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Asylum kids lose appeal
By Sophie Morris
April 30, 2004
THE activist Family Court has been delivered a stern judicial rebuff, with the full bench of the High Court unanimously overruling its decision to free five asylum-seeker children.
A Family Court ruling last August led to the release of the children from South Australia's Baxter detention centre.
But the seven judges of the High Court's full bench ruled yesterday that the Family Court did not have the authority to release children from immigration detention or make orders about their welfare.
"The Family Court has no jurisdiction to make such an order. Nor has it any jurisdiction to make orders concerning the welfare of children who are in immigration detention," Chief Justice Murray Gleeson and Justice Michael McHugh wrote in a joint judgment.
The siblings, aged 6 to 15, remained with their carers in Adelaide yesterday as their lawyers rushed to seek an injunction in the Federal Court to prevent the Immigration Minister detaining them. The hearing on the injunction continues today.
Acting Immigration Minister Gary Hardgrave welcomed the High Court's decision but said the Government would not immediately put the children back in detention.
"We have a range of options open for consideration about the family at the centre of this, but won't make any on-the-run pronouncements," Mr Hardgrave said.
"The current arrangements for the children are going to remain in place for the time being."
Attorney-General Philip Ruddock, who as immigration minister accused the Family Court last August of meddling in policy and initiated the appeal against its decision, said yesterday's ruling affirmed that the Family Law Act did not override migration law.
"The system has worked as intended," he said.
The children's lawyer, Jeremy Moore, said the High Court decision was disappointing but was not the final word on detaining asylum-seeker children, as the High Court would soon rule on the legality of detaining the four Sakhi children from Afghanistan.
Yesterday's decision was about whether the Family Court had overstepped its jurisdiction, but comments in Justice Michael Kirby's judgment also touched on the legality of detention, observing that clear-cut laws allowed the Government to detain unlawful non-citizens.
"Mandatory detention of unlawful non-citizens who are children is the will of the parliament of Australia ... those laws must be obeyed and enforced, whenever they are valid and their obligations are clear and applicable," Justice Kirby wrote.
He found it "strongly arguable" that Australia had breached its obligations under the UN Conventions on the Rights of the Child but said the court could not invoke international law to override Australian law.
The judgment noted that detention under the Migration Act applied equally to adults and children.
The children and their mother, who is in immigration detention with her seven-month-old baby in an Adelaide hotel, have exhausted legal appeals on their migration applications and could be deported.
The father, in Baxter detention centre, still has a case pending.
Labor immigration spokesman Stephen Smith urged the Government not to return the children to detention.
The Australian Democrats said the High Court decision gave the Immigration Department the right to "continue institutionalised child abuse".
Dianne Hiles, a spokeswoman for Children Out of Detention, called on the Government to change the law so the Family Court could make decisions about 81 asylum-seeker children detained in Australia and 70 children held on Nauru.
By Sophie Morris
April 30, 2004
THE activist Family Court has been delivered a stern judicial rebuff, with the full bench of the High Court unanimously overruling its decision to free five asylum-seeker children.
A Family Court ruling last August led to the release of the children from South Australia's Baxter detention centre.
But the seven judges of the High Court's full bench ruled yesterday that the Family Court did not have the authority to release children from immigration detention or make orders about their welfare.
"The Family Court has no jurisdiction to make such an order. Nor has it any jurisdiction to make orders concerning the welfare of children who are in immigration detention," Chief Justice Murray Gleeson and Justice Michael McHugh wrote in a joint judgment.
The siblings, aged 6 to 15, remained with their carers in Adelaide yesterday as their lawyers rushed to seek an injunction in the Federal Court to prevent the Immigration Minister detaining them. The hearing on the injunction continues today.
Acting Immigration Minister Gary Hardgrave welcomed the High Court's decision but said the Government would not immediately put the children back in detention.
"We have a range of options open for consideration about the family at the centre of this, but won't make any on-the-run pronouncements," Mr Hardgrave said.
"The current arrangements for the children are going to remain in place for the time being."
Attorney-General Philip Ruddock, who as immigration minister accused the Family Court last August of meddling in policy and initiated the appeal against its decision, said yesterday's ruling affirmed that the Family Law Act did not override migration law.
"The system has worked as intended," he said.
The children's lawyer, Jeremy Moore, said the High Court decision was disappointing but was not the final word on detaining asylum-seeker children, as the High Court would soon rule on the legality of detaining the four Sakhi children from Afghanistan.
Yesterday's decision was about whether the Family Court had overstepped its jurisdiction, but comments in Justice Michael Kirby's judgment also touched on the legality of detention, observing that clear-cut laws allowed the Government to detain unlawful non-citizens.
"Mandatory detention of unlawful non-citizens who are children is the will of the parliament of Australia ... those laws must be obeyed and enforced, whenever they are valid and their obligations are clear and applicable," Justice Kirby wrote.
He found it "strongly arguable" that Australia had breached its obligations under the UN Conventions on the Rights of the Child but said the court could not invoke international law to override Australian law.
The judgment noted that detention under the Migration Act applied equally to adults and children.
The children and their mother, who is in immigration detention with her seven-month-old baby in an Adelaide hotel, have exhausted legal appeals on their migration applications and could be deported.
The father, in Baxter detention centre, still has a case pending.
Labor immigration spokesman Stephen Smith urged the Government not to return the children to detention.
The Australian Democrats said the High Court decision gave the Immigration Department the right to "continue institutionalised child abuse".
Dianne Hiles, a spokeswoman for Children Out of Detention, called on the Government to change the law so the Family Court could make decisions about 81 asylum-seeker children detained in Australia and 70 children held on Nauru.
I'm wondering what everyone's opinion's are on this situation, should they be held in detention centre's?
![:\](https://bluelight.org/xf/BL_Images/Orig_Emoji/wrygrin.gif "wry grin :\")
let alone worrying about what happens to them once they reach our shores. I know it's a complex issue resolving the exact origins of asylum seekers, but there is no way i can condone the detention of children. Whenever i think of our treatment of asylum seekers, it's one of the few times i feel ashamed to be Australian. 
