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Part 3—Provisions relating to the Guardian for Unaccompanied Non-citizen Children

Part 3 Provisions relating to the Guardian for Unaccompanied Non-citizen Children

Division 1 Establishment

16   Guardian for Unaccompanied Non-citizen Children

                   There is to be a Guardian for Unaccompanied Non-citizen Children.

17   Appointment

             (1)  The Guardian for Unaccompanied Non-citizen Children is to be appointed by the Governor-General by written instrument.

Note:          The Guardian is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901 .

             (2)  Before the Governor-General appoints a person as the Guardian for Unaccompanied Non-citizen Children, the Minister must be satisfied that:

                     (a)  the person has appropriate qualifications, knowledge or experience and is of good character; and

                     (b)  the person has a demonstrated commitment to, and capacity to promote, the rights, interests and well-being of non-citizen children.

             (3)  Whenever a vacancy occurs in the office of Guardian, an appointment must be made to the office as soon as practicable.

Division 2 Functions and powers

18   Functions and powers of Guardian for Unaccompanied Non-citizen Children

             (1)  The following functions are conferred on the Guardian for Unaccompanied Non-citizen Children:

                     (a)  to be the legal guardian, for all purposes, of unaccompanied non-citizen children who arrive in Australia until:

                              (i)  they reach the age of 18 years; or

                             (ii)  they leave Australia permanently; or

                            (iii)  the provisions of this Act cease to apply to and in relation to the child;

                     (b)  to promote the needs and views of unaccompanied non-citizen children;

                     (c)  to protect the rights of unaccompanied non-citizen children and intervene, as legal guardian, in court cases involving the rights of unaccompanied non-citizen children;

                     (d)  to involve unaccompanied non-citizen children in decisions that affect them;

                     (e)  to act as an advocate, and in the best interests, of unaccompanied non-citizen children;

                      (f)  to act as an advocate 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;

                     (g)  to ensure that unaccompanied non-citizen children have access to suitable legal representation and other assistance in respect of their claim for asylum;

                     (h)  to monitor and review laws, policies and practices which impact the provision of services for unaccompanied non-citizen children;

                      (i)  to undertake any other function conferred on the Guardian by this Act or any other law.

             (2)  The Guardian has power to do all things necessary or convenient to be done for or in connection with the performance of functions conferred by this section.

             (3)  To avoid doubt, the functions of the Guardian under subsection (1) apply in relation to:

                     (a)  all unaccompanied non-citizen children in Australia, including in every external Territory; and

                     (b)  all unaccompanied non-citizen children in immigration detention.

             (4)  In the performance of functions under this section, the Guardian must, as appropriate:

                     (a)  consult with unaccompanied non-citizen children under his or her guardianship in ways appropriate to their age and maturity; and

                     (b)  listen to and seriously consider the concerns, views and wishes of unaccompanied non-citizen children under his or her guardianship; and

                     (c)  adopt work practices that ensure the Office is accessible to unaccompanied non-citizen children and encourage their participation; and

                     (d)  if necessary, refer a matter to another appropriate agency or organisation.

             (5)  In the performance of functions under this section, the Guardian:

                     (a)  must act in a way that promotes and protects the rights, best interests and well-being of unaccompanied non-citizen children under his or her guardianship; and

                     (b)  is not under the control or direction of the Minister.

             (6)  The Guardian may report to the Parliament on any matter related to the performance of functions under this section.

19   Cooperation and consultation with other agencies

             (1)  In addition to any consultation under paragraph 18(4)(d):

                     (a)  the Guardian and any other Commonwealth agencies that provide or deal with services or issues affecting unaccompanied non-citizen children must also cooperate in the exercise of their respective functions; and

                     (b)  the Guardian may consult with any non-government and international organisations if the Guardian considers it necessary to do so.

             (2)  The Guardian may provide to the Commonwealth Ombudsman information on any matter related to the performance of the Guardian’s functions under this Act that the Guardian considers necessary or appropriate to provide to the Commonwealth Ombudsman to assist the Commonwealth Ombudsman in the preparation of a report under section 486O of the Migration Act 1958 .

20   Delegation

             (1)  The Guardian may, in writing, delegate all or any of his or her functions and powers under this Act (other than sections 11 and 19) to an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901 .

             (2)  In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Guardian.

Note:          See also sections 34AA and 34AB of the Acts Interpretation Act 1901 .

Division 3 Guardian for Unaccompanied Non-citizen Children

21   General terms and conditions of appointment

             (1)  The Guardian holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (2)  The Guardian holds office on a full-time basis.

             (3)  The Guardian holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor-General.

22   Acting Guardian

             (1)  The Minister may, by written instrument, appoint a person to act as Guardian:

                     (a)  during a vacancy in the office of Guardian (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Guardian:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any other reason, unable to perform the duties of the office of Guardian.

             (2)  A person must not be appointed to act as Guardian unless the Minister is satisfied that the person meets the requirements of subsection 17(2).

Note:          For rules that apply to appointments, see sections 20, 33AB and 33A of the Acts Interpretation Act 1901 .

23   Remuneration

             (1)  The Guardian is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of remuneration by the Tribunal is in operation, the Guardian is to be paid the remuneration that is prescribed by the regulations.

             (2)  The Guardian is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

24   Leave of absence

             (1)  The Guardian has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Guardian leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

25   Restriction on outside employment

                   The Guardian must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

26   Disclosure of interests

                   The Guardian must give written notice to the Minister of all interests, pecuniary or otherwise, that the Guardian has or acquires and that conflict or could conflict with the proper performance of the Guardian’s functions.

27   Resignation

             (1)  The Guardian may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

28   Termination of appointment

             (1)  The Governor-General may terminate the appointment of the Guardian:

                     (a)  for misbehaviour; or

                     (b)  if the Guardian is unable to perform the duties of his or her office because of physical or mental incapacity.

             (2)  The Governor-General must terminate the appointment of the Guardian if any of the following apply:

                     (a)  the Guardian:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors;

                     (b)  the Guardian is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

                     (c)  the Guardian engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;

                     (d)  the Guardian fails, without reasonable excuse, to comply with section 26 (disclosure of interests).