Bills Digest No. 175 2001-02
Family Law Amendment (Child Protection Convention) Bill
2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Family Law Amendment (Child Protection
Convention) Bill 2002
Date Introduced: 13 March 2002
House: House of Representatives
Portfolio: Attorney-General
Commencement: The day the Child Protection
Convention enters into force in Australia
Purpose
To amend the
Family Law Act 1975 so that is consistent with the
Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in respect of Parental Responsibility
and Measures for the Protection of Children ('Child Protection
Convention') thus enabling Australia to ratify that Convention.
The Bill is intended to implement the Child
Protection Convention. The executive power of the Commonwealth,
found in section 61 of the Constitution, gives the Australian
Government the power to enter into international treaties. While
Australia is bound in international law to observe the terms of a
treaty once ratification or accession has occurred, the treaty does
not become enforceable in Australian domestic law unless and until
legislative action is taken to implement it.
Section 51(xxix) of the Commonwealth
Constitution, the external affairs power, supports legislation
dealing with matters physically external to Australia, foreign
nations, or which implements an international treaty or convention
to which Australia is a party. In 1995, the Senate Legal and
Constitutional References Committee described limits to the power
in the following way:
5.64 Some limitations have been identified to
the scope of the power. The power is subject to:
a) those limitations that restrict federal power
generally including express constitutional guarantees (such as
freedom of interstate trade) and implied constitutional guarantees
(such as the prohibition on legislation discriminating against the
States or preventing a State from continuing to exist and function
as such);
b) the requirement that the treaty be genuine or
bona fide; and the requirement that a law implementing the treaty
be one that can be regarded as a reasonable and appropriate means
of giving effect to its object.
5.65 The Attorney-General s Department s
submission has indicated that the power extends not only to support
a law calculated to discharge Australia s known obligations, but
also to those reasonably apprehended. The power may also extend to
compliance with the recommendations of international agencies and
the pursuit of international objectives which have not been reduced
to binding obligations.(2)
Importantly, as the Senate Legal and
Constitutional Committee emphasised in 2000, the power extends to
the implementation of treaties and is not confined to the
implementation of treaty obligations per se.(3)
The Committee quoted the judgment of Deane J in Richardson v.
Forestry Commission in which His Honour said:.
I am of the view that it is not necessary for a
treaty to which Australia is a party to impose an obligation upon
Australia as a condition precedent to engaging the external affairs
power.(4)
Lastly, a section 51(xxix) law need not
implement a treaty in full. Partial implementation will not result
in constitutional invalidity so long as the law can be
characterised as a measure implementing the
treaty.(5)
Australia is not yet a party to the Child
Protection Convention. However, the provisions in the Bill that
implement the Convention cannot commence until the Convention
enters into force - i.e. 3 months after ratification
(Clause 2, item 2 of the table and article
61 of the Convention).
Treaty-making processes in Australia
In 1996, the Howard Government announced changes
to Australia s treaty-making processes.(6) The reforms
introduced in 1996 included the following:
-
- treaties are tabled in Parliament at least 15 sitting days
before final treaty action is taken, except in urgent cases
-
- a National Interest Analysis (NIA) is tabled with the treaty.
The NIA contains a statement of why Australia should become a party
to the treaty, describes any foreseeable impact this may have, the
obligations contained in the treaty and how it is proposed to
implement the treaty, and summarises the views of the States,
Territories and any non-government organisations that have been
consulted
-
- treaties and their accompanying NIAs are considered by the
Joint Standing Committee on Treaties which usually reports to
Parliament within 15 sitting days.(7)
-
- The Child Protection Convention and its NIA(8) were
tabled in the Parliament on 12 March 2002. The Joint Standing
Committee on Treaties tabled its report on 24 June
2002.(9)
The Child Protection Convention was developed by
the Hague Conference on Private International Law to address the
problems and limitations of the 1961 Convention on the Powers
of Authorities and the Law Applicable in Respect of the Protection
of Minors. One of the principal difficulties encountered with
the 1961 Convention was the fact that it shared competing
jurisdiction over the protection of children between the
authorities in the child s habitual residence country and in the
child s country of nationality, as well as the authorities of the
State where the child was actually present. The Convention also
failed in cases where the child had dual nationality and there was
conflict between the authorities of the two states of the child s
nationality. The 1961 Convention was further hindered by the lack
of co-operation between national authorities and the absence of
provisions for enforcement in one Contracting State of measures of
protection taken in another. Australia was never a party to this
Convention.
Aims of the Child Protection
Convention
The Child Protection Convention aims to address
conflicts in jurisdiction between the authorities of different
countries in taking measures to protect children(10). It
requires contracting states to accept limitations on their
jurisdiction in order to avoid conflicts over jurisdictions,
applicable law, and recognition and enforcement measures for the
protection of children. It also puts in place rules for
facilitating cooperation between Convention
states.(11)
The preamble to the Convention states that a
primary consideration is to be the best interests of the child and
that the provisions are to take account of the Convention on the
Rights of the Child.
The objects of the Child Protection Convention,
set out in Article 1 are:
-
- to determine which State has jurisdiction to take measures for
the protection of the person or property of the child
-
- to determine which law is to be applied in the State exercising
jurisdiction
-
- to determine the law applicable to parental responsibility
-
- to provide for the recognition and enforcement of measures of
protection in all Contracting States, and
-
- to establish co-operation between the authorities of the
Contracting States.(12)
The Convention applies to children under the age
of 18 years. The measures of protection which fall within the scope
of the Convention include:
-
- the attribution, exercise, termination or restriction of
parental responsibility, as well as its delegation
-
- rights of custody and access
-
- guardianship and curatorship
-
- the designation and functions of any person or body having
charge of the child s person or property
-
- the placement of the child in a foster family or in
institutional care
-
- the supervision by a public authority of the care of a child by
any person having charge of the child, and
-
- the administration, conservation or disposal of the child s
property.(13)
The Convention is limited in its scope and does
not apply to the establishment or contesting of a parent-child
relationship, decisions on adoption, the names of the child,
emancipation, maintenance obligations, trusts or succession, social
security, public measures of education or health, penal offences
committed by children and decisions on the right of asylum and on
immigration.(14)
The Child Protection Convention entered into
force on 1 January 2002 when in accordance with the rules it had
been ratified by three countries namely Monaco, the Czech Republic
and Slovakia.
Australia is not yet a party to this Convention.
However the implications of ratification have been widely
canvassed. A Commonwealth State Working Group was established in
1997 and published two Issues Papers looking at the implications of
ratification for State and Territory legislation(15) and
for Commonwealth legislation.(16) The Working Group
reported in April 1999(17) and proposed amendments to
Commonwealth, State and Territory laws. The amendments the Working
Group proposed to Commonwealth legislation were incorporated in the
Family Law Amendment (Child Protection Convention) Bill 2001
introduced into the House of Representatives on 20 September 2001.
However, that Bill had not passed either Chamber before the
Parliament was prorogued for the 2001 General Election and,
consequently, it lapsed. This Bill (ie the 2002 Bill) is written in
exactly the same terms as the 2001 Bill.
In addition to this Bill, State and Territory
legislation is also required to implement the Convention provisions
concerning protection of children from abuse and neglect in
international cases.
The Attorney-General in his Second Reading
Speech described the benefits of ratification:
ratification of the Convention would be of
significant benefit to Australian families, and in particular to
children who are the subject of international family law or child
protection litigation.
Existing family law litigation across
international boundaries is subject to uncertainty as to
jurisdiction and unpredictability in relation to the enforcement of
orders abroad. The convention attempts to overcome these
uncertainties by providing clear jurisdictional rules and by
encouraging cooperation between authorities in different countries
to protect the best interests of children affected by disputes over
parental responsibility.(18)
They were summarised in the issues paper on
family law as follows:
Ratification of the Convention would have
significant benefits for Australia, including:
-
- clarifying of responsibilities and eliminating conflicts in
jurisdiction between Australian and overseas courts in family law
and child protection cases;
-
- ensuring recognition and enforcement abroad of Australian court
orders and other measures of protection where appropriate;
-
- providing mechanisms for child protection authorities in
Australia and other countries to co-operate in relation to
protective measures for an Australian child abroad, or in relation
to a child returning to another country who is subject to
Australian protective measures.(19)
In the view of the Australian delegation to the
Hague Commission the benefits of ratification will be achieved
without significant weakening of existing Australian laws.
Australian authorities would have significant
latitude to give effect to the Convention in a way that ensured
that Australia gained the benefits of the Convention without
undermining the operation of existing family and child protection
laws in Australia.(20)
According to the Explanatory Memorandum to the
Bill, ratification of the Convention is not expected to have an
impact on Commonwealth expenditure.(21)
Items 1-24 are consequential
amendments to ensure that existing provisions (such as parenting
orders(22) and location orders(23)) are
consistent with the new provisions dealing with the Child
Protection Convention.
Item 25 inserts a new
Division 4 'International protection of children' into the
Family Law Act 1975. This Division, which will give effect
to the Child Protection Convention is divided into Subdivisions
A-G.
New section 111CA is a
definitions section relevant to the Child Protection Convention. It
includes definitions of 'Convention country', 'country of refuge',
'refugee', and 'parental responsibility'.
Expressions used in the new provisions are to
have the same meaning as they have in the Convention (new
subsection 111CA(2)). Thus the Convention is relevant in
determining the meaning of words such as 'child' (article 2),
'measure' (articles 3 and 4), 'urgency' (article 11) and 'public
policy' (article 23.2(d))(24). It is of note that
neither the Bill nor the Convention provide a definition of a key
concept habitual residence (25).
New section 111CB sets out how
the Convention, as incorporated in new Division 4, will interact
with other provisions in the Family Law Act. The effect of
new subsection 111CB(1) is that, to the extent of
any inconsistency, the provisions in Division 4 will prevail over
provisions elsewhere in the Act. This rule is qualified in regard
to matters dealing with State child welfare laws and the Hague
Convention on Child Abduction 1980.
In relation to state welfare laws, section 69ZK
of the Act provides that neither the Family Law Act nor any order
under the Act affects State and Territory child welfare law nor the
orders made under them. Thus in the event of a conflict between a
State child protection order and a parenting order made under the
Family Law Act, the former prevails. Similarly, if a State child
protection order conflicts with a foreign parenting order
registered under the new regulations the State order will prevail
(new subsection 111CB(2)). However if a State
child protection order conflicts with a foreign child
protection order registered under the new regulations, the
conflict must be resolved according to the rules of the Convention
(new subsection 111CB(3)).
Section 111B of the Act, and the related
regulations implement the Hague Convention on Child Abduction 1980.
Article 50 of the Child Protection Convention states that in the
event of a conflict between the two conventions, the Child
Abduction Convention prevails. New subsection
111CB(2) confirms this arrangement.
Under Article 5 of the Convention, jurisdiction
lies, with a number of exceptions, with the country in which the
child is habitually resident.
The concept of the child s habitual residence is
central to the issue of jurisdiction and the Child Protection
Convention is based on the premise that, in general, the country of
habitual residence should continue to have responsibility for
making decisions. An example of how the concept of habitual
residence might operate in practice could be:
a child resides with the mother in Australia by
court order. Australia is the place of the child s habitual
residence. The child goes on a contact visit to the father who
lives in a country which has ratified the Child Protection
Convention, for example the Czech Republic. If the father refuses
to return tbe child and applies to a court in the Czech Republic
for custody of the child, the Czech Republic court is prevented
from making any final orders.
if the mother has evidence that the child is at
risk of harm from the father s family, then upon request from
Australia, the Czech Republic authorities must take protective
measures for the child.(26)
The centrality of the concept of habitual
residence in determining jurisdiction flows from the recognition
that the authorities in a child's habitual residence are, in
general, better able to assess the child's situation and to enforce
any orders made for the child's property. This view already
underlies the provisions of the Family Law Act and informs many
court decisions in Australia when there is a dispute about
jurisdiction.(27)
Habitual residence is not defined in the
Convention. This was an issue raised in a recent Senate Committee
inquiry into the Bill.(28) However, as the
Attorney-General's Department explained to the Committee, the term
is widely used but not defined in legislation in Australia and
overseas. Because the concept is well understood and because it
must be flexible, to cover a wide range of situations, it has been
considered inappropriate to define it:
Habitual residence is a question of fact to be
determined by reference to all the circumstances of a particular
case. In relation to a child, relevant considerations include the
intention of the parents and the length of time the child has
resided in the country. The concept must remain capable of
application to a wide variety of factual situations and it is
unlikely that any exhaustive definition could usefully be
devised.(29)
New section 111CC confirms that
the rules of jurisdiction in subdivision B apply only in
international situations, that is, in the event of a conflict in
jurisdiction between a court in Australia and a competent authority
(30) in another country. Thus neither the Convention nor
Subdivision B applies to conflicts in jurisdiction between
Commonwealth and State authorities.(31)
New subsection 111CD(1)
implements articles of the Child Protection Convention in relation
to the jurisdiction of courts to take measures to protect the
person of a child. Thus a family court in Australia may exercise
jurisdiction to take measures to protect a child:
(a) when a child is present and habitually
resides in Australia, or
(b) when a child is present in Australia but
habitually resides in another Convention country,(32)
if:
-
- the child requires urgent protection, or
-
- the measure is provisional and limited in effect to
Australia,(33) or
-
- the Australian authorities have been requested to assume
jurisdiction by authorities in the child's habitual residence,
or
-
- such authorities have agreed to the Australian court assuming
jurisdiction, or
-
- the Australian court has been asked by both parents to take
measures in relation to children in the course of divorce or
annulment proceedings.
When a child is present in another Convention
country a family court may also take protective measures if:
-
- the child is habitually resident in Australia, or
-
- the child has been wrongfully removed from Australia, or
-
- Australian authorities have been asked to act by authorities in
the country of the child's habitual residence, or
-
- authorities in the child's habitual residence agree to the
court assuming jurisdiction, or
-
- Australian authorities have been asked by both parents to take
measures in relation to children in the case of divorce or
annulment proceedings.
The court also has jurisdiction to take
protection measures in regard to all refugee children present in
Australia.
The grounds of jurisdiction listed above are
subject to the limitations set by new sections 111CE,
111CF, 111CG, 111CH, and 111CI. For example under
new section 111CE where a child has been
wrongfully removed from or retained outside a Convention country a
court only has jurisdiction in matters of urgency. The court's
jurisdiction is also limited in cases where there are prior
proceedings pending in another Convention country (new
section 111CF), where Australian child protection measures
have lapsed (new section 111CI), or where a court
has asked another Convention country to assume jurisdiction
111CH).
The Convention provides jurisdiction to the
courts to take urgent measures and provisional measures to protect
children who are in Australia but habitually reside in another
Convention country (new subparagraphs 111CD(1)(b)(i) and
111CD(1)(b)(ii) respectively). These two grounds of
jurisdiction are limited and measures taken under them lapse when
the authorities in the country of habitual residence have taken the
measures required by the situation.
New paragraphs 111CD(1)(e) and
(f) confirm that the current arrangements regarding
jurisdiction in relation to countries not participating in
the convention will continue to apply.
The text of the Convention applies equally to
protection of the person and protection of the property of the
child. New Subdivision C of the Bill contains
provisions that relate to the jurisdiction of courts to protect the
property of a child. To a great extent these provisions replicate
the jurisdiction rules that apply to the personal protection of the
child as set out in new Subdivision B. The general intention of the
amendments is to ensure that the authority of parents as guardians
of their children's property will be recognised in Convention
countries.
Subdivision D Applicable law
Article 15 of the Convention provides that in
exercising their jurisdiction the authorities of Convention
countries are to apply their own internal law, apart from
exceptional circumstances where in order to protect the person or
property of the child, it may be necessary to take into
consideration the law of another State.
New section 111CR implements
article 15. It provides that a court must apply the law of
Australia when exercising jurisdiction to protect a child, except
in exceptional circumstances where it may apply the law of another
country if the protection of the child makes this necessary.
The term parental responsibility is drawn from
the Convention on the Rights of the Child and is complementary to
Australian law. It is defined to include parental authority, or any
analogous relationship of authority determining the rights, powers
and responsibilities of parents, guardians or other legal
representatives in relation to the person or the property of the
child.(34)
Legal systems regulate who shall have parental
responsibility, including parental authority. Most systems provide
that on birth each parent shall have parental authority, if
married, and the mother solely, if not married. Some states, such
as Australia, confer parental responsibility on each parent even if
they are not married.(35) Under article 16 of the Child
Protection Convention the law of the child's habitual residence
will determine who has parental responsibility by law. Furthermore,
under article 17 the exercise of parental authority is also
governed by the law of the child's habitual residence, irrespective
of whether the habitual residence of the child is a Convention
country.
A change of habitual residence of the child will
also produce a change of the applicable law. However such a change
should not extinguish any parental authority existing under the law
of the previous habitual residence (article 16(3)). Thus, assuming
Australia were a party to the Convention, the unmarried mother who
takes her child from Australia to another Convention country to
live (for example England) does not thereby deprive the Australian
father of the parental responsibility which Australian law gave him
on the birth of the child. The mother could of course apply to an
English court, as the forum of the new habitual residence, for an
order depriving him of that responsibility. This is permitted by
article 18.
Conversely, the unmarried mother who takes her
child from England to Australia thereby confers upon the father
parental responsibility from the moment the child acquires a
habitual residence there, whether the father accompanies them to
Australia or not (article 16(4)). The father thereby gains standing
before English courts which he did not have under English law and
of which the English authorities cannot deprive him.
Article 22 qualifies these arrangements by
giving Convention countries the discretion not to apply the
articles relating to parental responsibility where it is considered
contrary to public policy having regard to the best interests of
the child.
New section 111CS incorporates
into the Family Law Act these articles of the Convention regarding
parental responsibility.
The basic rule of the Convention is that
measures taken by the judicial or administrative authorities of any
Convention country must be recognised by operation of law in all
other Convention countries. So for example a grandparent who has
obtained a custody order in one Convention country and who moves
with the child to another Convention country does not need to
obtain a new order in the second State. These rules are also
intended to address problems where one parent moves between
countries in order to circumvent court orders relating to parental
responsibility, thus forcing the parent seeking to enforce the
court order to litigate in the country concerned.
New Sub-Division E deals with
recognition and enforcement. According to the Explanatory
Memorandum, regulations will regulate the conditions for
registration of foreign measures and provide for transfer of
Australian measures, such as parenting orders and registered
parenting agreements, to other Convention countries for
registration and enforcement.(36) This is consistent
with current arrangements under the Family Law Act and
Regulations(37) which provide for the reciprocal
registration and enforcement of family law parenting orders under
arrangements with prescribed overseas jurisdictions.
New section 111CT provides that
a registered foreign measure operates as if it were a court order
made under the Act and prevails over any prior inconsistent measure
in force under the Act.
Chapter V of the Convention deals with
co-operation between Convention countries through Central
Authorities appointed for each state. The Central Authority will
have the function of acting as the point of contact between
Convention countries. It will receive information and requests for
assistance and channel them to the appropriate authorities. In
return it will offer information and make requests to other
Convention countries on behalf of child protection agencies in
Australia or the Family Court.
In Australia, the Secretary of the
Attorney-General's Department is to be the central authority
(subsection 111CA(1)).
New subdivision F deals with
the functions and obligations of the Attorney-General's Department
and the court in facilitating contact and cooperation between
Convention countries. These functions and obligations include:
-
- obtaining the consent of the competent authorities in a
Convention country before placing a child in foster care
(new section 111CU)
-
- advising a Convention country when it considers a child moved
to another country is at serious risk (new section
111CV)
-
- providing protection to individuals disclosing information
relating to children at risk (new subsections
111CV(2)-(4))
-
- cooperating with other convention countries on the location of
children and implementing measures for their protection
(new subsection 111CX), and
-
- communicating information between authorities as necessary to
comply with the requirements of the Convention (new section
111CY).
Proposed subsection 111CZ(1)
provides that regulations may be made under the Act to implement
the Child Protection Convention in Australia.
Amongst other things the regulations may:
-
- specify that the regulations do not affect the operation of
State or Territory laws implementing the Convention
(proposed paragraph 111CZ(2)(a))
-
- include a list of Convention countries (proposed
paragraph 111CZ(2)(c))
-
- specify the particular provisions of the Conventions that have
the force of law in Australia, (proposed paragraph
111CZ(2)(b)), and
-
- confer jurisdiction on Federal or State courts
(proposed subsection 111CZ(3)).
Item 26 inserts a new
Schedule 1 at the end of the Act containing the text of
the Child Protection Convention.
On 20 March 2002 the Senate Selection of Bills
Committee referred the Bill to the Legal and Constitutional
Committee to inquire whether it properly meets Australia's
obligations under the Convention. The Committee tabled its report
on the Bill on 15 May 2002 and concluded that the provisions meet
Australia's obligations and accordingly recommended that the Family
Law Amendment (Child Protection Convention) Bill 2002 be
passed.
The Committee noted:
Australia's existing family law, as it relates
to cases with an international element, is consistent with many of
the provisions of the 1996 Convention. There are already provisions
in the Family Law Act relating to international jurisdiction,
applicable law and recognition and enforcement. The rules to be
applied under the Convention are similar to those already applied
by the Family Court in many cases. This is one of the reasons why
the amendments foreshadowed in the Bill have been generally
supported.(38)
However a small number of outstanding issues was
brought to the Committee's attention in submissions and during the
public hearing. Two of these matters are mentioned below.
The Legal Aid Directors' Secretariat expressed
concern to the Committee that decisions by foreign courts or
authorities may not serve the best interests of children, in which
case they should not be enforced in Australia. The Directors'
Secretariat suggested that clause 111CT of the Bill, which deals
with the recognition of foreign measures, should be amended to
include the provision that:
Any decision affecting a child, made by an
authority of a Contracting State, which did not have regard to the
child's best interest, shall be deemed to be contrary to public
policy and is not enforceable.
The Attorney-General's Department advised the
Committee that regulations to be made under new section 111CT will
give effect to article 23(2)d of the Convention, which provides
that recognition of a Convention measure may be refused if such
recognition is manifestly contrary to the public policy of the
requested State, taking into account the best interests of the
child.(39)
One submission to the Senate Inquiry suggested
that article 7 of the Child Protection Convention which deals with
wrongful removal or retention of a child, may have unintended
consequences as it interacts with the Child Abduction
Convention.
In particular it was suggested to the
Committee(40) that the provisions of the Bill and
Convention that deal with jurisdictional issues in relation to
wrongful removal of children may be interpreted as indicating that
the country of prior habitual residence may still retain
jurisdiction (even after proceedings have been heard under the
Child Abduction Convention for return of a child and the
proceedings have been unsuccessful) and could take contrary
measures to those taken under the Child Abduction
Convention.(41)
In practical terms this could mean, for example,
that if a mother successfully defends a Child Abduction Convention
application because of the grave risk of harm to her child, the
Child Protection Convention may still require subsequent parenting
proceedings to be heard in the original country of habitual
residence from which she may have fled, thus placing the child at
unacceptable risk. The parenting proceedings may result in a
different outcome from that achieved under the Child Abduction
Convention. In this case all Child Protection countries would be
obliged to enforce the Child Protection Convention measures. In
this view, a court's refusal to return a child under the Child
Abduction Convention should be final.(42)
The Attorney-General's Department suggested that
the drafters of both the Child Abduction Convention and the Child
Protection Convention had not intended a decision on jurisdiction
under the Child Abduction Convention to be final.
A decision by the Family Court under the child
abduction convention was never intended to be a final decision on
the question of appropriate forum - that is, which court is
appropriate to determine a custody dispute. It was always open to
the parent overseas who was unsuccessful with an abduction
convention application to nevertheless go on and litigate custody
or try to obtain return of the child by other means.
The Department also argued that:
Any difficulty for an abducting parent overseas,
faced with litigating custody in Australia, must be weighed against
the same difficulty for the left behind parent in Australia who is
currently forced to litigate custody overseas as a result of the
wrongful removal.
The Attorney-General's Department concluded:
While some abducting parents may disagree with
the approach taken by the drafters of the Child Protection
Convention in article 7, Australia's decision to ratify must be
based on a balanced consideration of the whole Convention. In
particular this consideration must take account of the benefits of
ratification of the Convention.(43)
In addition to this Bill, State and Territory
legislation is also required to implement the Convention provisions
concerning protection of children from abuse and neglect in
international cases. The Queensland Government is currently
developing a model Bill that will implement the Convention in State
and Territory law.
In their submission to the Treaties Committee,
the Queensland Government expressed concern at the introduction of
the Commonwealth legislation prior to the completion of the model
State/Territory legislation and without consultation with State and
Territory Governments. The Queensland Government stated:
Taking binding treaty action prior to the
necessary implementing legislation for States and territories being
in place is likely to cause considerable legal and administrative
difficulties. It would constrain the effective implementation of
the Convention in Australia.(44)
In response to this concern, the Treaties
Committee in its report encouraged the Attorney-General s
Department to consult with Australian States and Territories in
relation to the model State/Territory legislation currently under
preparation to ensure all Australian legislation is harmonised to
ensure effective implementation of the
Convention.(45)
-
- Much of this segment on treaty making is extracted from the
Criminal Code Amendment (Suppression of Terrorist Bombings) Bill
2002, Bills
Digest No. 120, 2001 02.
- Senate Legal and Constitutional References Committee, Trick
or Treaty? Commonwealth Power to Make and Implement Treaties,
November 1995, pp. 76 77.
- Senate Legal and Constitutional Committee, Inquiry into the
Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill
1999, 2000.
- (1988) 164 CLR 261 at 313.
- ibid.
- Government reform of treaty-making , Press Release
(Minister for Foreign Affairs), 2 May 1996.
- Department of Foreign Affairs and Trade, Stages in the
development of treaties , Australia and International Treaty Making
Information Kit, http://www.austlii.edu.au/au/other/dfat/reports/infokit.html
(accessed 23 June 2002).
- Available at:
http://www.aph.gov.au/house/committee/jsct/12March2002/childnia.pdf
(accessed 23 June 2002).
- A copy of the report can be accessed at:
http://www.aph.gov.au/house/committee/jsct/Reports/report46/report%2046.pdf
- The measures of protection which fall within the scope of the
Convention are listed at p. 5.
- House of Representatives Hansard, Second Reading
Speech, Family Law Amendment (Child Protection Convention) Bill
2002, 21 March 2002, p. 31082.
- Child Protection Convention, Chapter 1, Article 1.
- ibid, Article 3.
- ibid, Article 4.
- See:
http://www.ag.gov.au/aghome/legalpol/cld/int_judicial_asst/international_child_custody/IssuespaperCPCStateandterritorylawsAugust1998.html
- See:
http://www.ag.gov.au/aghome/legalpol/cld/int_judicial_asst/international_child_custody/IssuespaperCPCfamilylawSeptember1998.html
- See:
http://www.ag.gov.au/aghome/legalpol/cld/int_judicial_asst/international_child_custody/HagueCPCReportofCwlthStateworkingGroupApril1999.html
- House of Representatives Hansard, Second Reading
Speech, Family Law Amendment (Child Protection Convention) Bill
2002, 21 March 2002, p. 31082.
- Commonwealth/State Working Group, Hague Convention on the
Protection of Children. Proposed Amendments to Family Law
Legislation, September 1998, p. 10.6.
- Report of the Australian delegation to the Special Commission
Hague Convention on the Protection of Children, January 1997.
- page 1.
- subsection 65D(1), item 13.
- section 67K, item 14 and section 67M,
item 15.
- Although the Convention does not actually define these words.
- A further discussion of habitual residence is found on pp. 7 8.
- Jennifer Degeling, The Hague Convention on Protection of
Children 1996 , Australian Children s Rights News, 31
December 2001, p. 15.
- Senate Legal and Constitutional Legislation Committee,
Provisions of the Family Law Amendment (Child Protection
Convention) Bill 2002, para 2.35.
- This inquiry is discussed in further detail at pp.12 14.
- Senate Legal and Constitutional Legislation Committee,
Provisions of the Family Law Amendment (Child Protection
Convention) Bill 2002, para 3.18.
- A competent authority is an entity that has authority under the
law of a country to take measures of protection for the person or
property of a child (new subsection 111CA(1)).
- This is in keeping with the preamble and article 46 of the
Convention.
- The Bill defines 'Convention country' as a country other than
Australia, for which the Child Protection Convention has entered
into force.
- Providing that the measure is not incompatible with a foreign
measure already taken by an authority in a Convention Country
(new subsection 111CD(2)).
- Article 5, United Nations Convention on the Rights of the Child
1989.
- Section 61C of the Family Law Act.
- p. 18.
- Section 70F and Regulations 23, 24, Schedule 1A.
- Senate Legal and Constitutional Legislation Committee, op cit,
para 3.1.
- ibid, para 3.25.
- Legal Aid Directors' Secretariat Submission.
- ibid, para 3.9.
- ibid, para 3.10.
- ibid, para 3.13.
- House of Representatives Joint Standing Committee on Treaties,
Report No. 46, para 10.17.
- ibid, para 10.22.
Mary Anne Neilsen
25 June 2002
Bills Digest Service
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