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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-03-07 Daily Xml
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ADOPTION (CONSENT TO PUBLICATION) AMENDMENT BILL

Introduction and First Reading

Mr GARDNER (Morialta) (10:32): Obtained leave and introduced a bill for an act to amend the Adoption Act 1988. Read a first time.

Second Reading

Mr GARDNER (Morialta) (10:32): I move:

That this bill be now read a second time.

It gives me great pleasure to introduce this bill this morning. Currently, parents in South Australia who have an adopted child are prohibited from identifying themselves or being identified in the media unless they first obtain permission from a court or from the chief executive of the department (in this case, Families SA). Failure to do so can result in fines of up to $20,000.

While there is no doubt that protecting the privacy of a child and their adopted parents is crucial, the South Australian Liberals believe that it is parents and not government who are best placed to make decisions related to the welfare of their families. South Australia remains the only state in the nation where this gag rule remains in place, and if this private member's bill is unsuccessful, I can tell you that one of the first acts of a Marshall Liberal government in 2014 will be to remove this gag rule.

I know that members of the house have perfect knowledge of all legislation, but for those who are listening on our new internet site, or for those in the gallery who might not be aware of it, section 31 of the Adoption Act, which is what this bill seeks to amend, states that any person who publishes or causes to be published in the news media the name of a child—I am abbreviating the act slightly here—or the name of a parent or guardian, or the name of any party or material tending to identify any one of those people relating to proceedings under the Adoption Act is guilty of an offence with a maximum penalty of $20,000.

Anybody who names or causes to be published the name of a child who is adopted, a parent, or a party relating to that adoption is guilty of an offence with a maximum penalty of $20,000 under the South Australian Adoption Act. Section 31 goes on to state that this section does not prevent a publication made in pursuance of an authorisation granted by the court or the chief executive. So there is an exemption and this is the exemption that I am seeking to change.

The exemption currently rests on the decision of the chief executive of the department or of a court. Around Australia the courts are empowered to make these exemptions and I do not propose to change that. What we will be looking at is the exemption being able to be granted by the chief executive, as it is at the moment, and this bill will seek that that exemption be able to be provided by the parent or the child themselves, if they are over 18. That is the point: families are in the best place to make decisions relating to their welfare, not the chief executive of a department.

As to the practical application of this sort of measure, this was brought to my attention when last year members, you may remember, were seeking to enable Chinese adoptees to be able to be granted birth certificates which, up until last year, they had been unable to do in South Australia. Because those adoptions took place in China the Chinese government only provided the paperwork there, which was not acceptable in the way that birth certificates are used in South Australia; and the South Australian regulations did not allow South Australian birth certificates to be supplied because the adoption had taken place overseas.

We were successful in getting the government to change that measure but the parent community was unable to even talk about it in the media, first to advocate for that measure to take place or afterwards to talk about the impact that had on people's lives.

There is a little girl in the gallery who got her birth certificate last year on her birthday and was finally able to have a birth certificate that could be used at her school to enrol her in sports day events and other things. That was as a result of the changes that had been brought. However, her father, Nigel Holden—who I can name because he actually has permission today from the chief executive of the department—had worked for years to get that through. Her father was not able to talk in the media about it either to advocate for change or to talk about it afterwards because this $20,000 fine and gag rule was in place.

We acknowledge that there has been a campaign for this matter, and I will quote from the South Australian Chinese Adoption Support Inc. website where it states:

The Government Case for Section 31

It protects the privacy of people.

It protects the privacy of children.

It discourages unscrupulous media.

They may all be worthy goals but they are not doing it in the right way. The community case against section 31, as identified by the parents' adoption support group states the following: it restricts freedom of expression; it impacts on parental rights; it is inherently discriminatory; it is unnecessarily paternalistic; it limits transparency and accountability; it compromises the integrity of government; it instils fear in the community; it damages relationships; it does not protect enough from the media; and it has allegedly been misused in the past.

This alleged misuse in the past stems from 2005. Although this provision has been in place for more than 20 years, it only really came to light in the public arena in 2005 when the government took over the operation of all overseas adoption processes from a non-government private agency and brought it within the then department of families and communities. Outraged adoptive parents were told that if they spoke out against this and were identified then they faced a $20,000 fine. I will mention an Advertiser article at the time on Friday, 18 February 2005 that stated:

Masked protestors gathered on the steps of Parliament yesterday to voice their concerns regarding proposed changes to adoption laws.

The threat of a $20,000 fine for identifying parents or adopted children meant protestors had to cover their faces in front of the media. The crowd called on the State Government to overturn its proposals to incorporate adoption services into a government department.

The process is controlled by an independent, licensed company.

Or it was then. The article continued:

'The change aims to make the administration of adoption applications a smoother process,' Families and Communities Minister Jay Weatherill said.

He refused to elaborate on why the Government had made the decision.

That was in February 2005. The government made that decision, and that is fine. It is now AFIS (within the Department of Families SA) that deals with these matters. At that point the community became aware that they faced these $20,000 fines and they started to advocate.

One of their advocates, who was then the chair of an organisation East Meets West Inc.—and I acknowledge that there is someone here who was involved with that who wishes to be a mentor for young adoptees—argued against it and wrote to the minister, the Hon. Jay Weatherill (as he was then Minister for Families and Communities, now the Premier). The Premier responded:

The recent House of Representatives Inquiry into the Adoption of Children from Overseas made a recommendation that all States and Territories address the media provisions in their adoption legislation. Recommendation 27 of that Inquiry states:

The Attorney-General in re-negotiating the Commonwealth-State Agreement include provisions to harmonise legislation covering the right of parents to publicly discuss their adopted family. The Committee recommends the Western Australian provisions be the model to be followed.

That being the one that gives the right of parents to decide. The Premier them went on to write, in December 2006:

One of the most significant recommendations of the Inquiry is that the Commonwealth-State agreement on the implementation of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption be re-negotiated. This process is to commence in the near future and the matter of media provisions will be discussed as part of the process.

So, that process commenced, starting in December 2006 through 2007. I can tell you that, on 26 May 2008, the signature of the minister for families and communities for South Australia—then the Hon. Jay Weatherill, now the Premier—was attached to this newly revised commonwealth-state agreement.

In that agreement, it was agreed that the community and disability services ministers would, and I quote from 20(c), conduct 'a review of legislation about the right of parties to the adoption to publicly discuss their adopted family.' That was in May 2008, approaching five years ago, when the Premier signed to an agreement with all of the other states in the commonwealth that they would deal with these laws.

What has happened since then? Every other state has done it. In New South Wales, section 180 of the Adoption Act says that if a person is a child less than 18 years of age, a reference to the consent of the person who has parental responsibility of that child is sufficient to avoid the fine.

In Queensland, section 315 says that you can have written consent to the publication for each identified person if the identified person, who is the adoptee, is an adult—that person—or, if the identified person who is a child, a parent of that child.

In Victoria, section 121 of the Adoption Act is similar, as is section 124 of the Western Australian Adoption Act. All of the other states have been able to deal with this in the last five years, as per the ministerial council agreement—it is just South Australia that has lagged behind.

This bill—the Adoption (Consent to Publication) Amendment Bill 2013—is very, very simple. It has got one effective clause. The clause that identifies the exemptions, currently granted to the chief executive of the department or a court, will be replaced with a new clause that reads:

(2) This section does not apply to the publication of a person's name or other material tending to identify a person if—

(a) written consent to the publication has been given by—

(i) if the person is an adult—that person; or

(ii) if the person is a child—each parent or guardian of the child; or

(b) the publication has been authorised by the Court.

We are taking power away from the chief executive of the department to decide what an adoptive family may publish about themselves, what they may speak about and what they may have their images or names identified as and we are giving that power to the families themselves.

Why is this important? The community case, as stated on the website I identified before. It is a basic human right in a liberal democracy that one be able to comment on public policy without fear of having a $20,000 fine imposed. It is a basic principle that, in a liberal democracy, you would expect that, if your child wins an award on a sports day, that could be published in the school newsletter without being at threat of a $20,000 fine.

I will bring to the house's attention an example of another family, who is in Parliament House today, who wrote to the minister recently and forwarded that to other members of parliament. I bring this to the house's attention, although I am not going to mention any of the names involved because, whilst I am sure that parliamentary privilege would supersede the fine for me here, I am not sure how the law would apply to anybody who wanted to reprint it or anybody who might be listening to the publication over parliament's internet site, so I will redact it.

The SPEAKER: I would take advice on your first proposition.

Mr GARDNER: Thank you very much, sir. I will be redacting it anyway, so we should be safe. The member of the community wrote, and I thank them for coming in today, having tea and talking to a number of members who came along:

Dear Minister,

I object strongly to your inaction and the inability of your government to sort out a simple problem in 8 years. This has been on your agenda since my daughter was adopted.

My daughter [name redacted] is now 9 years old, and is adopted from China. She is in the running to be in the Chitty Chitty Bang Bang chorus, next month. If she gets this position, she will be in the media spotlight, and obviously my husband and I will be there to support her at all times. When asked if she is from China, adopted, or did I have a fling with the postman, I cannot answer the truth of the matter. It is illegal for me to mention that she is adopted as I will face a $20,000 fine.

While it is imperative to have a media gag on all children without parental permission, regardless of race, or parents, I feel that we as adoptive parents, have an additional gag that is impossible to deal with. If I want to announce to the world that my daughter was born in China, I should be allowed to do so. She is proud of that fact and should be allowed to keep her pride.

As these children get older, this will become a more common event and it needs to be lifted now. I look forward to hearing from you and the department when the Private Members Bill is introduced this Thursday 7th March.

Sincerely—

The names are redacted.

I think that that states the case pretty well. The fact of the matter is that this morning a number of adoptive parents and children and, indeed, adoptees, who are now adults, came in to the Terrace Room, and I thank them for coming and talking to members. There was representation from the government through the member for Ashford, and I thank her for coming along. A number of members of the opposition—the Hon. Tammy Franks, the Hon. Kelly Vincent and staff from the Hon. Ann Bressington's office—were there to speak to these families, and I thank them all for doing so.

I hope that other members will take very seriously the comments I have made in introducing this bill this morning and think very hard about whether there is any way that we can justify maintaining this onerous imposition and withholding freedom of speech from these families. One of the parents this morning made the comment that if they are out and about in public with their daughter, who is from China, clearly people can see that the mother and father are not the birth parents; yet, they are unable to explain it.

One father who came along talked about his utter disappointment, and I am being careful about how I phrase this. There is a significant community arts festival for which his daughter is pictured in publicity material, yet he is not allowed to be in that photo because the legislation is written in such a way that the publication of that photo would obviously identify him as the father, an adoptive father, and, therefore, he faces a fine because he did not get permission from the chief executive or a court before appearing in that photo. The Advertiser had to withdraw that photo. Thankfully, his daughter still appears in all of the publications, but they have to be very clear that in naming her, if they ever do, she is not named as an adoptive daughter.

This bill is long overdue. It has been sought since February 2005, and it has allegedly been under consideration by the government, according to the Premier's letter of December 2006. This bill is short and simple. It contains one significant clause for the government's consideration: removing the right for the chief executive to decide whether an individual should be allowed to speak out and granting that right to the individual and the family. I hope that the government will not take too long in considering it so that we may deal with this legislation and this appalling situation can be rectified. This bill is necessary. It will bring us into line with the rest of the country, and it will give back the right of free speech and public comment to a group of South Australians who have been denied that right for far too long. I commend the Adoption (Consent to Publication) Amendment Bill to the house.

Debate adjourned on motion of Mrs Geraghty.

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