Immigration (Guardianship of Children) Regulations (Amendment)

Overview

The Immigration (Guardianship of Children) Act 1946 was enacted to address the guardianship of certain alien children entering Australia. The Act provides a framework for the guardianship of these children, ensuring their welfare is protected while in the country. In 1986, amendments were introduced via Statutory Rules 1986 No. 159 by the Minister of State for Immigration and Ethnic Affairs, further refining the guardianship provisions, particularly concerning children entering Australia under the care of a relative who is not their parent. The policy objective was to safeguard the interests of these children, ensuring that they are protected and provided with adequate care, even if their relationship with the relative breaks down irretrievably. These amendments, which came into operation on 1 July 1986, were designed to ensure the Minister could declare a child a ward if it was in their best interests and the relative agreed, provided certain conditions were met. The regulations prescribed principles for making such decisions, emphasising the necessity to protect the child's health, moral welfare, and to avoid decisions motivated by financial assistance considerations.

Scope and Application

The Immigration (Guardianship of Children) Act 1946 applies to non-Australian citizens under the age of 18 years who enter Australia under the care of a relative who is not a parent and is at least 21 years of age, with the intention of becoming a permanent resident. The Act allows the Minister for Immigration and Ethnic Affairs to declare such a person as a ward of the Minister if it is in their best interests and the relative agrees to the arrangement. This Act operates under the Commonwealth jurisdiction and its application is extended through the Immigration (Guardianship of Children) Regulations, which were amended to include new principles for determining guardianship under section 4AA. These principles include the necessity of guardianship to protect the child’s health or from moral danger, and the prohibition of using guardianship for improving eligibility for governmental financial assistance. The regulations also include minor technical amendments to align the text with current legislative language and update certain monetary references. The amendments to both the Act and the Regulations took effect on 1 July 1986.

Key Provisions

The Immigration (Guardianship of Children) Act 1946, as amended by the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, includes a new section 4AA, which allows the Minister to declare a non-Australian citizen under the age of 18 years as a ward if certain conditions are met. Specifically, this applies to children entering Australia in the care of a relative who is not less than 21 years old and is not a parent, and where the child intends to become a permanent resident of Australia (section 4AA(1)). The Minister must be satisfied that it is in the best interests of the child and the relative must agree to the declaration (section 4AA(2)). The new sub-section 12(aa) allows the Governor-General to make regulations that prescribe the principles to be observed when making a decision under section 4AA. The Act imposes certain obligations on the Minister and relevant relatives. The Minister must consider the principles outlined in the new regulations when deciding whether to declare a child as a ward under section 4AA. These principles include ensuring that the relationship between the child and the relative has irretrievably broken down, that the declaration is necessary to protect the child's health, safeguard them from moral danger, or to provide adequate direction and guidance, and that the declaration is not motivated by a desire to improve eligibility for governmental financial assistance (regulation 3AA). The relative must also consent to the child being declared a ward, thereby acknowledging their agreement to the decision. Breaches of the provisions under this Act can lead to various consequences, although specific offences and penalties are not detailed in the explanatory statement. Typically, failure to comply with the Act or regulations could result in legal actions or administrative penalties. For instance, making a declaration without proper consideration of the required principles could be challenged in court, leading to potential revocation of the wardship. Similarly, any misrepresentation or fraud in the application process could attract criminal penalties, although the exact nature of these penalties is not specified in the explanatory statement. The regulations also include a technical amendment in regulation 5, updating the fee from Twenty pounds to $40, which suggests administrative compliance with financial requirements is also a part of the obligations under this Act.