre. The children were being held there with their mother (and later their father was also detained). The children were released into community care, separate from their parents who remained in detention.
The Minister appealed this case on the grounds that the Family Court had no jurisdiction in this area. This was upheld by the High Court in 2004 (Minister for Immigration and Multicultural and Indigenous Affairs v B and B  HCA 20). The children’s ongoing detention was deemed lawful under the Migration Act. It was found that sections 189 and 196 of the Migration Act make no distinction between unlawful non-citizens who are under or over the age of 18 and such matters were not relevant to the Family Courts.
In October 2004, without having to address any areas of Family Court jurisdiction, the High Court again found that it was lawful to keep children in continued immigration detention in the case of Woolley (Woolley; Ex parte Applicant M276/2003 (by their next friend GS)  HCA 49).
After mounting pressure, a report by the Human Rights and Equal Opportunity Commission (A Last Resort, 2004) and numerous medical experts providing evidence of the detrimental impacts of detention on children – legislative change was made. The Migration Act was amended in 2005 (Migration Amendments (Detention Arrangements) Act 2005) and section 4AA now states:
- The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
In February 2011 there were 990 children held in immigration detention. (For updated statistics see Immigration Detention Statistics Summary 30 June 2012) The Immigration Minister announced in October 2010 that ‘the majority of children would be out of detention by June 2011’. Despite section 4AA of the Migration Act there are no measures in place today for the arrival of children seeking asylum by boat other than to detain them as a first course of action.
For further information on this issue, see PIAC's 2008 report on Children in Migration Detention, and 2002 Human Rights and Equal Opportunity Commission (HREOC) national inquiry report A Last Resort: a Report of the National Inquiry into Children in Immigration Detention which was released in May 2004 and includes discussion of educational needs and mental health issues.
Hot Topics 77: Refugees. Hot Topics is intended as an introductory guide only and should not be interpreted as legal advice. Whilst every effort is made to provide the most accurate and up-to-date information, the Legal Information Access Centre does not assume responsibility for any errors or omissions.
�� Library Council of New South Wales 2011. Copyright in Hot Topics is owned by the Library Council of New South Wales. Material contained herein may be copied for the non-commercial purpose of study or research, subject to the provisions of the Copyright Act 1968 (Cth).