Guardianship of Child Asylum-Seekers
| Author | Julie Taylor |
| DOI | 10.22145/FLR.34.1.7 |
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
| Subject Matter | Article |
GUARDIANSHIP OF CHILD ASYLUM-SEEKERS
Julie Taylor*
In 1994, the Commonwealth Parliament passed an amendment to the Immigration
(Guardianship of Children) Act 1946 (Cth) (the 'Immigration (GOC) Act'), which provided
that the Minister is guardian of 'every non-citizen child who arrives in Australia'.
Although the Immigration (GOC) Act was originally enacted with respect to children
who entered Australia under assisted migration or re-settlement schemes, the Act and
the amendments introduced by the Immigration (Guardianship of Children) Amendment
Act 1994 (Cth) have been interpreted to include unaccompanied children who come to
Australia as asylum-seekers. Unaccompanied children commonly apply for protection
visas and bring review applications and appeals in the Refugee Review Tribunal ('the
Tribunal') and the courts. The Minister is the decision-maker, respondent in review
proceedings, and a party in appeals; and is also the children's legal guardian. This
gives rise to actual and perceived conflict between the Minister's duties as guardian
and as a decision-maker or party to review and appeal proceedings.
The status of these children and their relationship with the Minister was discussed
in the High Court in WACB v Minister for Immigration and Multicultural and Indigenous
Affairs,1 and previously in Odhiambo v Minister for Immigration and Multicultural Affairs.2
That issue arose again in an application for special leave to appeal to the High Court in
SFTB v Minister for Immigration and Multicultural and Indigenous Affairs.3 This paper
explores some of the issues that arise from the Minister's conflicting duties in those and
other cases.
In part one, this paper sets out the statutory framework and discusses how the
Immigration (GOC) Act extends to unaccompanied children who are determined to be
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* BA (Asian Studies), LLB (Hons) (University of Western Australia). Thanks to Sarah
Knuckey, Rachel Davis, and Justice Heydon for comments on earlier drafts; and to the
anonymous referee who provided detailed comments and suggestions. I take full
responsibility for the views expressed and any errors made.
1 (2004) 210 ALR 190 ('WACB').
2 (2002) 122 FCR 29 ('Odhiambo').
3 See Transcript of proceedings, SFTB v Minister for Immigration and Multicultural and
Indigenous Affairs [2004] HCATrans 293 (11 August 2004). The application for special leave
was from SFTB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129
FCR 222 ('SFTB'). The special leave application was stood over pending the outcome of
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (18
May 2005).
186 Federal Law Review Volume 34
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unlawful non-citizens4 under Australian law. In part two, it addresses the content of
the guardianship duty established under the Immigration (GOC) Act. Part three
identifies some of the issues that arise for the Tribunal, the courts, lawyers and
advisers trying to assist children without an active guardian, and for the children
themselves. Finally, part four suggests some political and legal ways that various
difficulties might be avoided.
1 THE IMMIGRATION (GUARDIANSHIP OF CHILDREN) ACT 1946
Section 6 of the Immigration (GOC) Act provides:5
The Minister shall be the guardian of the person, and of the estate in Australia, of every
non-citizen child who arrives in Australia after the commencement of this Act to the
exclusion of the father and mother and every other guardian of the child, and shall have,
as guardian, the same rights, powers, duties, obligations and liabilities as a natural
guardian of the child would have, until the child reaches the age of 18 years or leaves
Australia permanently…
'Non-citizen child' is defined in s 4AAA, which provides:
(1) Subject to subsections (2) and (3), a person (the child) is a non-citizen child if the
child:
(a) has not turned 18; and
(b) enters Australia as a non-citizen; and
(c) intends, or is intended, to become a permanent resident of Australia.
Section 4AAA(2) provides, inter alia, that sub-s (1) does not apply if the child enters
Australia in the charge of a parent, relative who is over 21 years of age, or an intending
adoptive parent. Section 4AAA(3) provides that sub-s (1) does not apply in respect of
children who are the subject of a prescribed adoption class visa.
The Immigration (GOC) Act was drafted to ensure adequate oversight of the welfare
of children brought to Australia under voluntary migration schemes sponsored by
social welfare organisations and church bodies.6 It was enacted following a conference
of State premiers on 20 August 1946, at which it was resolved that the Commonwealth
should continue to be the sole authority for migration activities overseas and that the
States and Territories would carry out the function of reception on arrival in Australia,
although this function was often carried out by voluntary agencies.7 The Immigration
(GOC) Act was intended to permit the national coordination of services that were to be
carried out by the States, giving national uniformity to guardianship of child
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4 The term 'unlawful non-citizen' comes from s 14 of the Migration Act 1958 (Cth). Read with
s 13, the term generally refers to a person in the migration zone who does not hold a visa
that is in effect.
5 The constitutional validity of s 6 was upheld by the High Court in R v Director-General of
Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369. The Court's decision was
unanimous, although all of the Justices gave separate reasons.
6 Commonwealth, Parliamentary Debates, House of Representatives, 31 July 1946, 3369
(Arthur Calwell, Minister for Immigration). See also Antonio Buti, 'British Child Migration
to Australia: History, Senate Inquiry and Responsibilities' (2002) 9(4) E-Law – Murdoch
University Electronic Journal of Law <http://www.murdoch.edu.au/elaw/issues/v9n4/
buti94.html> at 21 February 2006.
7 Community Affairs References Committee, Parliament of Australia Senate, Lost Innocents:
Righting the Record (2001) 26 [2.64].
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