Christopher Levingston Blog

Just in time for Christmas, new regulations which don't start until late 2019!

Where do I get it?

https://www.legislation.gov.au/Details/F2018L01708 or the other article on this website with the source documents.

What work do they do?

The Immigration (Guardianship of Children) Act 1946 (the Act) provides for the Minister (or Ministers) administering the Act to be the legal guardian of a non-citizen child under 18 who enters Australia with the intention of becoming a permanent resident but who is not under the care of a parent, an intending adoptive parent, or other adult relative.  In addition, the Minister may direct that a non-citizen child entering Australia in the charge of, or under the care of, a relative other than a parent is to be a ward of the Minister, if the relative consents and the Minister is satisfied that it is necessary in the child’s interests.  The Act provides that where the Minister is the legal guardian of a non-citizen child, the Minister may place the child in the custody of another person. 

Section 12 of the Act provides that the Governor‑General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. 

The Immigration (Guardianship of Children) Regulations 2018 (the Regulations) remake the Immigration (Guardianship of Children) Regulations 2001 (the 2001 Regulations) in accordance with regular sunsetting practice, where the regulations being replaced are still fit for purpose.

The Legislation Act 2003 (the Legislation Act) provides that all legislative instruments, other than exempt instruments, progressively ‘sunset’ according to the timetable set out in the Legislation Act. When a legislative instrument sunsets, it is automatically repealed under section 50 of the Legislation Act. 

The 2001 Regulations were made under section 12 of the Act on 29 August 2001, commenced on 1 November 2001, and were registered on the Federal Register of Legislation (the FRL) on 1 January 2005, the date the Legislation Act commenced. Subsection 50(2) of the Legislation Act provides that a legislative instrument that was registered on the FRL on 1 January 2005 will sunset on 1 October 2019.  

The Regulations remake the 2001 Regulations following a review of their fitness for purpose.  The Regulations are in substantially the same form as the 2001 Regulations.  Provisions that are no longer required have been omitted, and minor changes have been made to update the drafting and clarify provision for delegation of the Minister’s powers and functions. 

The Regulations repeal and remake the 2001 Regulations to: 

• prescribe the principles to be observed by the Minister or delegate when giving a direction that a non-citizen child under 18 entering Australia in the care of a relative other than a parent is to be a ward of the Minister, in particular clarifying the requirement that the direction must be in the interests of the child; 

• prescribe provisions to be observed by custodians in relation to the custody, control, welfare, care, education, training and employment of non-citizen children; 

• require the Minister to keep a Register of Custodians that contains details of the custodian and the name, date of birth and sex of each child in the custody of the custodian, and any other particulars that the Minister considers relevant; 

• provide that provisions of State and Territory laws under which children may become State wards do not apply in relation to children coming under the Act, but that delegates of the Minister under the Act have the same rights and powers that they would have under the relevant State and Territory laws if the child was in the custody and care of the person or a State ward under those laws; 

• require a master, owner or agent of an aircraft or ship travelling outside Australia who has reason to suspect that a passenger or intending passenger is a child to whom the Act applies, who is leaving the State or Territory without the Minster’s consent, to notify the Minister in writing of the passenger’s name and the reasons for the suspicion; 

• prescribe officers of the Commonwealth or a State or Territory performing functions in relation to the welfare of children and who are delegates under the Act, as officers who may give a certificate for the purposes of the Act that a child named in the certificate is a child coming within the Act; and 

• provide that the Minister may delegate all or any of the Minister’s powers or functions under the regulations to: an APS employee who holds, or is acting in an Executive Level 1 or higher position in the Department of Home Affairs; or an officer or employee of a State or Territory who exercises power or performs functions in relation to the welfare of children and who holds, or is acting in, a position that is sufficiently senior to exercise the powers and perform the functions delegated.

The Office of Best Practice Regulation (the OBPR) has been consulted regarding the Regulations.  The OBPR considers that the Regulations will not have a significant regulatory impact on business and no further analysis (in the form of a Regulation Impact Statement) is required.  The OBPR consultation reference is 23972.  This relates to the remaking of the 2001 Regulations in preparation for sunsetting which occurs on 1 October 2019.  It also relates to other minor changes to update policy settings. 

No consultation was considered necessary because the amendments do not substantially alter existing arrangements.  This accords with subsection 17(1) of the Legislation Act which requires consultations to be appropriate and reasonably practicable. 

The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislation Act.

But wait there is more! 

The Regulations commence on 1 October 2019.             

Do you need to do anything now?

No!