{"id":"F2018L01708","name":"Immigration (Guardianship of Children) Regulations 2018","slug":"immigration-guardianship-of-children-regulations-2018","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":439860,"registerId":"F2018L01708-fast-fetch-1775955721412","compilationNumber":null,"startDate":"2026-04-12","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Immigration (Guardianship of Children) Regulations 2018","content":"---\nmeta-content-style-type: text/css\nmeta-content-type: application/xhtml+xml; charset=utf-8\n---\n\n?xml version=\"1.0\" encoding=\"utf-8\" standalone=\"no\"?>\n\n![Commonwealth Coat of Arms of Australia](image.001.jpeg)\n\n \n\nImmigration (Guardianship of Children) Regulations 2018\n\nI, the Honourable Paul de Jersey AC, Administrator of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.\n\nDated 06 December 2018\n\nPaul de Jersey AC\n\nAdministrator of the Government of the Commonwealth of Australia\n\nBy His Excellency’s Command\n\nDavid Coleman\n\nMinister for Immigration, Citizenship and Multicultural Affairs\n\n \n\n \n\n \n\n \n\nContents\n\nPart 1—Preliminary\n\n1 Name\n\n2 Commencement\n\n3 Authority\n\n4 Schedules\n\n5 Definitions\n\nPart 2—Orders for guardianship\n\n6 Prescribed principles for directions under section 4AA of the Act\n\nPart 3—Placement and transfer of non‑citizen children\n\nDivision 1—Purposes of this Part\n\n7 Purposes of this Part\n\nDivision 2—Custodian requirements\n\n8 Acknowledgement by custodians\n\n9 Duties and obligations of custodians\n\n10 Custodian to retain custody of children\n\n11 Consent required for non‑citizen child to leave State\n\n12 Notification of change of address or telephone number\n\n13 Notification of other events\n\nDivision 3—Register of Custodians\n\n14 Register of Custodians\n\nPart 4—Application of child welfare laws\n\n15 Effect of State laws\n\nPart 5—Preventing non‑citizen children from leaving Australia\n\n16 Notification by masters, owners and agents of aircraft and ships\n\nPart 6—Miscellaneous\n\n17 Prescribed officers for the purposes of section 4A of the Act\n\n18 Delegation\n\nSchedule 1—Repeals\n\nImmigration (Guardianship of Children) Regulations 2001\n\n \n\nPart 1—Preliminary\n\n \n\n1  Name\n\n  This instrument is the Immigration (Guardianship of Children) Regulations 2018.\n\n2  Commencement\n\n (1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.\n\n \n\n- Commencement information\n- Column 1 Column 2 Column 3\n- Provisions Commencement Date/Details\n- 1. The whole of this instrument 1 October 2019. 1 October 2019\n\n\nNote: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.\n\n (2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.\n\n3  Authority\n\n  This instrument is made under the Immigration (Guardianship of Children) Act 1946.\n\n4  Schedules\n\n  Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.\n\n5  Definitions\n\n  In this instrument:\n\nAct means the Immigration (Guardianship of Children) Act 1946.\n\nState includes the Australian Capital Territory and the Northern Territory.\n\nState ward means a child for whose welfare and care a State has assumed responsibility (whether through a department or authority of the State or otherwise), no matter how the child or the assumption of responsibility is described.\n\nwelfare and care includes custody, control, maintenance, education, training and employment.\n\nPart 2—Orders for guardianship\n\n \n\n6  Prescribed principles for directions under section 4AA of the Act\n\n  For the purposes of paragraph 12(aa) of the Act, the following principles must be observed in considering whether or not to give a direction under section 4AA of the Act in respect of a person:\n\n (a) a direction must not be given unless the relationship between the person and the relative mentioned in paragraph 4AA(1)(a) of the Act has broken down irretrievably;\n\n (b) a direction must not be given unless the direction is necessary:\n\n (i) to protect the person from risk of injury or danger of impairment of health; or\n\n (ii) to protect the person from moral danger; or\n\n (iii) to enable the person to have the benefit of adequate direction and guidance; or\n\n (iv) for any other reason that the Minister, or a delegate of the Minister who is giving the direction, considers to be in the interests of the person;\n\n (c) a direction must not be given for the principal purpose of creating, or improving, eligibility of the person, or the relative mentioned in paragraph 4AA(1)(a) of the Act, for financial assistance from the Commonwealth or a State.\n\nPart 3—Placement and transfer of non‑citizen children\n\nDivision 1—Purposes of this Part\n\n7  Purposes of this Part\n\n  This Part is made for the purposes of paragraphs 12(b), (c) and (f) of the Act.\n\nDivision 2—Custodian requirements\n\n8  Acknowledgement by custodians\n\n  If, under the Act, the Minister places a non‑citizen child in the custody of a custodian, the custodian must give to the Minister an acknowledgement, in writing, of acceptance of responsibility for the welfare and care of the child.\n\n9  Duties and obligations of custodians\n\n (1) The custodian of a non‑citizen child must provide for the welfare and care of the child.\n\n (2) The duties and obligations of the custodian of a non‑citizen child are, as far as practicable, the same as the duties and obligations that, under the laws of the State in which the custodian lives (as in force on the day this instrument commences), a person has in relation to:\n\n (a) a child in the person’s care; or\n\n (b) a child of whom the person is the guardian or foster parent.\n\n10  Custodian to retain custody of children\n\n (1) The custodian of a non‑citizen child must not, without the consent of the Minister, place the child in the care of another person.\n\n (2) If the custodian of a non‑citizen child places the child in the care of another person, the other person must give the Minister, or a person authorised by the Minister, all reasonable help to:\n\n (a) inspect the conditions under which the child is living; and\n\n (b) find out if the duties and obligations of the custodian are being carried out.\n\n11  Consent required for non‑citizen child to leave State\n\n (1) This section applies to:\n\n (a) the custodian of a non‑citizen child; and\n\n (b) if the custodian of a non‑citizen child places the child in the care of another person—the other person.\n\n (2) The custodian and the other person must not, without the consent of the Minister:\n\n (a) take, or send, the child out of the State in which the child lives; or\n\n (b) let the child go, or be taken, out of the State in which the child lives.\n\n12  Notification of change of address or telephone number\n\n (1) If a custodian proposes to change the custodian’s address or telephone number, the custodian must notify the Minister of the proposed change at least 7 days before the change occurs.\n\n (2) However, if it is not practicable to comply with subsection (1), the custodian must notify the Minister of the proposed change, or the change, as soon as practicable.\n\n13  Notification of other events\n\n (1) The custodian of a non‑citizen child commits an offence if:\n\n (a) a notifiable event occurs in respect of the non‑citizen child; and\n\n (b) the custodian fails to:\n\n (i) immediately notify the Minister of the event; or\n\n (ii) do anything else in relation to the non‑citizen child that the Minister requires.\n\nPenalty: 1 penalty unit.\n\n (2) For the purposes of subsection (1), a notifiable event occurs in respect of a non‑citizen child if the child:\n\n (a) absconds; or\n\n (b) is taken from the custody of the child’s custodian; or\n\n (c) becomes seriously ill; or\n\n (d) is involved in a serious accident; or\n\n (e) dies.\n\nDivision 3—Register of Custodians\n\n14  Register of Custodians\n\n  The Minister must keep a Register of Custodians that contains the following:\n\n (a) the name, address, telephone number and date of birth of each custodian;\n\n (b) the name, date of birth and sex of each non‑citizen child in the custody of each custodian;\n\n (c) any other particulars that the Minister considers relevant.\n\nPart 4—Application of child welfare laws\n\n \n\n15  Effect of State laws\n\n (1) This section is made for the purposes of paragraph 12(d) of the Act.\n\n (2) Subject to subsection (3), the laws of a State under which children may become State wards do not apply in relation to a non‑citizen child.\n\n (3) If, under section 5 of the Act, the Minister has delegated to an officer or authority of a State the Minister’s powers and functions under the Act in relation to the non‑citizen child, a Minister of the State, and an officer or authority of the State, have the rights and powers in relation to the child that the Minister and the officer or authority would have if the child were, under the laws of the State as in force on the day this instrument commences:\n\n (a) in the custody and care of any person or authority; or\n\n (b) a State ward.\n\nPart 5—Preventing non‑citizen children from leaving Australia\n\n \n\n16  Notification by masters, owners and agents of aircraft and ships\n\n (1) This section is made for the purposes of paragraph 12(db) of the Act and applies to the master, owner or agent of an aircraft or ship if:\n\n (a) the aircraft or ship is travelling to a destination outside Australia; and\n\n (b) the master, owner or agent has reason to suspect that a passenger, or intending passenger, on the aircraft or ship is a non‑citizen child who is leaving the State in which the child lives without the consent of the Minister.\n\n (2) Before the aircraft or ship departs, the master, owner or agent must notify the Minister, in writing, of:\n\n (a) the name of the passenger or intending passenger; and\n\n (b) the reason for the suspicion.\n\nPart 6—Miscellaneous\n\n \n\n17  Prescribed officers for the purposes of section 4A of the Act\n\n  Each officer of the Commonwealth or a State performing functions in relation to the welfare of children and holding a delegation under subsection 5(1) of the Act is prescribed for the purposes of section 4A of the Act.\n\n18  Delegation\n\n  The Minister may, in writing, delegate all or any of the Minister’s powers or functions under this instrument to:\n\n (a) an APS employee who holds, or is acting in, an Executive Level 1 or higher position in the Department; or\n\n (b) an officer or employee of a State who:\n\n (i) exercises powers or performs functions in relation to the welfare of children; and\n\n (ii) holds, or is acting in, a position that is sufficiently senior for the officer or employee to exercise the powers, and perform the functions, delegated.\n\nSchedule 1—Repeals\n\n \n\nImmigration (Guardianship of Children) Regulations 2001\n\n1  The whole of the instrument\n\nRepeal the instrument.\n\n \n","sortOrder":0}],"analysis":{"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":false,"description":"This instrument primarily replaces the 2001 Regulations and supplies operational detail required by the Immigration (Guardianship of Children) Act 1946 (principles for directions, custodial duties, reporting, the Register, and delegation). It does not materially expand the statutory universe of who may be placed or the Minister's powers under the Act; instead it clarifies procedures and obligations (regs 6–18) without creating new substantive powers beyond those authorised by the Act."},"complexity_factors":["Relatively short instrument (18 regulations and a schedule) with focused subject matter","4 defined terms in the interpretation section (reg 5: Act, State, State ward, welfare and care)","Multiple cross‑references to the parent Act (notably sections 4AA, 4A, 5 and paragraph 12 of the Act) requiring users to read both instruments to understand scope","Several conditional rules and exceptions (e.g. reg 15(2)–(3) on when State laws apply; reg 12(1)–(2) on notice timing)","Nested duties and secondary duties (custodian duties vs duties of third persons who temporarily care for the child: regs 9–10)","Sanctioned breach with a statutory penalty (reg 13 — 1 penalty unit) introduces legal consequence complexity","Delegation rules that allow transfer of powers to senior Commonwealth and State officers (reg 18), creating operational variation","Data/administrative requirement to maintain a Register (reg 14) with unspecified additional particulars (open‑ended compliance), increasing implementation detail"],"plain_english_summary":"**What this instrument does, in plain English**\n\n- This regulation fills out how the Immigration (Guardianship of Children) Act 1946 works in practice. It sets rules about who looks after non‑citizen children placed by the Minister, what those carers (\"custodians\") must do, what the Minister and delegates can decide, and some practical steps for preventing children from leaving the State or Australia without permission. (See the definition of \"Act\" at reg 5.)\n\n**Main mechanics (what changes or requires action)**\n\n- It prescribes principles the Minister or a delegate must follow when giving a guardianship direction under section 4AA of the Act: a family relationship must have broken down irretrievably; a direction must be necessary for protection, moral safety, guidance, or other interests of the person; and the direction must not be given mainly to improve eligibility for financial assistance (reg 6).\n\n- If the Minister places a non‑citizen child with a custodian, the custodian must give a written acknowledgement accepting responsibility (reg 8). Custodians must provide for the child's welfare and care and, \"as far as practicable,\" meet the same duties as those that apply under the State laws in which they live to parents, guardians or foster parents (reg 9).\n\n- Custodians may not place the child in another person's care or allow the child to leave the State in which they live without the Minister's consent (regs 10 and 11). If a custodian places the child with someone else, that other person must assist the Minister or an authorised person to inspect living conditions and check that duties are being met (reg 10(2)).\n\n- Custodians must notify the Minister of a proposed change of address or telephone number at least 7 days beforehand, or as soon as practicable if that is not possible (reg 12).\n\n- Certain events involving the child (absconding, removal from custody, serious illness, serious accident, or death) are \"notifiable events\"; a custodian who fails to immediately notify the Minister or do other required things commits an offence punishable by 1 penalty unit (reg 13).\n\n- The Minister must keep a Register of Custodians listing custodians' contact details and each non‑citizen child's name, birth date and sex, and any other particulars the Minister considers relevant (reg 14).\n\n- State laws under which a child may become a State ward do not apply to a non‑citizen child unless the Minister has delegated powers under section 5 of the Act to a State officer or authority; in that delegated case, the State minister/officer gets the rights and powers they would have if the child were in the custody of a person or authority, or a State ward, under State law (reg 15).\n\n- Masters, owners or agents of aircraft or ships must, before departure, notify the Minister in writing of a passenger they reasonably suspect is a non‑citizen child leaving the State without Ministerial consent, and state why they suspect it (reg 16).\n\n- The regulation prescribes which State and Commonwealth officers are treated as \"prescribed officers\" for certain powers in the Act (reg 17), and allows the Minister to delegate powers under the regulation to senior APS employees (Executive Level 1 or higher) or senior State officers engaged in child welfare (reg 18).\n\n**Who is affected**\n\n- Non‑citizen children placed under the Act and the adults or authorities who act as their custodians.\n- The Minister and any departmental delegates or State officers to whom powers are delegated.\n- Masters, owners and agents of aircraft and ships (obligation to report suspected unauthorised departures).\n- State child‑welfare authorities in cases where powers are delegated to them.\n\n**Why the instrument matters (official purpose and an operational check)**\n\n- The instrument says it exists to implement specific paragraphs of the Act (see reg 7 and reg 6). The stated purposes include providing for placement and transfer of non‑citizen children and prescribing principles the Minister must follow when changing guardianship.\n\n- Practical effects and trade‑offs to note:\n  - Compliance and monitoring burden sits mainly with custodians: written acknowledgements, advance notice of address changes, immediate reporting of certain events, and a statutory offence with a penalty for failures (regs 8, 12, 13). This creates a clear incentive for custodians to maintain reporting and avoid unauthorised moves of children (regs 10–11).\n  - The Minister (and authorised delegates) holds central control over custody changes and interstate or overseas movement of these children. That concentrates decision‑making power in the Department and in delegated officers (regs 10–11, 18).\n  - The Register of Custodians centralises personal data about custodians and children; operating and securing that register is an administrative cost and an implementation risk that the regulation does not itself detail (reg 14).\n  - The regulation removes State wardship laws from applying to non‑citizen children except where the Minister has expressly delegated powers to a State officer or authority (reg 15). That clarifies which legal framework applies but can produce cross‑jurisdictional complexity when delegation occurs because State officials then act under State‑like powers for those children (reg 15(3)).\n  - The duty on transport operators to report suspected unauthorised departures places a modest compliance duty on private firms who run aircraft and ships; it relies on their ability to form and record a \"reason to suspect\" (reg 16).\n\n**Costs, incentives and implementation risks (mechanistic, not normative)**\n\n- Who pays: custodians bear most direct compliance costs (time, record‑keeping, reporting, potential inspections); the Department bears monitoring costs and the cost of maintaining the Register; transport operators bear a small reporting cost (regs 8, 12–14, 16).\n\n- Who decides: the Minister retains decision‑making power and may delegate to senior departmental or State officers; that delegation is written and may be broad (reg 18). The Minister or delegate also applies the principles for issuing guardianship directions (reg 6).\n\n- Behaviour likely to change: fewer unauthorised interstate or international movements of placed children without Ministerial consent; custodians will be more cautious about placements and address changes; transport operators may delay departures where they suspect an issue and report in writing (regs 10–11, 12, 16).\n\n- Risks and trade‑offs: administrative overheads and privacy/record‑security concerns for the Register (reg 14); possible friction with State child welfare systems where delegation occurs (reg 15); reliance on Ministerial discretion and the competence of delegates to manage placements and inspections (regs 6, 18).\n\n**Key provisions to look at for operational detail**\n\n- Principles for directions: reg 6 (relates to s 4AA of the Act).\n- Custodian obligations and offences: regs 8–13.\n- Register: reg 14.\n- Interaction with State laws and delegation to State bodies: reg 15 and reg 18.\n- Reporting requirements for transport operators: reg 16.\n\n(References in parentheses are to regulation numbers in the Immigration (Guardianship of Children) Regulations 2018.)"},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"},"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":false,"description":"This is a remake of the 2001 Regulations with the same scope. It modernises the language and structure but maintains the original purpose of operationalising the Minister's guardianship powers under the 1946 Act. The content aligns with the original intent of providing administrative machinery for the care and placement of non-citizen children."},"complexity_factors":["Short length (18 sections plus Schedule)","Minimal defined terms (only 4 definitions in section 5)","Limited cross-referencing (primarily references to the parent Act - Immigration (Guardianship of Children) Act 1946)","Straightforward conditional logic (simple 'if-then' structures without nested exceptions)","Clear structure with 6 Parts and minimal subdivisions","No complex mathematical formulas or technical calculations","Simple offence provision (section 13) with single penalty unit","Repeal of previous regulations is straightforward (Schedule 1)"],"plain_english_summary":"This law governs care for non‑citizen children in Australia when the Immigration Minister is their legal guardian, authorising placement with approved custodians, setting care and reporting duties, and keeping a Register of Custodians. It also requires carriers to report suspected unauthorised departures.\n\nIt affects unaccompanied non‑citizen children, appointed custodians, state child‑welfare agencies and transport operators, ensuring oversight of placements and preventing children leaving Australia without ministerial knowledge."}},"importantCases":[],"_links":{"self":"/api/acts/immigration-guardianship-of-children-regulations-2018","history":"/api/acts/immigration-guardianship-of-children-regulations-2018/history","analysis":"/api/acts/immigration-guardianship-of-children-regulations-2018/analysis","conflicts":"/api/acts/immigration-guardianship-of-children-regulations-2018/conflicts","importantCases":"/api/acts/immigration-guardianship-of-children-regulations-2018/important-cases","documents":"/api/acts/immigration-guardianship-of-children-regulations-2018/documents"}}