Amendments to the Immigration (Guardianship of Children) Act 1946 to remove discrimination against same-sex de facto couples and their children

15 March 2009 Legislation Change

Client summary

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 (the Amending Act) amends the Immigration (Guardianship of Children) Act 1946 (the Act). The Amending Act received Royal Assent on 9 December 2008. Part 4 of Schedule 10 to the Amending Act will commence by proclamation on 15 March 2009.

The Amending Act amends the Act to remove discrimination between same-sex and opposite-sex de facto couples, and their children.

Affected legislation

The following provisions of the Act are amended:

• Section 4
• Section 6

Additional information:

The Act provides for an unaccompanied minor entering Australia to have a legal guardian in Australia. The amendments to the Act will enable de facto couples, whether same-sex or opposite-sex, and married couples, who have children as a result of artificial conception procedures with the use of donated genetic material or through a surrogacy arrangement under a prescribed State or Territory law (both as recognised under the Family Law Act 1975), to be recognised as the parents of the non-citizen minor. These amendments also provide for relatives of the minor to include those who would be relatives if they were married to the minor’s blood relatives but who are instead in a de facto relationship with the minor’s blood relative (including a same-sex de facto relationship).

Application of the new provisions:

The amendments apply in relation to persons under 18 who enter Australia on or after 15 March 2009.

Forms: The following form will be affected:

• Form 1258 - Agreement to undertake care of an unaccompanied humanitarian minor.

Instructions: PAM3: Immigration (Guardianship of Children) – I(GOC) will be amended to reflect these changes.