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Second Reading

[2.52 p.m.]

Mr LLEWELLYN (Lyons - Minister for Health and Human Services - 2R) - Madam Deputy Speaker, I move -

That the bill be now read the second time.

The Child Protection (International Measures) Bill 2003 will address potential conflicts in jurisdiction on matters involving children in different countries. At present, there are no clear rules and procedures governing such disputes, with the result that Australian and overseas courts may make conflicting orders in relation to the same children. Child protection authorities in one country may fail to act because they assume that authorities in another country have taken responsibility for a child.

Australian courts and authorities apply highly technical conflict-of-law rules, most of which have been developed piecemeal over time by the courts as part of the common law. The convention is largely consistent with those existing rules but has the advantage of codifying the rules in a form which is expected to be adopted in many countries. The convention establishes conflict-of-law rules to be applied in child protection matters which have an international aspect.

These rules govern questions such as:

whether a court or a child protection authority such as the Department of Health and Human Services has jurisdiction to deal in an international child protection dispute;

which country's law is to be applied in determining international disputes;

what conditions must be satisfied to ensure international recognition and enforcement of orders; and

what obligations courts and authorities in Tasmania and overseas have to cooperate in the protection of children.

The convention and this bill which implements it are designed to overcome these difficulties by providing clear jurisdictional rules for courts in countries which adopt the convention, although some aspects of the convention will also be used in relations with non-convention countries. The bill also implements arrangements to guarantee the recognition and enforcement in Tasmania of orders protecting children or their property made in other convention countries. It will establish mechanisms to facilitate cooperation between courts in Australia and courts overseas in child protection cases, and mutual recognition and enforcement of orders.

For the purpose of protecting the best interests of children, the convention also includes a range of procedures to encourage cooperation between courts and child protection authorities in different countries. The convention will address the problem of international cases involving protection of children from abuse and neglect.

It is in the best interests of children that there be internationally agreed rules determining which child protection authorities have jurisdiction in relation to a child. Commonwealth and State officials have been cooperating in the development of an appropriate legislative scheme to implement the convention in Australia. The Commonwealth legislated in 2002 to amend the Family Law Act so that it is consistent with the convention in dealing with matters of parental responsibility. This means that parents will know which countries' courts will make decisions about their children and will not be subject to uncertainty due to conflicting orders from different courts in different countries. It also means that it will be clear which country's child protection authorities have jurisdiction in relation to a child.

The convention was drafted by family law experts from 48 countries under the auspices of the Hague Conference on Private International Law, the foremost international organisation in the development of modern conflict-of-law instruments in the family law area. Only a few countries have yet ratified the convention, as it was completed only recently, but a number of countries with which Australia has had international family law conflict cases are working towards ratification.

The policy objectives of the convention and an outline of the proposed legislative scheme for implementing the convention were set out in issues papers released for comment by the Commonwealth in 1998, namely:

the Hague Convention on the Protection of Children - proposed amendments to family law legislation; and

the Hague Convention on the Protection of Children - proposed amendments to State and Territory laws.

Madam Deputy Speaker, I commend the bill to the House.