EXPLANATORY STATEMENT
Subject: Immigration (Guardianship of Children) Act 1946
Immigration (Guardianship of Children)
Regulations (Amendment)
1988 No. 94
Section 12 of the Immigration (Guardianship of Children) Act 1946 (the Act) provides that the Governor-General may make regulations not inconsistent with the Act prescribing matters required or permitted by the Act.
Section 4A of the Act allows a “prescribed officer” to certify that a child is, or was, a non-citizen child and that the certificate is evidence of the fact so certified. A prescribed officer in regulation 3A of the Immigration (Guardianship of Children) Regulations is defined by reference to nominated positions in each of the States and internal Territories. This definition required amendment each time a State or Territory reviews its administrative arrangements.
As with the definition in regulation 3A, Regulation 3 of the Immigration (Guardianship of Children) Regulations defined “authority” for purposes of the Regulations by reference to nominated positions in each of the States and internal Territories. An amendment was likewise necessary when the administrative arrangements of the States or Territories were reviewed.
The regulations amended the Immigration (Guardianship of Children) Regulations to prescribe a generic definition for both “authority” in regulation 3 and “prescribed officer” in regulation 3A. This avoids the necessity of amending the regulations every time the State and/or Territories review their administrative arrangements.
The regulations commenced on the date of Gazettal.
Details of the regulations are as follows:
• Regulation 1 omitted the current definition of “authority” and substituted a new definition which provides that an authority is a person who performs the functions in relation to welfare of children in a State or Territory and who occupies the position approved by the Minister.
• Regulation 2 repealed regulation 3A and substituted a new definition to provide that a prescribed officer is an officer of the Commonwealth, State or Territory who performs functions in relation to the welfare of children and holding a delegation under sub-section 5(1) of the Act.
Authority: Section 12 of
the Immigration
(Guardianship of
Children) Act 1946
Overview
The Immigration (Guardianship of Children) Regulations (Amendment) 1988 No. 94, made under Section 12 of the Immigration (Guardianship of Children) Act 1946, was enacted to streamline the regulatory framework governing the guardianship of non-citizen children in Australia. This amendment aimed to address the inefficiencies and administrative burdens caused by the previous requirement to revise regulations each time a state or territory updated its administrative arrangements. By introducing generic definitions for "authority" and "prescribed officer," the amendment sought to ensure that the regulations remain consistent and effective without the need for frequent amendments. The policy objective is to facilitate a smoother operation of the child welfare system across different jurisdictions, ensuring that the guardianship of non-citizen children is managed efficiently and uniformly. The regulations commenced on the date of their gazette, with Regulation 1 substituting a new definition for "authority" and Regulation 2 replacing the previous definition for "prescribed officer."
Scope and Application
The Immigration (Guardianship of Children) Act 1946 applies to non-citizen children, who are defined as children who are not Australian citizens or permanent residents, and the officers responsible for their welfare within Australia. The Act authorises the Governor-General to make regulations concerning the guardianship of these children, ensuring that they are appropriately cared for while their immigration status is being resolved. The Act also defines "prescribed officers" as those who have the authority to certify the non-citizen status of a child, a responsibility that is shared across the Commonwealth, states, and territories. These regulations are designed to streamline the certification process and adapt to changes in administrative arrangements within the states and territories without requiring continual amendments to the regulations themselves. The scope of the Act is national, extending its application across all jurisdictions within Australia, and it is supported by subordinate regulations that provide further detail on the certification process and the roles of prescribed officers.
The Immigration (Guardianship of Children) Regulations (Amendment) 1988 No. 94 further clarifies and updates the definitions within the regulations, ensuring that they remain relevant and effective without the need for frequent legislative changes. Regulation 1 redefines "authority" to encompass any person approved by the Minister who performs child welfare functions in a state or territory, while Regulation 2 similarly redefines "prescribed officer" to include officers from the Commonwealth, states, and territories who have been delegated the relevant functions under the Act. These amendments aim to simplify the regulatory framework and ensure consistency in the application of the Act across different jurisdictions. The regulations commenced on the date of their gazette, thereby immediately taking effect and updating the definitions within the original regulations.
Key Provisions
The main operative sections of the Immigration (Guardianship of Children) Regulations (Amendment) 1988 No. 94 involve amendments to the definitions of "authority" and "prescribed officer" within the existing regulations. Regulation 1 of the amendment replaces the previous definition of "authority" with a new definition that specifies an authority as a person who is responsible for child welfare in a state or territory and holds a position approved by the Minister. Regulation 2 repeals the old regulation 3A and introduces a new definition for "prescribed officer," identifying such an officer as an individual from the Commonwealth, a state, or a territory who performs child welfare functions and holds a delegation under subsection 5(1) of the Act. These amendments aim to simplify future updates to the regulations by providing generic definitions that do not require changes every time state or territory administrative arrangements are reviewed.
The obligations and requirements imposed by the amended regulations on the parties involved are primarily concerned with the definition and identification of "authority" and "prescribed officer." For authorities, the primary requirement is that they must be individuals who perform functions related to child welfare within a state or territory and hold a position approved by the Minister. For prescribed officers, they must be officers from the Commonwealth, a state, or a territory who carry out child welfare functions and possess a delegation under subsection 5(1) of the Act. These definitions ensure that the individuals tasked with responsibilities under the Act are clearly identified and approved, maintaining consistency and clarity in the regulatory framework.
In terms of offences, penalties, or consequences for breaches of the Immigration (Guardianship of Children) Act 1946 and its regulations, the Explanatory Statement does not provide specific details on potential penalties or consequences. However, it is common for breaches of legislative provisions to result in various legal repercussions depending on the severity and nature of the breach. Generally, these could include fines, imprisonment, or other civil or administrative penalties as determined by relevant authorities. The maximum penalties would typically be outlined in the primary Act or related legislation, but these specifics are not addressed in the provided Explanatory Statement. It is essential for parties governed by the Act to adhere to its provisions and the amended regulations to avoid potential legal repercussions.