The New South Wales Law Reform Commission was required to inquire into and report on the operation of the Adoption Information Act 1990. In particular, the Commission was required to consider public awareness, implementation and administration of the Act, and its impact on people affected by it: adopted persons, birth parents, adoptive parents, and their extended families. This Report presents the results of the Commission’s review, its conclusions and recommendations.

The Commission has also prepared a Summary Report as a separate volume. The Summary Report is an abridged version of the Commission’s findings and recommendations.

Comments and conclusions

The Commission’s major comments and conclusions are as follows:

The majority of the public appears to be aware of the essence of the Adoption Information Act 1990.

Implementation of the Act has been accomplished successfully and its administration is working well.

The vast majority of adopted persons and birth parents welcome the rights to information, and exercise them responsibly.

Compliance with the contact veto system is very high. Although there were rumours or suggestions of breaches, a careful examination of the evidence revealed only one incident that appeared to be a breach of a veto.

Post-adoption contact and reunions are seen as beneficial by almost all who initiate them, and positive or acceptable by the majority of those who are contacted.

The Adoption Information Act 1990 has functioned very much as expected by Parliament, with the following qualifications that:

- it is possible that the number of people who are unaware that they are adopted is somewhat higher than estimated;

- there may be somewhat greater resistance to the Act than expected on the part of adoptive parents (a majority) and adoptees (a significant minority); and

- compliance with the contact veto system is probably somewhat higher than expected.

With regard to fees under the Act:

• Guidelines for the waiver of fees should be well publicised, and drawn to the attention of all applicants for birth certificates and contact vetoes.
• Removing the fee for lodging a contact veto may not only be considered equitable, but would also enhance the functioning and acceptability of the Act.
• The structure of fees should be re-examined to ascertain whether a closer fit could be achieved between the fees charged and the services provided to an applicant.

From its study of the operation and impact of the Act, the experience under similar laws outside New South Wales, and the submissions made in the present review, the Commission concludes that there is no need to change the basic principles of the Act, which provide a reasonable and workable resolution of the conflicting interests involved. However, the evidence of real distress and anxiety caused to many adoptive parents and some adoptees and birth parents justifies some modifications to current law and practice.

Recommendations

The Commission’s major recommendations are as follows:

An Adoption Information Exchange should be established, to be administered in a manner similar to the Reunion Information Register, on which any person directly involved in the adoption, ie adoptee, birth parent or adoptive parent (or other persons at the discretion of the Director-General) may leave information or messages for any other such person.

An Advance Notice System should be implemented by which an adopted person, birth parent or adoptive parent could request prior notice that an application had been made for information under the Adoption Information Act and the release of information be made subject to a delay of two months.

The Adoption Information Act should be amended to give the Director-General a discretion to refuse to supply a birth certificate or prescribed information or to attach conditions to the supply of that information. Adopted persons, birth parents and (with the consent of the adopted person) adoptive parents should be able to apply to the Director-General to exercise the discretion. The power should be limited to exceptional circumstances where it is necessary to avoid serious harm. It should be subject to the Community Welfare Appeals Tribunal.

The other recommendations made by the Commission are as follows:

• The Department of Community Services should continue to make provision for resources to be used for publicity about the adoption information legislation aimed at all members of the community who are affected by it.
• Provision should be made for appeal to the Community Welfare Appeals Tribunal against the exercise of all discretionary decisions affecting people’s interests and entitlements under the Act, and that the availability of such appeals be appropriately publicised.
• The Act should be amended to remove the requirement that applicants seeking information from Supreme Court records should have taken all reasonable steps to obtain the information from other information sources, and that necessary arrangements be made, and resources provided, for more ready access to adoption information contained in Supreme Court records.
• The Department should reconsider the current five day period at the end of which a contact veto takes effect. If it is not possible to develop a more reliable procedure for remitting applications speedily to the Family Information Service, a longer period should be prescribed by the Act.
• The Act should be amended to give the Director-General a discretionary power to supply birth certificates, identifying and other information in situations falling outside existing statutory entitlements.
• The legislative provisions relating to birth fathers should be clarified in order to implement more fully the objects of the Act.
• Clause 12 of the Regulation (which prohibits release of information identifying an unacknowledged birth father) should be repealed.
• Birth parents should have a statutory right to non-identifying information about the adopted person during their childhood corresponding to the existing rights of adoptive parents to such information about the birth parents.
• 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.
• 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.
• Clause 14 of the Regulation (which prescribes when information as to “last known name and address” can be released) should be repealed.
• 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.
• The Act should be amended so that the Contact Veto Register terminates only if Parliament so decides.