An Act to make provision for and in connexion with the Guardianship of certain alien children
1 Short title
This Act may be cited as the Immigration (Guardianship of Children) Act 1946.
2 Commencement
This Act shall come into operation on a date to be fixed by Proclamation.
3 Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
4 Definitions
In this Act, unless the contrary intention appears:
Australia, when used in a geographical sense, includes Norfolk Island, the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island.
custodian means a person who, by or under this Act, is the custodian of a non‑citizen child.
declared State or Territory means a State or Territory in respect of which a declaration under section 4AAB is in force.
intending adoptive parent, in relation to a person (the child), means a person who intends to:
(a) adopt the child under the laws in force in a declared State or Territory; or
(b) secure the recognition, under the laws in force in a declared State or Territory, of an adoption of the child by the person under the laws of a foreign country.
migration law means any of the following:
(a) the Migration Act 1958;
(b) regulations made under that Act;
(c) any instrument made under that Act or those regulations.
non‑citizen means a person who is not an Australian citizen.
non‑citizen child means a person who is a non‑citizen child under subsection 4AAA(1) or (4).
parent: without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975.
prescribed adoption class visa means a visa under the Migration Act 1958 that is declared by the regulations to be an adoption class visa for the purposes of this Act.
regional processing country has the same meaning as in the Migration Act 1958.
relative of a person includes:
(a) a parent of the person; and
(b) anyone who is a step‑parent of the person or would be except that he or she is not legally married to his or her de facto partner (within the meaning of the Acts Interpretation Act 1901); and
(c) anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) were a relative of the person.
4AAA Non‑citizen child
(1) Subject to subsections (2) and (3), a person (the child) is a non‑citizen child if the child:
(a) has not turned 18; and
(b) enters Australia as a non‑citizen; and
(c) intends, or is intended, to become a permanent resident of Australia.
(2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:
(a) a parent of the child; or
(b) a relative of the child who has turned 21; or
(c) an intending adoptive parent of the child.
(3) Subsection (1) does not apply if:
(a) the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the adult); and
(b) a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and
(c) the adult intends to reside with the child in a declared State or Territory.
(4) A person is a non‑citizen child if:
(a) the person has not turned 18; and
(b) a direction under section 4AA is in force in relation to the person.
4AAB Declared States and Territories
(1) The Minister may declare a State or Territory to be a declared State or Territory for the purposes of this Act.
(2) A declaration under subsection (1) is to be:
(a) made in writing; and
(b) published in the Gazette.
4AAC Norfolk Island
This Act extends to Norfolk Island.
4AA Orders for guardianship of certain children
(1) Subject to subsection (2), where:
(a) a person under the age of 18 years enters Australia as a non‑citizen in the charge of, or for the purpose of living in Australia under the care of, a relative of the person (other than a parent) not less than 21 years of age; and
(b) the person intends to become, or is intended to become, a permanent resident of Australia;
the Minister may, if the Minister is satisfied that it is necessary in the interests of the person to do so, direct, in writing, that the person shall be the Minister’s ward.
(2) The Minister shall not give a direction under subsection (1) unless the relative consents to the Minister doing so.
4A Evidence
For the purposes of this Act (including proceedings arising under this Act or in which a question arises as to the application of this Act to a person), a certificate in writing by a prescribed officer of the Commonwealth or of a State or Territory that a person named in the certificate is a non‑citizen child, or was, at a date specified in the certificate, a non‑citizen child, is prima facie evidence of the fact so certified.
5 Delegation
(1) The Minister may, in relation to any matters or class of matters, or in relation to any non‑citizen child or class of non‑citizen children, by writing under his or her hand, delegate to any officer or authority of the Commonwealth or of any State or Territory all or any of his or her powers and functions under this Act (except this power of delegation) so that the delegated powers and functions may be exercised by the delegate with respect to the matters or class of matters, or the child or class of children, specified in the instrument of delegation.
(2) Where under this Act the exercise of any power or function by the Minister or the operation of any provision of this Act is dependent upon the opinion or state of mind of the Minister in relation to any matter, that power or function may be exercised by the delegate or that provision may operate (as the case may be) upon the opinion or state of mind of the delegate in relation to that matter.
(3) A delegation under this section shall be revocable at will, and no delegation shall prevent the exercise of any power or function by the Minister.
6 Guardianship of non‑citizen children
(1) The Minister shall be the guardian of the person, and of the estate in Australia, of every non‑citizen child who arrives in Australia after the commencement of this Act to the exclusion of the parents and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.
(2) Without limiting the meaning of the expression leaves Australia permanently in subsection (1), a non‑citizen child leaves Australia permanently if:
(a) the child is removed from Australia under section 198 or 199 of the Migration Act 1958; or
(b) the child is taken from Australia to a regional processing country under section 198AD of that Act; or
(c) the child is deported under section 200 of that Act; or
(d) the child is taken to a place outside Australia under paragraph 245F(9)(b) of that Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013.
6A Non‑citizen child not to leave Australia without consent
(1) A non‑citizen child shall not leave Australia except with the consent in writing of the Minister.
(2) The Minister shall not refuse to grant any such consent unless he or she is satisfied that the granting of the consent would be prejudicial to the interests of the non‑citizen child.
(3) A person shall not aid, abet, counsel or procure a non‑citizen child to leave Australia contrary to the provisions of this section.
Penalty for a contravention of this subsection: Imprisonment for 6 months or 2 penalty units.
7 Custody of non‑citizen children
(1) The Minister may place a non‑citizen child in the custody of a person who:
(a) is willing to be the custodian of that child; and
(b) is, in the opinion of the Minister, a suitable person to be the custodian of that child;
and that person shall thereupon become the custodian of that child.
(2) The Minister may, at any time, if he or she considers it necessary so to do in the interests of a non‑citizen child, remove the child from the custody of his or her custodian and place the child in the custody of some other person, who shall thereupon be the custodian of that child.
8 Operation of other laws
(1) Except as prescribed, nothing in this Act shall affect the operation in relation to non‑citizen children of any provision of the laws of any State or Territory relating to child welfare.
(2) Nothing in this Act:
(a) affects the operation of the migration law; or
(b) affects the performance or exercise, or the purported performance or exercise, of any function, duty or power under the migration law or the Maritime Powers Act 2013; or
(c) imposes any obligation on the Minister or another Minister to exercise, or to consider exercising, any power conferred by or under the migration law or the Maritime Powers Act 2013.
(3) Without limiting subsection (2), nothing in this Act affects the performance or exercise, or the purported performance or exercise, of any function, duty or power relating to:
(a) the removal of a non‑citizen child from Australia under section 198 or 199 of the Migration Act 1958; or
(b) the taking of a non‑citizen child from Australia to a regional processing country under section 198AD of that Act; or
(c) the deportation of a non‑citizen child under section 200 of that Act; or
(d) the taking of a non‑citizen child to a place outside Australia under paragraph 245F(9)(b) of that Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013.
9 Offences in respect of non‑citizen child
A person shall not, without lawful excuse (proof whereof shall lie upon him or her):
(a) remove any non‑citizen child, or counsel or cause any non‑citizen child to be withdrawn or to abscond, from the custody of his or her custodian; or
(b) knowing any non‑citizen child to have been so removed or withdrawn or to have so absconded, harbour or conceal the child or prevent him or her from returning to his or her custodian.
Penalty: Imprisonment for 6 months or 2 penalty units.
10 False statements in applications
For the purposes of section 136.1 of the Criminal Code, an application made for the purposes of this Act is taken to be an application for a benefit.
11 Exemption of children from Act
The Minister may, by order in writing under his or her hand, direct that the provisions of this Act shall not apply in respect of a child specified in the order, or a child included in a class of children so specified, and, while the order is in force, the provisions of this Act do not apply to or in relation to that child or to a child included in that class of children.
11A Reconsideration and review of certain decisions
(1) In this section, unless the contrary intention appears:
decision has the same meaning as in the Administrative Review Tribunal Act 2024.
relevant decision means a decision of a delegate of the Minister under section 4AA or 11.
reviewable decision means:
(a) a decision of the Minister under section 4AA or 11; or
(b) a decision of the Minister under subparagraph (3)(a)(ii) or subsection (4).
(2) Subject to subsection (3), a person affected by a relevant decision may request the Minister to reconsider the decision.
(3) The request shall:
(a) be made by notice in writing given to the Minister within:
(i) the period of 28 days after the decision first comes to the notice of the person; or
(ii) such further period as the Minister (whether before or after the expiration of that period of 28 days), by notice in writing served on the person, allows; and
(b) shall set out the reasons for making the request.
(4) The Minister shall, within 45 days after receipt of the request, reconsider the relevant decision and may:
(a) confirm the decision;
(b) vary the decision; or
(c) set the decision aside and make a new decision in substitution for the decision set aside.
(5) Where, pursuant to a request under subsection (2), the Minister reconsiders a relevant decision, the Minister shall, by notice in writing served on the person who made the request, inform the person of the result of the reconsideration.
(6) Applications may be made to the Administrative Review Tribunal for review of reviewable decisions.
Note: Section 266 of the Administrative Review Tribunal Act 2024 requires a decision‑maker to take reasonable steps to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed.
12 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular for:
(aa) prescribing principles to be observed in considering whether or not to give a direction under section 4AA;
(a) prescribing the principles to be observed in relation to the placing of non‑citizen children with custodians;
(b) regulating the placing of such children with custodians and the transfer of such children from one custodian to another;
(c) prescribing provisions to be observed by custodians in relation to the custody, control, welfare, care, education, training and employment of non‑citizen children;
(d) providing that any provision of the laws of any State or Territory relating to child welfare shall not apply in relation to non‑citizen children, and making provision in lieu of any such provision;
(da) prescribing powers, rights, duties and liabilities of or in relation to the Minister as guardian of the estate in Australia of non‑citizen children, including provisions for the receipt, disposition, management and control of property of non‑citizen children, and of property of deceased non‑citizen children from their deaths until the grant of administration;
(db) making provision for preventing non‑citizen children from leaving Australia without the consent in writing of the Minister; and
(f) prescribing penalties not exceeding 1 penalty unit, for any offence against the regulations.
