Reverend the Hon. Dr GORDON MOYES: The purpose of the Adoption Amendment Bill is to amend the Adoption Act 2000 to provide for a serious of miscellaneous amendments that seek to increase the operational efficiency of adoption legislation in New South Wales.

Honourable members would be aware that a statutory review of the Adoption Act 2000 was initiated earlier this year, with submissions closing on 31 May 2006. This bill is said not to be in response to that statutory review but to be independent of it. It is said that the bill is as a result of extensive consultation held with interested parties before the introduction of the operation of the Adoption Regulation 2003. Currently we are awaiting the outcome of the review of the Adoption Act 2000 as this is an important piece of legislation for many vulnerable children across this State and it has significant policy implications. The report on the statutory review of the Adoption Act 2000 was tabled in this House in the last parliamentary sitting week. The proposed amendments in this bill are varied in nature and seemingly of minor consequence. They are said to improve the outworking of the process of adoption by removing unnecessary constraints and do not, per se, introduce new policy. Some provisions could be categorised as incidental. However, other provisions are of great significance to children who will be adopted in the future.

Before I discuss the substance of this legislation, I would like to refer to the report of the Australian Institute of Health and Welfare dealing with adoptions in Australia in 2004-05. According to this report there has been a substantial fall in the number of adoptions between the early 1970s and the early 1990s. The reasons for this, of course, are obvious: more effective birth control leading to a decrease in the number of unplanned pregnancies, the provision of income support for single parents and changed community attitudes towards single parenthood. I also add that the abortion laws in Australia, although not legally permissive, have been interpreted in a wider way than merited. With abortions in Australia estimated at around 70,000 unborn children each year, it is a grievous fact that these children are not given the opportunity to be adopted and lovingly cared for when large numbers of parents are seeking to adopt children in this country.

The institute’s report indicates that in 2004-05 only 585 children were adopted in Australia. That constitutes a rise of 17 per cent from the 502 adoptions of 2004. Increases in adoptions are predominantly due to the increased parallel in inter-country adoptions—up from 370 in previous years. Interestingly, the main features regarding adoptions in 2004-05 are that 85 per cent, or just on 500 children, were local and inter-country adoptions, and 15 per cent, or 85 children, were what we call known child adoptions. Of these 86 known child adoptions, 52 were adopted by step-parents, 29 were adopted by carers, and five were adopted by other relatives of the child. Almost three out of four adoptions in 2004-05 were of children from outside Australia.

This bill applies only to children in the Minister’s care until adulthood—an issue that must be remembered when we are talking about children from the Sudan and similar issues. In New South Wales 154 children were adopted between 2004-05. With such small numbers of children finding care and refuge within Australian families and the ever present need for some vulnerable children to find homes, all must be done to encourage the reception of children into stable and loving families. In this vein we place an emphasis on the fact that a child who has a mother and a father in a stable, loving and committed relationship is given the best platform for a happy and secure future.

The bill makes some amendments to adoption orders by the Supreme Court for adults. To date no-one has mentioned that issue. In order for a person aged over 18 years to be adopted it will now be necessary for that person to have been in a parent-child relationship with a prospective carer for at least five years. That rules me out for adoption by Madonna! This is to ensure that the adoptee has been brought up and cared for in a longstanding way, guarding against frivolous adoption applications. Discretion will be given to the Supreme Court to make adoption orders when the period of care is less than five years—that is, only in exceptional circumstances.

The bill makes an important amendment in relation to Aboriginal and Torres Strait Islander children that are adopted by carers of a non-Aboriginal and Torres Strait Islander background. I will speak on this issue for a moment because it is of extreme significance. In these instances the bill will require adoption plans specifically to cater for the manner in which a child will be helped to develop a sound cultural identity. As children from multiracial racial families will testify, an understanding and appreciation of background, heritage, traditions and culture are imperative to fostering a solid identity. It is particularly important in the case of indigenous children, and in light of previous shameful policies such as those brought about in previous generations.

In 2005 the Australian Bureau of Statistics reported that the formal adoption of Aboriginal and Torres Strait Islander children has not been a common practice in recent years. That is generally because of informal arrangements made for them to live with a relative or a member of their community, or within the clan. According to this report, these types of informal arrangements are mostly preferred, and adoption orders are made only when informal alternatives are judged not to be in the best interests of the child. As a matter of fact, the Aboriginal organisations that I contacted declared that the concept of adoption is quite contrary to the philosophy of care among Aborigines. Aborigines prefer to be cared for within the much wider extended family, or even the tribal group.

Between 1999-2000 and 2003-04 there were only 15 registered adoptions of Aboriginal and Torres Strait Islander children in Australia. That is 15 over a three-year period. Seven of these were known child adoptions where the adoptive parents had a pre-existing relationship with a child; and eight were placement adoptions where there was no pre-existing relationship between the parent and the child. Of the eight indigenous placement adoptions recorded between the years 1999-2000 and 2003-04, four were adoptions by indigenous parents and four were adoptions by other parents. It can be seen that with only 15 indigenous children in total, that is a very small number of people over such a long period.

The bill makes an important amendment to section 67 of the Act which deals with consent dispense orders. This amendment will add to the criteria listed in section 67 (1) (c) which the court is to consider when dispensing with the consent of the parent or guardian of the child to the adoption. Currently, the court, for instance, may dispense with consent when a person, after reasonable inquiry, cannot be found or identified. Other criteria are also listed. However, the guiding principle for the court is that the best interests of the child are to be served in dispensing with consent. The bill introduces a debatable criterion that caters for circumstances where dispensation may be necessary to enhance the child’s sense of belonging and permanence in the carer’s family but where there is no concern about the child’s current welfare.

It is important to remember that the court will make determinations that are in the best interests of the child. Within this context, for children aged 12 years and above, the child’s consent will also be required. Importantly, in those cases where the indigenous child is less than 12 years of age and under the parental responsibility of the Minister, and there is a risk that the parents’ consent might come into force, the department has indicated that the Aboriginal placement principles will be carefully followed. These principles require that preferences be given to placing indigenous children with indigenous parents, whether they are relatives or next of kin. In accordance with the representation from indigenous stakeholders that we have contacted, it is of utmost importance that all must be done to place indigenous children with fellow indigenous persons.

An amendment with important operational implications relates to facilitating the return of children to the parental responsibility of the director general of the Department of Community Services where a pre-adoptive placement has been terminated. Difficulties have emerged in such circumstances as the prospective adoptive parents have hesitated to relinquish care and responsibility of the child back to the director general. From a legal standpoint it is crucial that children in such circumstances come under the care and responsibility of the director general; they cannot be left in legal limbo. Honourable members would know that, under the State Records Act 1998, many documents of vital State significance and papers of inherent historical value are archived for safekeeping. State Records has archived original documents under the responsibility of the Department of Community Services and some of these documents include adoptees’ birth certificates and photographs of the family and of the children themselves.

Clearly, to an adoptee such material is of significant and sentimental importance. The bill will ensure that the provision of original documents to adopted children when they reach the age of 18 years does not contravene the State Records Act 1998. This is a very compassionate move, and I commend the Government for it.

The bill enables the prescription of adoptive services and accreditation standards to be effected by publication in the Government Gazette rather than by regulation. This will remove parliamentary scrutiny of those adoption services and classes of adoption services that are listed by the director general. If these items are gazetted there is no scope for disallowance by Parliament. It would be interesting to know why the prescription of adoption services and accreditation standards will be effected in this manner. The bill aligns the terminology used in the Act with the terminology employed in the Children and Young Persons (Care and Protection) Act 1998.

Honourable members will recall that a great deal of concern and controversy has been expressed in the House about a number of issues, including the level of consultation with indigenous groups, a particular court case that is pending on the issue of a consent dispensation order, and the retrospective aspect of the bill. I met advisers from the Minister’s office who have responded to our concerns. I will detail briefly both my concerns and the response that was provided by the Minister’s advisers. In the matter of consultation, in the crossbench meeting last Tuesday week we heard from peak representatives from the indigenous community about the level of consultation in relation to the bill. In their view no consultation had ensued. However, according to the advisers, one of the peak representatives, known as Link-Up, is a member of a committee that was established in response to the need to review the Adoption Regulations 2003.

Further, the amendments in the bill—that were not supposed to change the underlying policy of the adoption regime—were agreed to by the committee, including members of Link-Up, during the consultation process in 2002-03. It is not entirely clear why a time frame of three years passed before the amendments were enacted. If agreement was reached on the amendments close to three years ago it arguably defies commonsense to introduce them now. According to the advisers, the amendments were incidental and non-controversial in nature. My office also asked whether the advisers had touched base with Link-Up prior to the introduction of the bill. The advisers said that they had not, but they reassured my office that they would continue to endeavour to make contact with Link-Up in order to clarify any further concerns the organisation may have. However, it seems as though the Department of Community Services [DOCS] continues to have communication difficulties with Link-Up even now. The organisation was extremely surprised to hear Minister Meagher claim recently that Link-Up was satisfied with amendments to the bill.

Mr Ian Cohen: No.

Reverend the Hon. Dr GORDON MOYES: As far as Link-Up is concerned, that could not be further from the truth. The organisation is reportedly absolutely disgusted with the Government’s failure to consult it, and continues to withhold support for the bill. I thank my colleague Mr Ian Cohen for reasserting that view because I know he has checked out that matter as well. Some concern was also expressed in relation to the retrospectivity of the bill. The advisers confirmed that there is no retrospective clause in the bill. The savings and transitional provisions of the bill will deem the bill, when passed, to apply to all court cases on foot at the time of the bill’s implementation. The operation of the savings and transitional clauses was the source of confusion about retrospectivity. That is no longer an issue.

Most importantly, however, concerns have been expressed about the placement of indigenous children with non-indigenous carers. Importantly, honourable members must understand that the bill does not introduce this practice. Arrangements for the placement of indigenous children are already in place, and this occurs in only a handful of cases—I think there were four such placements over a period of three or four years. The bill does not compel the court to order indigenous children to be placed with non-indigenous carers. The department, pursuant to the Aboriginal placement principle, endeavours to do all it can to place indigenous children with indigenous parents.

There was a claim that the bill will affect a court case that is pending appeal in the Supreme Court. I have been advised by the Minister’s office that the court case referred to by the Franciscan nuns will not be affected by the bill. According to advice proffered, the case does not deal with the same situation governed by the consent dispensation provision to be amended by the bill. I am informed that this is primarily because in that case the Minister does not have parental responsibility for the child or children in question. Section 67 can apply only when the Minister has parental responsibility.

Finally, I turn to the concerns expressed by the Franciscan Missionaries of Mary. The Franciscan Missionaries of Mary, who are based in the inner west, have raised deep-seated concerns about the bill and proposed that a number of amendments be made to it. Although I have decided not to move the amendments because I believe they should form part of the review of the Adoption Act, I will bring them to the attention of the House because they relate to provisions in the bill and are certainly worthy of consideration by honourable members. The Franciscan Missionaries of Mary have questioned why, in the event of an indigenous child being placed with non-indigenous adopted parents, adoption plans must deal specifically with maintaining cultural identity when this principle does not apply to children from any other ethnically diverse backgrounds. They would like to see the maintenance of cultural identity included in all plans for adopting children from any culture or ethnic background.

The Franciscan Missionaries of Mary find that the “most troubling aspect” of the bill is schedule 1 [6], which would widen the grounds upon which a court can override the requirement for consent of parents or guardians in providing a child for adoption. As I alluded to earlier, under existing section 67 (1) consent can be overridden only if the parent-guardian cannot be located or identified, the parent-guardian is incapable of making such a decision, or when there is a “serious concern” for the welfare of the child and it is:

… in the best interests of the child to override the wishes of the parent or guardian.

However, the bill will allow the consent to be overridden by the court if the child has a “stable relationship” with his or her carer and adoption will “promote the child’s welfare”. It is unclear exactly how this provision will be used, but it certainly could be used in situations that fair-minded people would find unacceptable. The Franciscan Missionaries of Mary put the potential of this provision succinctly, when they say:

In phrasing the amendment in such broad terms, the bill introduces a degree of uncertainty into the very serious decision to circumvent one of the key guiding principles of adoption legislation in NSW. In particular, there are arguably far too many circumstances in which it could be determined that a child’s welfare could be “promoted” by locating them in another family environment—for instance access to private tuition, living in an urban area closer to amenities etc—that are perhaps not strong enough bases for deciding to dispense with a parent/guardian’s unwillingness to consent to the adoption going ahead.

The Franciscan Missionaries of Mary have also raised concerns about proposed section 79 (1) (d), which gives DOCS powers to remove without reason children awaiting adoption in the care of their parents or guardians. Surely DOCS should require a reason—ideally, a good one—for taking any child away from parents. If DOCS were required to give a reason before taking children out of their home it would allow the decision to be contestable in court. However, without the legal requirement for a reason to be given, there are no grounds upon which a parent or guardian should or could contest the decision of DOCS. The bill puts far too much power in the hands of DOCS and removes from parents the right, and perhaps the responsibility, to question the actions of DOCS in court. Some questions have also been raised about the similar increase in police powers to take children without a stated reason or explanation. I ask honourable members to consider the important objections to the provisions of the Adoption Amendment Bill raised by the Franciscan Missionaries of Mary.

I would also like to place on record the curiosity over why these amendments were not introduced after the statutory review of the Adoption Act. The Minister’s advisers indicated that the amendments in this bill are technical in nature and that policy issues are to be dealt with by a future Parliament in follow-up legislation to the Adoption Act. However, I think it is quite clear that this bill is certainly not “purely functional”, as has been claimed by the Department of Community Services and the Minister. To the contrary, it would have the effect of beefing up the powers of the Department of Community Services potentially at the expense of reasonable parents, guardians and carers. It has been argued that these changes lack substantiation and are being introduced “for no good reason” or cases that have shown the current legislation wanting.

Before concluding, I would like to make comment about the statutory review of the Adoption Act. This review has had many people concerned in the field of foster care and adoption, particularly where same-sex couples are involved. This is a field in which I have been engaged for more than 40 years. Some agencies—and the one I have represented for the past 30 years in Sydney—cannot in conscience take children who have been committed into their care and hand them over to same-sex couples for fostering. This has led some same-sex couples to take the agency concerned, including mine, to the Anti-Discrimination Tribunal for refusing to assign children to them for foster care.

The adoption of children by same-sex couples is anathema to many agencies. It is strongly opposed by all Muslim, Roman Catholic, Orthodox and Anglican agencies and almost all Protestant agencies. If the Minister, in acting on the statutory review or the details of this bill, is tempted to wander into the field of changing by regulations the current restrictions on adoption and foster care, it will be regarded as a major issue by all agencies in this field and their support bases. We will fight that move to the end. Otherwise, the Christian Democratic Party is pleased to support the Adoption Amendment Bill.

Tuesday, 21st November, 2006, 9:28 pm | Articles