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1
Child Protection (International Measures) Bill 2003
CHILD PROTECTION (INTERNATIONAL
MEASURES) BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
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 (the Child
Protection Convention) in Queensland.
To make amendments to the Child Protection Act 1999 to correct minor
drafting errors, clarify the intention of the Act and to address anomalies.
To make amendments to the Juvenile Justice Act 1992 to correct minor
drafting errors.
Reasons for the objectives and how they will be achieved
The movement of children and their families across international borders
is increasing due to the globalisation of the world economy, the ease of
international travel, the increase in cross-cultural marriages and
displacement due to war and natural disasters.
A number of international conventions have been established and ratified
by Australia to promote the protection of children when they move between
countries. These include the Hague Convention on Civil Aspects of
International Child Abduction and the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption.
The purpose of the Child Protection Convention is to provide for
international co-operation between Convention countries in taking
measures of protection for the person and property of children. The
Convention promotes co-operation among countries by eliminating
potential conflicts of jurisdiction between authorities in different countries,
by providing for the international recognition of measures of protection for
children and by establishing formal mechanisms for co-operation and the
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Child Protection (International Measures) Bill 2003
sharing of information between child protection authorities in different
countries.
The Child Protection Convention:
· allows residence and contact orders to be recognised and
enforced internationally;
· provides a framework for co-operation and an exchange of
information in relation to the whereabouts and welfare of a child
and the need to take measures to protect the child;
· imposes an obligation on authorities in Convention countries to
inform authorities in other countries if they are aware of a child
being exposed to serious danger in that other country;
· establishes rules to avoid conflict between the legal systems of
different countries by establishing rules in respect of jurisdiction,
applicable law, recognition and enforcement measures for the
protection of children and their property;
· provides for the country which is the habitual residence of the
child to have jurisdiction to make decisions for the child's
benefit, except in the case of emergency in which case the
country in which the child is living at the time will have
jurisdiction to take urgent action.
The Convention relates to parental responsibilities such as custody, the
right to determine the child's place of residence, access, guardianship,
children's property, placement of a child in a foster family or institutional
care and the supervision by a public authority of the care of the child.
The Convention does not apply to adoption, maintenance obligations,
the establishment or contesting of a parent child relationship, issues
relating to the name of the child, emancipation, trusts or succession, social
security, public measures of a general nature in matters of education or
health, decisions on asylum or immigration, or measures taken as a result
of criminal offences committed by children.
Ratification of the Convention will not alter the substantive law in
Australia relating to the nature of, or procedures for obtaining, measures
for the protection of children.
The Commonwealth has lodged Australia's instrument of ratification of
the Child Protection Convention so that it will come into operation in
Australia on 1 August 2003.
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Child Protection (International Measures) Bill 2003
Legislation to implement the Convention must be enacted by the
Commonwealth and all Australian States and Territories.
The Commonwealth has enacted the Family Law Amendment (Child
Protection Convention) Act 2002 and will make regulations under this Act
to implement the family law aspects of the Convention.
Legislation to implement the child protection aspects of the Convention
is the responsibility of the States and Territories.
Model legislation to assist the States and Territories in implementing the
child protection aspects of the Convention has been developed by
Queensland for the Parliamentary Counsels' Committee at the request of
Community Services Ministers' Conference and the Standing Committee
of Attorneys-General, after extensive consultation between the
jurisdictions.
The model bill is a stand alone piece of legislation intended to be
enacted in substantially the same form in each jurisdiction, although it is
not intended to be uniform legislation. Each State and Territory will have
responsibility for and control over the form of their own Bill and
consequential amendments.
The Child Protection (International Measures) Bill 2003 is substantially
based on the model bill, reflecting the fact that the model bill was drafted
by the Office of the Queensland Parliamentary Counsel from a Queensland
perspective. Other States and Territories may use the model bill as the
basis for their legislation with changes to ensure compatibility with other
legislation in their jurisdictions.
The Child Protection (International Measures) Bill 2003 will benefit
children and families who move between Queensland and Convention
countries and for whom there are child protection concerns by
implementing internationally agreed rules contained in the Convention:
· determining which child protection authorities have jurisdiction
in relation to a child, and
· establishing formal co-operation procedures between child
protection authorities in different countries.
Formal co-operation procedures for child protection authorities will
assist in resolving many of the cases that come to the attention of
Australian child protection authorities. Some examples of the types of
cases that can arise are:
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Child Protection (International Measures) Bill 2003
· overseas authorities requesting to transfer child protection
measures for children immigrating to Australia;
· cases in which children subject to foreign child protection
measures are brought to Australia without notice to the
Australian child protection authorities;
· cases in which child protection proceedings have commenced in
Australia but the child is removed to another country prior to the
conclusion of the proceedings;
· overseas authorities asking Australia to check on the welfare of a
child visiting Australia on a contact visit; and
· parents in Australia seeking the transfer to Australian authorities
of children in the care of overseas child protection authorities.
Implementation of the Convention by this Bill will simplify the process
of resolving these cases by providing for direct communication between
central authorities in Convention countries, thus eliminating the delays and
confusion which often arise from the current practice of using diplomatic
channels to identify authorities responsible for handling child protection
cases and to pass communications to and from Australian child protection
Departments.
By designating the State child protection authority (the Department of
Families) as the Central Authority for the purpose of implementing the
Convention, the Bill will avoid problems for the Department that have
arisen in the past in establishing its status and authority to the satisfaction
of overseas courts and authorities.
The Bill implements the Child Protection Convention by providing for:
· clarification of Queensland's jurisdiction in relation to the
protection of children (part 2)
· clarification of Queensland's jurisdiction in relation to the
protection of the property of children (part 3)
· clarification that a Queensland authority must apply Queensland
law when exercising jurisdiction under parts 2 and 3 (part 4)
· a scheme for the recognition and enforcement of foreign
protection measures in Queensland (part 5)
· procedures for co-operating with Convention and non-
Convention countries (part 6).
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Child Protection (International Measures) Bill 2003
An example of a Queensland case where implementation of the
Convention by this Bill would have assisted the children by reducing delay
and costs follows.
A Queensland woman with two children married an American man in
Australia. The family moved to the USA. The children were taken into
care by child protection authorities in the US State following allegations of
abuse of the children by the stepfather. The parents separated and the
mother returned to Queensland, where she sought assistance from the
Department of Families to have the children returned to Queensland. The
negotiations between the Department and the US State were difficult and
protracted because of:
· the lack of established co-operative arrangements between
Australia and the USA, which would have allowed for the
transfer of responsibility for the children;
· the difficulty in locating the appropriate officer in the US State
with authority to negotiate;
· the difficulty in satisfying the US State of the appropriateness of
the proposed care arrangements in Queensland; and
· the difficulty of satisfying the US State authorities that the
Department of Families would take immediate and ongoing
action to protect the children.
The judge of the US State court insisted on involving the Minister, as the
judge was unsure of the status and authority of officers of the Department
of Families to deal with the matter. Eventually, negotiations between the
judge and the Department, through the Minister, resulted in the children
being removed to Queensland, where they were placed with a foster carer
under a care and protection order. The mother eventually regained custody
under a protective supervision order. If the Child Protection Convention
had been in place at the time of this case, the co-operation provisions
would have clarified the appropriate authorities through which negotiations
should occur, thereby expediting the resolution of the matter. Even if the
USA were not a party to the Convention, the fact that the Department of
Families had the status of a Central Authority under the Convention would
assist in dealings with the US State.
Amendments to the Child Protection Act 1999
The Child Protection Act 1999 commenced in March 2000. Since that
time, problems with the drafting of a number of provisions have been
identified. Some of these problems are drafting errors or omissions. Other
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Child Protection (International Measures) Bill 2003
provisions have been identified in practice as not reflecting the intent of the
provisions as outlined in the Explanatory Notes for the Child Protection
Bill 1998. The proposed amendments are amendments that:
· are technical in nature, or
· are minor and non-controversial, and
· do not have significant policy or practice implications.
Amendments to the Juvenile Justice Act 1992
The Juvenile Justice Act 1992 provides the legal and legislative
framework for the administration of the criminal youth justice system in
Queensland.
As a result of the wide-ranging review of the Act, the Juvenile Justice
Amendment Act 2002 was passed in Parliament on 22 August 2002. The
Juvenile Justice Amendment Act 2002 was proclaimed on 12 December
2002 and certain sections, such as sections dealing with confidentiality and
publication of identifying information, commenced 16 December 2002.
The remainder and majority of the provisions are set to commence
operation on 1 July 2003.
A review conducted by officers of the Office of Queensland
Parliamentary Counsel has revealed the need to further amend the Juvenile
Justice Act 1992 to correct minor errors and references in the Act.
References in the notes on provisions are to the Juvenile Justice Act 1992
as re-numbered after 1 July 2003.
Estimated costs for government implementation
No additional financial implications are expected to arise from the
implementation of the Child Protection Convention by this Bill. It is not
expected that ratification of the Convention and its implementation will
result in a significant increase in the number of international cases being
dealt with by the Department of Families. The Department is already
expending resources in dealing with overseas child protection cases. At
present such cases arise infrequently but, when they do occur, their
resolution can be a complex and lengthy process. While there may be
some additional costs in communicating with overseas authorities, there
may be some savings arising from the simplification of the process of
resolving child protection cases as a result of implementing the
Convention. By promoting co-operation and direct communication
between authorities, the Convention should assist in reducing the
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Child Protection (International Measures) Bill 2003
considerable expenses that have been incurred in the past when these
matters have arisen.
There are no additional financial implications for the amendments to the
Child Protection Act 1999 and to the Juvenile Justice Act 1992. The
proposed amendments are either technical or reflect current practice.
Consultation
Consultation has occurred with:
· Department of Premier and Cabinet
· Department of Justice and Attorney-General
· The Office of the Public Trustee
· The Chief Justice of the Supreme Court
· The Childrens Court President
· The Acting Chief Magistrate
· The Children Services Tribunal
· The Commission for Children and Young People.
The implementation of the Child Protection Convention in Australia has
been the subject of lengthy consideration by Commonwealth, State and
Territory Governments. A working group of Commonwealth and State
officials, established by the Standing Committee of Attorneys-General and
the Community Services Ministers' Conference, developed the model
legislation through extensive consultation between all Australian
jurisdictions commencing in 1997.
Consistency with fundamental legislative principles
Whether legislation has sufficient regard to the institution of Parliament.
(Legislative Standards Act 1992, section 4(2)(b))
Parliamentary scrutiny committees nationally have identified elements of
National Scheme Legislation as potentially undermining the institution of
Parliament. The model legislation upon which this Bill is based does not
constitute National Scheme Legislation. The model Bill was drafted with
the intention that it be used as an aide to assist States and Territories in
implementing the Child Protection Convention. Jurisdictions are free to
choose whether or not to use the model Bill as the basis for their
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Child Protection (International Measures) Bill 2003
legislation. Each State and Territory will have responsibility for and control
over the form of their own Bill and consequential amendments.
Because the Office of the Queensland Parliamentary Counsel drafted the
model Bill from a Queensland perspective, the Child Protection
(International Measures) Bill 2003 largely reflects its provisions.
In order to implement the Child Protection Convention, the provisions of
State legislation must reflect the obligations, duties and processes set out in
the Convention. Consequently, it is expected that there will be little
variation in the substance of the legislation between States and Territories.
Whether legislation has sufficient regards to the rights and liberties of
individuals (Legislative Standards Act 1992, section 4(2)(a))
Clauses 30, 32 and 34
These clauses relate to the sharing of information about children
between authorities and are contained in part 6 of the bill, which deals with
co-operation between Convention countries. These provisions may be
considered a breach of individuals' privacy and rights to the protection of
their personal information. Clause 30 sets out the functions of the
Department as Queensland's central authority. Clause 30(1)(d) provides
that it is a function of the Department to exchange information with other
authorities. However this exchange of information is subject to appropriate
confidentiality provisions. In the Queensland child protection context,
these provisions are sections 186 to 188 of the Child Protection Act 1999.
Clause 30(1)(g) provides that it is a function of the Department to provide
reports to central authorities on the situation of particular children. The
compulsory provision of information to competent authorities under clause
32 is limited to situations where children are in serious danger. Under
clause 34, information may be given to an Australian court, the
Commonwealth central authority, other State central authorities and other
Australian competent authorities or central authorities or competent
authorities of Convention countries only where the giving of the
information is consistent with the Act or the Child Protection Convention.
These provisions are integral to implementing the Child Protection
Convention and are justified by:
· the need to ensure the protection and welfare of children crossing
international borders;
· the limitations contained in the provisions; and
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Child Protection (International Measures) Bill 2003
· agreement to these provisions by all jurisdictions as part of a co-
ordinated approach.
Schedule 3, Child Protection Act 1999 clauses 14, 15, 18 and 36
The amendments to the Child Protection Act 1999, sections 126(b),
130(b) and 142(1) and the definition of `suitable person' in Schedule 3
may be considered as adversely affecting the rights of individuals by
extending the class of persons required to undergo compulsory criminal,
domestic violence and traffic history checks. However, this imposition is
justified to ensure the safety of children and to protect them from further
harm while in the care of the State. The intervention by the State in the
lives of children who have been harmed within their families creates a duty
in the State to ensure children are not further harmed while in the care of
the State. This duty of care cannot be properly discharged if significant
information about persons who have access to children in care because of
their position within a licensed care service is not available to the
Department of Families. It is considered that the rights of vulnerable
children to be protected from further harm while in the care of the State
override adult rights in these circumstances.
The Department of Families currently conducts these checks with the
consent of the individuals involved and will continue to seek consent.
However, a legislative power to conduct these checks is required where
consent is not forthcoming. A legislative requirement to ensure the
suitability of these persons is necessary to protect children from harm
while they are in the care of the State.
Under section 136 and Schedule 2 of the Child Protection Act 1999, a
refusal to grant or renew a licence is subject to administrative merits review
by the Children Services Tribunal.
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Child Protection (International Measures) Bill 2003
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the title by which the Bill will be cited once it is
enacted.
Clause 2 provides for Schedule 3 to commence on a day to be fixed by
proclamation.
Clause 3 sets out the main purposes of the Bill, which are to recognise:
· the importance of international co-operation for protecting
children,
· the need to avoid conflict between the legal systems of different
countries in relation to measures for the protection of children,
and
· that a child's best interests are a primary consideration in relation
to measures of protection for the person and property of a child.
These purposes reflect the Preamble of the Child Protection Convention.
Clause 4 restricts the application of the Bill. Clause 4(1) provides that
the Bill 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 the 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, or decisions on asylum or immigration.
Clauses 4(2) and 4(3) refer to reciprocal arrangements between
Queensland and New Zealand for the interstate transfer of child protection
orders and proceedings. These arrangements are established in the Child
Protection Act 1999, chapter 7, parts 1 to 6 and in reciprocal New Zealand
legislation, the Children, Young Persons and Their Families Act 1989 (NZ),
part 3A. The Bill does not apply to arrangements made between
Queensland and New Zealand pursuant to this legislation, except to the
extent of any inconsistency between the Bill and the arrangement in
providing for the exercise of jurisdiction by Queensland or a competent
authority in a Convention country, in which case the Bill prevails. This is
because it is not the intention of the Child Protection Convention to
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Child Protection (International Measures) Bill 2003
override any bilateral arrangements that provide for a greater level of
protection for children who move between the two jurisdictions.
Clause 4(4) provides that measures taken in another country before the
Child Protection Convention came into force for that country may be
recognised in Queensland under the Bill after the Convention has come
into force in Australia and the relevant country.
Clause 5 provides that the Act binds all persons, including the State.
Clause 6 provides for definitions for the Bill. Clause 6(1) provides for
the dictionary in Schedule 4 to define words used in the Act. Clause 6(2)
provides that, unless the contrary intention appears, expressions used in the
Act or in regulations made for the Act have the same meaning as they have
in the Child Protection Convention. Thus the meaning of words used in the
Convention is relevant in determining the meaning of words such as
`measure' (articles 3 and 4), `habitual residence' (articles 5 and 7),
`urgency' (article 11) and `public policy' (article 23.2(d)).
Clause 7 provides that when a Queensland court exercises jurisdiction
under the Act, the court may exercise jurisdiction on application by the
department or the public trustee or on its own initiative. This clause limits
who may make applications to a court under this Act to the department and
the public trustee and other persons who may make an application under
another provision of this Act or another Act. In Queensland, child
protection orders can only be sought by the Department of Families. This
clause differs slightly from the Convention to give only the Department of
Families (or, in the case of property orders, the Public Trustee) the right to
make an application to a court under the Act. This is a position to be
adopted by all States and Territories on the basis that parties to
international matters should not have greater rights than parties residing
within the State or Territory. This clause also recognises the fact that child
protection orders in Queensland and in other States and Territories are
administered by the child welfare departments. The Child Protection
Convention is broadly worded to cover both family law and child
protection measures, which in many international jurisdictions are
administered by the same court. The drafters of the Convention did not
wish to draft the Convention in separate parts for civil law jurisdictions and
for common law jurisdictions to accommodate the variations in law
between these jurisdictions.
In accordance with section 33(7) of the Acts Interpretation Act 1954, a
reference to department is a reference to the department of government that
deals with the matter to which the Act relates and is administered by the
Minister who administers the Act.
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Child Protection (International Measures) Bill 2003
PART 2--JURISDICTION FOR THE PERSON OF A
CHILD
This part implements articles 5 to 14 of the Child Protection Convention
in relation to the jurisdiction of Queensland authorities (the courts and the
Department of Families) to take measures directed to the protection of the
person of a child. In implementing these articles, part 2 takes the approach
of dealing with the various grounds of jurisdiction referred to in the articles
according to the distinction traditionally applied by Australian courts,
between children present in Australia and children present in other
countries.
Clause 8 provides in effect that the rules of jurisdiction in part 2 apply
only in the event of a conflict in jurisdiction between a Queensland court or
the Department of Families and a competent authority in another country
and not where the conflict in jurisdiction is between Queensland and
another Australian competent authority. This provision implements the
preamble to the Child Protection Convention (which makes it clear that the
Convention is directed to the protection of children in international
situations) and article 46 of the Convention which provides that a
Convention country is not obliged to apply the provisions of the
Convention to conflicts solely between different systems of law in that
country. Thus neither the Convention nor part 2 applies to conflicts in
jurisdiction solely between a Commonwealth authority and a State
authority, or conflicts in jurisdiction solely between authorities of different
States in Australia.
Clause 9 sets out the jurisdiction of Queensland authorities to take
personal protection measures for children. The clause implements articles
5 to 14 and 47 of the Child Protection Convention by dealing with the
various grounds of jurisdiction referred to in the articles according to the
distinction traditionally applied by Australian courts, between children
present in Australia and children present in other countries. Thus a
Queensland authority may take a Queensland personal protection measure
for a child in relation to:
· a child who is present and habitually resident in Australia (article 5);
or
· a child who is present in Australia and habitually resident in a
Convention country, if:
· the child's protection requires taking the measure as a
matter of urgency (article 11)
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Child Protection (International Measures) Bill 2003
· the measure is provisional and limited in its territorial effect
to Australia (article 12)
· the child is a refugee child (article 6)
· a request to assume jurisdiction is made to the Queensland
authority by a competent authority in the country of the
child's habitual residence (article 8), or
· a competent authority in the country of the child's habitual
residence agrees to the Queensland authority assuming
jurisdiction (article 9); or
· a child who is present in a Convention country, if:
· the child is habitually resident in Australia (article 5)
· the child has been wrongfully removed from or retained
outside Australia and the Queensland authority retains
jurisdiction under article 7 of the Convention (article 7)
· a request to assume jurisdiction is made to the Queensland
authority by a competent authority in the country of the
child's habitual residence (article 8), or
· a competent authority in the country of the child's habitual
residence agrees to the Queensland authority assuming
jurisdiction (article 9); or
· a child who is present in Australia and is a refugee child (article 6).
To avoid doubt, clause 9(2)(e) and (f) preserves the jurisdiction of
Queensland authorities to take measures for the protection of the person of
a child:
· who is present in a non-Convention country, if:
· the child is habitually resident in Australia, or
· the child is habitually resident in a non-Convention country
but is an Australian citizen; or
· who is present in Australia, if the child is habitually resident in a
non-Convention country.
Clause 9(3) supplements clause 9(2)(b)(ii) in its implementation of
article 12 of the Child Protection Convention in relation to the jurisdiction
of a court or the department to take a provisional measure for the protection
of a child.Clause 9(4) makes clear that the grounds of jurisdiction set out in
clauses 9(2)(a) to (d) are subject to the limitations in clauses 10, 11 and 13.
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Child Protection (International Measures) Bill 2003
Thus clause 9 is a comprehensive statement of the grounds of
jurisdiction of Queensland authorities to take measures of protection for
the person of a child.
Clause 10 implements article 7 of the Child Protection Convention
which provides that the authorities of the country of the child's habitual
residence retain their jurisdiction to take measures of protection for a child
who has been wrongfully removed from or retained outside the country
unless and until certain conditions are met. For example, if a child is
removed from a Convention country to Queensland by a person in breach
of an order granting custody of the child to another person, courts in that
country would retain jurisdiction to make orders in relation to the child.
However, if the child has been unlawfully removed to Queensland, under
clause 9(2)(b)(i), Queensland authorities may take urgent measures to
ensure the protection of the child.
Clause 11 relates to article 13 of the Child Protection Convention which
in effect prohibits an authority in a Convention country which has
jurisdiction under articles 5 to 10 from exercising that jurisdiction if an
authority in another Convention country is exercising jurisdiction in
accordance with the Convention, ie it deals with conflicts which may arise
where concurrent jurisdictions exist under articles 5 to 10 of the
Convention. Clause 11 differs from article 13 in that it requires the
Queensland authority to find out whether measures have been sought in the
other country. This difference recognises that in Australia, unlike in many
other countries, child protection matters are separate proceedings to family
law matters. It would not protect children if the Childrens Court or the
Department of Families were constrained from taking action to protect a
child in Queensland merely because a court in another jurisdiction was
determining a family law dispute relating to the child. Clause 11(1) limits
clause 11(2) to certain grounds of jurisdiction because the prohibition on
exercising concurrent jurisdiction in article 13 does not apply to urgent
measures under article 11 (clause 9(2)(b)(i)), provisional measures under
article 12 (clause 9(2)(b)(ii)) or where there is concurrent jurisdiction with
a non-Convention country (clause 9(2)(e) and (f)).
Clause 12 assists in implementing articles 8 and 9 of the Child
Protection Convention. Clause 12 outlines the process for a Queensland
authority to assume jurisdiction where another Convention country has
jurisdiction under articles 5 or 6. Clause 12(1) implements article 8 by
providing that a Queensland court or the department may accept or reject a
request by a competent authority in another Convention country for the
court or department to assume jurisdiction to take a Queensland personal
protection measure for a child.
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Child Protection (International Measures) Bill 2003
Clause 12(2) implements article 9 by providing that the court may order
the department to request a competent authority in another Convention
country to agree to the court assuming jurisdiction for the child.
Consistently with article 9.3, clauses 9(2)(b)(v) and 9(2)(c)(iv) provide that
the court or department may only exercise jurisdiction if the authority in
the country of the child's habitual residence or country of refuge agrees to
the request.
Clause 12(3) implements article 9 by providing that the court may only
order the department to request the overseas authority to agree to the court
assuming jurisdiction if the court considers it is better placed to assess the
child's best interests than the overseas authority.
Clause 13 assists in implementing articles 8, 9 and 13 of the Child
Protection Convention. Clause 13 outlines the process for a competent
authority in another Convention country to assume jurisdiction where
Queensland has jurisdiction under articles 5 or 6. Clause 13(1) provides
that a court may order the department to request a competent authority in
another Convention country to exercise jurisdiction for the child.
Clause 13(2) provides that the court may make any other order for the
purposes of an order under clause 13(1). Thus, consistent with article 8.1
of the Convention, the court might make an order suspending the
proceedings before the court pending a decision by the overseas authority
on the request to transfer the jurisdiction.
Clause 13(3) implements article 8 by providing that an order under
clause 13(1) can be made only if the court considers the overseas authority
is better placed to assess the child's best interests.
Clause 13(4) implements article 9 by providing that the court may accept
or reject a request under article 9 by a competent authority in another
Convention country to agree to the authority assuming jurisdiction to take a
personal protection measure for a child.
Clause 13(5) implements article 13 by providing that the Queensland
court must not exercise jurisdiction to take a personal protection measure
for a child if the competent authority in the other Convention country
assumes jurisdiction under the request. Consistently with article 13, the
Queensland court is not prevented from taking urgent or provisional
measures for the protection of the child.
Clause 14 implements articles 11 and 12 of the Child Protection
Convention. Clause 14(1) implements articles 11.2 and 12.2 in relation to
Convention countries by providing that an urgent measure for a child in
accordance with clause 9(2)(b)(i) (article 11.1) or a provisional measure for
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Child Protection (International Measures) Bill 2003
a child in accordance with clause 9(2)(b)(ii) (article 12.1) ceases to operate
if a measure directed to the protection of the person of the child taken by a
competent authority in another Convention country is recognised by
registration under clause 25.
Clause 14(2) implements articles 11.3 and 12.3 in relation to non-
Convention countries by providing that an urgent measure for a child in
accordance with clause 9(2)(b)(i) (article 11.1) or a provisional measure for
a child in accordance with clause 9(2)(b)(ii) (article 12.1) ceases to operate
if a measure directed to the protection of the person of the child taken by a
competent authority in a non-Convention country is recognised under
Queensland law or the law of another State.
The following is a case example of the use of urgent measures to protect
a child who is present in Queensland and is habitually resident in another
Convention country. A German mother and small child come to Australia
on a study visa to study in Queensland. The mother abandons the child and
leaves the State and cannot be located. The Department of Families knows
the name of the father and the German city in which he lives. The
Department contacts the German central authority to request they locate the
child's father and other family members and provide an assessment of
whether the father or any family member can care for the child. In the
meanwhile, using the jurisdiction to take urgent measures to protect the
child, the Department of Families applies for and obtains a child protection
order granting short term guardianship of the child to the chief executive.
The German authorities identify a relative as a suitable carer and
arrangements are made for the return of the child to Germany. The
authorities in Germany obtain a protective order for the child placing the
child in the custody of the relative and the child is returned to Germany. If
the German order is registered in Queensland, the Queensland order lapses.
If the German order were not registered, the Department of Families would
apply to the court for revocation of the Queensland order.
PART 3--JURISDICTION FOR DECISIONS ABOUT A
GUARDIAN OF A CHILD'S PROPERTY
This part implements articles 5 to 14 of the Child Protection Convention
in relation to Queensland authorities (a Queensland court or the Public
Trustee) to take measures for appointing, or deciding the powers of, a
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Child Protection (International Measures) Bill 2003
guardian of a child's property. In implementing these articles, part 3 takes
the approach of dealing with the various grounds of jurisdiction referred to
in the articles according to the distinction traditionally applied by
Australian courts, between children present in Australia and children
present in other countries.
Clause 15 provides in effect that the rules of jurisdiction in part 3 apply
only in the event of a conflict in jurisdiction between a Queensland court or
the Public Trustee and a competent authority in another country and not
where the conflict in jurisdiction is between Queensland and another
Australian competent authority. This provision implements the preamble
to the Child Protection Convention (which makes it clear that the
Convention is directed to the protection of children in international
situations) and article 46 of the Convention which provides that a
Convention country is not obliged to apply the provisions of the
Convention to conflicts solely between different systems of law in that
country. Thus neither the Convention nor part 3 applies to conflicts in
jurisdiction solely between a Commonwealth authority and a State
authority, or conflicts in jurisdiction solely between authorities of different
States in Australia.
Clause 16 sets out the jurisdiction of Queensland authorities to take
property protection measures for children. Clause 16(1) provides that the
clause applies if a Queensland authority has jurisdiction under Queensland
law to take a property protection measure for a child.
Clause 16(2) implements articles 5 to 14 of the Convention in relation to
the jurisdiction of Queensland authorities to take Queensland property
protection measures for a child. The drafters of the Convention included
these articles in recognition of the utility of having precise rules concerning
the designation and the powers of the child's legal representative to
administer the child's property located in a foreign State, in particular
where it is necessary to carry out the settlement of an estate, which has
passed to the child. The drafters of the Convention did not intend to go
beyond the appointment or determination of the powers of a guardian of a
child's property. Thus, for example, the Convention does not alter
traditional private international law rules on the lack of jurisdiction of a
court to determine ownership of interests in foreign land or other property.
Under clause 16(2), a Queensland authority may exercise jurisdiction to
appoint, or decide the powers of, a guardian of a child's property in relation
to:
· a child who is habitually resident in Australia (article 5); or
· a child who is habitually resident in a Convention country, if:
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Child Protection (International Measures) Bill 2003
· the protection of the child's property in Australia requires
taking the measure as a matter of urgency (article 11)
· the measure is provisional and limited in its territorial effect
to Australia to property in Australia (article 12)
· a request to assume jurisdiction is made to the Queensland
authority by a competent authority in the country of the
child's habitual residence or country of refuge (article 8)
· a competent authority in the country of the child's habitual
residence or country of refuge agrees to the Queensland
authority assuming jurisdiction (article 9), or
· the child has been wrongfully removed from or retained
outside Australia and the Queensland authority retains
jurisdiction under article 7 of the Convention (article 7)
· a child who is present in Australia and is a refugee child (article
6).
To avoid doubt, clauses 16(2)(d) and (e) preserves the jurisdiction of
Queensland authorities to appoint, or determine the powers, of a guardian
of the property of a child:
· who is present in a non-Convention country, if:
· the child is habitually resident in Australia, or
· the child is habitually resident in a non-Convention country
but is an Australian citizen; or
· who is present in Australia, if the child is habitually resident in a
non-Convention country.
Clause 16(3) supplements clause 16(2)(b)(ii) in its implementation of
article 12 of the Child Protection Convention in relation to the jurisdiction
of a Queensland authority to take a provisional property protection measure
for a child.
Clause 16(4) makes clear that the grounds of jurisdiction set out in
clause 16(2)(a) to (c) are subject to the limitations in clauses 17, 18 and 20.
Thus clause 16 is a comprehensive statement of the grounds of
jurisdiction of Queensland authorities to take measures appointing, or
determining the powers, of a guardian of the property of a child.
Clause 17 implements article 7 of the Child Protection Convention
which provides that the authorities of the country of the child's habitual
residence retain their jurisdiction to take measures of protection for a child
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Child Protection (International Measures) Bill 2003
who has been wrongfully removed from or retained outside the country
unless and until certain conditions are met. For example, if a child is
removed from a Convention country to Queensland by a person in breach
of an order granting custody of the child to another person, courts in that
country would retain jurisdiction to make orders in relation to the property
of the child unless and until the conditions in article 7 are met. However,
Queensland authorities may take urgent measures to ensure the protection
of the child's property.
Clause 18 implements article 13 of the Child Protection Convention,
which deals with conflicts that may arise where concurrent jurisdictions
exist under articles 5 to 10 of the Convention. Clause 18(2) provides that a
Queensland authority must not exercise jurisdiction to take a Queensland
property protection measure if before the authority exercised its
jurisdiction, a corresponding measure had been sought from a competent
authority in a Convention country.
Clause 18(1) limits clause 18(2) to certain grounds of jurisdiction
because the prohibition on exercising concurrent jurisdiction in article 13
does not apply to urgent measures under article 11 (clause 16(2)(b)(i)),
provisional measures under article 12 (clause 16(2)(b)(ii)) or where there is
concurrent jurisdiction with a non-Convention country (clause 16(2)(d) and
(e)).
Clause 18(3) supplements clause 18(2)(b)(v) in its implementation of
article 10 of the Convention in relation to the jurisdiction of a competent
authority in a Convention country hearing divorce proceedings to take a
measures for the protection of a child.
Clause 18(4) implements article 13.2 of the Convention by making clear
that the prohibition on concurrent proceedings in clause 18(2) does not
apply if the competent authority in the other Convention country has
declined jurisdiction or is no longer considering taking a measure of
protection.
Clause 19 assists in implementing articles 8 and 9 of the Child
Protection Convention. Clause 19 outlines the process for a Queensland
authority to assume jurisdiction where another Convention country has
jurisdiction under articles 5 or 6. Clause 19(1) implements article 8 by
providing that a Queensland court may accept or reject a request by a
competent authority in another Convention country for the court to assume
jurisdiction to take a Queensland property protection measure for a child.
Clause 19(2) implements article 9 by providing that the court may order,
or invite the parties to the proceedings to ask, the department or the public
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Child Protection (International Measures) Bill 2003
trustee to request a competent authority in another Convention country to
agree to the court assuming jurisdiction for the child. Consistently with
article 9.3, clause 16(2)(b)(iv) provides that the Queensland authority may
only exercise jurisdiction if the authority in the country of the child's
habitual residence or country of refuge agrees to the request.
Clause 19(3) implements article 9 by providing for the public trustee to
apply to the court for an order that the public trustee may accept a request
made by a competent authority in another Convention country for the
public trustee to assume jurisdiction.
Clause 19(4) implements article 9 by providing that the court may only
make an order or issue an invitation under clause 19(2) if the court
considers it is better placed to assess the child's best interests than the
overseas authority or make an order under clause 19(3)(a) if the court
considers the public trustee is better placed to assess the child's best
interests.
Clause 20 assists in implementing articles 8, 9 and 13 of the Child
Protection Convention. Clause 20 outlines the process for a competent
authority in another Convention country to assume jurisdiction where
Queensland has jurisdiction under articles 5 or 6. Clause 20(1) provides
that a Queensland court may order, or invite the parties to the proceeding to
ask, the department or the public trustee to request a competent authority in
another Convention country to exercise jurisdiction for the child.
Clause 20(2) provides that the court may make any other order for the
purposes of an order under clause 20(1). Thus, consistent with article 8.1
of the Convention, the court might make an order suspending the
proceedings before the court pending a decision by the overseas authority
on the request to transfer the jurisdiction.
Clause 20(3) implements article 8 by providing that an order or
invitation under clause 20(1) can be made only if the court considers the
overseas authority is better placed to assess the child's best interests.
Clause 20(4) implements article 9 by providing that the court may accept
or reject a request under article 9 by a competent authority in another
Convention country to agree to the authority assuming jurisdiction to take
measures for the protection of the child's property.
Clause 20(5) implements article 13 by providing that the Queensland
court must not exercise jurisdiction if the competent authority in the other
Convention country assumes jurisdiction under the request. Consistently
with article 13, the Queensland court is not prevented from taking urgent or
provisional measures for the protection of the child.
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Child Protection (International Measures) Bill 2003
Clause 21 implements articles 10, 11 and 12 of the Child Protection
Convention. Clause 21(1) implements articles 11.2 and 12.2 by providing
that an urgent measure for a child in accordance with clause 16(2)(b)(i)
(article 11.1) or a provisional measure for a child in accordance with clause
16(2)(b)(ii) (article 12.1) ceases to operate if a foreign property protection
measure is taken by a competent authority in another Convention country.
Consistently with articles 11.2 and 12.2, clause 21(1) only applies if the
competent authority in the other Convention country is exercising
jurisdiction in accordance with article 5 (clause 21(1)(b)(i)), article 6
(clause 21(1)(b)(ii)), article 8 (clause 21(1)(b)(iii)), article 9 (clause
21(1)(b)(iv)), article 10 (clause 21(1)(b)(v) and clause 21(2)) and article 7
(clause 21(1)(b)(vi)).
Clause 21(3) implements articles 11.3 and 12.3 by providing that an
urgent measure for a child in accordance with clause 16(2)(b)(i) (article
11.1) or a provisional measure for a child in accordance with clause
16(2)(b)(ii) (article 12.1) ceases to operate if a foreign property protection
measure taken by a competent authority in a non-Convention country is
recognised under Queensland law or the law of another State.
PART 4--APPLICABLE LAW
Clause 22 implements articles in chapter III of the Child Protection
Convention determining the law a Convention country must apply when
exercising jurisdiction.
Clause 22(1) and (2) implement article 15 of the Convention by
providing that a Queensland authority exercising jurisdiction under parts 2
and 3 must apply Queensland law, other than choice of law rules.
However, consistent with article 15.2, clause 22(3) provides that, in
exceptional circumstances, a Queensland authority may apply or take into
account the law of another country if the protection of the child or the
child's property makes this necessary.
Clause 22(4) implements article 21.1 of the Convention by providing
that a reference to the word law does not include choice of law rules.
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Child Protection (International Measures) Bill 2003
PART 5--RECOGNITION OF FOREIGN MEASURES
AND THEIR ENFORCEMENT IN QUEENSLAND
Part 5 implements articles in chapter IV of the Child Protection
Convention relating to recognition and enforcement of measures. As
required by the Convention, it establishes a scheme for recognition, by
registration, of foreign protection measures. The Bill places an obligation
on the department, as the state central authority, to take certain action in
relation to a foreign protection measure, if requested to do so under the
Child Protection Convention. A foreign protection measure includes a
child protection order made in another Convention country. One of the
options for action is recognition of the measure through its registration in a
Queensland court.
Recognition of a foreign measure is subject to exceptions such as where
the measure is manifestly contrary to public policy or where the measure
places a child in institutional care or foster care in Queensland and the
overseas authority did not obtain the prior consent of the Department of
Families for the measure. The Bill provides that a registered foreign
measure has the same force and effect as a Queensland measure.
The part also enables Queensland protection measures to be recognised
and enforced in another Convention country.
It is not anticipated that the recognition and enforcement provisions will
be utilised for child protection matters. The recognition and enforcement
provisions will have greater application to registration of foreign parenting
orders with the Family Court of Australia. Child protection matters will
primarily be addressed using the co-operation provisions of the
Convention. This is because child protection orders frequently involve the
granting of parental responsibility to a child protection authority. If a child
who is subject to such an order comes to Queensland, administration of the
foreign order in Queensland would be impractical because the overseas
child protection authority is not physically able to exercise its powers. This
situation is different to foreign parenting orders because the child usually
comes to Australia with a parent or other individual in whose favour the
parenting order has been made. It is simpler for child protection orders to
be sought and enforced in the country where the child is present using the
co-operation provisions of the Convention than to register and enforce a
foreign order. Australia's policy position on this issue was made clear
when the Convention was drafted in The Hague in 1996 and there was no
objection to such a position being taken.
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Child Protection (International Measures) Bill 2003
This would mean, for example, that where a child in Queensland for the
purpose of a family visit is the subject of an overseas child protection order
granting guardianship of the child to the child protection authority in the
country of the child's habitual residence, the Department of Families will
consult with the child protection authority in the other country to establish
an agreed solution to meet the child's protective needs while he or she is in
Queensland. Registration in Queensland of the foreign order granting
guardianship of the child to the overseas child protection authority of itself
would not be sufficient to ensure the child's protection in Queensland as the
overseas authority would not have the physical means to exercise
guardianship in Queensland. This may mean, for example, that using the
co-operation provisions the overseas authority will agree to Queensland
exercising its child protection jurisdiction to protect the child while the
child is in Queensland.
Clause 23 implements articles 23, 26, 15 and 24 of the Convention in
relation to foreign measures for the protection of the person of a child.
Clause 23(1) provides that the clause applies when the department is given
a foreign personal protection measure and a request is made for the
department to take action under the Convention.
Clause 23(2) requires the department to consult with the competent
authority in the other country and to take one of the listed actions in
response. These are to either:
· give the measure to a court for registration (article 26),
· give the measure to the Commonwealth central authority to take
action (article 26),
· exercise the department's jurisdiction under part 2
· apply to the court for the court to exercise its jurisdiction under
part 2 or for the court to decide whether or not to refuse
recognition of the measure
· agree with the competent authority in the other country that the
department will take no action.
Clause 23(3) sets out the grounds on which a Queensland court may
refuse recognition of a foreign personal protection measure. These
grounds replicate the grounds set out in article 23 of the Convention.
Measures may be refused recognition if:
· the competent authority in the Convention country did not have
jurisdiction under the Convention to take the measure (clause
23(3)(a); article 23.2.a)
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Child Protection (International Measures) Bill 2003
· in taking the measure, the competent authority in the Convention
country acted contrary to fundamental principles of procedure
under Queensland law by not giving the child or a person with
parental responsibility for the child an opportunity to be heard
and did not take the measure as a matter of urgency (clause
23(3)(b), clause 23(4); article 23.2.b and c)
· recognition of the measure is contrary to public policy in
Queensland having regard to the child's best interests (clause
23(3)(c); article 23.2.d)
· if the measure were recognised by registration, it could not be
appropriately enforced under Queensland law (clause 23(3)(d);
article 15.1)
· the measure is incompatible with a later measure taken in a non-
Convention country in which the child habitually resides and the
later measure could not be refused recognition under clause
23(3)(b) or (c) (clause 23(3)(e); article 23.2.e)
· the measure places the child in a foster care or institutional care
in Queensland and the competent authority in the other country
did not obtain the department's prior consent to the measure
(clause 23(3)(f); article 23.2.f).
Clause 23(5) implements article 24 of the Convention by enabling an
interested person to be joined as a party in a proceeding on an application
by the department to the court for the court to exercise its jurisdiction under
part 2 or for the court to decide whether or not to refuse recognition of the
measure.
Clause 23(6) requires a foreign measure that authorises a medical
procedure or treatment of the child for which a parent does not have
authority to consent, to be accompanied by a Family Court declaration
declaring that recognition of the measure is not contrary to public policy
having regard to the child's best interests, in order for the measure to be
registered in a Queensland court. This clause recognises the child welfare
jurisdiction of the Family Court of Australia to determine applications for
special medical procedures, such as sterilisation, for children.
Clause 24 implements article 26 of the Convention in relation to foreign
measures for the protection of the property of a child. Clause 24(1)
provides that the clause applies when the department is given a foreign
property protection measure and a request is made for the department to
take action under the Convention.
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Child Protection (International Measures) Bill 2003
Clause 24(2) requires the department to consider whether the measure
includes a provision directed to protecting the person of the child.
Clause 24(3) provides that if the measure does include a provision
directed to protecting the person of the child, the department must deal
with the measure under clause 23 as if it were a foreign personal protection
measure.
Clause 24(4) requires the department to give a foreign property
protection measure that does not include a provision directed to protecting
the person of the child to the registrar of the court for registration under
clause 25.
Clause 25 implements articles 14, 23.1, 26.1 and 28 of the Child
Protection Convention by providing for recognition of foreign measures by
registration in a Queensland court. Clause 25(1) requires the registrar to
register a foreign measure given to the registrar under clause 23 or 24. The
system of recognition of a foreign property measure differs from the
system of recognition of a foreign personal protection measure because the
background to a foreign personal protection measure can be ascertained
from the competent authority in the country which took the measure. By
way of contrast, a foreign property protection measure is more likely to
have been taken by a party other than a competent authority in the country
where the measure was taken, making it more difficult for the department
to ascertain the background to the foreign property protection measure.
Clause 25(2) provides in effect that a registered foreign measure
operates as if it were a Queensland measure and prevails over any prior
inconsistent measure (to the extent of that inconsistency) in force in
Queensland.
Clause 25(3) enables an interested person to take legal proceedings for
enforcement of a registered measure.
Clause 25(4) provides that the effect of a registered measure is subject to
cancellation under clause 26.
Clause 26 provides for the cancellation of a registered foreign measure.
Clause 26(1) enables an interested person to apply to the court for
cancellation.
Clause 26(2) enables the court to cancel the registration of a foreign
measure if:
· the court may take a Queensland measure under part 2 or 3
(clause 26(2)(a) and (b));
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Child Protection (International Measures) Bill 2003
· the competent authority in the Convention country did not have
jurisdiction under the Convention to take the measure. (clause
26(2)(c); article 23.2.a) This is the same ground as in clause
23(3)(a) for refusing recognition of the measure;
· in taking the measure, the competent authority in the Convention
country acted contrary to fundamental principles of procedure
under Queensland law by not giving the child or a person with
parental responsibility for the child an opportunity to be heard
and did not take the measure as a matter of urgency (clause
26(2)(d), clause 26(3); article 23.2.b and c) This is the same
ground as in clause 23(3)(b) for refusing recognition of the
measure;
· recognition of the measure is contrary to public policy in
Queensland having regard to the child's best interests (clause
26(2)(e); article 23.2.d) This is the same ground as in clause
23(3)(c) for refusing recognition of the measure;
· if the measure is a foreign property protection measure, the
measure can not be appropriately enforced under Queensland law
(clause 26(2)(f); article 15.1)
Clause 27 implements articles 25 and 27 of the Child Protection
Convention.
Clause 27(1) provides that the clause applies to proceedings in a
Queensland court under clause 23 or 26 in relation to foreign measures.
Clause 27(2) implements article 25 by binding a Queensland court in
relation to the findings of fact on which the competent authority in the
other Convention country based its jurisdiction.
Clause 27(3) implements article 27 by stating that the Queensland court
must not review the merits of the measure, except when determining a
cancellation of registration application under clause 26.
Clause 27(4) and (5) are evidentiary provisions.
Clause 28 implements articles 23, 26 and 28 of the Child Protection
Convention by enabling the department to give a Queensland measure
relating to a child to a central authority of another Convention country for
recognition and enforcement of the Queensland measure in that country.
However, prior to giving a Queensland personal protection measure to a
central authority of another Convention country for recognition and
enforcement, the department must consult with the central authority or the
competent authority of that country.
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Child Protection (International Measures) Bill 2003
PART 6--CO-OPERATION AND OTHER MATTERS
Part 6 implements articles in chapter V of the Child Protection
Convention by setting out Queensland's obligations to co-operate and share
information with competent authorities in other Convention countries. The
Convention likewise requires other Convention countries to co-operate
with the Department of Families by providing information about children
and families upon request and to consult about taking measures for the
protection of children. These provisions are the most useful provisions of
the Convention from an Australian child protection perspective as they will
ensure that requests for assistance can be made directly to the relevant
authorities and that those requests will receive a response.
An example of how the information sharing requirements will assist
children is exemplified by the following case. A mother and child were
internationally mobile. Child protection concerns about the mother arose
when they were in Queensland. The child had previously been the subject
of an application under the Hague Convention on Civil Aspects of
International Child Abduction by the mother through the Swedish central
authority. The father had previously unlawfully brought the child to
Australia from Sweden. As a result of that application the child was
returned to the mother in Sweden. The Swedish authorities refused, on the
basis of their confidentiality requirements, to provide any information to
the Department of Families about the child. This made it difficult for the
Department of Families to take appropriate action to protect the child, as it
did not have sufficient information. The mother fled Australia with the
child to Finland. Eventually the authorities in Finland took action to protect
the child. Under the Convention, the Swedish authorities would be
required to share relevant information with the Department of Families to
enable the Department to take appropriate protective action.
The co-operation provisions will assist in cases where children are in
Queensland with parents who have limited visas. For example, a British
family is in Queensland on a work visa issued to the father. Child
protection concerns are notified to the Department and the child is taken
into care under a Queensland child protection order. The parents intend to
move to Spain for the father to take up an offer of employment. Under
immigration rules, the child cannot remain in Australia once the parents'
visa expires. The Department of Families contacts the relevant authorities
in Spain to exchange information about the protective needs of the child
and to request that the Spanish authorities take action to protect the child
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Child Protection (International Measures) Bill 2003
when the child arrives in Spain. A number of cases with similar facts to
this example have occurred in Queensland in the past few years.
An example of where the co-operation provisions would benefit
Queensland children who are in care under the Child Protection Act 1999
arose in the case of a 15 year old girl whose family was originally from the
Philippines. The chief executive of the Department had guardianship of the
child. The Department of Families assessed that it was in the best interests
of the young person to visit her ill grandmother in the Philippines. The
young person was to travel with her parents. The Department had some
concerns that the parents may not return the young person to Queensland.
The Convention would assist the Department in making requests to the
Philippines authority to take action to supervise the young person's visit
and ensure her return to Queensland.
Clause 29 implements article 29 of the Child Protection Convention by
designating the Department of Families as Queensland's central authority
for the Convention.
Clause 29(2) provides that the chief executive of the department is
responsible for performing the functions and exercising the powers of the
department under the Act.
Clause 30 sets out the department's functions in co-operating with
central authorities of Convention countries.
Clause 30(1) implements articles 30 to 35 of the Child Protection
Convention by providing that the department has the following functions:
· to co-operate with central authorities of other Convention
countries to find solutions for the protection of children or their
property (clause 30(1)(a); article 31.a and 31.b)
· to help in the implementation of measures directed to protecting
children or their property (clause 30(1)(b); article 31.b and 35)
· to consider taking Queensland measures at the request, or
invitation, of a competent authority of another country (clause
30(1)(c); article 32.b)
· to exchange information, subject to appropriate confidentiality
provisions (clause 30(1)(d); articles 34.1 and 31.a)
· to provide information on laws and services (clause 30(1)(e);
article 30.2)
· to help in locating children (clause 30(1)(f); article 31.c)
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Child Protection (International Measures) Bill 2003
· to provide reports on the situation of particular children (clause
30(1)(g); article 32.a)
· to apply to Queensland courts in response to requests from
competent authorities in other Convention countries to transfer or
receive jurisdiction or to take measures for children (clause
30(1)(h); articles 31.a and 32.b)
Clause 30(2) implements article 33.2 of the Convention by requiring the
department to take into account the child's best interests when considering
whether to consent to a request by a competent authority of another
Convention country to place a child in foster care or in institutional care in
Queensland.
Clause 30(3) provides that clause 30(1) is subject to clause 34(2). This
means that if the sharing of information would not be consistent with the
Convention or the Bill, then the Department is not bound to perform the
functions set our in clause 30(1). For example, under article 37, an
authority shall not request or transmit information if to do so would be
likely to place a child or their family in danger.
Clause 31 implements article 33 by requiring the Queensland authority
to obtain the consent of the competent authority in a Convention country
before placing a child in foster care or institutional care in the Convention
country.
Clause 32 implements article 36 of the Child Protection Convention.
Article 36 applies where authorities in one country take measures to protect
a child and the child is moved to another country (for example, the child is
moved by the child's parents). If the child is exposed to serious danger (for
example, risk of abuse or neglect by the parents), the Convention obliges
authorities in the first country to inform authorities in the second country
about the danger. In practice, it would then be a matter for authorities in
the second country to consider taking measures of protection for the child
in accordance with the jurisdiction provisions of the Convention. Clauses
32(2) to (5) provide protection for persons making disclosures under clause
32(1). This protection is similar to protection currently provided in the
Child Protection Act 1999, section 22, for persons who report suspected
harm to a child to the chief executive of the Department of Families.
Clause 33 implements article 35 of the Child Protection Convention by
providing for Queensland authorities to co-operate with authorities in other
Convention countries to resolve disputes over contact by a parent with his
or her child.
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Child Protection (International Measures) Bill 2003
Clause 33(1) implements article 35.2 by requiring a court to admit into
evidence and consider a finding by a competent authority in another
Convention country on the suitability of a parent to have contact with a
child.
Clause 33(2) implements article 35.3 by giving a discretion to a court to
adjourn proceedings pending the outcome of a request to authorities in
another Convention country for a finding on the suitability of a parent to
have contact with his or her child.
Clause 33(3) implements article 35.2 by providing for a court to make a
finding on the suitability of a parent to have contact with his or her child.
Clause 33(4) implements article 35.2 by requiring the department, when
considering contact between a child and his or her parent, to consider
evidence and any findings of a competent authority in a Convention
country on the suitability of a parent to have contact with the child.
Clause 34 implements articles of the Child Protection Convention
relating to the disclosure of information. The Convention includes
provisions that require the communication of information between
authorities in Convention countries (articles 8, 9, 30, 32, 33, 34, 35, 37, 41
and 42). Clause 34(2) provides that courts and authorities in Australia may
give information to authorities in other Convention countries. Clause 34(2)
also applies to the communication of information between Australian
authorities because such information may be necessary in channelling, or
co-ordinating the gathering, of information for transmission to other
Convention countries. Clause 34(2) is limited to communications
necessary to comply with the Child Protection Convention or this Act
(which implements the Convention).
PART 7--MISCELLANEOUS
Clause 35 implements article 40 of the Child Protection Convention by
enabling a Queensland authority to provide a written notice to a person
exercising parental responsibility under a Queensland measure upon their
request containing information about the powers conferred on the person
by the measure.
Clause 36 implements articles 26 and 40 of the Child Protection
Convention by providing for the department to assist an interested person
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Child Protection (International Measures) Bill 2003
to request a competent authority in another country to vary or cancel a
foreign measure.
Clause 37 enables the chief executive of the Department of Families to
delegate his or her powers under clause 29 to an appropriately qualified
officer of the Department.
Clause 38 provides that regulations may be made under the Act. Clause
38(1) provides that Governor in Council may make the regulations. Clause
38(2) provides that a regulation may prescribe that a particular measure or
type of measure will have effect as a particular type of Queensland measure
and the way in which the type of measure has effect and can be varied.
Clause 39 provides that Schedules 2 and 3 amend the Acts mentioned in
those Schedules.
SCHEDULE 1
CHILD PROTECTION CONVENTION
Schedule 1 sets out the full text of the Child Protection Convention.
SCHEDULE 2
AMENDMENT OF OTHER ACTS
CHILD PROTECTION ACT 1999
Clause 1 inserts new section 6A in the Child Protection Act 1999 to
clarify that the Child Protection (International Measures) Act 2003
includes provision about the exercise of jurisdiction under the Child
Protection Act 1999.
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Child Protection (International Measures) Bill 2003
Clause 2 renumbers section 186(2)(b), (c) and (d) as a consequence of
the amendment to section 186(2) made by clause 3.
Clause 3 amends section 186(2) by inserting a new paragraph to enable
the sharing of information disclosing the identity of a notifier with central
authorities of Convention countries under Part 6 of the Child Protection
(International Measures) Act 2003.
CHILDRENS COURT ACT 1992
Clause 1 amends section 6 of the Childrens Court Act 1992 to clarify
that the Child Protection (International Measures) Act 2003 includes
provision about the exercise of jurisdiction under the Childrens Court Act
1992.
PUBLIC TRUSTEE ACT 1978
Clause 1 inserts new section 5 in the Public Trustee Act 1978 to clarify
that the Child Protection (International Measures) Act 2003 includes
provision about the exercise of jurisdiction under the Public Trustee Act
1978.
SUPREME COURT ACT 1995
Clause 1 inserts new section 2A in the Supreme Court Act 1995 to
clarify that the Child Protection (International Measures) Act 2003
includes provision about the exercise of jurisdiction under the Supreme
Court Act 1995.
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Child Protection (International Measures) Bill 2003
SCHEDULE 3
AMENDMENT OF OTHER ACTS
CHILD PROTECTION ACT 1999
Clause 1 amends section 6(4) to correct a drafting error.
Clause 2 omits section 23 and replaces it with a re-drafted definition of
"parent" for the purpose of Part 2 Temporary Assessment Orders. The
purpose of the re-drafted definition is to better achieve the intention of the
Act as set out in the Explanatory Notes to the Child Protection Bill 1998.
The Explanatory Notes for the equivalent clause states:
"(The relevant clauses) limits the meaning of the term "parent" in
this part to include only parents or others who by law have
parental responsibility for the child. The term includes parents or
others who would currently have legal parental responsibility if it
were not for a child protection order granting custody or
guardianship of the child to the chief executive or someone else.
The meaning of parent has been limited in this part because it
deals only with parents whose legal rights may be affected by the
provisions of this part, eg by the granting of custody or
guardianship to the chief executive. Elsewhere in the Bill,
"parent" is afforded a broader meaning to be inclusive of other
persons parenting the child, eg step parents who care for the child
but may not have legal parental responsibility."
The current definition provides:
"parent", of a child, means each of the following persons--
(a) the child's guardian;
(b) a person with custody of the child;
(c) if the child is in a person's custody or guardianship under this Act
anyone else who would be the child's guardian if the child were
not in the person's custody or guardianship under this Act.
"Guardian" is defined in Schedule 3 of the Act to mean "a person who is
recognised in law as having all the duties, powers, responsibilities and
authority that, by law, parents have in relation to their children."
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Child Protection (International Measures) Bill 2003
There are two problems with the way the current definition of `parent' is
drafted. The definition of `guardian' may technically exclude a person who
has some, but not all, the duties, powers, responsibilities and authority etc.
The definition could therefore technically exclude a parent, or another
person such as a grandparent, who has a Family Court parenting order that
allocates only some aspects of parental responsibility to the person. For
example, under a Family Court order, a person may have the right to have
specified contact with a child, but not the right to have the child live with
them or the responsibility to make decisions about the child's long term
care, welfare and development. The second problem is that `a person with
custody of the child' could include a person who has mere possession of
the child.
It is clear from the Explanatory Notes for the Child Protection Bill 1998
that it was intended that a person who has a legal parental relationship with
a child that may be affected by the making of an order under the Child
Protection Act 1999 should be considered a parent and therefore a
respondent to any application for an order. The way the provisions are
currently drafted are deficient in achieving the intent of the Act.
The new definition will ensure that mothers and fathers, persons who
have Family Court residence or contact orders for the child (including
persons who have overseas parenting orders that are registered in the
Family Court) and persons who have custody or guardianship of the child
under a law of Queensland or another State (such as pursuant to a Supreme
Court order or as testamentary guardian under a will) are parents for the
purpose of Childrens Court proceedings for a temporary assessment order.
Clause 3 omits section 37 and replaces it with a re-drafted definition of
"parent" for the purpose of Part 3 Court Assessment Orders. The current
definition in section 37 is the same as the current definition in section 23.
The re-drafted definition is the same as the re-drafted definition for section
23. The reason for amending this section is the same reason as set out in
the note for clause 2.
Clause 4 omits section 52 and replaces it with a re-drafted definition of
"parent" for the purpose of Part 4 Child Protection Orders. The current
definition in section 52 is the same as the current definition in sections 23
and 37. The re-drafted definition is the same as the re-drafted definition for
sections 23 and 37. The reason for amending this section is the same
reason as set out in the note for clause 2.
Clause 5 amends the heading of section 61 by replacing the word
"Provisions" with the word "Types". This amendment reflects the fact that
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Child Protection (International Measures) Bill 2003
the child protection orders set out in section 61 are distinct orders and not
possible provisions of one order.
Clause 6 replaces section 65 with a re-drafted provision to reflect the
amendment made by clause 4 to the definition of `parent' in section 52.
The term `interested person' is no longer necessary as all `interested
persons' will come within the amended definition of `parent'.
Clause 7 inserts a footnote in section 66(2) to assist the reading and
application of the Act by referring the reader to section 47(2).
Clause 8 amends section 67(1) by deleting the word `or' between
paragraph (a) and paragraph (b). Section 67(1) sets out the court's powers
to make interim orders on adjournment of an application for a court
assessment order or a child protection order. Paragraph (a) enables the
court to grant temporary custody of the child to the chief executive or a
family member. Paragraph (b) enables the court to make an interim order
restricting a parent's contact with the child. The amendment clarifies the
intention that these two interim orders may be made simultaneously.
Clause 9 amends section 67 to rectify a drafting error by inserting a new
subsection (3) to define `parent' for the purpose of the section. Because of a
drafting oversight, the broader definition of `parent' contained in section 11
currently applies to this section. Because section 67 provides for the
powers of the Childrens Court to make interim orders in court proceedings
for court assessment orders and child protection orders, the amendment
applies the same definition of `parent' as in sections 37 and 52.
Clause 10 amends section 81 to rectify a drafting oversight. Chapter 2,
Part 6, Division 4 of the Act contains provisions about placement decisions
for a child who is in the chief executive's custody or guardianship. Section
82 of the Act enables the chief executive to place a child in the care of a
licensed care service, approved foster carer or other person the chief
executive considers appropriate. Section 81 provides that Division 4
applies if, under an assessment order or child protection order, the chief
executive is granted custody or guardianship of the child. Because of the
drafting of section 81, a technical gap exists in the chief executive's power
to place a child with a care service or a carer where the child is in the chief
executive's custody and guardianship under the Act but the child is not
under an order. These circumstances may arise in the time between taking
a child into protective custody under section 18 (Child at immediate risk
may be taken into custody) and the granting of a temporary assessment
order. Also, under section 99, a child may be in the chief executive's
custody or guardianship but technically there is no order in place because
the order has expired and the application for extension or substitution of the
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Child Protection (International Measures) Bill 2003
order has not yet been determined by the Childrens Court. The clause
amends section 81 to apply Division 4 to where the chief executive has
custody or guardianship of the child under the Act.
Clause 11 amends section 97 by replacing the word `doctor' with the
phrase `health practitioner'. This amendment will extend the protection
provided by section 97 to `health practitioners', in addition to the current
protection provided to doctors, when examining and/or treating a child.
"Health practitioner" is defined in an amendment to schedule 3 to include a
broad range of health professionals such as nurses, dentists, speech
therapists, physiotherapists and psychologists. It was always the intention
that medical examinations and treatments may be provided by other health
professionals as well as doctors. The current definition of `medical
examination' in Schedule 3 contemplates examinations being carried out
by doctors and other health professionals. For example, it may be necessary
for a child to be examined and treated by a nurse in a remote area where a
doctor is not immediately available. The current limitation in section 97 is
an oversight, which will be remedied by this amendment.
Clause 12 amends section 117 (Who may appeal) to rectify a drafting
error by inserting a new subsection (3) to define `parent' for the purpose of
the section. Because of a drafting oversight, the broader definition of
`parent' contained in section 11 currently applies to this section. Because
section 117 deals with appeals from temporary assessment orders, the
amendment applies the same definition of `parent' for this section as the
definition for Part 2 which deals with the making of temporary assessment
orders.
Clause 13 inserts a new paragraph (d) in section 121 to enable an
appellate court to remit a matter back to the magistrate or Childrens Court.
The failure to include this power was an oversight during the drafting of the
Act.
Clause 14 amends section 126 to expand the categories of persons whose
suitability the chief executive must be satisfied of before granting an
application for a licence or for renewal of a licence to provide care services
to children in the custody or guardianship of the chief executive under the
Act. This amendment is consequential to the amendment to section 142
expanding the categories of persons for whom inquiries about their
suitability may be made by the chief executive. The amendment expands
paragraph (b) to include directors of corporations which have applied for a
licence, nominees for a license and persons who will be engaged in relation
to the provision of care services as well as persons responsible for directly
managing the service. The amendment ensures that a licence will not be
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Child Protection (International Measures) Bill 2003
granted unless all persons involved in the management and provision of the
care service, including volunteers, employees and contractors who may
come into contact with children, are suitable persons to have contact with
children.
Clause 15 amends section 130(1)(b) to extend the requirement on
nominees for a licence to ensure that persons engaged in the direct care of
children for the service are suitable persons to a requirement to ensure that
all persons engaged in relation to the provision of care services are suitable
persons to have contact with children. This amendment is consequential
upon the amendment to section 142 expanding the categories of persons for
whom inquiries about their suitability may be made by the chief executive.
Clause 16 amends the heading of Chapter 4, part 2, division 4 by adding
the phrase `and surrender'. This amendment is consequential to the
amendment made by clause 17.
Clause 17 inserts new section 141A to enable approved foster carers and
licensed care services to voluntarily surrender their approvals or licences to
the chief executive. Chapter 4 of the Act provides a regime for the approval
of foster carers and for the licensing of care services, such as residential
care services and shared family care agencies which arrange for the
placement of children with foster carers. Currently, due to an oversight in
the drafting of the Act, there is no provision enabling licensed care services
and approved foster carers to surrender their licences or approvals when
they no longer wish to continue to provide care services or foster care. The
absence of this provision means that the cancellation process set out in the
Act must be used. This process is based on the assumption that the services
or carers are not voluntarily surrendering their licences or approvals and is
inappropriate and for these circumstances.
Clause 18 amends section 142(1)(a)(ii) to expand the categories of
persons associated with a licensed care service or applicant for a licence for
whom inquiries about their suitability may be made by the chief executive
to the commissioner of the police service or the chief executive for
transport. Currently, section 142 of the Act enables the chief executive to
obtain criminal, domestic violence and traffic history checks for foster
carers and adult members of the foster carer's household and for the person
who is directly responsible for managing a licensed care service and for
anyone else directly engaged in the care of children for the service. Under
the Act, `criminal history' includes spent convictions and charges.
Currently, the Act does not enable personal history checks to be done
for:
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Child Protection (International Measures) Bill 2003
· nominees for a licence for a care service,
· Board or committee of management members of a licensee who
may not be directly managing the service or directly caring for
children but may be on the premises and having contact with
children, or
· other staff, volunteers or contracted workers of licensed care
services who are not directly caring for children, but may have
contact with children.
While consent is always sought to do the checks, this clause broadens
the scope of persons for whom checks can be conducted without relying on
the consent of the individual concerned to ensure that people associated
with licensed care services who may have contact with children are subject
to the same level of checks as foster carers.
Clause 19 replaces the reference to `authorised person's' in section
154(3) with a reference to `authorised officer's' to correct a drafting error.
Clause 20 amends section 162(2) to make it an offence for a person who
has lawfully removed a child from the care of the child's carer, to keep the
child beyond the allowed period. Currently, section 162(2) provides that it
is an offence to unlawfully remove a child who is in the chief executive's
custody or guardianship under an order from the care of the child's carer.
The section only makes the keeping of a child an offence where the child
has been unlawfully removed. There may be instances where permission is
given to a person to take a child for a specified period of time, but the
person does not return the child when required. The clause amends this
section to make the keeping of a child beyond the permitted period an
offence.
Clause 21 amends section 163(1) to clarify that the section applies to
child protection orders made in other States that have the same or similar
effect as a Queensland order granting custody or guardianship of a child to
the chief executive but are not described as `custody' or `guardianship'
under that State's child protection legislation. For example, in some other
States, child protection orders are described as orders allocating aspects of
parental responsibility, including residence and responsibility for making
the types of decisions guardians would make.
Clause 22 amends section 163(2) to make it an offence for a person in
Queensland who has lawfully removed a child, who is in the custody or
guardianship of an interstate officer under an order made under a child
welfare law or interstate law of another State, from the care of the child's
carer, to keep the child beyond the allowed period. Currently, section
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Child Protection (International Measures) Bill 2003
163(2) provides that it is an offence for a person in Queensland to
unlawfully remove a child in the custody or guardianship of a person under
a child welfare law or interstate law of another State from the care of the
child's carer. The section only makes the keeping of a child an offence
where the child has been unlawfully removed. There may be instances
where permission is given to a person to take a child for a specified period
of time, but the person does not return the child when required. This clause
amends this section to make the keeping of a child beyond the permitted
period an offence.
Clause 23 amends section 164(2) to make it an offence for a person who
has lawfully removed a child from the custody or guardianship of a person
under the Act, to keep the child beyond the allowed period. Currently,
section 164(2) provides that it is an offence to unlawfully remove a child
from a person's custody or guardianship under the Act. The section only
makes the keeping of a child an offence where the child has been
unlawfully removed. There may be instances where permission is given to
a person to take a child for a specified period of time, but the person does
not return the child when required. The clause amends this section to make
the keeping of a child beyond the permitted period an offence.
Clause 24 amends section 165(1) to clarify that the section applies to
child protection orders made in other States that have the same or similar
effect as a Queensland order granting custody or guardianship of a child to
the chief executive but are not described as `custody' or `guardianship'
under that State's child protection legislation. For example, in some other
States, child protection orders are described as orders allocating aspects of
parental responsibility, including residence and responsibility for making
the types of decisions guardians would make.
Clause 25 amends section 165(2) to make it an offence for a person in
Queensland who has lawfully removed a child from the custody or
guardianship of a person under a child welfare law or interstate law of
another State, to keep the child beyond the allowed period. Currently,
section 165(2) provides that it is an offence for a person in Queensland to
unlawfully remove a child from custody or guardianship of a person under
a child welfare law or interstate law of another State. The section only
makes the keeping of a child an offence where the child has been
unlawfully removed. There may be instances where permission is given to
a person to take a child for a specified period of time, but the person does
not return the child when required. The clause amends this section to make
the keeping of a child beyond the permitted period an offence.
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Child Protection (International Measures) Bill 2003
Clause 26 amends section 167 to make it an offence for a person to keep
a child who is in the chief executive's custody or guardianship out of the
State with the intention of obstructing, preventing or defeating the
administration or enforcement of the Act. Currently, section 167 only
makes it an offence for a person to take a child out of the State with the
intention of obstructing, preventing or defeating the administration or
enforcement of the Act. There may be instances where a person who takes
a child out of the State only forms the intention not to return the child to
Queensland after the person has left the State. This clause corrects this
anomaly.
Clause 27 amends section 191(1) by including within the terms of the
section, persons who once were, but are no longer engaged in the
administration of the Act. Currently, section 191 enables persons engaged
in the administration of the Act to refuse to disclose to a court or tribunal
certain information obtained under the Act (such as records of confidential
therapeutic counselling or information which if disclosed is likely to
endanger a person's safety or psychological health). Unlike the general
confidentiality provision, section 187, section 191 does not apply to
persons who once were, but are no longer engaged in the administration of
the Act. The clause corrects this unintended anomaly.
Clause 28 omits section 205 and replaces it with a re-drafted definition
of "parent" for the purpose of Chapter 7 Interstate Transfers of Child
Protection Orders and Proceedings. The current definition in section 205 is
the same as the current definition in sections 23, 37 and 52. The re-drafted
definition is the same as the re-drafted definition for sections 23, 37 and 52.
The reason for amending this section is the same reason as set out in the
note for clause 2.
Clause 29 omits section 242 and replaces it with a re-drafted definition
of "parent" for the purpose of Chapter 7, Part 7 Interstate Transfers for
Non-Participating States. The current definition in section 242 provides
that a `parent' for this Part is a person who would be the child's guardian if
a child protection order or interstate were not in force for the child. The re-
drafted definition is the same as the re-drafted definition for sections 23,
37, and 205. The reason for amending this section is the same reason as set
out in the note for clause 2.
Clause 30 amends section 243(1)(a) to clarify that the section applies to
child protection orders made in other States that have the same or similar
effect as a Queensland order granting custody or guardianship of a child to
the chief executive but are not described as `custody' or `guardianship'
under that State's child protection legislation. For example, in some other
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Child Protection (International Measures) Bill 2003
States, child protection orders are described as orders allocating aspects of
parental responsibility, including residence and responsibility for making
the types of decisions guardians would make.
Clause 31 amends section 245(1) to clarify that the section applies to
child protection orders made in other States that have the same or similar
effect as a Queensland order granting custody or guardianship of a child to
the chief executive but are not described as `custody' or `guardianship'
under that State's child protection legislation. For example, in some other
States, child protection orders are described as orders allocating aspects of
parental responsibility, including residence and responsibility for making
the types of decisions guardians would make.
Clause 32 omits the definition of guardian from Schedule 3 of the Act.
Because of the amended definition of `parent' in sections 23, 37, 52, 205
and 242, this definition is no longer required.
Clause 33 inserts the following definitions in Schedule 3 of the Act.
The word director of an applicant for a licence or a licensee is defined
for the purpose of clauses 14 (amended section 126(b)) and 18 (amended
section 142(1)(a)(ii)).
The phrase health practitioner is defined for the purpose of clause 11
(amended section 97).
Clause 34 amends the definition of interstate welfare authority in
Schedule 3 of the Act for the purpose of sections 243 and 245 to clarify that
the definition applies to interstate child protection authorities which may
have responsibility for the custody or guardianship of children but the
responsibility is not described as `custody' or `guardianship' under that
State's child protection legislation. For example, in some other
States, child protection orders are described as orders allocating aspects
of parental responsibility, including residence and responsibility for
making the types of decisions guardians would make.
Clause 35 amends the definition of medical examination in Schedule 3
of the Act to replace the reference to `nurse or other health professional'
with a reference to `health practitioner' to ensure consistency in expression
with the amendment made by clause 11 (amended section 97).
Clause 36 amends the definition of suitable person in Schedule 3 of the
Act for the purpose of clauses 14 (amended section 126(b)), 15 (amended
section 130(1)(b)) and 18 (amended section 142(1)(a)(ii)). Consequential
amendments will be made to the Child Protection Regulation 2000, section
9, to include definitions of suitable person for the purpose of determining
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Child Protection (International Measures) Bill 2003
the suitability of directors, nominees and persons who will be or are
engaged in relation to the provision of care services.
CHILD PROTECTION AMENDMENT ACT 2000
Clause 1 amends amendment 1 in the Schedule of this Act by omitting
this provision and replacing it with a re-drafted definition of "parent" for
the purpose of the Child Protection Act 1999, Chapter 7 Interstate
Transfers of Child Protection Orders and Proceedings. This re-drafted
definition is the same as the re-drafted definition for sections 23, 37, 52 and
205 of the Child Protection Act 1999. This provision requires amendment
as it is an uncommenced provision. The reason for amending the definition
of `parent' in this section is the same reason as set out in the note for clause 2.
JUVENILE JUSTICE ACT 1992
Clause 1 amends section 79 to correct the wording of the section so that
the words "that the child" appear immediately before paragraphs (a) and
(b) of the section.
Clause 2 omits paragraph (a) of section 79 because the reference to the
child is now in the body of the section as a result of the amendment made
by clause 1.
Clause 3 amends the heading of section 145 to correct the reference to
the word "Commission" in the section heading so that it reads "Chief
executive (corrective services), to make it consistent with the body of the
section.
Clause 4 amends section 150(5) to replace the references in paragraph
(a) to `part 3A' of both the Community Service (Aborigines) Act 1984 and
the Community Services (Torres Strait) Act 1984 with a reference to `part
5'. This amendment reflects the re-numbering of these two Acts.
Clause 5 amends section 200(3) so that the words `must not be not less'
read as `must not be less' than the 20 hours referred to in the section, as this
is what is intended by the section.
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Child Protection (International Measures) Bill 2003
Clause 6 amends section 235(3) to correct the reference to an order
`made under subsection (1)', so that it reads `under this section' as the
order referred to in the section is not made under subsection (1).
Clause 7 amends section 254(4) to correct the reference to the Transport
Operations (Road Use Management) Act 1995 by replacing the words
`mentioned in paragraph (a) or (b) of the section' with `under section 79 of
that Act' as the offences referred to in section 254(4) now appear in s79 of
the Transport Operations (Road Use Management) Act 1995.
Clause8 amends section 278 to replace the words `imprisonment for 1
year' with the words `1 year's imprisonment' so as to reflect current
drafting practice.
Clause 9 amends section 279 to replace the words `imprisonment for 1
year' with the words `1 year's imprisonment' so as to reflect current
drafting practice.
SCHEDULE 4
DICTIONARY
The Dictionary defines certain words and expressions used in the Bill.
The expression another country is defined for the purposes of clauses
4(4), 22(3), 30(1), 32(1) and 35(1) as a Convention country or a non-
Convention country.
The word Australia is defined for the purposes of clauses 4(4), 8(2), 9(2),
15(2), 16(2), 27(5) and 34 as including Australia's external territories. This
definition is required, as the Convention will be ratified for the whole of
Australia, including the external territories.
Central Authority is defined for the purposes of clauses 8(1), 15(1),
23(2), 28, 29(1) and 34. The Convention provides for authorities to be
designated in each Convention country as central authorities in order to
facilitate international communication and co-operation between courts
and other competent authorities.
Child is defined as an individual who is under 18 years. This definition
is consistent with the Convention and with Queensland law.
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Child Protection (International Measures) Bill 2003
The expression Child Protection Convention is defined as the
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement
and Co-operation in respect of Parental Responsibility and Measures for
the Protection of Children signed at the Hague on 19 October 1996 and
comes into force in Australia on 1 August 2003. The text of the Convention
is set out in schedule 1.
Childrens Court is defined as the Childrens Court established under the
Childrens Court Act 1992 for the purposes of other definitions in this
clause.
Commonwealth central authority, for the purposes of clauses 23(2) and
34(1), has the same meaning given by the Family Law Act 1975 (Cth),
section 111CA(1) which provides that the Commonwealth central authority
is the Secretary of the Attorney-Generals Department.
The expression competent authority is defined for the purposes of parts
2, 3, 5, 6 and 7. A competent authority may be a court, a child protection
agency, public guardian, public trustee, guardianship board or other person
or body which has authority under the law of a country to take measures of
protection for the person or property of a child.
The expression Convention country is defined for the purposes of parts 2,
3, 5 and 6. A country becomes a Convention country by lodging with the
depositary of the Convention an instrument of ratification or accession in
accordance with articles 57 or 58 of the Convention.
The expression country of refuge is defined for the purposes of clauses
9(2), 16(2) and 18(2) which, among other things, implement article 6 of the
Convention which deals with the jurisdiction of courts and other competent
authorities to take measures of protection for children who are refugees.
The word entity is defined for the purpose of the definition of competent
authority in this clause.
The expression external territory is defined for the purpose of the
definition of Australia in this clause as having the same meaning as given
by the Acts Interpretation Act 1901 (Cth).
The expression foreign measure is defined for the purposes of clauses
9(3), 16(3), 25, 26, 27(1), 29(2) and 36 as a foreign personal protection
measure and a foreign property protection measure.
The expression foreign personal protection measure is defined for the
purposes of clauses 14, 23, 24 and 26.
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Child Protection (International Measures) Bill 2003
The expression foreign property protection measure is defined for the
purposes of clauses 21(1), 24 and 26(2).
The expression non-Convention country is defined for the purposes of
clauses 9(2), 14(2), 15(1), 16 and 23(3).
The expression parental responsibility is defined for the purposes of
clauses 18(3), 21(2), 23(4) and 26(3) and has the same meaning as
provided in article 1 of the Convention.
Public trustee is defined for the purposes of the definition of Queensland
authority in this clause and of clauses 15, 18, 19, 20 and 32 as meaning the
public trustee under the Public Trustee Act 1978.
The expression Queensland authority is defined for the purposes of
clauses 4(3), 9, 10, 11, 12, 14, 16, 17, 18, 21, 22, 31, 32, 33, 34 and 35 as
being a Queensland court or the department (for Queensland personal
protection measures) or a Queensland court or the public trustee (for
Queensland property protection measures).
Queensland court is defined as the Supreme Court, the District Court,
the Childrens Court, the Magistrates court or the Children Services
Tribunal, which administratively reviews certain decisions made by the
chief executive under the Child Protection Act 1999.
Queensland law is defined for the purposes of the definitions of
Queensland personal protection measure and Queensland property
protection measure in this clause and of clauses 8, 9, 14, 15, 16, 21, 22, 23,
26 and 32.
Queensland measure is defined for the purposes of clauses 28, 29, 30, 35
and 38 as a Queensland personal protection measure and a Queensland
property protection measure.
Queensland personal protection measure is defined for the purposes of
part 2 (Jurisdiction for the person of a child) which implements provisions
of the Convention which regulate the grounds of jurisdiction which courts
and other competent authorities may exercise in taking measure for the
protection of the person of a child (as distinct from measures for the
protection of the property of the child dealt with in part 3) and part 5
(Recognition of foreign measures and their enforcement in Queensland).
Under Article 3 of the Convention, a measure may relate to matters such as
custody, residence, contact, guardianship, placement of a child in a foster
family or institutional care and supervision by a public authority of the care
of a child. Examples of Queensland personal protection measures are
provided.
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Child Protection (International Measures) Bill 2003
Queensland property protection measure is defined for the purposes of
part 3 (Jurisdiction for decisions about a guardian of a child's property) and
part 5 (Recognition of foreign measures and their enforcement in
Queensland).
The expression refugee child is defined for the purposes of clauses 9(2),
16(2), 18(2) and 21(1) which, among other things, implement article 6 of
the Convention which deals with the jurisdiction of courts and other
competent authorities to take measures of protection for children who are
refugees.
The word registrar is defined for the purpose of part 5, which deals with
the recognition of foreign measures and their enforcement in Queensland.
© State of Queensland 2003