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Immigration (Guardianship of Children) Act 1946

  • - C2004C04579
  • In force - Superseded Version
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Act No. 45 of 1946 as amended, taking into account amendments up to Act No. 65 of 1985
Registered 26 Nov 2009
Start Date 01 Jul 1986
End Date 11 Apr 1994

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946
- Updated as at 31 July 1993 (HISTACT CHAP 1214 #DATE 31:07:1993)

*1* The Immigration (Guardianship of Children) Act 1946 as shown in this reprint comprises Act No. 45, 1946 amended as indicated in the Tables below.
Table of Acts
Act Date Date of Application
Number and of Assent Commencement saving or
Year transitional
provisions
Immigration (Guardianship of Children) Act 1946
45, 1946 15 Aug 1946 30 Dec 1946 (see
Gazette 1946, p. 3598)
Immigration (Guardianship of Children) Act 1948
62, 1948 6 Dec 1948 6 Dec 1948 S. 3 (2)
Immigration (Guardianship of Children) Act 1952
29, 1952 16 June 1952 16 June 1952 -
Statute Law Revision (Decimal Currency) Act 1966
93, 1966 29 Oct 1966 1 Dec 1966 -
Statute Law Revision Act 1973
216, 1973 19 Dec 1973 31 Dec 1973 Ss. 9 (1) and 10
Migration (Miscellaneous Amendments) Act 1983
84, 1983 14 Nov 1983 Part V (ss. 9-20): S. 20
2 Apr 1984 (see s.
2 (1) and Gazette
1984, No. S119) (a)
Statute Law (Miscellaneous Provisions) Act (No. 1) 1985
65, 1985 5 June 1985 S. 3: 1 July 1986 -
(see Gazette 1986,
No. S311) (b)
(a) The Immigration (Guardianship of Children) Act 1946 was amended by Part V (sections 9-20) only of the Migration (Miscellaneous Amendments) Act 1983, subsection 2 (1) of which provides as follows:
"(1) Subject to subsection (2), this Act shall come into operation on the day on which the Migration Amendment Act 1983 comes into operation."
(b) The Immigration (Guardianship of Children) Act 1946 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, subsection 2 (24) of which provides as follows:
"(24) The amendments of the Immigration (Guardianship of Children) Act 1946 made by this Act shall come into operation on a day to be fixed by Proclamation."
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
Title am. No. 84, 1983
S. 3 rep. No. 216, 1973
S. 4 am. No. 29, 1952; No. 216,
1973; No. 84, 1983; No. 65, 1985
S. 4AA ad. No. 65, 1985
S. 4A ad. No. 29, 1952
am. No. 216, 1973; No. 84, 1983
S. 5 am. No. 216, 1973; No. 84, 1983
S. 6 am. No. 62, 1948; No. 216,
1973; No. 84, 1983
S. 6A ad. No. 62, 1948
am. No. 93, 1966; No. 84, 1983
S. 7 am. No. 62, 1948; No. 84, 1983
S. 8 am. No. 216, 1973; No. 84, 1983
S. 9 am. No. 93, 1966; No. 84, 1983
S. 10 am. No. 93, 1966
S. 11 rs. No. 29, 1952
Ss. 11A, 11B ad. No. 65, 1985
S. 12 am. No. 62, 1948; No. 93, 1966;
No. 216, 1973; No. 84, 1983;
No. 65, 1985

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - LONG TITLE

SECT

An Act to make provision for and in connexion with the
Guardianship of certain alien children

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 1
Short title

SECT

1. This Act may be cited as the Immigration (Guardianship of Children) Act 1946.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 2
Commencement

SECT

2. This Act shall come into operation on a date to be fixed by Proclamation.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 4
Interpretation

SECT

4. In this Act, unless the contrary intention appears:
"custodian" means a person who, by or under this Act, is the custodian of a non-citizen child;
"non-citizen" means a person who is not an Australian citizen;
"non-citizen child" means:
(a) a person under the age of 18 years who enters Australia as a non-citizen and who intends to become, or is intended to become, a permanent resident of Australia, not being a person who enters Australia in the charge of, or for the purpose of living in Australia under the care of, a parent of the person, or a relative of the person not less than 21 years of age; or
(b) a person under the age of 18 years in relation to whom a direction under section 4AA is in force.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 4AA
Orders for guardianship of certain children

SECT

4AA. (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.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 4A
Evidence

SECT

4A. 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 evidence of the fact so certified.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 5
Delegation

SECT

5. (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 hand, delegate to any officer or authority of the Commonwealth or of any State or Territory all or any of his 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.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 6
Guardianship of non-citizen children

SECT

6. 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 father and mother 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.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 6A
Non-citizen child not to leave Australia without consent

SECT

6A. (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 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: Two hundred dollars or imprisonment for six months.

(4) This section shall not affect the operation of any other law regulating the departure of persons from Australia.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 7
Custody of non-citizen children

SECT

7. (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 considers it necessary so to do in the interests of a non-citizen child, remove the child from the custody of his custodian and place the child in the custody of some other person, who shall thereupon be the custodian of that child.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 8
Saving of application of State laws

SECT

8. 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.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 9
Offences in respect of non-citizen child

SECT

9. A person shall not, without lawful excuse (proof whereof shall lie upon him):
(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 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 from returning to his custodian.
Penalty: Two hundred dollars or imprisonment for six months.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 10
False statements in application

SECT

10. A person shall not, in any application made for the purposes of this Act, make any statement which is false in any material particular.
Penalty: Two hundred dollars or imprisonment for six months.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 11
Exemption of children from Act

SECT

11. The Minister may, by order in writing under his 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.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 11A
Reconsideration and review of certain decisions

SECT

11A. (1) In this section, unless the contrary intention appears:
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975;
"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 Appeals Tribunal for review of reviewable decisions.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 11B
Statements to accompany notification of certain decisions

SECT

11B. (1) In this section, "decision", "relevant decision" and "reviewable decision" have the same respective meanings as in section 11A.

(2) Where a delegate of the Minister makes a relevant decision and gives to a person whose interests are affected by the decision notice in writing of the making of the decision, the notice shall include a statement to the effect that a person affected by the decision:
(a) may, if the person is dissatisfied with the decision, seek a reconsideration of the decision by the Minister in accordance with subsection 11A (3); and
(b) may, subject to the Administrative Appeals Tribunal Act 1975, if the person is dissatisfied with the decision of the Minister on the reconsideration, apply to the Administrative Appeals Tribunal for review of the last-mentioned decision.

(3) Where the Minister makes a reviewable decision and gives to a person whose interests are affected by the decision notice in writing of the making of the decision, the notice shall include a statement to the effect that subject to the Administrative Appeals Tribunal Act 1975, a person affected by the decision may, if the person is dissatisfied with the decision, apply to the Administrative Appeals Tribunal for review of the decision.

(4) Any failure to comply with the requirements of subsection (2) or (3) in relation to a decision does not affect the validity of the decision.

IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946 - SECT 12
Regulations

SECT

12. 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 Forty dollars, for any offence against the regulations.