Greens senator Sarah Hanson-Young says Immigration Minister Chris Bowen has a conflict of interest by having responsibility for the protection of children orphaned by last week's Christmas Island boat tragedy.
Australian immigration officials are trying to track down the relatives of a child orphaned in the accident which is believed to have killed about 48 asylum seekers.
Forty-two people survived the tragedy.
Senator Hanson-Young says it's inappropriate for the same person to be the children's `jailer" and also be responsible for their welfare.
"There cannot be a continuation of the situation where the minister remains the person who detains them, who jails them and advocates for their welfare," she told reporters.
"The minister must hand over the guardianship to somebody."
In October the government announced that children and vulnerable family groups are to be moved to community accommodation by June 2011.
Senator Hanson-Young wants to create a position of children's commissioner who wold also be guardian of any unaccompanied minors or orphaned asylum seeker's children.
"They would be able to advocate for their welfare, their rights and ensure that there is no longer a conflict of interest between the immigration minister carrying out his duties under the Migration Act ensuring mandatory detention ... and detaining and jailing unaccompanied children."
The senator said in the short term Mr Bowen needs to find somebody other than himself to advocate for their welfare, such as the human rights commissioner.
Senator Hanson-Young currently has a bill before parliament which would create the new position and has called on the major parties to support it.
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