OVERVIEW OF THE REPORT

1.1 This Report represents the culmination of the New South Wales Law Reform Commission’s review of the Adoption of Children Act 1965 (NSW) (“the Adoption Act”). The terms of reference were received by the Commission on 1 December 1992 and are set out above at page xv.

1.2 The Commission began its review of the Adoption Act in December 1992 and released an Issues Paper for public discussion in May 1993.¹ This paper explained the present adoption law in New South Wales and outlined the nature of the Commission’s inquiry. The Issues Paper was intended to promote discussion, and invited submissions, on topics relating to the legislative control of adoption and alternative legal approaches. A more extensive paper, Discussion Paper 34, was released for public comment in April 1994.² This Paper drew on further research done by the Commission and material from the many submissions and comments received following the release of the Issues Paper. The Discussion Paper presented provisional proposals for reform of adoption law.

1.3 This Report contains final recommendations for reform of the Adoption Act based on

• an analysis of current research;
• responses and information elicited from public consultations;
• responses to Issues Paper 9 and Discussion Paper 34 from individuals and organisations in Australia and overseas, including adoption service providers and consumers;
• information and statistics provided by other individuals and organisations; and
• a consideration of legislation, policy and adoption law reviews from other jurisdictions.

Background to the review

1.4 The Commission began reviewing legislation regulating adoption in New South Wales by examining the operation of the Adoption Information Act 1990 (NSW). The Commission published its Report Review of the Adoption Information Act 1990 in July 1992.³ The 1990 Act was the subject of intense debate and lobbying, and involved sensitive issues of information and privacy concerning thousands of adults and children involved with adoption. The Commission undertook research and consultation in order to gain a thorough understanding of the impact of the Act on those to whom it applied. Whilst the Commission’s Report concluded that the Act was operating successfully, the Commission made three major recommendations:⁴

• an Adoption Information Exchange should operate to facilitate communication between all parties affected by adoption laws;
• an Advance Notice System should apply to delay the release of identifying information for a fixed period at the request of a person who would be identified by it; and
• the Director-General of the Department of Community Services in New South Wales should have a discretion to limit access to identifying information in exceptional cases.

1.5 These recommendations were implemented in the Adoption Information Amendment Act 1995 (NSW).⁵

1.6 In December 1993, the Commission commenced work on the review of the Adoption Act. The release of this Report represents the completion of the Commission’s examination of adoption law in New South Wales.

1.7 Much has changed since the mid-1960s, when the Adoption Act was drafted. There has been a marked decline in the number of healthy new-born Australian children available for adoption. Consequently, there has been a continuing or increased interest in other areas of adoption, such as the adoption of children from overseas countries, children who are older or who have specific health problems or other difficulties, former foster children, and children related to the adopters.

1.8 A large body of material has become available since the 1960s relating to people’s experiences with adoption. Community attitudes and laws have changed in relation to ex-nuptial birth, the roles of men and women, de facto relationships, and many other aspects of family and community life. Attitudes, laws and practice relating to openness in adoption have changed markedly. Developments in law and practice have recognised a need for greater flexibility in family arrangements and the benefits of inclusion of the birth family in the decision-making process.

1.9 Australia’s increasing international obligations to protect children’s rights and interests, arising under its ratification of a number of conventions, has also made it timely for New South Wales to consider the adequacy of its adoption legislation.⁶ In addition, the continued development of national family laws since the introduction of the Family Law Act 1975 (Cth) has prompted a reconsideration of the scope of New South Wales adoption legislation. In other jurisdictions, both in Australia and overseas, adoption legislation has been reviewed and changed. Adoption practice in New South Wales itself has changed, reflecting social and community changes which are not similarly reflected in the Adoption Act.

1.10 This review has provided the opportunity to

bring adoption legislation into line with other areas of child law as well as enabling it to accommodate the changing social patterns of adoption more effectively.⁷

1.11 Although there have been valuable comments on aspects of the legislation, and amendments made from time to time in relation to particular matters, the Adoption Act has never been comprehensively reviewed.

CONSULTATIONS AND PUBLICATIONS

1.12 Throughout the process of the review, the Commission consulted with groups, organisations and individuals who were interested in the reform of adoption legislation. The Commission made particular efforts to seek out the views of each of the interest groups involved. The review of the Adoption Act was advertised via newspapers, television, local and national radio, public hearings and posters placed in clinics and youth centres. Issues Paper 9 and Discussion Paper 34 were widely disseminated in New South Wales as well as in other Australian States and internationally. Members of the Commission have participated in conferences,⁸ Interdepartmental committees,⁹ education programs¹⁰ and Continuing Legal Education Seminars¹¹ in which the review and its possible effects have been discussed. The Commission also initiated contact with a number of groups, members of which may not necessarily have come forward on their own.

Issues Paper 9

1.13 The early phase of this project was of a preliminary nature: collecting materials, making contacts, collecting literature, preparing mailing lists, studying reviews and reform of adoption laws in other jurisdictions, and engaging in limited consultation in order to prepare the Issues Paper. Issues Paper 9 outlined the nature and scope of the review and made a general request for assistance and suggestions from anyone who wanted to comment on the legislation or any related aspect of adoption law or practice. The Commission received 148 submissions following the release of Issues Paper 9 and took a further 372 inquiries in relation to the issues for discussion.

1.14 In July 1993, the Commission held three public hearings. One hearing was devoted to the topic of intercountry adoption, while the other two hearings invited members of the public to discuss any other issues relating to adoption in New South Wales. During the course of the public hearings, 45 individuals took the opportunity to express their views in an open forum. This provided a valuable source of information to the Commission.

1.15 Public hearings were not the only means by which individuals or organisations could participate. Throughout the period of the review, the Commission issued an open invitation for any persons to discuss their adoption experiences by way of comments and submissions in writing or by phone or facsimile. Some chose to meet with members of the Commission in person.

Discussion Paper 34

1.16 It is common, in a review as extensive as the present one, for the Commission to release a second interim paper for public discussion prior to finalising its recommendations. The Discussion Paper format is used by the Commission to set out draft proposals for reform for the purpose of eliciting community response prior to preparing a final Report for the Attorney General.

1.17 This second step was considered to be particularly important in the context of this review because many of the proposals for reform in Discussion Paper 34 departed from the principles of adoption that had been fundamental to the drafting of the Adoption Act. Discussion Paper 34 also analysed reform issues in adoption, evaluated current legislation and discussed potential solutions to problems raised in submissions. This depth of detail allowed readers to contemplate the effect particular recommendations may have and to respond to the reasoning behind each of the provisional proposals.

1.18 Following the release of Discussion Paper 34, the Commission received a further 570 submissions, responses and inquiries from organisations and members of the public. After receiving the majority of submissions, the Commission then arranged further consultations on issues that either had not been addressed in submissions, or where further work was required to interpret the community’s response.

Research Reports: Intercountry Adoption and Parent Support Groups; the Aboriginal Child Placement Principle

1.19 1994 was the International Year of the Family and grants were made available to conduct research aimed at families in Australia. In the period following the release of the Discussion Paper, the Commission put forward a submission to the International Year of the Family Secretariat, requesting funding for two projects addressing issues for families in New South Wales. Research for the Discussion Paper highlighted the lack of empirical data in the areas of intercountry adoption and the adoption of indigenous children. The Commission’s proposals, Overseas Adoption and Adoption within the Aboriginal Community were approved. Funding of $40,000 was made available to the Commission for the preparation of two research papers.

1.20 Research Report 6, Intercountry Adoption and Parent Support Groups In New South Wales provides a profile of each of the parent support groups currently involved in the process of intercountry adoption in New South Wales. The differences between the groups, in terms of their approach to the role of a parent support group, the extent of their involvement in the adoption process, their structure and style of operation are examined.

1.21 Research Report 7, entitled The Aboriginal Child Placement Principle evaluates the application of the Aboriginal Child Placement Principle (“the Principle”) as found in s 87 of the Children (Care and Protection) Act 1987 (NSW). The aim of the research was to evaluate the effectiveness of the Principle in placing Aboriginal children with Aboriginal people for fostering and adoption.

1.22 The Commission studied the child welfare and adoption legislation, and obtained data from the government departments responsible for child welfare, in each State and Territory. It also examined all expressions of the Principle set out in departmental policy documents. Information was also sought from Aboriginal and Torres Strait Islander child care agencies throughout Australia. The Research Report provides a statistical picture of the placement of Aboriginal and Torres Strait Islander children in Australia. However, this picture is limited by reason of the widespread failure to record data concerning Aboriginal and Torres Strait Islander child welfare in many of the responsible government departments throughout Australia. The paucity of data raises questions about the accountability of these departments in relation to their implementation of the Principle.

1.23 The research revealed that there is still a significant proportion of Aboriginal children placed with non-Aboriginal foster and adoptive parents, although this proportion appears to be slightly lower in those States and Territories which have included the Principle in legislation. The Research Report also examines factors which prevent the effective operation of the Principle.

1.24 The value of these Research Reports lies not only in their being a source of information in areas where this has been lacking, but in their being an integral part of the research process, aiding the Commission in reaching its final recommendations in the review. This Report refers to material contained in the Research Reports where that material has been relevant to the formulation of particular recommendations.

OUTLINE OF THE REPORT

1.25 Throughout the Report, certain abbreviated terms are used. These are as follows:

• The Adoption of Children Act 1965 (NSW) is abbreviated to “the Adoption Act”.
• The Adoption of Children Regulation 1995 (NSW) is abbreviated to “the Adoption Regulation”.
• The Family Law Act 1975 (Cth) is abbreviated to “the Family Law Act”.
• The New South Wales Department of Community Services is abbreviated to “DOCS”.
• The New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Issues Paper 9, May 1993) is abbreviated to IP 9.
• The New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, April 1994) is abbreviated to DP 34.
• “Court” is used to refer to the Supreme Court of New South Wales, unless otherwise specified.
• The term “submission” is used to refer to both written and oral submissions, whether formally or informally couched, including submissions made in consultations or face-to-face meetings.
• The term “legislation” is used to refer to statutes, regulations, rules, orders in council and other legislative instruments. In making its recommendations for legislative reform, the Commission has not embarked on determining in what legislative instrument a reform should be contained.

1.26 All legislation referred to, whether legislation of New South Wales, another State of Australia or overseas, is legislation current as at 31 December 1996.

1.27 The Report consists of this introductory chapter and ten further chapters as follows.

• Chapter 2 looks at the purposes and philosophy of adoption and evaluates adoption as an option for the permanent care of children. It reconsiders three key features of the Adoption Act, namely, that the child’s welfare and interests are paramount, that adoption should be judicially sanctioned and adoption services regulated by government and that there should be provision for secrecy. The significance of international treaties for the practice and regulation of adoption in New South Wales is discussed. The chapter also examines the legal effect of adoption orders. The chapter recommends guiding principles for the future conduct of adoption.
• Chapter 3 examines certain procedural issues in the administrative and judicial process leading to an adoption and looks at some technical legal issues which do not fall readily within the other chapters.
• Chapter 4 addresses particular concerns or considerations which arise in relation to the adoption of particular adoptees, namely, adults, step-children and other related children, children in care, children in private placements and children with special needs.
• Chapter 5 considers consent requirements and the expression of the views of the child in the adoption process.
• Chapter 6 gives an overview of the present law and practice in relation to eligibility requirements and the selection process. The chapter then considers the relevance of certain factors to eligibility and the desirability of specific legislative requirements relating to eligibility to adopt. The relationship between adoption legislation and the Anti-Discrimination Act 1977 (NSW) is considered.
• Chapter 7 begins with the general principle that adoption arrangements should be characterised by openness and honesty. It then considers whether, and if so how, the law should be reformed to ensure that this principle carries through to adoption practice.
• Chapter 8 explores the value of cultural heritage and continuity of a particular cultural heritage for an adoptee. Recommendations are made as to ways in which adoption legislation and practice can promote cultural continuity in an adoption placement.
• Chapter 9 considers separately the placement for adoption of children of Aboriginal or Torres Strait Islander descent. The chapter explains why the legislation should contain provisions specifically directed at these children.
• Chapter 10 evaluates the concept of intercountry adoption, considers international treaties governing intercountry adoption, and critically examines current practices. The chapter also discusses the role of the Department of Immigration and Ethnic Affairs in intercountry adoption.
• Chapter 11 looks at the relevance of reproduction technology and surrogacy to the legislative control of adoption.

FOOTNOTES

1. New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Issues Paper 9, May 1993).

2. New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, April 1994).

3. New South Wales Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992).

4. NSWLRC Report 69 at ix-x.

5. Adoption Information Amendment Act 1995 (NSW) s 30-31E, s 15A-15J, s 12A.

6. For example, the Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, adopted by the General Assembly of the United Nations on 3 December 1986 and the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 and ratified by Australia in 1990. The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption has not been ratified yet by Australia, although it is expected to ratify in 1997, giving rise, when ratified, to further international obligations.

7. C Bridge “Changing the Nature of Adoption: Law Reform in England and New Zealand” (1993) 13 Legal Studies 1 at 81. This has also been the perceived aim of law reform proposals in the United Kingdom and New Zealand.

8. The 1994 Australian Adoption Conference Has Adoption a Future? Masonic Centre, (Sydney, August 29-31 1994) (organising committee and key note speech); New South Wales Department of Community Services, Adoption Branch Planning Day The Review of the Adoption of Children Act (Sydney, 15 March 1993); First World Congress on Family Law and Children’s Rights Sydney Convention Centre Darling Harbour (Sydney, 4-9 July 1993).

9. The Interdepartmental Committee for the International Year of the Family 1994.

10. Infertility Awareness Week Donor Sperm Information Night (Royal Prince Alfred Hospital Medical Centre, 30 August 1994); Law Week 1995 The Process of Law Reform (Mitchell Library Gallery 2, 22 May 1995).

11. College of Law Continuing Legal Education Seminar The Law of Adoption (Masonic Centre, Sydney, 18 November 1994).