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Immigration (Guardianship of Children) Act 1946

  • - C2008C00337
  • In force - Superseded Version
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Act No. 45 of 1946 as amended, taking into account amendments up to Act No. 73 of 2008
An Act to make provision for and in connexion with the Guardianship of certain alien children
Administered by: Immigration and Citizenship
Registered 17 Jul 2008
Start Date 04 Jul 2008
End Date 14 Mar 2009

Immigration (Guardianship of Children) Act 1946

Act No. 45 of 1946 as amended

This compilation was prepared on 10 July 2008
taking into account amendments up to Act No. 73 of 2008

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department,
Canberra

  

  

  


Contents

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Application of the Criminal Code...................................................... 1

4............ Definitions.......................................................................................... 1

4AAA... Non‑citizen child................................................................................ 2

4AAB... Declared States and Territories........................................................... 2

4AA...... Orders for guardianship of certain children........................................ 3

4A......... Evidence.............................................................................................. 3

5............ Delegation........................................................................................... 3

6............ Guardianship of non‑citizen children................................................. 4

6A......... Non‑citizen child not to leave Australia without consent.................. 4

7............ Custody of non‑citizen children......................................................... 4

8............ Saving of application of State laws..................................................... 5

9............ Offences in respect of non‑citizen child............................................. 5

10.......... False statements in applications......................................................... 5

11.......... Exemption of children from Act......................................................... 5

11A....... Reconsideration and review of certain decisions................................ 6

11B....... Statements to accompany notification of certain decisions................ 7

12.......... Regulations......................................................................................... 7

Notes                                                                                                                                              9


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

1  Short title [see Note 1]

                   This Act may be cited as the Immigration (Guardianship of Children) Act 1946.

2  Commencement [see Note 1]

                   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:

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.

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).

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.

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.

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 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

                   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.

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:  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.

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  Saving of application of State laws

                   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.

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:  Two hundred dollars or imprisonment for six months.

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 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.

11B  Statements to accompany notification of certain decisions

             (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.

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 Forty dollars, for any offence against the regulations.


Notes to the Immigration (Guardianship of Children) Act 1946

Note 1

The Immigration (Guardianship of Children) Act 1946 as shown in this compilation comprises Act No. 45, 1946 amended as indicated in the Tables below.

All relevant information pertaining to application, saving or transitional provisions prior to 24 November 2000 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or 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): 2 Apr 1984 (see s. 2(1) and Gazette 1984, No. S119) (a)

S. 20

Statute Law (Miscellaneous Provisions) Act (No. 1) 1985

65, 1985

5 June 1985

S. 3: 1 July 1986 (see Gazette 1986, No. S311) (b)

Immigration (Guardianship of Children) Amendment Act 1994

45, 1994

15 Mar 1994

12 Apr 1994

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7, 9–11, 32): Royal Assent
Remainder: 24 May 2001

Sch. 2 (items 418, 419) [see Table A]

Migration Legislation Amendment (Application of Criminal Code) Act 2001

97, 2001

22 Aug 2001

19 Sept 2001

S. 4

Statute Law Revision Act 2008

73, 2008

3 July 2008

Schedule 4 (items 334–342): 4 July 2008


(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

 

ad. No. 97, 2001

S. 4......................................

am. No. 29, 1952; No. 216, 1973; No. 84, 1983; No. 65, 1985; No. 45, 1994

Ss. 4AAA, 4AAB................

ad. No. 45, 1994

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; No. 73, 2008

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; No. 73, 2008

S. 7......................................

am. No. 62, 1948; No. 84, 1983; No. 73, 2008

S. 8......................................

am. No. 216, 1973; No. 84, 1983

S. 9......................................

am. No. 93, 1966; No. 84, 1983; No. 73, 2008

S. 10....................................

am. No. 93, 1966

 

rs. No. 137, 2000

S. 11....................................

rs. No. 29, 1952

 

am. No. 73, 2008

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


Table A

Application, saving or transitional provisions

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418  Transitional—pre‑commencement offences

(1)        Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

                     (a)  an offence committed before the commencement of this item; or

                     (b)  proceedings for an offence alleged to have been committed before the commencement of this item; or

                     (c)  any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2)        Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419  Transitional—pre‑commencement notices

If:

                     (a)  a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

                     (b)  any or all of those other provisions are repealed by this Schedule; and

                     (c)  the first‑mentioned provision is amended by this Schedule;

the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

 

Migration Legislation Amendment (Application of Criminal Code) Act 2001 (No. 97, 2001)

4  Application of amendments

             (1)  Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.