Opinion No. 1766
GUARDIANSHIP OF IMMIGRANT CHILDREN
POWER OF COMMONWEALTH AND STATES TO ENACT LAWS PROVIDING FOR GUARDIANSHIP OF CHILD IMMIGRANTS FROM UNITED KINGDOM: COMMONWEALTH LEGISLATIVE POWER WITH RESPECT TO IMMIGRATION
CONSTITUTION s 51(xxvii): NATIONAL SECURITY (OVERSEAS CHILDREN) REGULATIONS
02 April 1946
The Secretary, Department of Immigration
I refer to your memorandum of 8th March, 1946, asking for advice as to the power of the Commonwealth to enact legislation empowering your Minister to act as the legal guardian of children evacuated to Australia from the United Kingdom under the National Security (Overseas Children) Regulations until they are twenty-one years of age.
Under the Constitution, the Parliament of the Commonwealth has power to legislate with regard to ‘immigration’ in its widest sense. The children in question came to Australia as a temporary expedient and without any intention of settling or residing permanently in the Commonwealth. In my view, it would be reasonable to treat them as immigrants until they attain their majority and, for this purpose, I am of opinion that the Commonwealth could pass a law providing that your Minister shall act as the legal guardian of the person of any such child until the child reaches the age of twenty-one years. On attaining that age the migrant will be in a position to decide for himself whether he will settle permanently in Australia or not.
In the absence of any Commonwealth law on the subject, it would be open for any State to legislate with respect to the guardianship of these overseas children.
The question as to whether the Commonwealth should enact legislation vesting the guardianship of such children in your Minister or whether the guardianship should be vested by State law in the appropriate State authority is a matter of policy as to which I am not in a position to express any opinion.
[Vol. 37, p. 74]