The Federal Government's recent refugee deal with Papua New Guinea sparked questions about who will be responsible for unaccompanied minors sent offshore.
Immigration Minister Tony Burke has said he will ensure unaccompanied asylum seekers under the age of 18 have appropriate accommodation, services, and schooling in PNG.
"If you take the unaccompanied children, I am their legal guardian. I am in a situation where I have to substitute the level of responsibility by law that would otherwise equate to a parent," Mr Burke told the ABC's Insiders program on July 21.
"I need to make sure that if they are being sent there, the different standards demanded by the convention, and referred to by the High Court as well as in the Malaysia decision, need to be met.
"We need to make sure that you have appropriate accommodation, that there is appropriate services, that we have schooling available."
Since then, the Government has announced a similar deal with Nauru, and the Minister announced at a press conference on August 14 that family groups and children would soon be sent to both countries under the arrangements.
- The claim: Tony Burke says he will ensure unaccompanied asylum seekers under the age of 18 have appropriate accommodation, services, and schooling in PNG
- The verdict: Legally, Mr Burke is not responsible for the safety of children in Papua New Guinea.
The Immigration Minister's responsibilities
Unaccompanied asylum seekers under the age of 18 who arrive in Australia are legally wards of the minister, according to the Immigration Guardianship of Children Act.
Under the Act, the Minister's guardianship continues until the child is adopted, turns 18 or leaves Australia permanently.
That includes those sent to a regional processing country. The law was amended in August 2012 to circumvent the High Court's decision on the Malaysian Solution, which set down some specific standards for the care of unaccompanied minors.
It now says the Immigration Minister's guardianship ends when a child is removed from Australia, taken to a regional processing country, or deported under the Migration Act.
This means Mr Burke stops being responsible for unaccompanied asylum seeker children once they leave Australian shores.
In a statement to ABC Fact Check, Mr Burke confirmed that under the Government's new processing arrangements he will no longer be the official guardian of unaccompanied children once they leave Australian territory.
"I remain guardian while the unaccompanied minors, the vast majority of whom are 16 and 17 years of age, are within Australia's jurisdiction," he said.
"That means I have to be confident of their welfare on sending them to centres overseas."
The United Nations Convention and Protocol Relating to the Status of Refugees outlines the basic rights afforded to all refugees and asylum seekers under Australia's international obligations.
Unaccompanied minors also have rights under the Convention on the Rights of the Child, including the right to education, and an "adequate standard of living".
Who's responsible once they leave?
The law in Papua New Guinea does not assign automatic guardianship. The decision is left to the courts, and child welfare laws only extend to children under the age of 16.
That means 16- and 17-year-old children who are currently wards of Mr Burke will be left in a legal limbo once they are sent to Papua New Guinea.
Professor Mary Crock, from the University of Sydney Law School, says Mr Burke faces a conflict of interest because of his dual role as their guardian and the minister charged with executing the PNG deal.
In research published in September last year, Professor Crock found approximately 5 per cent of asylum seekers coming to Australia were unaccompanied children.
In Nauru, children remain minors until they turn 18, but as in Papua New Guinea, there is no automatic guardianship.
The verdict
Mr Burke is correct to say he has the responsibilities of a parent for unaccompanied minors in Australia, but those responsibilities end at our borders.
Legally, he is not responsible for the safety of children in Papua New Guinea or Nauru.
Mr Burke's comments don't tell the full story.
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