House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Civil Law and Justice Legislation Amendment Bill 2018

17. This Bill is 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.

Overview of the Bill

18. The Bill is an omnibus bill, which would make minor, technical and uncontroversial amendments to the following Acts:

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Acts Interpretation Act 1901

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Archives Act 1983

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Bankruptcy Act 1966

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Domicile Act 1982

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Evidence Act 1995

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Family Law Act 1975

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International Arbitration Act 1974

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Legislation Act 2003

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Marriage Act 1961, and

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Sex Discrimination Act 1984.

19. The Bill would also make consequential amendments to the:

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Defence Force Retirement and Death Benefits Act 1973

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Defence Forces Retirement Benefits Act 1948

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Governor-General Act 1974

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Income Tax Assessment Act 1997

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Judges' Pensions Act 1968

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Parliamentary Contributory Superannuation Act 1948

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Superannuation Act 1922

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Superannuation Act 1976, and

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Superannuation (Unclaimed Money and Lost Members) Act 1999.

20. Amendments to the Acts Interpretation Act 1901 would reinstate a provision that clarifies that a Minister's exercise of power is not invalid merely because that power, duty or function is conferred on another Minister. For example, the performance of a duty by a Minister under the belief that that duty lies with him or her will not automatically be an invalid exercise of power if in fact a change in the Administrative Arrangement Orders placed responsibility for that duty on another Minister. This provision would not, however, validate the acts of Ministers purporting to exercise power which is conferred on another Minister in all circumstances. Further, it would not authorise or allow Ministers to perform functions or duties or exercise powers that do not fall within their areas of responsibility. This provision is intended to operate in accordance with the convention of collective responsibility, which is part of the Cabinet system of Government.

21. Amendments to the Archives Act 1983 would assist the Archives to appropriately manage high volume applicants requesting access to records and make other minor technical amendments to the Archives Act, including:

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extending the timeframe within which the Archives is required to respond to access requests from 90 calendar days to 90 business days

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providing the Director-General of the Archives with the ability to extend the timeframe for processing an access request by mutual agreement with the applicant

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giving the Director-General of the Archives the power to extend the timeframe for processing an access request where that request exceeds a specified number of items, and

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extending the timeframe for internal review by the Archives of access decisions from 14 calendar days to 30 business days.

22. An amendment to the Bankruptcy Act 1966 would clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a financial agreement set aside under the Family Law Act.

23. An amendment to the Domicile Act 1982 would amend the Act so that it applies to the territories currently specified in the Domicile Regulations 1982.

24. An amendment to the Evidence Act 1995 would update the presumption about when postal articles sent by prepaid post are received, to accord with changes to Australia Post delivery times.

25. Amendments to the Family Law Act 1975 would:

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strengthen Australia's response to international parental child abduction

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clarify the range of persons who may perform the powers of the Registry Managers in the Family Court of Australia or any other court

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improve the consistency of financial and other provisions for de facto and married couples

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assist the operation of the family law courts, and

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make minor and technical amendments, including clarifying definitions and removing redundant provisions.

26. Amendments to the International Arbitration Act 1974 would:

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specify expressly the meaning of 'competent court' for the purpose of the Model Law

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clarify procedural requirements for enforcement of an arbitral award

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modernise provisions governing arbitrators' powers to award costs in international commercial arbitrations, and

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clarify the application of confidentiality provisions to arbitration subject to the United Nations Commission on International Trade Law Rules on Transparency in Treaty-based Investor-State Arbitration.

27. The amendments to the Legislation Act 2003 would promote effective practical management of the Federal Register of Legislation by clarifying that retrospective amendments are not required to be incorporated into previous compilations, that an agency is not required to prepare and lodge for registration a compilation of an Act or instrument merely because a provision of the Act or instrument ceases to be in effect, unless the provision is expressly repealed by amending legislation, and when an instrument should be removed from the "In Force" part of the Register. The Office of Parliamentary Counsel and other agencies preparing compilations of legislation will be able to assess where it is necessary to incorporate retrospective amendments to past compilations, and amending legislation will continue to be available to the public in their most current and correct versions.

28. An amendment to the Marriage Act 1961 would:

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remove outdated concepts and ensure consistency with the Family Law Act in relation to parental consent for the marriage of minors

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make technical amendments of minor policy significance to improve the operation of the Marriage Act, and

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remedy errors and defects in existing legislation to clarify and streamline relevant provisions to ensure consistency.

29. An amendment to the Sex Discrimination Act 1984 would repeal section 43, which exempts discrimination against women in connection with employment, engagement or appointment in Australian Defence Force (ADF) positions involving combat duties. This amendment is consistent with the removal of gender restrictions from ADF combat roles, which took full effect from 1 January 2016, and would ensure women have equal opportunities to apply and be considered for ADF positions.

Human rights implications

30. The Bill engages the following human rights:

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

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the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment: Article 7 of the ICCPR

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the right to liberty and security of the person: Article 9 of the ICCPR

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the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person: Article 10 of the ICCPR

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the right to a fair and public hearing: Article 14(1) of the ICCPR

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prohibition on retrospective criminal laws: Article 15 of the ICCPR

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the right to privacy: Article 17 of the ICCPR

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the right to freedom of opinion and expression: Articles 19(1) and 19(2) of the ICCPR

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the right to marry: Article 23 of the ICCPR

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the right to such measures of protection as are required by his or her status as a minor: Article 24(1) of the ICCPR

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the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

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the obligation to work towards eradicating discrimination against women: Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

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the obligation to actively promote women's full development and advancement: Article 3 of the CEDAW

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the obligation to eliminate discrimination against women in employment: Article 11 of the CEDAW

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the obligation to combat the illicit transfer of children: Article 11 of the Convention on the Rights of the Child (CRC)

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the right of every child to be protected from all forms of violence, abuse, neglect, maltreatment or exploitation while in care: Article 19 of the CRC, and

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respect for home and the family for people with a disability: Article 23 of the Convention on the Rights of Persons with a Disability (CRPD).

The right to life; the right to security of the person; and the prohibition on torture and other cruel, inhuman or degrading treatment or punishment: Article 6 of the ICCPR; Article 9 of the ICCPR; and Article 7 of the ICCPR and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

31. Article 6 of the ICCPR provides that everyone has the inherent right to life and that no one shall be arbitrarily deprived of life. Article 9 of the ICCPR provides that everyone has the right to liberty and security of the person and that no one shall be subjected to arbitrary arrest or detention. It also provides for further protections in the course of arrest, including to be informed of the reason for arrest, to be brought promptly before a judge, to habeas corpus, and to take proceedings before a court.

32. Article 7 of the ICCPR contains the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The CAT also prohibits torture and other cruel, inhuman or degrading treatment or punishment.

Family Law Act 1975

33. The Bill would modernise the existing arrest provisions in the Act to bring them in line with the similar powers of the Federal Court of Australia and the Federal Circuit Court of Australia. It clarifies who can make arrests. Under the current provisions, the Court may authorise any person to make an arrest. The proposed list is narrower and identifies appropriate law enforcement officers. The Bill would also limit, in line with similar powers in the Crimes Act 1914, an arrester's power to enter and search premises and stop and detain conveyances (which include a vehicle, a vessel and an aircraft) for the purposes of making an arrest.

34. The proposed amendments engage the right to security of the person in Article 9 and the right to life in Article 6 of the ICCPR and require the provision of reasonable measures to protect a person's physical security. They also engage the prohibition on torture and cruel, inhuman and degrading treatment or punishment in Article 7 of the ICCPR and in the CAT.

35. These amendments are necessary to achieve the legitimate aim of ensuring that an arrestee can be arrested and brought before a court for the administration of justice. This will allow an arrester to, for example, disrupt an attempted international parental child abduction by searching the conveyance on which the arrestee intended to leave the country. This engages Australia's obligations in regard to the illicit transfer of children under Article 10 of the CRC.

36. The proposed amendments are reasonable and proportionate to this objective. The powers of the arresters would be appropriately and proportionately limited in that:

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only people authorised by the Act can exercise the powers, which includes, for example, police officers, Marshals of the Family Court and Australian Border Force officers. This is a significant additional limitation compared to the Court's existing arrest powers.

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the arrester must not use more force than is necessary and reasonable to make the arrest or to prevent the arrestee's escape after the arrest.

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the arrester must not do anything that is likely to cause death or grievous bodily harm unless the arrester reasonably believes that doing so is necessary to protect life or prevent serious injury, and

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the arrester must only enter premises, using only such force as is necessary and reasonable in the circumstances, when they reasonably believe that the arrestee is on the premises.

37. Arresters who do not comply with these restrictions may face criminal charges, particularly if they are found to have used more force than is necessary.

38. These amendments are consistent with the rights to life, security of the person and the prohibition on torture and cruel, inhumane and degrading treatment and punishment because they are aimed at the legitimate and lawful objective of bringing a person who is the subject of an arrest warrant before a Court for the administration of justice and they are necessary, reasonable and proportionate to this objective.

The right to a fair and public hearing: Article 14(1) of the ICCPR

39. Article 14(1) of the ICCPR sets out the right to a fair and public hearing and requires all persons to be equal before courts and tribunals, and to have the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

Family Law Act 1975

40. Item 1 of Schedule 6 to the Bill would amend the Family Law Act to strengthen the rights of the bankruptcy trustee to be represented in family law proceedings relating to property which is vested in the trustee. This facilitates the just and fair administration of the estate on behalf of the creditors and maintains the rights of the parties to the proceedings. To the extent that this Bill engages the rights under Article 14(1) of the ICCPR, for all persons to be equal before the courts, it does so by enhancing the protection of those rights.

International Arbitration Act 1974

41. The International Arbitration Act is part of a global framework supporting international commercial arbitration, by providing for the conduct of arbitral proceedings, the recognition and enforcement of foreign arbitral awards, and for the judicial supervision of arbitration in over 150 countries. This framework allows parties to international arbitration agreements to resolve their disputes in a manner of their choosing, subject to the limitations of domestic and international law.

42. Items 1 to 17 of Schedule 7 to the Bill would amend the International Arbitration Act to clarify the meaning of certain terms used in the Act, clarify the procedure for enforcing a foreign award in Australia, permit judicial review of a decision by an arbitral tribunal that it does not have jurisdiction to hear a particular dispute, modernise arbitrators' powers to award costs, and clarify the application of the confidentiality provisions in the Act to Treaty-based Investor-State arbitrations seated in Australia.

43. Parties under the International Arbitration Act are predominantly commercial entities. However, it is possible that parties may be individuals. The amendments promote the right to a fair hearing because they seek to ensure that arbitration related litigation is less costly and more time efficient. These measures serve to make arbitration in Australia fairer and more efficient, promoting the right to have civil rights and obligations determined fairly and independently.

44. Amendments made by the Bill would facilitate the conduct of investor-state arbitrations in accordance with the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration. The Rules apply to investor-state arbitrations under certain bilateral and multilateral investment treaties or free trade agreements concluded on or after 1 April 2014. The Convention on Transparency in Treaty-based Investor-State Arbitration, done at Mauritius in 2014, applies the Rules to certain bilateral and multilateral investment treaties or free trade agreements concluded before 1 April 2014.

45. The facilitation of the transparency regime provided for in the Rules, whether applied by the Convention or not, supports the right to a fair and public hearing. Treaty-based Investor-State arbitrations involve disputes between an investor and a foreign State over the treatment by the host State, of the investment. These disputes occur within the investor-State dispute settlement regime provided for in certain bilateral and multilateral investment treaties or free trade agreements. While investors are usually corporations, it is possible for an investment to be made by an individual.

46. Where the Rules apply to an investor-state arbitration, whether by force of the Convention or not, the amendments set out in the Bill would suspend the operation of the confidentiality provisions in the Act, ensuring that an otherwise confidential arbitral proceeding is subject to the transparency regime contained in the Rules. This regime requires, subject to limited exceptions, the arbitration hearings to be public, and the publication of certain information about the arbitration, certain documents related to the arbitration such as pleadings, witness statements, the tribunal's orders, decisions and awards and other documents. These measures would ensure the public nature of the arbitrations conducted under the framework of the Rules, promoting consistency in arbitral practice and contributing to the right of individual investors to a fair and public hearing.

Prohibition on retrospective criminal laws: Article 15 of the ICCPR

47. Article 15 of the ICCPR provides that no one shall be held guilty of any criminal offence or subject to a higher penalty than was provided for under national or international law, at the time when the act or omission in question was committed.

Family Law Act 1975

48. The Bill would create two new offences to make it unlawful to retain a child outside of Australia in breach of a court order or written consent of all parties to a parenting order related to that child, when a parental order exists or is pending. The new offences would apply to a parent abductor of a child who left Australia on, after or before commencement of the measure. As the manner in which the child left Australia is a physical element of the offence this may mean that past conduct will retroactively become part of the offence.

49. However, the retroactive nature of the offence only applies to when the child was removed from Australia. This element of the offence is only a circumstance in which the unlawful conduct may occur. Conduct that makes up the offence, that is, retaining the child beyond the specified period, will only be an element of the offence if the child is retained on or after commencement. Retention prior to commencement would not make up part of an offence.

50. As such, despite the retroactive application of one element of the offence, there is no possibility that a person will be guilty of the offences due to conduct undertaken prior to the commencement of the offence. As all convictions would result from conduct undertaken after commencement, there is no substantial injustice that arises from the retroactive nature of this element of the offence.

The right to privacy: Article 17 of the ICCPR

51. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks.

52. The right to privacy can be limited to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of 'reasonableness' as implying that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances.

Family Law Act 1975

53. The Bill would authorise an arrester to enter and search premises and stop and detain conveyances (which includes a vehicle, a vessel and an aircraft) for the purposes of making an arrest.

54. While the amendments do limit the right to privacy, this limitation is in accordance with the law. The amendments are necessary to achieve the legitimate aim of ensuring that an arrestee can be arrested and brought before a Court for the administration of justice where they would otherwise attempt to evade arrest by staying inside premises.

55. The proposed amendments are reasonable and proportionate to this objective. An arrester can only enter premises, using such force as is necessary and reasonable, if the arrester reasonably believes that the arrestee is on the premises. Furthermore, the arrester must not enter premises between 9pm one day and 6am the next day, unless he or she reasonably believes that it would not be practicable to make the arrest at another time. This is an appropriate safeguard on the unnecessary interference with an arrestee's place of residence.

56. These amendments are not an arbitrary interference with privacy because they are necessary, reasonable and proportionate to the legitimate and lawful objective of bringing a person who is the subject of an arrest warrant before the Court for the administration of justice.

The right to freedom of opinion and expression: Articles 19(1) and 19(2) of the ICCPR

57. The right to freedom of opinion and expression is contained in Articles 19(1) and 19(2) (ICCPR). This right is not absolute and includes the freedom to seek, receive and impart information.

58. Article 19 of the ICCPR states:

1.

Everyone shall have the right to hold opinions without interference.

2.

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3.

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)

For respect of the rights or reputations of others;

(b)

For the protection of national security or of public order (ordre public), or of public health or morals.

59. In General Comment No. 34 on Article 19 (CCPR/C/GC/34) the Human Rights Committee noted the importance of States parties proactively putting into the public domain Government information of public interest to give effect to the right of access to information and the need to make every effort to ensure easy, prompt, effective and practical access to such information (at paragraph 19). The amendments to the Archives Act measures in the Bill are consistent with these requirements and the role of the Archives in encouraging public use and access to Commonwealth records as a vital element in documenting the history of the nation.

Archives Act 1983

60. The Archives Act empowers the Archives to, amongst other things, preserve and conserve the archival resources of the Commonwealth. The Archives Act establishes a right of public access to non-exempt Commonwealth records in the 'open access period' (which is transitioning from 30 years to 20 years over the period 2011-21) in the care of the Archives or the custody of a Commonwealth institution.

61. The Archives was established under the Archives Act and is an executive agency of the Australian Government.

62. Under the Archives Act, the functions of the Archives are broadly grouped into the following areas:

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leading Australian Government entities in creating and maintaining authentic, reliable and useable Commonwealth records by providing guidance and setting standards for the management of information and records

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authorising retention and disposal of Commonwealth records, including identification of records of national archival value

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transferring records of national archival value from entities and securing, describing and preserving them, and

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making publicly available Commonwealth records and other archival resources of the Commonwealth in accordance with the Archives Act.

63. The Archives Act currently requires the Archives to accept and process all applications for access to records it receives under section 40 of the Archives Act, regardless of the size or complexity of the application. If a decision is not made by the Archives on an application within 90 days of receipt, then the Archives is deemed to have refused access to the records in that application under subsection 40(8). This deemed refusal then enlivens appeal rights for merits review in the Administrative Appeals Tribunal.

64. There is no limit on the number of applications that can be lodged or the number of records that can be sought by any applicant. As technology improves it is becoming easier to make bulk and voluminous requests for records online. It is now theoretically possible for an individual to seek access to the approximately 40 million items in the Archives' collection and there are currently no grounds under the Archives Act permitting the Archives to refuse or have further time to process such a request.

65. The Bill would provide new mechanisms for the Archives to appropriately manage high volume applicants requesting access to records, and facilitate more efficient and equitable access to records for all applicants. These mechanisms would enable the Director-General of the Archives to, either with agreement of the applicant or unilaterally (provided certain criteria are met), extend the statutory timeframe within which the Archives must respond to an application for access to records.

66. The resources of the Archives are heavily impacted by high volume requests made by a small number of people. In some cases, the same individuals are submitting very large numbers of requests year after year. These measures are intended as a means to provide more realistic time periods for the Archives to process applications for access to records and to encourage applicants to prioritise and narrow their requests. The Archives would continue to process the same volume of applications, but these amendments are intended to enable the Archives to process requests from a broader range of applicants to enable more equitable access to the Archives' collection (rather than a small number of high volume applicants consuming resources).

67. In addition, there would be no changes to the Archives' requirement to cause Commonwealth records in the open access period, which are not exempt, to be made available for public access under section 31 of the Act (also known as 'proactive release'). By mitigating the demands on the Archives' resources from high volume applicants, it is hoped that the Archives will have greater capacity to identify and proactively disclose records which appear to have a greater public interest.

68. The Bill is compatible with the human right to freedom of opinion and expression in that it provides ongoing and manageable access to records held by the Archives. Any limitation of the right to freedom of opinion and expression is permissible as each of these measures is reasonable, necessary and proportionate. These measures are not intended to prevent or limit access to records or be intrusive and will enable a regime of equitable access by all applicants to records held by the Archives to be promoted. In particular, the resources of the Archives which are available to process requests for access to records need to be allocated appropriately and equitably.

69. By providing new tools for the Archives to manage the processing of access requests, the goals of easy, prompt, effective and practical access to information required by the Human Rights Committee in General Comment No. 34 on Article 19 (CCPR/C/GC/34) will be fostered.

The right to marry: Article 23 ICCPR

Marriage Act 1961

70. The other amendments to the Marriage Act in this Bill are minor or machinery in nature. In general terms, the Marriage Act engages the right to marry in Article 23 of the ICCPR. By improving the administration of the Marriage Act and the marriage celebrants programme, the provisions in the Bill relating to marriage continue to support the rights of individuals to marry, as set out in Article 23 of the ICCPR.

The right of every child to be protected: Article 24(1) of the ICCPR, the right of every child to be protected from all forms of violence, abuse, neglect, maltreatment or exploitation while in care: Article 19 of the CRC, the obligation to work towards eradicating discrimination against women: Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the obligation to actively promote women's full development and advancement: Article 3 of the CEDAW

71. The rights for the child/ren are contained in Article 24(1) of the ICCPR and Article 19(1) of the CRC. Article 24(1) of the ICCPR provides for protection of the child as required by his/her status as a minor. Article 19(1) of the CRC requires States to 'take all appropriate legislative, administrative, social and educational 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'.

72. Article 2 of the CEDAW urges parties to work towards eradicating discrimination against women, including by introducing new laws or policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate. Article 3 of the CEDAW requires parties to promote actively women's full development and advancement, so they can enjoy human rights and fundamental freedoms on the same basis as men.

Family Law Act 1975

73. The Bill would enhance protections for women and children who are, or may be, subject to family violence and abuse. The Bill would introduce a defence for both the new and existing offences of international parental child abduction. This defence would be available in circumstances where the purported abduction occurred in the context of fleeing family violence, where the removal or retention of the child overseas is a reasonable response to an actual fear of family violence. By providing this defence, the amendment would ensure that behaviour that is a reasonable response to family violence is not criminalised.

74. These amendments also promote the elimination of discrimination against women required by CEDAW. CEDAW provides for key principles of equality which broadly cover many aspects of women's lives, including political participation, health, education, employment, marriage, family relations and equality before the law.

75. Discrimination against women includes gender-based violence-that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. Although family violence is perpetrated by both men and women, and the Family Law Act is accordingly gender-neutral, the majority of those who experience family violence are women.

76. These amendments would introduce a defence for both the new and existing offences of international parental child abduction. This defence would be available in circumstances where the purported abduction occurred in the context of fleeing family violence, where the removal or retention of the child overseas is a reasonable response to an actual fear of family violence. By providing this defence, the amendment would ensure that behaviour that is a reasonable response to family violence is not criminalised.

The obligation to eliminate discrimination against women in employment: Article 11 of CEDAW

Sex Discrimination Act 1984

77. Item 1 of Schedule 10 of the Bill would repeal section 43 of the Sex Discrimination Act 1984 which exempts discrimination against women in connection with employment, engagement or appointment in Australian Defence Force (ADF) positions. This item engages the obligation to eliminate discrimination against women in employment under article 11 of CEDAW.

78. Australia has a reservation to the CEDAW providing that it does not accept the application of the Convention so far as it would require the alteration of ADF policies which exclude women from combat duties. Notwithstanding this reservation, the Australian Government's policy to remove all gender restrictions from ADF combat roles was fully implemented on 1 January 2016. As there are no longer any policies in place which exclude women from combat duties, Australia will now move to withdraw this reservation.

79. This amendment supports existing Australian Government policy, and further promotes rights to non-discrimination and equality by ensuring that discriminatory conduct on the basis of sex in connection with combat duties is no longer exempt from the operation of the Sex Discrimination Act.

The obligation to combat the illicit transfer of children: Article 11 of the CRC.

80. Article 11 of the CRC requires States to take measures to combat the illicit transfer and non-return of children abroad. The travaux préparatoires indicate that this Article of the CRC is particularly concerned with international parental child abduction.

Family Law Act 1975

81. The measures of the Bill related to international parental child abduction create two new offences. These offences would make it unlawful to retain a child outside of Australia in breach of a court order or written consent of all parties to a parenting order related to that child, when a parental order exists or is pending. These offences will complement existing provisions that make it an offence to remove such a child from Australia.

82. The measures would also allow a person to request a location order for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction (Child Abduction Convention). This explicitly includes a person appointed as the Central Authority for the Commonwealth, a State or a Territory for the purposes of Article 6 of the Child Abduction Convention.

83. While aspects of international parental child abduction are generally a private civil issue between parents, the Australian Government has responsibilities arising under the CRC and under the Child Abduction Convention. The Australian Government has a broader interest in ensuring that children are not wrongfully removed from Australia regardless of whether that removal is to a Convention or non-Convention country.

84. The gravity of the effects of abduction and wrongful retention on a child's wellbeing, irrespective of who commits the offence or in which country the child is retained, can be devastating and long-lasting. The new offences are intended to be a deterrent to the wrongful retention of a child and apply to any person (regardless of whether they have Australian citizenship or residency) who wrongfully retains a child.

85. The proposed amendments aim to address the wrongful removal or retention of children regardless of the intended country of destination or the country of retention.

86. By protecting the interests of the child, the amendments positively engage with the rights of a child.

87. These new offences will assist Australia in fulfilling its international obligations including its obligations under Article 11 of the CRC, which provides that State Parties shall take measures to combat the illicit transfer and non-return of children abroad.

88. By introducing offences related to retaining a child overseas and by making location orders available for the purpose of the Child Abduction Convention, Australia is fulfilling its responsibilities under that treaty and increasing protections in accordance with Article 11 of the CRC.

Respect for home and the family for people with a disability: Article 23 of CRPD

Marriage Act 1961

89. Article 23 of the CRPD recognises the right of persons with disabilities to marry. The Bill includes amendments to the Marriage Act regarding consent to marry. Currently, consent is not 'real consent' where a person is 'mentally incapable of understanding the nature and effect of the marriage ceremony'. The amendments will move the focus from whether a person has a disability to, simply, whether the person understands the nature and effect of the marriage ceremony. These amendments will ensure that persons with a disability are not unnecessarily prevented from entering a marriage, and therefore will promote the rights of persons with a disability as set out in article 23 of the CRPD.

Conclusion

90. The Bill is compatible with human rights because it promotes the protection of some human rights, and to the extent that it may limit some human rights, those limitations are reasonable, necessary and proportionate.