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Guardian for Unaccompanied Children Bill 2014

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2013-2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

THE SENATE

 

 

 

 

GUARDIAN FOR UNACCOMPANIED CHILDREN BILL 2014

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator Hanson-Young)

 

 

 



 

GENERAL OUTLINE

The Guardian for Unaccompanied Children Bill 2014 establishes an independent statutory office of Guardian for Unaccompanied Non-citizen Children (the Guardian) to advocate for the best interests of non-citizen children who arrive in Australia or Australian external territories to seek humanitarian protection, who are unaccompanied 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 Non-citizen Children will entail a financial cost for administrative purposes.

NOTES ON CLAUSES

Part 1

Clause 1

This clause provides for the Act, when enacted, to be cited as the Guardian for Unaccompanied Children Act 2014 .

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 objects 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 clause explains the key definitions of the Act.

Clause 6

Subclause (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.

Subclause (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.

Subclause (3) of this clause clarifies that children legally arriving in 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 an 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

This clause establishes 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 clause 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 provided by regulations.

Clause 15

This clause 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 establishes the Guardian for Unaccompanied Non-citizen Children.

Clause 17

These provisions provide for the appointment of the Guardian and the eligibility requirements for his or her appointment.

Clause 18

This clause 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 clause 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; and

-           utilise external referrals to services as appropriate.

This clause 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 on any matters the Guardian thinks appropriate to assist the Ombudsman in 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 delegate operating in accordance with the directions of the Guardian.

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 when 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 his or her 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 an Office of the Guardian for Unaccompanied Non-citizen Children, comprised of the Guardian and his or her 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.

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

Item 1

This item amends the IGAC Act by establishing that if a child is identifiably an unaccompanied non-citizen child in accordance with the Guardian for Unaccompanied Children Act 2014 , then the child will be excluded from the jurisdiction of the IGAC Act.

Item 2

This item amends the IGAC Act by establishing that if a child is identifiably an unaccompanied non-citizen child in accordance with the Guardian for Unaccompanied Children Act 2014 , then the child may not be designated as a ward of the Minister for Immigration.

 

Amendments to Migration Act 1958

Item 3

This item inserts a new definition into the definitions section of the Migration Act, describing the office of the Guardian for Unaccompanied Non-Citizen Children.

Item 4

This item repeals provisions of the Migration Act relating to who may give consent for 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 provisions 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.

Item 5

This item repeals a subsection in the Migration Act which covers a situation wherein the Minister for Immigration might be the unaccompanied child’s Guardian.

 

 

Item 6

This item 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 subsection that confirms that an officer seeking a personal identifier must provide information to the parent, Guardian or independent person prior to obtaining their consent.

Item 7

This item 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.

Item 8

This item 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. 

Item 9

This item 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 2014

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 2014 establishes an independent statutory office of Guardian for Unaccompanied Non-citizen Children (the Guardian) to advocate for the best interests of non-citizen children who arrive in Australia or Australian external territories to seek humanitarian protection, who are not 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 positively 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 rights 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