I refer to your memorandum (48/5/63) dated 16th June, 1949, and to earlier correspondence regarding the validity of the abovementioned Act and difficulties arising out of the operation of the Act in relation to State laws.

(2)  The Act provides (section 6) that the Minister shall be the guardian of the person and estate in Australia or every immigrant child until the child reaches the age of twenty one years. The Minister may place the child in the custody of a suitable custodian (section 7). The Minister may direct that the provisions of the Act shall cease to apply to and in relation to any immigrant child, or to any class of immigrant children, and the Act shall thereupon cease to apply accordingly (section 11). Except as prescribed, nothing in this Act shall affect the operation, in relation to immigrant children, of any provision of the laws of any State or Territory of the Commonwealth relating to child welfare. The Governor-General may make regulations … providing that any provision of the laws of any State or Territory of the Commonwealth relating to child welfare shall not apply in relation to immigrant children, and making provision in lieu of any such provision (section 12).

(3)  The regulations deal with responsibilities and duties of custodians (regs. 5, 6, 8, 9, 10) and include provision (in reg. 4) as to the operation of certain State laws.

(4)  Regulation 4 reads as follows:

The provisions of the Child Welfare laws of any State under which children may be committed to the custody or care of any person or authority, or may become wards or State children, or wards or children of the State or of any department or authority of the State, shall not apply in relation to any immigrant child in respect of whom the Minister has delegated his powers and functions under section six of the Act to an authority of any State, but, in the case of any such child, a Minister of State of the State or of the Commonwealth, and the authority of the State, respectively, shall have, in relation to the child, the rights and powers exercisable by him in relation to a child who, in pursuance of those laws, is committed to the custody and care of any person or authority or becomes a ward or State child or a ward or child of the State or of any department or authority of the State.

(5)  At a conference of Commonwealth and State officers, doubts were raised by State officers as to the validity of the Act and regulations and the adequacy of their provisions. Subsequently, opinions were expressed by each State Crown Solicitor, and copies of the opinions were made available to me. In this memorandum I think it is sufficient to limit consideration to the objections raised by the Crown Solicitor for New South Wales. The position in other States should be made the subject of separate advice if desired, but it would be necessary for me to be supplied with details of the objections to the scheme in those States.

(6)  The Crown Solicitor for New South Wales questions the validity of the Act on the ground that it is not a valid exercise of the ‘immigration’ power (section 51(xxvii) of the Constitution). I do not think it necessary in present circumstances to express a concluded view on this question. The High Court, by a majority decision, in the recent Chinese Deportation cases¹ reviewed the principles of earlier cases as to the period of the control which could be provided for under the ‘immigration’ power and I think it may now be assumed that that power authorizes the control of immigrants over a much more extended period than was hitherto thought to be possible. Accordingly, your Department should, I think, continue to regard the Act as validly enacted. The Act purports to authorize a limited control over immigrant children during the period of their minority but does not purport to authorise unlimited control over immigrant children to the exclusion of all State laws. The children are bound by State laws in most respects just as are other persons. Indeed, even with regard to the subject of child welfare, there is an express saving in the Act of State law, except as prescribed (section 8).

(7)  Regulation 4 prescribes the extent to which Child Welfare laws of the States shall not apply. In my view, it simply excludes such of the provisions of the Child Welfare laws of the States as relate to committal, and this may be a necessary corollary of sections 6 and 7 of the Act, which make the Minister guardian of the children and authorize him to place them in the custody of suitable persons. However, the regulation goes on to grant expressly to the Minister or his delegate by virtue of Commonwealth law the rights and powers he would have if the children were committed to the custody and care of any person. In other words, the law as to committal is excluded as State law, the Minister and an authority have the rights and powers they would have in the case of committal, and all other provisions of Child Welfare laws operate unaffected.

(8)  With regard to the specific New South Wales objections to the scheme, the Director of the Child Welfare Department suggests that the following provisions of State law may not apply in the case of immigrant children, namely:

(a)  Provisions of the Child Welfare Act of New South Wales giving jurisdiction to Children’s Courts to deal with delinquent children, and allowing inspection of children so dealt with and inspection of the premises where they reside.

(b)  Provisions of the State Child Welfare Regulations with respect to the placing of wards with foster-parents.

(c)  Provisions of the Act making it an offence to ill-treat children.

(9)  I agree that the jurisdiction of Children’s Courts to deal with delinquent children is probably taken away in the case of immigrant children. This is because of the wording of regulation 4, which excludes ‘the provisions … under which children may be committed …’. I think ‘provisions’ in this context means the whole of the State provisions setting out the circumstances and creating the offences in respect of which the Children’s Courts are given jurisdiction to commit or make other orders. However, this objection as to immigrant children not being subject to the jurisdiction of the Children’s Courts has not apparently become of practical importance in New South Wales as yet. The use of section 11 of the Commonwealth Act would, no doubt, be considered by the Minister in proper circumstances. Section 11 states that the Minister may, by order, direct that the provisions of the Act shall cease to apply to and in relation to any immigrant child, or to any class of immigrant children, specified in the order, and the Act shall thereupon cease to apply accordingly.

(10)  As to the placing of wards, section 6 of the Act makes the Minister the guardian of immigrant children, and section 7 authorises him to place an immigrant child in the custody of a suitable person who shall thereupon become the custodian of the child. Regulation 6 prescribes the duties of custodians. The powers of the Minister are delegated to the appropriate State authorities. It is not clear to me in what respect these provisions are considered to be inadequate.

(11)  As to ill-treatment of immigrant children, I think sections 148 and 149, the sections of the State Act referred to by the Director, apply in the case of immigrant children, for the reasons set out in paragraph 7 above.

(12)  The queries raised in paragraph 5 of your memorandum of 4th May, may be answered simply. Unless the child is an ‘evacuee child’ or an ‘immigrant child’ as defined in section 4, the Act does not apply to it. In the case mentioned by the Victorian Authority, the children are not covered by the definition and the provisions governing their custody and control would need to be sought in State law. Under the present law, it would not, therefore be in order to make regulations purporting to govern these children.

(13)  Your memorandum of 14th September, 1949, raises a further question for advice, whether it is necessary for the Minister to make fresh delegations of his powers under the Act, following the enlargement of such powers by the amending Act of 1948. In my opinion, fresh delegations should be made, so that all doubt will be removed as to the authority of the delegates.

[Vol. 39, p. 1]

Note: The signature on the original opinion is illegible.

¹ Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533.