CHAPTER 2
Key issues
2.1
This chapter discusses the key issues raised in submissions to the
inquiry. In principle, submitters supported the main object of the Bill,
establishing an independent guardian for unaccompanied children who do not have
an appropriate visa or immigration authority for entry into Australia
(unaccompanied non-citizen children).[1]
Some submitters supported the passage of the Bill in its current form.[2]
However, other submitters suggested that the Bill should be amended or take on
a different form in order to better achieve its objects.[3]
Establishing an independent guardian
2.2
Submitters raised a variety of points in arguing the case for an
independent guardian for unaccompanied non-citizen children. The arguments centred
on the unique situation of unaccompanied non-citizen children, the need to
avoid any conflict of interest that may arise from the different roles of the
Minister, and the need to satisfy Australia's international obligations. This chapter
will deal with each of these points in turn.
The unique situation of unaccompanied
non-citizen children
2.3
Unaccompanied children who have fled their home country to come to
Australia are far more vulnerable than adults in similar circumstances. As Catholic
Social Services Australia noted in its submission:
Due to their dependence on the care of adults for access to
the requirements of life (food, shelter, education, health care), children are
inherently vulnerable and, in times of crisis, are in need of special
protection.[4]
2.4
The Castan Centre for Human Rights Law reiterated this point, stating that
unaccompanied asylum-seeker children are particularly vulnerable individuals
who are at special risk of being exposed to harm given that they lack the
protection of both their home state and their parents.[5]
2.5
At present the IGOC Act makes the Minister the legal guardian of all
IGOC minors, including those who have been accepted as refugees. In contrast, as
explained by the UNSW Human Rights Clinic and the Andrew & Renata Kaldor
Centre for International Refugee Law, the Bill would only apply to unaccompanied
non‑citizen minors who do not have an appropriate visa or immigration
authority for entry into Australia. It may be assumed that this would leave the
Minister as the guardian of unaccompanied minors who have been accepted as
refugees potentially creating two legislative regimes to govern unaccompanied
minors. The Kaldor Centre and the Human Rights Clinic submitted:
...the distinction between these categories cannot be justified
as a matter of policy, and it would be preferable to consider an integrated
approach to both categories of unaccompanied non-citizen children.[6]
The different roles of the Minister
2.6
As noted in Chapter 1, under the IGOC Act, the Minister is the legal
guardian of unaccompanied non-citizen children to the exclusion of the parents
and every other guardian of the child. The Law Council of Australia quoted an
article by Professor Mary Crock and Associate Professor Mary Anne Kenny
which explained that:
As a matter of common law and equity a guardian stands in
loco parentis to the child. This includes the power to make decisions for the
welfare and upbringing of a child. With this power come concomitant obligations
such as the duty to protect the child from harm and to provide maintenance and
education.[7]
2.7
The Castan Centre added to this by stating that:
...the duty of guardian over refugee children is extremely
important as that person is considered to hold a 'fiduciary duty'—a special position of
trust—and is legally
obliged to protect the interests of those children in the same manner as their
own interests...the Minister's powers and duties in this context are 'akin to
that of a parent'.[8]
2.8
The Minister also has extensive powers under the Migration Act to
determine matters relating to immigration status. Submitters queried whether
the Minister’s powers under the Migration Act were in conflict with the
Minister's duties as guardian.[9]
Some submitters also argued that there is a clear conflict of interest between
the different roles and the practical delegation of care responsibilities does
nothing to rectify this conflict.[10]
2.9
The Refugee Advice & Casework Service (RACS) noted its concerns that
where a conflict between the roles becomes apparent:
...courts have held that the Minister’s responsibilities under
the Migration Act take precedence over the Minister’s responsibilities under
the Immigration (Guardianship of Children) Act 1946 (Cth)...[11]
2.10
Although the Bill aims to remove this perceived conflict by establishing
an independent role of Guardian, ALHR argued that the Bill may not necessarily
achieve this goal. ALHR explained that clause 17 of the Bill proposes that the
Minister would have an input in the appointment of the Guardian and, under
clause 22, the Minister could appoint an acting Guardian during a vacancy in
the office of the Guardian. ALHR speculated that these proposed functions of
the Minister could impinge on the independence of the proposed office.[12]
2.11
The Kaldor Centre and the Human Rights Clinic highlighted the current policy
and practice of the Minister and the department to engage delegated guardians
and custodians, as outlined in Chapter 1.[13]
As noted in the department's submission to the AHRC 2014 inquiry, where there
is a potential conflict in the roles of the Minister under the Migration Act
and the IGOC Act, guardianship is automatically delegated to specific officers
of the department, to avoid any conflict.[14]
The submission of the Law Council of Australia acknowledged that:
...the Department of Immigration and Border Protection and its
predecessors have taken steps to develop administrative and practical measures
to attempt to address the Minister's legal conflict. For example, the Law
Council is aware that the Department has developed clearly articulated roles
and responsibilities for officers with guardianship functions delegated from
the Minister, and has established a clear framework under which they are to
operate. It is aware that the Department is presently reviewing its procedure
manual in regard to guardianship, but that on a practical level there is a
designated practice management group, in addition to other practical measures,
to engage with delegated guardians.[15]
2.12
The Kaldor Centre and the Human Rights Clinic argued that the Bill does
not sufficiently define whether and how the Guardian’s role is to operate with
existing state, territory and non-governmental service providers. The
submission acknowledged that:
...subsection 18(4)(d) of the Bill makes it mandatory for the
Guardian to refer a matter to another appropriate agency or organisation 'if
necessary', but provides no guidance as to when such necessity might arise. Section
19 provides that the Guardian must cooperate with other Commonwealth agencies
that provide services affecting unaccompanied non-citizen children, but there
is no reference to cooperation or consultation with State, Territory and
non-governmental service providers.[16]
2.13
The Kaldor Centre and the Human Rights Clinic opined that 'having the
Guardian operate in isolation from State, Territory and non-governmental
service providers would fail to adequately utilise accumulated experience and
accepted best practice'.[17]
The submission went on to claim that further problems could arise from the need
to ensure adequate resources for the proposed office. It therefore recommended
that prior to establishing an independent office, it would be prudent to
properly consult with stakeholders (including the department) about the operational
viability of and costs associated with the proposed office.[18]
2.14
This recommendation is echoed in the submission of the ANU College of
Law Migration Law Program, which stated:
We would also consider it appropriate that further
consultation take place among relevant stakeholders to ensure that there are
appropriate mechanisms and processes to allow the Guardian to coordinate
properly with service providers and ensure that consistent, high level care is
provided across jurisdictions. This includes not only training and education
but also ensuring that systems for reporting and feedback and information
exchange between the Guardian and those delegated with custodian functions. The
success of these frameworks will depend, in part, on adequate resourcing and
training.[19]
Obligations arising from
international law
2.15
As noted in Chapter 1, Australia is a signatory to the CRC, which
imposes an obligation on the Australian government to legislate using the best
interests of the child principle as a primary consideration.
2.16
The ANU College of Law Migration Law Program claimed that the 'best
interests' principle of unaccompanied children has not been specifically
incorporated into the Migration Act and much discretion is left to the Minister
as to how the Minister balances the best interests of unaccompanied children
with the migration framework.[20]
2.17
The United Nations High Commissioner for Refugees guidelines for the
protection and care of unaccompanied minors state that a 'guardian or adviser
should have the necessary expertise in the field of childcare, so as to ensure
that the interests of the child are safeguarded, and that the child’s legal,
social, medical and psychological needs are appropriately covered'.[21]
ALHR submitted that the Minister is not an appropriate guardian as the Minister
lacks the necessary expertise in the field of childcare.[22]
However, it is questionable whether the proposed Guardian would help to
alleviate these concerns given that some submissions have criticised the Bill for
its failure to specify the relevant qualifications required to take up the role
of Guardian by failing to define terms such as 'suitable person' or
'appropriate qualifications'.[23]
The Kaldor Centre and the Human Rights Clinic argued that the Bill lacks
adequate accountability mechanisms to ensure that services are provided
transparently and appropriately and therefore the proposed framework needs to
be amended to ensure minimum qualifications and guidelines for the Guardian and
custodians discharging their duty. The Bill would also need to include
provisions establishing a mandatory training program and transparent
accountability system.[24]
2.18
As the submission of the Kaldor Centre and the Human Rights Clinic explained:
International law and practice demonstrates the need for
guardians to be accountable for the performance of their obligations. An
effective monitoring and enforcement mechanism is crucial to implement and
ensure oversight of, and accountability for, standards of guardianship.[25]
2.19
Finally, both ALHR and the Kaldor Centre and the Human Rights Clinic
voiced concerns relating to the Bill's failure to clarify whether the proposed
Guardian has any custodial responsibilities outside of nominating a custodian
under clause 13 of the Bill. In the current form of the Bill, the Guardian
would be obliged to advocate for the provision of basic services, but there would
be no legislative duty to provide the services.[26]
Comments and Recommendation
2.20
The committee notes the concerns of submitters in relation to the
multiple roles of the Minister for Immigration and Border Protection and the
need to take Australia's obligations under international law into account when
legislating.
2.21
The committee acknowledges the efforts of the Department of Immigration
and Border Protection in developing clearly articulated roles and
responsibilities for officers with guardianship functions delegated from the
Minister so to as to negate the effect of any perceived conflict. The committee
considers that these measures are sufficient to avoid any actual conflict
between the roles. As such, the committee agrees with the Department of Immigration
and Border Protection that any conflict between the multiple roles of the
Minister does not represent an 'actual' conflict but may be described as a 'perceived'
conflict. The committee also questions whether replacing the Minister with an
independent guardian would have any practical effect on the best interests of
non-citizen unaccompanied minors. Moreover, given that clause 20 of the Bill
proposes that the Guardian may delegate functions and powers to a public
servant, which could include an officer of the Department of Immigration and
Border Protection, the committee queries whether the Bill would result in any
substantive change to the existing framework.
2.22
The committee recognises that international law only imposes an
obligation on the Australian government to make the 'best interests' principle a
primary consideration when legislating, not the primary consideration.
It follows that it would be acceptable for other factors to occasionally
outweigh the 'best interests' principle. As such, the committee accepts that
the existing legislation sufficiently incorporates the principle of the 'best
interests' of the child as a primary consideration.
2.23
As noted, the Bill fails to place a legislative duty on the Guardian to
provide services that a custodian would normally provide. The Bill also fails
to formalise existing agreements that involve cooperation and consultation with
state, territory and non-governmental service providers. Both of these
omissions could result in a movement away from best practice and, as such,
could seriously undermine the principle of 'best interests' of the child.
2.24
Finally, the committee notes that the Bill was drafted without
consulting the Department of Immigration and Border Protection. This leads the
committee to query the workability of the Bill.
2.25
The Committee recommends that the Department of Immigration and Border
Protection consider the submissions made to the inquiry and determine whether
amendments and improvements could be made to the current legislation, but the
committee recommends that any such changes continue to be made within the
existing framework.
Recommendation 1
2.26
The committee recommends that the Bill not be passed.
Senator the
Hon Ian Macdonald
Chair
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