THE REVIEW

1.1 The New South Wales Law Reform Commission is currently conducting a review of the Adoption of Children Act 1965 (NSW). The terms of reference are set out above at page iv and the Commission is required to report to the Attorney in 1994. This Discussion Paper follows on from the Issues Paper, released in May 1993, which explained the nature of the law and the Commission’s inquiry.¹ The Issues Paper discussed alternative legal approaches, and listed some of the issues on which we wanted to receive submissions and comments. This Discussion Paper draws on further research done by the Commission and uses material from the submissions made to the Commission following the release of the Issues Paper in order to reach some tentative conclusions for reform of adoption law.

Background

1.2 In 1992, the Commission reviewed the operation of the Adoption Information Act 1990 (NSW), and published its report: Review of the Adoption Information Act 1990.² The 1990 Act was the subject of intense debate and lobbying, and involved sensitive issues of information and privacy concerning many thousands of adults and children involved with adoption. The Commission undertook extensive research and consultation in order to understand how the Act operated and its impact on the various people affected. The present review will complete the Commission’s examination of adoption law in New South Wales. Both reviews were initiated by the then Minister for Community Services, the Honourable John Hannaford MLC, and have been funded by the Department of Community Services.

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

1.4 Considerable evidence has become available since the 1960s relating to people’s experience with adoption. Community attitudes and laws have changed in relation to unmarried parenthood, the roles of men and women, ex-nuptial birth, de facto relationships, and many other features of family and community life. Attitudes and laws relating to access and information have changed markedly, and a considerable part of the review is concerned with the implications of the new openness in adoption law and practice. Ideas relating to children’s rights and interests have been modified, for example, by Australia’s ratification in 1990 of the United Nations’ Convention on the Rights of the Child.³ The continued development of national family laws since the introduction of the Family Law Act 1975 (Cth) requires a reconsideration of the scope of New South Wales adoption legislation. Changes in adoption law in most other Australian States have greatly eroded the considerable uniformity achieved in the mid-1960s. Adoption practice has also changed. In other jurisdictions, both in Australia and overseas, adoption legislation has been reviewed and changed, and information regarding these developments has been of great value to the Commission.

Scope of issues to be considered

1.5 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 of Children Act 1965 (NSW), and the regulations made under it, have never been thoroughly reviewed. The important changes referred to above make it appropriate that the present review should involve a thorough reconsideration of adoption law. This paper indicates tentative conclusions reached by the Commission following the consultation and research process. Any views expressed in this Paper are presented for the purpose of discussion and do not represent the final views of the Commission. The Commission will continue to respond to new information as the review proceeds, and will be influenced by responses to this Discussion Paper. Such submissions will be of great assistance to the Commission in finalising its Report to the Attorney General. It is important that all submissions reach the Commission by the specified deadline.

The purpose of this Discussion Paper

1.6 This Discussion Paper is designed to promote discussion of the issues that the Commission has identified and the conceptual framework that the Commission has developed, in order to review the Adoption of Children Act 1965 (NSW). Its purpose is to provide sufficient background and structure to the issues in order to promote informed debate about adoption in New South Wales. It does not make final recommendations for reform. It invites comments on provisional recommendations that have been made for the purpose of encouraging comments and suggestions from interested persons and groups.

Outline of the Discussion Paper

1.7 This paper consists of fourteen chapters.

Chapter 1 - Introduction. This chapter outlines the context in which the reference arose and the Commission’s approach to conducting this review.

Chapter 2 - A brief overview of existing adoption law and practice. This chapter explores the background of the current legislation and gives a brief history of its amendments. The remaining part of the chapter focuses on:

• the purpose of adoption;
• the different forms of adoption; and
• developments in the adoption legislation of other Australian States.

Chapter 3 - The purpose and validity of adoption. This chapter examines the arguments for and against the abolition of adoption.

Chapter 4 - General principles. This chapter sets out the general principles that should guide the development of adoption law. These are:

• the best interests of the child to be the paramount consideration;
• the making of adoption arrangements to be controlled by a government department or approved agency;
• responsibility for the making of adoption orders and related orders to rest with a court; and
• adoption arrangements to be characterised by openness and honesty.

This chapter also reviews the possible consequences of adoption and the way in which adoption legislation should respond to the different forms of adoption.

Chapter 5 - Regulation of adoption placements. This chapter begins with a discussion of the issue of legal responsibility for children prior to the making of the adoption order. It then goes on to examine the legal regulation of adoption and considers the following:

• a preliminary hearing;
• an adoption hearing;
• independent representation at court hearings;
• the merits of courts and tribunals; and
• appeals and review.

The chapter ends with a discussion of the roles and responsibilities of the Department of Community Services and the authorised agencies.

Chapter 6 - Eligibility to adopt. The chapter begins by examining existing law and practice and then considers particular issues. These include:

• discrimination;
• infertility;
• marital status and family structure;
• sexual orientation;
• religion;
• wishes of birth parents;
• age; and
• racial issues.

The chapter ends with draft guidelines for the selection of adoptive parents.

Chapter 7 - Consent to adoption. This chapter considers parental consent requirements and the child’s participation in the process of adoption. The chapter examines the issues of:

• current practice for the taking of consents;
• consent and the unmarried father;
• ensuring that birth parents’ consents are fully informed and voluntary;
• types of consent; and
• dispensing with consent.

Chapter 8 - Aboriginal law and racial and ethnic heritage. This chapter examines the impact of adoption legislation on Aboriginal and Torres Strait Islander children. In particular, it considers:

• the historical impact of white welfare laws on Aboriginal communities;
• the Aboriginal Child Placement Principle; and
• traditional adoption among Torres Strait Islanders.

Chapter 9 - Racial and ethnic heritage. This chapter examines racial and ethnic heritage generally, focusing on the current perceptions of inter-racial and inter-ethnic adoption placements.

Chapter 10 - Donor reproduction technology, surrogacy and adoption. This chapter begins by drawing analogies between donor reproduction technology, surrogacy and adoption. It then considers the applicability of adoption legislation to:

• children born as a result of surrogacy agreements;
• children born with the aid of donor reproduction technology; and
• embryo donation.

Chapter 11 - Current practices in inter-country adoption. This chapter describes current practices in inter-country adoption. In particular, it examines the role of parent support groups.

Chapter 12 - Inter-country adoption in an international perspective. This chapter examines the international community’s concerns in relation to inter-country adoption and discusses the international conventions that have been drafted to combat these concerns.

Chapter 13 - Problems in current inter-country adoption practice. This chapter rounds off the discussion of inter-country adoption by assessing:

• how far current practice in New South Wales complies with international standards; and
• specific problems the Commission has been made aware of in the course of the Review.

Chapter 14 - Technical and miscellaneous issues. This chapter examines the issues of:

• State and Federal legislation;
• adoptees’ birth certificates;
• discharge of adoption orders; and
• offences.

1.8 Some passages in this Discussion Paper repeat material from the earlier Issues Paper so that it is not necessary for the reader to refer to the Issues Paper in order to understand the Discussion Paper.

1.9 The New South Wales Department of Community Services did not make a formal submission to the Commission, although some of its officers made individual submissions. Senior departmental officers provided a great deal of valuable information about departmental practice and attitudes in the course of conversations with Commission staff. In this Discussion Paper there are many statements that draw on what has been said by these senior officers. It is not practicable to identify the specific source of each comment, and the Discussion Paper contains many statements that rely generally on these conversations in stating what the Commission believes to be departmental practice, or the prevailing view of the Department. In the absence of a formal departmental submission, this appeared to the Commission to be the only practical way to cover this material.

THE COMMISSION’S APPROACH

The conduct of the reference to date

1.10 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. The publication of the Issues Paper represented 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.

1.11 In July 1993, the Commission held three public hearings. One hearing was devoted to the topic of inter-country adoptions, while the other two hearings invited interested members of the public to discuss any other issues relating to adoption in New South Wales. The hearings allowed individuals to express their views in an open forum and provided a valuable source of information to the Commission.

1.12 Not everyone feels comfortable discussing their ideas at a public forum, so the Commission has continued to extend an open invitation to members of the public to discuss their adoption experiences. The Commission has also made a special effort to speak to different groups, members of which may not necessarily have come forward on their own. It was felt to be necessary to contact people who had had a positive or neutral adoption experience as well as those who may have suffered because of it. The fact that the Commission is a government body made us aware of our obligations, under International Law⁴, to consult with children about reforms that affect them. This has led to some very interesting and informative discussions with young people who have made an important input to the Commission’s work.

1.13 The Discussion Paper provides an in-depth analysis of reform issues in adoption and discusses the arguments for and against various aspects of the current law and potential solutions to problems raised by individuals and organisations in their submissions. The Discussion Paper format allows the Commission to set out draft proposals for reform and subject them to extensive community consultation prior to preparing its final Report to the Attorney General.

The next steps

1.14 The Commission plans to report to the Attorney General in the latter half of 1994. Over the next three months the Commission will continue to meet with interested organisations and individuals, and invite written and oral submissions. This consultation will enable the Commission to assess the reaction to the proposals put forward in this Discussion Paper and to refine its recommendations to the Attorney General.

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 Information Act 1900 (Report 69, July 1992).

3. United Nations Convention on the Rights of the Child. The Convention was adopted by the General Assembly of the United Nations in November 1989. Australia first signed and then ratified the Convention in 1990.

4. Convention of the Rights of the Child, Article 12.