EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 96
Issued by the authority of the Attorney-General
Family Law Act 1975
Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2006 (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 Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (the Convention), which was signed at The Hague in 1993 and entered into force for Australia on 1 December 1998.
The Convention establishes a system of cooperation amongst Convention countries to ensure that intercountry adoptions take place in the best interests of the child and with regard to the child’s fundamental rights. A country which has ratified or acceded to the Convention secures the recognition in Convention countries of adoptions made in accordance with the Convention and ensures that those safeguards are respected, thereby preventing the abduction, the sale of, or the traffic of children.
The Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (the Principal Regulations) give effect to the Convention in Australian law, including the recognition of adoption decisions made in other Convention countries. Regulation 4 of the Principal Regulations provides that a Convention country is either a country mentioned in Schedule 2 to those Regulations, on and from the date mentioned in relation to that country, or any other country for which the Convention has entered into force.
The purpose of the Regulations is to add 14 countries (Azerbaijan, Belarus, Belgium, China, Guatemala, Guinea, Hungary, India, Malta, Portugal, San Marino, South Africa, Thailand, and Uruguay) to the list of Convention countries specified in Schedule 2 to the Principal Regulations. The Regulations also specify the date on which the Convention entered into force between Australia and each of these countries.
Belarus, Belgium, China, Hungary, India, Portugal, Thailand, and Uruguay have all ratified the Convention. Azerbaijan, Guatemala, Guinea, Malta, San Marino and South Africa have deposited instruments of accession in accordance with Article 44 of 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. No objection was made by Australia to the accession of Azerbaijan, Guatemala, Guinea, Malta, San Marino and South Africa.
Article 46, subparagraph 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.
The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
These Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
State and Territory Central Authorities are informed of Notifications so that any concerns can be considered in deciding whether to initiate the objection process.
Overview
The Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2006 (No. 1) was enacted to address the need for Australia to align its domestic legislation with the international framework established by the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. This Convention, signed in 1993 and effective for Australia since 1998, aims to safeguard children's rights and ensure that intercountry adoptions are conducted in their best interests, preventing issues such as abduction, sale, or trafficking. The regulations, issued by the authority of the Attorney-General, amend the Family Law Act 1975 to incorporate 14 additional countries into the list of Convention countries, thereby enhancing the recognition and enforcement of adoption decisions made under the Convention within Australia. This legislative update ensures that Australia meets its international obligations and promotes consistent application of the Convention's principles across participating nations.
Scope and Application
The Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2006 (No. 1) extend the application of the Family Law Act 1975 by adding 14 new countries to the list of Convention countries under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. These countries include Azerbaijan, Belarus, Belgium, China, Guatemala, Guinea, Hungary, India, Malta, Portugal, San Marino, South Africa, Thailand, and Uruguay. The Regulations specify the dates on which the Convention entered into force between Australia and these countries, with Belarus, Belgium, China, Hungary, India, Portugal, Thailand, and Uruguay having ratified the Convention, and Azerbaijan, Guatemala, Guinea, Malta, San Marino, and South Africa having deposited instruments of accession. These Regulations ensure that the adoptions carried out in accordance with the Convention are recognised in Australia, and that the fundamental rights and best interests of the children involved are protected. The Regulations are applicable to all persons and entities involved in intercountry adoptions between Australia and these 14 countries, and they come into effect on the day after they are registered on the Federal Register of Legislative Instruments.
Key Provisions
The Family Law (Hague Convention on Intercountry Adoption) Amendment Regulations 2006 (No. 1) (F2006L01324) primarily serve to amend the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 by adding 14 countries to the list of Convention countries under Schedule 2 of the Principal Regulations (section 1). This addition is in line with the obligations Australia has under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (section 111C(1)). The added countries are Azerbaijan, Belarus, Belgium, China, Guatemala, Guinea, Hungary, India, Malta, Portugal, San Marino, South Africa, Thailand, and Uruguay. For each of these countries, the Regulations specify the date on which the Convention entered into force (Schedule 1).
These Regulations impose specific obligations on the Central Authorities in Australia and the added Convention countries. The Central Authorities must ensure that intercountry adoptions are conducted in accordance with the Convention, focusing on the best interests of the child and respecting their fundamental rights. They must prevent the abduction, sale, or trafficking of children, as stipulated in the Convention (Article 46, subparagraph 2(a)). The Central Authorities are also required to communicate with their counterparts in other Convention countries to facilitate cooperation and to address any concerns that may arise.
Breach of the provisions of these Regulations can result in civil or criminal consequences, depending on the nature of the violation. Under the Convention, countries are expected to respect and implement the provisions faithfully. For example, if an adoption process does not comply with the Convention, it may be deemed invalid, and legal consequences may follow for those involved. While the Regulations themselves do not specify penalties, breaches of the underlying Convention can result in legal actions, including objections raised by other Contracting States. The Convention provides mechanisms for such objections, and the absence of objections from Australia has confirmed the entry into force of the Convention with the acceding countries (Article 44, paragraph 3).
The Regulations also emphasise the importance of international cooperation in ensuring that adoptions are conducted in a manner that safeguards the rights and welfare of children. By adhering to the Convention, Australia and the newly added countries commit to a framework that prioritises the child's best interests, preventing exploitative practices and ensuring that intercountry adoptions are legitimate and beneficial for the children involved. The Regulations thus play a crucial role in maintaining the integrity of the international adoption process and fostering trust among Convention countries.