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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Guardian for Unaccompanied Children Bill 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Hanson-Young)
Explanatory Memorandum
GENERAL OUTLINE: Policy Rationale
The Guardian for Unaccompanied Children Bill 2013 establishes an independent statutory
office of Guardian for Unaccompanied Children (the Guardian) to advocate for the best
interests of non-citizen children who arrive to Australia or Australian external territories to
seek humanitarian protection, who are accompanied by their parents or another responsible
adult.
Along with promoting the rights and suitable care of unaccompanied children, the Guardian
will consult with other services and agencies in relation to the well-being of unaccompanied
children, and will report directly to Parliament. The Guardian has a responsibility to monitor
and review laws, policies and practices which impact on service provision as far as they relate
to unaccompanied asylum seeker children.
As a signatory to the UN Convention on the Rights of the Child, Australia has obligations to
ensure that the best interests of all children are adequately cared for, and particularly the
interests of vulnerable cohorts such as unaccompanied asylum seeker children who may
require special protection.
FINANCIAL IMPACT
The establishment of an Office of the Guardian for Unaccompanied Children will entail a
financial cost for administrative purposes.
NOTES ON CLAUSES
Clause 1
This clause provides for the Act, when enacted, to be cited as the Guardian for
Unaccompanied Children Act 2013.
Clause 2
This clause provides for sections 1 to 2 of the Act to commence on the day it receives Royal
Assent, and sections 3 to 37 and Schedule 1 to commence within six months of Royal Assent.
Clause 3
This clause identifies that the object of the Act is to establish a Guardian for all
unaccompanied non-citizen children who are in Australia or arrive in Australia at and after
the time of the commencement of this Act.
This clause also identifies that the object of the Act are to establish a Guardian who will
protect the rights of unaccompanied children, promote their needs, involve them in decision
making and monitor their condition particularly when they are being accommodated in held
detention.
This clause identifies that the office of the Guardian is to assist Australia in meeting its
international obligations under the Convention on the Rights of the Child, particularly articles
4, 6, 12 and 37.
Clause 4
This clause identifies the principles from the United Nations Convention on the Rights of the
Child that are applied to the Guardian when exercising his or her powers.
Clause 5
This section explains the key definitions of the Act.
Clause 6
Section 1 of this clause provides detailed definition of an unaccompanied non-citizen child
under this Act. That is, a child who is under 18, not a citizen of Australia, and not
accompanied by a parent, relative over 21 or adoptive parent, who arrives without a visa.
Section 2 of this clause clarifies that non-citizen children or relatives of Australian citizens
will not be considered unaccompanied children for the purposes of this Act.
Section 3 of this clause clarifies that children legally arriving to Australia to be permanently
adopted by an Australian adult will not be considered unaccompanied children for the
purposes of this Act.
Clause 7
This clause explains that confirmation of the status of a child as unaccompanied child shall be
demonstrated by the Guardian providing a certificate in writing.
Clause 8
This clause highlights that the operation of this Act is not intended to exclude or limit the
operation of a similar state or territory law that is capable of working concurrently with this
Act.
Clause 9
This clause ensures that the Act applies to all external territories. This is particularly
important for asylum seekers under eighteen who are held on Christmas Island.
Clause 10
This clause provides that each Act specified in the Schedule to the Bill will be amended or
repealed as set out in the Schedule.
Part 2
Clause 11
This clause sets out that the Guardian established by this Act will be the guardian of every
unaccompanied child in Australia or arriving to Australia on or after the commencement of
the Act.
It also establishes that the Guardian will remain the natural guardian of every unaccompanied
child until the child reaches adulthood, or leaves Australia permanently, or other statutory
reasons end the Guardianship.
Clause 12
These clauses establish the circumstances in which an unaccompanied child will be able to
leave Australia, including the requirements for the Guardian's consent. It also sets out as a
criminal offence the removal of an unaccompanied child without the Guardian's prior consent
in writing.
Clause 13
This section outlines the ability of the Guardian to place the unaccompanied child in the
custody of a person, and to alter the custodial arrangements as the Guardian sees fit. This will
allow the Guardian to oversee the appropriate care and accommodation arrangements.
Clause 14
This clause clarifies that this Act does not impact on any State or Territory laws dealing with
child welfare in relation to unaccompanied asylum seeker children, other than as directed by
subsequent regulations.
Clause 15
This section establishes offences relating to any act which removes or causes an
unaccompanied child to be removed from their custodial arrangements, or to harbour an
unaccompanied child who has been removed.
Part 3
Clause 16
This clause outlines the establishment of the role of the Guardian for Unaccompanied Non-
citizen Children.
Clause 17
These provisions establish guidelines for the appointment of the Guardian and the eligibility
requirements for his or her appointment.
Clause 18
This section sets out the functions and powers of the Guardian in relation to all
unaccompanied non-citizen children in Australia and in Australia's external territories. The
functions include:
- acting as legal guardian for unaccompanied children
- promoting the needs and rights of unaccompanied children and advocating for their
best interests
- involving unaccompanied children in decision making about their situation
- monitoring policies and practices relating to service provision for unaccompanied
children
- advocating 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
- and other matters.
This section also outlines the obligations on the part of the Guardian, in carrying out his or
her functions, to:
- consult with non-citizen children in age appropriate ways
- listen to their concerns, views and wishes
- adopt accessible office practices to encourage the participation of unaccompanied
children
- utilise external referrals to services as appropriate.
This section confirms that the best interests of the child are the paramount consideration and
that the Guardian may report to Parliament on any aspects of these functions.
Clause 19
This clause provides additional confirmation that the Guardian should work and consult
cooperatively with other agencies and organizations whose work relates to unaccompanied
children in Australia.
This clause provides for the Guardian to provide information to the Commonwealth
Ombudsman to preparation of the Ombudsman's statutory reports to federal Parliament.
Clause 20
This clause permits the Guardian to delegate some or all of his or her functions and powers to
a senior public servant, subject to that staff operating in accordance with the directions of the
Guardian.
Division 3
Clause 21
This clause sets out the parameters for appointment of the Guardian.
Clause 22
This clause permits the appointment of an Acting Guardian, in particular circumstances and if
the Acting Guardian meets eligibility requirements set out in this Act.
Clause 23
This clause sets out how the remuneration to be paid to the person appointed to the role of
Guardian will be determined.
Clause 24
This clause sets out how the Guardian may take a leave of absence and that the Minister's
approval must be obtained.
Clause 25
This clause establishes that the Guardian must seek the Minister's approval in order to
undertake any paid work outside his or her work as Guardian.
Clause 26
This clause requires the Guardian to give notice of any conflicts of interest or any possible
conflicts of interest.
Clause 27
This clause sets out the requirements and circumstances for the Guardian to resign from their
position.
Clause 28
This clause sets out the circumstances in which the Governor-General may terminate the
appointment of the Guardian.
Part 4
Clause 29
This clause establishes that there will be an Office of the Guardian for Unaccompanied
Children, comprised of the Guardian and their staff. The Office shall be a statutory authority
and the Guardian shall be the Head of the statutory authority.
Clause 30
This clause establishes that the functions of the Office will be to assist the Guardian in his or
her functions, perform incidental tasks and exercise other functions under this Act.
Division 3
Clause 31
This clause identifies the Act under which the staff of the Guardian shall be employed.
Clause 32
This clause gives capacity for the Guardian to employ consultants, on behalf of the
Commonwealth, to assist in the performances of the functions and exercise of the power of
the Guardian.
Part 5
Clause 33
This clause establishes that the Guardian must provide an annual report to the Minister to be
presented to Parliament.
Clause 34
This clause sets out the timeframe for a review of the role of the Guardian and requirements
for public presentation of the report from the review by the Minister through tabling in
Parliament.
Clause 35
This clause limits any civil actions against the Guardian, a delegate of the Guardian, a person
acting under the direction of the Guardian or staff of the Office of the Guardian.
Clause 36
This clause identifies that the Office of the Guardian will be funded through appropriation by
federal Parliament.
Clause 37
This clause enables regulations to be made which facilitate the performance of the objects of
this Act and the exercise of the powers of the Guardian.
Schedule 1 - Amendments to Immigration (Guardianship of Children) Act 1946
Clause 1
This clause amends the IGAC Act by establishing that if a child is identifiably an
unaccompanied non-citizen child in accordance with the Guardian of Unaccompanied
Children Act 2013, then they will be excluded from the jurisdiction of the IGAC Act.
Clause 2
This clause amends the IGAC Act by establishing that if a child is identifiably an
unaccompanied non-citizen child in accordance with the Guardian of Unaccompanied
Children Act 2013, then the child may not be designated as a ward of the Minister for
Immigration and Citizenship.
Amendments to Migration Act 1958
Clause 3
This clause inserts a new definition into the Definitions section of the Migration Act,
describing the office of the Guardian for Unaccompanied Non-Citizen Children.
Clause 4
This clause repeals subsections of the Migration Act relating to who may give consent for the
an unaccompanied non-citizen child to provide a personal identifier by way of an
identification test to be carried out by an authorised officer.
This replaces the repealed subsections with clarification that consent for the provision of a
personal identifier may be given by a parent or guardian of a minor, or an independent person.
Clause 5
This clause repeals a clause in the Migration Act which covers a situation wherein the
Minister for Immigration might be the unaccompanied child's Guardian.
Clause 6
This clause repeals a clause in the Migration Act (now rendered defunct by the enactment of
this Act) relating to the provision of information before a personal identifier test about the
unaccompanied child is carried out.
It replaces it with a new clause that confirms that an officer seeking a personal identifier must
provide information to the parent, Guardian or independent person prior to obtaining their
consent.
Clause 7
This clause inserts `the Guardian' as person before whom a personal identifier test must be
carried out in the circumstances that an officer has consent to perform one.
Clause 8
This clause repeals a clause in the Migration Act (now rendered defunct by the enactment of
this Act) which refers to the situation wherein the Minister for Immigration is an
unaccompanied child's Guardian.
Clause 9
This clause inserts the capacity for the Commonwealth Ombudsman to report to the Minister
on the appropriateness of an unaccompanied child's detention.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Guardian for Unaccompanied Children Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The Guardian for Unaccompanied Children Bill 2013 establishes an independent statutory
office of Guardian for Unaccompanied Children (the Guardian) to advocate for the best
interests of non-citizen children who arrive to Australia or Australian external territories to
seek humanitarian protection, who are accompanied by their parents or another responsible
adult.
Along with promoting the rights and suitable care of unaccompanied children, the Guardian
will consult with other services and agencies in relation to the well-being of unaccompanied
children, and will report to Parliament. The Guardian has a responsibility to monitor and
review laws, policies and practices which impact on service provision as far as they relate to
unaccompanied asylum seeker children.
As a signatory to the UN Convention on the Rights of the Child, Australia has obligations to
ensure that the best interests of all children are adequately cared for, and particularly the
interests of vulnerable cohorts such as unaccompanied asylum seeker children who may
require special protection.
Human rights implications
This Bill engages the following rights or freedoms:
Convention on the Rights of the Child article 2
This Bill positively engages CRC article 2 in that the Guardian will provide care and
protection to ensure that children who are seeking protection on their own will not suffer
harm or maltreatment on the basis that they are an asylum seeker who has arrived without a
visa. Children should not continue to suffer compromised guardianship, given the conflict of
interest inherent to the Minister's guardianship, simply because their racial, cultural or
national background has led to them becoming a unaccompanied asylum seeker in Australia.
The Guardian established by this Bill will provide oversight and advocacy to ensure that
unaccompanied non-citizen children are protected against all forms of discrimination or
punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's
parents, legal guardians, or family members.
Convention on the Rights of the Child article 3
This bill positively engages CRC article 3 because the establishment of the Guardian is
founded on the very principle stated at article 3, which is that in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration.
This bill establishes a statutory authority with the primary goal of protecting the best interests
of children. The Guardian is explicitly mandated to protect the rights of the child that are
enumerated at Article 3, including ensuring the child has protection and care as is necessary
for his or her wellbeing.
Convention on the Rights of the Child article 6
This Bill positively engages CRC article 6 in that the protection, care, advocacy and platform
provided by the Guardian to unaccompanied non-citizen children means that Australia will be
better positioned to fulfil the obligation to enable, to the maximum extent possible, the
survival and development of the child.
Convention on the Rights of the Child article 12
This Bill positively engages CRC article 12 by mandating the Guardian to hear and consider
the views of the child and encourage them to participate in decision making about their life.
This satisfies the obligations arising from article 12 which require states to assure to the child
who is capable of forming his or her own views the right to express those views freely in all
matters affecting the child.
Convention on the Rights of the Child article 37
This bill positive engages CRC article 37 which states that no child shall be subjected to
torture or other cruel, inhuman or degrading treatment or punishment and no child shall be
deprived of his or her liberty unlawfully or arbitrarily. The role of the Guardian is mandated
to inquire into the appropriateness of the detention of unaccompanied children, and advocate
directly to the Minister responsible for alternative accommodation if it is in the best interests
of the child. Consistent with article 37, the Guardian may advocate on behalf of the child that
detention of any form should be a measure of last resort and for the shortest appropriate
period of time.
As the Guardian will also have a responsibility to ensure the right to legal representation of
unaccompanied children are satisfied, this Bill is in accordance with CRC article 37 which
requires that every child deprived of his or her liberty shall have the right to prompt access to
legal and other appropriate assistance, as well as the right to challenge the legality of the
deprivation of his or her liberty before a court or other competent, independent and impartial
authority, and to a prompt decision on any such action.
Conclusion
This Bill is compatible with human rights as it does not raise any negative human rights
issues.
Senator Sarah Hanson-Young