Australia's Immigration (Guardianship of Children) Act of 1946 deals with the legal guardianship of non-citizen children under the age of 18 who arrive on the shores of Australia seeking to become permanent residents of the country. Often these are children escaping unstable, war-torn countries as refugees. The Act covers children who are unaccompanied by a parent or adult relative over the age of 21, and who aren't joining family or adoptive parents already in Australia.

Historical Context

Before World War II, Australia limited immigration almost exclusively to British-born individuals and families. (See Reference 2 p. 62) In 1947, nearly 90 percent of the country's population was of Anglo-Celtic descent. (See Reference 2 p. 70) However, World War II had a profound impact on the focus of Australian immigration, leaving many individuals and children throughout Europe without homes or families. Additionally, the war in the Pacific had exposed Australia's vulnerability to outside aggression. For the first time, the country created a ministry of immigration. Arthur Calwell, Australia's first minister for immigration, promoted large-scale programs designed to rapidly increase the country's population by assisting migrants who wished to become permanent residents. Many of the first children resettled under the Immigration (Guardianship of Children) Act were European orphans and refugees.

Mandatory Detention

In Australia, detention of all asylum seekers, including children, is automatic while their claims are being processed. This mandatory detention policy has led to criticism that detaining refugees in prison-like facilities is inhumane. Critics point particularly to the United Nations Convention on the Rights of the Child, which Australia ratified in 1990. The international treaty compels ratifying countries to focus on the best interests of child refugees and states those children should be detained only as a last resort. In 2010 and 2011, the numbers of unaccompanied minors arriving in Australia unlawfully by boat increased substantially. Many of these are 16- and 17-year-old males from Afghanistan. As unauthorized non-citizens, these children are taken immediately to regional processing countries while the government addresses their claims for protection visas.

The Minister as Guardian

The Immigration (Guardianship of Children) Act establishes the minister for immigration as the sole legal guardian of unaccompanied non-citizen minors who arrive in Australia lawfully. Custodial care and decisions on routine daily matters related to the child's care and welfare are delegated to commonwealth or state officers -- typically an officer in the state child welfare agency where the child resides. Private individuals or other entities may also have custody of the child, but the minister remains the child's legal guardian. However, children who arrive in Australia unlawfully are taken to detention centers in a regional processing country. As established by a 2012 amendment to the guardianship law, the minister is no longer considered the legal guardian of any children in these detention facilities.

Best Interests of the Child

The UN Convention on the Rights of the Child requires guardians or custodians of child refugees base their decisions first and foremost on the best interests of the child. However, this isn't always possible in practice. While custodians make day-to-day decisions regarding the child's activities and welfare, the child remains a ward of the minister for immigration. Custodians cannot sign citizenship forms or other documents on behalf of the child. After the claims for lawful child immigrants are processed and a protection visa is awarded, that child may be required to move to a different state, disconnecting that child from any relationships formed in Australia. Additionally, uncertainty over a child's actual age is common with refugee children and causes problems because many services and government assistance are only available to children of specific ages.