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Immigration (Guardianship of Children) Amendment Bill 1993



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House: Senate

Portfolio: Immigration and Ethnic Affairs

Commencement: This proposed Act does not contain a commencement date. However, by virtue of subsection 5(1A) of the Acts Interpretation Act 1901 it will be deemed to come into operation twenty- eight days after the day on which it receives the Royal Assent.

Purpose

To preclude the Minister for Immigration and Ethnic Affairs from assuming the guardianship of certain non- citizen children who enter Australia for adoption in a declared State or Territory.

Background

Adoption laws remain substantially within the domain of the States. The Federal Government also plays a role, as it has jurisdiction over immigration laws and can prevent an adopted child from entering the country unless certain conditions are met. For example, children who have been adopted overseas by Australian citizens/permanent residents or who have been approved for adoption by Australian citizens/permanent residents in accordance with agreed Commonwealth/State guidelines require a Class 102 adoption visa to enter Australia. The prescribed criteria for a Class 102 visa are set out in Part 102 of Schedule 2 to the Migration (1993) Regulations, and include:

Subclause 102.321(2) [Criteria to be satisfied at time of application for Class 102 visa]

(2) An applicant meets the requirements of this subclause if:

(a) the applicant has not turned 18; and

(b) the applicant was adopted overseas by a person who:

(i) was, at the time of the adoption, an Australian citizen or an Australian permanent resident; and

(ii) had been residing overseas for more than 12 months at the time of the application; and

(c) the Minister is satisfied that residence overseas by the adoptive parent was not contrived to circumvent the requirements for entry to Australia of children for adoption; and

(d) the adoptive parent has lawfully acquired full and permanent parental rights by the adoption; and

(e) the relevant authorities of the overseas country have approved the departure of the applicant to Australia.

The Immigration (Guardianship of Children) Act 1946 (the Principal Act) provides the legal basis upon which most children enter Australia for the purposes of adoption. The Principal Act gives the Minister the guardianship and custody of non- citizen children coming into Australia not in the custody of their parent or other relative. The Minister may delegate her/his guardianship duties to State or Territory authorities. The Minister's powers of guardianship in respect of a child who enters Australia as a Class 102 visa holder ceases when:

* an Australian adoption order is granted;

* an overseas adoption order is recognised or ratified under State or Territory law; or

* the child turns eighteen or leaves Australia permanently. 1

Further Federal involvement in adoption law came from the initiation of inter- governmental cooperation on adoption laws. In 1986, a meeting of State Ministers of Community Services, and the Federal Minister for Immigration agreed upon a set of National Guidelines for inter- country adoption. It is not practical to set out full details of the National Guidelines. The major recommendations of the National Guidelines included the following:

* The rights, welfare and interests of the child are paramount.

* That inter- country adoption remain the responsibility of the States and Territories in conjunction with the Federal Department but that in any review of the jurisdiction between States and Territories in respect of children, consideration be given to the Family Court's jurisdiction being extended to adoption matters.

* The assessment process involve a mandatory educative component and an approved assessment involving several interviews.

* The introduction of a fee for service.

* The placement be supervised for 12 months at which time a local adoption order should be obtained.

* The Federal Department monitor and maintain all inter- country adoption arrangements and agreements and co- ordinate information and inquiries and the negotiation of future arrangements and agreements. 2

The States not only have their own adoption laws, but also take an active role through their own government departments in the procedural aspects of adoption. These functions include dealing with foreign countries where children are available for adoption, assessing the suitability of adoptive parents and arranging the placement of children.

The principal amendment proposed by this Bill is to preclude certain non- citizen children from coming under the guardianship of the Minister for Immigration and Ethnic Affairs. The rationale, as stated by the Minister in the Second Reading Speech to this Bill for the amendments proposed by this Bill, is to give `effect, as far as the Commonwealth is able, to an understanding between the Commonwealth, States and Territories in 1990 that State and Territory governments would amend legislation to enable them to assume guardianship care for those children entering Australia for the purposes of adoption.'

Main Provisions

Commencement: This proposed Act does not contain a commencement date. However, by virtue of subsection 5(1A) of the Acts Interpretation Act 1901 it will be deemed to come into operation twenty- eight days after the day on which it receives the Royal Assent.

Definitions:

The term `prescribed adoption class visa' is defined by clause 3 as a visa under the Migration Act 1958 declared by the regulations to be an adoption class visa for the purposes of this proposed Act.

Non- citizen Child Declared States and Territories: New sections 4AAA and 4AAB, the effect of which will be to preclude the Minister for Immigration and Ethnic Affairs from assuming the guardianship of certain non- citizen children who enter Australia for adoption in a declared State or Territory, will be inserted into the Principal Act by clause 4.

Proposed section 4AAA provides which children are to be included/excluded from the definition of non- citizen child. Inclusion or exclusion from the definition is important as the effect of inclusion is the assumption of guardianship by the Minister for Immigration and Ethnic Affairs. Under proposed subsection 4AAA(1), a person (the `child') will be taken to be a non- citizen child if they:

* have not turned 18;

* enter Australia as a non- citizen; and

* intend, or are intending, to become a permanent resident of Australia.

A person will also be taken to be a non- citizen child where they have not turned 18 and are the subject of a section 4AA direction [proposed subsection 4AA(4)]. Section 4AA of the Principal Act provides:

(1) Subject to sub- section (2), where -

(a) a person under the age of 18 years enters Australia as a non- citizen in the charge of, or for the purpose of living in Australia under the care of, a relative of the person (other than a parent) not less than 21 years of age; and

(b) the person intends to become, or is intending to become, a permanent resident of Australia, the Minister may, if the Minister is satisfied that it is necessary in the interests of the person to do so, direct, in writing, that the person shall be the Minister's ward.

(2) The Minister shall not give a direction under sub- section (1) unless the relative consents to the Minister doing so.

Proposed subsection 4AAA(1) will not apply if the child enters Australia in the charge of, or for the purpose of living in Australia under the care of:

* a parent;

* a relative who is over 21; or

* an intending adoptive parent [proposed subsection 4AAA(2)].

Proposed subsection 4AAA(1) will also not apply:

* where the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is over 21 (the `adult');

* a prescribed adoption class visa operates in relation to the child when it enters Australia; and

* the adult intends to live with the child in a declared State or Territory [proposed subsection 4AAA(3)].

Proposed section 4AAB provides that the Minister may declare a State or Territory to be a declared State or Territory.

Endnotes

1. Department of Immigration and Ethnic Affairs, Procedures Advice Manual, Vol. 2, Ch. 10, Adoption - Class 102, p. 4.

2. Victorian Family Children's Services Council, The Inter- country Adoption Service in Victoria, July 1991, pp. 78- 79.

Ian Ireland (Ph. 06 2772438)

Bills Digest Service 28 February 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1994.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1994.