Thursday, 16 August 2012
Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012; In Committee
I am getting some advice on the specific point you are making, but first of all I would like to reject outright the assertion you made at the beginning of your statement that Australia was not adhering to its international obligations. I have gone to great pains to explain why that is not the case. I understand that the Greens are of a different view—they have asserted that continually—but we totally reject their claim that we are not adhering to our international obligations.
In relation to the impact of the High Court judgment and how that relates to unaccompanied minors, I would like to make a number of points which I think go to the issue you have raised. The majority of the High Court in the Plaintiff M106 case held that the taking of an unaccompanied minor from Australia is unlawful in the absence of the consent in writing of the Minister for Immigration and Citizenship under the Immigration (Guardianship of Children) Act 1946. The ruling means that no unaccompanied minor can be removed or taken from Australia in the exercise of any power under the Migration Act unless the minister, in his capacity as the statutory guardian, gives consent. This consent would be subject to judicial review.
The court also found that any decision the minister made regarding consent would need to be made consistent with the best interests of the child. In practice it would mean that an unaccompanied minor found not to be a refugee could claim it was not in their best interests to be returned to their country of origin and this may be accepted by the courts. The government has stated that this is not sustainable as public policy. In practice, the decision means that the minister has the power that no other parent or guardian in Australia has, which is to prevent the otherwise lawful exercise of removal powers under the Migration Act 1958.
In effect, the bill before us re-asserts the primacy of the Migration Act with regard to unaccompanied minors and the amendments to the guardianship act will also put beyond doubt that the minister's guardianship ceases when a child is removed from Australia or taken from Australia without a visa or right to return.