The circumstances of unaccompanied minors are barely addressed by the Houston report on asylum seekers.
There is one reference to “vulnerable persons”. This is in the context of transferring those with “special needs” or who are “highly vulnerable” to Australia rather than being left in Nauru or PNG.
The report does not give examples or definitions of what “special needs” are or who qualifies as “highly vulnerable”. In one sense, this is better than a restrictive definition as it provides some flexibility for cases of people who may need special services which are unlikely to be available in Nauru or PNG.
In an attachment, the authors recommend that the Immigration (Guardianship of Children) Act 1946 be amended to provide “that the Minister’s consent is not required for a non-citizen child to be taken from Australia to another location for the purpose of processing their asylum claims”.
The expert panel state that “oversight of arrangements for minors” would be possible through the Parliament’s power to disallow the instrument designating a country as a regional processing location.
It is surprising that the expert panel did not directly address this very important issue in the report at all, and restricted comment to two paragraphs in attachment 10.
My minister, my keeper
Currently, the Minister for Immigration, Chris Bowen, is the legal guardian for unaccompanied minors under the Immigration Act (Guardianship of Children) 1946. It is possible for the minister to delegate the guardianship role to state or territory ministers who have responsibility for welfare matters.
A significant minority of unauthorised arrivals over the past five years have been minors. There have been practical issues such as accurately determining the age for unaccompanied minors, especially when the minor in question does not know their true age. This is not uncommon among some communities such as Afghans from regional areas where birthdates are not recorded and a different calendar is used.
Not surprisingly, the department has sought to find ways of caring for minors outside of detention, especially given the well-known damaging effects of prolonged detention on asylum seekers. So when the “Malaysian Plan” was agreed in 2011, one of the concerns of advocates was whether minors would be forcibly returned to Malaysia and who would care for them there. This featured in the M70 case in the High Court which effectively ruled out the plan.
The second plaintiff in that case, M106, was a minor. M106 argued that they could not be removed to Malaysia unless their guardian, the minister, had given consent in writing. Such a decision is reviewable under the Administrative Decisions Judicial Review Act 1977 (ADJR Act). The ADJR Act requires written reasons be given and such reasons are reviewable in the Federal Court. It is likely that matters such as “the best interests of the child” and possible issues under the UN Convention on the Rights of the Child would arise in such proceedings.
The High Court held that as no written consent had been given, M106 could not be removed, apart from the fact that the “Malaysian Plan” declaration by the minister was found to be made in contravention of the human rights protections set out in the Migration Act.
Hence the need to amend the Immigration (Guardianship of Children) Act to enable the forced removal of minors to Nauru, or wherever they would be sent. Otherwise each minor would need a written consent by the minister, and such consent would be reviewable in the Federal Court on grounds wider than those that apply to judicial review of Migration Act decisions.
More than a minor omission
Given the major significance of a recommendation that minors be stripped of protection under the Guardianship of Children Act, it is astounding that the expert panel did not address this issue and made a sweeping recommendation to abolish the existing protections.
This has not featured in the political debate very much.
Sadly the current political environment seems unlikely to deal with the “best interests of minors” in the rush to implement the Panel’s 22 recommendations. An issue which affects basic human rights for minors deserves more serious and informed debate.
John Coochey
Mr
This is walking a moral and legal tightrope unless we want boats arriving with nothing but minors on them, who will then seek family reunion. The other issue is of course they are not fleeing from Irian Jaya or East Timor, they have managed to travel half way round the world, they should be able to survive three square a day on a tropical island, as would about a quarter of the population of the Indian sub continent.
Mister Anderson
Student
Volunteer your children to spend a few months in detention please John "they should be able to survive three square a day on a tropical island". Be a good Australian and lead us all by example.
John Coochey
Mr
I thought that was what we called Outward Bound? I have certainly experienced conditions far worse than exist on the islands.
Norm Stone
logged in via Facebook
Outward Bound is neither compulsory nor of indefinite duration. The whole discussion has been hijacked by legalistic dogs in the manger. This is NOT a border security issue. Children pose no danger to our wonderful society unless we fail them and thus morally degrade ourselves. The men, women and children who arrive here by boat are the most powerless in the world. All our leaders do is exploit them for their own petty ends, lying to the electorate and creating false fears.
Marilyn Shepherd
pensioner
Gillard is the first PM to have babies declared a security risk and jailed for life, Indonesian children have been tortured in adult prisons and so on.
but let us not forget that our own high court once found that it was perfectly ok to leave babies and children jailed here if they seek asylum.
Peter Ormonde
Peter Ormonde is a Friend of The Conversation.
Farmer
I'd like to agree but I'm afraid the detention of kids behind razor wire IS a border security issue Norm... just like their parents - the overwhelming majority of whom pose no risk to Australia or anyone else. They actually get checked out and vetted. But we lock 'em up anyway.
Those in favour of razor wire and "sending them back" aren't really interested in security - they just don't want them turning up and getting in here - doesn't matter how old or what if any security threat the do or don't pose.
To be morally degraded one must have some moral basis in the first instance. And this policy, these attitudes - don't. Wouldn't know a moral if one landed on their doorstep.
John Coochey
Mr
BABIES? Who can travel unaccompanied half way round the world unaccompanied ? What we are talking about is teenagers who may be of uncertain age. I recall the ones in detention on the mainland who became minors to get into apparently palatial foster housing who then decided they were not minors when they found they could not buy cigarettes.
Marilyn Shepherd
pensioner
Did I say babies travelled on their own? And for god's sake they are still children.
John Coochey
Mr
The purpose is to give a disincentive to people getting on boats pure and simple. There was a letter to the CT a week or so ago demanding immigration list all the benefits that asylum seekers get so we will know how meagre they are. Anyone like to do that only I think they are not that meagre.
John Coochey
Mr
So anyone who arrives here with children should be given refugee status and access to social security if they can prove they once lived in a war zone?
Marilyn Shepherd
pensioner
They are almost non-existent. We jail them for years, destroy their minds and then dump them in housing for one month on the least possible amount of dole possible and then demand they get work ASAP.
Unlike those migrant refugees who get 5 years of ongoing welfare, housing and support under a voluntary scheme.
John Coochey
Mr
So stories of an eight thousand dollar grant for home essentials are false? The written word forms the skeletons of ghosts which will come back to haunt us.
Marilyn Shepherd
pensioner
Of course it is a lie? That was about the department paying that much to briefly house refugee families, they didn't get to keep it.
Marilyn Shepherd
pensioner
Yes, the convention specifically states that all children are refugees whether they are with parents or not.
And living in a war zone is not the point, the point is persecution or harm.
John Coochey
Mr
Prepare for the ghosts!
John Coochey
Mr
So how many of the four million do we accept and how many are you going to sponsor?
Peter Ormonde
Peter Ormonde is a Friend of The Conversation.
Farmer
This issue will inevitably arrive at the High Court. They have some sort of role in reminding Australians and the Australian Government what our legal and moral responsibilities are - our duty of care if nothing else.
Of course the obvious answer ghiven the level of selfish hypocrisy on display for the last 12 years is to pull up the drawbridge, withdraw from the UN Convention and the several other agreements and treaties that cover human rights and asylum and head off over with the mean nasty tin-pot dictatorships and despots who adopt a similar stance to our own. That at least would be honest. Just unspeakably ugly. But honest.
John Coochey
Mr
Agreed, but then the USA never signed the Geneva Convention either.
Peter Ormonde
Peter Ormonde is a Friend of The Conversation.
Farmer
Yes? Well no actually.
Not sure what that has to do with anything - aside of course for demonstrating that you have no idea what you're on about John.
Here's a list of Geneva signatories - ooh look there's the USA http://en.wikipedia.org/wiki/List_of_parties_to_the_Geneva_Conventions
Here's a list of signatories to the UN Refugee Convention which actually governs the treatment of asylum seekers. - ooh look there's the USA again!!!
http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf
The US does not however want to come under the jurisdiction of the ICC regarding war crimes. For obvious reasons.
John Coochey
Mr
Well actually a little more complicated
http://wiki.answers.com/Q/Did_the_US_ratify_the_Geneva_Conventions
Peter Ormonde
Peter Ormonde is a Friend of The Conversation.
Farmer
Now John I'm actually starting to have serious doubts about you mate...
I am busy today - too busy to be teaching you how uncomplicated it is, so I'll be brief.
First up, the Geneva Convention - the one that covers war crimes etc - the one the US has qualms about - does not deal with refugees and asylum seekers.
The convention on refugees is here: http://www.unhcr.org/pages/49da0e466.html.
I hope this helps.
Like I have suggested John, find something to discuss on you have some knowledge. All you are dispaying here is bigotry, ignorance and a meanness of spirit.
I draw great comfort from the fact John that you are not actually an Australian and with attitudes such as those you have brought with you - you never will be.
Dianna Arthur
Dianna Arthur is a Friend of The Conversation.
Environmentalist
A massive difference regarding safety of children would be in assessing refugees on-shore.
I shudder to think of unaccompanied minors being left in detention camps in Nauru, New Guinea or even Christmas Island.
Bloody disgraceful: Gillard and Abbott.
Marilyn Shepherd
pensioner
Susan Metcalfe discovered that 32 unaccompanied children were sent home from Nauru by force.
As of June 30 this year there had been 3336 children with 1804 of them being unaccompanied.
The brutalising of people by Gillard was to be expected, she despises refugees.
Dianna Arthur
Dianna Arthur is a Friend of The Conversation.
Environmentalist
Marilyn
I don't think Gillard "despises" refugees. Simply that in issues of political expediency she AND Abbott are morally vacant.
John Coochey
Mr
They cease to become refugees once they reach first safe haven, no one has the right to go asylum shopping to get the best deal, there has been at leastone who was resident in the USA before coming here. Another who was deported had lived in Iran, Greece, the UK and Ireland before applying to Canada and when rejected got on a boat from Indonesia.
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Marilyn Shepherd
pensioner
She does despise them though. Ask anyone who ever went to a refugee meeting with her.
The contempt and ignorance of the law and rights drip from every pore of her being.
John Coochey
Mr
And how many Hazaris have been massacred in KL? How many in Jakarta? Captain Amed set up several businesses in Indonesia before he got refugee status in Australia a few suburbs from me. You can of course sponsor as many refugees as you wish and can afford. Spend some of your money instead of mine.
Peter Ormonde
Peter Ormonde is a Friend of The Conversation.
Farmer
"They cease to become refugees once they reach first safe haven"
What does a safe haven look like John? Somewhere they can work? Where they can go to school? Where they are allowed to walk the streets without fear of arrest or a vigilante beating?
Your ignorance on this issue appears unlimited, John.
They cease to be refugees once they reach the first place that will offer them protection and a new life. That's us mate. In Pakistan, Malaysia, Indonesia they remain classed as refugees for generations - without rights and subject to serious abuse.
Would you please stop demonstrating your appalling attitudes and stick to an issue you might know something about. Let's talk about the rights of economic migrants to give advice on who should be allowed to live here shall we?
John Coochey
Mr
There are four million refugees in the world today and millions more who could redefine themselves as such. How many do you say we should accept and which ones? And once again if you are so concerned how much of your own money are you prepared to put into it?
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John Coochey
Mr
Now answer the question
Marilyn Shepherd
pensioner
What question? I heard a bucket rattling and that is all.
Why waste $5 billion on a lie is the question.
Frederika Steen
logged in via Facebook
Waiting for the honest legally based advice from the UNHCR to our Prime Minister, but will she listen? let alone comply?
The position taken by this Labor Government is discriminatory -anti family, anti children anti foreigners - and by passes the social justice and humanitarian principles the party once had. I haven't heard much about social inclusion recently... or multicultural Australia built on large scale immigration.
"Oh , but Tony made me do it"
....cruel to be kind , head not heart.
What kind of people are we Australians?
John Coochey
Mr
Yes and it increases global warming and domestic violence!
Norm stone
Project Manager
I really think we are still on the wrong page here. The already utterly morally degraded parliamentary leadership are only a small part in this. I am sorry if this sounds sententious but it is possible to maintain some sort of moral dignity by assessing Gillard/Abbott for what they are and christ knows we need some dignity. Babies, children! What does it matter? These are not boat loads of Osamas and they pose no threat. Even though some of the heads are covered with scarves one might note that each person has just the one (head that is). Health checks and so on are obviously necessary but I would far rather see my money spent on home grants for these poor people than on study tours for parliamentarians. Note also the focus on the "people smugglers". Anyone who knows some history will draw a line between this device and the blame laid by U.S plantation owners on slave ship captains. Sound familiar? Business model my arse!