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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Adoption (Review) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:41): Obtained leave and introduced a bill for an act to amend the Adoption Act. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:42): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Adoption Act 1988 was a landmark piece of legislation that introduced 'open adoption'.

This meant that parties to adoptions completed after the Act came into force could have access to identifying information about each other once the adopted child turned 18 years of age.

It also meant that parties to a past adoption, which as we know were conducted in a climate of secrecy, could in certain circumstances, obtain access to identifying information about the other parties. Vetoes were also provided for to enable people concerned about their privacy to restrict the release of their identifying details.

Another significant reform at that time was a change in the definition of marriage in the Act to include de facto relationships, extending the right to apply to adopt a child to established couples not legally married.

Of particular importance was the introduction of a definition of Aboriginality and the inclusion of a form of the Aboriginal Child Placement Principle, now known as the Aboriginal and Torres Strait Islander Child Placement Principle. By introducing these provisions, the Act recognised the importance of Indigenous children growing up in their own communities, connected to their identity, culture and heritage.

In 1994, after five years of operation, selected provisions in the Act were reviewed through a public consultation process. As a result, amendments were enacted in 1997 mainly around the provisions relating to past adoption matters and access to adoption information. The amendments also abolished the provision for the adoption of people between the ages of 18 and 21 and a new clause was inserted into the Act to ensure greater flexibility for community consultation on the operation of the legislation.

While this last provision has underpinned regular community and intergovernmental consultations carried out through the Department for Education and Child Development, aside from some minor amendments, there has been no further review of the Act since 1997.

In February 2012, the report on the national inquiry into the Commonwealth Contribution to Former Forced Adoption Policies and Practices was tabled in the Senate. This landmark report laid bare for the nation the abhorrent adoption practices of the past which forcibly separated thousands of Australian children from their mothers.

One of the recommendations of that inquiry was that state and territory governments issue formal statements of apology for the harm suffered by so many parents and children who were forcibly separated from each other.

Accordingly, on July 18, 2012, in this House, the South Australian Government was the first Australian jurisdiction after the tabling of the report, to issue an apology on behalf of the people of South Australia. In delivering the Apology, Premier Jay Weatherill expressed 'our determination to ensure that such things never happen again'.

On March 21, 2013, fulfilling another recommendation of the Senate inquiry, then Prime Minister Julia Gillard apologised on behalf of the nation for these past forced practices, and set in motion several national initiatives to provide specialist professional services for people haunted by the experience of forced adoption.

Against this backdrop, the changing landscape in modern adoption practices and community attitudes about how families are constituted, in 2014, the South Australian Government commissioned Associate Professor Lorna Hallahan of Flinders University to undertake an independent review of the Adoption Act.

I sincerely thank Associate Professor Hallahan for her thorough Review and for her excellent report, which has provided a clear framework for examining this sensitive topic through the lens of what is best for the child. Her rigorous approach, her profound understanding of child development and protection and the importance of family relationships, as well as her long experience in developing public policy, have been invaluable in delivering this Bill to modernise the South Australian Adoption Act.

I also would like to thank all those who contributed to the Review. Many people wrote to the Review or met with Associate Professor Hallahan personally to share their experiences, research and insights into this extremely complex and sensitive area.

Terms of Reference

First and foremost, the terms of reference required that the Review ensure the rights and best interests of the child remain paramount. Taking into account the impact in South Australia of the broad changes in the field of adoption in the years since the last review of the Act, the Review was to include:

consideration of national reforms in intercountry adoption;

recent inquiries, current research, activities and attitudes in Australia in relation to past adoption practices;

the interface between adoption and children in the child protection system requiring permanent care; and

any other relevant matters, including concerns the Department for Education and Child Development has in the administration of the Act and Regulations.

Specific issues were to be considered:

adoption information vetoes;

adoption of a person over the age of 18 years;

retention of the child's birth name;

same-sex couple adoption;

single person adoption;

discharge of adoption orders in certain circumstances.

The Review commenced in November 2014,with a public consultation phase spanning early January to 30 June 2015, followed by consultations with specialists in the field.

The Review's report was delivered by Associate Professor Hallahan in November 2015 and published on the Department for Education and Child Development website and the Government's YourSAy website on March 5, 2016.

Around 500 submissions were received from the public during the consultation period, many of these submitted on the YourSAy website. Approximately 60 private interviews were conducted at the request of individual people, 15 specialist consultations were held and an extensive literature review was also conducted.

The Review also attracted an electronic petition containing more than 15,000 signatures requesting same sex couples be eligible to adopt. I was proud to accept this petition at a reception in Parliament House earlier this year.

Associate Professor Hallahan also held discussions with Ministers of the South Australian Government, other parliamentarians and with Executive Officers and staff of the Department for Education and Child Development.

She also held discussions with Commissioner Margaret Nyland of the Child Protection Systems Royal Commission. I note the Final Report of the Royal Commission considered the question of adoption from care and its findings on that question generally aligned with those of the Review. The Bill reflects the findings of the Royal Commission in respect of adoption and specifically aligns with Recommendation 157.

The Review considered the legacy of the closed adoption practices of the past before the Adoption Act 1988 established open adoption in South Australia.

It also considered the need for the Act to establish optimal conditions for adoption in this era to ensure past injustices are not carelessly repeated and that children's rights, including their relationship rights, and their life-long welfare and best interests are at the forefront of all adoption proceedings.

In Associate Professor Hallahan's words, the recommendations of the Review focus on both the 'restorative' and 'constructive' functions of the Act, and make a number of specific recommendations for legislative change and improved practice.

Since the publication of the Review report, I have received some community feedback which has been taken into account in the drafting of the Bill, as have some additional administrative matters that have arisen in the process.

The Adoption (Review) Amendment Bill 2016 is the culmination of this important work and the key amendments to the Act are as follows:

Expansion of the objects and guiding principles, replacing current section 7, which sets out a general statement of the principle that the child's interests are paramount in all proceedings under the Act. The amendments provide for more specificity, including matters for consideration that the Department and the Court must take into account when contemplating adoption for a child.

Elevation of the Aboriginal and Torres Strait Islander Child Placement Principle into the objects and guiding principles, updating relevant definitions and enhancing the matters which the court must consider in section 11 when making an adoption order for an Aboriginal or Torres Strait Islander child. The amendments also make explicit that the Court must apply the Principle in making an adoption order in relation to an Aboriginal or Torres Strait Islander child. This change aligns with the findings of the Child Protection System Royal Commission, which included that there is currently no requirement to consult with an Aboriginal organisation in relation to the adoption of Aboriginal children. The Royal Commission considered it appropriate that such a provision be included.

Replacement of the definition of marriage relationship with qualifying relationship, throughout the Act. Qualifying relationship means 'the relationship between 2 persons who are living together in a marriage or marriage-like relationship (irrespective of their sex or gender identity)'. This supports the adoption of children by same-sex couples, which will be subject to a conscience vote by Government members. This fulfils the Review recommendation that same-sex couples be able to adopt a child, and is in line with the Government's commitment to remove discrimination in South Australian legislation on the grounds of sexual orientation, gender, gender identity and intersex status.

Inclusion of a requirement that the Court will not make an adoption order in relation to a child unless satisfied that adoption is in the best interests of the child and clearly preferable to any alternative order that may be made under the laws of the State or the Commonwealth.

This amendment aligns with Recommendation 157 of the Child Protection Systems Royal Commission, which provided that the Government consider the question of adoption where it is in the best interests of the child and an Other Person Guardianship order would not be appropriate.

Reinstatement of powers for the Court to make orders for the adoption of an adult where there has been a significant parent to child relationship between the person and the prospective adoptive parents, and where the person to be adopted understands the consequences on their interests, rights and welfare. Provision for adult adoption was previously removed from the Act by amendments made in 1997. This change brings South Australia into step with most other Australian jurisdictions.

This reflects the Review's findings that under certain circumstances adults should be able to be adopted, with no restrictions as to the age of the person to be adopted. The Review found that this is an important provision for adults who have previously been in care or who have been brought up by a step parent. The amendments also address situations where an adult, who as a child was under the Minister's guardianship pursuant to the Children's Protection Act 1993, and their carers are seeking an adoption order.

This new provision is welcomed by the Government because it assists people who have been in foster care as children to formalise their relationship with their carers into adulthood if they wish to. In seeking an adoption order, they are able to make their own decision about what they believe is best for them.

Provision for single people to adopt on par with couples, providing for a 'prescribed period' for the amount of time a couple has been in a qualifying relationship, or the amount of time a single person has not been in a qualifying relationship.

Introduction of a new provision for adoption orders to be discharged by the Court on the grounds that it is in the best interests of the adopted person, taking into account their rights and welfare. This provision may be used by parties to an adoption, particularly adopted people, who feel aggrieved by the adoption and seek to have it undone.

During the Review, Associate Professor Hallahan was persuaded by the argument that 'where the state has blundered in effecting an adoption that placed a child in grave risk, the state should have the power to undo such arrangements'.

While the Review report focussed on neglect and abuse within the adoptive family as grounds for discharge of adoption orders, Associate Professor Hallahan also identified that 'bewilderment about identity and belonging is among a range of harms that adoptees may experience'. She therefore suggested 'that the Act incorporate a wide typology of harm including but not confined to certain forms of childhood abuse.'

While a number of Australian jurisdictions provide for discharge of adoption orders in certain circumstances, the Review suggested the Tasmanian model be followed which the Bill has largely done. The key factor here is the case management approach and that the person seeking the discharge of their order does not have to attend the Court hearing as the Department may make the application on their behalf.

Inclusion of arrangements for consent by parents or guardians under 16 years of age. The amendments provide that in such cases, at least two psychologists will need to state that the parent or guardian has been counselled by the psychologist at least three days before giving consent to ensure they are able to properly do so.

Provision for retention of a child's original first name, except in specific circumstances. The amendments provide that should a child's name be changed, their second name may become their first name, or they may be given another name of significance to the child themselves.

Throughout the Review, Associate Professor Hallahan examined the issue of identity formation for adoptees. Although there were few submissions addressing name retention, we know how important a child's original name is to their identity formation. Associate Professor Hallahan recommended an adopted child's original first name always be retained except in exceptional circumstances.

Inclusion of new arrangements for temporary care of a child whose parents are in the process of considering adoption for them. This provides for short term voluntary care, where a parent is able to enter into an agreement with the Chief Executive in respect of a child prior to giving final consent to the adoption. An agreement may be in place for a maximum of one year before an alternative arrangement is made by the family to care for the child or the child is adopted. If the child is in need of care and protection, the necessary orders are sought under the Children's Protection Act 1993.

Insertion of new provisions to address access by an adopted person to information about their grandparents, currently not possible in circumstances where the birth parent who relinquished them was also an adopted person. This creates consistency with current arrangements where grandparents of an adopted person can obtain information about the adopted person once they are over the age of 18.

Preclusion of release of information by the Chief Executive to another party if it poses a serious risk to the life or safety of a person.

Repeal of section 27B which provides for the issuing of vetoes. Under current arrangements, vetoes are available to each party to the adoption: the adoptee; the birth parents; and the adoptive parents, who may place a veto that can be renewed every five years. The Bill provides transitional arrangements, including that all existing vetoes will continue for five years from the commencement of the amendments. After the five year transition period all vetoes will expire and will not be able to be renewed.

The Bill provides that a person whose veto expires after at the end of the transition period may make a statement of wishes about contact with the other parties to the adoption. This statement will be held into the future by the Department and the Registrar of Births, Deaths and Marriages and is to accompany the release of any associated adoption information to another party to the adoption.

Adoption information vetos are a sensitive matter and were introduced into the current Act as a way of trying to bridge the gap between past closed secret practices and the new openness in adoption emerging in the 1980s.

Currently, South Australia is the only state jurisdiction that provides for adoption information vetoes. The Northern Territory is the only other jurisdiction that retains adoption information vetoes and only one veto was in place there as at 30 June 2015.

An adoption information veto prevents other parties accessing identifying information about the person who placed the veto. When an adoptee has a veto in place, mothers and fathers cannot find out information about their child who was adopted into another family. Where a birth parent has a veto in place, adoptees cannot know about their origins or reconnect with the family into which they were born.

South Australia's first adoption Act was introduced in 1926. Between then and 1989 when the current Act was introduced, approximately 24,000 adoptions were completed in this State, affecting more than 100,000 people as primary parties to the adoption—adopted people, birth mothers and fathers, and adoptive mothers and fathers.

Since 1989, the Department for Education and Child Development has processed approximately 13,000 applications for identifying adoption information, indicating the overwhelming trend towards openness in past adoption. At 30 June 2016, South Australia had 375 vetoes in place, with 53 being renewed in the 2015-16 financial year. Although this is a relatively small number compared to earlier years, these current vetoes impact on the lives of many South Australians, including the five primary parties to adoption and their extended family members.

The Government recognises that some people seek to preserve their veto and there is a genuine dilemma between the right to knowledge and the previously upheld commitment to privacy. However, the Review found that vetoes 'impinge the principle of open adoption and can preserve life-long identity impairing impacts for adopted persons'. The Government supports this contention. Therefore, the Bill provides that section 27B is repealed with information vetoes to expire after the five year transition period with no introduction of contact vetoes, as recommended by the Review.

This amendment is in line with the recommendations of the 2012 Senate inquiry. A similar provision was brought into effect in Victoria in 2015.

During the five year transition period, the Department will provide services to support people affected by the expiry of a veto.

Inclusion of new arrangements for the Department to inform birth parents and adopted people if one or the other dies. This enables the Registrar of Births, Deaths and Marriages to check the adoption record on receiving notice of any death. If the deceased is a party to an adoption in South Australia, then the Registrar will notify the Department who will ensure the other party is notified. This will also include notifying birth siblings of an adopted person if they are known to the Department.

This will potentially prevent some of the distress caused when people search for parents or children they have been separated from by adoption, but find it is too late.

Insertion of new arrangements which will enable the Registrar of Births, Deaths and Marriages to register an adopted child's birth to reflect the 'truest possible' account of their biological parentage and at the same time ensure any certificates produced make clear who is the child's legal parent. The changes to the legislation will introduce retrospectivity, so people adopted in the past can have, on application, an integrated birth certificate showing both sets of parents. This is in line with the relevant recommendation of the 2012 Senate inquiry into the Commonwealth Contribution to Former Forced Adoption Policies and Practices.

The Review found that a birth certificate is a foundational document that establishes a person's biological and familial beginnings. For adopted people, Associate Professor Hallahan found that 'this foundational story is disrupted' contributing to a distortion of identity formation.

Modernisation of penalties within the legislation is also achieved by the Bill.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Adoption Act 1988

4—Insertion of section 3

The objects of the Act and guiding principles for administration of the Act are set out.

5—Amendment of section 4—Interpretation

Definitions are inserted for the purposes of the measure, including—

a definition of the Aboriginal and Torres Strait Islander Child Placement Principle; and

a definition of child that now includes a person who is aged 18 years or more in respect of whom an order for adoption under this Act is sought or has been made; and

a definition of a qualifying relationship for the purposes of adoption, which means the relationship between 2 persons who are living together in a marriage or marriage-like relationship (irrespective of their sex or gender identity).

6—Repeal of section 7

The repeal of section 7 is consequential on the insertion of section 3.

7—Amendment of section 8—General power of Court

This amendment relates to the expansion of the definition of child to include persons aged 18 years or more.

8—Amendment of section 9—Effect of adoption order

This amendment is consequential, substituting the term qualifying relationship for marriage relationship.

9—Amendment of section 10—No adoption order in certain circumstances

The amendment provides for a general rule relating to adoption orders for children less than 18 years of age. The Court will not make an order unless satisfied that adoption is in the best interests of the child and, taking into account the rights and welfare of the child, clearly preferable to any alternative order that may be made under the laws of the State or the Commonwealth.

The other amendments are consequential.

10—Insertion of section 10A

This amendment proposes to substitute a new section 10A to provide for requirements relating to the adoption of children who have turned 18:

10A—Adoption of child who has turned 18

The requirement provided for are—

that a significant parent to child relationship existed between the prospective adoptive parent or parents and the child before the child attained the age of 18 years; and

that the child appears to understand the consequences of adoption on the child's interests, rights and welfare.

Certain relevant considerations are provided for, such as whether the child was cared for by the prospective adoptive parents prior to reaching the age of 18 years (including, for example, if the child was placed in their care under the Children's Protection Act 1993.

11—Amendment of section 11—Adoption of Aboriginal or Torres Strait Islander child

The amendment provides for a general rule relating to adoption orders for Aboriginal or Torres Strait Islander children. The Court will not make an order in relation to an Aboriginal or Torres Strait Islander child unless satisfied that adoption is in the best interests of the child and, taking into account the rights and welfare of the child, clearly preferable to any alternative order that may be made under the laws of the State or the Commonwealth.

Certain other requirements are provided for, including that the Aboriginal and Torres Strait Islander Child Placement Principle be applied.

12—Amendment of section 12—Criteria affecting prospective adoptive parents

Currently, an adoption order may only be made in favour of 2 persons if they are cohabiting together in a marriage relationship for a continuous period of at least 5 years (or less than 5 years in special circumstances). The substitution of existing section 12(1) and (2) with proposed section 12(1) would allow an adoption order to be made in favour of 2 persons if—

they are in a qualifying relationship and have been living together continuously for at least the prescribed period (irrespective, in the case of married persons, of the date on which the marriage occurred) before the making of the order; or

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

Currently, an adoption order may only be made in favour of 1 person where the person has cohabited with a birth or adoptive parent of the child in a marriage relationship for a continuous period of at least 5 years (if the Court is satisfied that there are special circumstances that justify the making of an order in favour of 1 person). The substitution of section 12(3) would allow an adoption order to be made in favour of 1 person if—

the person is in a qualifying relationship with a birth or adoptive parent of the child and—

has been living together with that parent continuously for at least the prescribed period (irrespective, in the case of married persons, of the date on which the marriage occurred) before the making of the order; or

the Court is satisfied that there are special circumstances justifying the making of the order.

In addition, proposed section 12(3)(b) would allow an adoption order to be made in favour of 1 person if the person is not in a qualifying relationship and—

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

the Court is satisfied that there are special circumstances justifying the making of the order.

The prescribed period is a period prescribed by the regulations, or, if no period is prescribed, 5 years.

13—Substitution of section 14

A scheme for the discharge of adoption orders is provided for:

14—Discharge of adoption orders

The grounds for applying for a discharge order are provided for. The scheme then requires that an investigation into the circumstances relating to the application for the discharge order be undertaken and authorises the Court to make a discharge order following an investigation if it thinks an order should be made (unless it appears to the Court that to do so would be prejudicial to the rights, welfare and interests of the adopted person).

The persons who can apply for a discharge order are provided for, as well as procedural matters such as consequential and ancillary orders.

14—Amendment of section 15—Consent of parent or guardian

Certain amendments are consequential.

Another amendment requires the consent of a parent or guardian less than 16 years of age to be endorsed by at least 2 psychologists authorised by the Chief Executive with a statement from each psychologist to the effect that the parent or guardian has been counselled by the psychologist at least 3 days before the giving of consent and the psychologist is of the opinion that the parent or guardian appears to have a sufficient understanding of the consequences of adoption such that the parent or guardian is able to make a responsible decision in relation to the consent.

15—Amendment of section 18—Court may dispense with consents

The ground for dispensing with consent in section 18(1)(d) is proposed to be deleted.

16—Amendment of section 23—Name of child

The substitution of section 23(3) requires that the Court not change a first name of a child on adoption (in addition to the existing requirements in that subsection, which continue to be included in subsection (3)) unless—

the first name is offensive or unsuitable; or

another child of the adoptive parents has the same first name.

In addition, if the Court changes the first name of a child, seek to change the first name—

so that the child's second name becomes the first name of the child; or

to another name brought to the attention of the Court that is of significance to the child, taking into account the child's identity, language and cultural and (if relevant) religious ties.

17—Insertion of section 24A

A scheme for the making of voluntary custody agreements during consideration of whether to have a child adopted is provided for.

18—Amendment of section 25—Guardianship of child awaiting adoption

This amendment is consequential on the expansion of the Court's power to make adoption orders to include adoption of a child who has turned 18.

19—Amendment of section 27—Right to obtain information once adopted person turns 18

Proposed section 27(3a) provides for an additional circumstance in which the Chief Executive can provide information about an adopted person's birth parents.

The amendment to section 27(5) provides that a person is not entitled to obtain information under the section if the Chief Executive considers it would give rise to a serious risk to the life or safety of a person.

20—Substitution of section 27B

Currently, section 27B allows adopted persons, birth parents and adoptive parents to direct the Chief Executive that information that would enable them to be traced not be disclosed (an 'old section 27B direction', also known as an 'information veto'). The amendment proposes to substitute a new section 27B:

27B—Limitation of right to obtain information relating to adoption prior to commencement of Act in certain cases

Proposed section 27B continues any old section 27B direction in effect at the time of commencement of the provision for another 5 years, at which time it ceases to have effect. The Chief Executive must not disclose information in contravention of an old section 27B direction.

In addition, proposed section 27B also allows a person whose information veto is in effect at the time of commencement of the provision to provide the Chief Executive with a statement of wishes relating to contact, which, once the person's veto expires, is to be sent to any person who obtains information from the Chief Executive about the person who gave the statement.

21—Amendment of section 27C—Interviews

This amendment is consequential.

22—Amendment of section 28—Certain agreements illegal

The penalty is increased.

23—Amendment of section 29—Negotiation for adoption

The penalty is increased. Other amendments are consequential.

24—Amendment of section 30—Enticing child away

The penalty is increased.

25—Amendment of section 31—Publication of names etc of persons involved in proceedings

The concept of 'publication in the news media' is amended with a definition of 'publish' inserted into the interpretation section.

The penalty is increased.

Other amendments are consequential.

26—Amendment of section 32—Publication of certain material related to adoption

This amendment is also related to the change in section 31 relating to 'publication in the news media'.

The penalty is increased.

27—Amendment of section 33—False or misleading statements

The penalty is increased.

28—Amendment of section 34—Impersonation

The penalty is increased.

29—Amendment of section 35—Presenting forged consent

The penalty is increased.

30—Insertion of section 40A

This amendment proposes to substitute a new section 40A:

40A—Notification of death of party to adoption

A requirement is imposed on the Chief Executive to take reasonable steps (if appropriate) to inform certain persons of the death of an adopted person (when the Chief Executive is informed of the death by the Registrar of Births, Deaths and Marriages). In addition, if the Chief Executive receives information about the death of a birth parent of an adopted person the Chief Executive must take reasonable steps (if appropriate) to inform the adopted person of the death.

31—Substitution of section 41

Currently, section 41 provides that, on adoption of a child, the Registrar of Births, Deaths and Marriages must cancel any former entry in the Register relating to the child and make a fresh entry containing a statement of the date and place of birth of the child and the names of the adoptive parents. However, currently, the Court can direct the Registrar not to cancel an entry (under a scheme set out in existing section 41(2) and (3)).

This amendment proposes to substitute a new section 41 and 41A:

41—Registration

Proposed section 41 sets out a scheme relating to the making of entries and access to information in the Register (under the Births, Deaths and Marriages Registration Act 1996) with respect to adopted persons.

The Registrar is no longer required to cancel entries on adoption of children. Instead, on adoption, the Registrar must add a note to the entry in the Register of births relating to the child containing the names of the adoptive parents (if the child's birth is registered in this State). For children born outside the State, the Registrar must make an entry containing a statement of the date and place of birth of the child and the birth parents of the child (if known) as well as the adoptive parents.

In relation to an adopted person who is less than 18 years of age, subject to some exceptions, the Registrar must not allow any person access to information contained in an entry in the Register of births with respect to the adopted person. Proposed subsection (4) sets out the exceptions. Basically, the exceptions are—

a party to an adoption may access information in the Register about the adopted person if a consent notice has been given by the parties to the adoption; and

certain parties are allowed access to certain information (as set out in the subsection).

Where access is given under subsection (4), it includes access to a cancelled entry, which is defined to mean any entry formerly made in the Register relating to an adopted person that was cancelled by the Registrar before the day on which proposed section 41 comes into operation.

In relation to an adopted person who is aged 18 years or more, subject to proposed section 41A, the Registrar may allow access to information contained in an entry in the Register of births with respect to the adopted person (see proposed subsection (6)).

Where access is given under subsection (6), it includes access to a cancelled entry as follows:

the adopted person or a birth parent may have access to the cancelled entry; or

any other person may have access to the cancelled entry if the Chief Executive authorises the Registrar to give access to the cancelled entry.

Such authorisation cannot be given if the Chief Executive is of the opinion that to do so would give rise to a serious risk to the life or safety of a person.

Provision is made for a statement of wishes (about contact) given under section 27B to be provided by the Registrar when giving access to the Register.

41A—Limitation of right to access information on register relating to person adopted prior to commencement of Act in certain cases

The purpose of proposed section 41A is to continue old section 41 directions in effect for 5 years after the commencement of the measure and retain the current rules about access to information on the Register where an old section 41 direction remains in place.

Currently, the Registrar must not, except on the authorisation of the Chief Executive, allow any person access to information contained in—

an entry cancelled under subsection (1) of old section 41 (being entries cancelled from 17 August 1989 until the commencement of new sections 41 and 41A); or

an entry in the Register of births relating to a person who was adopted before the 17 August 1989 (the day on which the Adoption Act 1988 commenced).

Moreover, currently, the Chief Executive cannot give the Registrar an authorisation to allow access to such information relating to a person adopted before the 17 August 1989 if a birth parent of the adopted person has directed the Chief Executive not to do so (an 'old section 41 direction').

Proposed section 41A continues any old section 41 direction in effect at the time of commencement of the provision for another 5 years, at which time it ceases to have effect. The Chief Executive must not, in contravention of an old section 41 direction, authorise the Registrar to allow access to—

information contained in an entry cancelled under subsection (1) of old section 41 (being entries cancelled from 17 August 1989 until the commencement of new sections 41 and 41A);

information in an entry relating to a person who was adopted before 17 August 1989.

In connection with the continuation of old section 41 directions, proposed section 41A(3) provides that the Registrar must not, except on the authorisation of the Chief Executive, allow any person access to the information referred to in the above 2 dot points.

However, even while old section 41 directions continue, adopted persons who have turned 18 and birth parents may be given access to information contained in an entry cancelled under subsection (1) of old section 41 without the authorisation of the Chief Executive.

32—Amendment of section 42—Regulations

One amendment relates to ensuring that the terminology in the regulations (which currently refer to 'fit and proper' persons) matches the terminology in the Act ('suitable' persons).

Another amendment allows the maximum penalty for a breach of a regulation to be fixed at $10,000.

Debate adjourned on motion of Mr Treloar.

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