Australia's detention of asylum seeker children amounts to torture

4) Does not include pain or suffering from lawful sanctions

Mandatory detention has its legislative basis in the Migration Act 1958. The Convention against Torture assumes that some pain and suffering always occurs, purely because a person is placed in detention. Such pain and suffering is "inherent in or incidental to lawful sanctions", and therefore does not amount to torture.

But systematic child neglect inside the detention centres outweighs the pain and suffering expected from any form of legal detention, and is therefore outside the spirit of the Convention against Torture. Detention under Australian law does not give license to introduce further pain and suffering. Immigration laws should not be extended to the point where they disregard other basic laws, and accept child neglect under the guise of lawfulness.

Torture as a Social Process

Immigration detention is not a legal necessity. It occurs in the absence of judiciary process, as the result of the mechanistic and dispassionate application of the policy of mandatory detention. Asylum seekers who make it alive in rickety boats to the Australian coastline, or even within Australian waters, are automatically kept in custody until the outcome of their refugee claims is decided. Whole family groups are locked up, including their newborn babies.

It is of concern how, from among seventeen applicants for the tender to administer detention services, DIMIA chose a company experienced in the running of jails. Had DIMIA intended to provide processing services rather than prisons, it would have employed social workers, teachers, and specialist counsellors with trauma and torture experience.

Some children have spent years inside the immigration lock-ups. These terms of imprisonment appear excessive for travelling to Australia without valid documents, particularly as there is no upper limit on the length of detention.

In detention centres of the Pacific Solution, isolation is even greater than in the remote centres of Australia. Torture as a social process is an ongoing layering of indignities and ill treatment, leading to psychological damage. Isolation, and the resulting invisibility of detainees provides yet another layer of the social process.
Children have special rights and protection in detention because they are especially vulnerable to abuse and damage. These protections are designed to minimise pain and suffering. By consistently denying these rights, the Australian authorities are inflicting pain and suffering, which in turn ties these denials to torture, as defined by convention.

A government official is available at all times, because each detention centre has a DIMIA manager on site. The presence of the DIMIA manager strengthens the link between events in detention centres and the government's policy of neglect.

Torture Under the Eyes of the Law?

Not only is international law breached. There are several "disclaimers" within national Australian law that seem to make prosecution impossible by our legal system. The 1988 Crimes (Torture) Act only allows for prosecution of torture if the crime was committed outside of Australia. This legislation might pave the way to impunity for acts of torture within Australian territory, but it may apply to Australian officials acting in camps in Papua New Guinea and Nauru, or even on Christmas Island.

In more recent legislation, the Border Protection Act exempts individuals "who acted on behalf of the Commonwealth" from prosecution for criminal or civil offences. Future case law needs to test if this legislation paves the way to impunity not only on board of ships, but anywhere within Australia, Nauru, and Manus Island.

The physical and mental wellbeing of detained children is in jeopardy, as they are exposed to severe pain and suffering. Isolation from mainstream society, secret commercial contracts, and the remote location of most camps within Australia and in the Pacific Islands, provide an ideal environment for torture.

At this very moment, community opinions remain polarised and a humane outcome for detained children is uncertain. It is therefore crucial that the press, individuals and refugee advocacy groups remain vigilant and demand that the government work in an accountable and morally responsible manner.