Kids key to Malaysia solution shambles

The Gillard Government's shambled attempt to legislate for offshore processing of asylum seekers arriving by boat will be debated in the House of Representatives today. On Tuesday night, the Parliament was provided with further evidence of how unprincipled and unworkable is the so-called Malaysia solution, especially when it comes to the removal of unaccompanied minors from Australia.
The Report of the Legal and Constitutional Affairs References Committee on Australia's arrangement with Malaysia in relation to asylum seekers was tabled in the Senate. Not surprisingly, the Coalition and Green senators on the committee slammed the proposed arrangement. But trying to defend it, the Government senators decided to take aim at the Commonwealth ombudsman who oversees immigration decisions made by Commonwealth public servants on Australian soil.
Labor Senator Trish Crossin told the Senate she thought the ombudsman 'performed significantly unprofessionally during the course of this inquiry'. She did 'not believe that the evidence the ombudsman gave before the Committee was at all credible or well sourced and documented'. When governments start shooting their own officials you have to be concerned.
Central to the Malaysian arrangement is the need for Commonwealth public servants to make pre-removal assessments of vulnerable individuals who ought not be removed off-shore. Government senators noted that the Department of Immigration and Citizenship 'indicated that in relation to children, a 'best interests of the child' assessment would be undertaken in the pre-removal assessment process, thus meeting Australia's obligations under the Convention on the Rights of the Child'.

The Department has drawn up pre-removal guidelines for the assessment of all boat arrivals to ensure 'the non-refoulement of a potential transferee where that person fears persecution in Malaysia; the identification of vulnerabilities and heightened risks, particularly focusing on unaccompanied children; and fitness to travel'.
But these guidelines were not included in the paperwork accompanying the arrangement between Australia and Malaysia signed on 25 July 2011. They were not available to the ombudsman before the parliamentary inquiry, despite a request for same. They were not included in the Department's submission to the parliamentary inquiry. They were not made available to the parliamentary committee until a week after its hearings concluded.
Liberal Senator Gary Humphries who chaired the Committee told the Senate, 'The Committee was deeply disturbed by the absence of that information. The question of what those guidelines say remains a very open question for the Senate as a whole.'
The guidelines state:
Unaccompanied minors are particularly vulnerable. Where it is established that a minor is unaccompanied, pre-removal assessment officers should consider:
  • the views of the child, taking into account the age and maturity of the child
  • the short, medium and longer term protection, developmental, psychosocial and other needs of the child
  • the existence of special procedures to deal with the special needs of unaccompanied minors in the proposed country of removal, including appropriate accommodation, guardianship arrangements, the availability of any tracing arrangements and the likely availability of solutions for unaccompanied minors.
The actions of the pre-removal assessment officers will be overseen by the ombudsman whose reputation has already been trashed by the government of the day.
How could any Australian public servant in good faith decide that it would be in the best interests of a child that he or she be removed to Malaysia because, to quote Crossin again when presenting the Senate committee report to Parliament on behalf of the Government, 'we want to ensure that if you get on a boat in Indonesia and make your way to Australia — that is, to Christmas Island — then not only will you not be processed in this country but you will not be resettled in this country'?
How could it ever be in the best interests of the child who is a genuine refugee to be sent to a country where they will be placed at the end of a queue which is 95,000 long? Under present Australian law, the Minister for Immigration is that child's guardian. The child cannot be removed from Australia except with the consent in writing of the Minister.
In July, the High Court made it clear that the Minister's consent would be subject to court review. So the Gillard Government now wants to amend the Immigration (Guardianship of Children) Act 1946 so that a child can be removed without the need for written consent of the Minister reviewable by a court.
It is envisaged that a child removed to Malaysia will be subject to the Malaysia Child Act 2001, and an official of the Malaysian government will become their legal guardian, once an Australian public servant has signed off that the removal of the child to Malaysia is in the child's best interests.
The Gillard Government does not want its own minister having to make that decision. It wouldn't want a court ever looking at it. And presumably, it would want to appoint a new ombudsman.
Meanwhile the Government tries to paint UNHCR as being supportive of all this. But two weeks before the Senate committee hearing, Erika Feller, Assistant High Commissioner for Protection at UNHCR, and Australia's most senior UN official, belled the cat when she told ABC Radio:
'Our position was always, and I have to repeat this again, was always predicated on there being effective pre-transfer arrangements in place to safeguard the most vulnerable from being more exposed, made more vulnerable through transfer to Malaysia.'
When would an unaccompanied minor who is a bona fide refugee ever be less exposed and less vulnerable by being removed from Australia to Malaysia which is not a signatory to the Refugee Convention and whose ratification of the Convention on the Rights of the Child is so circumscribed that the fundamental obligation not to discriminate on the basis of 'race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status' is applicable only if it is 'in conformity with the Constitution, national laws and national policies of the Government of Malaysia'?
No matter how the Gillard Government paints the canvas, it can never be in the best interests of an unaccompanied minor who is a refugee to be removed from Australia to Malaysia. And if such kids are irremovable, they will continue to arrive in Australia by boat. As Feller says, 'Proper arrangements (need to be) made for those who shouldn't be transferred because of their vulnerabilities.'
The Malaysia solution is either unworkable or unprincipled. Just look at the kids. (


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