Title Civil Law and Justice Legislation Amendment Bill 2018
Database Explanatory Memoranda
Date 23-01-2020 11:59 AM
Source Senate
System Id legislation/ems/s1057_ems_2adb7185-d667-41f1-90fe-1809805ce164


Civil Law and Justice Legislation Amendment Bill 2018

 

 

2016 – 2017 – 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

               


 

AMENDMENTS TO THE CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT Bill 2017

(Government)

general Outline

1.                  The purpose of the Civil Law and Justice Legislation Amendment Bill (‘the Bill’) is to make minor and technical amendments to civil justice legislation.

2.                  The amendments proposed to be moved by the Government to the Bill would confirm that subsequent written consent (authenticated as prescribed) could regularise the status of the child overseas, thereby removing the possibility of a criminal charge of retaining a child outside Australia.

FINANCIAL IMPACT

3.                  There is nil financial impact associated with the Bill or these amendments.

 


 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Civil Law and Justice Legislation Amendment Bill 2017

4.                  The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that they are incompatible with these rights, the limitations are necessary and appropriate.

Human rights implications

5.                  The Bill engages the following rights:

·                     The right to life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

·                     The right to not be subject to arbitrary arrest or detention under Article 9 of the ICCPR

·                     The right of all persons to be equal before courts and tribunals under Article 14 of the ICCPR

·                     The right of every child to such measures of protection as are required by his status as a minor, on the part of his family, society and the State under Article 24(1) of the ICCPR

·                     The requirement on State Parties to take all appropriate measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child under Article 19(1) of the Convention on the Rights of the Child (CRC), and

·                     The elimination of discrimination against women required by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Amendments 1 and 2: Offences of retaining a child overseas – consent or compliance with court order

6.                  These amendments confirm that subsequent written consent (authenticated as prescribed) or court orders can regularise a child’s status overseas, preventing the possibility of criminal charges. These amendments confirm that plans can change after the child/ren departs Australia. Provided that arrangements are authorised—by subsequent court orders or written consent (authenticated as prescribed) —the actions will not be subject to the offence provision.  These proposed amendments engage the right to not be subject to arbitrary arrest or detention under Article 9 of the ICCPR.

 


 

NOTES ON AMENDMENTS

Offences of retaining a child overseas – consent or compliance with court order

Amendments 1 and 2:Schedule 6, item 45, page 25 (lines 1 to 4) and item 47, page 26 (lines 4 to 7)

7.                  Amendment 1 would amend Schedule 6, item 45 to the Bill. This amendment would make some small changes to the existing wording of the new paragraph 65YA(c) offence in relation to retention of a child overseas if certain parenting orders have been made. This amended wording would ensure that an offence is not committed if written consent (authenticated as prescribed) is given, or a court order made, subsequently to the child/ren being taken from Australia.  

8.                  Amendment 2 would amend Schedule 6, item 47 to the Bill. This amendment would make some small changes to the existing wording of the new paragraph 65ZAA(c) offence in relation to retention of a child overseas if proceedings for the making of certain parenting orders are pending. This amended wording would ensure that an offence is not committed if written consent (authenticated as prescribed) is given, or a court order made, subsequently to the child/ren being taken from Australia.

9.                  Regulation 13 of the Family Law Regulations 1984 sets out the requirements for the authentication of consent in writing for existing Family Law Act 1975 offence provisions relating to international parental child abduction. The regulation requires that a consent in writing must be authenticated by a person mentioned in section 8 of the Statutory Declarations Act 1959 endorsing on the consent a statement that:

(a)    the person is satisfied about the identity of the person signing the consent; and

(b)   the consent was signed in the person’s presence.

10.              It is intended that, following the enactment of this measure, Regulation 13 would be amended to refer to the new paragraphs 65YA(b) and 65ZAA(b).