Committee against Torture
42. The State party should:
(a) Ensure that the exemption from criminal responsibility for irregular border crossing for refugees and asylum seekers is strictly enforced in practice and refrain from detaining refugees and asylum seekers on this ground;
(b) Establish a legal basis for regularizing the stay of individuals who are eligible to benefit from protection against refoulement under international human rights law but do not fall under the definition of refugee contained in the Law on Refugees and Asylum;
(c) Develop and implement a comprehensive mechanism to ensure the rights of persons in penitentiary institutions who may be in need of international protection to access asylum procedures, and address, as a matter of priority, the substandard conditions of detention.
Committee on the Rights of the Child
§ 44. "The Committee notes that since 28 February 2019 there are no asylum-seeking, refugee or migrant children in regional processing countries but remains seriously concerned that:
(a)The State party “is not intending to establish an independent guardianship entity for unaccompanied children” (CRC/C/AUS/Q/5-6/Add.1, para. 59) even though the Minister for Home Affairs is also responsible for granting immigration visas and approvals;
(b)The Migration Act still prescribes mandatory detention for persons, including children, involved in irregular migration and that the State party “is not currently considering prohibiting the detention of children in all circumstances” (CRC/C/AUS/Q/5-6/Add.1, para. 60);
(c)The amended Migration Act and the amended Maritime Powers Act of 2013 allow for the return of vessels carrying children who may be in need of international assistance;
(d)The policy of utilizing regional processing countries and detaining children has not been revoked;
(e)The best interests of the child are not a primary consideration in asylum, refugee and migration processes, leading to children going through lengthy assessment and determination procedures, and that the 286 children transferred from Nauru and the many thousands of children before them (the “legacy caseload”) “will not be settled in Australia and are encouraged to engage in third-country migration options” (CRC/C/AUS/Q/5-6/Add.1, para. 62), leaving them in limbo for an undetermined period of time;
45. The Committee refers to its general comment No. 6 (2005) on treatment of unaccompanied and separated children outside their country of origin and to joint general comments No. 3 and No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families / No. 22 and No. 23 (2017) of the Committee on the Rights of the Child on the human rights of children in the context of international migration and recalls its previous recommendations on asylum-seeking and refugee children (CRC/C/AUS/CO/4, para. 81). The Committee urges the State party immediately:
(a) To amend the Immigration (Guardianship of Children) Act of 1946 (Commonwealth of Australia) to create an independent position of guardian for children;
(b) To amend the Migration Act (Commonwealth of Australia) to prohibit the detention of asylum-seeking, refugee and migrant children;
(c) To amend the Migration Act and the Maritime Powers Act to ensure respect for the State party ’ s non-refoulement obligations, particularly in the course of maritime interceptions and returns;
(d) To enact legislation prohibiting the detention of children and their families in regional processing countries;
(e) To ensure that the best interests of the child are a primary consideration in all decisions and agreements related to the relocation of asylum-seeking, refugee and migrant children within Australia or to other countries;
(f) To ensure that children who have been detained in regional processing countries have access to adequate child protection, education and health services, including mental health services;
(g) To review migration laws and policies with a view to withdrawing disability as a criterion for rejecting immigration requests;
(h) To implement durable solutions, including financial and other support, for all refugee and migrant children to ensure their early rehabilitation, reintegration and sustainable resettlement;
(i) To introduce adequate mechanisms for monitoring the well-being of children involved in asylum, refugee and migration processes.
(f)There is limited information on access to protection, education and health services, including mental health services, for all these children;
(g)Migration laws and policies still allow disability to be the basis for rejecting an immigration request;
(h)Inadequate mechanisms for monitoring the well-being of children involved in asylum, refugee and migration processes exist."
Committee on the Rights of the Child
§ 81. "The Committee urges the State party to bring its immigration and asylum laws into full conformity with the Convention and other relevant international standards. In doing so, the State party is urged to take into account the Committee’s general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin. Furthermore, the Committee reiterates its previous recommendations ( CRC/C/15/Add.268, para 64). In addition to that, the Committee urges the State party to:
(a) Reconsider its policy of detaining children who are asylum-seeking, refugees and/or irregular migrants; and, ensure that if immigration detention is imposed, it is subject to time limits and judicial review;
(b) Ensure that its migration and asylum legislation and procedures have the best interests of the child as the primary consideration in all immigration and asylum processes; and ensure that determinations of the best interests are consistently conducted by professionals who have been adequately trained on best - interests determination procedures;
(c) Expeditiously establish an independent guardianship/support institution for unaccompanied immigrant children;"
Committee against Torture
The State party should continue to take effective measures to improve conditions in places of detention and to reduce overcrowding in such places. The Committee recommends that the State party increase its efforts to remedy prison overcrowding, including through the application of alternative measures to imprisonment in line with the United Nations Standard Minimum Rules for Non-custodial Measures ( the Tokyo Rules) and to provide the Committee with information on any probation service to be established in charge of alternative punishment, conditional release and rehabilitation.
The State party should take necessary measures to eliminate any form of violence or discrimination against detainees based on sexual orientation or nationality, including all abusive and discriminatory actions taken by prison inmates against other detainees. It should establish a confidential system for receiving and processing complaints regarding torture or ill-treatment and ensure that the system is established in all places of deprivation of liberty. The State party should further ensure that all complaints received are promptly, impartially and effectively investigated, and the perpetrators punished with appropriate penalties.