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Monday, 30 May 1994
Page: 844


Senator COLSTON —I give notice that, on the next day of sitting, I shall withdraw business of the Senate notice of motion No.1, standing in my name for the next day of sitting. I seek leave to make a short statement.

  Leave granted.


Senator COLSTON —On 14 March I reported to the Senate on the committee's concerns with this instrument which related to restrictions on the application of the child abduction convention. The Attorney-General has now provided the committee with information which meets its concerns. The committee is grateful for this cooperation. As usual, I seek leave to incorporate the committee's correspondence in Hansard.

  Leave granted.

  The correspondence read as follows—

9 February 1994

The Hon Michael Lavarch, MP

Attorney-General

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Family Law (Child Abduction Convention) Regulations (Amendment), Statutory Rules 1993 No 358.

Among other things, the regulations omit the Socialist Federal Republic of Yugoslavia from Schedule 2 Convention countries and, retrospectively from 1 December 1991, substitute Bosnia and Herzegovina, Croatia and the former Yugoslav Republic of Macedonia. The SFRY was retrospectively included as a Convention country from 1 December 1991 by Statutory Rules 1992 No. 34.

The result of the changes is presumably that from 1 December 1991 to 23 December 1993, the date of the changes made by the present regulations, the whole of the area of the former SFRY was a Convention country in respect of which the Convention had entered into force for Australia. The present regulations, however, do not appear to apply to all of that area. For instance, are Slovenia, Montenegro and Serbia now covered? If there are gaps, are child abductions in these areas to be left in limbo? Finally, what is the basis for the retrospectivity to 1 December 1991 for Bosnia and Herzegovina, Croatia and the former Yugoslav Republic of Macedonia?

Developments in this area are of particular interest to the Committee, which presented a special report to the Senate on its scrutiny of regulations imposing United Nations sanctions. This report was favourably mentioned in the Explanatory Memorandum and second reading speech for the Charter of United Nations Amendment Act 1993.

Accordingly, it would be appreciated if officers of your Department could brief the Committee on the present regulations at its next meeting at 8.30 am on Thursday, 24 February 1994 in Committee Room 1S6. The briefing would be quite informal and not recorded by Hansard. The Department could discuss any details with the Committee secretary on 277 3066.

Yours sincerely

Mal Colston

Chairman

24 February 1994

The Hon Michael Lavarch, MP

Attorney-General

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to my letter of 9 February 1994 about the Family Law (Child Abduction Convention) Regulations (Amendment), Statutory Rules 1993 No. 358.

At its meeting of 24 February 1994 the Committee was briefed on the Regulations by Mr Richard Morgan, Mr Bill Campbell and Ms Jenny Degeling of your Department. I would be grateful if you could arrange for our thanks to be conveyed to these officers for their helpful assistance.

The Committee understands that the Department will approach the Hague Conference on Private International Law, the present authorities in Belgrade and the government of Slovenia, with a view to obtaining, as far as is possible, undertakings about coverage by the Convention of all the territory of the former Socialist Federal Republic of Yugoslavia. The Committee would appreciate your advice on the result of these approaches.

In view of the importance of the subject matter of the Regulations and the possible effect upon a considerable number of Australians of restricted application of the Convention, on behalf of the Committee I will give a protective notice of disallowance of the Regulations on 14 March 1994, the last day on which it is possible to do so. The notice will be for 15 sitting days after that date.

Yours sincerely

Mal Colston

Chairman

22 March 1994

Senator Mal Colston

Chairman

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Colston

HAGUE CONVENTION ON CHILD ABDUCTION: STATUS OF YUGOSLAVIA

I refer to your letter of 24 February 1994 concerning the meeting of your Committee with officers of my Department to discuss the Family Law (Child Abduction Convention) Regulations (Amendment), Statutory Rules 1993 No. 358. I understand that at that meeting, the Committee expressed concern at the omission of the Socialist Federal Republic of Yugoslavia from the Regulations and its replacement with Croatia, Bosnia and Herzegovina, and Macedonia. The Departmental officers undertook to make further enquiries to ascertain the status of the remaining Yugoslav republics of Serbia and Montenegro, and Slovenia, in respect of the Convention.

The Australian Embassy in Belgrade has advised my Department (see cable at Attachment A) that the Federal Republic of Yugoslavia (Serbia and Montenegro) "continues to respect, on the basis of its international and legal continuity, international treaties [. . .] to which the former Socialist Federal Republic of Yugoslavia acceded". Furthermore, "The Federal Republic of Yugoslavia continues to exercise its rights and observe its obligations under the [Hague] Convention, without additionally notifying the depositary of the Convention thereof".

The Secretary General of the Hague Conference on Private International Law has advised my Department that, "in the absence of a notification of continuity, the depositary and the Permanent Bureau [of the Hague Conference] consider that the Federal Republic of Yugoslavia (Serbia and Montenegro) is not a party to the Convention". (See copy of the cable at Attachment B). The Secretary General also advises that, after contact with Slovenian authorities, the accession of Slovenia is expected at some time in the future. However, a cable from the Australian Embassy in Vienna advises that Slovenia regards itself as a party to the Convention, having acceded to it in May 1993.

I am advised that the views expressed by our Embassy in Belgrade are in accordance with international rules of treaty succession, and Australia can recognise the Federal Republic of Yugoslavia (Serbia and Montenegro) as a party to the Convention. Accordingly, I propose the following solution:

i)  that another amendment should be made immediately to the Regulations by adding the Federal Republic of Yugoslavia (Serbia and Montenegro). As there is no requirement under the Convention for the deposit of an instrument of succession, it will not be necessary to wait for that notification from the Netherlands Ministry of Foreign Affairs before the Regulations can be amended; and

ii)  that a further amendment to the Regulations should be made by adding Slovenia, when official notification of that country's accession is received from the depositary. It is a requirement under Article 38 of the Convention that accession to the Convention is only effective after the deposit of an instrument of accession with the Netherlands Ministry of Foreign Affairs.

In addition, the Department has informed the Hague Conference of the conflicting information that has been received, and requested that the Conference gives further consideration to the advice it provided on the matter on 3 March 1994.

I note that you intend to give a protective notice of disallowance of the Regulations on 14 March 1994. When the steps outlined in (i) and (ii) have been taken, I hope that you will promptly give consideration to withdrawing the notice of disallowance.

Yours sincerely

Michael Lavarch

Senator Mal Colston

Chairman

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Colston

HAGUE CONVENTION ON CHILD ABDUCTION: STATUS OF YUGOSLAVIA

I am writing to ask that you give consideration to withdrawing your motion of disallowance of the Family Law (Child Abduction Convention) Regulations (Amendment), Statutory Rules 1993 No. 358. I am advised that the last date for withdrawal is 31 May 1994.

In my letter of 22 March 1994 I advised you of the action I proposed to take to ensure that appropriate arrangements were made in relation to the abduction of children from Slovenia and the Federal Republic of Yugoslavia (Serbia and Montenegro).

Slovenia has lodged an instrument of accession to the Child Abduction Convention. The Convention provides that it will apply between Australia and Slovenia three months after Australia notifies its acceptance of Slovenia's accession. I am advised that the Department of Foreign Affairs and Trade is making arrangements for this notification. An amending regulation will be made to include Slovenia in the schedule to the Child Abduction Regulations as soon as the notification is made.

The position in relation to the Federal Republic of Yugoslavia (Serbia and Montenegro) (FRY) is more complex. Further regulations have been drafted to include the FRY in the schedule to the Regulations. However the Department of Foreign Affairs and Trade has expressed concern that the inclusion of FRY in the Family Law Regulations may imply Australian recognition of the FRY. As a matter of foreign policy Australia and many other countries are refusing to recognise the FRY because the FRY claims to continue the statehood of the former Socialist Federal Republic of Yugoslavia.

The question of the recognition of FRY is within the portfolio responsibility of my colleague the Minister for Foreign Affairs, Senator Evans. I am advised that Senator Evans will be giving further consideration to the issue whether as a matter of foreign policy, it is appropriate to include the FRY in the Family Law (Child Abduction) Regulations. In the circumstances I can do no more than give an undertaking to your Committee that regulations will be made to include the FRY as soon as the question of Australia's recognition of the FRY is resolved.

There are two matters which I suggest should be taken into account in deciding whether the notice of disallowance should be withdrawn.

The first is that disallowance will not achieve the Committee's objective of ensuring that children abducted to or from the former Socialist Federal Republic of Yugoslavia will be covered by the regulations and the Convention. For the purpose of the law in Australia that State no longer exists because Australia does not recognise the FRY as continuing the statehood of the former Socialist Republic. There is no Central Authority in Belgrade with which the Australian Central Authority could deal in relation to child abductions.

Secondly the effect of the disallowance of Statutory Rules 1993 No. 358 would be to create confusion in the minds of family law practitioners and others who use the Family Law (Child Abduction) Regulations. If the Statutory Rules are disallowed many practitioners would assume that the Convention and regulations would no longer apply in relation to the States mentioned in the Statutory Rules (Bosnia and Herzegovina, Croatia, Macedonia, Mauritius, Monaco, Poland, Romania). They may fail to take action under the regulations to deal with any abductions. In law the regulations and the Convention would continue to apply because regulation 10 defines a `Convention country' as any country in respect of which the Convention has entered into force for Australia. We could try to explain to practitioners through legal publications why those States were no longer listed in the schedule to the regulations but there would still be considerable confusion. I do not think this sort of confusion would be in the public interest.

For these reasons, and in the light of my undertaking to proceed as soon as possible with the abovementioned amending regulations, I ask that you now give consideration to withdrawing your motion of disallowance of the Family Law (Child Abduction Convention) Regulations (Amendment), Statutory Rules 1993 No. 358.

Yours sincerely

MICHAEL LAVARCH

Senator Mal Colston

Chairman

Senate Standing Committee on Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Colston

DISALLOWANCE OF FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS

Further to the Attorney-General's letter to you of 23 May 1993 requesting that you withdraw your motion of disallowance of the Family Law (Child Abduction Convention) Regulations (Amendment), Statutory Rules 1993 No. 358, I wish to advise of the latest developments in relation to Australia's recognition of the Federal Republic of Yugoslavia (Serbia and Montenegro).

We have been advised that the Minister for Foreign Affairs and Trade has agreed that Australia should accept that the Federal Republic of Yugoslavia (Serbia and Montenegro) has succeeded to the Hague Convention on Child Abduction. Furthermore, the Minister for Foreign Affairs and Trade agrees that the Family Law (Child Abduction Convention) Regulations should include a reference to the Federal Republic of Yugoslavia (Serbia and Montenegro) as the name used in UN sanctions resolutions, with an asterisk noting that "The Federal Republic of Yugoslavia (Serbia and Montenegro) has declared its intention to be bound by the obligations under the Convention. This reference does not amount to recognition of that entity by Australia."

I am currently preparing drafting instructions for an amendment to the Regulations which reflects the position agreed to by the Minister for Foreign Affairs and Trade. Draft Regulations for this purpose will be submitted to the Minister and Executive Council at the earliest possible time.

Yours sincerely

Richard Morgan

Senior Government Counsel

Family and Administrative Law Branch

24 May 1994