[STATE ARMS]

New South Wales

Adoption Bill 1997

Explanatory note

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to reform the law relating to the adoption of children, and in particular:

(a) to emphasise that the paramount consideration in adoption law and practice is to act in the best interests of the child concerned,

(b) to make it clear that adoption is to be regarded as a service for the child concerned,

(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

(d) to recognise the changing nature of practices of adoption and to ensure and to apply the same safeguards and standards to children adopted from overseas as apply to children from New South Wales,

(e) to ensure that adoption law and practice regarding intercountry adoptions in the State comply with Australia’s obligations under treaties and other international agreements,

(f) to make provision for adoption of relatives, wards, foster children and children with special needs,

(g) to encourage openness in adoption,

(h) to allow access to certain information relating to adoptions.

AC Act: Adoption of Children Act 1965

AC Reg: Adoption of Children Regulation 1995

AI Act: Adoption Information Act 1990.

Outline of provisions

Chapter 1 - Preliminary

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed by proclamation.

Clause 3 provides that expressions used in the Dictionary at the end of the proposed Act have the meanings given in the Dictionary. Expressions defined in the Act are listed in the Table of Provisions to the Act.

Clause 4 sets out the objects of the proposed Act (as stated in the Overview above).

Clause 5 provides that explanatory notes in the proposed Act do not form part of the Act.

Chapter 2 - Adoption principles

Clause 6 states the principles that should guide the Supreme Court and the Director-General of the Department of Community Services and other adoption service providers in making decisions about the adoption of a child, including the paramount principle set out in clause 7. The principles stated recognise the importance of having regard to needs of the child, including taking into account the ascertainable wishes of the child and the child’s cultural heritage or Aboriginality.

Clause 7 states that the paramount principle to be taken into account is the best interests of the child, both in childhood and in later life. The clause sets out the things to be considered in determining what will be in the best interests of the child.

Clause 8 requires adoption service providers to take all reasonable steps to identify the cultural heritage of a child who is to be adopted.

Chapter 3 - Adoption service providers

Part 1 Authority to provide adoption services

Clause 9 makes the Director-General of the Department of Community Services responsible for the provision, and for authorising the provision, of adoption services. Adoption service (as defined in the Dictionary) means arrangement for or towards or with a view to the adoption of a child (whether citizen or non-citizen), negotiations for or towards or with a view to the adoption of a child or arranging or assisting in the transfer of the care and custody of a child.

Clause 10 makes it an offence for a person other than the Director-General or a person authorised by the Director-General to provide any adoption service in respect of the adoption in New South Wales of a child. The section also makes it an offence for persons other than the Director-General or an accredited intercountry adoption agency to make arrangements for or towards or with a view to the intercountry adoption of a child and for persons other than the Director-General to provide specified other adoption services in respect of the intercountry adoption of a child. (Intercountry adoption of a child is defined in the Dictionary as the adoption by a person resident or domiciled in New South Wales of a non-citizen child from a country outside Australia.)

Part 2 Private adoption agencies and accredited intercountry adoption agencies

Clause 11 provides for the Director-General to approve charitable organisations as private adoption agencies. A private adoption agency is an authorised adoption service provider for the purposes of the proposed Act and may provide adoption services with a view to the adoption of children from New South Wales. Charitable organisations that are private adoption agencies under the Adoption of Children Act 1965 on the commencement of clause 11 will automatically be private adoption agencies for the purposes of the proposed Act (see clause 3 of Schedule 2 to the Bill). (The organisations that are currently private adoption agencies are Centrecare Catholic Community Services, Anglican Adoption Agency and Barnados Australia.)

Clause 12 provides for the Director-General to approve a non-profit organisation as an accredited intercountry adoption agency. An accredited intercounty adoption agency may make arrangements for or towards or with a view to the intercountry adoption of a child.

Clause 13 enables the Director-General to refuse to approve an organisation as a private adoption agency or accredited intercountry adoption agency if it appears to the Director-General that the organisation is not suited to the provision of adoption services.

Clause 14 enables the Director-General to impose conditions on the approval of organisations as private adoption agencies and accredited intercountry adoption agencies. It also imposes a condition on all approvals of accredited intercountry agencies that prevents the agencies from being involved in fund raising, sponsorship or the sending of aid to institutions with which they have intercountry adoption programs.

Clause 15 requires the Director-General to give notice of his or her decision concerning approval of an organisation as a private adoption agency or accredited intercountry adoption agency.

Clause 16 provides for the appointment of principal officers of private adoption agencies and accredited intercountry adoption agencies. Anything done by a principal officer or with the officer’s approval is treated, for the purposes of the proposed Act and the regulations, as being done by the agency that appointed the officer.

Clause 17 provides for the revocation of the approval of an organisation as a private adoption agency or accredited intercountry adoption agency in certain circumstances.

Clause 18 enables an organisation to appeal against the Director-General’s refusal to approve it as a private adoption agency or accredited intercountry adoption agency or to revoke such an approval or impose conditions on it.

Clause 19 requires notice of an approval of an organisation as a private adoption agency or accredited intercountry adoption agency to be published in the Gazette.

Clause 20 enables regulations to be made in respect of private adoption agencies and accredited intercountry adoption agencies and their representatives.

Chapter 4 - The adoption process

Part 1 General

Clause 21 provides for the Supreme Court (“the Court”) to hear and determine proceedings for the making of adoption orders and other orders under the proposed Act.

Clause 22 confers power on the Court to make an order for the adoption of a child who is present in New South Wales in favour of one person, or a couple of persons, who are resident or domiciled in the State. For the purposes of the proposed Act, a couple includes a man and woman who are married, two persons of different or of the same sex who have a de facto relationship and Aboriginal and Torres Strait Islanders who are living in relationships recognised as marriages by their respective communities.

Clause 23 enables an adoption order to be made in respect of a child who is less than 18 years of age, or a child who is 18 or more years of age, when the application for the adoption order is made. A child who is 18 or more may be adopted only if the child has been cared for by the applicant or applicants for a period of 5 years in total before the application is made.

Clause 24 makes it clear that a child may be adopted even if he or she has been adopted in the past and whether or not he or she is married.

Clause 25 enables one person solely, or a couple jointly, to apply for the making of an adoption order and sets out the prerequisites that sole and joint applicants for adoption orders must satisfy before an order may be made.

Clause 26 prevents the making of an adoption order in favour of one person who is married or who has a de facto relationship and who is living with his or her spouse or partner unless the spouse or partner has consented to the adoption.

Clause 27 prevents the making of an adoption order in favour of a couple unless they have lived together for a continuous period of not less than 3 years. An adoption order can be made in favour of a couple even if one or both of them are birth parents of the child.

Clause 28 prevents the making of an adoption order in favour of a relative unless specific consent to the adoption of the child by that relative has been given and the child has established a relationship of at least 5 years’ duration with the relative.

Clause 29 prevents the making of an adoption order in favour of a step parent unless the step parent has been living with the child’s birth or adoptive parent for at least 3 years before the application for adoption and consent to the adoption has been given by the appropriate persons.

Clause 30 prevents the making of an adoption order in respect of a non-citizen child unless arrangements for the adoption of the child have been made by the Director-General or an accredited intercountry adoption agency and the Court is satisfied that the Cultural Heritage Placement Principle has been properly applied.

Part 2 Placement of prospective adoptees

Clause 31 sets out the Aboriginal Child Placement Principle. The Principle provides that an Aboriginal child should if possible be placed with an applicant or applicants from the same Aboriginal community as the child’s birth parents or another Aboriginal community. An Aboriginal child is to be placed with a non-Aboriginal only if the person has the capacity, and is able and willing to maintain, the child’s heritage. An Aboriginal child is not to be placed unless the principle is properly applied and the applicant has the capacity, and is able to maintain, the child’s cultural identity and heritage. The section also requires an adoption worker who is Aboriginal and a member of an Aboriginal agency to be consulted before an Aboriginal child is placed.

Clause 32 provides for the approval of organisations as Aboriginal agencies for the purposes of the proposed Act.

Clauses 33 and 34 make similar provisions in respect of Torres Strait Islander children.

Clause 35 sets out the Cultural Heritage Placement Principle. A child should if possible be placed with an applicant or applicants of the same cultural heritage as the child. If this is not possible, the child should be placed with applicants who are of a similar or compatible cultural heritage or who have the capacity, and are able and willing to maintain, the child’s cultural heritage. A child (other than an Aboriginal child or Torres Strait Islander) is not to be placed unless the principle has been properly applied.

Part 3 Selection of adoptive parents

Clause 36 provides for the making of applications to the Director-General and to private adoption agencies to be approved as suitable, and to be selected, to adopt children. A person who is approved as suitable and is selected to adopt a child may be invited to apply for an adoption order.

Clause 37 provides for the negotiation of adoption plans for the care of a child who is to be adopted.

Part 4 Consents to adoptions

Clause 38 requires the consent of the parents or guardians of a child to be obtained before the making of an adoption order in respect of a child who is less than 18 years of age.

Clause 39 sets out the circumstances in which the consent of a parent or guardian will not be required.

Clause 40 requires the consent of a child who is 12 or more but less than 18 years of age to be obtained before the making of an adoption order unless the Court orders otherwise in exceptional circumstances.

Clause 41 provides that consent to the adoption of a child can be general or specific and defines the meaning of general and specific consent.

Clause 42 states the requirements that must be met for consent to be effective for the purposes of the proposed Act. The requirements include supply of mandatory information to, and counselling of, the person whose consent is required.

Clauses 43 and 44 state certain additional requirements that must be met if consent to the adoption of Aboriginal and Torres Strait Islander children is to be effective.

Clause 45 provides for the birth father to be given the opportunity to consent.

Clause 46 describes the circumstances in which the Court may dispense with the requirement for consent.

Clause 47 enables consent to be revoked within 30 days after it is given.

Clause 48 provides for persons who have consented to an adoption to be notified before the end of the period in which consent may be revoked.

Part 5 Guardianship of children awaiting adoption

Clause 49 provides for the Director-General to be the guardian of citizen children in the period between the giving of consent to adoption (or the dispensing of consent) and the making of the adoption order or taking of certain other action in respect of the child.

Clause 50 enables the Director-General to renounce guardianship in certain circumstances if the child leaves New South Wales.

Clause 51 provides for the Director-General to be the guardian of non-citizen children who are awaiting adoption in certain circumstances.

Clause 52 requires the Director-General to report to the Court concerning the Director-General’s guardianship of a child if the Director-General is guardian of the child for a year or more.

Clause 53 provides that the Director-General’s guardianship ceases on the making of an adoption order or occurrence of certain other events (for example, revocation of consent to the adoption or the placing of the child in the care of another person).

Part 6 Preliminary hearings

Clause 54 provides for the preliminary hearing of applications for the making of adoption orders.

Part 7 Interim orders

Clause 55 enables the Court to postpone the determination of an application for an adoption order and to make interim orders concerning the care and custody of the child concerned.

Clause 56 limits the duration of interim orders to a period in total of 2 years.

Clause 57 provides for the discharge of interim orders.

Part 8 Adoption orders

Clause 58 prevents the making of an adoption order unless application has been made by the applicant with the consent of the Director-General, on behalf of the applicant by the Director-General or a private adoption agency, by a child who is more than 18 years of age or by a birth parent.

Clause 59 prevents the making of an adoption order unless the Court is satisfied that the best interests of the child will be promoted and that the wishes and feelings of the child have so far as possible been considered.

Clause 60 requires the making of certain reports to the Court before an adoption order in respect of a child who is less than 18 years of age may be made.

Part 9 After application

Clause 61 [50]prevents the making of an adoption order unless the requisite notice of the application for the making of the order has been given.

Clause 62 provides for the Court to permit persons (including, in certain circumstances, the birth father) to appear or be joined as parties to the proceedings for an adoption order.

Clause 63 enables the Court to make orders for the care of a child when it refuses an application for an adoption order.

Clauses 64 and 65 provide for the discharge of adoption orders.

Part 10 Effect of adoption orders

Clause 66 describes the general effect of the making of an adoption order and the legal status of the adopted child and parents.

Clause 67 sets out the effect of the making of an adoption order on the existing guardianship and any previous adoption of the child concerned.

Clauses 68 and 69 describe the effect of the making of an adoption order on property rights and dispositions of property.

Clause 70 describes the effect of the making of an adoption order on the relationship of the adopted child to other children of the adoptive parent or parents.

Clause 71 provides for the Court to specify the names by which a child is to be known after the making of an adoption order when making the order. The Court is required to take into account the wishes of the child in this respect. The Court is not to approve a change in a given name of a child who is more than one year old or a non-citizen child unless there are special reasons relating to the best interests of the child for doing so.

Clause 72 describes the liability of trustees and personal representatives in respect of adopted persons.

Chapter 5 - Recognition of adoptions

Part 1 Definition

Clause 73 contains a definition of country for the purposes of the proposed Chapter.

Part 2 Australian adoptions

Clause 74 provides for the recognition of adoptions in other States and Territories.

Part 3 Foreign adoptions

Clause 75 provides that an adoption in a country outside Australia will be recognised in New South Wales only if it complies with the requirements of the proposed Part. The Part provides 2 ways of recognising adoptions outside Australia. If the adoptive parent or parents have been resident for 12 months or more in a country that is not a “designated country”, a declaration as to the validity of the adoption may be obtained under clause 77. If the country is a “designated country”, clause 78 applies and recognition is (subject to certain conditions) automatic.

Clause 76 sets out the circumstances in which an adoption in a country outside Australia that is not a designated country for the purposes of the proposed Part will be recognised.

Clause 77 provides for the Court to make declarations as to the validity of adoptions in the countries referred to in clause 76.

Clause 78 provides for the recognition of a country as a designated country if it has ratified the Convention on Protection of Children and Co-operation in Intercountry Adoption and adoption services in that country are substantially in accordance with the Convention or if, although it has not ratified the Convention, adoption services are substantially in accordance with the Convention.

An adoption in a designated country is treated as if it were an adoption under the proposed Act unless the adoption is manifestly contrary to the principles and practices relating to adoption set out in the proposed Act.

Chapter 6 - Adoption information

Chapter 6 sets out the entitlements of adopted persons, adoptive persons, birth parents, relatives, siblings and others to access information. Two categories of information are recognised—birth certificates and prescribed information. The Chapter requires a person in most instances to obtain a birth certificate before being entitled to access information because contact vetoes are to be endorsed on the certificate. Chapter 6 substantially re-enacts the Adoption Information Act 1990 (including amendments made by the Adoption Information Amendment Act 1995). Some provisions of that Act (for example, sections 4 (Definitions), 28 (Veto on contact-offences) and 36 (Appeals to Community Services Appeals Tribunal)) are located in other Chapters of this Bill.

Part 1 Preliminary

Clause 79 sets out the objects of the proposed Chapter.

Clause 80 provides for prescribed information to be prescribed by the regulations.

Part 2 Access to birth certificates and other information

Clause 81 sets out the entitlement of an adopted person to access information.

Clause 82 sets out the entitlement of an adoptive parent to access information.

Clause 83 sets out the entitlement of a birth parent to access information.

Clause 84 enables relatives and other persons to access information concerning adopted persons and birth parents, but only after they have died.

Clause 85 specifies the procedure to be followed in applying for access to information.

Clause 86 specifies the persons who are to deal with an application for access to information.

Clause 87 enables the Director-General to give access (or to authorise an information source to give access) to information before an entitlement to it arises if disclosure of the information would promote the welfare and best interests of the parties involved.

Clause 88 enables the Director-General to refuse to supply (or to authorise an information source to supply), or supply subject to conditions, information that might, in identifying a person, cause serious harm to the person concerned. The discretion might be used, for example, if a person might be endangered if identified by the information supplied.

Clause 89 requires information sources to comply with prescribed guidelines in disclosing information from records held by them.

Clause 90 provides that a person is entitled to access information in Supreme Court records only if the Court so orders.

Clause 91 makes it an offence to disclose certain information obtained in connection with the administration or execution of the proposed Chapter without proper authority or to publish information disclosed in proceedings before a court or tribunal in contravention of an order of the court or tribunal.

Part 3 Advance notice

Clause 92 sets out the object of the proposed Part, which is to establish an advance notice system to enable the release of personal information under the Part to be delayed for a fixed period to give the person requesting the delay the opportunity to prepare for the release and any impact it might have on the person or the person’s family or associates.

Clause 93 contains definitions for the purposes of the proposed Part.

Clause 94 sets out the persons who may lodge an advance notice request.

Clause 95 sets out the procedure for lodging an advance notice request.

Clause 96 provides for the establishment and maintenance of an Advance Notice Register.

Clause 97 requires an information source to delay the supply of personal information affected by an advance notice registration for a period prescribed by the regulations.

Clause 98 requires the information source to advise the applicant for the supply of the personal information that it will not be supplied for the advance notice period and the reasons for the delay.

Clause 99 provides for the expiration of an advance notice registration.

Clause 100 enables arrangements to be made with affected parties to waive an advance notice period.

Clause 101 requires the Director-General to notify a person who has lodged an advance notice request of any application for the supply of personal information affected by the registration.

Part 4 Contact vetoes

The proposed Part provides the framework for the system of vetoes against contact to protect the privacy of persons adopted before the date of assent to the Adoption Information Act 1990 and of their birth parents. Contact vetoes may be lodged by adopted persons who are 17 years 6 months or more years of age and the birth parents of adopted persons.

Clause 102 specifies the persons who may lodge a contact veto.

Clause 103 limits contact vetoes to adoptions existing before the date of assent to the Adoption Information Act 1990.

Clause 104 sets out the manner of lodging a contact veto.

Clause 105 provides for the establishment of the Contact Veto Register and sets out the details to be shown on it.

Clause 106 requires the Director-General to advise the primary information source of the entry of a contact veto by an adopted person so that the adopted person’s birth certificate may be endorsed to indicate the existence of the contact veto.

Clause 107 requires the primary information source to register details of the contact veto on the relevant birth certificates.

Clause 108 provides for contact vetoes to generally take effect 5 working days (or a period prescribed by the regulations) after being registered.

Clause 109 provides for the expiration of a contact veto on closure of the Contact Veto Register unless sooner cancelled or unless the person who lodged it dies.

Clause 110 enables the Director-General to approach a person who has lodged a contact veto at the request of a person who has been refused contact to determine whether the person wishes to confirm, cancel or vary the contact veto.

Clauses 111 and 112 require the Director-General to give certain notifications relating to the accessing of information.

Clause 113 requires a person obtaining a birth certificate endorsed with a contact veto to sign an undertaking against contact. Undertakings in other circumstances may also be required.

Part 5 Reunion and Information Register

Part 5 establishes a Reunion and Information Register enabling adopted persons, birth parents, adoptive parents and certain other interested persons to enter their names in the register so that reunions may be arranged with other persons whose names are so registered. Action may, in limited circumstances, be taken to locate persons whose names are not registered to ascertain their wishes concerning reunions. The Part also facilitates the leaving of messages for persons concerned in or affected by an adoption.

Clause 114 defines register for the purposes of this Part.

Clause 115 provides for the entry of persons’ names in the register.

Clause 116 enables a person whose name is entered on the register to leave a message for another person entitled to have his or her name entered.

Clause 117 gives the Director-General a discretion to refuse to enter a name in the register or to accept a message.

Clause 118 enables the Director-General to open, inspect and copy messages.

Clause 119 enables the Director-General to delay the delivery of a message he or she considers likely to be so distressing for the recipient that it should be opened only in the presence of counsellors or other persons.

Clause 120 provides for the making of regulations relating to the delivery or receipt of messages.

Clause 121 specifies the persons eligible to have their names entered in the register.

Clause 122 provides for the Director-General to arrange for the reunion of persons with other persons whose names are entered in the register.

Clause 123 enables the Director-General (in limited circumstances) to locate persons whose names are not included on the register to ascertain their wishes concerning reunion with a person whose name is on the register.

Part 6 Miscellaneous

Clause 124 authorises fees and charges to be set.

Clause 125 enables the internal review of decisions under or for the purpose of the proposed Chapter. Internal review may be sought in relation to decisions that are not able to be appealed against to the Community Services Appeals Tribunal.

Clause 126 enables persons directed to do so by the Guardianship Board to exercise entitlements to receive information, or to lodge a contact veto or advance notice request, on behalf of persons who because of a disability are unable to do so.

Clause 127 provides for the manner of giving notice under the proposed Chapter.

Clause 128 ensures that certain information obtained in connection with intercountry adoptions is only accessed in accordance with the proposed Chapter.

Chapter 7 - Offences

Clause 129 limits the territorial application of the Chapter.

Clause 130 makes it an offence to accept payments in consideration of or in relation to an adoption.

Clause 131 makes it an offence to advertise without authority the availability of a child for adoption, a desire to adopt a child or the willingness to arrange adoptions.

Clause 132 makes it an offence to publish or broadcast without authority the names of parties to an adoption.

Clause 133 makes it an offence to make false statements in applications and other documents under the proposed Act.

Clause 134 makes it an offence to impersonate certain persons.

Clause 135 makes it an offence to present a forged consent to the Court.

Clause 136 makes it an offence to use force or threats to induce or influence parties to an adoption to offer a child for adoption or to give or revoke consent to an adoption.

Clause 137 makes it an offence to improperly witness a consent.

Clause 138 makes it an offence for an applicant to contact a birth parent before a child is allocated.

Clause 139 makes it an offence to make payment for the relinquishment of a child from outside Australia.

Clause 140 makes it an offence to contact or attempt to contact a person contrary to a contact veto. The clause also makes it an offence to use information supplied under the proposed Act to intimidate or harass a person who lodged a contact veto.

Chapter 8 - Records of adoptions

Clauses 141–143 provide for the recording of adoption orders and various other orders for the purposes of the proposed Act.

Clause 144 enables the Director-General to make reports on the suitability of applicants adopting children from overseas.

Clause 145 places restrictions on the inspection of records made for the purposes of the proposed Act.

Chapter 9 - Proceedings

Clause 146 provides for the Court hearings under the proposed Act to be in camera.

Clause 147 enables the Director-General to appear in any hearings.

Clause 148 enables the Court to require the personal attendance of any party to an adoption before the Court.

Clause 149 enables the Court to make orders to ensure that the child concerned is appropriately represented in adoption proceedings.

Clause 150 prevents disclosure of certain reports unless ordered by the Court.

Clause 151 enables the Court to take into account matters whether or not they would be admissible as evidence.

Clause 152 requires the Court to take into account the wishes of the child.

Clause 153 sets out the ways in which the Court can inform itself as to the wishes of the child.

Clause 154 makes it clear that there is no power to require a child to express the child’s wishes.

Chapter 10 - Miscellaneous

Clause 155 provides for the making of appeals against certain decisions under the proposed Act to the Community Services Appeals Tribunal.

Clause 156 enables the Director-General to enter into agreements for the provision of financial assistance to persons involved in an adoption where necessitated by the needs of the child.

Clause 157 provides for the executor or administrator of an estate to transfer property to the Director-General to be held by the Director-General on behalf of the adopted person entitled to it.

Clause 158 provides for proceedings for offences.

Clause 159 enables certain persons to be excluded from hearings of proceedings for offences.

Clause 160 requires the consent of the Minister or Attorney General to be obtained to prosecute certain offences under the proposed Act.

Clause 161 enables the making of rules of court.

Clause 162 enables the making of regulations.

Clause 163 repeals the Adoption of Children Act 1965 and the Adoption Information Act 1990.

Clauses 164 and 165 are machinery provisions relating to the Schedules to the proposed Act.

Clause 166 requires the Minister to review the proposed Act as soon as possible after the period of 5 years from the date of assent to the Act and to table a report of the review in Parliament.

Schedule 1 Amendment of other laws

Schedule 1 makes consequential amendments to a number of Acts and regulations.

Amendments to the Birth, Deaths and Marriages Registration Act 1995 enable an adoptive parent of a child to register a note of the intention of another person to adopt the child jointly with the adoptive parent if the other person dies after the making of an application to adopt but before an adoption order is made. Provision is also made to enable the Registrar to issue one certificate containing information currently supplied separately on original and amended birth certificates.

Schedule 2 Savings, transitional and other provisions

Schedule 2 enacts savings, transitional and other provisions.

Dictionary

The dictionary defines various words and expressions used in the proposed Act.

[STATE ARMS]

New South Wales

Adoption Bill 1997

Contents

Chapter 1 - Preliminary

1 Name of Act

2 Commencement

3 Definitions

4 Object of Act

5 Notes

Chapter 2 - Adoption principles

6 Guiding principles in exercise of powers concerning adoption

7 Paramount principle

8 Duty to identify cultural heritage

Chapter 3 - Adoption service providers

Part 1 Authority to provide adoption services

9 Adoption services to be provided by or on behalf of Director-General

10 Unauthorised arrangements for adoption

11 Private adoption agencies

12 Accredited intercountry adoption agencies

13 Refusal of application

14 Conditions of approval

15 Notice of decision

16 Principal officer of private adoption agency or accredited intercountry adoption agency

17 Revocation or suspension of approval

18 Appeal against refusal, revocation or suspension

19 Notice of approval to be published in Gazette

20 Regulations relating to private adoption agencies and intercountry adoption agencies

Chapter 4 - The adoption process

Part 1 General

21 Proceedings

22 Jurisdiction

23 Who may be adopted?

24 Previous adoption or marital status immaterial

25 Who may adopt?

26 Adoption by one person

27 Adoption by a couple

28 Adoption by a relative

29 Adoption by a step parent

30 Adoption of non-citizen child

31 Placement of Aboriginal child

32 Aboriginal agency

33 Placement of Torres Strait Islander child

34 Torres Strait Islander agency

35 Cultural Heritage Placement Principle

36 Application to adopt

37 Adoption plans

38 Consent of parents and guardians

39 When consent of parent or guardian not required

40 Consent of child

41 General or specific consent

42 Effective consent

43 Consent to adoption of Aboriginal child

44 Consent to adoption of Torres Strait Islander child

45 Birth father to be given opportunity to consent

46 Court may dispense with consent

47 Revocation of consent

48 Notification of pending termination of revocation period

49 Guardianship of citizen child awaiting adoption

50 Renunciation of guardianship

51 Guardianship of non-citizen child awaiting adoption

52 Guardianship reports—citizen and non-citizen children

53 Duration of guardianship

54 Preliminary hearing

55 Making of interim orders

56 Duration of interim orders

57 Discharge of interim orders

58 Application to be consented to by Director-General

59 Court to be satisfied as to certain matters

60 Report required before order made for adoption of child under 18 years of age

61 Notice of application for adoption orders

62 Parties

63 Care of child after refusal of an application

64 Discharge of adoption orders

65 Investigation of application for discharge

66 General effect of adoption orders

67 Effect of adoption order on guardianship etc

68 Effect of orders as regards property

69 Effect of orders as regards dispositions of property etc

70 Relationship of adopted child to other children of the adopter

71 Names of adopted children

72 Liability of trustees and personal representatives in respect of adopted persons

Chapter 5 - Recognition of adoptions

Part 1 Definition

73 Definition

74 Recognition of Australian adoptions

75 Application of Part

76 Recognition of foreign adoptions in countries other than designated countries and by certain persons

77 Declarations of validity of foreign adoptions

78 Recognition of adoptions in designated countries

Chapter 6 - Adoption information

Part 1 Preliminary

79 Objects of Chapter

80 Prescribed information

81 Adopted person’s rights

82 Adoptive parent’s rights

83 Birth parent’s rights

84 Access to adoption information by relatives and others after death of adopted person or birth parent

85 Application for supply of birth certificate or prescribed information

86 Persons designated to deal with applications

87 Discretion to supply birth certificate or prescribed information

88 Discretion to withhold supply (or authorise the withholding of supply), to supply information or to supply it subject to conditions

89 Guidelines for release of prescribed information etc

90 Access to court records

91 Unauthorised disclosure of information

92 Object of Part

93 Definitions

94 Who may lodge an advance notice request?

95 How advance notice request is lodged

96 Advance Notice Register

97 Primary information source to delay issue of supply authority or prescribed information

98 Endorsement of details of advance notice request

99 Expiration of advance notice registration

100 Arrangements to waive or cancel advance notice period

101 Notification to person who lodged advance notice request

102 Adopted person or birth parent may lodge contact veto

103 Contact veto may be lodged only for certain adoptions

104 How contact veto is lodged

105 Contact Veto Register

106 Director-General to advise primary information source

107 Primary information source to endorse details of contact veto on birth certificate

108 When contact veto takes effect

109 Expiration of contact veto

110 Arrangements to confirm, cancel or vary contact veto at request of person seeking contact

111 Notification to person who lodged contact veto of request for information

112 Notification to person affected by contact veto of cancellation or variation

113 Undertakings not to contact person who has lodged contact veto

114 Definition

115 Reunion and Information Register

116 Message may be left

117 Director-General may refuse to enter name or take message

118 Circumstances in which Director-General may open, inspect and copy message

119 Director-General may delay delivery of message

120 Regulations

121 Persons eligible to have their names entered in the register

122 Arrangements for reunion of registered persons

123 Location of persons not registered

124 Fees and charges

125 Internal review

126 Entitlements of disabled persons

127 Manner of giving notice

128 Duties of Director-General and accredited overseas adoption agencies

Chapter 7 - Offences

129 Territorial application of Chapter

130 Payments for NSW adoptions or intercountry adoptions and adoption services

131 Unauthorised advertising

132 Restriction on publication of identity of parties

133 False statement in application etc

134 Impersonation

135 Presenting forged consent

136 Undue influence

137 Improper witnessing of consent

138 Prohibition on contact with birth parents of child

139 No improper payments made in respect of adoption of the child

140 Veto on contact—offences

Chapter 8 - Records of adoptions

141 Functions of nominated officer in relation to orders under this Act

142 Sending of memoranda of orders to other States and Territories

143 Particulars of orders received from other States or Territories

144 Report for applicants where child overseas

145 Restriction on inspection of records

Chapter 9 - Proceedings

146 Hearings to be in camera

147 Director-General may appear at hearings

148 Court may require attendance

149 Court’s powers with respect to representation for children

150 Contents of reports not to be disclosed

151 Matters admissible in evidence

152 Wishes of child

153 How wishes of a child are expressed

154 Children not to be required to express wishes

Chapter 10 - Miscellaneous

155 Appeals to the Community Services Appeals Tribunal

156 Provision of financial and other assistance to certain children

157 Administration of certain estates

158 Proceedings for offences

159 Exclusion from proceedings

160 Authority to prosecute

161 Rules of court

162 Regulations

163 Repeals

164 Amendment of other laws

165 Savings and transitional provisions

166 Review of Act

Schedules

1 Amendment of other laws

2 Savings, transitional and other provisions

Dictionary

The dictionary defines the following words and expressions

Aboriginal

Aboriginal agency

Aboriginal child

Aboriginal Child Placement Principle

accredited intercountry adoption agency

adopted brother or sister

adopted person

adoption plan

adoption order

adoption service

adoptive parent

advance notice registration

advance notice request

amended birth certificate

applicant

authorised adoption service provider

birth parent

charitable organisation

child

contact veto

Court

cultural heritage

Cultural Heritage Placement Principle

de facto relationship

decision

decision maker

designated country

designated person

Director-General

former Act

foster parent

general consent

guardian

home study

hospital

independent counsellor

information source

intercountry adoption

interim order

nominated officer

non-citizen child

original birth certificate

parental responsibility

parties

prescribed information

primary information source

principal officer

private adoption agency

Registrar

relative

revocation period

sibling

specific consent

spouse

step parent

supply authority

Torres Strait Islander

Torres Strait Islander agency

Torres Strait Islander child

Torres Strait Islander Child Placement Principle

Part 2 of the Dictionary explains the meanings of references to the following:

couples

married person

[STATE ARMS]

New South Wales

Adoption Bill 1997

No , 1998

A Bill for

An Act to reform the law relating to the adoption of children and to allow for certain persons involved in an adoption to have access to information relating to the adoption; to repeal the Adoption of Children Act 1965 and the Adoption Information Act 1990; and for related purposes.

The Legislature of New South Wales enacts:

Chapter 1 - Preliminary

Introduction. This Chapter contains provisions that are helpful in understanding the Act as a whole. It also contains some machinery provisions.

1 Name of Act

This Act is the Adoption Act 1997.

This Act commences on a day or days to be appointed by proclamation.

Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings set out in the Dictionary.

Note. Expressions used in this Act (or a particular provision of this Act) that are defined in the Interpretation Act 1987 have the meanings set out in that Act.

The object of this Act is to reform the law relating to the adoption of children, and in particular:

(a) to emphasise that the paramount consideration in adoption law and practice is to act in the best interests of the child concerned

(b) to make it clear that adoption is to be regarded as a service for the child concerned

(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage

(d) to recognise the changing nature of practices of adoption and to ensure and to apply the same safeguards and standards to children adopted from overseas as apply to children from New South Wales

(e) to ensure that adoption law and practice regarding intercountry adoptions in New South Wales complies with Australia’s obligations under treaties and other international agreements

(f) to make provision for adoption of relatives, wards, foster children and children with special needs

(g) to encourage openness in adoption

(h) to allow access to certain information relating to adoptions.

Introductions to Chapters and other notes in the text of this Act do not form part of this Act.

Note. For the purpose of comparison, a number of provisions of this Act contain bracketed notes in headings, drawing attention (“cf”) to equivalent or comparable (though not necessarily identical) provisions of other laws. Abbreviations in the notes include:

• AC Act: Adoption of Children Act 1965
• AC Reg: Adoption of Children Regulation 1995
• AI Act: Adoption Information Act 1990.

Chapter 2 - Adoption principles

6 Guiding principles in exercise of powers concerning adoption (cf AC Act s 17, AC Reg cl 35)

(1) It is the intention of Parliament that, in making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following:
(a) the paramount principle set out in section 7,

(b) the principle that adoption is to be regarded as a service for the child not for adults wishing to acquire the care of a child,

(c) the principle that an adult has no right to adopt a child,

(d) the principle that the ascertainable wishes and feelings of the child should be considered (in the light of the child’s maturity and level of understanding),

(e) the Cultural Heritage Placement Principle,

(f) in the case of an Aboriginal child—the Aboriginal Child Placement Principle,

(g) in the case of a Torres Strait Islander child—the Torres Strait Islander Child Placement Principle.

(2) This section does not limit the operation of any other provision of this Act.

(1) The paramount consideration to be taken into account is the best interests of the child concerned, both in childhood and in later life.

(2) In determining the best interests of the child the decision maker is to have regard to the following:

(a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the decision maker thinks are relevant to the weight the decision maker should give to the child’s wishes,

(b) the child’s age, maturity, sex, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c) the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d) the nature of the relationship of the child with each proposed adoptive parent,

(e) the relationship that the child has with relatives, and with any other person in relation to whom the decision maker considers the question to be relevant, including:

(i) the value to the child of any such relationship continuing, and

(ii) the ability and willingness of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise meet the child’s needs, and

(iii) the wishes and feelings of any of the child’s relatives, or of any such person, about the child,

(f) the attitude to the child and to the responsibilities of parenthood of each proposed adoptive parent,

(g) the capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(h) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

(i) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

The Director-General and other authorised adoption service providers are to take all reasonable steps to identify the cultural heritage of any child whose adoption is under consideration.

Chapter 3 - Adoption service providers

Introduction. This Chapter provides for the making of arrangements for the placement of children for adoption through a government department and approved private adoption agencies. It makes it clear that individuals must not make their own adoption arrangements, either personally or through private institutions. The Chapter provides for approval of charitable organisations to make arrangements for adoption of children from New South Wales and for the authorisation of other organisations to make certain arrangements for the intercountry adoption of children.

Part 1 Authority to provide adoption services

9 Adoption services to be provided by or on behalf of Director-General

(1) The Director-General is, subject to this Act, to provide, and authorise the provision by others of, adoption services.

Note. Under section 5 of the Community Welfare Act 1987, the Director-General may delegate this and any other function under this Act to any person.

(2) Without limiting subsection (1), the Director-General is, subject to this Act, responsible for:

(a) the assessment of the suitability of a person or persons to adopt a child (including a non-citizen child),

(b) the arrangements for and in relation to the allocation of a citizen child to a person or persons wishing to adopt such a child,

(c) the transfer of the care and custody of a child to the person or persons who will adopt the child,

(d) the giving of consent to the adoption of a child of whom he or she has guardianship,

(e) the approval of charitable organisations as adoption service providers,

(f) the approval of non-profit organisations as accredited intercountry adoption agencies.

(1) A person (other than the Director-General or a private adoption agency) must not provide any adoption service in respect of the adoption in New South Wales of a child (whether citizen or non-citizen).

Note. Private adoption agencies are authorised adoption service providers.

(2) A person (other than the Director-General or an accredited intercountry adoption agency) must not provide any adoption service in respect of the intercountry adoption of a child that involves the making of arrangements for or towards or with a view to the adoption of the child.

(3) A person (other than the Director-General) must not provide any adoption service in respect of the intercountry adoption of a child that involves:

(a) the receipt of expressions of interest in adopting the child, or

(b) the decision of whether or not to approve an applicant to adopt the child, or

(c) the issue of letters approving the adoption or refusing to approve the adoption, or

(d) the sealing of the home study as an original, or

(e) the administration of the appeal process against refusal to approve the adoption, or

(f) the approval of an allocation of the child to an adoptive parent made by the overseas authority.

Maximum penalty (subsections (1)–(3)): 10 penalty units or imprisonment for 12 months, or both.

Note. Intercountry adoption is defined in Part 1 of the Dictionary.

11 Private adoption agencies (cf AC Act ss 10, 11 (2), AC Reg Sch 2)

(1) The Director-General may approve a charitable organisation as a private adoption agency.

(2) A charitable organisation approved as a private adoption agency is an authorised adoption service provider for the purposes of this Act.

(3) An application for approval as a private adoption agency is to be made in writing to the Director-General.

(4) The Director-General may, at the time the application is made or at any time before it is determined, require the applicant to provide such documents and information as the Director-General considers necessary for the purpose of ascertaining whether the organisation should be approved.

(1) The Director-General may give approval for a non-profit organisation:
(a) to make arrangements with a person or organisation prescribed by the regulations or a person or organisation included in a class of persons or organisations prescribed by the regulations in places outside Australia for the adoption in New South Wales of non-citizen children, and

(b) to provide such other adoption services related to the adoption of children from a place outside Australia as the Director-General specifies in the approval.

(2) An accredited intercountry adoption agency may:
(a) conduct information, preparation and education seminars,

(b) assess expressions of interest,

(c) arrange for assessment of applicants and preparation of the home study by an appropriate professional,

(d) provide counselling,

(e) prepare and collate required documentation

(f) forward adoption documentation to the overseas authority,

(g) liaise and negotiate with the overseas authority,

(h) receive allocation notifications,

(i) arrange for the preparation of post-placement reports by an appropriate professional,

(j) provide to the Director-General and the overseas authority post-placement reports,

(k) obtain an adoption order in New South Wales, where applicable.

(3) An application for approval as an accredited intercountry adoption agency is to be made in writing to the Director-General.

(1) The Director-General must refuse an application under this Part if it appears to the Director-General that the applicant is not suited to providing adoption services.

(2) Without limiting the matters that may be taken into account, the Director-General may take into account the qualifications, experience, character and number of persons taking part, or proposing to take part, in the management or control of the organisation, or engaged or proposed to be engaged, on behalf of the organisation, in the conduct of the activities of the organisation.

(1) The approval of a private adoption agency or an accredited intercountry adoption agency is subject:
(a) to such conditions (if any) as may be prescribed by this Act or the regulations, and

(b) to such other conditions as the Director-General may, from time to time, impose by notice in writing given to the principal officer of the private adoption agency or accredited intercountry adoption agency.

(2) Without limiting the conditions that may be prescribed or imposed, approval of an accredited intercountry adoption agency is subject to the condition that the agency must not be involved in fund raising, sponsorship or the sending of aid to any institution with which it has an intercountry adoption program.

The Director-General is to give notice personally or by post of the Director-General’s decision to the person specified in the application as the principal officer of the organisation.

(1) Before making an application under section 11 or 12, an organisation is to appoint a person resident in New South Wales to be its principal officer for the purposes of this Act in the event of the granting of the application.

(2) If the application is granted, the private adoption agency or accredited intercountry adoption agency must, within 7 days after the occurrence of a vacancy in the office of principal officer, appoint a person who is resident in New South Wales to fill the vacancy and give notice in writing to the Director-General of the appointment.

(3) An application under section 11 or 12 is to specify the name of the principal officer, and the address of the principal office in New South Wales, of the organisation making the application.

(4) For the purposes of subsection (2), the office of the principal officer is to be taken to have become vacant if the person holding the office ceases to be resident in New South Wales.

(5) Anything done by the principal officer of a private adoption agency or accredited intercountry adoption agency, or with his or her approval, is, for the purposes of this Act and any regulations relating to private adoption agencies or accredited intercountry adoption agencies but without prejudice to any personal liability of the principal officer, to be taken to be done by the private adoption agency or accredited intercountry adoption agency.

(1) The Director-General may, at any time, revoke or suspend the approval of a private adoption agency or an accredited intercountry adoption agency under this Part:
(a) at the request of the agency, or

(b) on the ground that the agency is no longer suited to providing adoption services, having regard to all relevant considerations, including the matters referred to in section 13, or

(c) on the ground that the agency has contravened a provision of this Act or the regulations that is applicable to it or any condition to which the approval is subject.

(2) If the Director-General has revoked or suspended the approval of a private adoption agency under this section, the Director-General must give notice in writing served personally or by post on the principal officer of the private adoption agency or accredited intercountry adoption agency of the revocation or suspension.

(1) An organisation may appeal to the Court against the decision of the Director-General:
(a) to refuse an application by the organisation under section 13, or

(b) to approve of such an application subject to conditions referred to in section 14, or

(c) to revoke or suspend the approval of the organisation as a private adoption agency or accredited intercountry adoption agency in accordance with section 17.

(2) Subject to any rules of court, an appeal under this section may, if the organisation is unincorporate, be brought and continued by one or more of the persons comprising the organisation as representing all persons comprising the organisation.

(3) On the hearing of an appeal under this section, the Court is to review the decision of the Director-General and may order:

(a) that the decision of the Director-General be confirmed, or

(b) that the organisation be approved as a private adoption agency or an accredited intercountry adoption agency subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Court thinks fit and specifies in its order.

Note. See also section 155.

(1) The Director-General is to cause to be published in the Gazette notice of the approval of any organisation as a private adoption agency or accredited intercountry adoption agency and of the revocation or suspension of any such approval.

(2) Every such notice is to specify the address of the principal office of the agency concerned and the full name of the principal officer of the agency.

The regulations may prescribe conditions and requirements to be observed, and facilities to be provided, by private adoption agencies and accredited intercountry adoption agencies, including conditions and requirements with respect to the qualifications and experience of persons acting for or on behalf of private adoption agencies and accredited intercountry adoption agencies.

Chapter 4 - The adoption process

Part 1 General

21 Proceedings

Proceedings for the making of adoption orders and other orders relating to the adoption of children under this Act are to be heard and determined by the Supreme Court.

Note. Child is defined in Part 1 of the Dictionary.

(1) Subject to this Act, the Court may make an order for the adoption of a child (an adoption order) solely in favour of one person or jointly in favour of two persons who are a couple within the meaning of this Act.

Note. The effect of the making of an adoption order is described in Part 10.

(2) The Court must not make an adoption order unless, at the time when the application for the order is filed:

(a) the child is present in the State, and

(b) the applicant, or if the application is a joint application, each of the applicants, resides, or is domiciled, in the State.

(3) For the purposes of this section, if the Court is satisfied that the child was present in, or that the applicant or each applicant was resident or domiciled in the State, on a day within 60 days before the day on which the application was filed, the Court may, in the absence of evidence to the contrary, presume that:
(a) the child was present in, or

(b) the applicant or each applicant was resident or domiciled in,

the State at the time when the application was filed.

(4) The Court has jurisdiction under this section to make an adoption order despite any rule of private international law to the contrary.

An adoption order may be made in relation to a child who:
(a) was less than 18 years of age on the date on which the application for the order was filed, or

(b) was 18 or more years of age on that date and, before attaining the age of 18 years, and for a period or periods of at least 5 years in total before the application was made:

(i) had been brought up, maintained and educated by the applicant or applicants for the order, or by the applicant and a deceased spouse of the applicant, as his or her or their child, or

(ii) had, as a ward within the meaning of the Children (Care and Protection) Act 1987, been in the care or custody of the applicant or applicants or of the applicant and a deceased spouse of the applicant.

Note. Spouse is defined in Part 1 of the Dictionary.

An adoption order may be made:
(a) even if the child has, whether before or after the commencement of this section and whether in the State or elsewhere, previously been adopted, and

(b) irrespective of the marital status of the child.

(1) An application for an adoption order may be made in accordance with this Act solely by or on behalf of one person or jointly by or on behalf of two persons who are a couple within the meaning of this Act.

(2) One person may, subject to this Act, adopt a child only if:

(a) the applicant is resident or domiciled in the State, and

(b) where the applicant is not a birth parent or relative of the child—the applicant is 21 or more years of age and 18 or more years older than the child or the Court considers that in the particular circumstances of the case it is desirable to make the order even though the applicant does not fulfil the age requirements, and

(c) the applicant is of good repute and a fit and proper person to fulfil the responsibilities of a parent, and

(d) section 26 (Adoption by one person) is complied with.

(3) A couple may, subject to this Act, adopt a child only if:
(a) each applicant is resident or domiciled in the State, and

(b) where neither of the applicants is a birth parent or relative of the child—each applicant is 21 or more years of age and 18 or more years older than the child or the Court considers that in the particular circumstances of the case it is desirable to make the order even though one or both of them do not fulfil the age requirements, and

(c) each applicant is of good repute and a fit and proper person to fulfil the responsibilities of a parent, and

(d) section 27 (Adoption by a couple) is complied with, and

(e) where one of the applicants is a step parent—section 29 (Adoption by a step parent) is complied with.

The Court is not to make an adoption order in favour of one person who is living with a spouse unless the person’s spouse consents in writing to the application for the adoption order.

Note. Spouse is defined in Part 1 of the Dictionary.

(1) The Court is not to make an adoption order in favour of a couple unless the couple have been living together for a continuous period of not less than 3 years immediately before the application for the adoption order.

Note. Couples is defined in Part 2 of the Dictionary.

(2) The Court may make an adoption order in favour of a couple jointly even if one of them is a birth parent, or they are the birth parents, of the child.

The Court is not to make an adoption order in favour of a relative of a child unless:
(a) specific consent to the adoption of the child by the relative has been given in accordance with this Act, and

(b) the child has established a relationship of at least 5 years’ duration with the relative.

Note. Specific consent is defined in section 41.

The Court is not to make an adoption order in favour of a step parent of a child unless:
(a) the step parent has lived with the child’s birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order, and

(b) consent to the adoption of the child by the step parent has been given in accordance with this Act by the appropriate persons, and

(c) the child has established a relationship of at least 5 years’ duration with the step parent.

The Court is not to make an adoption order in respect of a non-citizen child unless:
(a) the arrangements for adoption of the child have been made by the Director-General or an accredited intercountry adoption agency, and

(b) the Court is satisfied that the Cultural Heritage Placement Principle has been properly applied.

31 Placement of Aboriginal child

(1) The provisions of this section are enacted in recognition of the principle of Aboriginal self-management and self-determination and that adoption is a concept that is absent in customary Aboriginal child care arrangements.

(2) The Director-General or principal officer of the private adoption agency concerned in the adoption of a child is to make reasonable inquiries as to whether the child is an Aboriginal child.

(3) The Aboriginal Child Placement Principle is to be applied in placing a child that the Director-General or principal officer is satisfied is an Aboriginal child for adoption.

(4) The Aboriginal Child Placement Principle is as follows:

(a) The first preference for placement of an Aboriginal child is for the child to be placed for adoption with an applicant or applicants belonging to the Aboriginal community, or one of the communities, to which the birth parent or birth parents of the child belong.

(b) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with an applicant or applicants of another Aboriginal community.

(c) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a non-Aboriginal applicant or applicants.

(5) An Aboriginal child is not to be placed with any non-Aboriginal applicant unless the Court is satisfied that the applicant:
(a) has the capacity to assist the child to develop a healthy and positive cultural identity, and

(b) is willing to learn about, and teach the child about, the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and

(c) that the Aboriginal Child Placement Principle has been properly applied.

(6) The Director-General or principal officer of the private adoption agency concerned in the adoption of an Aboriginal child is to ensure that both an adoption worker who is an Aboriginal and a member of an Aboriginal agency are consulted about the placement of the child.

(1) The Director-General may approve an organisation as an Aboriginal agency for the purposes of this Act.

(2) The Director-General is not to approve an organisation as an Aboriginal agency unless the Director-General is satisfied that:

(a) the organisation is managed by Aboriginals, and

(b) its activities are carried on for the benefit of Aboriginals, and

(c) it has experience in child and family welfare matters.

(1) The Director-General or principal officer of the private adoption agency concerned in the adoption of a child is to make reasonable inquiries as to whether the child is a Torres Strait Islander child.

(2) The Torres Strait Islander Child Placement Principle is to be applied in placing a child that the Director-General or principal officer is satisfied is a Torres Strait Islander child for adoption.

(3) The Torres Strait Islander Child Placement Principle is as follows:

(a) The first preference for placement of a Torres Strait Islander child is for the child to be placed for adoption with an applicant or applicants within the child’s extended family.

(b) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with an applicant or applicants within the community, or one of the communities, to which the birth parent or birth parents of the child belongs.

(c) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with an applicant or applicants of another Torres Strait Islander community.

(d) If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), (b) or (c), the child is to be placed with a non-Torres Strait Islander applicant or applicants.

(4) A Torres Strait Islander child is not to be placed with any non-Torres Strait Islander applicant unless the Court is satisfied that the applicant
(a) has the capacity to assist the child to develop a healthy and positive cultural identity, and

(b) is willing to learn about, and teach the child about, the child’s Torres Strait Islander heritage and foster links with that heritage in the child’s upbringing.

(5) The Director-General or principal officer of the private adoption agency concerned in the adoption of a Torres Strait Islander child is to ensure that a member of a Torres Strait Island agency is consulted about the placement of the child.

(1) The Director-General may approve an organisation as a Torres Strait Islander agency for the purposes of this Act.

(2) The Director-General is not to approve an organisation as a Torres Strait Islander agency unless the Director-General is satisfied that:

(a) the organisation is managed by Torres Strait Islanders, and

(b) its activities are carried on for the benefit of Torres Strait Islanders, and

(c) it has experience in child and family welfare matters.

(1) The Cultural Heritage Placement Principle is to be applied in placing a child for adoption.

(2) The Cultural Heritage Placement Principle is as follows:

When a child in need of permanent care (other than an Aboriginal child or a Torres Strait Islander child) is to be placed outside the child’s birth family, the order for priority of placement should be:

(a) with an applicant or applicants of the same cultural heritage as the child,

(b) with an applicant or applicants of a similar or compatible cultural heritage as the child,

(c) with an applicant or applicants of a different cultural heritage from the child, who have demonstrated the following:

(i) the capacity to assist the child to develop a healthy and positive cultural identity,

(ii) a willingness to learn about and teach the child about the child’s cultural heritage,

(iii) a willingness to foster links with that heritage in the child’s upbringing,

(iv) the capacity to help the child if the child encounters racism or discrimination in school or the wider community.

Note. See sections 31 and 33 on the placement of an Aboriginal child or Torres Strait Islander child.

(3) A child (other than an Aboriginal child or a Torres Strait Islander child) is not to be placed with an applicant unless the Court is satisfied that the Cultural Heritage Placement Principle has been properly applied.

Note. This Part provides for the assessment of the suitability of prospective adoptive parents.

36 Application to adopt (cf AC Reg Part 3)

(1) One person, or two persons who are a couple, may submit to the Director-General or principal officer of a private adoption agency an expression of interest in:
(a) being approved as suitable to adopt a child (whether citizen or non-citizen), and

(b) being selected, in a manner determined by the Director-General or principal officer, to adopt a child.

(2) A submission of an expression of interest may be made only if the person or each person is resident or domiciled in the State.

(3) If a person is approved as suitable, and is selected, to adopt a child, the Director-General or principal officer may, in accordance with the regulations, invite the person to submit an application for an order to adopt the child.

(4) The regulations may make provision for or with respect to the assessment of the suitability of persons to adopt, and selection of persons to adopt, children under this Act.

(5) A submission of an expression of interest or application to adopt a child under this section is to be made in accordance with the regulations.

(1) The parties to an adoption may negotiate an adoption plan.

(2) If the parties negotiate an adoption plan, the plan must accompany the application for an adoption order.

(3) The Director-General or principal officer of the private adoption agency concerned is to notify any person who has the care of the child of the terms of the adoption plan.

Note. Parties to an adoption is defined in Part 1 of the Dictionary.

38 Consent of parents and guardians (cf AC Act s 26)

An adoption order is not to be made in respect of a child who is less than 18 years of age unless consent has been given:
(a) in the case of a child who has not been previously adopted:
(i) by each birth parent of the child, and

(ii) by any guardian of the child, or

(b) in the case of a child who has previously been adopted—by each adoptive parent or guardian of the child.

Consent is not required under section 38 if:
(a) the requirement for the consent has been dispensed with by order of the Court, or

(b) the child in respect of whom the adoption order is sought is 12 or more years of age and has consented to his or her adoption by the applicant or applicants, or

(c) the parent whose consent would otherwise be required by section 38 is an applicant, or

(d) the parent whose consent would otherwise be required by section 38 has as a result of a court order ceased to have parental responsibility in respect of the child.

Note. Parental responsibility is defined in Part 1 of the Dictionary.

An adoption order in relation to a child who is 12 or more but less than 18 years of age is not to be made unless:
(a) the child consents to his or her adoption by the applicant or applicants, or

(b) the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order even if the child has refused to consent to the adoption or is incapable of giving consent.

(1) For the purposes of this Act, consent to the adoption of a child may be general or specific.

(2) General consent to the adoption of a child is consent given by a parent or guardian to the adoption of the child by an applicant selected by the Director-General or principal officer of a private adoption agency.

(3) Specific consent to the adoption of a child is consent given:

(a) by a parent or guardian to the adoption of a child by:
(i) a specified relative of the child, or

(ii) 2 specified persons one of whom is a parent or relative of the child, or

(iii) a specified step parent of the child, or

(iv) specified foster parents or carers who have had care of the child for not less than 2 years, or

(b) by a child who is 12 or more but less than 18 years of age to his or her adoption by a specified applicant or applicants.

(1) Consent to a child’s adoption is not effective unless:
(a) the consent is given at least 30 days after the child is born, and

(b) the consent is given at least 14 days after each person whose consent is required by this Act has received from the Director-General or principal officer of the private adoption agency concerned a copy of the consent and the mandatory written information, and

(c) each person whose consent is required by this Act has received independent counselling in accordance with this section, and

(d) the consent is in writing and is an instrument that is substantially in the form prescribed by the regulations, and

(e) a separate instrument of consent is signed by each person whose consent is required by this Act, and

(f) the consent is witnessed in the manner prescribed by the regulations, and

(g) the consent is accompanied by a report prepared by an independent counsellor that complies with subsection (3), and

(h) if the consent is consent to the adoption of an Aboriginal child or Torres Strait Islander child, sections 43 and 44, respectively, are complied with.

(2) For the purposes of this section, a person whose consent is required has received independent counselling if a person of a class or description prescribed by the regulations (an independent counsellor):
(a) has accurately explained to the person, in a way that the independent counsellor thinks will be understood by the person, the legal effect of signing the instrument of consent and the procedure for revoking consent, and

(b) has counselled the person on the emotional effects of the adoption and alternatives (including, in the case of birth parents, the feasibility of keeping the child) to adoption.

(3) For the purposes of this section, the report given by an independent counsellor is a report stating that:
(a) the person giving the consent has received independent counselling, and

(b) the person giving the report is not aware of any mental, emotional or physical unfitness of that person to provide consent, and

(c) the person giving the report is of the opinion that the person giving the consent understands the effect of signing the instrument of consent.

(4) Consent given by a person (other than the child) is not effective if it appears to the Court that:
(a) the consent was not given in accordance with this Act, or

(b) the consent was obtained by fraud, duress or other improper means, or

(c) the instrument of consent has been altered in a material particular without authority, or

(d) the person giving or purporting to give the consent was not, at the time the instrument of consent was signed, in a fit condition to give the consent.

(5) Consent is not effective if it is revoked during the revocation period.

(6) Consent to a child’s adoption given in another State or a Territory under the law of the other State or Territory is an effective consent for the purposes of this Act.

(7) In this section:

mandatory written information means written information on the following:

(a) the alternatives to adoption,

(b) the community supports available whether or not the child is relinquished for adoption,

(c) the legal process of adoption, including the consent required, effect and way of revoking consent, the selection procedure, adoption plans, the role of the Court and review and appeals procedure and the legal consequences of each stage in the process,

(d) the rights and responsibilities of the parties to an adoption, including access to information about, or contact with, the other parties to the adoption,

(e) any other matter prescribed by the regulations.

(1) Consent to the adoption of an Aboriginal child is not effective unless:
(a) the consent is given after the person giving consent has received adoption counselling arranged by the Director-General or the principal officer of the private adoption agency concerned from an appropriate Aboriginal agency, or

(b) if the person has been offered, but has refused, adoption counselling:

(i) the person has been provided with information in writing regarding matters that would have been raised by the counsellor and at least 7 days have passed, and

(ii) the person signs an acknowledgment that he or she has read and understood the material provided.

(2) In this section:

adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Aboriginal customary law.

(1) Consent to the adoption of a Torres Strait Islander child is not effective unless:
(a) the consent is given after the person giving consent has received adoption counselling arranged by the Director-General or the principal officer of the private adoption agency concerned from an appropriate Torres Strait Islander agency, or

(b) if the person has been offered, but has refused, adoption counselling:

(i) the person has been provided with information in writing regarding matters that would have been raised by the counsellor and at least 7 days have passed, and

(ii) the person signs an acknowledgment that he or she has read and understood the material provided.

(2) In this section:

adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Torres Strait Islander customary law.

(1) This section applies when consent to the adoption of a child has been given by the child’s birth mother or guardian but an adoption hearing has not been held and the Director-General or principal officer of a private adoption agency knows, or after reasonable inquiry ascertains, the name and address of the person whom the Director-General or principal officer reasonably believes to be the birth father of the child.

Note. A person may be presumed to be the father of a child under the Status of Children Act 1996 or may be registered as the father under the Births, Deaths and Marriages Registration Act 1995.

(2) The Director-General or principal officer is to notify the birth father personally or by post that consent has been given to the adoption of the child and advise him of his parental responsibilities in relation to the child.

(1) The following persons may apply to the Court for an order dispensing with the requirement for consent of a person (other than the child) to the child’s adoption:
(a) the Director-General,

(b) the principal officer of a private adoption agency,

(c) if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person), the applicant or applicants,

(d) with the consent of the Director-General, the applicant or applicants for the adoption of the child.

(2) The Court may make an order dispensing with the requirement for consent of a person if the Court is satisfied that:
(a) the person cannot, after reasonable inquiry, be found or identified, or

(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c) the Court is satisfied that it is in the best interests of the child to override the wishes of the parent or guardian.

(3) The Court may, on its own initiative or on application by any person, make an order dispensing with the requirement for consent of a child who is 12 or more but less than 18 years of age to his or her adoption if the Court considers the circumstances justify the making of such an order. However, the Court must not dispense with the requirement for consent of a child who is 18 or more years of age in any circumstances.

(4) The Court must not dispense with the requirement for consent unless satisfied that to do so is in the best interests of the child.

(5) An order dispensing with the requirement for consent may be made before an application for an adoption order has been made in respect of the child or in conjunction with an adoption order in respect of the child but must not be made on the application of a person referred to in subsection (1) (c) except in conjunction with an adoption order in favour of that person or of that person and another person.

(6) Any order dispensing with the requirement for consent made before an application for an adoption order has been made in respect of the child has effect for the purposes of any application for an adoption order that is subsequently made in respect of the child.

(7) An order dispensing with the requirement for consent made before an application for an adoption order has been made may be revoked by the Court at any time before the making of an adoption order in respect of the child on the application of:

(a) the Director-General or of the person whose consent was dispensed with, or

(b) if the order was made on the application of the principal officer of a private adoption agency—the principal officer.

(8) The Court must not make an order dispensing with the requirement for consent unless notice of the application for the order has been given or sent by post to the person whose consent is sought to be dispensed with at least 14 days before the application for the order is made to the Court unless:
(a) the person cannot, after reasonable inquiry, be found or identified, or

(b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent and his or her physical or mental health would, in the opinion of the Court, be detrimentally affected if he or she were to receive notice of the application, or

(c) the Court considers that in the particular circumstances of the case it is desirable to make an order without notice of the application having been given or sent.

(9) The Court must not revoke any order dispensing with the requirement for consent unless not less than 14 days’ notice of the application has been given:
(a) to the Director-General (if the Director-General is not applying for the revocation), and

(b) if the order was made on the application of the principal officer of a private adoption agency and he or she is not applying for the revocation, to the principal officer.

(1) Consent to the adoption of a child may be revoked by notice in writing given to the nominated officer before the expiration of the period of 30 days after the date on which the instrument of consent was signed (the revocation period).

Note. Nominated officer is defined in Part 1 of the Dictionary.

(2) Consent to the adoption of a child may not be revoked after the expiration of the revocation period.

(3) As soon as practicable after receiving a notice under this section, the nominated officer is to give notice of the revocation:

(a) to the Director-General, and

(b) if it appears to the nominated officer that consent was given to the principal officer of a private adoption agency—to the principal officer.

(4) If the Director-General ceases to be the guardian of a child under section 53 any consent to the adoption of the child given for the purposes of this Act is taken to be revoked and the Director-General is to give notice to:
(a) the nominated officer, and

(b) if the consent was given to the principal officer of a private adoption agency—the principal officer.

The Director-General or, if the consent was given to the principal officer of a private adoption agency, the principal officer, is to give notice 7 days before the revocation period expires to the person consenting to the adoption that on expiration of the revocation period the consent will no longer be able to be revoked and that an adoption order may be made.

Note. This Part provides for the guardianship of children between the period when consent to adoption is given and an adoption order made. Guardianship is given to the Director-General who has power to decide, for example, whether the child should remain with a birth parent or be placed with temporary foster parents or the proposed adoptive parents in this period.

49 Guardianship of citizen child awaiting adoption (cf AC Act s 34 except (3) and (4))

(1) Guardianship following general consent or dispensing of required consent

The Director-General is the guardian of a child (for purposes other than the purposes of section 38) to the exclusion of all other persons if:

(a) general consent to the adoption of the child has been given by every person whose consent to the adoption of the child is required under this Act, or

(b) the requirement for consent has been dispensed with by the Court.

(2) Subsection (1) does not apply to a child unless and until the Director-General has received written notice that general consent to the adoption of the child has been given.

(3) Within 21 days after the receipt by the Director-General of a notice referred to in subsection (2), the Director-General may, by instrument in writing, decline to be the guardian of the child.

(4) If the Director-General executes an instrument in which the Director-General declines to be guardian of a child, the Director-General must, as soon as practicable, cause a copy of the instrument to be given or sent by post to each person by whom consent to the adoption of the child was given.

(5) Guardianship following renunciation of guardianship by officer of another State or Territory

If:

(a) an officer of another State or of a Territory whose functions correspond to those of the Director-General under this Act has become the guardian of a child under a law of that State or Territory corresponding to this section, and

(b) the consent to the adoption of the child held by that officer cannot be lawfully revoked by the person or persons by whom it was given, and

(c) the Director-General is satisfied that the child is present in New South Wales, and

(d) that officer has requested the Director-General to accept, and the Director-General has, by an instrument in writing forwarded to that officer, agreed to accept, guardianship of the child, and

(e) under that law, that officer ceases, on execution by the officer of an instrument renouncing his or her guardianship of the child, to be the guardian of the child,

the Director-General is, on the execution of that instrument, the guardian of the child (for purposes other than the purposes of section 38) to the exclusion of all other persons.

(6) Subsections (1) and (5) do not apply to a child who is a ward within the meaning of the Children (Care and Protection) Act 1987.

If:
(a) the Director-General has become the guardian of a child under section 49 or 52, and

(b) consent to the adoption of the child cannot be lawfully revoked by the person or persons by whom it was given, and

(c) the Director-General is satisfied that the child is present in another State or Territory, and

(d) the Director-General has requested an officer of that State or Territory whose functions correspond to those of the Director-General under this Act to accept, and that officer has, by an instrument in writing forwarded to the Director-General, agreed to accept, guardianship of the child, and

(e) under the law of that other State or Territory, that officer will, on execution by the Director-General of an instrument in writing renouncing the Director-General’s guardianship of the child, become the guardian of the child,

the Director-General may execute an instrument in writing renouncing guardianship of the child and, where the Director-General does so, must as soon as practicable forward the instrument to that officer.

If a non-citizen child enters or has entered the State from another State or a Territory or from an overseas country and the Immigration (Guardianship of Children) Act 1946 of the Commonwealth no longer applies in relation to the non-citizen child:
(a) the guardianship of the child is to be placed with the Director-General, and

(b) section 49 is, to the extent necessary, to apply to that child as if he or she were born in a State or Territory of the Commonwealth,

for so long as the State is the normal place of residence of the child.

Note. The Minister for Immigration of the Commonwealth is the guardian of a child arriving in Australia until the making of the adoption order under section 6 of the Immigration (Guardianship of Children) Act 1946 of the Commonwealth. The functions of guardianship are presently delegated to the Director-General under section 5 of that Act. However, if New South Wales becomes a declared State, New South Wales will be able to legislate for guardianship of children entering Australia for adoption under section 4AAB of that Act.

(1) If the Director-General has become the guardian of a child under this Part and has not, within a period of one year after becoming the guardian, ceased to be the guardian, the Director-General is to make a report to the Court concerning the child.

(2) The Court is to make such order concerning the care and control of the child as it thinks fit.

(3) Without limiting the generality of subsection (2), an order under that subsection may, if the child is less than 18 years of age:

(a) declare the child to be a ward under the Children (Care and Protection) Act 1987, or

(b) order that the child remain under the guardianship of the Director-General for a further period of one year.

(1) If the Director-General is the guardian of a child under section 49 or 52, the Director-General is to remain the guardian of the child until:
(a) an adoption order is made in respect of the child, or

(b) in the case of any consent so given, the instrument of consent is lawfully revoked, or

(c) the Court, by order, makes other provision for the guardianship of the child, or

(d) the Director-General places the child:

(i) in the care of the parents, or one of the parents, of the child, or

(ii) in the care of a guardian of the child, under subsection (2), or

(e) the Director-General executes an instrument referred to in section 49 (3), or

(f) the Director-General, under section 50, executes an instrument in writing renouncing guardianship of the child, or

(g) the child becomes a ward within the meaning of the Children (Care and Protection) Act 1987.

(2) The Director-General may, on such terms and conditions as the Director-General thinks fit, place any child of whom the Director-General is guardian under section 49 or 52 in the care of any suitable person who has agreed to have the child in his or her care.

(3) The fact that the Director-General is the guardian of a child under this section does not affect the liability of any person to provide adequate means of support for the child.

Note. This Part enables a preliminary hearing to be held before a full adoption hearing. At such a hearing the Court may examine certain aspects of an adoption plan or other matters. Matters that might be examined are, for example, that a child may have indicated he or she does not want to be placed with the proposed family or that continued access of relatives significant to an older child has not been provided for.

54 Preliminary hearing

(1) The Court may, on its own motion or on the application of any interested person, hold a preliminary hearing in relation to any matter concerning or arising out of an application to adopt a child that the Court considers should be considered before the adoption hearing on the application.

(2) A preliminary hearing may be held at any time after the giving of consent to the adoption (or its dispensation) and before the making of an adoption order.

(3) Unless the Court dispenses with notice, notice of the preliminary hearing is to be given to the child, the prospective adoptive parents and any other person to whom the Court directs the notice be given.

(4) Rules of court may be made for and with respect to preliminary hearings.

(5) The Court may give such directions and make any order it thinks fit at a preliminary hearing.

(6) Without limiting subsection (5), the Court may make an order as to the care and custody of the child (including an interim order) and any order that it may make at an adoption hearing.

55 Making of interim orders (cf AC Act s 41)

(1) On application to the Court for an order for the adoption of a child, the Court may postpone the determination of the application and make an interim order for the custody of the child in favour of the applicant.

(2) On application to the Court by the Director-General or the principal officer of a private adoption agency, the Court may make an interim order for the custody of a child in favour of the applicant.

(3) An interim order is subject to such terms and conditions relating to the maintenance, education and welfare of the child as the Court thinks fit.

(4) The Court must not make an interim order in respect of a child in favour of any person unless the Court could lawfully make an order for the adoption of that child by that person.

(5) While an interim order remains in force in respect of a child, the persons in whose favour the order is made are entitled to the care and custody of the child.

(1) Subject to this Part, an interim order remains in force for such period, not exceeding one year, as the Court specifies in the order and for such further periods, if any, as the Court may from time to time order.

(2) An interim order must not be in force for periods exceeding in total 2 years.

(1) The Court may, at any time, make an order discharging an interim order made under this Part.

(2) If the Court discharges an interim order the Court may make any order for the care and custody of the child that it thinks fit, including, if the child is less than 18 years of age, an order declaring the child to be a ward under the Children (Care and Protection) Act 1987.

(3) An interim order in respect of a child ceases to have effect on the making of an order for the adoption of that child, whether made in New South Wales or in another State or a Territory.

58 Application to be consented to by Director-General (cf AC Act s 18 (2) and (3))

(1) The Court is not to make an adoption order unless the application is made:
(a) by the applicant with the consent of the Director-General or on behalf of the applicant by the Director-General or by the principal officer of a private adoption agency, or

(b) by the birth mother or birth father of the child, or

(c) by a child who is 18 or more years of age for his or her adoption.

(2) An application for an adoption order by an applicant may be made on behalf of the applicant by the Director-General.

(1) An adoption order is not to be made in relation to a child unless the Court is satisfied:
(a) that the best interests of the child will be promoted by the adoption, and

(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and

Note. Sections 152–154 contain provisions about ascertainment of the wishes of a child.

(c) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent should be dispensed with, and

(d) that the Cultural Heritage Placement Principle has been properly applied, and

(e) if the child is an Aboriginal child—that the Aboriginal Child Placement Principle has been properly applied, and

(f) if the child is a Torres Strait Islander child—that the Torres Strait Islander Child Placement Principle has been properly applied.

(2) In determining whether to make an adoption order, the Court is to take into account any adoption plan negotiated by the parties to the adoption under section 37.

(3) The Court must not make an adoption order if the parties to the adoption have negotiated an adoption plan unless satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(4) The Court is not to make an adoption order unless it considers that the making of the order would make better provision for the best interests of the child than parenting orders under the Family Law Act 1975 of the Commonwealth or any other order for the care of the child.

Note. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt.

(1) The Court must not make an order for the adoption of a child who is less than 18 years of age unless:
(a) the Director-General has made a report in writing to the Court concerning the proposed adoption, and

(b) if the application for the order is made on behalf of the applicant by the principal officer of a private adoption agency, that principal officer has also made such a report.

(2) The Court may dispense with the requirement for the principal officer of a private adoption agency:
(a) to make a report in respect of all applications made on behalf of applicants by that principal officer if the Court is satisfied that the standard of applications made by that principal officer justifies the dispensation, or

(b) to make a report in respect of a particular application made on behalf of an applicant by that principal officer if the Court is satisfied that the particulars of that application and the report of that principal officer justify the dispensation.

(3) The Director-General may make a report to the Court even if the Court has dispensed with the requirement to make the report.

(4) The Court must not dispense with the requirement to make a report if an applicant is a foster parent, relative or step parent of the child.

(5) The Court may require the Director-General to make a report in respect of an application made by a person other than the Director-General within a period of 6 months after the date of the making of the application or such other period as the Court may, having regard to the circumstances of the case, specify.

(6) If the regulations provide for the keeping by the Director-General of a register of persons approved by the Director-General or by the principal officer of a private adoption agency as fit and proper persons to adopt children, the Court may refuse to make an adoption order in relation to a child who is less than 18 years of age on the date on which the application was filed:

(a) if, in the case of a sole applicant, the applicant’s name is not included in that register or, in the case of joint applicants, neither of their names is included in that register, or

(b) if the name of the applicant or of either applicant or the names of both of the applicants, is or are included in that register—if the Court is satisfied that some other person whose name is included in that register is entitled under the regulations to be selected by the Director-General or by the principal officer, to be an applicant for an adoption order in priority to the applicant or applicants for the adoption order and that other person is suitable to be an adoptive parent of that child.

(7) Subsection (5) does not apply if:
(a) the applicant, or either of the applicants, for the adoption order is a step parent or foster parent of the child or is a relative of the child in whose favour a consent to adopt the child has been given, or

(b) the applicant, or either of the applicants, is a relative of the child and the appropriate person, or every appropriate person whose consent to the adoption would, but for the fact that the person is deceased, be required under section 38, has died without giving the person’s consent referred to in that section.

61 Notice of application for adoption orders (cf AC Act s 22)

(1) The Court must not make an adoption order unless at least 14 days’ notice of the application for the order (containing the particulars (if any) prescribed by the regulations) has been given or sent by post:
(a) to any person whose consent to the adoption of the child concerned:
(i) is required under this Act and has not been dispensed with by an order made by the Court, and

(ii) has not been given, and

(b) to any person (not being a person whose consent is so required) with whom the child resides or who has the care or custody of the child.
(2) Except as the Court may otherwise determine, nothing in subsection (1) requires a notice referred to in that subsection to be given or sent to a person referred to in subsection (1) (b) if that person is:
(a) an applicant for the adoption order, or

(b) a person with whom the child resides only as a patient or inmate of a hospital of which that person is in charge or a person who has the care or custody of the child only as the person in charge of a hospital.

(3) The notice must not specify the name of, or identify, any applicant.

(4) The Court may dispense with the giving of the notice.

(5) If it appears to the Court to be necessary in the interests of justice to do so, the Court may direct that notice of an application for an adoption order be given to any person.

(1) The Court may permit such persons as the Court thinks fit to appear in or be joined as parties to the proceedings for an adoption order.

(2) The Court must, on application by a person who is the birth father of a child and who has not been given a notice referred to in section 45 (Birth father to be given opportunity to consent), permit the person to appear in, or join the person as a party to, the proceedings for an adoption order in respect of the child for the purpose of opposing the application for the order.

Note. The Court may require the attendance of any party. See section 148.

If the Court refuses an application for an adoption order, the Court may make such order for the care and custody of the child concerned as it thinks fit, including, if the child is less than 18 years of age, an order declaring the child to be a ward under the Children (Care and Protection) Act 1987.

(1) The Director-General, the Attorney-General or any other interested person may apply to the Court for an order discharging an adoption order.

(2) The Court may make an order discharging an adoption order if it is satisfied that:

(a) the adoption order, or any consent to adoption, was obtained by fraud, duress or other improper means, or

(b) there is some other exceptional reason why the adoption order should be discharged.

(3) The Court must not make an order discharging an adoption order if it appears to the Court that the making of the order would be prejudicial to the best interests of the child.

(4) If the Court makes an order discharging an adoption order that was made in reliance on a general consent that consent remains effective for the purpose of a further application for an adoption order in respect of the same child, unless the Court orders otherwise.

(5) If the Court makes an order discharging an adoption order, it may, at the same time or subsequently, make such consequential or ancillary orders as it thinks necessary in the interests of justice or to promote the best interests of the child, including orders relating to the following

(a) the name of the child,

(b) the ownership of property,

(c) the custody or guardianship of the child,

(d) the domicile of the child.

(6) On the making of an order discharging an adoption order, but subject to any order made under subsection (5) and section 66 (4), the rights, privileges, duties, liabilities and relationships under the law of New South Wales of the child and of all other persons are to be the same as if the adoption order had not been made, but without prejudice to:
(a) anything lawfully done, or

(b) the consequences of anything unlawfully done, or

(c) any proprietary right or interest that became vested in any person,

while the adoption order was in force.

The Court may require the Director-General to investigate the circumstances of any application to discharge an order under section 64 and report to it.

Note. This Part describes the effect of the adoption order. It recognises the change in the legal status of the child and the child’s transfer from one family to another but also recognises the need for relationships with birth parents to be maintained.

66 General effect of adoption orders (cf AC Act s 35 (1) and (4))

(1) An adoption order made by the Court under this Act gives parental responsibility for a child to the person or persons named in the order (the adoptive parent or adoptive parents).

(2) An adoption order may not be made before the expiration of the revocation period.

Note. Revocation period is defined in Part 1 of the Dictionary.

(3) For the purposes of the law of New South Wales, if an adoption order is made:

(a) the adopted child is to have the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents,

(b) the adoptive parent or adoptive parents are to have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents,

(c) the adopted child is to be regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are to be regarded in law as the parent or parents of the adopted child,

(d) the adopted child is to cease to be regarded in law as the child of the birth parents and the birth parents are to cease to be regarded in law as the parents of the adopted child.

(4) Despite subsection (3) (d), an adopted child does not cease to be regarded in law as the child of a birth parent or adoptive parent, and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, if an adoption order is made in respect of a step parent with whom the birth parent or adoptive parent is living.

(5) Despite subsection (1), for the purposes of any law of New South Wales relating to a sexual offence, being a law for the purposes of which the relationship between persons is relevant, an adoption order, or the discharge of an adoption order, does not cause the cessation of any relationship that would have existed if the adoption order or the discharging order had not been made, and any such relationship is to be taken to exist in addition to any relationship that exists by virtue of the application of that subsection in relation to that adoption order or by virtue of the discharge of that adoption order.

On the making of an adoption order:
(a) the existing guardianship of the adopted child (including the Minister’s guardianship of the child under section 90 of the Children (Care and Protection) Act 1987) ceases to have effect, and

(b) any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect.

(1) Section 66 does not have effect so as to deprive an adopted child of any vested or contingent proprietary right acquired by the child before the making of the adoption order.

(2) If:

(a) one of the birth parents of a child, or one of 2 adoptive parents of an adopted child, has died, and

(b) the surviving parent remarries or, if not previously married, marries, and

(c) the child is adopted by the surviving parent and that parent’s spouse,

any property of any collateral or lineal next-of-kin of the deceased parent who dies intestate is, despite section 66, to devolve in all respects as if the child had not been so adopted.

Note. Spouse is defined in Part 1 of the Dictionary.

(1) Subject to section 68 (1), section 66 has effect in relation to a disposition of property, whether by will or otherwise, and whether made before or after the commencement of this section, and to a devolution of property in respect of which a person dies intestate after the commencement of this Act. However, those provisions do not affect a disposition of property:
(a) by a person who, or by persons any of whom, died before the commencement of this section, and

(b) that has taken effect in possession before the commencement of this section.

(2) Section 66 does not apply in relation to an agreement or instrument (not being a disposition of property) made or executed before the commencement of this section.

(3) If:

(a) before the commencement of this section, a person made, by an instrument other than a will, a disposition of property, and

(b) the disposition had not taken effect in possession before the commencement of this section, and

(c) it did not appear from the instrument that it was the intention of that person to include adopted children as objects of the disposition,

that person may, even though the instrument could not, apart from this subsection, be revoked or varied, by another instrument other than a will, vary the firstmentioned instrument to exclude adopted children (whether adopted under this Act or otherwise) from participation in any right, benefit or privilege under the instrument.

(4) In relation to a disposition of property by a person who, or by persons any of whom, died before the commencement of this section, and in relation to a devolution of property in respect of which a person died intestate before that commencement, an adoption order made under this Act has the same effect as if the former Acts had continued in force and the adoption order had been made under those Acts.

(5) Nothing in section 66 or in this section affects the operation of any provision in a will or other instrument (whether made or coming into operation before or after the commencement of this section) distinguishing between adopted children and children other than adopted children.

For the purposes of the application of the Wills, Probate and Administration Act 1898 to the devolution of any property in respect of which a person dies intestate and for the purposes of the construction of any disposition of any property, an adopted child is to be taken to be related to any other person, being the child or adopted child of his or her adoptive parent or parents:
(a) if he or she was adopted by 2 spouses jointly, and that other person is the child or adopted child of both of them, as brother or sister of the whole blood, and

(b) in any other case, as brother or sister of the half blood.

Note. Spouse is defined in Part 1 of the Dictionary.

(1) Subject to this section, on the making of an adoption order:
(a) an adopted child who is 18 or more years old is (unless the child decides otherwise) to have as his or her surname and given name or names the surname and given name or names the child had used immediately before the order was made, and

(b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.

(2) Before changing the surname or given name or names of a child the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.

(3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname.

(4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless:

(a) the child has, in a consent given under section 40, consented to the change, or

(b) if the child is less than the age of 18 years, the Court is satisfied that there are special reasons, related to the best interests of the child, why the change should be made even though the child has refused to consent to the change or his or her consent has not been sought.

(5) The Court is not to approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless there are special reasons, related to the best interests of the child, to do so.

(6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, in accordance with the law of New South Wales.

(1) If, before conveying, transferring or distributing any property among the persons appearing to be entitled to the property, a trustee or personal representative gives the notice referred to in section 60 of the Trustee Act 1925 or section 92 of the Wills, Probate and Administration Act 1898 and the time fixed by the notice has expired, the trustee or personal representative is not to be liable to any person:
(a) who claims directly or indirectly an interest in the property by virtue of an adoption, and

(b) of whose claim the trustee or personal representative does not have notice at the time of the conveyance, transfer or distribution.

(2) Nothing in this section prejudices the right of a person to follow property into the hands of a person, other than a bona fide purchaser for value, who has received it.

Chapter 5 - Recognition of adoptions

Note. This Chapter provides for the recognition of adoptions in other States and Territories. It also provides two ways of recognising adoptions in countries outside Australia. If the adoptive parent or parents have been resident for 12 months or more or domiciled in a country that is not a “designated country”, section 76 applies. If the country is a “designated country”, section 78 applies and recognition is (subject to certain conditions) automatic.

Part 1 Definition

73 Definition (cf AC Act s 44)

In this Chapter, country includes a part of a country.

74 Recognition of Australian adoptions (cf AC Act s 45)

An order for the adoption of a person that was made in another State or Territory (whether before or after the commencement of this section) that:
(a) is in accordance with, and

(b) has not been rescinded under,

a law of that State or Territory is to be treated as having the same effect as an adoption order made under this Act.

75 Application of Part

Except as provided by this Part, the adoption of a person (whether before or after the commencement of this section) in a country outside Australia does not have effect for the purposes of the law of New South Wales.

(1) This section applies to an order for the adoption of a person that was made (whether before or after the commencement of this section) in a country other than Australia:
(a) that is not a designated country, or

(b) if, at the time at which the legal steps that resulted in the adoption were commenced, the adoptive parent:

(i) had been resident in that country for 12 months or more, or

(ii) was domiciled in that country.

(2) An order for the adoption of a person to which this section applies is to have the same effect as an adoption order made under this Act if:
(a) the adoption is in accordance with and has not been rescinded under the law of that country, and

(b) in consequence of the adoption, the adoptive parent, under the law of that country, has a right superior to that of the adopted person’s birth parents in relation to the custody of the adopted person, and

(c) under the law of that country the adopter or adopters were, by virtue of the adoption, placed generally in relation to the adopted person in the position of a parent or parents.

(3) Despite subsection (2), a court (including a court dealing with an application under section 77) may refuse to recognise an adoption under this section if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice.

(4) In any proceedings before a court (including proceedings under section 77), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a non-designated country complies with subsection (3).

(5) Nothing in this section affects any right that was acquired by, or became vested in, a person before the commencement of this section.

(1) Any of the parties to an adoption under an order made outside Australia may apply to the Court for a declaration that the order complies with section 76.

(2) On an application under this section, the Court may:

(a) direct that notice of the application be given to such persons (including the Attorney General) as the Court thinks fit, or

(b) direct that a person be made a party to the application, or

(c) permit a person having an interest in the matter to intervene in, and become a party to, the proceedings.

(3) If the Court makes a declaration under this section, it may include in the declaration such particulars in relation to the adoption, the adopted child and the adoptive parent or parents as the Court finds to be established.

(4) For the purposes of the laws of New South Wales, a declaration under this section binds the Crown in right of New South Wales, whether or not notice was given to the Attorney General, and any person who was:

(a) a party to the proceedings for the declaration or a person claiming through such a party, or

(b) a person to whom notice of the application for the declaration was given or a person claiming through such a person,

but does not affect:
(c) the rights of any other person, or

(d) an earlier judgment, order or decree of a court or other body of competent jurisdiction.

(5) In proceedings in a court of New South Wales, the production of a copy of a declaration under this section, certified by the nominated officer to be a true copy:
(a) if the proceedings relate to a person referred to in paragraph (a) or (b) of subsection (4), is conclusive evidence, and

(b) if the proceedings relate to the rights of any other person, is evidence,

that an adoption was effected in accordance with the particulars contained in the declaration and that it complies with section 76.

(1) In this section:

Hague Convention means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

(2) The Director-General may, by order published in the Gazette, recognise a country outside Australia as a designated country for the purposes of this Act if the Director-General is satisfied that the country:

(a) has ratified the Hague Convention and that adoption services in that country are provided substantially in accordance with the Convention, or

(b) has not ratified the Hague Convention but that adoption services in that country are provided substantially in accordance with the Convention.

(3) An order for the adoption of a person that was made in a designated country (whether before or after the commencement of this section) and has not been rescinded under the law of that country is to be treated as having the same effect as an order for adoption made under this Act unless the adoption is manifestly contrary to the principles and practices relating to adoption set out in this Act.

(4) In any proceedings before a court it is to be presumed, unless the contrary appears from the evidence, that, having regard to whether it would have complied with the law of New South Wales and whether it would have been contrary to the best interests of the child, an order for the adoption of a person made in a designated country should be treated as having the same effect as an adoption under this Act.

Chapter 6 - Adoption information

Part 1 Preliminary

79 Objects of Chapter

The principal object of this Chapter is to incorporate (without substantive change) the provisions of the Adoption Information Act 1990 so as to retain those provisions that:
(a) give adult adopted persons access to information concerning their origins, and

(b) give the birth parents and adoptive parents of adult adopted persons access to information concerning their children, and

(c) preserve controls adoptive parents have over the access of adopted children to information concerning their origins while recognising the paramount interests of adopted children, and

(d) give the relatives of adopted persons, birth parents and other persons access to information concerning adopted persons’ origins in special circumstances, and

(e) protect the privacy of adopted persons and birth parents by establishing a system of vetoes against contact with persons identified through access to information concerning persons adopted before the date of assent to the Adoption Information Act 1990, and

(f) limit the disclosure of information concerning the personal affairs of persons that might unduly intrude on their privacy, and

(g) make provision for a Reunion and Information Register to facilitate reunions between adopted persons, birth parents and other persons (if desired by the persons concerned) and to facilitate exchange of messages between persons concerned in or affected by an adoption.

(1) For the purposes of this Act, prescribed information is information of a kind prescribed by the regulations.

(2) Different kinds of information may be prescribed:

(a) for different classes of persons to whom the information relates, or

(b) for different classes of persons to whom the information is supplied under this Act.

(3) Subsection (2) does not limit the different kinds of information that may be prescribed.

81 Adopted person’s rights (cf AI Act s 6)

(1) An adopted person is entitled to receive (subject to this Act):
(a) the person’s original birth certificate, and

(b) any prescribed information relating to the person’s birth parents held by an information source, and

(c) any prescribed information relating to an adopted brother or sister of the person held by an information source.

(2) An adopted person who is less than 18 years old is not entitled to receive his or her original birth certificate or prescribed information except with the consent of:
(a) his or her surviving adoptive parents and surviving birth parents (as shown on the original birth certificate), or

(b) the Director-General if there are no surviving adoptive parents or birth parents (as so shown) or if they cannot be found or if there is, in the opinion of the Director-General, any other sufficient reason to dispense with their consent.

(3) An adopted person is not entitled to receive any prescribed information held by an information source unless:
(a) the adopted person produces to the information source his or her original birth certificate (being a certificate supplied under this Part), or

(b) his or her original birth certificate is held by that information source and will be supplied together with the prescribed information.

(1) An adoptive parent of an adopted person is entitled to receive (subject to this Act):
(a) the adopted person’s original birth certificate, and

(b) any prescribed information relating to the adopted person held by an information source.

(2) The adoptive parent is not entitled to receive the original birth certificate unless the adopted person is 18 or more years old and consents to the adoptive parent receiving it.

(1) A birth parent of an adopted person who is 18 or more years old is entitled to receive (subject to this Act):
(a) the amended birth certificate of the adopted person if a memorandum of the adoption of the person is registered under the Births, Deaths and Marriages Registration Act 1995, and

(b) any prescribed information relating to the adopted person or the adoptive parent or parents held by an information source.

(2) A man who claims to be the birth parent of an adopted person is entitled to receive an amended birth certificate or prescribed information if:
(a) he is shown on the adopted person’s original birth certificate as the person’s father, or

(b) he is a person whom the Director-General, Registrar or other information source is entitled to presume, under any law (including a law of another State or Territory or the Commonwealth), to be the person’s father.

(3) A birth parent is not entitled to receive any prescribed information held by an information source unless the birth parent produces to the information source the amended birth certificate of the adopted person (being a certificate supplied under this Part) except as provided by subsection (4).

(4) A designated person may supply a birth parent with prescribed information held by an information source about an adopted child who is less than 18 years old without production of the amended birth certificate of the adopted person if, in the opinion of the designated person, the information could not be used to identify the adopted person or his or her adoptive parents.

Note. Designated person is defined in Part 1 of the Dictionary.

(1) The Director-General may:
(a) supply to a relative or spouse of a deceased adopted person or of a deceased birth parent, or to another person, the original or amended birth certificate of the adopted person or birth parent, or

(b) supply to a relative or spouse of a deceased adopted person or of a deceased birth parent, or to another person, any prescribed information relating to, or which an adopted person or birth parent is entitled to receive relating to, the adopted person or birth parent, or

(c) after such consultation with the Registrar or other information source concerned as the Director-General considers necessary, authorise the Registrar or other information source to supply such a birth certificate or such prescribed information to a person nominated by the Director-General.

Note. Spouse is defined in Part 1 of the Dictionary.

(2) The Director-General must not supply a birth certificate or prescribed information to a person other than a relative or spouse (or authorise such action to be taken by an information source) unless the person had a de facto or other close personal relationship with the deceased person.

(3) The Director-General must not supply a birth certificate or prescribed information to any person (or authorise such action to be taken by an information source) unless the Director-General has taken into account any likely detriment to the welfare and best interests of any adopted person, birth parent, relative or spouse of the deceased person or the other person if the birth certificate or information is supplied.

(4) An information source so authorised by the Director-General to supply a birth certificate or prescribed information must supply that certificate or information to the person nominated by the Director-General.

(5) This section does not apply to prescribed information held by the Court.

(1) An application for the supply of an original birth certificate under this Part is to be made in writing to:
(a) if the person’s birth is registered under the Births, Deaths and Marriages Registration Act 1995 —the primary information source, or

(b) if the person’s birth is not so registered but his or her original birth certificate is held by an information source—that information source.

(2) An application for the supply of an amended birth certificate under this Part is to be made in writing to the primary information source.

(3) An application for the supply of prescribed information held by an information source is to be made in writing to the information source.

(4) The regulations may make provision for or with respect to the making of applications under this Part.

(1) An application for the supply of a birth certificate or prescribed information under this Part is to be dealt with by the designated person.

(2) The designated person is required to supply the birth certificate or prescribed information if satisfied that the applicant is entitled under this Act to receive it.

(3) This section does not apply to the Supreme Court.

Note. Designated person is defined in Part 1 of the Dictionary.

(1) The Director-General may supply (or authorise an information source to supply) any birth certificate or prescribed information before an entitlement to the certificate or information arises under this Part if, in the opinion of the Director-General, it would promote the welfare and best interests of either or both of the parties concerned.

(2) The Director-General may act under subsection (1) in any case in which an entitlement to prescribed information has not arisen because of the failure to obtain a birth certificate under this Part.

(3) The Director-General may supply (or authorise an information source to supply) any birth certificate or prescribed information to a sibling of an adopted person or any other person who is not entitled under this Act to receive the birth certificate or prescribed information under this Part if, in the opinion of the Director-General, it is appropriate to do so because of exceptional circumstances affecting the interests or welfare of any person.

(1) The following persons may request the Director-General to act under this section:
(a) an adopted person who is 18 or more years old,

(b) a birth parent,

(c) an adoptive parent of a person who is less than 18 years old,

(d) an adoptive parent of a person who is 18 or more years old and who has consented to the request being made.

(2) The Director-General may, at the request of a person referred to in subsection (1):
(a) refuse to supply (or, if the regulations provide for the issue of a supply authority, to issue a supply authority authorising an information source to supply) any birth certificate or prescribed information to which an entitlement arises under this Part, or

(b) supply such a certificate or information subject to conditions specified in writing by the Director-General, or

(c) if the regulations provide for the issue of a supply authority, issue a supply authority authorising an information source only to supply, subject to compliance with conditions specified by the Director-General, any birth certificate or prescribed information.

(3) The Director-General may refuse to supply a birth certificate or prescribed information under this section only if, in the opinion of the Director-General, exceptional circumstances exist that make it necessary to do so to prevent serious harm to a party concerned.

(4) Conditions that may be imposed by the Director-General under this section include conditions requiring the person entitled to the birth certificate or prescribed information to undergo counselling by a person specified by the Director-General before the certificate or information is supplied.

(5) The Director-General must deal with a request under this section in accordance with any guidelines prescribed by the regulations.

(6) An information source must not supply any birth certificate or prescribed information the subject of a supply authority imposing conditions on its supply unless the conditions are complied with.

(7) The Director-General may not (despite section 5 of the Community Welfare Act 1987) delegate to another person the exercise of any function of the Director-General under this section.

An information source which supplies any birth certificate or prescribed information pursuant to an application under this Act is required to comply with any relevant guidelines prescribed by the regulations.

(1) A person is not entitled to receive prescribed information under this Act from records of proceedings in the Supreme Court relating to the adoption of a person, except as provided by this section.

(2) A person may apply to the Supreme Court for the supply of the information.

(3) The Supreme Court or a proper officer of the Court may supply the information to the person.

(4) Rules of court may be made for or with respect to orders under this section.

(1) A person must not disclose any information relating to an adopted person, birth parent or adoptive parent obtained in connection with the administration or execution of this Chapter, except:
(a) in connection with the administration or execution of this Chapter, or

(b) as authorised or required by law.

(2) In any proceedings concerning this Chapter before any court or tribunal, the court or tribunal may make an order forbidding publication of all or any of the information mentioned in the proceedings relating to an adopted person, birth parent, adoptive parent, relative or other person.

(3) A person must not publish information in breach of an order made under this section.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

92 Object of Part (cf AI Act s 15A)

The object of this Part is to establish an advance notice system to enable the release of personal information under the Part to be delayed for a fixed period to give the person requesting the delay the opportunity to prepare for the release and any impact this might have on the person or the person’s family or associates.

In this Part:

advance notice period means:

(a) the period after an application for personal information relating to a person is made (not being greater than 3 months) prescribed by the regulations for the purposes of this paragraph, or

(b) if the Director-General so directs in relation to a particular advance notice request, such longer period (not being greater than the period (if any) prescribed by the regulations) after an application for personal information relating to a person is made as is specified by the Director-General.

nominated contact address means the address entered on the Advance Notice Register under section 96 (2) (b).

personal information relating to a person means:

(a) the person’s original birth certificate or amended birth certificate, or

(b) prescribed information relating to the person, or

(c) if the regulations authorise supply of a birth certificate or prescribed information relating to the person on issue of a supply authority—such a supply authority.

A person is entitled to lodge a request to be given advance notice before personal information relating to the person is given to another person if the person seeking to lodge the request is:
(a) an adopted person who has reached the age of 17 years and 6 months, or

(b) a birth parent, or

(c) an adoptive parent.

(1) A person entitled to lodge an advance notice request may do so by advising the Director-General in writing that he or she wishes to be notified if a particular person or a person within a class of persons entitled to receive the personal information concerned specified in the advice makes an application for personal information relating to the person lodging the advance notice request.

(2) The advice is to be in a form approved by the Director-General.

(3) An advance notice request is not duly lodged unless the person provides the Director-General with proof (to the satisfaction of the Director-General) of his or her identity.

(4) A person lodging an advance notice request may also leave a message for a person concerned in or affected by an adoption with the Director-General for placement on the Reunion and Information Register.

(1) The Director-General is to establish and maintain an Advance Notice Register.

(2) There is to be entered in the Advance Notice Register:

(a) the name of each person who has duly lodged an advance notice request, and

(b) the address nominated by the person as the address at which any personal or postal contact by the Director-General with the person should be made, and

(c) the date and place of birth of the person, and

(d) the persons or class of persons affected by the request, and

(e) the advance notice period.

(3) The Director-General (unless the Director-General is the primary information source) is to advise the relevant primary information source of each entry made in the Advance Notice Register.

(4) A person whose name is entered in the Advance Notice Register is to advise the Director-General of any change in his or her nominated contact address.

The primary information source is to delay the supply of personal information affected by an advance notice registration until the expiration of the advance notice period unless the registration is waived or cancelled under section 100.

The primary information source is to advise the applicant for the supply of the personal information that it will not be supplied until the expiration of the advance notice period and of the reasons for the delay.

An advance notice registration expires:
(a) on expiration of the advance notice period, or

(b) if the person who lodged the request for registration cancels it by notification in writing to the Director-General, or

(c) if the person who lodged the request dies, or

(d) if a contact veto is lodged by the person who lodged the request, or

(e) if the person who lodged the request fails to notify the Director-General in writing of any change in his or her nominated contact address,

whichever is the sooner.

(1) The Director-General may, at the request of a person seeking supply of personal information that is affected by an advance notice registration, ask the person who lodged the advance notice request whether he or she wishes to waive or cancel the registration.

(2) The Director-General is not to do so unless the Director-General:

(a) is of the opinion that the personal information is required urgently and that circumstances exist that justify asking the person to waive or cancel the registration in order to promote the welfare and best interests of either or both of the parties concerned, and

(b) has consulted any person or body that the Director-General believes may be of assistance in assessing the merits of the request.

(3) The Director-General may arrange for either or both of the parties concerned in a request under this section to be provided with such counselling as the Director-General believes is necessary to assist them and the Director-General in the matter.

(4) The Director-General must deal with a request under this section in accordance with any guidelines prescribed by the regulations.

(1) The Director-General is to notify a person who has lodged an advance notice request at the person’s nominated contact address of an application under this Part for the supply of personal information affected by the registration, unless it is not reasonably practicable to notify the person.

(2) The Director-General is entitled to rely on the address shown in the Advance Notice Register for this purpose and is not subject to any action, liability, claim or demand in respect of any notification given in good faith at that address.

102 Adopted person or birth parent may lodge contact veto (cf AI Act s 16)

The following persons may lodge a contact veto:
(a) an adopted person who has reached the age of 17 years and 6 months,

(b) a birth parent.

A person may lodge a contact veto only if:
(a) the order for adoption of the adopted person was made under the Adoption of Children Act 1965 (or a former Act within the meaning of that Act) before the date of assent to the Adoption Information Act 1990, or

(b) the adoption of the adopted person in another State or Territory or in a country outside the Commonwealth and the Territories was recognised under the Adoption of Children Act 1965 as having been effected before the date of assent to the Adoption Information Act 1990.

(1) A person entitled to lodge a contact veto may do so by notifying the Director-General in writing that he or she objects to contact being made with him or her by a person or any class of persons referred to in the notification.

(2) The notification is to be in a form approved by the Director-General.

(3) A contact veto is not duly lodged unless the person provides the Director-General with proof (to the satisfaction of the Director-General) of his or her identity.

(4) A person lodging a contact veto may also leave a message for a person concerned in or affected by an adoption with the Director-General for placement on the Reunion and Information Register.

(1) The Director-General is to establish and maintain a Contact Veto Register.

(2) There is to be entered in the Contact Veto Register:

(a) the name of each person who has duly lodged a contact veto, and

(b) the address nominated by the person as the address at which any personal or postal contact by the Director-General with the person should be made, and

(c) the date and place of birth of the person, and

(d) the persons or class of persons with whom the person objects to contact, and

(e) the name and address for notification of each person who has duly requested under this Act that he or she be notified of the cancellation or variation of a contact veto.

The Director-General is (unless the Director-General is the relevant primary information source) to advise the primary information source of the details of each contact veto entered in the Contact Veto Register.

(1) The primary information source is required to endorse details of each contact veto on the original birth certificate or amended birth certificate of the adopted person to whom the contact veto relates that is supplied by the primary information source under this Act.

(2) An information source (other than the primary information source) which is requested to supply an original birth certificate under this Act is required:

(a) to ascertain from the Director-General whether there is a contact veto relating to the adopted person concerned, and

(b) if so, to endorse details of the contact veto on the original birth certificate before it is supplied under this Act.

(3) The regulations may require a primary information source to endorse details of each contact veto on any memorandum of adoption of a person or other document concerning an adopted person to whom the contact veto relates that is supplied by the primary information source.

(1) In this section, relevant period means the period of 5 working days or, if a different period is prescribed by the regulations, that period.

(2) A contact veto takes effect on the expiration of the relevant period or after details of the contact veto are endorsed on the original birth certificate or amended birth certificate concerned, whichever occurs sooner.

(1) A contact veto expires if:
(a) the person who lodged the contact veto cancels it by notification in writing to the Director-General, or

(b) the person who lodged the contact veto dies.

(2) The Director-General is (unless the Director-General is the relevant primary information source) to advise the primary information source of the expiration of a contact veto unless it is caused by a death of which the Director-General is not aware.

(1) The Director-General may, at the request of a person who has been refused contact under a contact veto, approach the person who lodged the contact veto and ask the person whether he or she:
(a) wishes to confirm the contact veto, or

(b) wishes to cancel the contact veto, or

(c) wishes to vary the contact veto in so far as it relates to contact with the person who has made the request.

(2) The Director-General is not to approach the person who lodged the contact veto unless the Director-General:
(a) is of the opinion that circumstances exist that justify the approach in order to promote the welfare and best interests of either or both of the parties concerned, and

(b) has consulted the Director-General of the Department of Health and any other relevant authority the Director-General believes may be of assistance in assessing the merits of the request for the person to be approached.

(3) The Director-General may arrange for either or both of the parties concerned in a request under this section to be provided with such counselling as the Director-General believes is necessary to assist them and the Director-General in the matter.

(4) The Director-General must deal with a request under this section in accordance with any guidelines prescribed by the regulations.

(1) The Director-General is required to notify a person who has lodged a contact veto of an application under this Act for the supply of a birth certificate or prescribed information made by any person with whom contact is refused, unless the Director-General is unaware of the application or it is not reasonably practicable to notify the person.

(2) This subsection applies where a person is directed by the Guardianship Board under Part 4A of the Guardianship Act 1987 to make an application for supply of a birth certificate or prescribed information on behalf of a person with a disability with whom contact is refused. The Director-General is required to notify the person who lodged the contact veto if such an application is made.

The Director-General is required to notify a person of any cancellation or variation of a contact veto that affects the person if the person requests the Director-General to do so at the time the person receives a birth certificate or information subject to the contact veto.

(1) The primary information source or other information source is not to supply an original birth certificate or amended birth certificate endorsed with a contact veto against contact by the applicant unless the applicant has signed an undertaking that the applicant will not (while the contact veto remains in force):
(a) contact or attempt to contact the person who has lodged the contact veto, or

(b) procure another person to contact or attempt to contact the person.

(2) An information source is not to supply any prescribed information to an adopted person relating to an adopted brother or sister unless the Director-General is notified of the application for the information and is given an opportunity to ascertain whether a contact veto has been lodged in relation to contact with the adopted person.

(3) If such a contact veto has been lodged, an information source is not to supply the information unless the applicant has signed an undertaking of the kind referred to in subsection (1).

(4) The Director-General may, as a condition of the supply to a person of any certificate or information under section 87 which is subject to a contact veto, require the person to sign an undertaking of the kind referred to in subsection (1).

(5) This section does not apply to an applicant who has been directed by the Guardianship Board under Part 4A of the Guardianship Act 1987 to make the application on behalf of a person with a disability.

114 Definition (cf AI Act s 30)

In this Part:

register means the Reunion and Information Register established under this Part.

(1) The Director-General is to establish a Reunion and Information Register.

(2) There is to be entered in the register:

(a) the name of every person who is eligible to have his or her name entered in the register and who has duly applied for entry of his or her name with a view to a reunion with a person from whom he or she has been separated as a consequence of an adoption, and

(b) the name of every person who is eligible to have his or her name entered in the register and who has duly applied for entry of his or her name with a view to leaving a message for a person concerned in or affected by an adoption.

(3) Application for entry in the register is to be made in a form approved by the Director-General.

Any person whose name is entered in the register may leave a message for any other person entitled (subject to this Act) to have his or her name entered in the register.

The Director-General may refuse to enter the name of a person in the register or to accept a message from any person if, in the opinion of the Director-General, the person is not eligible to have the person’s name entered in the register or has not duly applied for entry of his or her name in the register.

(1) The Director-General may open, inspect and copy any message left under this Part for an adopted person who is less than 18 years old.

(2) The Director-General may, at the request of a person whose name is entered in the register or of the person for whom a message has been left under this Part, open and inspect the message.

The Director-General may delay giving a person a message that the Director-General has been requested to open and inspect if the Director-General is of the opinion that the content of the message is likely to be so distressing for the person that it should be made available to the person only in the presence of appropriate counsellors or other persons able to assist the person.

The regulations may make provision for or with respect to the leaving and delivery of messages under this Part.

(1) The following persons are eligible to have their names entered in the register:
(a) an adopted person,

(b) a birth parent,

(c) an adoptive parent,

(d) any other person having an interest in an adopted person or birth parent (including a relative) who, in the opinion of the Director-General, ought to have his or her name entered in the register.

(2) A person who is less than 18 years old is not eligible to have his or her name entered in the register, except as provided by this section.

(3) An adopted person who is less than 18 years old is eligible to have his or her name entered in the register if:

(a) the adopted person is 12 or more years old and the person’s adoptive parents have consented in writing to his or her name being entered in the register, or

(b) the adopted person is 16 or more years old and is living separately and apart from his or her adoptive parents, or

(c) the adopted person is 12 or more years old and, in the opinion of the Director-General, special circumstances exist which make it desirable that his or her name should be entered in the register.

(4) However, the Director-General is not to enter in the register the name of an adopted person who is less than 18 years old unless the Director-General is of the opinion that to do so will promote the welfare and best interests of the adopted person.

(5) The consent of an adoptive parent is not required under subsection (3) (a) for the entry in the register of the name of an adopted person who is less than 18 years old if the adoptive parent:

(a) is dead, or

(b) cannot, after due search and inquiry, be found, or

(c) is, in the opinion of the Director-General, incapable of giving consent.

(6) The name of a person may not be entered in the register by another person on his or her behalf.

(1) If the names of an adopted person and of a birth parent have been entered in the register under section 115 (2) (a), the Director-General may make arrangements for a reunion between the persons so registered.

(2) If the names of an adopted person or birth parent and of a relative or other person having an interest in the adopted person or birth parent have been entered in the register under section 115 (2) (a), the Director-General may make arrangements for a reunion between the persons so registered.

(3) The Director-General is not to arrange a reunion involving an adopted person who is less than 18 years old if an adoptive parent refused to consent to the entry of the name of the adopted person in the register under section 115 (2) (a), unless:

(a) the adoptive parent consents in writing to the reunion, or

(b) the Director-General gives the adoptive parent not less than 90 days notice of the intention to arrange the reunion.

(4) The Director-General must notify any person whose name is entered in the register under section 115 (2) (a) of the entry in the register of the name of any other person from whom that person has been separated as a consequence of adoption.

(1) If the name of an adopted person has been entered in the register under section 115 (2) (a), the Director-General may take such action as is reasonable in the circumstances to locate a birth parent or relative of the adopted person or any other person with whom the adopted person wishes to be reunited, so as to ascertain whether any such person wishes to be reunited with the adopted person.

(2) If the name of a birth parent has been entered in the register under section 115 (2) (a), the Director-General may take such action as is reasonable in the circumstances to locate the adopted person, so as to ascertain whether the adopted person wishes to be reunited with the birth parent.

(3) If the name of a relative or other person having an interest in an adopted person or birth parent has been entered in the register under section 115 (2) (a), the Director-General may take such action as is reasonable in the circumstances to locate the adopted person or birth parent, so as to ascertain whether the adopted person or birth parent wishes to be reunited with the relative or other person.

(4) The Director-General may take action to locate a person under this section only if the Director-General is satisfied that it will promote the welfare and best interests of the parties concerned and it is appropriate to do so:

(a) on medical, psychiatric or psychological grounds relating to one of the registered parties, or

(b) on any other ground relating to unusual or extreme circumstances affecting the interests or welfare of a party.

(5) The Director-General may take action to locate a person under this section even though the person has not, by entering his or her name in the register, expressed a desire to be reunited with the person whose name is entered in the register.

124 Fees and charges (cf AI Act s 35)

(1) The Director-General or other information source may demand fees or charges in respect of the supply of documents or information, or the provision of services, under this Chapter.

(2) The Director-General is to notify, in the Gazette, the fees or charges payable under this Chapter to the Director-General and (if the Director-General has been so informed) to other information sources.

(3) A notice under subsection (2) may specify the minimum fees or charges payable in respect of the supply of any documents or information, or provision of any service, under this Chapter.

(4) The Director-General or other information source may waive or reduce any fees or charges (other than a minimum fee or charge referred to in subsection (3)) payable under this Chapter.

(5) The fees or charges for the supply of a birth certificate under this Chapter are payable to the Director-General and are in addition to any fees or charges payable under the Births, Deaths and Marriages Registration Act 1995 or to an information source which supplied the certificate.

(6) The regulations may make provision for or with respect to fees and charges payable under this Chapter.

(1) A person who is aggrieved by a decision of the Director-General made under or for the purposes of this Chapter on or after the commencement of this section may apply for review of the decision.

(2) An application for a review is to be in a form approved by the Director-General.

(3) On receipt of an application to review a decision, the Director-General is to review the decision and to notify the applicant of confirmation or otherwise of the decision.

(4) In reviewing a decision, the Director-General is to consider any material submitted by the applicant.

(5) The Director-General is taken to have reviewed a decision if the applicant is not notified of the outcome of the review within 30 days after the application for review was duly made.

(6) This section applies whether or not the decision concerned is one that may be the subject of an appeal to the Community Services Appeals Tribunal.

(7) The regulations may prescribe requirements to be observed in relation to a review under this section.

(1) In this section a reference to a person with a disability is a reference to a person:
(a) who is intellectually, physically, psychologically or sensorily disabled, or

(b) who is of advanced age, or

(c) who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, or

(d) who is otherwise disabled,

and who, because of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social rehabilitation.\

(2) If a person with a disability:

(a) has an entitlement to receive a birth certificate or prescribed information, or may lodge a contact veto or advance notice request, under this Act, and

(b) is unable, because of the disability, to do anything required by this Act that must be done if the person is to receive the birth certificate or prescribed information or lodge the contact veto or advance notice request,

another person may, if so directed by the Guardianship Board under Part 4A of the Guardianship Act 1987, do any such act on behalf of the person with the disability.

(3) The Director-General may:

(a) refuse to supply (or, if the regulations provide for the issue of a supply authority, refuse to issue a supply authority authorising an information source to supply) any birth certificate endorsed with a contact veto to a person acting on behalf of a person with a disability, or

(b) direct an information source not to supply any such birth certificate,

if the Director-General is of the opinion that the person will be unable to ensure that the person with the disability will not contact or attempt to contact the person who lodged the contact veto.

(1) Any notice required to be given to a person by the Director-General under this Chapter may be given personally or by post.

(2) If any such person has duly nominated an address at which the person is to be notified, the notice may be given to the person only at that address.

The Director-General or accredited intercountry adoption agency must ensure that information held by them, concerning the child’s origin, identity of birth parent and medical history is preserved and that access to such information is given to the adoptive parents and the child in accordance with this Chapter.

Chapter 7 - Offences

129 Territorial application of Chapter (cf AC Act s 48)

This Chapter:
(a) does not apply to acts outside this State, and

(b) unless otherwise expressly provided, does apply to acts in this State in relation to:

(i) the adoption of a child in, or

(ii) a person adopted in,

another State or a Territory or a country other than Australia.

(1) Subject to this section, a person who (whether before or after the birth of the child concerned) makes, gives or receives, or agrees to make, give or receive, a payment or reward for or in consideration of or in relation to:
(a) the adoption or proposed adoption of a child, or

(b) the giving of consent, or the signing of an instrument of consent, to the adoption of a child, or

(c) conducting an adoption service in relation to a child,

is guilty of an offence against this Act.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not apply to or in relation to any of the following payments or rewards in connection with an adoption or proposed adoption under this Act:

(a) a payment of legal expenses or fees authorised by the regulations, and

(b) a payment made by the adopters, with the approval in writing of the Director-General or with the approval of the Court, in respect of the hospital and medical expenses reasonably incurred in connection with the birth of the child or the ante-natal or post-natal care and treatment of the mother of the child or of the child, and

(c) in the case of an intercountry adoption—a payment made by the adopters, with the approval of the Director-General or the Court, in respect of other expenses reasonably incurred of a class or description prescribed by the regulations, and

(d) any other payment or reward authorised by the Director-General or by the Court.

(3) This section does not apply to or in relation to a payment or reward in connection with an adoption or proposed adoption under the law of another State or a Territory if the making of the payment or the giving of the reward, or the agreeing to make the payment or give the reward, would have been lawful if it had taken place in that other State or Territory.

(4) This section does not apply to charges made by the Director-General or a private adoption agency for providing adoption services under this Act.

(1) A person must not publish, or cause to be published, in a newspaper or periodical, or by means of broadcasting, television or public exhibition, any advertisement, news item or other matter indicating (whether or not in relation to a particular child, born or unborn) that:
(a) a parent or guardian of a child wishes to have the child adopted, or

(b) a person wishes to adopt a child, or

(c) a person is willing to make arrangements with a view to the adoption of a child.

(2) This section does not apply in relation to an advertisement, news item or other matter that has been approved by the Director-General.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(1) A person must not publish, or cause to be published, in a newspaper or periodical, or by means of broadcasting or television, in relation to an application under this Act or under a law of another State or a Territory for the adoption of a child or the proceedings on such an application, the name of an applicant, the child, or the father or mother or a guardian of the child, or any matter reasonably likely to enable any of those persons to be identified.

(2) This section does not apply in relation to the publication of any matter with the authority of the Court to which the application was made.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

A person who makes any statement (whether orally or in writing) that the person knows to be false for the purposes of or in connection with:
(a) a proposed adoption or any other matter under this Act, or

(b) an application for the supply of a birth certificate or prescribed information under , or

(c) the lodging of a contact veto under Part 4 of Chapter 6, or

(d) an application for entry of the person’s name in the Reunion and Information Register under Part 5 of Chapter 6, or

(e) any other request under Chapter 6,

is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

(1) A person who impersonates an adopted person, birth parent, adoptive parent, relative or other person having an interest in an adopted person in connection with any matter under Chapter 6 is guilty of an offence.

(2) Without limiting subsection (1), a person who impersonates or falsely represents himself or herself to be a person whose consent to the adoption of a child is required by this Act or by the law of another State or a Territory is guilty of an offence.

(3) A person who impersonates a person engaged in the administration or execution of Chapter 6 is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.

If a person presents, or causes to be presented, to the Court in connection with an application for an order for the adoption of a child under this Act a document purporting to be an instrument of consent, or revocation of consent, to the adoption signed by a person whose consent to the adoption is required by this Act if the signature to the document is or was, to the knowledge of that firstmentioned person, forged or obtained by fraud or duress, that firstmentioned person is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

A person who uses or threatens to use any force or restraint or does or threatens to do any injury, or causes or threatens to cause any detriment of any kind to a parent or guardian of a child with a view:
(a) to inducing that parent or guardian to offer or refrain from offering the child for adoption under this Act, or

(b) to influencing the parent or guardian in the expression of any wishes contained in an instrument of consent to the adoption of a child, or

(c) to inducing the parent or guardian to revoke a consent to the adoption of the child given by that parent or guardian,

is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

A person who subscribes his or her name as a witness to the signature of a person to an instrument of consent to the adoption of a child:
(a) without being satisfied that the person signing the instrument is a parent or guardian of the child, and

(b) without taking such steps as are prescribed by the regulations to satisfy himself or herself that the person signing the instrument understands the effect of the consent, and

(c) without being satisfied that the instrument bears the date on which it is signed by the person giving the consent,

is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

An applicant to adopt a child must not:
(a) contact or attempt to contact a birth parent of the child, or

(b) procure another person to contact or attempt to contact a birth parent,

(whether in or outside New South Wales) before the child has been allocated to the applicant and the allocation has been accepted.

Maximum penalty: 10 penalty units or 12 months imprisonment, or both.

(1) A person who:
(a) makes any payment or gives compensation of any kind to a birth parent for relinquishing a child adopted from outside Australia or for any consent to an adoption, or

(b) gives or takes any improper financial gain,

is guilty of an offence.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) For the purposes of this section, an adoption is not taken to be for financial gain if the transactions concerned cover expenses (including legal expenses) reasonably incurred or for reasonable remuneration for work done.

(1) An information recipient must not:
(a) contact or attempt to contact the person who lodged a contact veto against contact by the information recipient, or

(b) procure another person to contact or attempt to contact that person.

(2) An information recipient must not:
(a) use information obtained under this Act to intimidate or harass the person who lodged a contact veto against contact by the information recipient, or

(b) procure any other person to intimidate or harass that person by the use of that information.

(3) A person is not to claim to act on behalf of or hold himself or herself out as being willing to act on behalf of another person with a view to contravening this section.

(4) In this section:

information recipient means an adopted person, adoptive parent, birth parent, relative or other person:

(a) who has received an original birth certificate or amended birth certificate endorsed with a contact veto against contact by him or her (being a contact veto that remains in force), or

(b) who has had disclosed to him or her prescribed information under this Act and who has knowledge that a contact veto against contact by him or her is then in force.

Maximum penalty: 25 penalty units or imprisonment for 6 months, or both.

Chapter 8 - Records of adoptions

141 Functions of nominated officer in relation to orders under this Act (cf AC Act s 61)

The nominated officer is to cause a memorandum, in accordance with the form prescribed by the regulations, of every adoption order, declaration under section 77, order under section 78 and order for the discharge of an adoption order, to be sent to the Registrar and is to cause a copy of the memorandum to be sent to the Director-General.

Note. Nominated officer is defined in Part 1 of the Dictionary.

If the Court makes an adoption order, or an order discharging an adoption order, and the nominated officer has reason to believe that the birth or previous adoption of the child is registered in another State or a Territory, the nominated officer is, as soon as practicable, to cause a memorandum, in the form prescribed by the regulations, of the adoption order, or a copy of the discharging order, certified in writing by the nominated officer to be a true memorandum or copy, to be sent to such officer of that other State or Territory having functions in relation to the registration of births as is prescribed by the regulations.

If the nominated officer receives, in relation to a child whose birth or previous adoption is registered in New South Wales, a memorandum or copy of an adoption order made (whether by a court or not) under the law in force in another State or a Territory, or of an order discharging such an order, certified in writing to be a true memorandum or copy by a person authorised so to certify under the law of that other State or Territory, the nominated officer is to cause a memorandum, in the form prescribed by the regulations, of the memorandum or copy so received to be sent to the Registrar.

(1) If an application is made to the Director-General for a report relating to the suitability of an applicant or applicants for adopting a child from a place outside Australia (whether or not the child is identified), the Director-General may:
(a) assess the applicant or applicants, and

(b) prepare the report.

(2) A report under this section may contain:
(a) information about the applicant or applicants that has been obtained from such persons as the Director-General considers appropriate, and

(b) an assessment by the Director-General of any such information, and

(c) such other information as the Director-General considers appropriate.

Except as provided by the regulations and Chapter 6, the records of any proceedings under this Act or the former Acts are not to be open to inspection by any person.

Chapter 9 - Proceedings

146 Hearings to be in camera (cf AC Act s 64)

(1) Any proceeding heard by the Court under this Act or the regulations must be heard in closed court.

(2) Persons who are not parties to the proceeding or their barristers, solicitors or representatives must, except as otherwise permitted by the Court, be excluded during the hearing of the proceeding.

The Director-General may appear at the hearing of any application under this Act, and may address the Court, and call, examine and cross-examine witnesses.

(1) The Court may require any party to the proceedings for an adoption order to attend personally before the Court.

(2) The Court may require the child and prospective adoptive parents to attend personally before the Court at such time during the hearing of the application as the Court directs.

(1) If, in proceedings under this Act, the Court considers that a child ought to have separate representation the Court may, on its own motion or on the application of any interested person:
(a) order that the child be separately represented, and

(b) make such other orders as it thinks necessary for the purpose of securing that representation.

(2) The Court may, in proceedings before it with respect to the adoption of a child, appoint a person to act as guardian ad litem for the child.

(3) The Court may give such directions as to the exercise of the guardian’s functions as it thinks fit.

Except as the Court otherwise orders, a report to the Court referred to in section 52, 60 or 144 must not be made available to any person, including a party to the proceedings.

Except as otherwise provided by this Act or the regulations, the Court, in the hearing of any proceedings or in determining any application or matter under this Act or the regulations, may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence.

(1) In proceedings before it, the Court is to take into account any wishes and feelings of the child (considered in the light of the child’s age and understanding) that are volunteered by the child.

(2) The Court may direct that a child be provided with such counselling as the Court considers appropriate.

If the Court is required by this Act to consider any wishes expressed by a child, the Court may inform itself of wishes expressed by the child:
(a) by having regard to anything contained in a report made to the Court by the Director-General or the principal officer of a private adoption agency, or

(b) subject to rules of court, by such other means as the Court considers appropriate.

Nothing in this Act requires the Court or any person to require the child to express his or her wishes in relation to any matter.

Chapter 10 - Miscellaneous

Introduction. This Chapter contains various provisions relating to the general operation of the Act. The Chapter also repeals the Adoption of Children Act 1965 and the Adoption Information Act 1990.

155 Appeals to the Community Services Appeals Tribunal (cf AC Act s 67A, AI Act s 36)

(1) An appeal against a decision made under or for the purposes of this Act by the Director-General may be made to the Community Services Appeals Tribunal if the decision:
(a) is to refuse approval of an adoption agency or accredited intercountry adoption agency, or

(b) is to revoke or suspend the approval of an adoption agency or accredited intercountry adoption agency, or

(c) is against a refusal or failure of the Director-General:

(i) to supply any birth certificate or prescribed information to a person, or to authorise the Registrar or another information source to do so under Chapter 6, or

(ii) to enter the name of any person in a register under Chapter 6, or

(iii) to arrange a reunion or take action to locate a person under Part 5 of Chapter 6, or

(iv) to approach a person who has lodged a contact veto in accordance with a request made under section 110, or

(d) is within a class of decisions prescribed by the regulations for the purposes of this section.
(2) If there is a failure to make within a reasonable time a decision that, if made, could be the subject of an appeal under this section, the Tribunal may:
(a) treat the failure as an unfavourable decision with respect to the applicant for the decision, and

(b) permit the applicant to appeal to the Tribunal as if the unfavourable decision had in fact been made.

(3) An appeal may not be made under this section to the Community Services Appeals Tribunal against a decision of the Director-General under Chapter 6 until the decision has been reviewed under section 125.

(1) The Director-General may, with respect to a child of a class or description prescribed by the regulations, enter into an agreement with:
(a) a person or persons with whom the child has been placed for the purposes of adoption, or

(b) the applicant, or applicants, for an adoption order in respect of the child, or

(c) the adoptive parent, or adoptive parents, of the child,

for the provision of such financial or other assistance, on such terms and conditions as may be agreed, in order to assist or promote the best interests of the child.

(2) Nothing in this section prevents the Director-General from entering into an agreement in relation to a child so as to provide financial or other assistance both before and after an adoption order in respect of the child is made.

(1) In this section, a reference to the executor or administrator of the estate of a deceased person includes a reference to a person who is a trustee of the whole or any part of the property comprised in the estate.

(2) If:

(a) an adopted person is a beneficiary under the estate of a deceased person, and

(b) the executor or administrator of the estate does not know the name or whereabouts of the adopted person, and

(c) the Director-General certifies, in writing, to the executor or administrator that the Director-General knows the name and whereabouts of the adopted person and that the adopted person is alive,

the executor or administrator may, with the approval of the Director-General, transfer to the Director-General, on behalf of the adopted person, any property to which the adopted person may be entitled under the estate or which may be otherwise applied for the adopted person’s benefit.

(3) A transfer made under this section is valid against all persons and the executor or administrator is absolutely discharged from all liability in respect of a transfer so made by the executor or administrator.

(4) The Director-General is to apply any property transferred to the Director-General under this section on behalf of the adopted person in respect of whom it was transferred in accordance with the trusts on which the property was held immediately before it was transferred as if the Director-General were the executor or administrator of the estate of the deceased person in respect of which the transfer was made.

(5) Nothing in this section affects any right of a person to claim or recover any property transferred under this section from a person other than the executor or administrator who transferred the property.

(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

(2) Proceedings for an offence against this Act or the regulations may be commenced:

(a) within but not later than 12 months after the date on which the offence is alleged to have been committed, or

(b) within but not later than 6 months after the date on which evidence of the offence first came to the attention of any relevant authorised officer,

whichever is the later time.

(3) If subsection (2) (b) is relied on for the purpose of commencing proceedings for an offence, the information or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence of the offence first came to the attention of any relevant authorised officer is the date specified in the information or application, unless the contrary is established.

(4) This section applies despite anything in the Justices Act 1902 or any other Act.

(5) In this section:

evidence of an offence means evidence of any act or omission constituting the offence.

relevant authorised officer means a person prescribed by the regulations as a relevant authorised officer for the purposes of this definition.

(1) At the hearing of any proceedings in respect of an offence against this Act or the regulations, any person not directly interested in the proceedings is to be excluded from the court, unless the court otherwise directs.

(2) A court may:

(a) direct a child to leave the court at any time during the hearing of any proceedings in respect of an offence against this Act or the regulations, or

(b) direct any person to leave the court during the examination of any witness in any such proceedings,

if the court is of the opinion that, in the interests of a child, such a direction should be given.

(3) The powers of the court under subsection (2) may be exercised even though the child or person directed to leave the court may be directly interested in the proceedings.

(4) This section applies to and in respect of the hearing of any appeal against the decision of a court in the same way as it applies to and in respect of the hearing of proceedings before the court.

(1) Proceedings for an offence against this Act or the regulations must not be commenced except with the written consent of the Minister.

(2) Proceedings for an offence against section 140 (Veto on contact—offences) may be instituted only with the written consent of the Attorney General.

(3) In any proceedings referred to in subsection (2), a consent purporting to have been signed by the Attorney General is, without proof of the signature, evidence of that consent.

(1) Rules of court may be made under the Supreme Court Act 1970 regulating practice and procedure in respect of proceedings under this Act.

(2) Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970.

(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Without limiting the generality of subsection (1), regulations may be made for or with respect to the following:

(a) the exercise of any function conferred on a primary information source under Chapter 6 of this Act or any other Act (including, but not limited to, supply of a birth certificate or prescribed information by the primary information source in accordance with a supply authority issued by the Director-General),

(b) money paid in respect of adoption services provided by the Director-General or accredited intercountry adoption agencies in respect of intercountry adoptions and accounting for the expenditure of such money.

(3) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.

The Adoption of Children Act 1965 and the Adoption Information Act 1990 are repealed.

Each law specified in Schedule 1 is amended as set out in that Schedule.

Schedule 2 has effect.

(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.

(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

Schedule 1 - Amendment of other laws

(Section 164)

1.1 Births, Deaths and Marriages Registration Act 1995 No 62

[1] Section 23 Duty to register adoptions

Omit the definition of State adoption order from section 23 (3).

Insert instead:

State adoption order means an adoption order or order under section 77 (Declarations of validity of foreign adoptions) under the Adoption Act 1997 .

Omit “section 61 or 63 of the Adoption of Children Act 1965 ” wherever occurring.

Insert instead “section 141 or 143 of the Adoption Act 1997 ”.

[3] Section 24A

Insert after section 24:

24A Registration of deceased person’s intention to adopt

(1) The adoptive parent of a person in respect of whom a memorandum is registered under this Part may apply to the Registrar, in a form approved by the Registrar, for registration of the intention of a deceased person to adopt the person jointly with the adoptive parent.

(2) The Registrar registers an intention of a deceased person to adopt by making an entry about the intention to adopt in the register including the particulars required by the regulations.

(3) An application to the Registrar under this section must, if the Registrar requires verification of the information contained in the application, be accompanied by a statutory declaration verifying the information contained in the application and any other evidence that the Registrar may require.

Insert after section 49 (3):

(4) If requested to do so by an applicant, the Registrar must issue a single certificate certifying particulars contained in an entry relating to the birth of a person and particulars relating to a memorandum sent to the Registrar under section 141 or 143 of the Adoption Act 1997 and registered under that Act.

Note. The power of the Registrar to issue such a certificate is subject to the provisions of the Adoption Act 1997. See section 52.

Omit “ Adoption Information Act 1990 ”.

Insert instead “Chapter 6 of the Adoption Act 1997 ”.

[6] Section 52, note

Omit “ Adoption Information Act 1990 ”.

Insert instead “Chapter 6 of the Adoption Act 1997 ”.

1.2 Births, Deaths and Marriages Registration Regulation 1996

Clause 7 Registration of adoptions

Insert at the end of clause 7:

(2) For the purposes of section 24A of the Act (Registration of deceased person’s intention to adopt), the following particulars are required:
(b) the full name and last residential address of the deceased person,

(c) the date and place of death of the deceased person.

[1] Section 3 Definitions

Omit paragraph (a1) of the definition of protected person in section 3 (1). Insert instead:

(a1) a child who is under the guardianship of the Director-General pursuant to section 49 (Guardianship of citizen child awaiting adoption) or 51 (Guardianship of non-citizen child awaiting adoption) of the Adoption Act 1997,

Omit paragraph (c) of the definition of ward. Insert instead:

(c) a child declared to be a ward under this Act by an order in force under the Adoption Act 1997.

Omit “ Adoption of Children Act 1965 ” from section 4 (c).

Insert instead “ Adoption Act 1997 ”.

1.4 Freedom of Information Act 1989 No 5

[1] Schedule 1 Exempt documents

Omit “ Adoption of Children Act 1965 ” from clause 20 (a).

Insert instead “ Adoption Act 1997 ”.

[2] Schedule 1

Omit “ Adoption Information Act 1990 ” from clause 20 (c).

Insert instead “Chapter 6 of the Adoption Act 1997 ”.

1.5 Status of Children Act 1996 No 76

[1] Section 4 Application of Act

Omit “sections 35 and 36 of the Adoption of Children Act 1965 ” from section 4 (2).

Insert instead “sections 66–69 of the Adoption Act 1997 ”.

[2] Section 8 Rights of exnuptial children and their relatives on intestacy

Omit “ Adoption of Children Act 1965 or an adoption recognised in the State under Part 5” from section 8 (4).

Insert instead “ Adoption Act 1997 or an adoption recognised in the State under Chapter 5”.

[3] Sections 11 and 12

Omit “section 46 (Recognition of foreign adoptions) of the Adoption of Children Act 1965 ” wherever occurring.

Insert instead “Chapter 5 (Recognition of adoptions) of the Adoption Act 1997 ”.

1.6 Youth and Community Services Act 1973 No 90

Section 3 Definitions

Omit “ Adoption of Children Act 1965 ” from the definition of relative in section 3.

Insert instead “ Adoption Act 1997 ”.

Schedule 2 - Savings, transitional and other provisions

(Section 165)

Part 1 Preliminary

1 Savings and transitional regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

this Act

(2) Any such provision may, if the regulations so provide, take effect on the date of assent to the Act concerned or a later date.

(3) To the extent to which any such provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

2 Definitions

In this Part:

repealed adoption Act means the Adoption of Children Act 1965 as in force immediately before its repeal by this Act.

repealed information Act means the Adoption Information Act 1990 as in force immediately before its repeal by this Act.

A charitable organisation approved as a private adoption agency under the repealed adoption Act immediately before its repeal by this Act is taken to have been approved as a private adoption agency under this Act.

A valid consent to the adoption of a child given under the repealed adoption Act and that had not, immediately before the repeal of that Act, been revoked is taken to be a consent given in accordance with this Act.

The Advance Notice Register and Reunion and Information Register established under the repealed information Act are to form part of the Advance Notice and Reunion Information Registers established under Part 5 of Chapter 6 of this Act.

The regulations made under the repealed Acts and in force immediately before the commencement of this clause are, until repealed, replaced or amended by regulations under this Act, to continue in force and to be taken to have been made under this Act.

A contact veto that is entered in the Contact Veto Register under the repealed information Act immediately before its repeal by this Act is taken to be a contact veto entered in the Contact Veto Register under this Act.

In any other Act or instrument a reference to the repealed adoption Act or the repealed information Act extends to a reference to the corresponding provision of this Act.

Dictionary

Part 1

1 Definitions

Aboriginal means a person who:
(a) is a member of the Aboriginal race of Australia, and

(b) identifies as an Aboriginal, and

(c) is accepted by the Aboriginal community as an Aboriginal.

Aboriginal agency means an organisation approved as an Aboriginal agency under section 32.

Aboriginal child means a child who is descended from an Aboriginal.

Aboriginal Child Placement Principle means the principle set out in section 31.

accredited intercountry adoption agency means a body for the time being approved as an intercountry adoption agency under section 12.

adopted brother or sister, in relation to an adopted person, means another adopted person who has or had at least one parent (whether biological or adoptive) who is or was a birth parent of the adopted person.

adopted person means a person:

(a) an order for whose adoption was made before the commencement of this Act under a former Act, or

(b) whose adoption in another State or Territory or in a country outside Australia was recognised under the Adoption of Children Act 1965 as having the same effect as if an order for adoption had been made under that Act, or

(c) an order for whose adoption was made under this Act.

adoption order means an order for adoption of a child under this Act or a former Act.

adoption plan means a plan agreed between the birth parent or parents and adoptive parent or parents, before the making of an order for adoption, for the exchange of information between the parties to the plan in relation to:

(a) the child’s medical background or condition, or

(b) the child’s development and important events in the child’s life, or

(c) the means and nature of contact between the parties to the plan and the child, or

(d) any other matter relating to the child.

adoption service means:
(a) arrangement for or towards or with a view to the adoption of a child (whether citizen or non-citizen), or

(b) negotiations for or towards or with a view to the adoption of a child (whether citizen or non-citizen), or

(c) arranging or assisting in the transfer of the care and custody of a child (whether citizen or non-citizen).

adoptive parent means a person who becomes the parent of an adopted person by adoption.

advance notice registration means an advance notice request registered under Chapter 6 and in force.

advance notice request means an advance notice request lodged under Chapter 6.

amended birth certificate, in relation to an adopted person, means a certificate certifying the particulars relating to the birth of the person based on the registered memorandum relating to the adoption of the person kept under the Births, Deaths and Marriages Registration Act 1995.

applicant means:

(a) the person who is the sole applicant for an adoption order, or

(b) in the case of a joint application for an adoption order by a couple—each person who is an applicant for the order.

authorised adoption service provider means:
(a) the Director-General or a delegate of the Director-General,

(b) the principal officer of a private adoption agency or a person authorised in writing by the principal officer to act on behalf of the principal officer,

(c) the principal officer of an accredited intercountry adoption agency or a person authorised in writing by the principal officer to act on behalf of the principal officer.

birth parent means a biological parent of an adopted person.

charitable organisation means:

(a) a non-profit organisation carried on primarily or principally for religious, charitable, benevolent or philanthropic purposes, or

(b) a hospital (other than an incorporated hospital or separate institution within the meaning of the Public Hospitals Act 1929) carried on by an organisation otherwise than for the purpose of trading or pecuniary profit or gain to its members.

child means:
(a) a person who is less than 18 years of age, or

(b) a person who is 18 or more years of age and in respect of whom an adoption is sought or has been made.

contact veto means a veto against contact registered under Chapter 6 and in force.

Court means the Supreme Court of New South Wales.

cultural heritage includes beliefs, morals, laws, customs, religion, superstitions, art, language, diet, dress and race.

Cultural Heritage Placement Principle means the principle set out in section 35.

de facto relationship means:

(a) the relationship between a man and a woman who live together as husband and wife on a bona fide domestic basis although not married to one another, and

(b) a comparable relationship between two adult persons of the same sex.

decision, in relation to the adoption of a child, includes a decision concerning:
(a) the assessment of the suitability of a person or persons to adopt a child,

(b) the arrangements for or in relation to the allocation of a child to a person or persons who will adopt the child,

(c) the transfer of the care and custody of a child to a person or persons willing to adopt the child,

(d) the giving of consent to the adoption of a child of whom the decision maker has guardianship.

decision maker, in relation to a decision about the adoption of a child, means the Court, the Director-General, a private adoption agency, an accredited intercountry adoption agency or a principal officer of a private adoption agency or accredited intercountry adoption agency.

designated country see section 78.

designated person means:

(a) in relation to the Department of Community Services—the Director-General, or

(b) in relation to a hospital or other health service under the control of an area health service constituted under the Area Health Services Act 1986 —the chief executive officer of the area health board for the area health service, or

(c) in relation to the Department of Health or a hospital specified in the Fifth Schedule to the Public Hospitals Act 1929 —the Director-General of the Department, or

(d) in relation to an incorporated hospital or a separate institution (within the meaning of the Public Hospitals Act 1929)—the chief executive officer of the hospital or institution, or

(e) in relation to a private adoption agency—the principal officer of the private adoption agency, or

(f) in relation to an accredited intercountry adoption agency—the principal officer of the accredited intercountry adoption agency, or

(g) in relation to a private hospital (within the meaning of the Private Hospitals and Day Procedure Centres Act 1988)—the licensee of the private hospital, or

(h) in relation to the Office of the Registrar—the Registrar, or

(i) in relation to an institution, body or person prescribed as an information source for the purposes of this Act—the person prescribed as the designated person for that institution, body or person,

and includes a person to whom a function has been duly delegated by the designated person and a person authorised by the designated person in accordance with the guidelines prescribed by the regulations.

Director-General means the Director-General of the Department of Community Services.

former Act means:

(a) the Child Welfare Act 1923 and the Child Welfare Act 1939 or either of those Acts, or

(b) the Adoption of Children Act 1965.

foster parent means any person:
(a) who has the care of a child in accordance with a fostering authority held by the person under the Children (Care and Protection) Act 1987,

(b) who has the care of a child that has been placed in the care of the person by, or with the written approval of, the Minister administering the Children (Care and Protection) Act 1987 or the Director-General, or

(c) who has the care of a child that has been placed in the care of the person by an authorised private fostering agency within the meaning of the Children (Care and Protection) Act 1987.

general consent is defined in section 41.

guardian of a child includes:

(a) a person having the custody of the child under a court order, and

(b) a person who is or is taken to be the guardian of a child, to the exclusion of, or in addition to, any parent or other guardian, under a law of the Commonwealth or of another State or a Territory.

home study means a report assessing the suitability of an applicant to become an adoptive parent prepared by an officer of the Department of Community Services or a social worker accredited by the Director-General for that purpose.

hospital means:

(a) a hospital or other health service under the control of an area health service constituted under the Area Health Services Act 1986, or

(b) an incorporated hospital or a separate institution within the meaning of the Public Hospitals Act 1929 or a hospital specified in the Fifth Schedule to that Act, or

(c) a private hospital within the meaning of the Private Hospitals and Day Procedure Centres Act 1988.

independent counsellor see section 42.

information source means:

(a) the Department of Community Services, or

(b) the Department of Health, or

(c) a private adoption agency, or

(d) an accredited intercountry adoption agency, or

(e) a hospital, or

(f) the Office of the Registrar, or

(g) the Supreme Court, or

(h) any other institution, body or person prescribed as an information source for the purposes of this Act.

intercountry adoption means the adoption by a person resident or domiciled in New South Wales of a non-citizen child from a country outside Australia.

interim order means an order under Part 7 of Chapter 4.

nominated officer means the Registrar of the Family Law Division of the Court and includes any other officer of the Court specified by rules of court as the nominated officer for the purposes of this Act.

non-citizen child has the same meaning as in the Immigration (Guardianship of Children) Act 1946 of the Commonwealth.

original birth certificate, in relation to an adopted person, means:

(a) if the person’s birth is registered under the Births, Deaths and Marriages Registration Act 1995 —a certificate certifying the particulars relating to the birth of the person registered under section 18 of that Act, or

(b) if the person’s birth is not so registered—a copy of any similar document relating to the adopted person identifying the birth parents of the person and contained in records relating to the adoption of the person that are held by an information source.

parental responsibility of a child means all the duties, powers, responsibilities and authority that, by law, parents have in relation to children.

Note. Under section 61C of the Family Law Act 1975 of the Commonwealth each of the parents of a child who is not 18 years of age has (subject to any order of a court) parental responsibility for the child. This responsibility is not affected by changes in the relationships of the parents eg if they become separated by either or both of them marrying another person.

parties to an adoption means:

(a) birth parent or birth parents who have consented to the child’s adoption, and

(b) person or persons selected to be the prospective adoptive parent of the child, and

(c) the child’s representative (if any).

prescribed information has the meaning given by section 80.

primary information source means:

(a) the Registrar, or

(b) if another person is prescribed by the regulations for the purpose of the provision in relation to which the expression is used—that person.

principal officer of a private adoption agency or accredited intercountry adoption agency means the person specified for the time being in the approval under section 16.

private adoption agency means a charitable organisation for the time being approved as a private adoption agency under section 11.

Registrar means the Registrar of Births, Deaths and Marriages.

relative means a grandparent, son, daughter, grandchild, brother, sister, uncle or aunt of a person:

(a) whether the relationship is of the whole blood or half blood or by marriage, and

(b) whether or not the relationship depends on the adoption of a person.

revocation period means the period within which consent to an adoption may be revoked under section 47.

sibling of an adopted person means a brother or sister of the person, whether the relationship is of the whole blood or half blood.

specific consent is defined in section 41.

spouse of a person means:

(a) a person to whom the person is married, or

(b) a person with whom the person has a de facto relationship of at least 3 years’ duration.

Note. Married person is defined in Part 2 of this Dictionary.

step parent means, in relation to a person, another person who:

(a) is not a birth parent or adoptive parent of the firstmentioned person, and

(b) is married to the firstmentioned person’s birth parent or adoptive parent.

supply authority means an authority to supply a birth certificate or prescribed information issued by the Director-General in accordance with the regulations.

Torres Strait Islander means a person who:

(a) is descended from a Torres Strait Islander, and

(b) identifies as a Torres Strait Islander, and

(c) is accepted as a Torres Strait Islander by a Torres Strait Islander community.

Torres Strait Islander agency means an organisation approved as a Torres Strait Islander agency under section 34.

Torres Strait Islander child means a child who is descended from a Torres Strait Islander.

Torres Strait Islander Child Placement Principle means the principle set out in section 33.

2 Couples

In this Act, a reference to 2 persons or a couple in relation to a joint application to adopt a child under this Act is a reference to:
(a) a man and a woman who are married,

(b) 2 persons who have a de facto relationship.

In this Act, a reference to 2 persons being married is a reference:
(a) to a man and woman who are actually married, or

(b) to an Aboriginal or Torres Strait Islander man and woman who are living together in a relationship that is recognised as a marriage according to the traditions of an Aboriginal community or Aboriginal or Torres Strait Islander group to which they belong.