8.1 In the course of the review, the Commission formed the view that there are a number of other aspects of the Adoption Information Act 1990 and the Adoption Information Regulation 1990 which should be addressed. Many of these matters were raised in submissions, both from the general public and from the administrative agencies with functions under the Act. This Chapter presents the Commission’s views and recommendations on these matters.
BIRTH CERTIFICATES AND PRESCRIBED INFORMATION
8.2 Adopted persons and birth parents must respectively obtain the original and amended birth certificate of the adopted person before they are entitled to prescribed information.1 There may be practical advantages in this restriction, since it requires all applicants for information to make an initial application for the birth certificate, on which is noted any veto. However the rule creates problems in the case where a person cannot obtain the birth certificate. The clearest case of this problem was provided in a submission to the Commission from a person who was a foundling, and had no original birth certificate.2 A less serious problem is that the provision does not cater for a person who wants prescribed information, perhaps of a quite limited kind, but does not want to obtain the relevant birth certificate. In some cases, the applicant already knows the identity of the person in question. Sometimes the applicant has possession of the order of adoption, which reveals the identity of the birth parents, and in others, for example in adoptions by relatives, the applicant will know the identity of birth relatives from other sources.
8.3 The Act already provides, in s12, a discretionary power to supply prescribed information to a person who has not obtained a birth certificate, but does not specify any guidelines for the exercise of the discretion. The Commission recommends that the Act or the Regulation be amended to make more explicit provision for the supply of birth certificates or prescribed information in circumstances where it is impracticable for the applicant to apply for a birth certificate, or where the applicant does not wish to apply for a birth certificate, or in other circumstances where the Director-General considers it appropriate. In all such cases, it is necessary to bring any contact veto to the notice of the applicant, and, while this could be done administratively, it is desirable that it be expressly required by an amendment to the Act or Regulation.
8.4 It would be possible to go further and reconsider the merits of the basic system of building entitlement to prescribed information on the acquisition of the birth certificate. Some submissions indicated that problems had arisen in this regard. However the strategy used by the Act has significant advantages, and in the Commission’s view it would be premature to change the approach of the Act at this stage. However this aspect of the legislation should be kept under review, and may need to be reconsidered if problems persist after the implementation of the above recommendation for the clarification of s12.
BIRTH FATHERS
Clause 12 of the Regulation (which prohibits release of information identifying an unacknowledged birth father) should be repealed.
8.5 The legislation contains puzzling provisions in relation to paternity. A man claiming to be a birth father and seeking an amended birth certificate under s8 must either be shown on the birth certificate as the father or be presumed to be the father under the Children (Equality of Status) Act 1976 (NSW). This Act creates presumptions of paternity (and maternity) in a range of situations.3 A man who wishes to lodge a contact veto must merely show that he is a “birth parent”,4 and the Act does not require that he be shown on the birth certificate or presumed to be a father under the 1976 Act. The test is different again in the context of protecting privacy. The Regulation includes a guideline5 restricting the supply of information relating to “unacknowledged birth fathers”, defined as birth fathers who are not shown on the birth certificate, or presumed to be fathers under the 1976 Act, or presumed to be fathers under the Family Law Act 1975 (Cth) (which contains similar but not identical presumptions of parenthood). The complexity of these provisions suggests that there is a need to examine the position of birth fathers with some care.
Birth fathers’ rights to information
8.6 The Willis Committee considered that birth fathers should have the same rights to information as birth mothers.6 The Committee thought, however, that it would be best to require those birth fathers whose names were not on the original birth certificate to take appropriate steps to have their names put on the Register of Births. This can be done in two ways. First, the father can sign a paternity acknowledgment, and either have it countersigned by the mother or seek to have it recorded in the Register of Parentage Information. The Principal Registrar, if satisfied by appropriate evidence of paternity, and after complying with certain procedures, may then enter the man’s name as father. Second, the father can apply to the Supreme Court for a declaration of paternity: if the evidence is such as to lead the Supreme Court to make the declaration, the name is then entered on the certificate. The Willis Committee, therefore, recommended that birth fathers should have information rights under the Act, and for this purpose “the birth father shall be the father who is lawfully noted on the adoptee’s original birth certificate either at the time of registration or subsequently”.
8.7 The Adoption Information Act departs slightly from this approach, in that under s8 the birth father has a right to information if he is either shown on the birth certificate or is presumed to be the father under the Children (Equality of Status) Act 1976. Perhaps this provision was designed to remove the necessity for the father to have his name put on the Register. Where one of the presumptions under the Children Equality of Status Act applies, it may have been thought that proof of paternity was relatively simple7 and there was no reason why the Director-General should not act on the basis of that presumption. A father who is neither on the Register nor assisted by a presumption under the 1976 Act should therefore take the appropriate steps, as noted above, to have his name placed on the Register.
8.8 The Commission’s inquiries suggested that the effect of these provisions was not widely understood. Many people seemed to believe that if the father’s name had not originally been placed on the birth certificate, he had no rights under the Act. The Commission recommends that in order to clarify the position an explanation of the law and procedures should be prepared and made available to applicants, and indeed to anyone interested in the legislation. The information sheet should point out prominently that there is an appeal to the Community Welfare Appeals Tribunal from the refusal of the Director-General to supply a birth certificate.8
8.9 Further, the Commission suggests that consideration might be given to amending s8 to provide (i) that information rights are given to birth fathers; and (ii) that in determining whether a man is a birth father the Director-General may act on any of the presumptions arising out of the Children (Equality of Status Act) 1976, including the presumption arising from the entry of the applicant’s name on the birth certificate.
Where birth father’s identity is sought
8.10 It is necessary to consider separately the situation where identifying information about a birth father is sought by an adopted person. It is clear that, as explained above, the Act gives to adopted persons the right to their original birth certificate and to prescribed information which is capable of identifying both of the birth parents. In the vast majority of cases, the mother’s name and then-current address will be on the birth certificate,9 and the father’s name will not. In practice, the adopted person will usually be able to learn the present identity and whereabouts of the birth mother, but, because of the limited information recorded, tracing the father will frequently be more difficult. However it is clear that the legislative intention was that in relation to the birth father, as much as the birth mother, the adopted person was to have the right to identifying information, and the contact veto should be available to birth fathers who did not wish to be contacted.10
8.11 In practice, because the birth father’s name is rarely on the birth certificate, the adopted person’s search will sometimes depend on whether identifying information can be obtained through the prescribed information. In some cases, of course, the father’s identity will be revealed by the mother, or by some other relative, or by some documents held by them. In many cases files held by FIS or another adoption agency will contain identifying information about the birth father.
8.12 The Regulation contains a number of provisions relevant to this situation. First, the prescribed information available to the adopted person does not include the birth parent’s last known name and address, except where it was obtained at or before the making of the adoption order, or the person concerned has consented to its being supplied.11 Second, the Regulation provides in clause 12 that an information source is not to supply information which would identify an “unacknowledged” birth father, defined as one who is not on the birth certificate or presumed to be the father under the Children (Equality of Status) Act 1976 or the Family Law Act 1975 (Cth).12
8.13 The effect of these provisions appears to be to prevent adopted persons from identifying their birth fathers except where the birth fathers are on the birth certificate or fall within a presumption of paternity. It is difficult to see the justification for this, for it is inconsistent with the basic principle that adopted persons should have the right to identify their birth parents.13 It also appears to discriminate between birth mothers and birth fathers, both technically and in substance. The technical discrimination is that there is nothing to prevent prescribed information from identifying a birth mother whose name was not on the birth certificate, a rare but possible occurrence (as where the wrong name is on the birth certificate). The substantive discrimination is that in practice the effect of the Regulation is to create a situation in which adopted persons have access to records which allow them to identify their mothers but are prevented from having access to records which would allow them to identify their fathers. Whether one regards this as a discrimination against mothers or against fathers might be a matter of debate, although it is arguably a discrimination against mothers, since fathers usually can, if they wish, have their name placed on the birth certificate, while it is not possible for birth mothers, whose names are normally on the certificate, to have their names removed from the certificate. The practical result is that in many cases fathers may, by declining to take action, frustrate the intended operation of the Act in providing to adult adopted persons information that identifies their birth parents. and prevent the adopted person from exercising their rights under the Act.14 To the extent that the system allows some birth fathers to conceal their identity, it gives them, in effect, the opportunity to impose an information veto; yet, as we have seen, it is a basic principle of the Act that the adopted person’s access to identifying information should not be subject to the consent of the birth parents, their rights being sufficiently protected by the contact veto system.
8.14 Mr Malcolm Squire and others have identified a dilemma facing a birth father whose name is not on the birth certificate.15 Assume that man is said to be the father in some records associated with the adoption, or is known to be the father by some relative. Assume also that he does not want to be identified or contacted. If the man lodges a contact veto, his identity must be disclosed to the searching adopted person, since otherwise that person would not know who it is that must not be contacted. On the other hand, if he fails to do so, he runs the risk that the adopted person will discover his identity in some other way, and, unrestricted by a veto, make unwelcome contact with him. This dilemma does indeed arise, but to see it as posing a legal problem appears to presuppose that the father should be entitled to keep his identity secret from the adopted person. This is, however, contrary to the basic principles of the Act, under which he, like the mother, is entitled to use the contact veto system, but not to prevent the searching adopted person from discovering his identity. It follows that in the Commission’s view the Regulation should be amended in this area. Clause 12 should be repealed.
8.15 Clause 14 is not vulnerable to the same criticisms, since it applies to birth parents equally. The Commission is of the view, however, that on other grounds clause 14 should be repealed. This matter is dealt with later in the Chapter.
Contact vetoes
8.16 Birth fathers, like birth mothers, are entitled to lodge a contact veto. A man who wishes to lodge a contact veto must therefore satisfy the Director-General that he is a birth father. Curiously, in this context the legislation makes no reference to presumptions of paternity. In the Commission’s view, however, the relevant provisions should be the same as those relating to establishing status as a birth parent for the purpose of information rights, a matter which has been discussed above.
Adoption Information Exchange
8.17 The Commission’s recommended Adoption Information Exchange will of course be available to fathers who do not wish to be contacted, or wish to keep their identity secret. The father can put on the Information Exchange an unsigned note explaining his desire that his paternity remain secret, and, if he chooses, can provide non-identifying information, or express any wishes he has relating to the matter. As noted elsewhere, the evidence strongly suggests that such wishes will be respected in the vast majority of cases.
ATTAINING MAJORITY
8.18 Different views were expressed in submissions, as they had been in evidence to the Willis Committee, on whether eighteen years was the most appropriate age at which to treat the adopted person as an adult for the purposes of the Act. There was considerable support for the present position, but also for some later age. Very few argued that an age below eighteen years was appropriate.16 The arguments in favour of raising the age stressed that at 18, many young people were studying for the Higher School Certificate, and more generally were at a stage in their lives that was fraught with new challenges and uncertainties associated with the transition to adulthood. The assertion was that 18 year olds should not have to address the difficult issues relating to adoption information at this stage in their lives. It would be better, on this view, to defer until later the difficult choices involved in exercising rights under the Act. The main argument in favour of 18 years is, of course, that this is the age of majority for other purposes and it would be wrong to deny to people who are otherwise regarded as adults the opportunity to exercise rights under the Act.
8.19 In the Commission’s view, it is clearly right to set 18 years as the age at which the adopted person may exercise information rights under the Act. It is a different issue, however, whether the law could set a later age for the purpose of protecting the adopted person against unwanted contact. It would be possible, for example, for the law to provide that although an 18 year old adopted person could apply for his or her birth certificate, there should be some limit on contact by a birth parent, or perhaps some restriction on the release of identifying information until the person reached the age, say, of 20. An example of such a provision would be a rule that a birth parent could not make contact with the adopted person until the age of twenty, unless the adopted person had expressed willingness for contact to be made.
8.20 In the Commission’s view, however, any such restriction would have to make provision for the 18 year olds who did not want to have such a restriction imposed. It would follow that all 18 year old adopted persons would have to be told of their rights to make this choice and would therefore have to give consideration to the issues. Such proposals would therefore be little different from the present system, in which the adopted person must give consideration to whether to lodge a contact veto.
8.21 On this issue, therefore, the Commission’s conclusion is that the age of 18 is the appropriate age for creation of rights under the Act, both in relation to information and in relation to the contact veto system. It is recognised that difficulties can arise from the fact that 18 year olds might be studying for the Higher School Certificate, or are for other reasons unready for contact. These should normally be appropriately dealt with by the recommended Adoption Information Exchange and Advance Notice System which have been recommended by the Commission. Together they would allow these matters to be drawn to the attention of a birth parent before contact is made, and would give the adopted person or the adoptive parents a “breathing space” before contact occurs.
BIRTH PARENTS’ CLAIM TO NON-IDENTIFYING INFORMATION DURING CHILDHOOD
8.22 A number of submissions17 urged that during the childhood of the adopted person, the birth parents should have the right to non-identifying information, corresponding to the adoptive parents’ rights to non-identifying information about the birth family.18 Unlike most of the issues dealt with in this Report, this issue relates to the adopted person’s childhood, and involves issues of current adoption practice which are peripheral to the main issues raised in this review. For this reason, the Commission’s views on this matter are tentative only.
8.23 A distinction should be drawn between the rights of the adoptive parents and those of birth parents: the rationale for providing information to the adoptive parents is to promote the welfare of the child, whose interests, at least during childhood, are to be regarded as the paramount consideration.19 Nevertheless, it is strongly arguable that the child’s short-term and long-term interests will be served by respecting the interests and dignity of the birth parent, and avoiding the apparent discrimination involved in the present law, which denies the birth parent a legal right to information about the welfare of the child. Provision of non-identifying information would be greatly desired by most birth parents, and would arguably contribute to the welfare of all concerned, and, in the future, facilitate a harmonious relationship with the adult adopted person, if that is desired. The Commission’s view, therefore, is that it would be appropriate to create for birth parents a right to non-identifying information about the health and welfare of the adopted persons during their childhood.
BIRTH PARENTS’ RIGHTS TO IDENTIFYING INFORMATION
8.24 The granting of information rights to birth parents is a basic principle of the Act and has been considered above in Chapter 6. The Commission found that experience under the Act provides no reason to re-examine this principle. Here we consider the narrower question whether the nature and extent of the birth parents’ rights are appropriate.
8.25 Under the Act, the rights of the birth parent are a mirror image of those of the adopted person: each may obtain a birth certificate, in one case the original and in the other the amended version, and prescribed information. The Commission’s research indicated that this approach has several important advantages. At a practical level, it is workable, and conveniently linked with the contact veto system: in each case, the person is made aware of any veto at the time of applying for the birth certificate. At a symbolic level, the equivalence of the rights of both parties is widely perceived to express a public recognition of the information needs of the birth parents and the appropriateness and “normality” of their wishing to identify and/or contact the adult adopted child. This perceived public recognition obviously meant a great deal to many of the birth mothers who made submissions to the Commission.
8.26 On the other hand, the strategy has some disadvantages. In particular, the amended birth certificate reveals information about the adoptive parents, although the interest of the birth parent is essentially in identifying the adopted person. Adoptive parents have said, with some justification, that the law is unfair in that it gives the birth parents identifying information about them, but gives them no equivalent rights to identifying information about the birth parents.20 To the extent that the law provides the birth parent with personal information relating to the adoptive parents, it is arguably a departure from one of the objectives of the Act, namely to avoid undue intrusion on privacy.
8.27 It might be thought that the law should, instead, provide the searching birth parent only information identifying the adopted person. In practice, however, such a provision is not without difficulty. Information about the present name and whereabouts of the adopted person is not normally held by the Registry of Births, Death and Marriages or the Family Information Service. Providing it would require, in most cases, a search to be made by staff at one or other of those agencies. It would thus involve considerable additional expense, and would undermine one of the intended characteristics of the present system, namely that the exercise of the rights created by the Act is a matter for the individuals involved. A further complication is that many adoptive parents, and indeed some adopted persons, would prefer that the birth parent first made contact with the adoptive parents. A system that required staff to make the initial approach would mean that they would have to deal with this sometimes delicate question, and it is not unlikely that in some cases the handling of the situation would give rise to complaints by some of the parties involved.
8.28 The present system, therefore, has significant practical and symbolic advantages, although it has the disadvantage that it has the potential to expose adoptive parents to what they might reasonably regard as undue intrusions on their privacy. This disadvantage is one of the matters intended to be addressed by the Commission’s recommendations relating to the Adoption Information Exchange and the Advance Notice System. If these recommendations are adopted, and function as expected, adoptive parents who wish to avoid disclosing information about themselves will indicate this in messages left for searching birth parents, the vast majority of whom, as previously indicated, will respect such wishes. Such a system would very largely address the disadvantage identified above. Ideally, the system will operate so that in the majority of cases the parties will be aware of each others’ wishes before decisive steps are taken.
8.29 The Commission’s view, therefore, is that at this stage there should be no change in the law relating to the rights of the birth parent to identifying information. It would, however, be appropriate to keep this matter under review, especially in the light of the functioning of the proposed Advance Notice System and Adoption Information Exchange.
PEOPLE WITH DISABILITIES
Recommendation
The Adoption Information Act 1990 and the Disability Services and Guardianship Act 1987 should be amended to give the Guardianship Board necessary powers to allow it to make appropriate orders where, because of disability, it is impossible or unreasonable for people to exercise rights under the Adoption Information Act personally.
8.30 A number of submissions addressed difficulties arising where persons having rights under the Act suffered from intellectual or emotional disabilities which made it impossible or unreasonable21 for them to exercise their rights. The problem was most often put in connection with adopted persons with disabilities, and in relation to the use of the contact veto, but it arises equally in relation to the exercise of rights to information. It was also noted in relation to birth parents whose disabilities preclude them from exercising their rights under the Act. The Guardianship Board has also drawn the Commission’s attention to some aspects of all the relevant legislation, ie the Disability Services and Guardianship Act 1987 and the Adoption Information Act, which require clarification and minor amendment in relation to exercise of rights created by the Adoption Information Act.
8.31 In the case of younger adopted persons or birth parents, some submissions argued that the right to lodge a veto should be exercisable by their parents. It is of course strongly arguable that in these situations the parents will usually know more, and care more about, the person than anyone else, and would exercise the rights with his or her interests at heart. Two issues arise, however. First, to grant such parents a general right to exercise rights on behalf of an adult adoptee or a birth parent would violate the basic principles of the Act, and it is therefore necessary to determine whether, in a particular case, it is impossible or unreasonable for the person to exercise his or her own rights. Second, if that is established, the question arises whether the law should presume in all cases that the parents are the most appropriate people to exercise rights on behalf of the person.
8.32 In the Commission’s view the first question should be determined by the Guardianship Board. It is arguable that the same Board should also determine the second question: this would be highly convenient, since a great deal of the evidence obtained by the Board would be relevant to both issues. On the other hand, the Board may not have expertise in relation to the Adoption Information Act 1990. On the whole, the Commission’s view is that the Act (and if necessary the Disability Services and Guardianship Act 1987) should be amended to provide that on application made by any person with a proper interest, the Guardianship Board should consider whether a person having rights under the Act has a condition or disability which would make it impossible or unreasonable for the person to exercise rights under the Act. In that event, the Board may either exercise rights on behalf of the person, appoint another person or person to do so, or refer the matter to the Director-General. There should be provision for appeal, in the case of decisions by the Director-General to the Community Welfare Appeals Tribunal.
8.33 Concern has also been expressed in relation to people whose disabilities are not such as to bring them within the jurisdiction of the Guardianship Board, but nevertheless create some practical problems in the exercise of their rights under the Adoption Information Act. The Commission has noted the procedures operating informally to provide a measure of security to the relatives of these people, usually the adoptive parent. The Commission’s recommendations for an Advance Notice System should formalise the position. This mechanism will give the relatives of any adopted person or birth parent with a disability an opportunity to approach the Guardianship Board for an appropriate order, or to take any other steps which would be necessary or useful (including placing a message on the Adoption Information Exchange or seeking professional assistance in dealing with the matter) to manage the future relationship of their relative and the person who is getting identifying information about them.
RELATIVES’ ACCESS TO INFORMATION
Recommendation
The Act should be amended to allow, subject to the Director-General’s discretion, the rights to information and to place a veto of an adopted person or a birth parent to be inherited by relatives on that person’s death. The contact veto system should be extended to cover such applicants.
During the lives of the parties
8.34 Consistently with the intentions of the Willis Committee,22 the Act limits rights to identifying information to the adopted person and the birth parents during the lives of the parties; it will be a matter for them whether they share the information with other members of their families.
8.35 This policy has caused apparent frustration in some cases, especially for siblings. The Registry has commented that:
[c]urrently there is no provision for non-adopted siblings to have access to information on adopted siblings. The Registry has had many requests from people seeking information on adopted siblings particularly from children of a relinquishing mother who are aware of the existence of an adopted brother or sister, but because the birth mother is not interested in contact they can not proceed any further. The adopted person also may not be interested in contact with their natural mother but would possibly be interested in contact with a full brother or sister if they knew such a person existed.23
8.36 As the Registry also points out, there is a striking contrast here with the rights of adopted persons, who can usually obtain identifying information about their birth siblings, because this is included in the prescribed information to which they are entitled.
8.37 In the Commission’s view, this is a difficult issue. Expanding the class of birth relatives who have information rights exposes members of the adoptive family to further contacts, which in some cases will be unwelcome. The present law establishes primary rights to identifying information for birth parents and adopted persons, and it may be too early to recommend a significant expansion of the categories of persons having information rights. At present, the community is adjusting to the situation created by granting of information rights to birth parents, a recent development for which many people are unprepared. It may well be that such expansion is appropriate at some future time, but the Commission does not recommend it at this stage. Birth siblings who cannot persuade their parents to exercise their information rights under the Act may take some comfort from the fact that they will be found if the adopted person searches for them, and that they may leave messages for their birth siblings on the proposed Adoption Information Exchange.
Information rights after death of a party
8.38 The question arises, however, what information rights exist after the death of an adopted person or birth parent. The Willis Committee recommended that “in the event of a birth mother, birth father or adoptee’s death, other relatives inherit the right of access to information in the order laid down by the Wills, Probate and Administration Act 1898 s61(b), and any further access shall be at the discretion of the Director-General of Family and Community Services”.24
8.39 Curiously, the first and major part of this recommendation has not been implemented, although s9, apparently based on the second part of this recommendation, gives the Director-General certain discretionary powers to supply information to relatives. Even these discretionary powers, however, are not available in the situation envisaged by the Willis Committee. They allow information to be provided relating to a deceased person, but do not apply to allow information relating to a surviving person to be obtained by relatives of a deceased person. For example, where an adopted person has died, s9 allows the discretionary release of information to birth relatives (the birth parents, of course, retain their rights under s8). But the Act does not provide, even on a discretionary basis, for information to be provided to members of the birth family if the adoptee is still alive and the birth parent has died.25
8.40 Although there appears to be no difficulty with the general intention of this recommendation in the Willis Report, it has been pointed out to the Commission that it involves apparently insuperable difficulties in practice, especially since there may be several people equally eligible as next of kin. FIS has accordingly recommended26 that instead of the system of strict entitlement by priority suggested by the Willis Committee, there should be a discretion in the Director-General as to which relatives should receive the information. The Commission agrees with this, although it is desirable that the provision should indicate that the Director-General should normally reflect the priorities set out in the Wills Probate and Administration Act. It is therefore recommended that s9 should be amended accordingly.
8.41 A particular aspect of this problem was identified in submissions which argued that the Act was defective in that where a birth parent has died, the Act fails to give information rights to birth siblings about any birth sibling who has been adopted, although it gives information rights to adopted brothers and sisters. This criticism is well founded. On the death of a birth parent, the adopted person is entitled to prescribed information which includes the death certificate and information about the birth parent’s other children.27 However because the Act does not implement Recommendation 7 of the Willis Committee, those children have no right to obtain information relating to a birth sibling who has been separated from them by adoption. It was clear from the Commission’s inquires that adoption information was often of great interest and importance to birth siblings, and that amendment of s9 is a matter of considerable urgency.
Contact veto
8.42 The creation of “inherited” information rights on the death of a birth parent or adopted person should be accompanied by appropriate modifications to the contact veto system: clearly people should have this protection in the case of undesired contact by birth relatives as well as by adopted persons or birth parents.28 Relatives obtaining information will be affected by any existing veto.29 It may be, however, that in some cases the veto-lodger failed to refer to relatives because he or she knew that they had no information rights under the Act. To cater for that situation, it may be appropriate for the Director-General to contact veto-lodgers and inquire if they wish to amend the veto accordingly.30
8.43 In some cases people have refrained from lodging a veto because they know that the other person has died.31 It would therefore be appropriate for implementation of the Commission’s recommendation to be deferred for a period during which appropriate public education would take place.
8.44 The Commission agrees with the submission32 that since the right to information is intended to be coupled with the right to impose a contact veto, it would be appropriate to provide that on the death of a person, the next of kin having information rights should also have the right to lodge a contact veto.
LAST KNOWN NAME AND ADDRESS
8.45 A number of information sources33 submitted that the restriction on release of information relating to a person’s “last known name and address” in clause 14 posed some dilemmas. It seemed unnecessarily frustrating to a person trying to locate a parent or child to proscribe release of relevant information held by the information source because it did not satisfy the requirements of clause 14. It was a matter of chance whether the information was readily available or on the public record or otherwise.
8.46 It has also been pointed out that there is an inconsistency between the Regulation of Births, Deaths and Marriages relating to information about the last known name and address of a person, and the Registration Act and Registry policy regarding release of registered information34 An adopted person is entitled, among other things, to any marriage certificate or death certificate of the birth parents. Such certificates will normally be issued by the Registry containing the address at the time of registration. However cl14 provides that the “last known name and address” can be released only in limited circumstances.
8.47 In the Commission’s view it is difficult to see why, consistently with the basic principles of the Act, adopted persons searching for their birth parents should not have the benefit of any information about recent addresses of their birth parents that is held by an information source, and vice versa for birth parents. The practical effect of this provision may be to encourage some searchers to trace their parents or child through other relatives, which can lead to difficulties and is inconsistent with the general aim of the legislation to give primary information rights to adopted persons and birth parents. It is accordingly recommended that the Regulation be amended so that it does not exclude information about the last known address of a person. If, however, it is to be retained, then it would appear necessary to amend the Regulation to provide that the address of the person should be removed from the copy of any certificate issued as prescribed information under the Act.
PERUSAL OF MAIL BY FIS
Recommendation
The legislation should clearly prescribe the circumstances in which FIS staff have the right or obligation to examine messages they pass between people associated with adoption. Furthermore, guidelines should ensure appropriate procedures are followed in relation to taking and giving such messages, and are made known to senders and recipients of messages.
8.48 It is the practice of FIS to read mail which it is asked to pass on between parties, and this has led to some criticism. Messages are left with contact vetoes, and also by people the subject of a veto and on the Reunion Information Register. In its submission, FIS states that it considers itself under a legal obligation to do so, in order to prevent breaches of the Act.35 A message may contain, for example, information which would identify an unacknowledged birth father (cl12), lead to the harassment of a person who has lodged a veto (s28), or contain confidential information (cl11). FIS considers that in forwarding correspondence it is acting as an information source releasing information, and “this implies that FIS as an information source is responsible for the content of the information”. Furthermore, they consider themselves to be acting responsibly in ensuring that the person receiving the information is not distressed by the content or the manner in which it is given.
8.49 The Commission is fully aware of the serious and legitimate concerns of FIS in this matter, which it understands to have been much discussed by staff. However in the Commission’s view it is by no means evident that FIS has general legal responsibility relating to the contents of private correspondence passed on through it, or any corresponding obligation or entitlement to peruse such correspondence. It is doubtful whether in passing on such correspondence, FIS is acting as an information source. Differing views could be taken about the applicability of clause 11 to all situations where FIS is transmitting messages between people, since it is not clear that FIS is engaged in supplying a birth certificate or prescribed information. It is at least arguable that the contents of such letters do not constitute “prescribed information” and that FIS is not “supplying” the information by simply passing on a letter to its intended recipient. There is nothing in the legislation that expressly requires or entitles FIS staff to examine such correspondence to see if contains information which is distressing, or which involves a breach of the Act. Obviously such messages could also be passed through personal communications.
8.50 In the Commission’s view, it is important that the law should be explicit about this matter. It should state whether some or all FIS staff are entitled to, or required to, examine messages and correspondence. If there is to be such an entitlement or obligation, the law should set out the basis on which it is to be exercised, and what action should be taken where the message is found to breach the relevant guidelines or rules.
8.51 The Commission received no detailed submissions on this difficult issue, and is reluctant to make a firm recommendation on what the law should be. On one hand, it has been pointed out that the content of messages can be highly distressing, and can involve disclosures of personal information that breach the spirit if not the letter of the Act. Such messages may stem from malice, or from misinformation, or from bad advice about the law. It is arguably highly desirable that in this situation FIS should be able to exercise a measure of control, declining to pass on messages that, deliberately or inadvertently, involve unnecessary distress or disclosures that violate persons’ privacy and are not authorised by the Act.
8.52 On the other hand, some would say that it is inappropriate that FIS staff be placed in such a powerful position, and that there is insufficient reason to depart from the general position that officials have no general right to peruse confidential communications. It could be pointed out that there is no such scrutiny of oral or written direct communications between the parties: for example, where an adopted person meets a birth parent, there is no restriction on what they can say to each other about the identity or character of other people, such as the birth father or other relatives. A distinction could be drawn between supplying information held by agencies and other “information sources”: it is reasonable for the law to lay down what parts of such information may or may not be supplied. But it is not reasonable, on this view, for the law to go further and censor communications between adults associated through adoption. This argument supports the view that in facilitating communications between adults, FIS is not acting as an “information source” and has no more right to read the correspondence directed through it than it does to intercept telephone conversations or open letters sent through the ordinary mail.
8.53 If the view is taken that these communications should not be scrutinised by FIS staff, it is particularly important that the administration of the system should address the concerns expressed by FIS, and reflected in clause 11(b), that appropriate counselling should be available to persons who receive such correspondence, and also to those who send messages. In the event that these communications are to be treated as confidential, the Commission suggests procedural guidelines include the following measures:
- At the place where correspondence may be left, there should be posters and/or brochures explaining the system and drawing people’s attention to issues arising from such communications, such as the likely effect of distressing information on the recipient, and the need to comply with the provisions of the legislation. The literature should also draw attention to alternative approaches, and to sources of advice, support, and information.
- Similar literature, and immediate counselling, should be available at the place where messages are received.
- There should be a requirement that messages be left, and received, in person, either at Departmental offices or, where this is not convenient, in some other place where the persons involved can be provided with the literature and assistance referred to above.
- If it be thought that the above proposal is unduly expensive or inconvenient, an alternative proposal is that persons wishing to send messages by ordinary mail could be given the option of doing so on the basis that the messages would be read by FIS staff, who could decline to send messages by mail where they thought that this should not be done. In this way, the system would provide appropriate protection for recipients of clearly distressing information, while providing a simpler form of transmission in relation to less sensitive messages. This system, however, would be less protective than the system in the last paragraph, because it may be difficult for FIS staff to predict the effect of information on the recipient: an apparently “matter of fact” message may prove distressing to a particular recipient. For this reason, the Commission’s preferred option is that messages be received in a place where appropriate support and information is provided.
8.54 The Commission’s view may be summarised as follows. The law should make specific provision about whether in any circumstances FIS staff should have the right or obligation to examine messages sent between adults associated through adoption, and if so, what action they may take. If there is to be any such right or obligation, it should be made clear to persons sending and receiving messages. If there is not, it is particularly important that arrangements for the transmission of messages should ensure the availability of appropriate support and counselling services.
ENDING OF CONTACT VETO SYSTEM: s29
8.55 Many of those who were concerned that the Act invaded their privacy were naturally concerned about the prospect of the closure of the contact veto system foreshadowed by s29. This section allows the Minister, on a report by the Director-General, to close the Contact Veto Register, with the result that all vetoes cease to have effect.
8.56 The main purpose of s29 appears to have been to serve notice that the veto system was seen as a temporary measure, and that after 10 years it would be appropriate to terminate it, as was recommended by the Willis Committee. However in the Commission’s view this approach might be usefully be reconsidered. First, the effect of the section is that the decision to end the system is placed in the hands of the Minister on the basis of an inquiry and report by the Director-General. The Commission has become aware that among those concerned about privacy, there is a perception that staff of the Registry of Births, Death and Marriages and the Department of Community Services are enthusiastic supporters of information rights, and less sensitive to privacy rights. This perception, whether right or wrong,36 must lead to considerable anxiety about the basis on which the power under s29 might be exercised. Further, in the Commission’s view the contact veto system is correctly perceived as a basic principle of the Act, and an important protection for privacy rights. In the Commission’s view it should be removed only if that is the decision of the Parliament. If it is to remain, the section should either be repealed or amended accordingly.
8.57 In the Commission’s view, there may be little advantage in a section which foreshadows that the veto system may be abolished after 10 years. If, as may well be likely, the number of vetoes falls as people become more familiar with the operation of the Act, there may be little need to repeal it. If it continues to be used, this would be an indication that those who use it wish to continue to exercise their rights to prevent contact. In this event there is much to be said for preserving this protection. In light of the remarkable success of the contact veto system, it does not seem appropriate to pre-empt what the decision might be so far in the future. Public announcements and publicity at the appropriate time would more effectively give notice of any proposed repeal or modification to the system.
FOOTNOTES
1. Adoption Information Act 1990 Section 6(3), Section 8(3).
2. A person in this position must apply to the Supreme Court under s14.
3. Presumptions of paternity arise under s10 where the mother is married (the husband is presumed to be the father) and where the mother has cohabited with a man at any time during a period of 24 weeks commencing with the 44th week before the birth. A presumption arises under s11 from a paternity acknowledgment that is either countersigned by the mother or registered with the Registry of Births, Deaths and Marriages. By s12, a presumption arises where a man has been ordered to pay maintenance as father of a child. By s13, an application may be made to the Supreme Court for a declaration of paternity: such a declaration creates a presumption of paternity. There are provisions for the use of blood tests (s19-22). The presumptions created by s10-12 are rebuttable by evidence to the contrary, but the presumption arising from a Supreme Court declaration of paternity under s13 is not. Where more than one rebuttable presumption applies, the presumption prevails which seems most likely, in all the circumstances, to be correct: s18(3). Rules relating to paternity arising from artificial conception are dealt with in the Artificial Conception Act 1984 (NSW), and s18A of the Children (Equality of Status) Act 1976.
4. s16, defined in s3 to mean a “biological parent” of the adopted person.
5. Provided for in s13.
6. Recommendation 6.
7. In many cases this will be so, but there may well be cases where the determination is difficult. It should be remembered that the presumptions under the Children (Equality of Status) Act 1976 (other than the presumption arising from a Supreme Court declaration) are rebuttable by other evidence, and that more than one of them can apply. For these reasons it is important that there be an avenue of appeal against refusals, as there is in s 36.
8. s36.
9. In some cases tracing the birth mother will be difficult or impossible because of errors in the information shown on the certificate: the Commission heard of several cases in which the wrong information was supplied, and recorded, relating to such matters as the date of the birth and the mother’s name and address.
10. Recommendation 1 of the Willis Committee was that adoptees on reaching adulthood “have an unqualified right to their original birth certificates and such additional information as may be necessary to establish their origin and identity at birth and the identity of their birth parents” (emphasis added).
11. This is a summary of the provisions of cl5(a) and 14.
12. FIS has suggested that the definition in cl12 should be clarified. However in the light of the Commission’s view about cl12 it is not necessary to consider this suggestion.
13. It is therefore arguable that these provisions, and especially cl12, are invalid on the ground that they are inconsistent with the Act.
14. Of course as noted above, their identity will in some cases be disclosed by the mother, or someone else.
15. M Squire “Adoption Information: Coming to terms with the Unknown” (1991) (7) Law Soc J at 56. The problem was also referred to in the submissions of FIS and the Registry.
16. Association of Childrens Welfare Agencies Submission. This submission emphasised the importance of recognising the autonomy and rights of children. However it would be outside the scope of this Report to examine the law on parental rights and responsibilities: it is sufficient to say that the Commission sees no reason to propose that the rights and responsibilities of adoptive parents relating to the care of their children should be any less than those of other parents. Parental rights are not unlimited and their exercise is subject to any order of a court relating to the welfare of a child: see Secretary, Dept Health & Community Services v JMB and SMB (1992) 15 Fam LR 392 (HC).
17. FIS Submission at 6.
18. s7(1), 9(b).
19. See Adoption of Children Act 1965 s17. Although technically this section may not apply to this issue, it seems generally accepted that it should be regarded as the guiding principle. It is less obvious that the principle should continue to influence law reform issues relating to the period after the child’s majority. Arguably after this period the law should balance the interests of all the adult parties involved, rather than giving priority to the interests of the adopted person.
20. The point of the criticism is the apparent unfairness, not the need for information: in general, adoptive parents do not appear to claim the right to identify the birth parents. It should be added that in practice, until 1967, adoptive parents were made aware of the identity of the birth parents (in practice, usually only the birth mother), because they were given a copy of the Order of Adoption, which identified the birth parents. See Chapter 2.
21. This expression is used to include the case of a person whose disability is such that while intellectually capable of making a decision, the person suffers from a condition such that his or her health or welfare could be damaged by having to confront the issue.
22. Willis Report para 6.57.
23. Registry of Births, Deaths and Marriages Submission at 3.
24. Willis Report Recommendation 7.
25. It might be arguable that s34 provides a basis for the discretionary release of information, and the Commission has been informed that this is currently being tested in proceedings before the Community Welfare Appeals Tribunal. Clearly, however, that section was not intended to cover the situation under discussion, and the limitations expressed in s34(4) are inappropriate.
26. Comments made at meeting between the Commission and Ms Wendy Williamson and Malcolm Squire, 26 June 1992.
27. cl5(a).
28. FIS Submission at 7.
29. No information is released at the discretion of the Director-General without an undertaking being signed.
30. It would be wrong to provide the for automatic extension of the veto, for this would be to extend the criminal liability of the searcher, who would be entitled to assume until otherwise notified that the scope of the veto was not wider than it had been at the time he or she was made aware of it, and signed the required undertaking.
31. FIS Submission at 7.
32. FIS Submission at 8.
33. See eg Anglican Adoption Agency Submission.
34. FIS Submission at 5; Registry Submission at 4.
35. FIS Submission at 14-16.
36. In the Commission’s view this perception is incorrect, since Departmental staff have generally been very concerned to protect people’s privacy: see Chapter 4. It seems likely that the perception derives from perceived discouragement of persons wishing to lodge a veto, and also, perhaps, from the simple fact that the Department has the role of administering a law which involves disclosure of identifying information.
