Offshore processing move faces challenges

Professor Donald Rothwell of the ANU College of Law.

The Gillard Government’s move to amend legislation to allow offshore processing will require changes to both the Migration Act and the Immigration (Guardianship of Children) Act. And one will present considerably more difficulties than the other, according to an international law expert.

Professor Donald Rothwell of the ANU College of Law says the changes needed to the Migration Act will present few problems to the government.

"The options with respect to the Migration Act are fairly straightforward," he said. "Section 198A of the Migration Act could be amended so as to remove criteria that the Minister had to previously take into account. The effect of such action would be to effectively make the decision a purely political one that was not subject to judicial oversight by the courts.

"Alternatively, a Ministerial declaration could include factors such as whether the country in question was a party to the Refugee Convention, or whether Australia had entered into an agreement with that country in which they undertook to receive persons claiming asylum and that their claims would be processed in that country."

However, the issue of unaccompanied minors still presents a challenging hurdle for the government, as Professor Rothwell explained.

"If the Gillard Government wishes to pursue offshore processing without an effective loophole emerging in the case of unaccompanied minors, they will also need to amend the Immigration (Guardianship of Children) Act," he said.

"However, amendments to this Act are not as straightforward as those to the Migration Act. While it may be possible to make clear that declarations under the Migration Act prevail between the two acts, there are also certain common law obligations of guardianship upon the Minister in the case of minors whose parents are not exercising control.

"Australia’s obligations under the Convention on the Rights of the Child are also applicable," he added.