Australian Greens Dissenting Report
1.1
The Senate in Inquiry into the Guardian for Unaccompanied Children Bill
2014 revealed overwhelming support for the creation of an independent guardian
for unaccompanied non-citizen children. The Australian Greens support the
majority of submitters and believe that in order to act in the best interest of
unaccompanied asylum seeker children the Minister for Immigration should be
stripped of his responsibilities as legal guardian.
1.2
There is no doubt that a conflict of interest exists in the law, as the
Minister for Immigration is not only the legal guardian of these children and
but also responsible for their detention, visa determination and deportation
under the Migration Act.
1.3
Whilst the government members of the committee and the Department of
Immigration have tried to argue that this is only a 'perceived' conflict of
interest, legal experts and international bodies have argued the contrary for
over ten years. In particular, the Australian Human Right’s Commission in 2004
found that:
...the legislation providing that the Minister [for
Immigration] be the guardian of children (the IGOC Act), and the delegation of
those powers to Department Managers, created an insurmountable conflict of
interest....The Minister cannot possibly make the best interests of an
unaccompanied child his or her primary concern when, at the same time, he or
she is the detaining authority and visa decision maker. This conflict is not
removed by delegation to the Department Managers. Indeed those Managers are
placed in the invidious position of trying to gain children's trust while those
same children view him or her as the person responsible for their detention.[1]
1.4
Further to this, as was raised by a number of submitters, the courts
have repeatedly given priority to the Minister of the days responsibilities
under the Migration Act over guardianship duties. Therefore the Minister is
unable to give primacy to his or her obligations to act in the best interest of
the child whilst they remain beholden to their duties under the Migration Act.
As stated by the Refugee Advice and Casework Service:
...this system does not provide adequate protection for the
rights and interests of unaccompanied children. Unaccompanied children should
have a legal guardian who is capable of exercising the rights and duties of a
natural guardian at all times with independence and expertise.[2]
1.5
It is important to note that in June 2012 Australia appeared before the
UN Committee on the Rights of the Child to respond to questions on Australia’s
commitment to improving the fundamental rights and welfare of its children.
1.6
The Committee drew specific attention to the issue of the conflict of
interest in guardianship and strongly recommended that the Australian
Government expeditiously establish an independent guardianship for
unaccompanied immigrant children.
1.7
Further to this, the current guardianship arrangement put Australia at
risk of breaching its obligations under the Convention on the Rights of the
Child (CRC).
1.8
The CRC requires our government to act in the best interest of the child
(Article 3.1) and ensure that unaccompanied children who are seeking asylum 'receive
appropriate protection and humanitarian assistance' to guarantee enjoyment of
all rights set out under the CRC and international law (Article 22(1)). The CRC
also states that Australia must provide 'special protection and assistance' to children
temporarily or permanently deprived of his or her family environment (Article
20(1)). Unless the Minister's responsibilities as guardian are decoupled from
the duties prescribed under the Migration Act, Australia continues to put
children at risk.
1.9
Australian Greens believe that there is an urgent need for an
independent guardian whose sole responsibility is to ensure the best interests
of the child are protected and upheld. As the Bill proposes, the creation of an
independent office would remove the conflict of interest that currently exists
as well as ensuring that Australia upholds its international obligations under
the Convention on the Rights of the Child and the Refugees Convention.
1.10
The Australian Greens acknowledge the recommendations made by submitters
to strengthen and refine the Bill. We look forward to working with the sector
on these proposed amendments to ensure that the bill delivers the best possible
outcome for unaccompanied asylum seeker and refugee children.
1.11
The Australian Greens depart from the committees report and recommend
that this Bill be passed with amendments.
Senator Sarah Hanson-Young
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