Claire Breen: The rights of child deportees


Once again, children are at the centre of strained relationships between New Zealand and Australia, after the latter decided to deport a 15-year-old boy back to New Zealand. The need to protect the boy’s privacy means the reasons for his deportation are not being disclosed.

The Australian authorities are of the view that the decision to deport the boy complies with Australia’s international legal obligations, including those of the UN Convention on the Rights of the Child 1989. Our Foreign Minister, Nanaia Mahuta, says New Zealand has had no advice suggesting Australia has breached any international law but our Children’s Commissioner, is of the view that Australia is acting outrageously and is breaching the rights of the child in question.

So, what are these international legal rights and obligations?

Australia, like every country, has a right to control its borders, cancel visas and deport individuals to protect national security and the public interest.

Equally, however, the individuals who are the subject of such decision-making have rights. In the current situation, because the deportee in question is a minor (a child), another layer of obligations inform this balancing act stemming from particular provisions of the UN Convention on the Rights of the Child 1989, and there are some core principles and rights at play here.

One, in accepting the Children’s Convention, Australia recognises that when it deals with children who are alleged to, or who may, have broken the law, it should treat these children with a sense of dignity and worth and take their age into account. Australia also recognises that it is desirable to promote the child’s reintegration and assumption of a constructive role in society.

Two, Australia is under a legal obligation not to separate a child from their parents against their will, unless such separation is in the best interests of the child.

This obligation reflects the broader recognition that the child should grow up in their family environment, a right that reflects the Convention’s recognition of the family as the fundamental group in society.

These two rights, and the importance of the family as an aspect of the rights of the child, are underpinned by the recognition of the best interests of the child as a primary consideration in all decisions relating to the child.

This means that when a state decides to deport a child, this decision needs to take the child’s best interests into account. These interests include the impact on family relationships, removal to a country that the child may have little or no connection with, and the overall inference from the decision to deport that the child could never be rehabilitated, reintegrated, or ever play a constructive role in (Australian) society.

In Europe, this type of balancing act has taken place on a few occasions after individuals who had spent most of their childhoods in host countries were deported.

In essence the view from the European Court of Human Rights is that deportation can only take place where the individual who, as a minor, committed very serious offences. The deportation of an individual who was found to have committed aggravated rape at age 17 years, and the finding that a 16 and 17-year-old respectively had committed manslaughter were found not to be a breach of their rights.

In contrast, the serving of an expulsion order on an individual who had been found to commit aggravated burglary, as a 14-year-old, was found to be a breach of his right to respect for family life. In making this determination, the Court was influenced by his best interests.

The deportation of the child raises some serious questions therefore for Australia’s commitment to its international legal obligations. New Zealand’s outrage can only bring this country so far. Unlike their counterparts in Europe, young New Zealanders (and, indeed, young Australians) do not have a regional human rights court to turn to. However, New Zealand and Australia have accepted the individual complaints mechanism of the International Covenant on Civil and Political Rights 1966, which could be one recourse to challenging such deportations.

The Convention on the Rights of the Child has a similar complaints mechanism but neither New Zealand nor Australia have accepted that.

Given that both countries seem confident in their records of respecting children’s rights and acting in their best interests, perhaps now is the time to take one concrete step that would empower young people in both countries to challenge the authorities for failing to protect their rights.

• Claire Breen is a professor with Te Piringa Faculty of Law at Waikato University.

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