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Part 1—Preliminary

Part 1 Preliminary

   

1   Short title

                   This Act may be cited as the Guardian for Unaccompanied Children Act 2014 .

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

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Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3   Objects of this Act

             (1)  The objects of this Act are to ensure that:

                     (a)  the Guardian for Unaccompanied Non-citizen Children is to be the guardian of every unaccompanied non-citizen child who arrives in Australia after the commencement of this Act or who is in Australia at the time of the commencement of this Act; and

                     (b)  the rights of unaccompanied non-citizen children are protected; and

                     (c)  the needs and views of unaccompanied non-citizen children are promoted; and

                     (d)  unaccompanied non-citizen children are involved in making the decisions that affect them; and

                     (e)  the conditions in immigration detention that apply to unaccompanied non-citizen children are monitored.

             (2)  The Parliament intends the establishment of the Guardian as a measure to assist Australia in meeting its international obligations under the Convention on the Rights of the Child, particularly as they relate to the following Articles:

                     (a)  the primacy of the consideration of the child’s best interests (Article 4);

                     (b)  the child’s right to survival and development (Article 6(1));

                     (c)  the child’s right to participate in decision-making (Article 12);

                     (d)  no arbitrary or unlawful deprivation of liberty (Article 37).

4   Principles underlying this Act

                   The following principles, based on the Convention on the Rights of the Child, are to be applied in performing functions and exercising powers under this Act:

                     (a)  every child is a valued member of society;

                     (b)  every child deprived of his or her liberty is entitled to prompt access to legal and other assistance;

                     (c)  every child is entitled to form and express views and have those views taken into account in a way that has regard to the child’s age and maturity;

                     (d)  in decisions involving a child, the child’s best interests are of primary concern.

5   Definitions

                   In this Act:

Australia , when used in a geographical sense, includes the external Territories.

child means a person who is less than 18 years old.

Convention on the Rights of the Child means the Convention on the Rights of the Child done at New York on 20 November 1989.

Note:          The text of the Convention on the Rights of the Child is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2014, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

custodian means a person into whose custody an unaccompanied non-citizen child has been placed under section 13.

Guardian means the Guardian for Unaccompanied Non-citizen Children appointed under section 17.

intending adoptive parent , in relation to a person (the child ), means a person who intends to:

                     (a)  adopt the child under the laws in force in a State or Territory; or

                     (b)  secure the recognition, under the laws in force in a State or Territory, of an adoption of the child by the person under the laws of a foreign country.

non-citizen means a person who is not an Australian citizen.

Office means the Office of the Guardian for Unaccompanied Non-citizen Children established under section 29.

parent : without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975 .

relative of a person includes:

                     (a)  a parent of the person; and

                     (b)  anyone who is a step-parent of the person or would be except that he or she is not legally married to his or her de facto partner (within the meaning of the Acts Interpretation Act 1901 ); and

                     (c)  anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) were a relative of the person.

unaccompanied non-citizen child has the meaning given by section 6.

6   Unaccompanied non-citizen child

             (1)  Subject to subsections (2) and (3), a person (the child ) is an unaccompanied non-citizen child if the child:

                     (a)  has not turned 18; and

                     (b)  enters Australia as a non-citizen; and

                     (c)  is not accompanied by:

                              (i)  a parent of the child; or

                             (ii)  a relative of the child who has turned 21; or

                            (iii)  an intending adoptive parent of the child; and

                     (d)  does not have the appropriate visa or other authority for entry into Australia.

             (2)  Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who satisfies the following conditions:

                     (a)  the person is an Australian citizen, or has an appropriate visa or other authority for entry into Australia;

                     (b)  the person is:

                              (i)  a parent of the child; or

                             (ii)  a relative of the child who has turned 21; or

                            (iii)  an intending adoptive parent of the child.

             (3)  Subsection (1) does not apply if:

                     (a)  the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the adult ); and

                     (b)  a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and

                     (c)  the adult intends to reside with the child in a State or Territory.

7   Evidence

                   For the purposes of this Act (including proceedings arising under this Act or in which a question arises as to the application of this Act to a person), a certificate in writing by the Guardian that a person named in the certificate is an unaccompanied non-citizen child, or was, at a date specified in the certificate, an unaccompanied non-citizen child, is evidence of that fact.

8   Operation of State and Territory laws

                   This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

9   Application of Act to external Territories

                   This Act extends to the external Territories.

10   Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.