Bills

Adoption (Review) Amendment Bill

Committee Stage

In committee.

(Continued from 6 December 2016.)

New clause 18A.

The CHAIR: Mr Brokenshire, are you looking at withdrawing [Broke-2]?

The Hon. R.L. BROKENSHIRE: I advise the house that I will be withdrawing [Broke-2] and replacing it with what was filed yesterday, [Broke-3]. I seek leave to withdraw [Broke-2].

Leave granted; amendment withdrawn.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Broke–3]—

Page 12, after line 31—Insert:

18A—Insertion of section 26B

After section 26A insert:

26B—Selection of applicants for adoption order—married and de facto couples to be given priority

(1) The Chief Executive must, in selecting a prospective adoptive parent or parents to be applicants for an adoption order, ensure that, if—

(a) more than 1 prospective adoptive parent or parents on the relevant register or subregister (whether registered as joint prospective adoptive parents or as a single prospective adoptive parent) are equally suitable to adopt a child of the kind to be adopted; and

(b) it would be equally in the best interests of the child for the child to be adopted by any such prospective adoptive parent or parents,

prospective adoptive parents living together as husband and wife or de facto husband and wife are given priority over any other prospective adoptive parent or parents on the register or subregister.

(2) Subsection (1) does not apply to a prospective adoptive parent or parents registered as applicants for an adoption order before the commencement of that subsection.

(3) In this section—

register or subregister means a register or subregister kept for the purpose of selecting applicants for an adoption order.

I thank honourable colleagues for their input and consideration yesterday with [Broke-2], which I have withdrawn after what I thought were some very sensible comments on that amendment and suggestions that perhaps there was another way that could bring about a more balanced outcome with respect to my intent.

After deliberating on that for some time, yesterday I filed amendment No. 1 [Broke-3]. Effectively, to summarise, the amendment says that if all things are equal in the consideration of the wellbeing of the child for adoption and do not take away from whatever the situation is of that family or partnership or relationship, and the best interests of the child are for the child to be adopted by any prospective adoptive parents or parent, the prospective adoptive parents living together as husband and wife or de facto husband and wife would then have priority over any other prospective adoptive parent or parents on the register or subregister. That is the intent of this amendment in a nutshell, and I ask the chamber to consider it.

The Hon. J.S.L. DAWKINS: I was trying to get my head around the Hon. Mr Brokenshire's amendment yesterday and I have now been looking at what we are currently looking at. I have a question for the Hon. Mr Brokenshire. How would you propose that the priority the chief executive must give when selecting prospective adoptive parents, as you have described and as proposed by this amendment, would operate in practice?

The Hon. R.L. BROKENSHIRE: I thank the honourable member for his question. Obviously, I am not the chief executive, nor will I ever be the chief executive considering this matter with the relevant people the chief executive would have around her or him. Under the current legislation, without this amendment, they have to prioritise the matter around the request for adoption of that child. In the objects of the act, as I read out yesterday, there are clear objectives that state what the chief executive must consider, the key point being the best interests of that child.

When the executive has considered and weighed up all of that, if there are three or four families that are being considered for that adoption, then, just like they have to make a decision on those three or four families for all the other reasons, ultimately, if they all line up equally and there is one couple that is same-sex and one couple that is heterosexual, so that they would be offering a situation where there is an adoptive mother and an adoptive father, then they would have priority after the chief executive has considered everything else. I am sure they have a template already on how they look at matching up and consider the welfare of the child.

The Hon. S.G. WADE: I would like to start a separate line of questioning so that I can understand how the agency has to work with this act. I appreciate that we are dealing with very low numbers. I think the minister advised us that there had been zero to three in recent years, so in the statistical sense there is probably no significance in this. Could the minister advise the committee how many of the adoptions that are being made in the modern era would be 'known adoptions', I think they are called, and whether known adoptions include foster carers as well as relatives or whether relatives are a separate category? If they are a separate category, what would the breakdown be?

The Hon. I.K. HUNTER: Before I answer the question posed by the Hon. Mr Wade, I will put on the record some updated information so that we do not need to use the zero to three anymore. I provided an estimate yesterday which was in the range of zero to three in recent years. As at 6 December 2016, there were three couples on the register seeking to adopt a local child and another 10 couples going through the recruitment process. In terms of intercountry adoptions, there are currently 100 couples on the register seeking to adopt a child from another country. That gives us a bit more precision so that we know what we are dealing with.

In answer to the Hon. Mr Wade's question in terms of adoptions in recent years and what he referred to as 'known adoptions', the categories include all those that he listed, but I am advised that there has not been a foster care adoption in over a decade. I am also advised that a court is unlikely, except in very exceptional circumstances I suppose, to grant adoption to existing relatives because it would change the family relationship for the child, so that is not a standard process, I understand. Most adoptions that are currently known as known adoptions are step-parent adoptions.

The Hon. S.G. WADE: To put the question another way, what proportion of adoptions in recent years have been to a person not known to the child?

The Hon. I.K. HUNTER: My advice is there were two adoptions this year, two adoptions last year and one the year before, so we are still in the range of zero to three. To give you a rough idea of the proportion, I am advised that, if we are talking zero to three, there may be one step-parent adoption and the other two would be infants surrendered to parents not known to the infant's immediate family, for example, so not a known adoption.

The Hon. S.G. WADE: The reason I am asking this is that, as I understand it, Mr Brokenshire's amendment deals with people coming from the register, but the adoptive parent may not be somebody from the register. They may be known to the child in some other way, and the agency makes an assessment that it is in the best interests of the child for the child to be with somebody who is known. If that is my line of thinking, is it fair to say that Mr Brokenshire's amendment would be relevant to 80 per cent of adoptions because 80 per cent of adoptions relate to potential adoptive parents who are on the register?

The Hon. I.K. HUNTER: Just a little wrinkle in that—it is more likely to be 100 per cent if we are talking about parents on a register. Step-parent adoptions obviously usually go to a step-parent, and they are not on the register; they are not waiting for adoption, for example. All the adoptions that may be classified as 'known adoptions' are probably not adoptions that go to people who are already waiting on the register for adoption.

The Hon. S.G. WADE: That is really my point. The 20 per cent who are known do not even engage the register and therefore will not even engage the potential criteria the Hon. Mr Brokenshire suggests should be in the act, but it still might be relevant for the 80 per cent.

If I might take the next step—and if I need a corrective, you might roll it in with the next answer—further on in the process, section 15 of the current act, as I understand it, requires that the relinquishing parents be engaged in the process. If a relinquishing parent had the view that they did not want their potential child to be adopted to a family of a particular family form, would that be a wish that would be respected by the agency?

The Hon. I.K. HUNTER: My advice is that is currently the situation, and that is captured in regulation 19, which is known as a placement regulation. The relinquishing parent has a large role to play, and the chief executive pays particular attention to that. Of course, the reason is that these days, more than in decades past, the relinquishing parent often has a relationship with the child as they grow up and so it is not in the best interests of the child to place them in a family situation the relinquishing parent would have difficulty engaging with. There, the interests of the child and the interests of the relinquishing parents are taken into account through regulation 19.

The Hon. S.G. WADE: So, it is not that the wish of the parent trumps other interests but that the parents' potential wish is taken into consideration in the assessment of all the interests. For example, if the relinquishing parent was so removed geographically and in terms of interest that there is unlikely to be engagement with the child, that might therefore be a lesser factor.

The Hon. I.K. HUNTER: My advice is that is correct.

The Hon. P. MALINAUSKAS: I would like to continue down the line of questioning the Hon. Mr Wade has pursued. This is particularly important to me in the context of the decision that, to be honest, I am deeply struggling with regarding my vote on this legislation, including this amendment in particular. I have sought out the regulations to which the minister has referred in regard to the role of the relinquishing parent, or the biological parent, in respect of seeing their wishes realised in regard to the type of family arrangement that a child could go into. I want to seek some clarity around that now that I have the regulations in front of me.

My reading of the regulations, and I will happily be corrected if I have misinterpreted any of this, is that the chief executive has to be satisfied that the wishes of the child's birth parent or guardian are taken into account when contemplating an applicant as an adoptive parent. I would seek some clarity in regard to what extent that means that the biological parent has the capacity, in essence, to say, 'I do not want my child to be adopted by a same-sex couple,' and then that being realised.

The Hon. I.K. HUNTER: My advice is that that is so. Relinquishing parents, or the biological parents, almost always have a very high involvement in the determination of where the child they are relinquishing for adoption is placed. Something I was not aware of, which might be of interest to honourable members, is that, in making this determination, the department provides de-identified profiles of adopting couples to relinquishing parents, so that they can choose where they think their child will be best placed. The situation the honourable minister outlined is correct: the chief executive has very high regard to the wishes of the relinquishing parent, to the point where, I am advised, they are almost always adhered to.

The Hon. P. MALINAUSKAS: I thank the honourable minister and his adviser for their answer. Can the minister outline a circumstance where a biological parent indicates that they do not want their child to be adopted by parents of a same-sex couple but where the chief executive would have the authority to overrule that indication and allow a same-sex couple to adopt that child despite the parent's wishes?

With your indulgence, Mr Chairman, I should take the opportunity to articulate the context of my question. At the heart of this for me is: who has the moral authority to make these judgements? The Hon. Mr Brokenshire's amendment—I think, with good intent—seeks to establish that one form of relationship is superior to another in respect of a capacity to deliver an outcome for the child. I and others, I think, will reasonably have a very different view about the idea of creating such a distinguishing view.

Many people—I think, reasonably—would make the assumption or come to the view that a gay or lesbian couple is equally as capable as a heterosexual couple of providing a loving environment in which to raise a child. That point of view in many respects appeals to me, but similarly, the decision is also being looked at in the context of who has the moral authority to deprive the child of having either a mother or a father. Therein lies my struggle. I struggle with the idea that I would form a view or support a piece of legislation or regulation that would say that a lesbian couple or a gay couple is incapable of providing an equally loving relationship as a heterosexual couple.

I deeply struggle with that concept but, equally, I struggle with the idea that a piece of regulation or legislation I might support would deprive a child of access to either a mother or a father. These are deep questions that I struggle with. On what basis or on what moral authority do I exercise either judgement? Ultimately, that judgement has to rest with the people who have ultimate responsibility for the love and care of a child, and they are the biological parents.

I am trying to satisfy myself that that responsibility is realised in legislation or in regulation. If a biological parent is deprived of their ability to make that judgement call, then there is a problem and maybe, therefore, Mr Brokenshire's amendment is more palatable in that context. The extent to which I can be satisfied that a biological parent is able to make that incredibly profound judgement will go a long way to informing my view and determining how I vote on this particular amendment and legislation.

The Hon. I.K. HUNTER: I thank the minister for his question and his explanation of his thinking. There are a couple of things I need to say about this to the house. I should say that my adviser is an experienced practitioner in the field of adoption, and so her advice on this is particularly useful for me. She has advised me that, in 22 years of practice, she cannot recall an experience where the department has ignored the wishes of the relinquishing parent in regard to the background, or the family, that the adopted child will be going into.

The honourable minister asked what is the circumstance—the hypothetical circumstance, in our situation, as it has never happened here because, currently, homosexual couples cannot adopt—that would allow the chief executive to, for example, override a wish by the relinquishing couple that a child not be adopted by a gay couple. There is no circumstance of that here, as I just outlined, but we can look at situations where single people can adopt in this state. Again, as people understand through our debate, we know that is only in exceptional circumstances.

Exceptional circumstances could be that the child has such significant or high-level needs, perhaps of a medical nature or, as we know through our discussions, of a severe disability nature, where the couple, a gay couple perhaps or, as in past practice, a single person, has particular expertise or medical background in that particular medical situation or disability. Another instance could well be—again, this has not been experienced to date, to my knowledge—an older child who has a cultural and linguistic background that is specific, such as an Indian child who speaks Hindi. It may well be that then the cultural background of the prospective parents, and the language that they speak at home, may be taken into consideration, all other things being considered.

As I said, my advice is that, in 22 years of practice, my adviser has not seen a situation where the wishes of the relinquishing parent were ignored in respect to the type of family that the child was being adopted into. The hypothetical circumstance where that wish would be overridden in terms of a gay couple would really be exceptional, and it would only be in the situations I have outlined where there are very significant high-level needs that could not be met by another parent.

The Hon. K.L. VINCENT: I have a few questions, some for the mover and some for the minister, with your indulgence, Chair. My first question is to the mover of this amendment. I note with interest that his amendment essentially says that, if all things are equal—if we have a same-sex couple and a different-sex couple and their material, emotional and financial ability to care for a child or young person is the same—then preference should be given to the heterosexual couple.

My question to the mover in terms of his understanding of the impact of the amendment is: if all things are equal, then are not all things equal? If both these couples have the same ability, in terms of their resources and stability of family structure, to take care of the child, then what is the real-world impact of the mover's amendment in terms of why it is still preferential that they go to a heterosexual couple even if there is the same ability to care for the child, all things being equal?

The Hon. R.L. BROKENSHIRE: I thank the honourable member for her question. The answer to that is I have made this amendment on the basis that if all things are equal, other than the fact that one is a heterosexual couple and one is a same-sex couple, then there are arguments morally, and other arguments as well, depending on what documents you read and what you believe and do not believe, that that child still has a better opportunity if they are in contact with both a mother and a father, as was always the biological intent of how we are created.

Some people will not like me saying that, but that is the reality. If it is all lined up and it gets to that point, then I have moved this amendment because, being a parent myself and watching three adult children grow up, I strongly believe that, probably for the first two years of their lives, all of my children mainly needed to be with their mother. That was the reality. I was not such an important part, although I still had a part to play. Certainly, from two years of age onwards, right up to and including now—with the eldest being 30, and the others 29 and 24, well educated and one a mother herself—they still come and see their mother, or speak to their mother on certain matters, and they still come and see me as their father and speak to me on certain matters.

I am of the strong belief that if everything else is equal and there is an opportunity for a heterosexual couple to ultimately have that adoption, the reality is, from my amendment, they would have priority at that point in time. If they are not equal and the same-sex couple clearly has attributes that are above the other applicants, then I expect that same-sex couple would be signed off by the chief executive officer. But, where they are absolutely equal, then the point I raise is one which I strongly believe in morally. I have read a lot of documentation and scientific research that shows there is a real benefit in having a mother and a father.

I cannot be more open and honest than that. It is the call of this chamber as to what they ultimately say. I am only one member, but I very strongly and passionately believe in that, and that is why I move this amendment. It is not cutting same-sex couples out of having an opportunity to adopt. A same-sex couple can be loving and caring and give a child everything, but I still stand by my point about the moral issue, the biological intent for us as human beings and the scientific research that shows that a child needs a mother and a father wherever possible.

The Hon. K.L. VINCENT: Aside from his experience with his own children, as well educated and wonderful as I am sure they are, can the Hon. Mr Brokenshire name any of these scientific documents he has read which have led him to this view? Is there anything outside of his own experience and his own, as he puts it, 'morals' upon which he forms this view? If so, can he name those documents and that research?

The Hon. R.L. BROKENSHIRE: I cannot name the studies now; I have read plenty of documents. The honourable member has had plenty of time to do her own research. I am not going to name the studies. To give you one example, if you want to put it on the table right now, in the last two weeks scientific research has been done on the education of children. There is an urgent call to get more males into primary school teaching. That is one example. The reason for that, with all the scientific research, is that there are not enough male teachers in the classroom.

There are many children who do not have the opportunity, for a variety of reasons—in fact including the incredible growth that we are seeing of children coming under the guardianship of the minister in this state and the problems that we are facing with that. The scientific research, just in one area of the development of a person for their life and future, and the support they need for that, is more male teachers in primary schools. That is just one example that is being debated right now in Canberra. It was tabled just two weeks ago, and there is a desperate call there.

I am not going to spend an hour speaking. If you want to report progress, I will get the documentation and bring it in, but in reality what we put forward is clear-cut. I strongly and passionately believe that this is a fair and reasonable request for a very difficult and complex piece of legislation. It is one of the most complex and difficult pieces of legislation that I have had to grapple with in my time in the parliament, and I am sure that is the same for every other member.

What we are doing in South Australia today is obviously giving a much, much broader opportunity for non-heterosexual couples to adopt the very few children who are adopted in South Australia: nought to three in a year, for whatever reason. When I was at school, there were plenty of kids who were adopted. It seems that there are fewer who even get the chance for adoption now. There is growth in intercountry adoption, and for whatever reason—and I do not know the reason—there is such a smaller number available for adoption, but we are going to give same-sex couples that opportunity. All I am asking for is one amendment that says, where they do line up, the priority goes to the heterosexual couple. That is all I am asking; it is clear-cut.

The Hon. K.L. VINCENT: Can I just clarify with the minister that same-sex couples seeking to adopt do have to meet the same criteria in terms of their financial, material and emotional ability to care for a child as a different-sex couple might? Also, does anything in this bill preclude or prohibit the involvement of biological parents if a child is adopted by same-sex parents?

The Hon. I.K. HUNTER: At one stage, the regulations lay out the assessment criteria and yes, all prospective adopting parents would have to meet the same criteria. What was the second question, sorry, Kelly?

The Hon. K.L. VINCENT: Would anything in this bill preclude or prohibit the involvement of biological parents if they chose to be involved if the child is adopted by a same-sex couple?

The Hon. I.K. HUNTER: My advice is no. The advice of the eminent practitioner next to me is that that would be sought to be maximised because it is in the long-term interests of the child to have an ongoing relationship with their relinquishing parent.

The Hon. K.L. VINCENT: That was my understanding, but I think it is good to have that on the record.

The Hon. S.G. WADE: I am wondering whether the minister might answer the question the Hon. Kelly Vincent posed to the Hon. Mr Brokenshire. To rephrase it, as I understood it: is the minister aware of any research that suggests the former family of an adoptive family makes a difference to the outcomes for the child?

The Hon. J.M. GAZZOLA: I just did a quick Google search on this tablet, and basically there is quite a number of studies—for example, 'Study finds same sex couples make better parents: is it because they're more prepared?' (Medicaldaily.com); 'Children raised by same-sex couples healthier and happier, research suggests' (ABC News, July 2014); and 'Fact or fiction: a mother and father is better than same-sex parents' (Fact Check ABC News, July 2015). The last article summarised 100 studies, which is quite interesting. A US study of 44 randomly selected teenagers raised by same-sex couples showed that they had a high level of esteem. That is just to assist the Hon. Mr Brokenshire and the committee.

The Hon. I.K. HUNTER: In response to the Hon. Mr Wade, I am advised that Associate Professor Lorna Hallahan did exhaustive literature research for the Adoption Act review in 2015, which she superintended. I am advised she found no convincing evidence in the literature against same-sex parenting, and therefore came up with a recommendation, as we see formulated now in the bill, which does not seek to preference heterosexual couples over homosexual couples.

Whilst I am on my feet, I will again put on the record my opposition to Mr Brokenshire's amendment [Broke-3]. The amendment appears to provide that the chief executive must prioritise a heterosexual couple over a same-sex couple or a single person if comparing more than one prospective parent or set of prospective parents who are equally suitable to adopt a child and are equally able to care for the child in consideration of the child's best interest.

Following the recommendations of the independent review of the Adoption Act and the South Australian Law Reform Institute's audit report into 'Discrimination on the grounds of sexual orientation, gender, gender identity and intersex status in South Australian legislation', the bill seeks to remove the discriminatory impacts of the Adoption Act. Given the revised status of the honourable member's amendment, the fact remains that the bill seeks to provide that the best interests, welfare and rights of the child, both in childhood and in later life, must be the paramount consideration.

If both a same-sex couple and a heterosexual couple can equally provide care for a particular child, in the child's best interest and, I would suggest, on the basis of the SALRI report and Associate Professor Lorna Hallahan's extensive literature search, there seems to be no sound reason as to why the chief executive ought to discriminate against same-sex couples.

Clearly, the question for honourable members is: if you believe that you should discriminate against same-sex couples and give preference to heterosexual couples, then you will vote for the Hon. Mr Brokenshire's amendment. If you believe, however, that there is no sound reason to discriminate and if you want to remove the existing discriminatory provisions in the Adoption Act, then you will vote against the Hon. Robert Brokenshire's amendment.

The Hon. T.A. FRANKS: I have an entirely different approach to this particular amendment, aside from the same-sex couples versus heteronormative couples, who are advantaged. Yes, this is a really difficult bill. One of the reasons that rates of adoption are so low is because we have a very dark history on adoption in this country. We have the forgotten Australians. We have people who were taken from single parents, shipped overseas to Australia and given to nice heterosexual families. In fact, they were often put to work as child labour, sexually abused or lived horrific lives in institutions in this country because it was seen that a single parent was not good enough for them in their home country.

We have a history in this nation of a stolen generation of Aboriginal people. That is why, if you read the Hallahan report, there is specific mention made of the adoption of Aboriginal and Torres Strait Islander children. I believe this amendment preferences a good white couple over a potential auntie or granny adopting an Aboriginal or Torres Strait Islander child. This is a live issue because, according to page 23 of the Hallahan report:

In 2013-14, 7 Aboriginal children were involved in finalised adoptions. All of the children were adopted by carers known to them.

I have to assume, but I would like some clarification from the minister as to whether or not all of those children were able to be adopted out to married couples.

The Hon. I.K. HUNTER: I deeply apologise, Hon. Ms Franks. Could you briefly recap that question for me?

The Hon. T.A. FRANKS: Certainly. I am referring to Aboriginal children, who we prioritise currently to be placed with Aboriginal carers so that they can keep cultural contact and to make amends for our history of a stolen generation where we took Aboriginal children away from loving parents for no reason other than they were Aboriginal.

The Hon. P. Malinauskas: What's that got to do with Brokey's amendment?

The Hon. T.A. FRANKS: Because, in terms of adoption, this amendment prioritises a heteronormative couple over anyone else. That includes single people. That includes a potential auntie or granny of an Aboriginal child. I know a lesbian couple who are raising a Ngarrindjeri boy with the blessing of the mother, who relinquished that baby at birth. Would you have that child taken away from that situation? He is now eight years old—

The Hon. P. Malinauskas: I am not sure what race has got to do with this amendment.

The Hon. T.A. FRANKS: Race has everything to do with this. We already have a system in this state where we do not place Aboriginal children with non-Aboriginal carers, if we can help it, so why should we set up a system where we have people prioritised in an adoption that does not take into consideration their Aboriginal or Torres Strait Islander background?

Members interjecting:

The Hon. T.A. FRANKS: I am simply answering the questions from the minister, who is—

The CHAIR: Order! The honourable member has the floor.

The Hon. S.G. Wade: Provoking you.

The Hon. T.A. FRANKS: —asking me. If you do not see what this has to do with anything, I do not understand how you can come to this place and think that you know about this issue.

The Hon. I.K. HUNTER: In response to the Hon. Tammy Franks's question about Aboriginal adoption, the government has accepted the advice of Associate Professor Lorna Hallahan in her review. As such, Aboriginal child placement principles have been elevated in this bill to give them the recognition that what the Aboriginal community—indeed, the relinquishing parents in many cases, if there are any—would want is a placement in a family situation. Again, that would not only be in the best interests of the child but also maintain their cultural connections. However, my advice is that there has not been an Aboriginal adoption in this state for about 15 years or slightly more.

The Hon. T.A. Franks: That's not what the Hallahan report says.

The Hon. S.G. WADE: The Hon. Tammy Franks interjects that that is not what the Hallahan report says. What I understood the minister to say was that this bill effectively elevates—sorry, I want to give the minister the courtesy of being able to hear what I say. My understanding is, and probably the adviser as well—I do not know if we want to adjourn so that we can have a conference or something.

The CHAIR: The Hon. Mr Wade has the floor.

The Hon. S.G. WADE: My understanding from what the minister said to the Hon. Tammy Franks is that this bill elevates the Aboriginal child placement principle to a principle within the act. Section 11(1) of the Adoption Act, which talks about the adoption of an Aboriginal child, provides:

The Court will not make an order for the adoption of an Aboriginal child unless satisfied that adoption is clearly preferable, in the interests of the child, to any alternative…

Then subsection (2) provides:

…an order for the adoption of an Aboriginal child will not be made except in favour of a member of the child's Aboriginal community who has the correct relationship with the child in accordance with Aboriginal customary law…

My understanding of that clause is that it is not, shall we say, another factor to throw into the equation for best interests but that it is a separate test. For example, let's take the Aboriginal mother whom I think the Hon. Tammy Franks was referring to and the fact that she had a preference for a non-Aboriginal adoptive parent. That could be overridden by the agency that makes the assessment. I understand the statement that the wishes of the relinquishing parent are not sacrosanct; they are not a veto. In that sense, this clause would make the Aboriginal child placement principle separate from the mix of priorities that go into assessing the best interests of the child and is a second test.

The Hon. I.K. HUNTER: My advice is, I suppose, yes, that is so. However, in practice, particularly in relation to Aboriginal children, I am advised that we would then proceed to ask ourselves whether or not the adoption is in the best interests of the child, and the adoption may not be proceeded with. If there is conflict or tension in making a determination, then the department may look at alternatives, such as perhaps placing them with immediate family, but not an adoptive-type situation.

Again, adoption is not the be-all and end-all. From a parent's perspective, it is about the best interests of the child. This would be a tricky decision that practitioners of much longer standing than any of us in this chamber today, with our limited experience, would be trained to make those determinations on.

The Hon. K.L. VINCENT: I have a very quick question for the mover because I think it might be useful for members and for the record. Following on from the Hon. Ms Franks' point, if he could put on the record his perspective of his amendment in terms of whether it would impact Aboriginal adoptions and whether there may be a cultural preference for non-Aboriginal adoption, or whether it could be proven to be in the best interests of the child, still under his amendment, that the Aboriginal child go with an Aboriginal family? Has he given consideration to the impact of his amendment in this regard?

The Hon. R.L. BROKENSHIRE: I ask the member to repeat that question. I have a hearing problem at the moment, for which I apologise, but I thought you were asking the minister that question.

The Hon. K.L. Vincent interjecting:

The Hon. T.A. FRANKS: The Hon. Ms Vincent raised a question arising from my previous statement. The question is: in the case of an Aboriginal child being considered for adoption, does your amendment intend to prioritise a married couple over an Aboriginal single person or, indeed, an Aboriginal gay couple in terms of that placement?

The Hon. R.L. BROKENSHIRE: My amendment has nothing to do with whether you are Aboriginal, Italian, Vietnamese, Chinese, English, American or whatever—it has nothing to do with that. They are bringing in a furphy on this debate that is irrelevant and, frankly, out of order. My amendment is clear and precise. I have made it clear that Aboriginal people will be dealt with under the act like any other people.

The Hon. P. MALINAUSKAS: I have been very conscious throughout this discussion of my own personal circumstance. I think it is impossible or very difficult and I think it would be immature to suggest that one's view about the world in respect of these particular issues is not in some way informed by their own personal experience. I am very grateful and feel genuinely blessed to have been brought up in a household with a loving mother and father who love each other very much and were able to provide an outstanding upbringing for myself and my siblings.

However, the question in my heart is: does that experience necessarily mean that another couple of the same sex are incapable of providing the same experience? I do not think that is an easy judgement call for me to make. The real judgement here is to ask: who has the moral authority to make that call? In reality, what the parliament is asking itself today, in the context of the Brokenshire amendment, and later on in the surrogacy bill, is: does the parliament take the view that it has the moral authority to make that judgement on behalf of other constituents?

I believe that reasonable people with very good intent will say that the parliament should be able to make that call and should not proactively deprive a child of a mother or father in a particular instance. However, I have arrived at a different conclusion. I have arrived at the conclusion that I believe in my heart, which I have put through an enormous matter of rigour in the last few days, that I should not be making that call on behalf of others and that that responsibility should ultimately rest with individual parents.

I hope they take that judgement seriously. I hope they treat their parental responsibilities as seriously as my mother and father did. I have not arrived at the conclusion that I have enough authority on this issue to make a judgement call on behalf of others of good intent, which is why I will not be supporting this amendment.

The Hon. S.G. WADE: I was hoping to bring the minister back to the question about research. Has the literature review that the honourable minister referred to undertaken by Dr Lorna Hallahan been published?

The Hon. I.K. HUNTER: My understanding is that Associate Professor Lorna Hallahan did that literature review to inform herself in terms of preparing the report. She has not provided that to government. I do not think there is any reason why we could not ask her to provide it and, if the honourable member would like, I can undertake to ask on all of our behalf.

The Hon. S.G. WADE: Thank you, that would be helpful. With all due respect to the Hon. John Gazzola, who is a noted researcher in the area, I think he was using Google rather than Wikipedia. Be that as it may, could I go back to the minister and ask about the government's collective view? What does the research show in terms of the relevance of the family form in terms of likely outcomes for a child? I do not want to fall back on my legal background and ask you for the level of certainty—are we confident on the balance of probabilities, are we confident beyond reasonable doubt? But this must be emerging research because discrimination against gay couples has been longstanding. If we could get some summary of the current research that would be helpful.

The Hon. I.K. HUNTER: I do not have that proposition in front of me, but I am advised that the government has accepted the associate professor's report. In her report she lays out, as I understand it, for the benefit of the government, her views on her literature research. I do not have that immediately at my fingertips or the paragraph of it that I could read into Hansard, but that is my understanding. She has done literature research to inform herself in preparation for the report, she is confident in it, and the government has accepted her report.

The Hon. A.L. McLACHLAN: On a slightly different track, minister, I am looking at the regulations and the assessment report, which is effectively setting out the heads of consideration for making an assessment report, and therefore to facilitate the decision ultimately. I am interested from an administrative law perspective: are each of these heads equal in weight? How is the decision approached in applying these principles? Perhaps I will ask another question after we get that answer.

The Hon. I.K. HUNTER: I think my adviser is trying to visualise all the requirements. I think they are (a) through (o); there are a lot of them. In the process that would be undergone, they consider all of those requirements, and if there is one that they do not meet the requirements of, no matter where it falls in the spectrum, then there will be a discussion with the applicants and they will say, 'You don't qualify because you don't meet this requirement.' My advice is that all requirements need to be met, not just some, and so I suppose it is too far to say that they all have equal weight, but they must all be met.

The Hon. A.L. McLACHLAN: I am interested then with the interplay of that with the provisions we are inserting, if the bill passes, in regard to Aboriginal and Torres Strait Islander children. I do not have a mock-up of the bill as amended, but my reading of it is that those considerations would be taken into account by the decision-maker, then they would put that in the assessment report and then they would take into account the variety of other factors in providing the assessment report.

The Hon. I.K. HUNTER: In terms of the interplay between the assessment report, and then the provisions outlined I think you said in clause 13, how it would play out is as I intimated in my last answer. You would go through the assessment report process, meet all the requirements (a) through to (o), provide the assessment and then, if you were to consider an Aboriginal child, it would then be elevating the Aboriginal Child Placement Principles and going through the prospective pool of available adopting couples and testing them, I suppose, against the Aboriginal Child Placement Principles—whether they are part of the same kin group, cultural group, language group or, if they were indeed a non-Aboriginal adopting couple, whether they are prepared to maintain an appropriate cultural connection for that child.

All those things will be stepped through, but the principles involved in the assessment report give the pool of applicants, I suppose, and then, in relation to an Aboriginal child being considered, you would go through the provisions under the Aboriginal Child Placement Principles but with the proviso I mentioned in the earlier response, that in some situations adoption may not be the appropriate mechanism for an Aboriginal child.

The Hon. A.L. McLACHLAN: I am not arguing the heads of consideration; I am just trying to tease out the decision-making process for my own edification and decision-making. The chief executive gets an assessment report under these principles, and if the Brokenshire amendment passes that is another factor, and some of these factors overlap. It may be even the course of the paperwork that I am teasing out because we have the Aboriginal and Torres Strait Islander considerations, which personally I am strongly in support of, and these principles.

Reading these principles, they could almost overlap with the Aboriginal and Torres Strait Islander considerations, so is this report prepared and then the chief executive nominally—because he or she can rely upon it—takes into account other parts of the act, including Mr Brokenshire's amendments, or is it all packaged up as part of the assessment report? The heads of consideration are very broad and can actually technically encompass the other technical legislative requirements, so I am probably asking from a technical administrative law perspective.

The Hon. I.K. HUNTER: We are having quite a deal of difficulty answering that very technical question, Mr McLachlan. I think the best I can give you is to take you through a stepwise process. According to regulation 9, an adopting couple, a couple who want to adopt, are assessed, and if they meet those requirements they are placed in a pool waiting for a child to come along. If a child does come along, the intention of the act and the practitioners who administer the act would be to find a potential adoptive person, or persons, who meets that child's needs. Then, if that child happens to be Aboriginal, we go to step 3 of the Aboriginal Child Placement Principles. For example, there may be an Aboriginal couple in the adoptive pool who do not meet the criteria of being of the same cultural, kin or language group, and that could cause obvious problems as well.

With regard to your question about the interplay between other subsequent provisions, such as the Hon. Mr Brokenshire's amendment, yes, it presents some difficulties. We cannot really articulate what they might be because they are not presently in the legislation—or nothing similar is in the legislation, as we can recall—but they would have interplay; they could probably work constructively, or possibly not constructively, in terms of the determination. It is very hard to outline, in a technical sense, what might happen, but it would be another factor that could cause problems.

For example, let's say, hypothetically, that for an Aboriginal child we do not have an adoptive couple who meet the same group criteria, the cultural group, the language group, but there may be, for example, a gay couple who do meet some of those attributes—for example, they may have Aboriginal relations in their family who do meet some of those criteria. The Hon. Mr Brokenshire's amendment may then work against that placement. However, it is hypothetical, and it is very hard for us to distinguish, given that we have not faced the situation previously.

The Hon. A.L. McLACHLAN: There is a provision in those heads, the classic, all-encompassing 'any other matter'. If possible, could your adviser let you know what, in her experience, that is likely to be, or does it not get used, given the breadth of the other heads?

The Hon. I.K. HUNTER: The short answer is no. In my adviser's experience, the heads that are currently there have covered everything they have ever had to experience. It is there, I suppose, in the same way we put it in every other act—in case something comes along that we have not anticipated. However, in her experience, no, it has not been an issue.

The Hon. S.G. WADE: I think the heads we are referring to are regulation 9(iii). My reading of that section is that it is about the assessment of the suitability of a person to be placed on the register; it is not about the placement of a particular child.

The Hon. I.K. HUNTER: That is correct. That is what we have been talking about: the placement on the register and then the next steps after that.

The Hon. S.G. WADE: I am happy to give to the minister what I believe to be a full copy of the regulations. Where in the regulations or the act are the factors to be considered in relation to a particular adoption?

The Hon. I.K. HUNTER: My advice is that it is in part 5, regulation No. 19.

The Hon. T.T. NGO: Honourable members have been discussing researchers, and whose parents are better than others, whether they are same sex or whether they are heterosexual. My question is: how do you determine which child is being brought up better than another child? You might have a child from an ethnic family, a child may come from a family that is not as wealthy or a child might come from a wealthy family.

How do researchers determine whether this child has been brought up better than another child? Honourable members can argue about whether same-sex couples or heterosexual couples are better at raising a child, but to me you cannot determine that. I think we should leave this point about who is better than others; I do not think we should be debating it. That is my comment.

I want to talk about the Hon. Mr Brokenshire's amendments. With all the processes to determine which child will be adopted, can the minister advise whether you get to a stage where you can determine that a number of couples are equal, so you can get to these amendments? Do you ever get to the stage where, say, two or three couples are all equal and you have to decide or pull their names out of the hat?

The Hon. I.K. HUNTER: In relation to the question about who makes decisions about success, clearly that is not a job for us. That is a debate that rages outside of parliament. But I think that Lorna Hallahan said in her report (I do not have the report in front of me so I cannot read it, but apparently it is quite clear and concise) that you can measure success in terms of absence of conflict, absence of violence, the provision of education, food and shelter, the presence of love and warmth in a family. The honourable member can look that up for himself, but I am advised that it is quite succinct.

The honourable member asked me to contemplate a hypothetical situation, about whether we ever get down to a position where two or more couples have scored (to use another framework) identically, and then the choice becomes very hard. It is unlikely, in reality. I suppose you could think about it being occasionally possible, but my advice is that, as a practitioner, you then go and have a very hard and in-depth look at the potential placement, and again you will focus on the best interests of the child.

My adviser gave me some information—which is, really, confidential—in terms of a decision she made in the past, to illustrate the answer to me. I cannot share that with the chamber, but suffice to say that practitioners in this field will always look to the best interests of the child in the placement. If on first pass, perhaps, there are a number of couples on the register who seem to be, at first glance, equal in their presentation, then you would dig down further to try to determine what would be the absolutely best placement for that child, because at the end of the day that is what we are seeking to do.

The Hon. T.A. FRANKS: I rise to indicate that the Greens will not be supporting this amendment. I wish to put that on the record for those playing at home wondering what the numbers might add up to. I do so because this amendment, in a bill where we are striving to seek equality, says that we are all now equal but some of us are more equal than others, and I do not believe that we in this parliament are here to judge—it is the chief executive. Each particular circumstance should be judged on its own merits, otherwise we are simply repeating the mistakes of the past where we did, as I say, have a stolen generation. We had forgotten Australians.

In my personal circumstance, my mother married my father because otherwise she would have been forced to relinquish me. It was an unhappy marriage. It was a violent marriage. That was not the best family to provide me with simply because you had a mother and a father. I have that personal perspective that I bring to this place. I know we all have our personal perspectives that we bring to this place. I do not think we are in a position to judge the love, security and family of any other family. I look forward to there being true equality, not faux equality.

The Hon. R.L. BROKENSHIRE: I will not hold the house any longer, but the Hon. Kelly Vincent asked me about some of the studies regarding the issue of traditional mother-father family structures. Sociologist, Mark Regnerus, has done a detailed study in his submission on the Adoption and Other Legislation Amendment Bill to the prevention committee in the federal parliament. Dr Kyle Pruett of the Yale Medical School has done a study on this, and also D. Paul Sullins in the British Journal of Education, Society and Behavioural Science. The list goes on. There are at least another 18 to 20 pieces of documentation that have been studied in depth with large numbers. I advise the house of this in answer to a question.

The Hon. J.A. DARLEY: I have listened to the debate and, based on my own experience over a number of years, I will not be supporting this amendment.

The CHAIR: Does anyone else want to make a declaration? The Hon. Mr Wade.

The Hon. S.G. WADE: I do not know if I want to make a declaration, but I am uncomfortable with some of the comments that are being made. I am very attracted to the wording in the bill. Let's remind ourselves that this bill introduces for the first time a set of objects and guiding principles. Subclause (2) of that section is very helpful, first of all, in declaring that the paramount consideration would be the best interests of the child.

There are also two other elements which I think are important for us to keep in our minds: one, is that adoption is to be regarded as a service for the child concerned. For example, when we discuss the relevance of the interests of a relinquishing parent, with all due respect to relinquishing parents, the adoption is not a service for them; it is a service for the child. That reinforces, if you like, the paramountcy issue.

On the issue of discrimination, 2(d) says—and in that sense it is a corollary of 2(b)—'no adult has a right to adopt a child'. So, I will be motivated in my voting today exclusively, or overwhelmingly, on paramount consideration. I do not see this as an issue of discrimination of people's rights, other than the rights of the child—I just make that point.

For me, the issue that the Hon. Robert Brokenshire brings before us, or raises in my mind, is: in considering the best interests of the child, are the facts before us clear enough that we can assume that the traditional form of families in Western society, which is different-sex couples, is prima facie better for children than same-sex couples? My advice, the information the minister has provided and what I am told by different sources, is that, if you like, we have gone beyond the balance of probabilities. I am still not clear how convinced we are, but I am nervous about the fact that we, as a community, have made reckless decisions in relation to children in the past. That is why we, as a state, have been distraught by child protection issues in recent years.

Based on the information provided to me, I believe that we have reached the point where, for the sake of caution, we do not need to have biased principles such as those the Hon. Robert Brokenshire puts forward. I do not criticise him for putting it forward because I think the onus is on us to be sure that the interests of children are kept paramount and are protected. I know it is a judgement call, but my judgement call is that this priority principle is not needed.

The committee divided on the new clause:

Ayes 6

Noes 11

Majority 5

New clause thus negatived.

There being a disturbance in the strangers' gallery:

The CHAIR: Can I just say to the gallery, please do not clap and please do not make any props or gestures up there that may distract the members while they are deliberating. Thanks.

Remaining clauses (19 to 32) and title passed.

Bill reported without amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (12:25): I move:

That this bill be now read a third time.

Bill read a third time.

The council divided on the question that this bill do now pass:

Ayes 13

Noes 4

Majority 9