Immigration (Guardianship of Children) Regulations 2018

The regulations operate within a tight statutory architecture. The “Act” is the Immigration (Guardianship of Children) Act 1946. “State” includes the Australian Capital Territory and the Northern Territory, which is a standard deeming provision for Commonwealth laws that apply to the territories as if they were States.

A “State ward” is defined as a child for whose welfare and care a State has assumed responsibility, however described. This definition is used in the provision (section 15) that excludes non‑citizen children from becoming State wards unless the Minister has delegated to a State authority.

“Welfare and care” is expansively defined to include custody, control, maintenance, education, training and employment. This is the scope of the duty custodians assume. Because the regulations do not define “custodian”, that term takes its meaning from the Act - the person (including a body corporate) into whose custody the Minister places a non‑citizen child under section 6 of the Act.

The “non‑citizen child” is defined in the Act as a person under 18 who is not an Australian citizen and who enters Australia in circumstances that bring them within the guardianship of the Minister. The regulations do not alter that definition.

The five “notifiable events” in section 13(2) are absconding, being taken from custody, serious illness, serious accident, or death. This is a closed list; only those events trigger the immediate notification duty.

The Register of Custodians under section 14 is a centralised database. The Minister must include the custodian’s name, address, telephone number and date of birth, the child’s name, date of birth and sex, and any other particulars the Minister “considers relevant”. That last phrase confers broad discretion to add information without further legislative authorisation.

The principles in section 6 for directions under section 4AA of the Act are notable because they impose an “irretrievable breakdown” threshold before the Minister can place a child with a relative. This is more restrictive than the Act itself, which merely requires that the child be in Australia and the Minister considers it desirable. The regulations also preclude a direction whose principal purpose is financial assistance eligibility - a guard against strategic behaviour by families seeking Commonwealth or State payments.

The “prescribed officer” under section 17 is defined as any Commonwealth or State officer performing child‑welfare functions who holds a delegation under section 5(1) of the Act. That section of the Act allows the Minister to delegate powers and functions in relation to the guardianship of non‑citizen children. The regulations thus link the prescribed officer status directly to the Act’s delegation framework.

The delegation power in section 18 extends to APS employees at Executive Level 1 or higher and to State officers or employees who exercise child‑welfare functions and are “sufficiently senior”. That last phrase introduces some uncertainty: what counts as “sufficiently senior” is not defined, leaving it to the Minister to assess on a case‑by‑case basis.

These concepts together establish a system where the Commonwealth retains ultimate control over non‑citizen children but can delegate operational responsibility to State officers or private custodians, with detailed notification and consent obligations to maintain visibility.

The primary population affected is non‑citizen children within the Minister’s guardianship under the Act. These are typically unaccompanied minors who arrive in Australia without a parent or guardian, detainees, or children in immigration detention who are released into community care. The regulations govern every aspect of their placement and supervision while they remain under the Minister’s guardianship.

Custodians are the most directly affected group. A custodian can be an individual family member (if section 4AA of the Act applies), a foster carer, a community‑based organisation contracted by the Department, or a residential care facility. The regulations impose a set of ongoing administrative burdens: written acknowledgement, a duty of care measured against frozen 2019 State law standards, obligations to seek Ministerial consent before changing the child’s placement or letting them leave the State, seven‑day advance notice of address changes, and immediate reporting of notifiable events. These duties apply regardless of whether the custodian is a private individual or a large organisation. For private individuals, the compliance burden - especially the need to contact the Minister for consent to interstate travel or short‑term care arrangements - may be significant and unfamiliar.

State child‑welfare authorities are affected indirectly. Section 15 excludes non‑citizen children from becoming State wards unless the Minister has delegated powers to a State officer. That means State child protection laws that would ordinarily apply to any child in need of care do not apply to these children. Instead, the Commonwealth retains exclusive jurisdiction. Only if the Minister decides to delegate to a State authority do that State’s laws snap back into operation, treating the child as if they were a State ward. This creates a patchwork: in some cases a non‑citizen child may be in the same foster home as a State ward but subject to a completely different legal regime.

Masters, owners and agents of aircraft and ships travelling outside Australia are affected by section 16. They must notify the Minister before departure if they have reason to suspect a passenger is a non‑citizen child leaving the State without consent. This imposes a judgment call on airline and shipping staff, who must assess whether a child passenger might be a non‑citizen under the Act - a task that requires knowledge of immigration status they may not readily have. There is no penalty specified in the regulations for failing to notify, but the Act may provide a penalty for failure to comply with regulations.

APS employees at Executive Level 1 or higher and senior State child‑welfare officers can be delegates under section 18. They will exercise powers under the regulations, such as giving consent for the child to leave the State or for placement changes. This expands the number of decision‑makers, which may improve responsiveness but also increases the risk of inconsistent decisions.

The Minister and the Department are affected as the central authority maintaining the Register, receiving notifications, giving consents, and deciding on directions under section 4AA. The Register itself is a privacy‑sensitive database; the Minister can add any “relevant” particulars, which could include medical information, behavioural reports, or contact details of family members. There is no published access regime for that information.

Finally, the relative referred to in section 4AA of the Act - the Australian citizen or permanent resident who may seek guardianship of the child - is affected because the regulations add an “irretrievable breakdown” prerequisite and a prohibition on obtaining a direction mainly for financial assistance. That limits the circumstances in which a relative can obtain guardianship orders.

The regulations create a web of duties on custodians and transport operators, with rights largely concentrated in the Minister.

The most important duty is the custodian’s obligation to provide for the child’s welfare and care (section 9(1)). This duty is not defined in the regulations itself; instead, section 9(2) incorporates by reference the duties and obligations that, under the laws of the State in which the custodian lives as at 1 October 2019, a person has in relation to a child in their care or a child of whom they are the guardian or foster parent. This is a static reference - it freezes the content of the duty to the law on that commencement date. If a State subsequently changes its child‑welfare standards (for example, raising the standard of care required of foster parents), the custodian’s duty under the regulations does not change. This creates a potential gap where the Commonwealth’s standard of care may diverge from the standard applicable to other children in the same State.

Custodians also have a duty not to place the child with another person without the Minister’s consent (section 10(1)). This includes temporary placements such as a weekend with a friend. If the custodian does place the child with another person, that other person has a duty to give the Minister or authorised person reasonable help to inspect the child’s living conditions and to find out whether the custodian’s duties are being carried out (section 10(2)).

The duty not to let the child leave the State without Ministerial consent (section 11) applies to both the custodian and any person with whom the child is placed. This is a broad prohibition - it covers taking, sending, letting go, or being taken out of the State. There is no exception for medical emergencies or family visits across a border. Any out‑of‑State travel requires prior written consent.

The duty to notify a change of address or telephone number (section 12) requires the custodian to give at least seven days’ notice. If that is not practicable, notification must occur “as soon as practicable”. This is an ongoing obligation that triggers each time the custodian moves or changes their phone number.

Section 13 creates an offence for failing to immediately notify the Minister of a notifiable event (absconding, being taken from custody, serious illness, serious accident, death). The duty is to “immediately notify the Minister” and to “do anything else in relation to the non‑citizen child that the Minister requires”. The latter is a wide‑ranging power: the Minister can give ad‑hoc directions requiring the custodian to take specific actions in response to the event, and non‑compliance is also an offence. The penalty is only 1 penalty unit (currently $313), but the open‑ended nature of the Minister’s require‑anything power creates uncertainty.

The master, owner or agent of an aircraft or ship has a duty to notify the Minister in writing before departure if they have reason to suspect a passenger is a non‑citizen child leaving the State without consent (section 16). This duty is triggered by a subjective suspicion: “reason to suspect”. The notification must include the passenger’s name and the reason for the suspicion. There is no immunity for good‑faith reporting; the regulations do not address data‑protection issues.

The Minister has a duty to keep a Register of Custodians (section 14), but the content of the Register is largely at the Minister’s discretion via the “any other particulars that the Minister considers relevant” clause. The Minister also has the power to delegate (section 18) to specified officers.

Three rights are notable. First, a person receiving a child from a custodian has no right to refuse inspection under section 10(2); they must cooperate. Second, State authorities to whom the Minister has delegated powers under section 5 of the Act have the same rights and powers as they would have if the child were a State ward (section 15(3)). That gives those authorities statutory tools to intervene. Third, individuals who are the subject of a delegation under section 18 have the right to exercise the Minister’s powers under the regulations.

The regulations do not confer any right on the child to challenge a placement decision, to access the Register, or to appeal a Ministerial direction. They are silent on complaint mechanisms.

Only one specific penalty appears in the regulations: section 13(1) makes it an offence for a custodian to fail to immediately notify the Minister of a notifiable event or to fail to do anything else the Minister requires in relation to that event. The penalty is 1 penalty unit. Under section 4AA of the Crimes Act 1914, a penalty unit is currently $313, so the maximum fine is $313. This is a trivial monetary amount relative to the compliance costs involved. It suggests that the primary enforcement mechanism is not the criminal law but rather the Minister’s underlying power under the Act to remove the child from the custodian’s care or to refuse future placements. The offence is likely a backstop for egregious non‑compliance.

No other penalty is provided for breach of other duties. For example, a custodian who places a child with another person without consent (contravening section 10) does not face a penalty under the regulations. Similarly, a custodian who lets the child leave the State without consent (contravening section 11) is not penalised under the regulations. The drafters chose to leave those breaches to the general law: the Minister could apply for a court order or revoke the custody arrangement. The absence of penalties does not mean the duties are unenforceable; it means enforcement relies on the Minister’s administrative discretion and, ultimately, on the Act’s own penalty provisions (which the regulations do not reproduce).

The duty on masters, owners and agents under section 16 to notify suspected travel without consent also carries no penalty in the regulations. It is possible that the Act itself imposes a penalty for failure to comply with regulations, but the source does not disclose that.

The Register of Custodians has no penalty for non‑maintenance by the Minister; it is a duty with no enforcement mechanism specified.

From an enforcement perspective, the regulations create a low‑risk environment for custodians to ignore certain duties, given the negligible fine for the only penalised offence and the absence of penalties for other key obligations. However, the relationship between custodian and Minister is not contractual; it is statutory. The Minister can effectively terminate the arrangement at any time, which is a more potent sanction than any fine.

There is no provision for infringement notices, strict liability, or vicarious liability. The offence in section 13 is likely one of strict liability (no fault element) given its structure, but the regulations do not say so explicitly. If prosecuted, the custodian would bear the evidentiary burden of proving a reasonable excuse, if available.

The delegation provisions (section 18) do not specify enforcement mechanisms for delegates who fail to act; that would be a matter of administrative law.

Overall, the enforcement architecture is weak in monetary terms, relying on administrative leverage rather than punitive sanctions.

The regulations sit under the Immigration (Guardianship of Children) Act 1946, a relatively brief Act that confers guardianship of non‑citizen children on the Minister and gives the Minister powers to place children, delegate functions, and make regulations. These regulations fill out sections 4AA, 12, and 4A of the Act. Sections 4AA and 4A are the primary enabling provisions: 4AA deals with directions placing a child with a relative, and 4A deals with prescribed officers who may take control of a non‑citizen child without a court order in certain circumstances.

The most important interaction with other laws is with State child‑welfare legislation. Section 15(2) expressly provides that State laws under which children become State wards do not apply to non‑citizen children. This precludes State child protection authorities from bringing a non‑citizen child into the State care system under the usual child‑protection grounds. However, if the Minister has delegated powers under section 5 of the Act to a State officer or authority, then section 15(3) makes the relevant State laws apply as if the child were a State ward. This creates a binary switch: either the State regime is entirely excluded, or it applies in full. The decision to delegate is at the Minister’s discretion.

For the custodian’s duty, section 9(2) incorporates State child‑welfare duties as they existed on 1 October 2019. That means the custodian’s obligations are partially extraterritorial: the content of the duty is defined by the law of the State where the custodian lives, even if the child lives in a different State or is moved interstate. The regulation freezes that law at commencement, so subsequent State reforms affecting, say, mandatory reporting obligations or standards of care do not automatically apply to non‑citizen children.

The regulations also interact with migration law indirectly. Non‑citizen children under the Act are by definition not Australian citizens and are subject to the Migration Act 1958 and its regulations. The guardianship regime does not alter the child’s visa status or liability to detention. A non‑citizen child can still be held in immigration detention, although the Minister as guardian has additional obligations. The regulations do not address that interface.

The offence in section 13 interacts with State criminal laws (e.g., child abandonment, neglect). Because it is a Commonwealth offence, a prosecution would be under the Criminal Code and would likely exclude State prosecution for the same conduct under the principle of double jeopardy.

Section 16 interacts with transport safety and carrier liability laws. The master, owner or agent must report suspicion of unauthorised travel, but the regulations do not give them authority to prevent departure or to detain a passenger. They only require notification to the Minister. The practical effectiveness relies on the Minister being able to act on that notice before departure.

The delegation power in section 18 allows the Minister to delegate to State officers who exercise child‑welfare functions. Those delegates then exercise Commonwealth powers under Commonwealth law. Their decisions could be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977, not under State administrative law.

Finally, the regulations interact with privacy laws. The Register of Custodians collects personal information (name, address, date of birth, telephone number), and child information (name, date of birth, sex). The Privacy Act 1988 would apply to the Department’s handling of that data, but the regulations do not contain any specific privacy protections or access rights for the individuals concerned.

These regulations were made on 6 December 2018 and, by the table in section 2, commenced on 1 October 2019. The responsible minister was David Coleman, Minister for Immigration, Citizenship and Multicultural Affairs. The Governor‑General was represented by the Administrator, Paul de Jersey AC.

The regulations repealed and replaced the Immigration (Guardianship of Children) Regulations 2001 in their entirety, as shown in Schedule 1. No subsequent amendments appear in the source text, which is the version as originally made. As at the date of this analysis, no amending instruments have been identified from the source.

The difference between the 2001 and 2018 regulations can be partially inferred. The 2018 version updates the reference date for State law duties from an earlier date (likely the 2001 commencement) to 1 October 2019. It also clarifies the principles for directions under section 4AA of the Act, which was a new provision inserted into the Act after the 2001 regulations. The 2018 regulations also contain updated delegation provisions that explicitly include APS employees at Executive Level 1 or higher (the 2001 version may have had different delegation parameters). The notification requirements for aircraft and ships were also present in the 2001 regulations, as was the Register of Custodians, but the precise details may have changed.

The regulations have been in force without amendment for over five years. That stability suggests the framework is not subject to frequent legislative tinkering, but it also means that State child‑welfare laws have evolved since the 2019 freeze, potentially creating a gap between the duties custodians owe under the regulations and the duties they would owe under current State law.

The source text contains no references to litigation concerning these regulations or their predecessor. No cases are cited in the regulations themselves. It is possible that the regulations have not been tested in court, or that any litigation has occurred under the parent Act rather than the regulations.

Given the nature of the regime - children in a vulnerable position, often in immigration detention - there have been numerous Federal Court and High Court cases on the Minister’s powers and duties under the Act, but those typically involve interpretation of the Act itself, not the regulations. For example, cases have considered whether the Minister’s guardianship duty extends to children in immigration detention, or whether the Minister must consent to medical treatment. However, the regulations do not cite any such cases.

The principles in section 6 (irretrievable breakdown, necessity, no principal financial purpose) are likely to generate disputes if the Minister proposes a direction under section 4AA. A relative who is refused a direction might seek judicial review on the ground that the Minister misapplied the principles. No such reported cases are identified from the source.

The powers of prescribed officers under section 4A of the Act (who may take control of a non‑citizen child without a court order) have been the subject of some academic commentary and potential litigation, but again no cases are referenced in the regulations.

For a deep dive, it is honest to say that the litigation history of these regulations specifically is limited or unknown from the source. This is not unusual for delegated legislation that is largely administrative. The main legal action would likely involve the Act itself or challenges to administrative decisions under the regulations, which would be recorded under the Act’s name rather than the regulations’.

Several features of the regulations pose traps for the unwary.

The frozen State law reference in section 9(2) is the biggest structural risk. The custodian’s duty is what it was in the relevant State on 1 October 2019. A custodian who follows current State law may be doing more than required, but equally, a custodian who relies on current State law to reduce their obligations may be falling short of the 2019 standard if that standard was higher. Conversely, if a State has raised its standards since 2019, the custodian under the regulations is not legally obliged to meet them. This creates a confusing overlay where different standards apply to different children in the same home.

The open‑ended power in section 13(1)(b)(ii) - “do anything else in relation to the non‑citizen child that the Minister requires” - is a broad discretion. Combined with the immediate notification duty, the Minister can effectively issue ad‑hoc directions that become legal obligations, backed by a criminal penalty. The custodian has no statutory avenue to question reasonableness before compliance.

Section 10(1) prohibits placing the child with another person without the Minister’s consent. The term “place” is not defined. Does it cover a sleepover at a friend’s house? A school excursion that involves overnight stay? A medical appointment where the child is left with a specialist? Custodians must interpret this without guidance, and failure to seek consent for what they consider a routine arrangement could be a breach.

Section 11’s prohibition on letting the child leave the State without consent applies to both the custodian and any person with whom the child is placed. This catches cross‑border medical treatment, family visits, and even a day trip across a State border. The Minister’s consent must be obtained in advance; there is no emergency exception.

The notification obligation in section 12 requires seven days’ notice of a change of address or telephone number. If a custodian moves urgently (e.g., because of domestic violence or property damage), the “as soon as practicable” exception applies, but the custodian bears the risk of determining whether it is “practicable” to give seven days’ notice. Wrong assessment could be a breach.

The Register of Custodians (section 14) includes “any other particulars that the Minister considers relevant”. This could extend to mental health information, financial details, or criminal record checks. There is no limit or review mechanism. The custodian has no right to see or correct the register.

The definition of “welfare and care” in section 5 includes employment. That means a custodian may be responsible for the child’s employment - a significant obligation if the child is old enough to work. It also means the Minister could potentially give directions about the child’s employment.

The delegation power in section 18 allows delegation to State officers who are “sufficiently senior” without further definition. This could lead to disputes about whether a particular officer has authority to act.

The master, owner or agent’s duty under section 16 is triggered by “reason to suspect” that a passenger is a non‑citizen child leaving without consent. There is no safe harbour for incorrect suspicion. A mistaken report could expose the reporter to liability under privacy or defamation laws, while failing to report could breach the duty. The regulation does not specify whether the report must be made even if the departure is imminent.

Finally, the repeal of the 2001 regulations (Schedule 1) means that any practices built around the old framework may no longer be valid. For example, consents given under the old regulations would lapse. Transitional provisions are absent from the source.

A custodian under these regulations must adopt a systematic compliance approach. The steps are practical but burdensome.

First, immediately upon placement, the custodian must give the Minister a written acknowledgement accepting responsibility for the child’s welfare and care (section 8). This is a one‑off document but must be kept on record.

Second, the custodian must identify the State child‑welfare laws that applied on 1 October 2019 in the State where they live. Those laws define the standard of care. Because those laws may no longer be current, the custodian cannot rely on internet searches for the current law. They need to obtain a copy of the State legislation as it stood on 1 October 2019, which may require accessing archival versions. The Department may provide guidance, but the regulations do not require it.

Third, the custodian must not place the child with any other person without the Minister’s prior written consent. This includes short‑term arrangements. The custodian should seek consent in advance for any foreseeable scenario (e.g., respite care, school camps, family visits). If the child is placed with another person (with consent), that person must be informed of their duty to assist Ministerial inspections under section 10(2).

Fourth, the custodian must not allow the child to leave the State without written consent. Any planned travel, even to a neighbouring suburb across the border, requires a consent request. The request should include details of the travel, supervision, and duration. There is no standard form in the regulations; the custodian must write to the Minister.

Fifth, the custodian must notify the Minister of any change of address or telephone number at least seven days before the change. This is a calendar obligation. The custodian should set a diary reminder. If an emergency move is necessary, the custodian must notify as soon as practicable and document why the seven‑day notice was not possible.

Sixth, the custodian must monitor for notifiable events (abscond, taken, serious illness, serious accident, death). On occurrence, the custodian must immediately notify the Minister - by phone or email, then follow up in writing. The custodian must also comply with any further directions the Minister gives in response. Compliance requires 24‑hour availability.

Seventh, the custodian must be aware that failure to notify a notifiable event or to comply with a Ministerial requirement is a criminal offence with a potential $313 fine. The risk of prosecution is low, but the reputational and relationship risk with the Department is high.

The Minister must keep the Register accurate. Custodians should check their entries periodically if possible, but the regulations do not grant access.

Transport operators subject to section 16 should train staff to identify potential non‑citizen children. They should have a reporting procedure to the Minister that can be completed before departure. A standard form with passenger name and reason for suspicion should be ready.

State officers who receive a delegation under section 18 must be appointed in writing and should familiarise themselves with the Act and the regulations. They must exercise the delegated powers in accordance with any Ministerial guidelines.

Overall, the most cost‑effective compliance strategy for custodians is to treat the Minister as a co‑decision‑maker for any significant change in the child’s situation, to document every communication, and to maintain a file with the 2019 State law references. The regulations impose a high administrative burden relative to the small number of children involved, but non‑compliance risks loss of the placement and reputational harm with the Department.