Solicitor-General confirms deported minors have legal redress

Paul Maley
From:The Australian
September 05, 201112:00AM

OFFSHORE processing has become "unworkable" after legal advice from commonwealth Solicitor-General Stephen Gageler SC confirmed deported children would have access to the courts to contest their removal.

Raising the spectre of last year's Christmas Island shipwreck, Immigration Minister Chris Bowen said the High Court's ruling last week made it clear it was not possible to send unaccompanied minors overseas "in any workable way".

"That's a significant change," Mr Bowen said.

He said the ruling on minors created an "obvious problem" that people smugglers would likely exploit.

"(That is) an incentive to put children on boats to make that dangerous boat journey," Mr Bowen said.

Last week's court ruling found that the Immigration Minister, who is also the legal guardian for all unaccompanied minors, could not deport children without written consent.

"The minister cannot give valid consent to the removal or taking unless the minister forms a state of satisfaction, able to be regarded by a court as reasonable, that the removal of the minor would not prejudice the interests of the minor," Mr Gageler said.

Mr Gageler told the government those decisions would be subject to review by courts.

That could potentially result in deportations being delayed for months or years as minors litigated their way through the courts.

That would largely defeat the original purpose of offshore processing, which was to remove asylum-seekers from the jurisdiction of the courts.

However, Tony Abbott yesterday rejected suggestions the court's judgment on minors meant offshore processing was unworkable.

"The fact that it is reviewable doesn't mean it would be problematic," the Opposition Leader said.

University of NSW law professor George Williams said the court had created a special category for unaccompanied children, effectively enshrining a two-tiered system.

"If you're putting together an offshore system that deals with all asylum-seekers, including unaccompanied minors, it's now very difficult to see how that could be done," he said.

'When you put all these legal arrangements together, I don't think Nauru is a viable option on the terms people are seeking, such as the transfer of children," Professor Williams said.

http://www.theaustralian.com.au/nationa ... 6129308207