The High Court will today hear a challenge, led by QC David Manne, on the human rights implications of sending asylum seekers who have arrived by boat in Australia to Malaysia as part of the federal government’s hyped Malaysian Solution. One interesting aspect of the challenge is that Immigration Minister Chris Bowen is the legal guardian of asylum seekers that are unaccompanied minors, and six of the 42 currently awaiting transfer to Malaysia are unaccompanied children.

What does this mean when unaccompanied minors are sent to Malaysia? Who will be responsible for them? Crikey spoke to QC Julian Burnside, an expert in human rights and asylum seekers, to examine the legal guardianship issues.

What are the legal responsibilities a guardian has?

“To protect the best interest of the child,” Julian Burnside told Crikey. The United Nation’s Convention on the Rights of the Child, of which Australia is a signatory, states: “Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

What is the legislation behind this?

Minors who arrive in Australia unaccompanied and plan to settle permanently fall under the Immigration Guardianship of Children Act (1946), or the IGOC Act. This makes the minister for immigration and citizenship their legal guardian. As the Department explains:

“The minister delegates his function as guardian of wards to officers of the department and to officers in relevant child welfare authority in each state and territory. The state and territory agencies provide welfare supervision and settlement support to unaccompanied minors who are permanent residents.

“Guardianship continues until the ward turns 18 years of age, leaves Australia permanently, becomes an Australian citizen or when the minister directs that the ward will not be covered by the IGOC Act. This may occur, for example, when the child is adopted or a relative over the age of 21 takes responsibility for them …

“… In making decisions concerning the welfare and care of unaccompanied minors in immigration detention facilities, the Department of Immigration and Citizenship draws upon the advice of people with expertise in child welfare, such as psychologists and state child welfare authorities.”

How long has this been the case?

According to the Department of Immigration, the IGOC Act was introduced after minors started coming to Australia unaccompanied following World War II, and has covered events such as the fall of Saigon, children coming from Europe, East Timor and Afghanistan, and of course by boat.

Is it a conflict of interest that the legal guardian of these children is also the person who decides policies that affect the children in their care?

“Yes it is and it’s a conflict which the minister should resolve in favour of the interests of the child,” said Burnside. “It’s inconceivable that the minister can send child to a place where they are at greater risk than if they were to stay here. He has to discharge the obligations of guardian properly. Meaning, he shouldn’t send them to Nauru, he shouldn’t send them to Malaysia, he shouldn’t put them into immigration detention.”

Should an independent group or person assume legal guardianship in Australia rather than the minister?

“That would be interesting, but you’d then get the minister feeling free to trump anything that the guardian thinks is appropriate,” explained Burnside. “It’s exactly why children who come with their parents are treated like criminals, because the minister doesn’t have the same responsibilities to them.”

What happens when these unaccompanied minors go to Malaysia?

“They will go from a position where they have a guardian to where they don’t have a guardian. That in itself illustrates the problem,” said Burnside.

“Children need to be protected. Normally a child will have a parent or other close relative to look after them but these children arrived as unaccompanied minors, therefore the ministry is meant to protect them and the ministry is failing miserably. Its predecessors also failed miserably. They seem to regard guardianship as something that exists on a piece of paper rather than something that has other obligations and responsibilities.”

Chris Bowen spoke to Lateline on July 25, where Ali Moore questioned him relentlessly over unaccompanied minors being sent to Malaysia under the new deal. “You can have no blanket exemptions to transfers from Australia to Malaysia because that would send completely the wrong signal,” Bowen said. “That would send the signal that if you put your children on a boat, then they can get access to Australia and they can sponsor you, and I do fear we would see boatloads of children coming to Australia and all the danger that that implies.”

After further probing, Bowen replied: “Well under Malaysian law, and as reflected by this agreement, people transferred from Australia to Malaysia would be exempt from the Immigration Act and therefore would be under the care of the Malaysian government, and then through that process as they’re released into the community, receive the support and care of the UNHCR and the IOM with the assistance of Australia and appropriate support would be in place for individuals.”

Crikey approached Bowen’s office for further questioning on who would become legal guardian of these children once they are in Malaysia but did not receive a response before deadline.

*Additional research done by Crikey intern Sophie Malcolm

Peter Fray

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