Children's release from detention "unlawful"
Five asylum seeker children whom Centacare South Australia has supervised living in a suburban Adelaide home for several months could be forced back into a detention centre after Australia's highest court ruled their release into the community was unlawful.
All seven High Court judges found that the Family Court did not have the power to order the release of the children, aged seven to 15, from the Baxter detention centre in South Australia last August.
Upholding the Federal Government's appeal, the court said the Family Court had no jurisdiction to make orders concerning the welfare of children held in immigration detention.
The scheme of mandatory detention of unlawful non-citizens, including children, was valid under Australia's Constitution and the court could not invoke international law to override those provisions, it said.
Refugee advocates had hoped the case could pave the way for the release of the 137 children in detention centres in Australia and Nauru.
Immigration Department figures show 62 children are in immigration detention centres in Australia, including Christmas Island, and 75 at Nauru. Of those in Australia, 40 have been held for more than six months.
Centacare director Dale West, which has responsibility for the children, said they had been going to school, were playing sport and had made friends.
"I really hope we can negotiate to find a solution which doesn't involve them going to back to Baxter," Mr West said.
The two boys, three girls and their mother joined their asylum seeker father in Australia in 2001, claiming to have fled the Taliban in Afghanistan.
But the Refugee Review Tribunal held the family were Pakistani nationals. The boys escaped from Woomera detention centre in 2002 and on their return the Family Court proceedings began.
The five children live with a carer and regularly visit their mother and baby brother, who are in a nearby high-security motel. Their father is in Baxter detention centre.
Children's release from detention unlawful (West Australian 30/4/04)
High Court reverses children in detention decision (ABC TV Lateline 29/4/04)
High Court overturns kids out of detention decision (ABC Radio PM 29/4/04)
Children may go back to detention (The Age 30/4/04)
High Court overturns children in detention decision (ABC West Coast SA 29/4/04)
30 Apr 2004