Reverend the Hon. Dr GORDON MOYES: 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 to provide 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 the 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 effectively administered. 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.

Tuesday, 4th April, 2006, 3:04 pm | Articles