BACKGROUND TO THE REFERENCE

1.1 In the course of debate on the Adoption Information Bill, the Government foreshadowed that, because of the sensitive issues involved, this important legislation would be monitored and evaluated. Concerns had been expressed in the course of debate about the effect of providing access to information and the invasion of privacy this could involve. Opposition to the law had been expressed by some members of the public. Objection was made to the extent of information available as of right and doubt was cast on the effectiveness of the contact veto system. Following the commencement of operation of the legislation in April 1991, the Government asked the New South Wales Law Reform Commission to conduct a review of the legislation. A grant was made available to the Commission from the Department of Health and Community Services providing the resources necessary to carry out the review.

APPROACH OF THE COMMISSION

The Commission’s task

1.2 The terms of reference clearly involve a close examination of the operation of the Act, and its effects on the groups specifically mentioned: birth parents, children surrendered for adoption, adopting parents and their extended families. The Parliament, and previously the Legislative Council Standing Committee on Social Issues (the Willis Committee), had certain hopes and expectations about how the Act would operate and what it would achieve. The Commission’s task was to examine how the Act actually worked, how it affected people; and to see how the expectations compared with the reality. Much of this Report, accordingly, sets out the results of what was essentially a fact-finding exercise.

1.3 Although the terms of reference do not expressly ask the Commission to make recommendations, they implicitly invite the Commission to make any recommendations it sees fit about the legislation. Accordingly, this Report will include some recommendations arising from the Commission’s investigation.

Public Consultation

1.4 The primary task of the Reference was collection of information about the implementation and administration of the Act. The Commission employed a number of methods to ascertain from those affected how it was operating. It was necessary to consult, as extensively as time and resources permitted, with those affected by the Act throughout New South Wales. Invitations to make submissions or comments to the Commission were made in press releases and advertisements, and in the many media appearances made by Commission members and staff.¹ An Issues Paper was published in March and approximately 1500 copies distributed. The Commission invited people to make their submissions and comments in writing, by telephone or in person, and arranged to meet with members of adoption organisations and groups. In Sydney, a public hearing was held on 13 March 1992, and in late April and early May the Commission conducted public hearings and took private submissions in seven country centres: Queanbeyan, Wagga Wagga, Lismore, Tamworth, Wollongong, Dubbo, and Newcastle. In all publicity for the review the Commission invited submissions and comments from anyone who was affected by the Act or who wanted to express a view, indicating that confidentiality would be respected.

1.5 The Commission also wrote to Members of Parliament about the review and distributed copies of the Issues Paper to them. The Commission appreciates the interest shown by members of Parliament in this review and the publicity many gave to our efforts to consult with as many people as possible affected by the Adoption Information Act.

1.6 The submissions received in response to these efforts constitute the major evidence on which the Commission relies in this Report. More than 700 written submissions were received, and personal and telephone submissions were taken from more than 300 people.² Nearly 100 people addressed the eight public hearings, and the Commission met with several organisations whose members attended in a group for discussion and presentation of their submissions. The response to the calls for submissions and comments involved one of the most extensive exercises in public consultation the Commission has ever conducted. The process imposed considerable demands on administrative resources and staff. The results were, in the Commission’s view, justification for the efforts. The submissions, which as noted in Chapter 5 were of very high quality, provide a unique insight into the experience of adoption as well as the impact of the legislation on members of the adoption community.

1.7 The other source of evidence on the operation of the Adoption Information Act 1990 was those parts of the administration and other organisations with responsibilities under the Act. The Commission examined the activities of the two agencies with principal roles, the Family Information Service of the Department of Community Services (known as FIS) which has the primary responsibility for administration, and the Registry of Births, Deaths and Marriages, which has the main information function under the Act. In addition, the Commission looked at the operation of the Post Adoption Resource Centre (PARC), established with funding from the Department of Community Services to provide a counselling service for members of the adoption community to meet their needs arising out of the adoption information legislation. Senior staff of all these bodies co-operated fully with the inquiry, and provided a great deal of valuable information and advice to the Commission on a range of issues. To the extent that other government and non-government agencies have functions under the Act, the Commission also made enquiries as to their activities.

1.8 The Commission also took account of other material and research relevant to this legislation. The Report of the Willis Committee, Accessing Adoption Information 1989³ and the non-confidential submissions made to that Committee, and the Parliamentary debates on the Adoption Information Bill 1990 formed an important basis for understanding the purpose of the legislation and the expectations held about its operation. Members of the Commission met with members of the Willis Committee early in the review to discuss the Committee’s inquiry and Report. Submissions and representations made to the Premier and the Minister for Community Services following the announcement of a review of the legislation were referred by them to the Commission and were also considered.

Social research

1.9 The Commission gave careful consideration to the possible use of social research. The processes of consultation which occurred on this reference, while of great value, do not necessarily provide reliable quantitative information about the total population affected by the Act. Those who choose to make submissions to the Commission, or to parliamentarians, may not necessarily be representative of all people in the relevant categories. Those vigorously in favour, or opposed, may be over-represented, and the efforts of groups to encourage submissions may result in disproportionate numbers of responses expressing particular views. For this reason, the Commission examined whether it would be possible and desirable to conduct systematic surveys of representative samples of the various categories of people affected by the Act, such as applicants for a birth certificate or lodgers of a contact veto.

1.10 Early in the inquiry the Commission obtained valuable advice on this and related issues from a number of people having relevant expertise, in addition to senior staff at FIS, PARC and the Registry of Births Deaths and Marriages. It expresses its gratitude in particular to Associate Professor George Cooney of the School of Behavioural Sciences, Macquarie University; Mrs Alison Croft, Chairperson, NSW Committee on Adoption; and Mrs Audrey Marshall, consultant social worker. The Commission also benefited from advice from Ms Susan Young and Mr John Schwartzkoff, of MSJ Keys Young.

1.11 After careful consideration, the Commission decided that quantitative research of representative samples was not appropriate in the present review. There were two main reasons for this conclusion. First, it would have been difficult or impossible to contact those involved without possibly invading their privacy, a conclusion confirmed in advice to the Commission from the Privacy Committee.⁴ Furthermore, the practical limitations of identifying the relevant populations and securing the participation of a sufficiently sizeable sample in the time available would prevent such research from yielding decisive answers.

Qualitative research

1.12 The Commission commissioned the social research organisation MSJ Keys Young to undertake a limited qualitative research study. This is a study of a number of individuals who consented to take part in the research. The method of selecting these individuals was intended to ensure that the Commission received very detailed insight into the experiences of a number of people who were affected by the Act in different ways. Although the limited number involved in this study, and the methods of selection, mean that no claims can be made that the experiences of those individuals are representative, the study provides valuable insights into the variety of ways that the Act can affect people, and has assisted the Commission to analyse the impact of the Act. This study is set out in Appendix B, and will be referred to in Chapter 5.

Omnibus survey on awareness of the Act

1.13 The Commission’s terms of reference include an assessment of the extent of knowledge of the Act. The Commission therefore sought the assistance of MSJ Keys Young on ways of assessing public awareness. It was decided to arrange for suitable questions to be included in a market research survey (an omnibus survey) conducted by Roy Morgan Research Centre. This survey and its results are set out in Appendix B and described in Chapter 3.

THE REPORT

1.14 This Report presents the Commission’s findings on the terms of reference.

1.15 Chapter 2 provides a brief introduction to the Adoption Information Act 1990 and the context in which it came into being. The Adoption Information Act 1990 and the Adoption Information Regulation 1990 are reproduced in Appendix A to the Report. The legislation has been included in order to reduce the need for extensive quotation of the terms of the legislation in the body of the Report, and in order to make the legislation more available to those who may use it.

1.16 Chapter 3 describes the publicity given to the legislation and presents the Commission’s findings on public awareness of the Act, based on submissions and on the relevant results of the omnibus survey described in the MSJ Keys Young Report in Appendix B.

1.17 Chapter 4 reviews the implementation and administration of the legislation. The roles of the Family Information Service, the Registry of Births, Deaths and Marriages and the Post Adoption Resource Centre are examined. The operation of the main provisions of the Act, access to birth certificates, supply of prescribed information, the Reunion Information Register and the contact veto system are also considered in this Chapter.

1.18 Chapter 5 reports on the impact of the legislation on birth parents, adopted people, adoptive parents and the extended families of all parties. The Commission has relied on the submissions received, the research commissioned for this review and other published research to assess this part of the terms of reference.

1.19 Chapter 6 examines what the Commission regards as the basic principles of the legislation, matters that were addressed in many submissions to this review.

1.20 Chapter 7 sets out recommendations for some additional protections for the privacy of those affected by the legislation. These recommendations acknowledge the degree of anxiety which some people feel in association with the release of adoption information. The Commission proposes the creation of an Adoption Information Exchange, and an Advance Notice System, and a discretionary power to withhold information. These recommendations for change to the law and practice relating to the release of information are intended to provide a degree of relief and protection for those who see the rights created by the Adoption Information Act as unjustifiably intruding on their privacy.

1.21 Finally, in Chapter 8 we make reference to several particular, although minor, aspects of the legislation which in the Commission’s view should be amended.

1. The Commission also publicised the review extensively within the adoption community and the community generally, to legal, medical and social work professionals, and to members of the New South Wales Parliament. Media advertising and publicity by the Commission included the following activities:

• Television interview on a Sydney commercial evening news.
• Radio interviews on approximately 15 metropolitan and country radio stations and networks; one interstate interview; two sessions of approximately 30 minutes each with talkback.
• Press releases to all major radio, television and print media in February and April.
• Press releases to 120 suburban and country newspapers in February and April.
• Press releases to radio and television stations in country areas relating to the public hearings.
• Advertisements in four weekend newspapers circulating throughout New South Wales and interstate during the weekend of 28-29 March 1992, and in one national newspaper, 25 April 1990, and in Koori News, 8 April 1990.
• Advertisements in country newspapers in each of the locations for public hearings; total of 8 advertisements.

3. New South Wales. Legislative Council Standing Committee on Social Issues, Accessing Adoption Information (October 1989) (The Hon Max Willis Chairman); referred to as the Willis Report.

4. New South Wales Privacy Committee Letter (1 April 1992).