Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2003 (No. 1) 2003 No. 341
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 341
Issued by the authority of the Attorney-General
Family Law Act 1975
Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2003 (No. 1)
Section 125 of the Family Law Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 111C (1) of the Act provides that the regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the Convention), which entered into force for Australia on 1 December 1998.
Regulation 4 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (the Adoption Regulations) provides that a Convention country is either a country mentioned in Schedule 2 to the Adoption Regulations, on and from the date mentioned in relation to that country (paragraph 4(a)), or any other country for which the Convention has entered into force (other than Australia and a country against whose accession Australia has raised an objection) (paragraph 4(b)).
The purpose of the Regulations is to add Albania, Bolivia, Bulgaria, Estonia, Germany, Latvia, Luxembourg, the Slovak Republic, Slovenia, Switzerland, the United Kingdom, the Isle of Man and the Canadian province of Nunavut to the list of Convention countries in Schedule 2 to the Adoption Regulations.
• Where the Canadian federal government enters into a treaty on a subject that is within the legislative power of the provinces, the treaty is extended to each province when it's implementing measures are in place. Since not all Canadian provinces have measures in place to implement the Convention, it is necessary to list only those provinces to which the Convention may apply in the list of Convention countries in Schedule 2 to the Adoption Regulations.
• The United Kingdom has responsibility for the international relations of the territory of the Isle of Man and has extended the operation of the Convention to that territory.
The Regulations also specify the date on which the Convention entered into force between Australia and the countries to be added.
All the countries added to Schedule 2 have ratified the Convention, except Estonia which has acceded to the Convention. Article 44, paragraph 3 of the Convention provides that an accession has effect only between an acceding State and those Contracting States that have not raised an objection to the accession in the six months after receipt of the notification of accession. Article 46, paragraph 2(a), provides that the Convention enters into force for countries on the first day of the month following the expiration of three months after the deposit of their instruments of ratification or accession. Estonia deposited instruments of accession in accordance with Article 44 of the Convention on 22 February 2002. Therefore, the Convention entered into force for Estonia on 1 June 2002. As the Commonwealth and the States and Territories did not object to the accession of Estonia, the Convention has had effect as regards the relations between Australia and Estonia since 1 June 2002.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations commenced on gazettal. However, for the purposes of the Act and the Adoption Regulations, Australia's relations with each country to be listed have been effective since the date on which the Convention entered into force for each of those countries, by virtue of paragraph 4(b) of the Adoption Regulations.
Overview
The Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2003 (No. 1) were introduced to align Australia's adoption practices with international standards set by the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. Enacted under the authority of the Family Law Act 1975, these regulations were made to facilitate the formal inclusion of additional countries into the list of Convention countries for intercountry adoptions. This was done to ensure that Australia's adoption processes were consistent with the Convention, which aims to protect the rights of children, parents, and adopting families during international adoptions. The regulations specifically add Albania, Bolivia, Bulgaria, Estonia, Germany, Latvia, Luxembourg, the Slovak Republic, Slovenia, Switzerland, the United Kingdom, the Isle of Man, and the Canadian province of Nunavut to Schedule 2 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998. The objective of these amendments is to provide a clear and updated list of countries with which Australia recognises intercountry adoptions under the Convention, ensuring that the adoption processes are transparent, efficient, and child-focused.
Scope and Application
The Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2003 (No. 1) extend the application of the Family Law Act 1975 to include additional countries and territories under the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. This amendment is made under the authority provided by section 125 of the Family Law Act, allowing the Governor-General to make regulations necessary to fulfil Australia's obligations under the Convention. The Regulations specifically add Albania, Bolivia, Bulgaria, Estonia, Germany, Latvia, Luxembourg, the Slovak Republic, Slovenia, Switzerland, the United Kingdom, the Isle of Man, and the Canadian province of Nunavut to the list of Convention countries. This inclusion is crucial for ensuring that intercountry adoptions from these jurisdictions comply with international standards and obligations. Notably, Estonia's accession to the Convention is acknowledged, with the Regulations detailing the effective date of the Convention's operation between Australia and Estonia. The Regulations took effect upon gazettal, but their application to each listed country is retroactive to the date the Convention entered into force for that country.
Key Provisions
The Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2003 (No. 1) primarily serve to update the list of Convention countries in the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (the Adoption Regulations) by adding Albania, Bolivia, Bulgaria, Estonia, Germany, Latvia, Luxembourg, the Slovak Republic, Slovenia, Switzerland, the United Kingdom, the Isle of Man, and the Canadian province of Nunavut. These additions are detailed in Schedule 2 of the Adoption Regulations, as provided in Regulation 4. Each of these countries has either ratified the Convention or Estonia has acceded to it, with the necessary conditions for entry into force having been met as stipulated by the Convention's Articles 44 and 46.
The obligations imposed by these Regulations on parties or entities are primarily administrative. They ensure that the list of Convention countries is updated to reflect the current international legal framework governing intercountry adoptions. Specifically, they mandate that Australia's relationship with these newly listed countries is governed by the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. This includes ensuring that the adoption processes adhere to the standards and safeguards set out in the Convention, which are designed to protect the rights and interests of children involved in intercountry adoptions.
Failure to comply with the provisions of these Regulations may have legal consequences. While the Regulations themselves do not explicitly detail specific offences, penalties, or civil/criminal consequences, breaches of the Hague Convention or the Family Law Act 1975 could result in legal actions under the broader framework of Australian family law. For instance, non-compliance with the Convention's provisions could potentially lead to the adoption being deemed invalid or subject to legal challenges. Under the Family Law Act, there are various penalties for breaches, which may include fines or other sanctions as prescribed by the Act. The exact penalties would depend on the specific nature and severity of the breach, as well as any additional legal provisions that might apply.