Children in migration detention

A 2004 High Court case raised the public interest issue of the mandatory detention of children in migration detention. Kate Eastman, instructed by the Public Interest Advocacy Centre, led by Felicity Hampel SC, acted pro bono for Amnesty International Australia, which was granted leave to file written submissions as an amicus curiae (‘friend of the Court’).

The case related to the welfare of children in immigration detention and Australia’s international obligations under the United Nations Convention on the Rights of the Child (CROC). Amnesty International submitted, among other things, that the Family Court had jurisdiction to determine the welfare of children in immigration detention in Australia, including the power to release them from detention. This, it was argued, was the result of the incorporation into Australian law of CROC, which prescribes that the detention of children, except in very limited circumstances, is a violation of Australia’s human rights obligations.

The High Court ruled that the Family Court of Australia does not have the power to order the release of children from immigration detention. The Court found that the provisions of the Migration Act 1958 (Cth) were clear and unambiguous, providing for the mandatory detention of both adult and children unlawful non-citizens and that the jurisdiction of the Family Court, provided for in the more general provisions of the Family Law Act 1975 (Cth), could not override these provisions. Justice Kirby, while not required to come to a conclusive decision on this issue, stated that it was strongly arguable that Australia’s detention of children was in breach of international law.

Minister for Immigration and Multicultural and Indigenous Affairs v B & B [2004] HCA 20