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This is a Bill, not an Act. For current law, see the Acts databases.
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
No. , 2014
Guardian for Unaccompanied Children Bill 2014
i
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
ii
Guardian for Unaccompanied Children Bill 2014
No. , 2014
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
No. , 2014
Guardian for Unaccompanied Children Bill 2014
1
A Bill for an Act to establish an independent Office
1
of Guardian for Unaccompanied Non-citizen
2
Children, and for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act may be cited as the Guardian for Unaccompanied
8
Children Act 2014.
9
Part 1 Preliminary
Section 2
2
Guardian for Unaccompanied Children Bill 2014
No. , 2014
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
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
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of this Act
13
(1) The objects of this Act are to ensure that:
14
(a) the Guardian for Unaccompanied Non-citizen Children is to
15
be the guardian of every unaccompanied non-citizen child
16
who arrives in Australia after the commencement of this Act
17
Preliminary Part 1
Section 4
No. , 2014
Guardian for Unaccompanied Children Bill 2014
3
or who is in Australia at the time of the commencement of
1
this Act; and
2
(b) the rights of unaccompanied non-citizen children are
3
protected; and
4
(c) the needs and views of unaccompanied non-citizen children
5
are promoted; and
6
(d) unaccompanied non-citizen children are involved in making
7
the decisions that affect them; and
8
(e) the conditions in immigration detention that apply to
9
unaccompanied non-citizen children are monitored.
10
(2) The Parliament intends the establishment of the Guardian as a
11
measure to assist Australia in meeting its international obligations
12
under the Convention on the Rights of the Child, particularly as
13
they relate to the following Articles:
14
(a) the primacy of the consideration of the child's best interests
15
(Article 4);
16
(b) the child's right to survival and development (Article 6(1));
17
(c) the child's right to participate in decision-making (Article
18
12);
19
(d) no arbitrary or unlawful deprivation of liberty (Article 37).
20
4 Principles underlying this Act
21
The following principles, based on the Convention on the Rights of
22
the Child, are to be applied in performing functions and exercising
23
powers under this Act:
24
(a) every child is a valued member of society;
25
(b) every child deprived of his or her liberty is entitled to prompt
26
access to legal and other assistance;
27
(c) every child is entitled to form and express views and have
28
those views taken into account in a way that has regard to the
29
child's age and maturity;
30
(d) in decisions involving a child, the child's best interests are of
31
primary concern.
32
Part 1 Preliminary
Section 5
4
Guardian for Unaccompanied Children Bill 2014
No. , 2014
5 Definitions
1
In this Act:
2
Australia, when used in a geographical sense, includes the external
3
Territories.
4
child means a person who is less than 18 years old.
5
Convention on the Rights of the Child means the Convention on
6
the Rights of the Child done at New York on 20 November 1989.
7
Note:
The text of the Convention on the Rights of the Child is set out in
8
Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2014, the text
9
of an international agreement in the Australian Treaty Series was
10
accessible through the Australian Treaties Library on the AustLII
11
website (www.austlii.edu.au).
12
custodian means a person into whose custody an unaccompanied
13
non-citizen child has been placed under section 13.
14
Guardian means the Guardian for Unaccompanied Non-citizen
15
Children appointed under section 17.
16
intending adoptive parent, in relation to a person (the child),
17
means a person who intends to:
18
(a) adopt the child under the laws in force in a State or Territory;
19
or
20
(b) secure the recognition, under the laws in force in a State or
21
Territory, of an adoption of the child by the person under the
22
laws of a foreign country.
23
non-citizen means a person who is not an Australian citizen.
24
Office means the Office of the Guardian for Unaccompanied
25
Non-citizen Children established under section 29.
26
parent: without limiting who is a parent of anyone for the purposes
27
of this Act, a person is the parent of another person if the other
28
person is a child of the person within the meaning of the Family
29
Law Act 1975.
30
relative of a person includes:
31
(a) a parent of the person; and
32
Preliminary Part 1
Section 6
No. , 2014
Guardian for Unaccompanied Children Bill 2014
5
(b) anyone who is a step-parent of the person or would be except
1
that he or she is not legally married to his or
2
her de facto partner (within the meaning of the Acts
3
Interpretation Act 1901); and
4
(c) anyone else who would be a relative of the person if someone
5
mentioned in paragraph (a) or (b) were a relative of the
6
person.
7
unaccompanied non-citizen child has the meaning given by
8
section 6.
9
6 Unaccompanied non-citizen child
10
(1) Subject to subsections (2) and (3), a person (the child) is an
11
unaccompanied non-citizen child if the child:
12
(a) has not turned 18; and
13
(b) enters Australia as a non-citizen; and
14
(c) is not accompanied by:
15
(i) a parent of the child; or
16
(ii) a relative of the child who has turned 21; or
17
(iii) an intending adoptive parent of the child; and
18
(d) does not have the appropriate visa or other authority for entry
19
into Australia.
20
(2) Subsection (1) does not apply if the child enters Australia in the
21
charge of, or for the purposes of living in Australia under the care
22
of, a person who satisfies the following conditions:
23
(a) the person is an Australian citizen, or has an appropriate visa
24
or other authority for entry into Australia;
25
(b) the person is:
26
(i) a parent of the child; or
27
(ii) a relative of the child who has turned 21; or
28
(iii) an intending adoptive parent of the child.
29
(3) Subsection (1) does not apply if:
30
(a) the child enters Australia in the charge of, or for the purposes
31
of living in Australia under the care of, a person who is not
32
less than 21 years of age (the adult); and
33
Part 1 Preliminary
Section 7
6
Guardian for Unaccompanied Children Bill 2014
No. , 2014
(b) a prescribed adoption class visa is in force in relation to the
1
child when the child enters Australia; and
2
(c) the adult intends to reside with the child in a State or
3
Territory.
4
7 Evidence
5
For the purposes of this Act (including proceedings arising under
6
this Act or in which a question arises as to the application of this
7
Act to a person), a certificate in writing by the Guardian that a
8
person named in the certificate is an unaccompanied non-citizen
9
child, or was, at a date specified in the certificate, an
10
unaccompanied non-citizen child, is evidence of that fact.
11
8 Operation of State and Territory laws
12
This Act is not intended to exclude or limit the operation of a law
13
of a State or Territory that is capable of operating concurrently
14
with this Act.
15
9 Application of Act to external Territories
16
This Act extends to the external Territories.
17
10 Schedule(s)
18
Each Act that is specified in a Schedule to this Act is amended or
19
repealed as set out in the applicable items in the Schedule
20
concerned, and any other item in a Schedule to this Act has effect
21
according to its terms.
22
Guardianship of unaccompanied non-citizen children Part 2
Section 11
No. , 2014
Guardian for Unaccompanied Children Bill 2014
7
Part 2--Guardianship of unaccompanied
1
non-citizen children
2
3
11 Guardianship of unaccompanied non-citizen children
4
(1) The Guardian is to be the guardian of the person, and the estate in
5
Australia, of every unaccompanied non-citizen child who arrives in
6
Australia after the commencement of this Act or who is in
7
Australia at the time of commencement of this Act, to the
8
exclusion of any other person.
9
(2) The Guardian will have, as guardian, the same rights, powers,
10
duties, obligations and liabilities as a natural guardian of the child
11
would have, until whichever of the following first happens:
12
(a) the child reaches the age of 18 years;
13
(b) the child leaves Australia permanently;
14
(c) the provisions of this Act cease to apply to and in relation to
15
the child.
16
12 Unaccompanied non-citizen child not to leave Australia without
17
consent
18
(1) An unaccompanied non-citizen child must not leave Australia
19
except with the consent in writing of the Guardian.
20
(2) The Guardian must not refuse to grant any such consent unless he
21
or she is satisfied that the granting of the consent would be
22
prejudicial to the interests of the unaccompanied non-citizen child.
23
(3) A person must not aid, abet, counsel or procure an unaccompanied
24
non-citizen child to leave Australia contrary to the provisions of
25
this section.
26
Penalty: 50 penalty units or imprisonment for 6 months, or both.
27
(4) This section does not affect the operation of any other law
28
regulating the departure of persons from Australia.
29
Part 2 Guardianship of unaccompanied non-citizen children
Section 13
8
Guardian for Unaccompanied Children Bill 2014
No. , 2014
13 Custody of unaccompanied non-citizen children
1
(1) The Guardian may place an unaccompanied non-citizen child in
2
the custody of a person who:
3
(a) is willing to have custody of that child; and
4
(b) is, in the opinion of the Guardian, a suitable person to have
5
custody of that child.
6
(2) The Guardian may, at any time, if he or she considers it necessary
7
so to do in the interests of an unaccompanied non-citizen child,
8
remove the child from the custody of the custodian and place the
9
child in the custody of some other person.
10
(3) If a child who is an unaccompanied non-citizen child for the
11
purposes of this Act was in the custody of a person in accordance
12
with section 7 of the Immigration (Guardianship of Children) Act
13
1946 immediately before the commencement of this subsection,
14
the child is taken to have been placed in the custody of that person
15
under subsection (1) of this section at that commencement.
16
14 Saving of application of State laws
17
Except as prescribed by the regulations, nothing in this Act affects
18
the operation in relation to unaccompanied non-citizen children of
19
any provision of the laws of any State or Territory relating to child
20
welfare.
21
15 Offences in respect of unaccompanied non-citizen child
22
A person must not:
23
(a) remove any unaccompanied non-citizen child from the
24
custody of his or her custodian; or
25
(b) knowing any unaccompanied non-citizen child to have been
26
removed or withdrawn, harbour or conceal the child or
27
prevent him or her from returning to his or her custodian.
28
Penalty: 50 penalty units or imprisonment for 6 months, or both.
29
Provisions relating to the Guardian for Unaccompanied Non-citizen Children Part 3
Establishment Division 1
Section 16
No. , 2014
Guardian for Unaccompanied Children Bill 2014
9
Part 3--Provisions relating to the Guardian for
1
Unaccompanied Non-citizen Children
2
Division 1--Establishment
3
16 Guardian for Unaccompanied Non-citizen Children
4
There is to be a Guardian for Unaccompanied Non-citizen
5
Children.
6
17 Appointment
7
(1) The Guardian for Unaccompanied Non-citizen Children is to be
8
appointed by the Governor-General by written instrument.
9
Note:
The Guardian is eligible for reappointment: see section 33AA of the
10
Acts Interpretation Act 1901.
11
(2) Before the Governor-General appoints a person as the Guardian for
12
Unaccompanied Non-citizen Children, the Minister must be
13
satisfied that:
14
(a) the person has appropriate qualifications, knowledge or
15
experience and is of good character; and
16
(b) the person has a demonstrated commitment to, and capacity
17
to promote, the rights, interests and well-being of non-citizen
18
children.
19
(3) Whenever a vacancy occurs in the office of Guardian, an
20
appointment must be made to the office as soon as practicable.
21
Part 3 Provisions relating to the Guardian for Unaccompanied Non-citizen Children
Division 2 Functions and powers
Section 18
10
Guardian for Unaccompanied Children Bill 2014
No. , 2014
Division 2--Functions and powers
1
18 Functions and powers of Guardian for Unaccompanied
2
Non-citizen Children
3
(1) The following functions are conferred on the Guardian for
4
Unaccompanied Non-citizen Children:
5
(a) to be the legal guardian, for all purposes, of unaccompanied
6
non-citizen children who arrive in Australia until:
7
(i) they reach the age of 18 years; or
8
(ii) they leave Australia permanently; or
9
(iii) the provisions of this Act cease to apply to and in
10
relation to the child;
11
(b) to promote the needs and views of unaccompanied
12
non-citizen children;
13
(c) to protect the rights of unaccompanied non-citizen children
14
and intervene, as legal guardian, in court cases involving the
15
rights of unaccompanied non-citizen children;
16
(d) to involve unaccompanied non-citizen children in decisions
17
that affect them;
18
(e) to act as an advocate, and in the best interests, of
19
unaccompanied non-citizen children;
20
(f) to act as an advocate for the provision of suitable
21
accommodation, care, education, language support and health
22
care for unaccompanied non-citizen children, both during and
23
after the time that their refugee status is being considered;
24
(g) to ensure that unaccompanied non-citizen children have
25
access to suitable legal representation and other assistance in
26
respect of their claim for asylum;
27
(h) to monitor and review laws, policies and practices which
28
impact the provision of services for unaccompanied
29
non-citizen children;
30
(i) to undertake any other function conferred on the Guardian by
31
this Act or any other law.
32
Provisions relating to the Guardian for Unaccompanied Non-citizen Children Part 3
Functions and powers Division 2
Section 19
No. , 2014
Guardian for Unaccompanied Children Bill 2014
11
(2) The Guardian has power to do all things necessary or convenient to
1
be done for or in connection with the performance of functions
2
conferred by this section.
3
(3) To avoid doubt, the functions of the Guardian under subsection (1)
4
apply in relation to:
5
(a) all unaccompanied non-citizen children in Australia,
6
including in every external Territory; and
7
(b) all unaccompanied non-citizen children in immigration
8
detention.
9
(4) In the performance of functions under this section, the Guardian
10
must, as appropriate:
11
(a) consult with unaccompanied non-citizen children under his or
12
her guardianship in ways appropriate to their age and
13
maturity; and
14
(b) listen to and seriously consider the concerns, views and
15
wishes of unaccompanied non-citizen children under his or
16
her guardianship; and
17
(c) adopt work practices that ensure the Office is accessible to
18
unaccompanied non-citizen children and encourage their
19
participation; and
20
(d) if necessary, refer a matter to another appropriate agency or
21
organisation.
22
(5) In the performance of functions under this section, the Guardian:
23
(a) must act in a way that promotes and protects the rights, best
24
interests and well-being of unaccompanied non-citizen
25
children under his or her guardianship; and
26
(b) is not under the control or direction of the Minister.
27
(6) The Guardian may report to the Parliament on any matter related to
28
the performance of functions under this section.
29
19 Cooperation and consultation with other agencies
30
(1) In addition to any consultation under paragraph 18(4)(d):
31
(a) the Guardian and any other Commonwealth agencies that
32
provide or deal with services or issues affecting
33
Part 3 Provisions relating to the Guardian for Unaccompanied Non-citizen Children
Division 2 Functions and powers
Section 20
12
Guardian for Unaccompanied Children Bill 2014
No. , 2014
unaccompanied non-citizen children must also cooperate in
1
the exercise of their respective functions; and
2
(b) the Guardian may consult with any non-government and
3
international organisations if the Guardian considers it
4
necessary to do so.
5
(2) The Guardian may provide to the Commonwealth Ombudsman
6
information on any matter related to the performance of the
7
Guardian's functions under this Act that the Guardian considers
8
necessary or appropriate to provide to the Commonwealth
9
Ombudsman to assist the Commonwealth Ombudsman in the
10
preparation of a report under section 486O of the Migration Act
11
1958.
12
20 Delegation
13
(1) The Guardian may, in writing, delegate all or any of his or her
14
functions and powers under this Act (other than sections 11 and
15
19) to an SES employee or acting SES employee.
16
Note:
The expressions SES employee and acting SES employee are defined
17
in section 2B of the Acts Interpretation Act 1901.
18
(2) In performing functions or exercising powers under a delegation,
19
the delegate must comply with any directions of the Guardian.
20
Note:
See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
21
Provisions relating to the Guardian for Unaccompanied Non-citizen Children Part 3
Guardian for Unaccompanied Non-citizen Children Division 3
Section 21
No. , 2014
Guardian for Unaccompanied Children Bill 2014
13
Division 3--Guardian for Unaccompanied Non-citizen
1
Children
2
21 General terms and conditions of appointment
3
(1) The Guardian holds office for the period specified in the
4
instrument of appointment. The period must not exceed 5 years.
5
(2) The Guardian holds office on a full-time basis.
6
(3) The Guardian holds office on the terms and conditions (if any), in
7
relation to matters not covered by this Act, that are determined by
8
the Governor-General.
9
22 Acting Guardian
10
(1) The Minister may, by written instrument, appoint a person to act as
11
Guardian:
12
(a) during a vacancy in the office of Guardian (whether or not an
13
appointment has previously been made to the office); or
14
(b) during any period, or during all periods, when the Guardian:
15
(i) is absent from duty or from Australia; or
16
(ii) is, for any other reason, unable to perform the duties of
17
the office of Guardian.
18
(2) A person must not be appointed to act as Guardian unless the
19
Minister is satisfied that the person meets the requirements of
20
subsection 17(2).
21
Note:
For rules that apply to appointments, see sections 20, 33AB and 33A
22
of the Acts Interpretation Act 1901.
23
23 Remuneration
24
(1) The Guardian is to be paid the remuneration that is determined by
25
the Remuneration Tribunal. If no determination of remuneration by
26
the Tribunal is in operation, the Guardian is to be paid the
27
remuneration that is prescribed by the regulations.
28
Part 3 Provisions relating to the Guardian for Unaccompanied Non-citizen Children
Division 3 Guardian for Unaccompanied Non-citizen Children
Section 24
14
Guardian for Unaccompanied Children Bill 2014
No. , 2014
(2) The Guardian is to be paid the allowances that are prescribed by
1
the regulations.
2
(3) This section has effect subject to the Remuneration Tribunal Act
3
1973.
4
24 Leave of absence
5
(1) The Guardian has the recreation leave entitlements that are
6
determined by the Remuneration Tribunal.
7
(2) The Minister may grant the Guardian leave of absence, other than
8
recreation leave, on the terms and conditions as to remuneration or
9
otherwise that the Minister determines.
10
25 Restriction on outside employment
11
The Guardian must not engage in paid employment outside the
12
duties of his or her office without the Minister's approval.
13
26 Disclosure of interests
14
The Guardian must give written notice to the Minister of all
15
interests, pecuniary or otherwise, that the Guardian has or acquires
16
and that conflict or could conflict with the proper performance of
17
the Guardian's functions.
18
27 Resignation
19
(1) The Guardian may resign his or her appointment by giving the
20
Governor-General a written resignation.
21
(2) The resignation takes effect on the day it is received by the
22
Governor-General or, if a later day is specified in the resignation,
23
on that later day.
24
28 Termination of appointment
25
(1) The Governor-General may terminate the appointment of the
26
Guardian:
27
(a) for misbehaviour; or
28
Provisions relating to the Guardian for Unaccompanied Non-citizen Children Part 3
Guardian for Unaccompanied Non-citizen Children Division 3
Section 28
No. , 2014
Guardian for Unaccompanied Children Bill 2014
15
(b) if the Guardian is unable to perform the duties of his or her
1
office because of physical or mental incapacity.
2
(2) The Governor-General must terminate the appointment of the
3
Guardian if any of the following apply:
4
(a) the Guardian:
5
(i) becomes bankrupt; or
6
(ii) applies to take the benefit of any law for the relief of
7
bankrupt or insolvent debtors; or
8
(iii) compounds with his or her creditors; or
9
(iv) makes an assignment of his or her remuneration for the
10
benefit of his or her creditors;
11
(b) the Guardian is absent, except on leave of absence, for 14
12
consecutive days or for 28 days in any 12 months;
13
(c) the Guardian engages, except with the Minister's approval, in
14
paid employment outside the duties of his or her office;
15
(d) the Guardian fails, without reasonable excuse, to comply
16
with section 26 (disclosure of interests).
17
Part 4 Provisions relating to the Office of Guardian for Unaccompanied Non-citizen
Children
Division 1 Establishment
Section 29
16
Guardian for Unaccompanied Children Bill 2014
No. , 2014
Part 4--Provisions relating to the Office of
1
Guardian for Unaccompanied Non-citizen
2
Children
3
Division 1--Establishment
4
29 Office of the Guardian for Unaccompanied Non-citizen Children
5
(1) There is to be an Office of the Guardian for Unaccompanied
6
Non-citizen Children.
7
(2) The Office of the Guardian for Unaccompanied Non-citizen
8
Children consists of:
9
(a) the Guardian for Unaccompanied Non-citizen Children; and
10
(b) the staff mentioned in section 31.
11
(3) For the purposes of the Public Service Act 1999:
12
(a) the Guardian and the staff mentioned in section 31 together
13
constitute a Statutory Agency; and
14
(b) the Guardian is the Head of that Statutory Agency.
15
Note:
The Guardian holds an office equivalent to that of a Secretary of a
16
Department (see the definition of Agency Head in section 7 of the
17
Public Service Act 1999).
18
Provisions relating to the Office of Guardian for Unaccompanied Non-citizen Children
Part 4
Functions Division 2
Section 30
No. , 2014
Guardian for Unaccompanied Children Bill 2014
17
Division 2--Functions
1
30 Functions of the Office of the Guardian for Unaccompanied
2
Non-citizen Children
3
The functions of the Office of the Guardian for Unaccompanied
4
Non-citizen Children are:
5
(a) to assist the Guardian in the performance of functions and the
6
exercise of powers conferred on the Guardian by this Act or
7
by another Act; and
8
(b) to do anything incidental or conducive to the performance of
9
any of those functions or the exercise of those powers; and
10
(c) to exercise or perform any other functions conferred on the
11
Office by this Act or by another Act.
12
Part 4 Provisions relating to the Office of Guardian for Unaccompanied Non-citizen
Children
Division 3 Staff and consultants
Section 31
18
Guardian for Unaccompanied Children Bill 2014
No. , 2014
Division 3--Staff and consultants
1
31 Staff
2
The staff assisting the Guardian for the purposes of this Act must
3
be persons engaged under the Public Service Act 1999.
4
32 Consultants
5
The Guardian may, on behalf of the Commonwealth, engage
6
consultants to assist in the performance of the functions and the
7
exercise of the powers of the Guardian.
8
Other matters Part 5
Section 33
No. , 2014
Guardian for Unaccompanied Children Bill 2014
19
Part 5--Other matters
1
2
33 Annual reports
3
The Guardian must, as soon as practicable after the end of each
4
financial year, prepare and give to the Minister, for presentation to
5
the Parliament, a report on the operations of the Office of the
6
Guardian during that year.
7
Note:
See also section 34C of the Acts Interpretation Act 1901, which
8
contains extra rules about annual reports.
9
34 Review of operation of Act
10
(1) The Minister must cause a review of the first 2 years of operation
11
of this Act to be undertaken.
12
(2) The Minister must cause a written report about the review to be
13
prepared, and presented to the Minister, within 6 months after the
14
end of the 2 year period mentioned in subsection (1).
15
(3) The Minister must cause a copy of the report to be laid before each
16
House of the Parliament within 15 sitting days of that House after
17
the Minister receives the report.
18
35 Immunity from civil proceedings
19
No civil action, suit or proceeding lies against the following
20
persons:
21
(a) the Guardian;
22
(b) a delegate of the Guardian;
23
(c) a person acting under the direction or authority of the
24
Guardian;
25
(d) a member of staff assisting the Guardian;
26
in relation to anything done, or omitted to be done, in good faith by
27
the person in connection with the performance or purported
28
performance of functions or duties, or the exercise or purported
29
exercise of powers, conferred by:
30
Part 5 Other matters
Section 36
20
Guardian for Unaccompanied Children Bill 2014
No. , 2014
(e) section 18 or 30; or
1
(f) any other provision of:
2
(i) this Act; or
3
(ii) the regulations;
4
prescribed by the regulations for the purposes of this
5
paragraph.
6
36 Appropriation
7
The Office of the Guardian for Unaccompanied Non-citizen
8
Children is to be funded out of money appropriated by the
9
Parliament.
10
37 Regulations
11
(1) The Governor-General may make regulations prescribing matters:
12
(a) required or permitted by this Act to be prescribed; or
13
(b) necessary or convenient to be prescribed for carrying out or
14
giving effect to this Act.
15
(2) The regulations may:
16
(a) prescribe the principles to be observed in relation to the
17
placing of unaccompanied non-citizen children with
18
custodians; and
19
(b) regulate the placing of such children with custodians and the
20
transfer of such children from one custodian to another; and
21
(c) prescribe provisions to be observed by custodians in relation
22
to the custody, control, welfare, care, education, training and
23
employment of unaccompanied non-citizen children; and
24
(d) make provision in relation to the welfare of unaccompanied
25
non-citizen children and provide for the exclusion of any
26
provision of the laws of any State or Territory that relates to
27
the same matter; and
28
(e) prescribe powers, rights, duties and liabilities of or in relation
29
to the Guardian as guardian of the estate in Australia of
30
unaccompanied non-citizen children, including provisions for
31
the receipt, disposition, management and control of:
32
(i) property of unaccompanied non-citizen children; and
33
Other matters Part 5
Section 37
No. , 2014
Guardian for Unaccompanied Children Bill 2014
21
(ii) property of deceased unaccompanied non-citizen
1
children from their deaths until the grant of
2
administration; and
3
(f) provide for preventing unaccompanied non-citizen children
4
from leaving Australia without the consent in writing of the
5
Guardian; and
6
(g) prescribe penalties not exceeding 50 penalty units in respect
7
of offences against the regulations; and
8
(h) provide for review by the Administrative Appeals Tribunal of
9
decisions made under this Act.
10
Schedule 1 Amendments
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Guardian for Unaccompanied Children Bill 2014
No. , 2014
Schedule 1
--Amendments
1
2
Immigration (Guardianship of Children) Act 1946
3
1 After subsection 4AAA(3)
4
Insert:
5
(3A) Subsection (1) does not apply if the child is an unaccompanied
6
non-citizen child in accordance with the Guardian for
7
Unaccompanied Children Act 2014.
8
2 At the end of section 4AA
9
Add:
10
(3) This section does not apply if the child is an unaccompanied
11
non-citizen child in accordance with the Guardian for
12
Unaccompanied Children Act 2014.
13
Migration Act 1958
14
3 Subsection 5(1)
15
Insert:
16
Guardian means the Guardian for Unaccompanied Non-citizen
17
Children appointed under section 17 of the Guardian for
18
Unaccompanied Children Act 2014.
19
4 Paragraphs 261AL(2)(a) and (b)
20
Repeal the paragraphs, substitute:
21
(a) a parent or guardian of the minor, or the Guardian, consents
22
to the minor providing the personal identifier; or
23
(b) if the parent or guardian of the minor, or the Guardian, is not
24
readily available--an independent person consents to the
25
minor providing the personal identifier.
26
5 Subsection 261AL(3)
27
Repeal the subsection.
28
6 Subsection 261AL(4)
29
Amendments Schedule 1
No. , 2014
Guardian for Unaccompanied Children Bill 2014
23
Repeal the subsection, substitute:
1
(4) Before obtaining the consent of a parent or guardian, the Guardian
2
or the independent person, an officer or authorised officer must
3
inform the parent or guardian, the Guardian or the independent
4
person of the matters of which the minor must be informed under
5
section 258B.
6
7 After paragraph 261AL(5)(a)
7
Insert:
8
(aa) the Guardian; or
9
8 Subsection 261AL(6)
10
Repeal the subsection.
11
9 After subsection 486O(1)
12
Insert:
13
(1A) In preparing an assessment under subsection (1), the
14
Commonwealth Ombudsman may have regard to any information
15
provided in accordance with subsection 19(2) of the Guardian for
16
Unaccompanied Children Act 2014 to the Commonwealth
17
Ombudsman by the Guardian.
18
No. , 2014
Guardian for Unaccompanied Children Bill 2014
1
1