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How not to treat asylum seeker kids

Kerry Murphy |  05 June 2011

Chris Bowen LatelineWatching Immigration Minister Chris Bowen on ABC1's Lateline late last week, I was saddened to note that the Government's policy of sending asylum seekers to Malaysia is less concerned with protecting the asylum seekers' human rights and dignity than with breaking 'the business model of the people smugglers'.

Asked by host Tony Jones if this involved 'making an example' of 800 unaccompanied minors by sending them to Malaysia, Bowen said it's 'not a matter of making examples' but of 'ensuring you have a robust system in place to break the model. And of course we will treat people with dignity and ... with regard to their circumstances.'

'I do not want to send the message that it's okay to get on a boat if you fit a particular category,' he added, with reference to unaccompanied minors. 'The decision making is not based on principles of human rights and dignity, but on 'solving the boat people problem'.'

The focus on the situation of unaccompanied minors is legitimate. They present the Immigration Minister with a number of legal and ethical dilemmas. As Minister, he is legally their guardian and should be acting in their best interests.

Australia is a signatory to the Convention on the Rights of the Child as well as the Refugee Convention. This creates legal obligations, to provide security for children, act in their best interests, and provide for family unity or family reunification. So is sending them to Malaysia, not a signatory to the Refugee Convention, in their 'best interests'?

The political issue is that if minors are exempted from the Malaysian deal, it creates an incentive for people smugglers to fill up their boats with children, who will legitimately want to be later reunited with their parents and family. There was a similar consequence when the temporary protection visa was introduced in 1999, and men found themselves separated from their families for years. By 2001, many of the passengers on the boats were women and children.

This is a genuine fear. It is not as if the smugglers worry about these international obligations. However, to focus on people smugglers misses the point of the issue.

I recall an incident in Woomera detention centre in 2001. It was late at night, and we had been working for several days preparing cases. Many of the detainees were women who had children with them. The fathers and husbands had arrived previously and had been granted TPVs, but could not sponsor their families.

One night while preparing a case for a young Iraqi woman, I gave her children some highlighters to draw with. I did not notice that one child started to use the highlighters to draw on the office wall. The next day, an officer from the camp saw the graffiti and was very critical of me for letting the child do this. 'This is damaging government property,' I was told. 'Someone will have to pay for the damage.'

That night there was a strong storm and the doors to several rooms where seriously damaged with the ferocity of the wind. The next day I cynically asked the officer, 'Who is going to pay for the damage caused to government property by the wind?'

Like the officer at Woomera, the government's focus is misplaced. We should not be obsessed with people smugglers, or with a child scribbling on a wall. These are diversions from the central issue, which should at all times be the dignity and wellbeing of the human lives that are at stake.

Rather than focusing on asylum seekers, we must focus on establishing fair systems that protect refugees from being returned to places where their lives or freedoms could be threatened, while also providing for family unity and certainty for their security. Talk of breaking 'business models' only distracts us from these key obligations. 

Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers. 



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Submitted comments

We are a sick society. The Media has been frantic about cattle in Indonesia; nobody condones that cruelty. But in the very same week we have heard little about children being traded to Malaysia.Is there a nasty taste there somewhere?Which export deserves more attention? Without information or support some lawyers are acting heroically in the interests of Australia's legal obligations and we salute them. Children must not be traded.

Molly Moran 05 June 2011

When a smuggler is the difference between life and death what is their crime? Even the courts are now kicking up a fuss and Bowen simply made up the people smugglers busines model on the 7th May to justify breaking the law. There is no smugglers model, there are no smugglers. Just people legally entitled to pay for transport and a repulsive bunch of loser pollies and low rent media.

Marilyn Shepherd 06 June 2011

The Government is trying to resolve a 'problem' - of illegal refugees arriving in Australia. However, in trying to resolves this issue they are overlooking the most important thing in human life and the right for everyone to feel safe, protected and to be treated with dignity. When will any government stop trying to solve a problem with regard to refugees and start thinking laterally and through a human dignity and justice lens. With the dollars being thrown at Malaysia to deal with our problem, why then can't these dollars be used for ensuring faster processing of refugees as well as some creative thinking to help resolve the issue, support these traumatised people and help them have the basics of human rights. Certainly screen and filter as opening boarders without scrutiny would be irresponsible. But don't let them suffer more than they have.

I ask all politicians:
If you were traumatised, travelled a life risking journey in an overcrowded, possibly unsafe vessel only to be detained for several years in a prison like environment how would you respond?

If this were your mother, brother, sister or children would that make a difference?

It's time both sides of politics stopped responding through a lens of 'winning' and started to work together with a common desire to provide dignity and safety for these people.

Suzanne 06 June 2011

Splendid, Kerry, like all your other articles. Help us all keep up the pressure with your thoughtful and informed writing. I heard Minister Bowen on the radio last night, and the degree of pressure that he's feeling seemed to shout at the listener, as he almost gasped for breath after every phrase. I sent him a letter yesterday suggesting that this long time Labor voter was about to react to Federal Labor the way the dreadful state of NSW Labor made him react in the recent state elections.

Joe Castley 06 June 2011

At least 4000 get rescued. the main point is taking advantage of a system that has weakness. When previous government toughened the law, the boats didin't come. When the Labor loosened the law, boats come. How do you justisfy that? I did agree with loosening the law previously but it seem all those who can pay to travel from Afghan to Australia would come here anyway - in their millions?! Why not?! Welcome! :D I think there should be some kind of compromise from both sides.

AZURE 06 June 2011

Both the ABC <www.abc.net.au/unleashed/2746996.html> and The Australian <
www.theaustralian.com.au/national-affairs/no-longer-land-of-the-fair-go/story-fn59niix-1226069668282>have this morning published an article by Julian Burnside which is worth reading. I never thought the Labor Party would stoop so low as to propose this 'solution'. Both major parties, in my opinion, have now lost all claim to any moral or ethical purpose. Where are the Bishops' voices when they are needed?

Ginger Meggs 06 June 2011

Azure, if it is not safe for the 4,000 so we have to rescue them why send 800 others to the same danger for no reason.

Some facts about what we care about the refugees in Malaysia.

Of the 94,000 registered refugees last year we accepted just 340.

To claim we can trade human beings for any reason is absurd but in this case Bowen is breaking the law to cover up all the other breaches of our laws he has been doing.

He has broken our laws with indefinite prison again, jailing kids, not making DIAC do the claims quickly, keeping thousand of recognised refugees in prison long after they are accepted and now wants to punish 800 random human beings for his own failings.
de is so repulsive it is beyond sickening.

Marilyn Shepherd 06 June 2011

We are back at the sickest end of refugee policy. Right now two underage Vietnamese girls with no parents or protectors are in the group marked for Malaysia. They may be trafficked but no one will ask becasue if they did it would trigger a responsibility to act to protect. What will happen to them in an overcrowded Malaysian camp with corrupt officials? Is this a necessary price to pay for "interrupting a business model"? What rock do our current politicians crawl out from under?

pamela 10 June 2011

Bless you, Kerry, in all your efforts to speak for the voiceless. I couldn't agree more with what you say. What can the rest of us do to support your stance and move our government to focus on the real issue?

Vivienne Goldstein 10 June 2011

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