Children forsaken as Bowen plays border guard and not guardian

Immigration minister Chris Bowen
Playing border guard ... Immigration Minister Chris Bowen. Photo: Andrew Meares
W hen I was 10, my parents sent me to Ireland on my own, to spend a year living with my extended family. An air hostess held my hand and sat me on the plane and another delivered me to my grandmother at Heathrow 24 hours later.
It was a very different journey to the one that another 10-year-old, Omid Jafari, undertook from Afghanistan. Last month he watched his father drown in the Indian Ocean en route to Australia, leaving him to negotiate the bureaucracy of human suffering on his own.
If Omid had made it to Australia, he would have become the legal ward of the Immigration Minister, Chris Bowen, whose offshore processing policy will apply to unaccompanied minors - his wards.
Bowen risks becoming the latest in a line of Australian officials who have breached their obligations to children in their care. And yet, when Labor came to power, Kevin Rudd's first act was to apologise to the indigenous children who made up the stolen generations for their treatment at the hands of successive governments.
The following year, Rudd issued an apology to a second group - thousands of British children who were sent to Australia up until 1967, many abused in the institutions charged with caring for them. It was their arrival that prompted the enactment in 1946 of the guardianship laws with which Bowen finds himself burdened.
As guardian, Bowen is obliged to act in the best interests of his wards, to ensure they receive proper care, protection and education, that their legal rights are honoured and that they get to enjoy some sort of childhood.
While he can delegate his responsibility to state ministers and department officials, he is, effectively, the parent of each Afghan, Sri Lankan or Iraqi child who makes it to Australia alone.
It is difficult to see how Bowen can meet those obligations - set out in the United Nations Convention on the Rights of the Child - while at the same time he must decide whether they are entitled to stay in Australia.
And it is difficult to reconcile his obligation to care for unaccompanied minors with his decision to include them in the groups of asylum seekers that can be sent to Nauru.
The Nauruan government and the Salvation Army, which is providing services to detainees, expressed concerns this week about the suitability of the facilities for women and children. Nauru has said it is unwilling to accept any women or children on the island until the facilities are improved.
At least under the Immigration (Guardianship of Children) Act that makes him guardian of unaccompanied minors, Bowen will have to provide written consent for every child he wants to remove offshore. He can do that only after determining that removal would be in the child's best interests. And that consent would also be open to review by the Federal Court.
To get around this, the Houston advisory panel recommended the government amend the act so the minister's consent would not be required to remove unaccompanied minors.
But Bowen would still be their guardian, obliged to act in their best interests. Perhaps that is why the government amended the act last month to stipulate that once an unaccompanied minor leaves Australia to be processed offshore, the minister ceases to be their guardian.
Bowen says children are used as an anchor in Australia - that once they are here their families take advantage of reunion policies to follow them out.
But punishing the child to punish the parent - and the people smuggler - is not good policy. It ignores the reasons parents send their children to Australia: violence, persecution and instability in their homelands.
The Australian Human Rights Commission recommended in its report into children in immigration detention in 2004 that guardianship be removed from the minister and given to an independent authority better placed to look after their welfare. It was not - by John Howard, Kevin Rudd or Julia Gillard.
The commission has reiterated its concerns on more than one occasion since. "The minister cannot make the best interests of an unaccompanied child his or primary concern when, at the same time, he or she is the detaining authority and the visa decision-maker," its then president, Catherine Branson, told the Herald in 2010.
Children should not be crossing the world alone. But if they do, and they reach Australia, they should have someone here to look out for them, to guide them through the legalities of the immigration system, to help them learn and to make them laugh. This latest policy decision shows the Immigration Minister is not the man for the job.
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