Had Federal Immigration Ministers Morrison, Dutton or before them Bowen, O’Connor or Burke, been subject to Victoria’s Child Protection laws, it is likely these Guardians of children in detention would have had the children removed from their care, and quite possibly been charged with failure to act on evidence of abuse of a child.
One of the stark observations of the tragedy of children in detention highlighted by the recent Australian Human Rights Commission (AHRC) Forgotten Children report is that much of the harm could have been avoided if the role of Guardian was assumed by someone other than the person holding the role of Minister of Immigration.
Over the last five years, Prime Ministers of both parties have steadfastly maintained this conflict of interest as it has suited their policies of deterrence toward people seeking asylum in Australia.
Such conflict has resulted in catastrophic consequences for the children under this system of care, and undermined the fundamental principle of always acting in the best interests of the child. Ironically, this arrangement has exposed these children to further harm.
Whatever one thinks of the AHRC report, it has made us all witness to the systematic negligence and abuse of children on the scale that has seldom been witnessed in child protection practice history. One may have to look to the current Royal Commission into Institutional Child Sexual Abuse to find anything close to the size and extent of such alleged sexual abuse.
The difference between the role of the Guardian under State Child Protection law and role of the Guardian according to the Federal Government is comparable to the difference between a planet of human beings and a planet of apes.
Firstly and fundamentally, any State child protection system does not allow a Minister of the day to be responsible for the best interests of a child in need of care. Under State law, the powers of the Guardian are deliberately placed with the Secretary of the relevant Department, as there is long experience in child protection practice that political self-interest can threaten a child’s best interests.
Separating this function from the Government protects not only the child but also protects that Government of the day as many State Ministers will attest.
If the same circumstances described in the AHRC report were to occur under State child protection law, outcomes for these children would be very different. It would be inconceivable that it would take 128 children to be sexually abused before a report was conducted. As it stands, a State child protection system acts on any single allegation of sexual abuse brought to the attention of child protection authorities. This notification triggers an immediate investigation of that child’s circumstance, within 48 hours.
On assessment, the child would more than likely be removed and placed in care to await the outcome of the investigation. Further, as outlined in Section 83 of the Children and Young Persons Act 2005, the police are required to be notified by the Secretary for their assessment of any criminal charges to be laid. As the Victorian Protecting Children Protocol states, ‘it is crucial that police are involved at the earliest stage of notification of sexual physical abuse and serious neglect’.
The Act goes further in requiring the Secretary to also ‘protect the child from crimes of physical and sexual abuse’. This would mean the Secretary needs to satisfy him or herself the potential for harm.
It would be hard to imagine any child remaining in detention for very long based on the expectations and duties of a Guardian as outlined in the Victorian legislation.
State law is also intolerant of individuals not reporting to authorities an allegation of sexual or physical abuse of a minor. Under 6.1, S493 of the same Act it states “a person who had duty of care in respect of a child and who fails to take action that has resulted in the child’s physical development or health being significantly harmed is guilty of a failure to protect”.
The evidence outlined in the AHRC report brings into question whether the Minister of Immigration as also Guardian failed to act. If the court found there was a case, which on first glance there seems to be, the Minister concerned would be liable to a penalty of up to 12 months imprisonment.
You be the judge.
A final observation is the response by Brandis, Morrison, Marles, et al in response to the report. Their defence of detaining children was a déjà vu moment for those who have been listening to the heart-breaking evidence from survivors of sexual and physical abuse during the current Royal Commission into Institutional Child Sexual Abuse. This process has shown that custodians of religious and other institutions have been complicit in the suppression of complaints and the processes and procedures that were employed in response to allegations of sexual abuse.
Both sides of politics should make a point of listening to these testimonies to appreciate the consequences of a system in denial.
There are plenty of options to remove the guardian’s role from the Minister responsible. These include:
- placing it with a state child protection authority,
- moving it to the National Children’s Commissioner portfolio or
- allocating it to the Secretary of the Department of Social Services.
Until we establish a clear separation of roles between a politician role and a guardian role, we cannot be certain that the best interests of a child in detention will ever be upheld.
Paul McDonald
Chief Executive Officer
Anglicare Victoria
