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A Bill for an Act to establish an independent Office of Guardian for Unaccompanied Non citizen Children, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 17 Jul 2014
Introduced Senate 16 Jul 2014

2013‑2014

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Guardian for Unaccompanied Children Bill 2014

 

No.      , 2014

 

(Senator Hanson‑Young)

 

 

 

A Bill for an Act to establish an independent Office of Guardian for Unaccompanied Non‑citizen Children, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Objects of this Act.............................................................................. 2

4............ Principles underlying this Act............................................................. 3

5............ Definitions.......................................................................................... 4

6............ Unaccompanied non‑citizen child........................................................ 5

7............ Evidence.............................................................................................. 6

8............ Operation of State and Territory laws................................................. 6

9............ Application of Act to external Territories............................................ 6

10.......... Schedule(s)......................................................................................... 6

Part 2—Guardianship of unaccompanied non‑citizen children                7

11.......... Guardianship of unaccompanied non‑citizen children......................... 7

12.......... Unaccompanied non‑citizen child not to leave Australia without consent 7

13.......... Custody of unaccompanied non‑citizen children................................. 8

14.......... Saving of application of State laws..................................................... 8

15.......... Offences in respect of unaccompanied non‑citizen child..................... 8

Part 3—Provisions relating to the Guardian for Unaccompanied Non‑citizen Children              9

Division 1—Establishment                                                                                         9

16.......... Guardian for Unaccompanied Non‑citizen Children........................... 9

17.......... Appointment....................................................................................... 9

Division 2—Functions and powers                                                                      10

18.......... Functions and powers of Guardian for Unaccompanied Non‑citizen Children        10

19.......... Cooperation and consultation with other agencies............................. 11

20.......... Delegation......................................................................................... 12

Division 3—Guardian for Unaccompanied Non‑citizen Children      13

21.......... General terms and conditions of appointment................................... 13

22.......... Acting Guardian................................................................................ 13

23.......... Remuneration.................................................................................... 13

24.......... Leave of absence............................................................................... 14

25.......... Restriction on outside employment................................................... 14

26.......... Disclosure of interests....................................................................... 14

27.......... Resignation....................................................................................... 14

28.......... Termination of appointment.............................................................. 14

Part 4—Provisions relating to the Office of Guardian for Unaccompanied Non‑citizen Children         16

Division 1—Establishment                                                                                       16

29.......... Office of the Guardian for Unaccompanied Non‑citizen Children.... 16

Division 2—Functions                                                                                                 17

30.......... Functions of the Office of the Guardian for Unaccompanied Non‑citizen Children 17

Division 3—Staff and consultants                                                                        18

31.......... Staff.................................................................................................. 18

32.......... Consultants....................................................................................... 18

Part 5—Other matters                                                                                                       19

33.......... Annual reports.................................................................................. 19

34.......... Review of operation of Act............................................................... 19

35.......... Immunity from civil proceedings...................................................... 19

36.......... Appropriation.................................................................................... 20

37.......... Regulations....................................................................................... 20

Schedule 1—Amendments                                                                                              22

Immigration (Guardianship of Children) Act 1946                                            22

Migration Act 1958                                                                                                   22

 


A Bill for an Act to establish an independent Office of Guardian for Unaccompanied Non‑citizen Children, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Guardian for Unaccompanied Children Act 2014.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 37

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

3.  Schedule 1

At the same time as the provisions covered by table item 2.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Objects of this Act

             (1)  The objects of this Act are to ensure that:

                     (a)  the Guardian for Unaccompanied Non‑citizen Children is to be the guardian of every unaccompanied non‑citizen child who arrives in Australia after the commencement of this Act or who is in Australia at the time of the commencement of this Act; and

                     (b)  the rights of unaccompanied non‑citizen children are protected; and

                     (c)  the needs and views of unaccompanied non‑citizen children are promoted; and

                     (d)  unaccompanied non‑citizen children are involved in making the decisions that affect them; and

                     (e)  the conditions in immigration detention that apply to unaccompanied non‑citizen children are monitored.

             (2)  The Parliament intends the establishment of the Guardian as a measure to assist Australia in meeting its international obligations under the Convention on the Rights of the Child, particularly as they relate to the following Articles:

                     (a)  the primacy of the consideration of the child’s best interests (Article 4);

                     (b)  the child’s right to survival and development (Article 6(1));

                     (c)  the child’s right to participate in decision‑making (Article 12);

                     (d)  no arbitrary or unlawful deprivation of liberty (Article 37).

4  Principles underlying this Act

                   The following principles, based on the Convention on the Rights of the Child, are to be applied in performing functions and exercising powers under this Act:

                     (a)  every child is a valued member of society;

                     (b)  every child deprived of his or her liberty is entitled to prompt access to legal and other assistance;

                     (c)  every child is entitled to form and express views and have those views taken into account in a way that has regard to the child’s age and maturity;

                     (d)  in decisions involving a child, the child’s best interests are of primary concern.

5  Definitions

                   In this Act:

Australia, when used in a geographical sense, includes the external Territories.

child means a person who is less than 18 years old.

Convention on the Rights of the Child means the Convention on the Rights of the Child done at New York on 20 November 1989.

Note:          The text of the Convention on the Rights of the Child is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2014, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

custodian means a person into whose custody an unaccompanied non‑citizen child has been placed under section 13.

Guardian means the Guardian for Unaccompanied Non‑citizen Children appointed under section 17.

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 State or Territory; or

                     (b)  secure the recognition, under the laws in force in a 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.

Office means the Office of the Guardian for Unaccompanied Non‑citizen Children established under section 29.

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.

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.

unaccompanied non‑citizen child has the meaning given by section 6.

6  Unaccompanied non‑citizen child

             (1)  Subject to subsections (2) and (3), a person (the child) is an unaccompanied non‑citizen child if the child:

                     (a)  has not turned 18; and

                     (b)  enters Australia as a non‑citizen; and

                     (c)  is not accompanied by:

                              (i)  a parent of the child; or

                             (ii)  a relative of the child who has turned 21; or

                            (iii)  an intending adoptive parent of the child; and

                     (d)  does not have the appropriate visa or other authority for entry into 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 person who satisfies the following conditions:

                     (a)  the person is an Australian citizen, or has an appropriate visa or other authority for entry into Australia;

                     (b)  the person is:

                              (i)  a parent of the child; or

                             (ii)  a relative of the child who has turned 21; or

                            (iii)  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 State or Territory.

7  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 the Guardian that a person named in the certificate is an unaccompanied non‑citizen child, or was, at a date specified in the certificate, an unaccompanied non‑citizen child, is evidence of that fact.

8  Operation of State and Territory laws

                   This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

9  Application of Act to external Territories

                   This Act extends to the external Territories.

10  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Part 2Guardianship of unaccompanied non‑citizen children

  

11  Guardianship of unaccompanied non‑citizen children

             (1)  The Guardian is to be the guardian of the person, and the estate in Australia, of every unaccompanied non‑citizen child who arrives in Australia after the commencement of this Act or who is in Australia at the time of commencement of this Act, to the exclusion of any other person.

             (2)  The Guardian will have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until whichever of the following first happens:

                     (a)  the child reaches the age of 18 years;

                     (b)  the child leaves Australia permanently;

                     (c)  the provisions of this Act cease to apply to and in relation to the child.

12  Unaccompanied non‑citizen child not to leave Australia without consent

             (1)  An unaccompanied non‑citizen child must not leave Australia except with the consent in writing of the Guardian.

             (2)  The Guardian must 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 unaccompanied non‑citizen child.

             (3)  A person must not aid, abet, counsel or procure an unaccompanied non‑citizen child to leave Australia contrary to the provisions of this section.

Penalty:  50 penalty units or imprisonment for 6 months, or both.

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

13  Custody of unaccompanied non‑citizen children

             (1)  The Guardian may place an unaccompanied non‑citizen child in the custody of a person who:

                     (a)  is willing to have custody of that child; and

                     (b)  is, in the opinion of the Guardian, a suitable person to have custody of that child.

             (2)  The Guardian may, at any time, if he or she considers it necessary so to do in the interests of an unaccompanied non‑citizen child, remove the child from the custody of the custodian and place the child in the custody of some other person.

             (3)  If a child who is an unaccompanied non‑citizen child for the purposes of this Act was in the custody of a person in accordance with section 7 of the Immigration (Guardianship of Children) Act 1946 immediately before the commencement of this subsection, the child is taken to have been placed in the custody of that person under subsection (1) of this section at that commencement.

14  Saving of application of State laws

                   Except as prescribed by the regulations, nothing in this Act affects the operation in relation to unaccompanied non‑citizen children of any provision of the laws of any State or Territory relating to child welfare.

15  Offences in respect of unaccompanied non‑citizen child

                   A person must not:

                     (a)  remove any unaccompanied non‑citizen child from the custody of his or her custodian; or

                     (b)  knowing any unaccompanied non‑citizen child to have been removed or withdrawn, harbour or conceal the child or prevent him or her from returning to his or her custodian.

Penalty:  50 penalty units or imprisonment for 6 months, or both.

Part 3Provisions relating to the Guardian for Unaccompanied Non‑citizen Children

Division 1Establishment

16  Guardian for Unaccompanied Non‑citizen Children

                   There is to be a Guardian for Unaccompanied Non‑citizen Children.

17  Appointment

             (1)  The Guardian for Unaccompanied Non‑citizen Children is to be appointed by the Governor‑General by written instrument.

Note:          The Guardian is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901.

             (2)  Before the Governor‑General appoints a person as the Guardian for Unaccompanied Non‑citizen Children, the Minister must be satisfied that:

                     (a)  the person has appropriate qualifications, knowledge or experience and is of good character; and

                     (b)  the person has a demonstrated commitment to, and capacity to promote, the rights, interests and well‑being of non‑citizen children.

             (3)  Whenever a vacancy occurs in the office of Guardian, an appointment must be made to the office as soon as practicable.

Division 2Functions and powers

18  Functions and powers of Guardian for Unaccompanied Non‑citizen Children

             (1)  The following functions are conferred on the Guardian for Unaccompanied Non‑citizen Children:

                     (a)  to be the legal guardian, for all purposes, of unaccompanied non‑citizen children who arrive in Australia until:

                              (i)  they reach the age of 18 years; or

                             (ii)  they leave Australia permanently; or

                            (iii)  the provisions of this Act cease to apply to and in relation to the child;

                     (b)  to promote the needs and views of unaccompanied non‑citizen children;

                     (c)  to protect the rights of unaccompanied non‑citizen children and intervene, as legal guardian, in court cases involving the rights of unaccompanied non‑citizen children;

                     (d)  to involve unaccompanied non‑citizen children in decisions that affect them;

                     (e)  to act as an advocate, and in the best interests, of unaccompanied non‑citizen children;

                      (f)  to act as an advocate for the provision of suitable accommodation, care, education, language support and health care for unaccompanied non‑citizen children, both during and after the time that their refugee status is being considered;

                     (g)  to ensure that unaccompanied non‑citizen children have access to suitable legal representation and other assistance in respect of their claim for asylum;

                     (h)  to monitor and review laws, policies and practices which impact the provision of services for unaccompanied non‑citizen children;

                      (i)  to undertake any other function conferred on the Guardian by this Act or any other law.

             (2)  The Guardian has power to do all things necessary or convenient to be done for or in connection with the performance of functions conferred by this section.

             (3)  To avoid doubt, the functions of the Guardian under subsection (1) apply in relation to:

                     (a)  all unaccompanied non‑citizen children in Australia, including in every external Territory; and

                     (b)  all unaccompanied non‑citizen children in immigration detention.

             (4)  In the performance of functions under this section, the Guardian must, as appropriate:

                     (a)  consult with unaccompanied non‑citizen children under his or her guardianship in ways appropriate to their age and maturity; and

                     (b)  listen to and seriously consider the concerns, views and wishes of unaccompanied non‑citizen children under his or her guardianship; and

                     (c)  adopt work practices that ensure the Office is accessible to unaccompanied non‑citizen children and encourage their participation; and

                     (d)  if necessary, refer a matter to another appropriate agency or organisation.

             (5)  In the performance of functions under this section, the Guardian:

                     (a)  must act in a way that promotes and protects the rights, best interests and well‑being of unaccompanied non‑citizen children under his or her guardianship; and

                     (b)  is not under the control or direction of the Minister.

             (6)  The Guardian may report to the Parliament on any matter related to the performance of functions under this section.

19  Cooperation and consultation with other agencies

             (1)  In addition to any consultation under paragraph 18(4)(d):

                     (a)  the Guardian and any other Commonwealth agencies that provide or deal with services or issues affecting unaccompanied non‑citizen children must also cooperate in the exercise of their respective functions; and

                     (b)  the Guardian may consult with any non‑government and international organisations if the Guardian considers it necessary to do so.

             (2)  The Guardian may provide to the Commonwealth Ombudsman information on any matter related to the performance of the Guardian’s functions under this Act that the Guardian considers necessary or appropriate to provide to the Commonwealth Ombudsman to assist the Commonwealth Ombudsman in the preparation of a report under section 486O of the Migration Act 1958.

20  Delegation

             (1)  The Guardian may, in writing, delegate all or any of his or her functions and powers under this Act (other than sections 11 and 19) to an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

             (2)  In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Guardian.

Note:          See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

Division 3Guardian for Unaccompanied Non‑citizen Children

21  General terms and conditions of appointment

             (1)  The Guardian holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (2)  The Guardian holds office on a full‑time basis.

             (3)  The Guardian holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor‑General.

22  Acting Guardian

             (1)  The Minister may, by written instrument, appoint a person to act as Guardian:

                     (a)  during a vacancy in the office of Guardian (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Guardian:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any other reason, unable to perform the duties of the office of Guardian.

             (2)  A person must not be appointed to act as Guardian unless the Minister is satisfied that the person meets the requirements of subsection 17(2).

Note:          For rules that apply to appointments, see sections 20, 33AB and 33A of the Acts Interpretation Act 1901.

23  Remuneration

             (1)  The Guardian is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of remuneration by the Tribunal is in operation, the Guardian is to be paid the remuneration that is prescribed by the regulations.

             (2)  The Guardian is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

24  Leave of absence

             (1)  The Guardian has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Guardian leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

25  Restriction on outside employment

                   The Guardian must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

26  Disclosure of interests

                   The Guardian must give written notice to the Minister of all interests, pecuniary or otherwise, that the Guardian has or acquires and that conflict or could conflict with the proper performance of the Guardian’s functions.

27  Resignation

             (1)  The Guardian may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

28  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Guardian:

                     (a)  for misbehaviour; or

                     (b)  if the Guardian is unable to perform the duties of his or her office because of physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of the Guardian if any of the following apply:

                     (a)  the Guardian:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors;

                     (b)  the Guardian is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

                     (c)  the Guardian engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;

                     (d)  the Guardian fails, without reasonable excuse, to comply with section 26 (disclosure of interests).

Part 4Provisions relating to the Office of Guardian for Unaccompanied Non‑citizen Children

Division 1Establishment

29  Office of the Guardian for Unaccompanied Non‑citizen Children

             (1)  There is to be an Office of the Guardian for Unaccompanied Non‑citizen Children.

             (2)  The Office of the Guardian for Unaccompanied Non‑citizen Children consists of:

                     (a)  the Guardian for Unaccompanied Non‑citizen Children; and

                     (b)  the staff mentioned in section 31.

             (3)  For the purposes of the Public Service Act 1999:

                     (a)  the Guardian and the staff mentioned in section 31 together constitute a Statutory Agency; and

                     (b)  the Guardian is the Head of that Statutory Agency.

Note:          The Guardian holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).

Division 2Functions

30  Functions of the Office of the Guardian for Unaccompanied Non‑citizen Children

                   The functions of the Office of the Guardian for Unaccompanied Non‑citizen Children are:

                     (a)  to assist the Guardian in the performance of functions and the exercise of powers conferred on the Guardian by this Act or by another Act; and

                     (b)  to do anything incidental or conducive to the performance of any of those functions or the exercise of those powers; and

                     (c)  to exercise or perform any other functions conferred on the Office by this Act or by another Act.

Division 3Staff and consultants

31  Staff

                   The staff assisting the Guardian for the purposes of this Act must be persons engaged under the Public Service Act 1999.

32  Consultants

                   The Guardian may, on behalf of the Commonwealth, engage consultants to assist in the performance of the functions and the exercise of the powers of the Guardian.

Part 5Other matters

  

33  Annual reports

                   The Guardian must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Office of the Guardian during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

34  Review of operation of Act

             (1)  The Minister must cause a review of the first 2 years of operation of this Act to be undertaken.

             (2)  The Minister must cause a written report about the review to be prepared, and presented to the Minister, within 6 months after the end of the 2 year period mentioned in subsection (1).

             (3)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

35  Immunity from civil proceedings

                   No civil action, suit or proceeding lies against the following persons:

                     (a)  the Guardian;

                     (b)  a delegate of the Guardian;

                     (c)  a person acting under the direction or authority of the Guardian;

                     (d)  a member of staff assisting the Guardian;

in relation to anything done, or omitted to be done, in good faith by the person in connection with the performance or purported performance of functions or duties, or the exercise or purported exercise of powers, conferred by:

                     (e)  section 18 or 30; or

                      (f)  any other provision of:

                              (i)  this Act; or

                             (ii)  the regulations;

                            prescribed by the regulations for the purposes of this paragraph.

36  Appropriation

                   The Office of the Guardian for Unaccompanied Non‑citizen Children is to be funded out of money appropriated by the Parliament.

37  Regulations

             (1)  The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  The regulations may:

                     (a)  prescribe the principles to be observed in relation to the placing of unaccompanied non‑citizen children with custodians; and

                     (b)  regulate the placing of such children with custodians and the transfer of such children from one custodian to another; and

                     (c)  prescribe provisions to be observed by custodians in relation to the custody, control, welfare, care, education, training and employment of unaccompanied non‑citizen children; and

                     (d)  make provision in relation to the welfare of unaccompanied non‑citizen children and provide for the exclusion of any provision of the laws of any State or Territory that relates to the same matter; and

                     (e)  prescribe powers, rights, duties and liabilities of or in relation to the Guardian as guardian of the estate in Australia of unaccompanied non‑citizen children, including provisions for the receipt, disposition, management and control of:

                              (i)  property of unaccompanied non‑citizen children; and

                             (ii)  property of deceased unaccompanied non‑citizen children from their deaths until the grant of administration; and

                      (f)  provide for preventing unaccompanied non‑citizen children from leaving Australia without the consent in writing of the Guardian; and

                     (g)  prescribe penalties not exceeding 50 penalty units in respect of offences against the regulations; and

                     (h)  provide for review by the Administrative Appeals Tribunal of decisions made under this Act.


Schedule 1Amendments

  

Immigration (Guardianship of Children) Act 1946

1  After subsection 4AAA(3)

Insert:

          (3A)  Subsection (1) does not apply if the child is an unaccompanied non‑citizen child in accordance with the Guardian for Unaccompanied Children Act 2014.

2  At the end of section 4AA

Add:

             (3)  This section does not apply if the child is an unaccompanied non‑citizen child in accordance with the Guardian for Unaccompanied Children Act 2014.

Migration Act 1958

3  Subsection 5(1)

Insert:

Guardian means the Guardian for Unaccompanied Non‑citizen Children appointed under section 17 of the Guardian for Unaccompanied Children Act 2014.

4  Paragraphs 261AL(2)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  a parent or guardian of the minor, or the Guardian, consents to the minor providing the personal identifier; or

                     (b)  if the parent or guardian of the minor, or the Guardian, is not readily available—an independent person consents to the minor providing the personal identifier.

5  Subsection 261AL(3)

Repeal the subsection.

6  Subsection 261AL(4)

Repeal the subsection, substitute:

             (4)  Before obtaining the consent of a parent or guardian, the Guardian or the independent person, an officer or authorised officer must inform the parent or guardian, the Guardian or the independent person of the matters of which the minor must be informed under section 258B.

7  After paragraph 261AL(5)(a)

Insert:

                    (aa)  the Guardian; or

8  Subsection 261AL(6)

Repeal the subsection.

9  After subsection 486O(1)

Insert:

          (1A)  In preparing an assessment under subsection (1), the Commonwealth Ombudsman may have regard to any information provided in accordance with subsection 19(2) of the Guardian for Unaccompanied Children Act 2014 to the Commonwealth Ombudsman by the Guardian.