Bills

Adoption (Review) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 4.

The Hon. A. PICCOLO: In relation to the issue of information regarding the child's birth details, etc., I would like to clarify something. Could the minister, for my benefit, explain further what information would be available in terms of the birth certificate and any future notation which may be available to the adoptee? I understand that the original information of the child, and to the extent known the biological parents of the child, will be recorded in Births, Deaths and Marriages. In terms of an adoption, there is a capacity to then have some notations and some additional information. My question is: what information would be available to the adoptee, both of the adopted parents and the birth parents?

The Hon. S.E. Close interjecting:

The Hon. A. PICCOLO: Yes, that is right.

The Hon. S.E. CLOSE: Help me if I am not answering the question sufficiently, because we are just working out exactly the different scenarios. When a veto comes to an end, the person who is seeking the information who has been prevented, because of the placement of the veto, is then given information that is sufficient to be identifying of the other party.

It is the information that was held by the department at the point of adoption. We do not seek to find, if we have recent contact and addresses, and so on. It is simply allowing for the information that was captured at the point of adoption to be made available to the other party, which is usually not much more than a name.

The Hon. A. PICCOLO: If I could clarify, the information available to the person once the veto is lifted, for want of a better word, would be that the person would obviously have their adopted name but would also have access to their original biological name if known?

The Hon. S.E. CLOSE: Yes, that is exactly right.

Clause passed.

Clause 5.

The Hon. T.R. KENYON: I move:

Amendment No 1 [Kenyon–2]—

Page 5, lines 12 to 14 (inclusive) [clause 5(6), definition of qualifying relationship]—

Delete the definition of qualifying relationship and substitute:

qualifying relationship means the relationship between 2 persons who are living together in a union that is recognised as a marriage under the Marriage Act 1961 of the Commonwealth or as de facto husband and wife;

The effect of my first amendment is to make the qualifying relationship conform to the federal Marriage Act. Because it mentions the act rather than the arrangements within the act, if the act changes at some point in the future, this will automatically change as well. It incorporates de facto husband and wife. For the moment, under the act it means that adoption will be limited to a man and a woman under the Marriage Act. Of course, if that changes, that will change, but for the moment it will mean a man and a woman.

It goes back to the original point I made in my second reading speech: it is my belief that a child deserves to have access to a father and a mother and that that is the ideal environment for them to grow up in, when a father and mother are living together and love each other and are married, ideally. It holds true to that position that I have. It is sufficiently flexible so that, if things change federally, it will change with it. I also say once again to the committee and to the minister that, in the event that policy within the department changes so as to see so many children needing adoption that the numbers of heterosexual couples seeking to adopt are overwhelmed, then I would be more than happy to come back and revisit the clause.

The Hon. S.E. CLOSE: I would like to express my lack of support for this amendment. I accept that it has been moved in good spirit and with good intentions, but I believe very firmly—and I speak now as a member of parliament rather than as the minister on this conscience matter—that we have now reached an understanding that the sexuality of a couple, the gender composition of a couple, is no signifier at all of their competence as a parent.

What we are seeking is to have the best possible parents available. We have very strong restrictions and criteria for assessing that which already exist, and they should be sufficient. The idea of preventing people from being considered for adoption simply by virtue of being two women rather than a woman and man is something that we now need to leave behind. I note that all other states have taken this step now. In my opinion, it is time for South Australia also to accept that discrimination on the basis of sexuality is not justified in the quality of the parenting the children will experience, and that is what matters.

Mr PEDERICK: I support this amendment by the member for Newland, where he talks about deleting the definition of 'qualifying relationship' and substituting:

qualifying relationship means the relationship between 2 persons who are living together in a union that is recognised as a marriage under the Marriage Act 1961 of the Commonwealth or as de facto husband and wife;

The corresponding line in the current Adoption Act 1988 states:

marriage relationship means the relationship between two persons cohabiting as husband and wife or de facto husband and wife;

Essentially, the member for Newland is bringing it back, almost word for word, to what is in the original act. I support that, and I supported this kind of amendment in my contribution, especially since we are certainly not run off our feet with children available for adoption for married couples or de facto couples. I think part of this bill does give false hope to others. With those few words, I support the member for Newland's amendment.

Ms SANDERSON: I am seeking clarification. I believe that there are two conscience votes in section 12, one being on same-sex couples adopting and one being on single person adoption. If the definition of 'qualifying relationship' changes, then we do not get to have our conscience vote on same-sex couples adopting; however, it looks as though a single person would still be okay under that section.

The Hon. S.E. CLOSE: I can offer clarification, and if parliamentary counsel needs to tackle me and correct me please do so. There are two elements to the conscience vote. There is one on whether or not a qualifying relationship encompasses a same-sex couple. At present, the act has a 'marriage relationship', and it specifically refers to that being either a formal marriage or a de facto relationship between a man and a woman. What we have done in this bill is say that there is a new term: it is not a marriage relationship, it is a qualifying relationship. That means that you qualify to be considered for being an adoptive parent.

To be in a qualifying relationship, the bill has a definition that states that it does not matter whether you are two women, two men, or a man and a woman. That is not germane, so it is irrespective of their sex or gender identity. Should anyone wish to vote against same-sex couples being considered, it needs to be at the point where we define the qualifying relationship, which is where the member for Newland has made his amendment.

When we get to section 12, this is one that enables us to have a single person be considered for adoption. There are two circumstances; one is that the person may be adopting as a single person but in fact be in a relationship with the parent of the child. That is one mechanism. They might be a biological parent, they might be an adoptive parent, but the other person in that relationship—in a qualifying relationship, which will be either a man and a woman if the member for Newland's vote gets up, or it will be any of the three combinations if the definition in the current bill gets up—would be able to adopt.

Subsidiary to that, and where the member for Newland will have another amendment, is the idea that someone who is simply single would be able to be considered to be an adoptive parent. We can discuss that more when we get to section 12. However, to explain, section 12 is about single person adoption in the two forms and the current place is where we need to make a decision as a parliament about whether to be in a qualifying relationship, to be considered as a couple to adopt, it matters whether it is two women, two men or a man and woman.

Ms SANDERSON: As one further clarification, if a single person can adopt without being in a qualifying relationship—because you have specified that in section 12—why can we not change the definition of a qualifying relationship to be in keeping with the federal act, yet in the same way that you have added in a single person, who is clearly not in a qualifying relationship, having the ability to adopt, why could a same-sex couple not be added into that section, therefore pleasing the member for Newland's want for a 'qualifying relationship' to have the same definition and pleasing your want to have same-sex people treated separately?

The Hon. S.E. CLOSE: First of all, a couple is a couple and cannot be treated as a single person. If we are to confuse it slightly, to be talking about section 12, if you are perhaps proposing that a single person adopts a child—which they can do presently under certain circumstances such as a child with severe disabilities—then that person may in fact be a gay woman.

You are suggesting that their partner could then be able to adopt that child also, but only if their relationship fits a qualifying relationship; therefore, this is the point at which we as a parliament must make that decision. It is if there is a couple involved and both are to be the adoptive parents, not one of them but both, then we make this decision now about whether it matters if they are two men, two women or a man and a woman. With great respect, we will continue to have the discussion but I think that vote's time has come.

Ms SANDERSON: I just want to be clear. A same-sex couple still could, with this amendment, adopt but only one of their names could be on the adoption papers.

The Hon. S.E. CLOSE: Yes, there are two elements to that. Only one of them would actually be the legal parent, so if they died then the child would not have a parent unless they were able to trace biological background. Also, we have an amendment before us that would deny a single person the right to adopt unless it was under those current special circumstances, so there is no comfort for people who would like to see a loophole around given that we are discussing both, and having not voted on that we do not know what the circumstances will be. That is why I say that now is the time that we stand up and make that decision.

The CHAIR: So that members are clear, we are looking at schedule 5, amendment No. 1 in the name of the member for Newland.

The Hon. T.R. KENYON: To clarify, I am not attempting to make any comparison about ability relating to the gender and parenting. I agree with what the minister said, that gender is not a measure of ability to parent; rather, it is what is in the best interests of the child in terms of the best possible environment for them and a right for them to have a mother and a father. That is the intent of this, and I will not add anything else to that.

The committee divided on the amendment:

Ayes 16

Noes 27

Majority 11

Amendment thus negatived.

Sitting suspended from 17:59 to 19:31.

Ms SANDERSON: I am withdrawing my amendments due to a further amendment by government.

Clause passed.

Clauses 6 to 11 passed.

Clause 12.

The Hon. T.R. KENYON: I move:

Amendment No 2 [Kenyon–2]—

Page 8, lines 28 to 33 (inclusive) [clause 12(2), inserted subsection (3)(b)]—

Delete paragraph (b) and substitute:

(b) the person is not in a qualifying relationship and the Court is satisfied that there are special circumstances justifying the making of the order.

The amendment makes some changes to remove the automatic right to be considered for single parents, but it does allow a court, or 'the' court in this case, flexibility in the case that it needs, in special circumstances, to make an order for adoption. It allows the court some flexibility but knocks out that automatic right.

My logic is exactly the same: I think that the child has a right to a mother and a father, two parents, and that that is the best possible environment. It is exactly the same logic as my first amendment and extends it to these provisions. With that, I encourage the committee to support the amendment.

The Hon. S.E. CLOSE: I speak against the amendment. In speaking against it, however, I am acknowledging with gratitude that the member for Newland has restricted his opposition to only effectively altering clause 12(2)(b)(i) and therefore has left alone the other conditions under which a person might adopt singly, that being either that they are in a relationship with the parent of the child the person singly is adopting and that in other circumstances a court might regard there being sufficient special circumstances to justify a single person adopting, as is the case currently, and there are many children who are very fortunate to be in a loving home as a result.

However, despite acknowledging that, I would prefer that the committee vote in favour of single person adoption, and I will certainly be voting in favour. The reason I will be voting in favour is that what this bill is all about and what the act is all about is the quality of the experience for the child. If we artificially restrict who may be considered, as opposed to the criteria for their quality as parents, then we risk missing opportunities for people to provide loving and nurturing homes for children.

While the member for Hammond has frequently pointed quite rightly to the fact that very few in-country adoptions occur, nonetheless this bill is the place in which we establish the settings for the quality of an adoptive system. In my view, the lack of a relationship for a person who is genuinely dedicated to being an adoptive parent ought not in itself count them out. The criteria that are listed are clearly articulated, clearly constructed, to make sure that other elements are taken into consideration, including the capability of the person and their networks to provide a loving and supportive environment for the child and that they have sufficient material comfort to do so.

I urge the parliament to support the existing bill and, in doing so, I thank the member for Newland for offering his amendment in a respectful manner.

Mr PEDERICK: Can the minister explain the current clause 12(2)(b)(i), which provides:

(b) the person is not in a qualifying relationship and—

(i) has not been in a qualifying relationship for at least the prescribed period before the making of the order;

I am intrigued to know, if there is going to be single-parent adoption, what the prescribed period would be and why that is relevant as part of the bill.

The Hon. S.E. CLOSE: That is a very reasonable question and one I also asked when Lorna Hallahan presented her report and we started to construct the bill. The point at the heart of this is the idea of stability for the child. On the one hand, when you are talking about a qualifying couple, a couple in a qualifying relationship, you want to know that they have been together for some period of time, and that therefore there is a reasonable expectation that they will stay together, and therefore that the two parents are known quantities and that they will not disappear.

When you are talking about a single person, similarly the desire is to have someone who is in a stable lifestyle. The idea of the qualifying period being the same is that you are not talking about someone who may have had some relationships, they have been unsuccessful for whatever reason, and they may not have resulted in children, and that person then decides that in the next few months they would like to adopt a child. The idea is that they ought to have a settled pattern of existence. Those two experiences are not entirely equal. I can understand why people ask why they should have to demonstrate that they are committed to a single lifestyle, but the idea that sits behind it is a recognition of the importance of predictability and stability.

For that reason, we have captured the same length of time for being in a couple relationship, where both parents adopt, and being in a single lifestyle, where you are not likely to have or you have not had a partner with whom to have a child and therefore it is only you who is being assessed, and the quality of the relationships networks and other provisions that you are able to make for the child are known quantities. That said, in both cases anything can change almost immediately, but the idea is that at the point of time of considering adoption one is making the most reasonable assessment possible about the quality of that life and what it is likely to be like.

Mr PEDERICK: Minister, as I think you have indicated, you obviously cannot control if a single person suddenly starts a relationship a week or two after adopting a child, and the same if a married couple, a de facto couple or a qualifying couple split?

Mr PICTON: I want to add a brief comment to support the member for Newland's amendment in this section. I certainly understand where the minister is coming from. These are difficult areas to try to define and draft in legislation, although I did think that what was originally drafted there was probably, to put it mildly, a bit clunky, and certainly now having some personal experience having two loving parents is certainly an advantage.

While there is a huge number of fantastic single parents, when it comes to an adoption and something that the state is sanctioning there should be some preference for two people in a loving relationship to look after a child, although bearing in mind there will be a number of circumstances in which it would be sensible to have a single person. I think the member for Newland's amendment gives scope for the court to look at the particular circumstances that would apply in that matter. It might be a particular family member, such as an uncle or aunty, for example, who might be the best placed person to look after that child. So, in summary, I support the member for Newland's amendment.

Ms SANDERSON: I want to put on the record the feedback I have had to my office. As to as a single person, a lot of people questioned why it would be five years, but I understand that is the requirement for a married, de facto or same sex couple, should that go through as it has in this bill, so that was the reason. Perhaps the five years could be reconsidered for everybody to make it fairer.

I note that foster carers can be single people, and the minister also mentioned that adoption was considered for single people when it involved a disabled child, which you would think would be the most difficult child to raise by yourself, so clearly we believe a single person has the capacity to raise a child. It would make no sense for them not to be able to adopt a child in any circumstances. My parents separated before I was one, so in effect I was raised by a single parent, so I do not see any problem with it at all. I go against this amendment and commend the bill as it stands.

Mr GRIFFITHS: Can I ask a question of the member for Newland? In flagging it, I support the intent of the amendment, but I am asking for some definition on what is meant by 'special circumstances'. Is there any form of precedence that can give some guidance on what that might be?

The Hon. T.R. KENYON: There is current case law. It is essentially the status quo, and there is current case law they could fall back on that would allow a court to determine what are appropriate circumstances, but there is no definition in either this bill or the current bill that would specify that in any particular place.

Mr PEDERICK: To the member for Newland: you are saying that instead of having a prescribed period, people have to go through an application to the court for your amendment to operate?

The Hon. T.R. KENYON: That is correct, and that is as it stands currently, so the status quo is being maintained.

The committee divided on the amendment:

Ayes 22

Noes 21

Majority 1

Amendment thus carried.

Mr PEDERICK: I can be corrected, but I believe that this is where it brings in same-sex adoption, which is clause 12(1)(b), which states:

…they are in a qualifying relationship and the Court is satisfied that there are special circumstances justifying the making of the order.

Could the minister explain the bit I just read out?

The Hon. S.E. CLOSE: As I attempted to explain earlier, when the member for Adelaide was asking a similar question about whether section 12 refers to same-sex and this was a point at which one could vote against it, no, it does not. The vote is on the definition of what a qualifying relationship is. We have had that vote and at this point in the committee a qualifying relationship is irrespective of sex or gender of the partners in that relationship.

This part refers only to how a qualifying relationship is then acted upon. The main import of it is that although a qualifying relationship, i.e. two people, is the foundation for adoption, there are also circumstances where only one person might be considered to adopt. The definition of 'qualifying relationship' passed just before dinner. That is what the qualifying relationship is. This only says that the couple have to have been in that relationship and living together continuously, as opposed to dating from, say, a time of marriage.

It is the next section that then gets into exceptions where you might consider having one person being allowed to adopt. Most of it, in terms of the number of words, refers to how, if you are still in a qualifying relationship but the other person is already the parent, you as the person who is not the parent can singly adopt.

In the clause that we are debating at present, and we have in fact settled that through the vote that has just occurred, the proposition had been that you could be as a single person for the same period as a qualifying relationship requires and be allowed to adopt. We have decided not to do that, but we have allowed the court to consider special circumstances. Overturning all of clause 12 would not achieve preventing same-sex adoption.

Clause as amended passed.

Clause 13.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [EduChilDev–1]—

Page 9, after line 36 [clause 13, inserted section 14(6)]—After paragraph (d) insert:

and

(e) any changes to be made by the Registrar to the entry in the register of births relating to the person.

I think I explained this sufficiently at the close of the second reading.

Amendment carried.

The Hon. S.E. CLOSE: I move:

Amendment No 2 [EduChilDev–1]—

Page 10, after line 5 [clause 13, inserted section 14]—After subsection (8) insert:

(8a) In addition, nothing in subsection (7) affects the right of an adopted person in respect of whom a discharge order has been made to obtain information in accordance with Part 2A (as if the person were an adopted person).

Amendment carried; clause as amended passed.

Clauses 14 to 18 passed.

Clause 19.

The Hon. S.E. CLOSE: I move:

Amendment No 3 [EduChilDev–1]—

Page 12, after line 40—Insert:

or

(c) in the case of information relating to a person adopted before 17 August 1989—not be in the best interests of the adopted person, taking into account the rights and welfare of the adopted person and any other prescribed matter.

I would like to briefly commend the member for Adelaide for ensuring that we are, between the two amendments which have now resulted in this amendment being considered by the house, really making sure that the welfare and interests of people who were adopted prior to open adoption are protected through this phase-out of the veto by providing the chief executive with the discretion to withhold that additional information in the event that might compromise the rights and welfare of that adopted person. I note, from when the member for Adelaide spoke earlier, that what this particularly pertains to is that the child who was adopted had no legal role in the adoption in the first place and therefore requires special consideration as the circumstances alter.

Ms SANDERSON: I thank the minister for bringing this amendment through. Whilst this is not exactly what I had intended—my amendments would have allowed every child, now adult, who was an adoptee the right of veto—this seems to account for those who perhaps are most aggrieved by the change in process, and I believe there will be counselling and people available to them over the next five years to get the support they need.

I have one question: if the CE determined that the information should be released, even though the adoptee was adamant that they did not want it released and in their mind it would have a negative effect on their life, is there any board or a right of appeal or somewhere they can go if they do not get what they are hoping for?

The Hon. S.E. CLOSE: If I may forestall that, the member for Light had a very similar question and has asked me to think carefully about whether there is an appeal mechanism that is not as expensive as going to the court. What I have agreed with the member for Light, and am happy to convey to the chamber, is that as the bill passes between the houses I will sit down with the Attorney-General and work out if there is an appeal mechanism that makes sense, then we will see how that is resolved in the Legislative Council. I understand the intent of the question and will see if there is a practical mechanism.

Amendment carried; clause as amended passed.

Clauses 20 to 29 passed.

Clause 30.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [EduChilDev–2]—

Page 15, after line 17 [clause 30, inserted section 40A]—Insert:

(3) If the Chief Executive informs—

(a) the birth parents of an adopted person of the adopted person's death; or

(b) an adopted person of the death of a birth parent of the adopted person,

the fact that a direction lodged under section 27B by the deceased adopted person or birth parent (as the case may be) was in effect at the time of death does not prevent the Chief Executive from—

(c) in the case of a deceased adopted person—disclosing to the birth parents information in the Chief Executive's possession relating to the adopted person; or

(d) in the case of a deceased birth parent—disclosing to the adopted person information in the Chief Executive's possession relating to the birth parent.

I believe this was explained sufficiently at the end of the second reading.

Ms SANDERSON: I would like to make a comment. I believe that this amendment was one that we had discussed. I had many people who were concerned that, with the amended bill, they might not be notified on the death of a parent or the death of a child, and I believe that the intent of this is to notify them rather than waiting the five years for the end of the veto.

The Hon. S.E. CLOSE: Correct, and I am happy to acknowledge the role that the member for Adelaide has played in ensuring that this amendment reached the chamber.

Amendment carried; clause as amended passed.

Remaining clauses (31 and 32) and title passed.

Bill reported with amendment.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Minister for Education and Child Development, Minister for Higher Education and Skills) (19:59): I move:

That this bill be now read a third time.

Bill read a third time and passed.