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- 4 April 2006
Child Protection (International Measures) Bill
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Page: 21892
Second Reading
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [2.43 p.m.]: I move:
That this bill be now read a second time.
As the second reading speech was delivered in the other House, I seek leave to incorporate it in Hansard.
Leave granted.
This bill will implement the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in New South Wales. This convention is more generally known as the Child Protection Convention. The Child Protection Convention is one of a number of Hague conventions, including conventions on adoption and child abduction, which aim to ensure the safety and wellbeing of children in the twenty-first century world in which national borders are more open than they have ever been before. The measures proposed in the bill will be of significant benefit to Australian families, and in particular to children who are the subject of international child protection litigation. Australia ratified the Child Protection Convention on 1 August 2003 with the support of all States and Territories.
Since 2003 the convention's international child protection measures have been administered in Australia through the Commonwealth Family Law Act 1975. It has always been the intention that each State and Territory would also put in place its own legislation to implement these measures in its jurisdiction. The bill will put in place jurisdictional laws in relation to children who cross international borders where parenting orders or child protection concerns exist for the children. It will also establish a framework for co-operation between Child Protection Convention countries to ensure the protection of children.
The Child Protection Convention confirms in its preamble that the best interests of the child are to be a primary consideration. This reflects the same guiding principle of the 1989 United Nations Convention on the Rights of the Child. The fundamental purpose of the bill is to strengthen our ability to protect New South Wales children. During the last part of the twentieth century, the opening up of national borders, ease of travel, and breaking down of cultural barriers have brought many advantages but, sadly, have also increased risks for children. Trafficking and exploitation of children, displacement through war, terrorism, civil disturbance and natural disasters have become major problems.
Children can be victims in broken relationships between transnational families with disputes over custody, relocation, contact and the potential of international parental abduction, just as can occur for children who never leave this State. The legislation will enhance the protection of children and their property. It does this by determining which country's laws are to be applied in particular circumstances, while allowing for emergency protection measures to occur wherever the child is present. The absence of agreed rules at an international level has led to authorities in one country failing to act because they assume authorities in another country will take, or have taken, responsibility for the child. The New South Wales legislation seeks to overcome these difficulties and simplify the process of resolving international child protection cases without losing sight of the best interests of the child.
The objectives of the bill are to determine which country has jurisdiction in decision making to protect the child in order to eliminate potential conflicts of jurisdiction between authorities in different countries, determine which law is to be applied, determine the law applicable to the parental responsibility, provide for recognition and enforcement of protection measures, and establish co-operation between the authorities of New South Wales and other Child Protection Convention countries in the interests of protecting children.
After ratification of the Child Protection Convention by Australia in August 2003, the Commonwealth Government passed legislation to enable the Family Court to register and enforce child protection orders in Australia from convention countries. Built into the Commonwealth legislation were roll-back provisions which provide that once State legislation is enacted, that legislation will prevail. This recognises that child protection matters are traditionally State responsibilities and more properly dealt with in State-based specialist children's courts.
The mechanism for those with parental responsibility to register orders in the Family Court in relation to family issues such as residence, maintenance and contact will be maintained as part of a flexible response, because they are accepted as Federal responsibilities. The New South Wales legislation will, in common with the Federal and other state legislation, clarify responsibilities and eliminate conflict in jurisdiction between Australian courts and foreign courts in child protection cases. It is based on the model Queensland legislation. The model legislation was approved by all the parliamentary counsels around Australia, the Standing Committee of Attorneys General and the Community Services Ministers' Committee.
The bill's enactment will ensure that the key benefits of the Child Protection Convention are enshrined in New South Wales legislation. These include clarification of responsibilities and the elimination of conflict in jurisdiction between New South Wales and overseas courts in child protection cases, the recognition and enforcement of foreign orders in New South Wales, ensuring recognition and enforcement abroad of New South Wales protection orders and other measures of protection where appropriate, and providing mechanisms for authorities in New South Wales and other countries to co-operate in relation to protective measures for a New South Wales child abroad or in relation to a child returning to another country who is subject to a New South Wales protective measure.
As with legislation in the other States, it will define the role of the New South Wales Central Authority under the Child Protection Convention. This role will be to find solutions for the protection of particular children; assist in implementing measures whether made here or elsewhere which are directed at protecting children; give consideration to initiating action in New South Wales, at the request of a competent authority of another country if a response is required in New South Wales; exchange information, subject to confidentiality and privacy laws; provide information on laws and services; help locate children; provide reports on the situation of particular children; and apply to the Children's Court or Family Court as appropriate for orders in response to requests from competent authorities of Child Protection Convention countries to transfer or receive jurisdiction, or take measures directed at protecting the person of a child.
The New South Wales legislation substantially replicates the Queensland model legislation and expands on the Queensland provisions on two minor points. First, the bill defines the term "interested person" in relation to a child who is the subject of a "measure of proceedings". Whereas the model legislation leaves this term undefined, the bill provides that an interested person means the child, or a parent, or a grandparent of the child, or any other person concerned with the care, welfare or development of the child. Any of these people may apply to be joined as a party to proceedings arising from an application to exercise the court's jurisdiction in relation to the child or to refuse recognition of a foreign measure. An interested person may also take proceedings in a New South Wales court to enforce a registered foreign measure. The inclusion of this definition makes it clear who can be involved in proceedings relating to a child and is equivalent to those people who can seek a variation of a care order under section 90 of the Children and Young Persons (Care and Protection) Act 1998.
Second, the bill will provide a mechanism whereby the Director-General of the Department of Community Services can obtain relevant information necessary to prepare a report required by the Child Protection Convention on the consultations undertaken prior to child being placed in foster care in a convention country. The Child Protection Convention requires that these consultations occur with the competent authority in the convention country. The measures in the bill will overcome jurisdictional confusion that has arisen. Normally, State child welfare laws gain priority over family law orders but, according to the rules of the Child Protection Convention, if a New South Wales care order conflicts with a foreign child protection order registered under the family law amendments, the Family Court order prevails.
By permitting registration in the State Children's Court the usual order of priorities can be maintained. The bill mirrors the Queensland model legislation in that it empowers the Children's Court to supplement foreign personal child protection measures with domestic care orders. The recognition of a foreign protection measure without modification may not necessarily ensure the safety, welfare and wellbeing of the child or young person due to different circumstances in this State. In some circumstances it may be appropriate only to recognise and register part, rather than the whole, of a foreign child personal protection measure. Once jurisdiction requirements have been satisfied, the bill gives to the Children's Court the full range of orders as if the original order has been made in this State. This will not only advantage the child but should assist in streamlining processes within the court and enhance familiarity with the operation of the legislation.
To give an example that has arisen in this State: A child arrived here subject to care orders made in the country of his birth. He was brought by the person exercising guardianship, who came for business purposes. The care orders required that the child reside in an institution while remaining in this person's guardianship. In the country of origin this was appropriate because there were child-centric institutions there. In this State we do not deliver services to children in that way and the implementation of those foreign orders, without modification, would have led to the child being placed in an adult psychiatric institution. There was no simple and effective way both to recognise the intent of the orders made in the child's country of birth and to provide appropriate services in this State. The bill will address this gap in our laws.
To better adapt the obligations of the Child Protection Convention for this State the bill brings into effect legislation mirroring that of other States, and legislation that has been jointly agreed to by the Commonwealth and the other States. While the Commonwealth will remain the key central authority for Australia in terms of being the primary recipient of international communication from foreign central authorities, the Department of Community Services will be the central authority in New South Wales. The department will be responsible for taking action in this State on behalf of children. At present the impact of this legislation in New South Wales will be small.
In general, international child protection cases arise infrequently. As well, while 18 countries have signed the Child Protection Convention, only eight, including Australia, have both signed and ratified it, and two have acceded. While information is not definite from all other countries, the best current estimate is that 27 countries will join in this arrangement in the near future. As more countries ratify the Child Protection Convention its benefits will be enjoyed by an increasing number of children in an era of increasing mobility across national borders. For children entitled to the benefits of the Child Protection Convention it is anticipated that New South Wales may be called upon to assist Child Protection Convention countries by providing a report on the circumstances of a foreign child located in New South Wales, or to provide the necessary protection services for a child subject to an order recognised in New South Wales.
The bill specifies the jurisdiction of courts and child protection authorities. The general order under the Child Protection Convention is that the country in which the child is habitually resident retains jurisdiction over the child's person and property. Generally, a New South Wales child protection authority may exercise jurisdiction only for a New South Wales person or protection measure in relation to a child who is present and habitually resident in New South Wales; or a child who is in New South Wales and habitually resident in a Child Protection Convention country where the measure is either urgent or provisional; or there is a request or agreement that New South Wales assume jurisdiction. Additionally, a New South Wales authority may exercise jurisdiction if a child is present in a Child Protection Convention country and is habitually resident in New South Wales or is wrongfully removed from Australia, or if New South Wales is requested to assume jurisdiction.
Other additional circumstances where New South Wales may exercise jurisdiction are where the Child Protection Convention country agrees; or a child is present in New South Wales and is a refugee minor living in the community; or if the child is habitually resident in New South Wales but at the moment is present in a non-Child Protection Convention country; or is habitually resident in a non-Child Protection Convention country but is an Australian citizen; or is present in New South Wales and is habitually resident in a non-Child Protection Convention country. New South Wales child protection authorities may accept or reject a request to assume jurisdiction. The bill also sets out the circumstances under which a New South Wales authority may exercise jurisdiction for a New South Wales property protection measure in relation to a child. In those cases the Public Trustee will be appointed as guardian of a child's property should that be necessary under a property protection order.
The bill provides for the recognition and enforcement of foreign protection orders. These are not automatic. On receipt of a foreign measure a New South Wales authority has several courses of action open to it. These are laid down in the legislation. The grounds for refusing to recognise a foreign person or protection order are also spelled out and provide New South Wales authorities with the discretion to meet their obligations. These grounds include: that the Child Protection Convention country lacked jurisdiction for taking the measure; that the Child Protection Convention country acted contrary to the fundamental principles of New South Wales law when it took the measure; that recognition of the measure is contrary to public policy in New South Wales; that there would be no appropriate way of enforcing the measure; that the measure is incompatible with a later measure in the country where the child habitually resides; and that the measure places the child in care in New South Wales but the Child Protection Convention country has no consent from New South Wales authorities.
These measures are likely to affect only a small number of children in the short term but the legislation provides a framework that is likely to benefit an increasing number of children and so, I believe, will become vital to ensuring the safety and protection of New South Wales children wherever they might be in the world, and of other children who are in New South Wales and need protection. I commend the bill to the House.
The Hon. PATRICIA FORSYTHE [2.43 p.m.]: The Opposition is pleased to support the Child Protection (International Measures) Bill 2006. Central to any legislation that this Parliament passes in relation to child protection are two clear principles. The first is embodied in the question: Is it in the best interests of the child? The other is embodied in the question: Does it conform with the United Nations Convention on the Rights of the Child? This bill certainly conforms to both fundamental principles. The best interests of the child has been the guiding principle on which New South Wales has, for a very long time, based its child protection and other legislation relating to children under the age of 18 years.
This State has been guided in legislation that it has considered in this place by the concept that children have rights and that those are the rights enshrined in the United Nations Declaration on the Rights of the Child. I make those remarks by way of background, because the passing of this bill is an opportunity for New South Wales once again to make clear the principles that underpin our legislative position regarding children. This State can be proud of what it has done to support children and other people who are vulnerable. One of the Parliament's core responsibilities is to ensure that New South Wales has the best legislation to protect its children and vulnerable people. The bill is one of a long line of bills that are in accordance with those principles.
Though the bill passed through the other place after contributions by comparatively few of its members, it is in fact a bill of utmost importance and one that ensures that New South Wales becomes party to The Hague convention dealing with measures for the protection of children, a convention which was signed in 1996. In other words, it has taken a decade from that signing to reach today's position. Three Hague children's conventions have been developed over the past 25 years. The Hague conference noted that those conventions have the fundamental purpose of being able to provide the practical machinery to enable States that share a common interest in protecting children to co-operate together to do so. That is the principle underlying this bill. For this Parliament, it is principally about the protection of the children of this State.
The Hague convention passed in 1996 was the culmination of a number of years work. The convention was drafted by family law experts from 48 countries under the auspices of The Hague Conference on Private International Law. Australia has been a very active player in that process and was part of the 1996 convention. In 2001 Australia, through the Federal Attorney-General, introduced legislation to ratify The Hague Convention on the Protection of Children. That legislation was referred to the Joint Standing Committee on Treaties for examination, and on 1 May 2003 the Federal Government ratified The Hague Child Protection Convention. I give that background because it is only now, in 2006, that New South Wales is passing the appropriate legislation to discharge its role in the ratification process. Much of our legislation dealing with issues such as child protection is passed by State legislatures, not the Federal jurisdiction.
After the Federal Government ratified The Hague Convention for the Protection of Children on 1 May 2003 the Attorneys-General throughout Australia agreed in August 2003 that it would be ratified at State and Territory level. I have copies of the Tasmanian and Queensland bills, which are dated 2003. In other words, soon after the ratification of the convention Tasmania and Queensland considered it important enough to enact appropriate legislation in 2003. My colleague in the other place the honourable member for Wakehurst was right in his criticism of the Government's timing of the introduction of the legislation. Like me, for a long time he has taken an interest in child protection and for a long time he has been critical of the Government's capacity or willingness to provide the Department of Community Services with the fundamental resources to do its job.
The fact that we are dealing with the legislation in 2006 is a clear indication that the department has been underfunded throughout the term of the Carr and Iemma governments. New South Wales has used the Queensland legislation as its model, although from the Parliamentary Secretary's speech in the other place it is clear that this bill has two minor additions. Given the uniformity of purpose to protect the children of New South Wales and the fact that none of the parties in either the Legislative Assembly or the Legislative Council would oppose the bill, one must ask why it has taken the Government three years after the introduction of legislation federally to introduce the appropriate legislation in this place.
The Hon. Dr Arthur Chesterfield-Evans: Because they had the children in refugee camps.
The Hon. PATRICIA FORSYTHE: That has absolutely nothing to do with the bill. That is the most inane and stupid interjection that I have heard for some time. New South Wales has not followed the lead of Tasmania and Queensland to get on with the job of protecting children in New South Wales. The legislation is significant because it recognises our changing world, one in which national borders have opened up. It is easy for one person to travel from one European Union country to another and it is becoming easier all the time for people to travel across the world. The breakdown of families is common, but not peculiar to Western cultures. Unfortunately, many children are caught up in the turmoil that follows the breakdown of what are often described as transnational families. Disputes over custody arise not only within one State or one nation; they often involve nations. The term "international parental abduction" is used to describe the abduction of a child by a parent living overseas when a court in a State or country has determined the parent in that State or country to be the custodial parent.
We have seen many cases of children in the care of a non-custodial parent being taken out of the country in which the non-custodial parent lives with the child. The bill will make it easier for the courts to make appropriate rulings in such cases. Although the drafting of The Hague Convention involved more than 40 nations, currently as few as 10 countries have ratified the convention. This type of legislation applies only in the countries that have ratified the convention. One of our roles as lawmakers of this nation is to speak up and raise this matter with visiting parliamentarians and delegations from other countries who have not realised the importance of ratifying The Hague Convention on the International Protection of Children. More and more families are breaking down, and it will not get any easier.
It is essential that the legislation ensure that courts are able to make rulings guided by the convention. Currently no case law underpins the interpretation of the convention. We have some way to go to ensure the protection of young people. However, I am proud of the strength and leadership shown by the Federal Government in ratifying the convention. In addition, the Federal Government has provided funding to International Social Service Australia to ensure that Australia is well placed to provide support to families whose problems fall within the legislation. Australia has taken the lead. I give due respect to those in New South Wales who drafted the legislation. I note that the Parliamentary Secretary in the other place complimented a number of people from the department, one of whom was Rod Best. From my reading I know that he was one of the people who presented a paper on child's rights at the Bath conference in 2001, which set up Children's Rights International—one of the important agencies bringing together lawmakers and those involved with jurisdictional issues that affect the protection of children.
In many different ways Australia has been at the forefront of protecting young people from an international focus. The Hague Convention is much broader in scope than some of its earlier work, yet it is part of an evolving process that recognises parental responsibility on the international scene as a consequence of a changing world—a world quite different from the world of two or three decades ago when the ability of people to travel internationally made it difficult to enforce court orders. In Australia the application for a passport for a young child to travel with a parent requires joint parental consent. Yet we continue to read and hear of cases of children allegedly abducted and taken out of the country as a result of family breakdowns. Of course, those children are the essence of this bill.
The Opposition supports the bill. However, as I said earlier, we are justifiably critical that it has taken the Government until 2006 to introduce this legislation—an extraordinary period, given that other States introduced legislation soon after the agreement of Attorneys General in August 1993. The legislation could have been introduced far earlier than today. With that minor criticism, I indicate the strong support of the Opposition for the bill.
Ms SYLVIA HALE [3.00 p.m.]: The Greens support the Child Protection (International Measures) Bill because it implements the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children_that is, the Child Protection Convention. It means that New South Wales will co-operate with jurisdictions that are signatories to the Child Protection Convention to ensure the flow of information and the continuation of protection of children here and in other countries. This legislation is in keeping with Australia being a convention country and it is in keeping with other States and Territories laws and with Commonwealth laws. The convention was approved by the Federal Government in August 2003. It has taken years for the appropriate legislation to come before this Parliament. I understand that other States and Territories have already introduced similar legislation. The New South Wales legislation is based on analogous Queensland legislation.
I endorse the concerns expressed by the Hon. Patricia Forsythe and others about the dilatoriness of this Government in introducing this bill. However, I cannot refrain from expressing my awareness of the hypocrisy of a party that is prepared to condemn the Government for being too slow in introducing this legislation, but at the Federal sphere has so patently demonstrated a lack of concern about welfare of children in its jurisdiction. I refer to children who have been detained in immigration detention centres, with the resultant break-up of families, separation from parents and enormous psychological damage being inflicted. It is a tribute to community outrage that there has been some improvement in the situation of those children and how they are being dealt with by immigration authorities. Although I endorse the regret expressed by the Hon. Patricia Forsythe that it has taken the Government a long time to introduce this legislation, I think it is a case of the pot calling the kettle black.
The detail of the bill has been outlined elsewhere, but I will briefly state that the bill allows greater co-operation between convention countries. Therefore, a child under a protection order in New South Wales will continue to be protected if the child goes to another country that is a signatory to the convention. This will better ensure the protection of a child when moving between jurisdictions and will cut through most of the red tape when determining which court has jurisdiction. It will make clear which legal system and child protection authority has responsibility and jurisdiction over a child or young person. Children emigrating to New South Wales from a convention country and under a care and protection order in this country should in theory, by way of notification, become subject to a similar court order here and become clients of the Department of Community Services [DOCS]. Likewise, New South Wales courts and DOCS can notify a counterpart authority in another convention country if a child is moving overseas and that child is under a care and protection order.
Agreement can be made where a child is moving back and forth or who moves somewhere overseas permanently as to which jurisdiction should be responsible. I understand from reading the debate on this bill in the lower House that there may soon be changes introduced to the Children and Young Persons (Care and Protection) Act 1988 dealing with the interstate transfer of care orders and proceedings. It is always a great source of frustration to police, courts and agencies that borders_ whether they are borders between Australian States and Territories or international borders_keep impeding the provision of protection. A lot of red tape can be generated and people can flee to other jurisdictions to escape orders. This bill seeks to ensure a higher level of protection for children who need it, no matter what jurisdiction they happen to be in. The Greens support the bill.
Reverend the Hon. Dr GORDON MOYES [3.04 p.m.]: The purpose of the Child Protection (International Measures) Bill is to implement the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in New South Wales. This convention is commonly known as the 1996 child protection Hague convention. Specifically, the bill will ensure that child protection orders_orders that are put in place for the safety and wellbeing of New South Wales children_will be recognised and upheld overseas and vice versa. On a personal note, I began to become vitally interested in the welfare and protection of children in the 1970s. When I came to Sydney in 1977 to become superintendent of Wesley Mission, I discovered that I was also superintendent of the Dalmar Children's Home. In that one year there were 134 children for whom I was guardian ad litem_their guardian in the eyes of the law_for their protection and care.
Over the years, that developed into working to provide support and administrative care for many children in child care facilities, the building of about 50 additional child care facilities, the development of out-of-care homes, the development of foster care programs and some adoption programs. I continued in the role of guardian ad litem for a large number of children until only the past few weeks, when my successor took over. In 2005 I was officially guardian, in the eyes of the law, to more than 3,500 children in New South Wales and I provided them with some form of protective care or other. There would be very few tales concerning the abuse of children that have not come to our attention over the years, which have led to those children being placed under my care by courts. In recent years I have noticed an incredible increase in transnational children_children from the Sudan and other parts of Africa, from Sri Lanka, from middle Europe and also from the Middle East, particularly among Arabic-speaking people. Over the years I have had a number of staff who are Arabic speaking and Arabic born who provide the care for these children.
I now address the intent of the bill. No wonder we are concerned that the convention implemented by this bill is one of those things that must be implemented in New South Wales. This bill is one of three Hague children's conventions that have been developed over the past 25 years. The main objective of these conventions has been to provide the practical machinery to enable States that share a common interest in protecting children to co-operate together to do so. The 1996 Hague convention is much broader in scope than the other two Hague conventions. It covers a wide variety of civil measures of protection concerning parental responsibility, ranging from contact to public measures of protection or care, and from matters of representation to the protection of children's property.
The 1996 child protection Hague convention originated from the decision taken on 29 May 1993 by the states represented at the Seventeenth Session of the Hague Conference on Private International Law. Subsequently, a number of commissions were formed to negotiate and develop the text and ambit of the convention. Finally, member states present at the plenary session on 18 October 1996 adopted the draft text of the convention. Some advocated a change in the name of the convention, given its long-windedness, but member states inevitably agreed to retain the title because it more effectively conveyed the content and substance of the convention. A total of 29 countries signed the convention, including Italy, Poland, Bulgaria, the United Kingdom and Australia. Almost all of the signatories to the convention are Western European nations. Australia ratified the convention on 29 March 2003 and the convention entered into force on 1 August 2003. All State and Territory governments supported ratification of the convention by Australia. It is hoped that neighbouring Australian countries will sign and embrace the terms of the convention for practical reasons.
I have mentioned that simply because Australia is now faced with more and more children being brought to this land from nearby South-East Asian and Middle Eastern countries, and the issues raised in the convention are important to cover the needs of those children. An international convention applies only to people within particular States of the ratifying country when a State passes legislation to embrace the terms of the convention. It is not good enough for countries that have not signed the convention to look upon children as expendable, as they do by not being part of the convention. In this case, although the convention was signed by Australia it can become applicable to New South Wales only after New South Wales passes legislation to bring it into effect. Since 2003 the convention's measures have been administered in Australia through the Commonwealth Family Law Act 1975.
The Parliamentary Secretary stated in her second reading speech, "It has always been the intention that each State and Territory would also put in place its own legislation to implement these measures in jurisdiction." The bill is the final necessary step to make the convention applicable to the jurisdiction of New South Wales. The objectives of the bill are to determine which country has jurisdiction in decision making to protect a child in order to eliminate potential conflicts of jurisdiction between authorities in different countries, determine which law is to be applied, determine the law applicable to the parental responsibility, provide for recognition and enforcement of protection measures, and establish co-operation between the authorities of New South Wales and the other Child Protection Convention countries in the interests of protecting children. The raison d'etre for the bill is obvious: Ease of communication and ease of travel have opened up our borders and those of countries around us to one another. Inevitable consequences arise from that. As pointed out by The Hague Conference on Private International Law:
… the cross-border trafficking and exploitation of children and their international displacement from war, civil disturbance or natural disaster have become major problems. There are also the children caught in the turmoil of broken relationships within transnational families, with disputes over custody and relocation, with the hazards of international parental abduction, the problems of maintaining contact between the child and both parents, and the uphill struggle of securing cross-frontier child support.
Those of us who have been engaged in the work of providing protection and care for children in our community, particularly for children who come from transnational liaisons, understand each of those points—and, in fact, there are heartbreaks at every point. Honourable members may be instantly familiar with the environmental, physical and economic devastation brought about by the Asian tsunami in December 2004 and beyond. Honourable members would be aware also that it is a sad fact that the international child sex trafficking syndicates preyed on children in the areas ravaged by the tsunami with extreme implications for those children, their families, and the social and spiritual fabric of those regions. An example of where the bill would apply in New South Wales was referred to in the second reading speech. A child arrived in New South Wales subject to care orders made in the country of his birth. The Parliamentary Secretary stated:
The care orders required that the child reside in an institution while remaining in this person's guardianship. In the country of origin this was appropriate because there were child-centric institutions there. In this State we do not deliver services to children in that way and the implementation of those foreign orders, without modification, would have led to the child being placed in an adult psychiatric institution. There was no simple and effective way both to recognise the intent of the orders made in the child's country of birth and to provide appropriate services in this State.
The bill will cater for those situations and others, allowing for appropriate arrangements to be made where required. The bill will, hand in hand with Federal and other State legislation, bring clarity to responsibilities and eliminate conflict in jurisdiction between Australian courts and foreign courts in child protection cases. Enactment of the bill will ensure that the key benefits of the Child Protection Convention are enshrined in New South Wales legislation. Some of the more salient aspects include: countries abroad will recognise and be able to enforce New South Wales child protection orders and other measures of protection; protection orders made overseas will be recognised in New South Wales; the roles and responsibilities of New South Wales and overseas laws and courts will be clearly defined, eliminating conflicts in jurisdiction; and there will be greater co-operation between New South Wales and overseas authorities to enable the safety and wellbeing of children who are the subject of New South Wales orders.
The bill is based on model legislation approved by all Australian Parliamentary Counsels, the Standing Committee of Attorneys-General and the Community Services Ministers Committee. Clearly there is a cogent need for a central entity to administer the terms of the convention. The bill defines the role of that entity—entitled the New South Wales Central Authority—which will be the director general of the New South Wales Department of Community Services. That department will, from the inception of this bill, be responsible to find solutions for the protection of particular children, help locate children and provide reports on the situation of particular children; assist in implementing measures, whether made here or elsewhere, which are directed at protecting children; give consideration to initiating action in New South Wales at the request of a competent authority of another country if a response is required in New South Wales; exchange information, subject to confidentiality and privacy laws; apply to the Children's Court or Family Court as appropriate for orders in response to requests from competent authorities of convention countries to transfer or receive jurisdiction; or to take measures directed at protecting the person of a child.
Matters concerning the establishment or contesting of a parent-child relationship, adoption, foster care, the name of a child, emancipation, maintenance obligations, trusts or succession, social security, public measures of a general nature in matters of education or health, measures taken as a result of criminal offences committed by children, and decisions on asylum or immigration will not be dealt with by this bill. The reason for that is that the Child Protection Convention does not apply to those matters, as indicated by article 4 of the convention. It is worth noting that the Legislation Review Committee, in its legislative digest, has not identified any issues under section 8 of the Legislation Review Act.
The bill will prove to be a useful addition to the repertoire of legislation dealing with interjurisdictional issues concerning the protection of children. Although the legislation is likely to affect only a small number of children, it is clear that it is necessary in our modern-day society. All must be done to facilitate arrangements that are in the best interests of the child. However, I emphasise that resources, both financial and human, must be added to the Department of Community Services in order for the bill to be administered effectively. The implementation of the bill ought not to take away from other responsibilities carried out by the department, which are so very fundamental to the fabric of our society. On behalf of the Christian Democratic Party, I commend the bill to the House.
The Hon. GREG DONNELLY [3.18 p.m.]: I support this important Government bill, the Child Protection (International Measures) Bill. I would argue that one important way of discerning how developed a society has become, from a human point of view, is to look at the way it nurtures, protects and looks after its members, particularly those least able to do so. Down the ages civilised societies have recognised that, although it was only in the last century that a body of international law was developed to give fuller recognition to those important human rights. That body of law—commencing with the Geneva Declaration of the Rights of the Child 1924, the Universal Declaration of Human Rights 1948, the Declaration of the Rights of the Child 1959, the International Covenant on Civil and Political Rights 1966, the Convention of the Rights of the Child 1989, and The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (the Child Protection Convention)—has given particular attention to the rights of children. It is worth noting that the preamble to the Convention on the Rights of the Child specifically states, inter alia:
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection before as well as after birth."
New South Wales has a proven record as a leader in child protection in Australia. The enactment of this legislation will place New South Wales at the forefront of jurisdictions working to ensure that children are afforded the best protection at an international level. In 2003 Australia ratified the Child Protection Convention. This bill seeks to implement New South Wales' obligation arising out of that decision. Until now, Federal legislation has been in place. The enactment of this bill will invoke a rollback clause in that Federal legislation, resulting in New South Wales legislation prevailing. New South Wales is the third Australian jurisdiction to assume the child protection aspects of the convention from the Commonwealth. This bill, which is based on the Queensland model, aims to ensure the best interests of the child; promote co-operation between convention countries; overcome conflicts over jurisdiction and its limitations in respect of child protection measures; determine applicable laws; and provide for the recognition and enforcement of measures to protect children and their property.
The convention provides for international co-operation between convention countries for the better protection of children and young people. One of the most important aspects of the convention is its role in encouraging and promoting co-operation amongst convention countries by eliminating potential conflicts of jurisdiction between authorities in those different countries. The enactment of this bill will put in place a framework for the international recognition of measures of protection for children and young people. Importantly, this means it will be clear which country's child protection authorities have jurisdiction in relation to a child or a young person. Another major objective of the Child Protection Convention is to address the problem of international cases involving protection of children from abuse and neglect. There is no doubt that it is in the best interests of children and young people that there be internationally agreed rules determining which child protection authorities have jurisdiction in relation to a particular child or young person. The absence of agreed rules may mean that authorities in one country fail to act because they assume that authorities in another country have taken responsibility for protecting the child or young person.
Currently, only seven countries have both signed and ratified the convention. However, it is expected that up to 27 countries will have done so in the not too distant future. In time this will lead to a significant increase in the number of children who benefit from the provisions of this legislation. As a society we have a fundamental obligation to value and protect our children and young people. We all have a responsibility to do what we can to reduce the risk of harm and to promote the safety, welfare and wellbeing of all children and young people. All human life must be treated with dignity and respect. As lawmakers, we have a particular obligation towards those who are weak, vulnerable and, through their circumstances, unable to stand up and defend themselves. This bill makes an important contribution towards meeting that obligation. I commend the bill to the House.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.23 p.m.]: On 1 August 2003 Australia, with the support of all States and Territories, ratified the Child Protection Convention. Since 2003 the convention's international child protection measures have been administered in Australia through the Commonwealth Family Law Act 1975. It has always been the intention that each State and Territory would put in place legislation to implement these measures in each jurisdiction. New South Wales is now doing that. The Child Protection (International Measures) Bill will put in place jurisdictional laws relating to children who cross international borders where parenting orders or child protection concerns exist for the children. It will also provide a framework for co-operation between child protection convention countries to ensure the protection of children. The bill is based on model legislation approved by all Australian Parliamentary Counsels, the Standing Committee of Attorneys-General and the Community Services Ministers Committee.
Under the convention each State and Territory will be required to find solutions to the protection of particular children; assist in implementing measures, whether made here or elsewhere that are directed at protecting children; give consideration to initiating action in New South Wales at the request of a competent authority of another country if a response is required in New South Wales; exchange information subject to confidentiality and privacy laws; provide information on laws and services; help to locate children; provide reports on the situation of particular children; and apply the Children's Court or Family Court, as appropriate, for orders in response to requests from competent authorities of convention countries to transfer or receive jurisdiction, or take measures directed at protecting the person of a child.
The object of this bill is to implement in New South Wales the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which is otherwise known as the convention. The objects of the convention are to determine the State whose authorities have jurisdiction and to take measures directed at the protection of the person or property of the child. It will determine which law is to be applied by such authorities in exercising their jurisdiction, and determine the law applicable to parental responsibilities, which is not dealt with in the Act because it is dealt with in section 111CS of the Commonwealth Family Law Act 1975. It will also provide for the recognition and enforcement of such measures of protection in all contracting States and establish such co-operation between the authorities of the contracting States as may be necessary to achieve the purposes of the convention.
The following background was provided in the second reading speech. The Child Protection Convention is one of a number of Hague conventions, including conventions on adoption and child abduction, which aim to ensure the safety and wellbeing of children in the twenty-first century in which national borders are more open than they have ever been. The bill provides that the proposed Act does not apply to those matters to which the Child Protection Convention does not apply under article 4 of the convention. These matters are the establishment or contesting of a parent-child relationship, adoption, the name of a child, emancipation, maintenance obligations, trust or succession, social security, public measures of a general nature in matters of education or health, measures taken as a result of criminal offences committed by children, and decisions on asylum or immigration, as outlined under proposed section 4. Australia has caught up with this convention, which I gather was signed in 1996, and 10 countries are currently signatories to that convention.
Some people have married persons from another country, split up with them and access to their children has proved difficult. Often the country in which a child is born tends to minimise the rights of a parent from another country. A friend of mine had a relationship with a woman in Denmark and a child was born there. Effectively, that child can leave Denmark only when the Danish say so. The custody orders are extremely favourable to the mother in Denmark but extremely unfavourable to the father in Australia. Another friend of mine who is living in Japan has had children to a Japanese man. If she ever attempts to leave Japan the children will remain with their father because he is Japanese. So the custody issue is not in any way related to the sex of the parent; it is related merely to citizenship. The issue relating to which court has jurisdiction is extremely vexed.
I note that that aspect is not referred to in the convention and Australia supports the convention, which is a good thing. The more international law we have, the better. Australia's record with regard to children is far more questionable than it needs to be, with the Tampa and Siev-X episodes and the children in refugee camps. Those children, who are now out of refugee camps, effectively are not being given the same rights as Australian-born children and there is a huge compensation case against the Government. In one case, a child who spent a long time in detention in Australia probably has permanent psychiatric damage. The Iranian convention to which Australia is a signatory resulted in the return of some people to Iran. Work visas were given to Iranian people and they and their children came to Australia. There appears to be a lack of data about those adults and children who were affected.
International laws regarding child sex trafficking require a good deal of attention. We must remain vigilant because child sex trafficking is still occurring. We can only hope that this bill will make it easier to keep track of children and safeguard their welfare. I hope that more countries will sign the international convention. The convention does not address all the difficulties facing children—who, to some extent, continue to be viewed as being the property of the country in which they were born and of their parents—and we must work to protect children's autonomous rights. This convention is a step in the right direction, as is our ratification of it.
The Hon. JOHN RYAN [3.30 p.m.]: Intercountry adoption is another area where measures such as The Hague convention have an impact on New South Wales practices. I think it is appropriate to inform the House of, or at least to ventilate in this place, a number of concerns that I have with the manner in which the Government has carried out its responsibilities regarding intercountry adoptions. Frankly, the Department of Community Services [DOCS] seems to have some sort of hang-up when it comes to intercountry adoptions. It appears to hold the ideological view that such adoptions are somehow wicked and evil and that the people who participate in this process should be treated with enormous suspicion. New South Wales residents who wish to adopt a child through the process of intercountry adoption are subjected to the most incredibly rigorous examination by the Department of Community Services. Some of that examination is appropriate but I remind the House that prospective adoptive parents must also pay the most phenomenal fees.
This Government is on record as having tripled the fees that are charged to people seeking to enter into intercountry adoptions, even though that practice already involves a considerable expense to applicants. The department's prejudice against intercountry adoptions was almost ventilated by a former Minister for Community Services, who used to be a member of this place, who expressed the view that poor parents do not attempt intercountry adoptions. The simple truth is that intercountry adoptions have a noble purpose. Such adoptions are not the equivalent of what occurred with the Stolen Generation. They do not involve removing children from perfectly good, functioning families and from their culture and environment. Intercountry adoptions invariably involve children who are in danger and who have no future. In fact, many children would die if they were not removed from their current circumstances and offered opportunities by loving parents in another country.
Of course, it is not an optimal situation: we would prefer children to grow up with their natural parents in a healthy environment. But in large part that is not going to happen for the children who become the subject of intercountry adoptions. Not only has the department increased fees for intercountry adoptions but the adoption procedures take years. In countries such as New Zealand an intercountry adoption can sometimes take as little as 12 months. In New South Wales it is not uncommon for intercountry adoption procedures to be completed over two or three years. Parents who successfully adopt a child from overseas must sometimes wait another two or three years before they can adopt again, which means that there is an enormous age gap between their first and second children.
The Department of Community Services appears to believe that it needs to conform with The Hague agreement. New Zealand is a signatory to The Hague agreement and it seems somehow to be able to complete intercountry adoptions more efficiently and with lower fees than New South Wales can manage. Some Labor members may have complained—I do not know whether the Government has an official view on this subject—about the cost of IVF treatment. It is expensive. Some would even say that it is phenomenally expensive and that people should not put the public hospital system to the enormous cost of providing IVF treatment. Adoption is an alternative for people who seek to become parents but who cannot do so naturally. The Department of Community Services appears to ignore the many opportunities for adoption that exist.
The simple fact is that in New South Wales the rates for both domestic and intercountry adoptions have been falling consistently, notwithstanding the fact that the number of children in public care has been escalating—in fact, I think it has doubled over 10 years. About 10,000 children in New South Wales are in public care, yet the Department of Community Services domestic adoption numbers have fallen to a little more than a couple of dozen. Two or three times a month the Children's Court will return children—sometimes without rigorous intervention by DOCS—for the second and third time to people who simply will not make it as parents. The director general of DOCS admitted to me that that occurs largely become the department has an anti-adoption culture. Sadly, that culture affects not only domestic but also intercountry adoptions.
The Government has been slow to implement the measures in this bill. I urge it now to amend New South Wales law to ensure that parents in this State who have adopted children of overseas origin also benefit from international laws. It is about time the Government hurried up and introduced other measures to benefit parents who want to enter into intercountry adoptions. I remind the Government that it promised to establish a non-government organisation to process intercountry adoptions as an alternative to the Department of Community Services performing this role. But there has been no progress in this area. In fact, the Government has positively hindered progress by requiring a number of the organisations that would readily take up that challenge to lodge with the Government enormous amounts of money—something in the order of $500,000—as an indemnity in cases where a child is placed and something goes wrong. If indemnification were required I would have thought it would be more appropriate for the Government to provide it.
Parents who wish to adopt children from overseas need help. They deserve the Government's support and the assistance of the Department of Community Services, which should stand by them. The department should not hinder parents by creating problems at every turn and regarding them with enormous suspicion and disbelief at every stage of the process. In my former role as the shadow Minister for Community Services I met dozens of wonderful parents of children from overseas. There are dozens of very happy children who are growing up in New South Wales as a result of intercountry adoptions. Many honourable members have noted that the Government took its time in introducing this legislation. I ask the Government to consider implementing other measures relating to intercountry child protection arrangements. It should get on with those as well.
The Hon. Dr PETER WONG [3.38 p.m.]: I support the Child Protection (International Measures) Bill. I share the concerns expressed by the Hon. John Ryan about the unfriendly attitude that the Department of Community Services takes to intercountry adoptions, its harsh treatment of applicants, the unreasonable fees and the other issues that he raised. I note that the bill will implement, in essence, the child protection convention. Like the Minister, I believe the measures will be of significant benefit to Australian families, particularly children who are the subject of international child protection litigation. The Minister also said that the New South Wales bill, together with other Federal and State legislation, will clarify responsibilities and eliminate jurisdictional conflicts between Australian and foreign courts in child protection cases.
The legislation will help to alleviate a great deal of suffering amongst, I am glad to say, only a small number of children. I say that one child who has to suffer the problem this bill deals with is one child too many. However, I express concern not about what this bill seeks to regulate but the way it will work. I hope that the Department of Community Services will learn a great deal from this legislation because significant numbers of children in this State experience similar problems of abuse when they move between States and/or are abducted by a family member within this State and country.
I am well aware of the work of the Hon. Brad Hazzard in the Legislative Assembly who has in the past raised grave concerns about the failures of the Department of Community Services to protect children who have been abused either when they move out of New South Wales jurisdiction after having been the subject of notification to the Department of Community Services or when they move to New South Wales after being the subject of similar child protection concerns in other States. Mr Hazzard has alerted the Parliament, and I understand the department itself, to numerous cases where children have been placed at risk, because domestic laws in this country do not achieve what this legislation intends to attain. I hope that the department's administration improves with this legislation, because I believe that hundreds of children in this State would benefit from a bill based not only on international measures but also on equally significant national measures.
Reverend the Hon. FRED NILE [3.42 p.m.]: I support the Child Protection (International Measures) Bill and endorse the remarks of Reverend the Hon. Dr Gordon Moyes and the Hon. Greg Donnelly. I want to refer to the use of conventions, whether it is the Hague convention or the United Nations convention. The Child Protection Convention is non-controversial. This bill seeks to implement the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of parental responsibility and measures for the protection of children in New South Wales. The main purpose of the bill is to ensure that child protection orders, which are put in place for the safety and wellbeing of this State's children, will be recognised and will continue to protect them when they are abroad. The legislation will also allow foreign child protection orders to be recognised in New South Wales.
In the 1950s and 1960s, when these conventions were adopted after debate and consideration, they were rubber stamped by a majority of nations. In recent years that practice has dramatically changed and conventions are closely examined because of the need for a clear understanding of the meaning of the United Nations and The Hague conventions. Sometimes what appears to be an innocent phrase has a hidden meaning when written into legislation or used in a legal way. A strange development in recent years, particularly in the United Nations conventions relating to children or women's issues or health, has been that the convention's terminology has been intentionally manipulated to include a pro-abortion policy without using the word "abortion".
Christian nations with large Catholic populations, particularly in South America—not Australia, the United States of America, the United Kingdom and Canada, the progressive Western nations—joined with Muslim nations to create a voting block to change the wording of certain conventions to remove double-meaning terminology. The meaning and intention of those conventions were clarified so they could not be misused in the future. In the past, governments would ratify and rubber stamp conventions, which then became legally enforceable under Australian and New South Wales law. Governments and politicians have found to their surprise that they have unintentionally opened a Pandora's box. Having signed a convention, they find that they are bound to interpret and apply it accordingly.
I have always argued that a convention should be debated in the Federal Parliament before being signed and ratified. Whether it was ever the intention of our founding fathers, under the Federal constitution treaties can be signed on behalf of Australia by the Minister for Foreign Affairs or by the Prime Minister, who then report to Parliament. I believe that practice is back to front but I understand that when the word "treaties" was included in our Australian constitution it related to friendship treaties between Australia and New Zealand, the United Kingdom, Canada or the United States. The treaties would be discussed and negotiated and then finally signed and accepted.
The United Nations and The Hague conventions, including the Child Protection Convention, deal with the minute detail of law. For that reason I believe the convention should be accepted by the Australian representative, that is, the Minister for Foreign Affairs, and brought back to the Federal Parliament. If the Government continues to support it and it is debated and voted on by both Houses of the Federal Parliament, it may be ratified and signed with full knowledge of its meaning so that it is not in conflict with Australian laws, culture, tradition or Christian heritage. It is very important to consider that in the future. Senator Harradine was a strong proponent of that view but I do not think he was successful in the Senate. That process should be looked at by the Federal Government. Our State Government should not blindly ratify or embody conventions in State legislation unless we fully understand what it means and the effect of its application. New South Wales should reserve the right to decide whether it will incorporate those conventions in this State's legislation.
It is very important to protect our children. No-one in their right mind would argue against that. So it is strange that in our modern society there is so much abuse of children. One would think that as we become more civilised there would be less abuse of children, that they would need less protection. But the reality is that large numbers of children all round the world are being abused physically, sexually and mentally—hopefully not on that scale in Australia, but it is happening in individual cases. Obviously, when it does, our police take action. Abuse of children on a large scale is occurring in a number of countries that seem to openly accept children being treated as slaves or, as happens in some African nations, being recruited into revolutionary armies. These armies build up their strength by kidnapping and brainwashing children, and then supplying them with modern firearms. Then, as members of those armies, they carry out the most brutal attacks on innocent people, such as villagers and so on.
In our own society we have heard of cases of child prostitution and abuse of children for child pornography. I am pleased by recent reports of arrests of large numbers of adults, usually males, who are detected by Internet technology to be viewing child pornography on the network. These people are very sick, mentally and morally; they get pleasure from viewing child pornography. In some recent cases, police have stated that 18-month-old babies were being abused for the purposes of child pornography, or what is virtually baby pornography. Those men, when caught, have been charged. Sadly, the sentences they receive are very light—much less than the sentences that this Parliament set for such offenders and expected they would get. I am sure the arresting police too would have expected much harsher sentences. I am very disappointed to learn that some offenders are getting 6- and 12-month gaol terms, some even receiving community service orders, when our legislation provides for heavy penalties of imprisonment for 5, 10 and 15 years. Those sorts of sentences are not being imposed by the justice system, and in particular by the judges.
Even though some of these men are being caught—they number in the hundreds—I become concerned when I think, "Where is that 18-month-old baby? Where is the child that has been abused for child pornography?" Some members may know but, from my reading and study on this issue, I do not know of any case in which the child has been located, and protected by being removed from that environment. That should be a priority of police. I know it is difficult, because police are looking for photographs and other pornographic material to be used as evidence, but I know of cases where magnification of child pornographic photographs has revealed something in the background—such as the cover of a book, or in one case a bottle label—that would help identify the country, hopefully the city, that the material is coming from, or otherwise assist with attempts to establish where children are located. Where the pornography involves a child being sexually abused, photographed or videotaped, a real person, a child, is at the centre of that pornography.
So I am pleased to support the Child Protection (International Measures) Bill 2006. I know the next matter I raise is not a main purpose of the bill; I refer to children being taken from or coming into Australia. In the majority of cases it involves a dispute following breakdown of a marriage, and the husband or wife kidnapping the child and taking it overseas or bringing it into Australia. We need to make sure there is no trafficking in children for use in child pornography or child prostitution. We support the bill.
The Hon. HENRY TSANG (Parliamentary Secretary) [3.55 p.m.], in reply: I thank honourable members for their support of the bill. I would like to respond to questions raised by the Opposition and the Greens. Time has been spent to get things right and there has been no delay. Time was taken to tailor a service that meant New South Wales has two agencies, rather than one agency, to implement the provisions of the bill. Those two agencies are the Department of Community Services and the Public Trustee. The involvement of the Public Trustee will give greater assurance for property and financial matters than if those matters were being handled by the Department of Community Services. The Public Trustee has skills in working with money, while the Department of Community Services is a great agency to look after the welfare of children. No other State places this emphasis on promoting the rights of the child. This bill, as honourable members have said, has nothing to do with inter-country adoptions. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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