Australia's detention of asylum seeker children amounts to torture

The incarceration of children under the policy of mandatory detention satisfies all four conditions.

1. Severe pain or suffering

During the Northern Ireland case, the European Court of Human Rights established that inhuman and degrading treatment becomes torture when suffering is intense. This intensity relates to how pain and suffering is experienced by the victim, and depends on personal factors, such as age, sex, state of health and resilience. Children, because of their age and developmental needs, are especially vulnerable.

Children who have suffered or witnessed the pain and suffering of others, are likely to reach torture threshold very quickly within the prison environment of the immigration detention centres. It is therefore crucial that children from refugee populations are not exposed to the harsh realities of mandatory detention.

Even an "innocent" decision, such as room allocation, can have a detrimental effect. A 15-year-old felt terrorised when he was housed with men from the ethnic group that had persecuted him and his family in his homeland. Routine awakening by guards during random night patrols, the use of flashlight beams and the repeating of detainee names can lead to children developing fears about sleeping. One child resisted being put to bed, only to wake later exhausted, screaming with nightmares. Waking detainees and shining a torch in their faces during hourly watch rounds possibly contributes to security. But systematic sleep deprivation is also a widely recognised form of torture.

2. Intentionally inflicted for the purpose of obtaining information/confession or to punish or intimidate "him" or a third person

If children are knowingly placed into conditions of neglect, the damage that inevitably follows is foreseeable. Criminal law stipulates that the knowledge that an act will lead to an outcome equates to intention to create that outcome. Knowing the predictable outcome of the policy of mandatory detention, and nevertheless persisting with it, makes the Australian government culpable of torture of children.

The government has made it clear that, apart from protecting Australia's borders, the policy of mandatory detention is also intended to deter people smugglers from bringing asylum seekers to Australia. Children are incarcerated for the purpose of influencing the actions of "third persons", the people smugglers. Implementation of the Pacific Solution also prevents people from claiming refugee entitlements in Australia, and can be considered a punishment.

3) Consent or acquiescence of a public official or person acting in an official capacity

Torture comes about by the continued refusal of the government to stop the neglect. Government involvement is systematic, because immigration policy precludes any legal means of allowing child refugee applicants without a visa to live in an environment that fosters normal growth and development.

Detained children are not actively mistreated on specific orders from the Australian government. There is no official torturer in the traditional sense: a person who beats a screaming child. But where children are concerned, passive withholding of developmental requirements causes as much damage as active violence. Neglect by policy is just as cruel, unjust, and inhumane as if there were a personal perpetrator. Therefore, the definition of torture needs to be interpreted in a way that challenges mechanistic, systematic, and impersonal neglect. Perfecting torture by a method that dispenses with the necessity of personal interaction during the torture process must not be rewarded.

The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), has responsibility for Immigration Detention Centres, despite a contract with Australasian Correctional Management that indemnifies the government from damages incurred as the result of day-to-day operation of detention services. Ultimately, the duty of care for safety and security of detained asylum seekers rests with DIMIA and cannot be delegated to a private operator. This is a position that DIMIA accepts. Personnel of Australasian Correctional Management, therefore, act in the capacity of "public officials", as they are operating under the non-delegable duty of DIMIA. The same may be said of detention centres at Nauru and Manus Island, who are also there by order of the Australian Government.