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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-12-06 Daily Xml
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Adoption (Review) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 December 2016.)

The Hon. J.M.A. LENSINK (11:17): I rise to make some brief remarks in relation to this bill. My colleague the Hon. Stephen Wade provided the Liberal Party position on the parts which are not a conscience vote for honourable members. Having read through a range of material on this matter, I think adoption certainly is an area that we all understand has been fraught for many years. Clearly, the best interests of the child were not always considered in the past and a number of changes were made. I will not go through all of those again because I think they have been more than adequately covered.

I was pleased to read in the report of Professor Lorna Hallahan that the matter of people's identity was given significant consideration. I think this is something that probably has been overlooked in the past. The paternalistic attitude of authorities has been that certain people under their particular circumstances, and perhaps their relationship status, would not provide the sort of home that good folk might think is in the best interests of the child, yet identity is one of the areas that needs to be given very significant consideration. I think a lot of people go through searches for their heritage. I have seen that amongst many people who start researching their family history and so forth in many areas and it is a very important consideration.

Clearly, the primary consideration needs to be the best interests of the child and, in the first instance, matters of safety must be absolutely paramount. It is a complicated area and there has been some debate particularly on the conscience matter of whether same-sex couples are appropriate parents, to which I would say that they clearly are.

We have had this highlighted through a couple who live not far from me in the Adelaide Hills, Shaun and Blue Douglas-Galley, who adopted children from their birth country in the UK. They arrived in Australia in October 2013 and have not been able to be legally recognised under our law because of our particular laws here. I commend them for being public about their situation which must be very difficult for them.

In reality, there are not a lot of children available for adoption. I think the member for Hammond outlined that in his contribution about the process. It is certainly something that my husband and I looked into and, having been through three years of IVF, we decided that was not going to be the route we chose to take because it would have been more trauma on top of the IVF, with the waiting periods and so forth. Also, because of our advanced age, we would not have qualified for some of the overseas countries.

I was disappointed to see that the House of Assembly made it more difficult for single people to adopt. The reality in a lot of the adoptions by single people would be that they would be people who have been caring for those children for some time in any case, and I think that is very disappointing that that is not in this legislation.

The member for Waite's comments just blew me away, and I cannot let them go by without responding to them in some way, that there is no nice, easy and convenient path for single people who find it an inconvenience to get into a relationship. I think he needs perhaps to spend more time with some of his constituents to discover that the reality of life these days is quite different. It has spawned a whole range of TV series which are well watched in the popular culture, be it Girls or Sex and the City and a whole range of things, which explain what modern life is like for a lot of people in single relationships.

Having been one of those people for some time, we do not appreciate the smug commentary from people in straight relationships with children judging those of us who might not have been in those relationships, nor does the gay community appreciate that sort of smug judgement, thank you very much. With those remarks, I indicate that I will be supporting the substantive bill but also the conscience elements.

The Hon. T.J. STEPHENS (11:22): I rise to speak to the Adoption (Review) Amendment Bill. I indicate that I will be supporting the bulk of this bill as per the Liberal Party position. There are many aspects of this bill which have merit and should be welcomed. These include the sensible reforms in the areas of adult adoption, retention of the child's name and the discharging of adoption orders. The Hon. Mr Wade has carriage of this bill for the Liberal Party and he has already spoken to the detail.

There are a few issues with certain clauses that I wish to address—firstly, the issue of an adoptee's right to veto information requests by birth parents. The honourable member for Adelaide in another place negotiated with the government on an amendment which protects the legislated privacy of individuals adopted prior to what is termed 'open adoption', that is, those adopted prior to 17 August 1989. The government's amendment, as it now appears in clause 19, gives power to the chief executive to determine whether it is appropriate for information not to be released based on whether the person was adopted prior to 17 August 1989. An astute question was raised by the member for Adelaide regarding whether this determination by the chief executive is subject to appeal.

The minister resolved to discuss this with the Attorney-General and to communicate the determination to this place. My question to the Minister for Sustainability, Environment and Conservation is whether the decision is subject to appeal and what the mechanism for appeal is. I would like this to be answered in his second reading summing up. Secondly, I address the issue of a qualifying relationship in regard to prospective adoptive parents. I have a clear and simple view: I believe that every child has a right to a mother and a father.

As the Hon. Mr Hood has pointed out in his contribution, this is a family arrangement, I think, which best serves a child and I believe it is also the way nature intends. However, I also acknowledge that there are family arrangements that fall short of this aspirational ideal for whatever reason, whether it be divorce or death, and those parents in those situations do an amazing job given the circumstances.

Adoptive parents are altruistic arrangements on the part of the parents insofar as they have biological interest in raising this child. However, there is an emotional need that is filled for both parents and child. Adoption mirrors the ideal state of the family unit and the law should reflect this. The state should not be removing children from deficient family situations where the child is unwanted only to put them in an equally deficient family situation where the needs of the child are not met. It is for this reason that I cannot support clause 5 in its current form.

I acknowledge that Liberal members are able to vote according to their conscience on this specific clause and, whilst it remains a substantive part of the bill, I cannot support it. My understanding is that the Hon. Mr Brokenshire may have an amendment seeking to change this clause, and I will look at that during the committee stage. I implore all members in this place to think carefully before voting.

The Hon. D.W. RIDGWAY (Leader of the Opposition) (11:25): I rise to make some very brief comments and repeat some of those my colleagues have made. As the Hon. Terry Stephens and the Hon. Michelle Lensink mentioned, the Hon. Stephen Wade has carriage of this bill for the Liberal Party. I support the Liberal Party components of the bill that are not conscience; however, I will not be supporting the conscience aspects of this particular bill.

I do not wish to talk ill of anybody in our community, but in my traditional view of the world and my traditional view of a family, my traditional view of people who should perhaps be given priority in adoption still holds really firm for me. I am reminded of cousins of mine who were for many years in the queue on a waiting list to eventually adopt a child from overseas. I cannot support some of the aspects of the bill that are conscience, but certainly I am very happy to support those that are not. I look forward to the amendments that may be on file so that we can perhaps address some of the concerns I have, although I suspect that will be difficult.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (11:27): I rise to close the debate on the Adoption (Review) Amendment Bill. I would like to thank honourable members for their thoughtful contributions to the debate. This government bill makes significant amendments to the current Adoption Act to implement the recommendations of the extensive review of adoption undertaken by Associate Professor Lorna Hallahan. It modernises the act to ensure the optimum conditions for adoption practice in South Australia into the future.

I do thank those members who have indicated broad support for the bill and the many important reforms it implements. A number of members have spoken in relation to two aspects of the bill here and also in the other place, including the provision for same-sex couples to be eligible to adopt on par with other couples and the removal of adoption information vetoes. The bill provides for same-sex couples to be eligible to adopt on par with other couples. This is subject to a conscience vote for government members, which will occur at clause 5, in respect of the definition of 'qualifying relationship'.

The bill defines a qualifying relationship to mean a relationship between two persons who are living together in a marriage or marriage-like relationship, irrespective of their sex or gender identity. If that definition is supported by members, the flow-on effect will be that same-sex couples will be treated just like any other couple in respect of their eligibility to adopt a child, including being subject to the same rigorous assessment process set out in the regulations.

In terms of the vetoes—and a number of members have spoken about the issue of adoption information vetoes and the impact of the proposed removal of information vetoes on some adopted persons—it is the government's intention that the department will contact all veto holders during the five-year transition period to offer them support to prepare for the removal of their veto. I am confident that most veto holders will benefit from that support. However, the government acknowledges the concerns of some adopted persons who are worried about the release of identifying information to the other parties to their adoption.

Amendments made in the other place have resulted in the inclusion of additional discretion to the chief executive to withhold access to the adoption information of an adopted person born before 17 August 1989 where the chief executive determines that its disclosure is not in the best interests of that adopted person, taking into account the adopted person's rights and interests. This is provided for in clause 19 of the bill.

Adopted persons will have an opportunity to raise their concerns with the department during the five-year transition period and, as outlined previously, will be offered relevant support if an adopted person remains of the view that disclosure of their identifying information would not be in their best interests. They may express those views to the department. The exercise of the chief executive's discretion will be subject to guidelines to be issued by the chief executive under section 27(6), I am advised.

The Hon. Terry Stephens asked a question of me a few moments ago about appeal processes. The scheme established in this bill aims to allow the department to work with current veto holders during the five-year transition period in respect to addressing concerns about the release of identifying information. In respect of adopted persons who are currently eligible to hold vetoes, it provides for information to be withheld where its release is not in the adopted person's best interests.

There is currently no provision for appeal in respect of the chief executive's discretion under section 27(5), and no such provision has been added by way of the bill. A person aggrieved by a decision of the chief executive to release or withhold information could make a complaint to the Ombudsman's office or seek judicial review of that decision.

Following debate in the other place, consideration was given to establishing a legislative provision for appeal in respect to decisions made by the chief executive under 27(5)(c). However, specific provision for such appeals was not considered feasible because of the discretionary nature of section 27(5). We do not wish to establish an adversarial system in regard to access to adoption information. We are trying to establish a system that aims to address the legacy of past adoption secrecy in a compassionate way that considers the best interests of all parties but, particularly, the adopted persons. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.J. STEPHENS: Minister, I have a couple of questions so that I can be totally clear. How many children are granted adoption to adoptive parents in South Australia per year? Can you give me an indication of the people who are on a waiting list for adoption, what numbers of people are currently waiting to adopt in South Australia?

The Hon. I.K. HUNTER: My advice is that the number of children adopted per year who are South Australian children surrendered for adoption is between zero and three per year, in the last few years. There are 14 intercountry adoptions, and the number of couples in the pool of adoptive parents is about 150.

The Hon. D.G.E. HOOD: My question to the minister is: if this bill passes, is it correct to assume that both those in a registered and an unregistered same-sex relationship (given the bill that has just passed in this place) will be eligible to apply for adoption?

The Hon. I.K. HUNTER: Clause 5 provides:

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);

The Hon. D.G.E. HOOD: Is there any qualifying period, for those couples to qualify?

The Hon. I.K. HUNTER: As I understand it, regardless of the status of your relationship, as long as you meet the qualifying requirements the prescribed period is five years.

The Hon. R.L. BROKENSHIRE: Prior to this legislation being introduced by the government, did the government have a specific policy around facilitating and/or encouraging adoption? What was the government's situation regarding adoption?

The Hon. I.K. HUNTER: As best I can explain, the government's policy in regard to adoption in previous years, prior to the Nyland royal commission, was to pursue adoption when it was in the best interests of the child.

The Hon. R.L. BROKENSHIRE: If this legislation were to get through unamended, what is the intention of the government when it comes to the 150 couples who are seeking adoption (who have, I assume, been qualified as being eligible)? I would like some clarification on that. What would be the situation with those 150 regarding the priority for them to adopt, if there were to be a change of the legislation as proposed?

The Hon. I.K. HUNTER: My advice is that how the children are adopted is really done by determining what are the child's needs and then working out what the best placement, the best fit, is for that child with regard to the pool of potential adoptive parents. It is not a situation where you have a list and your turn comes up. In fact, it is not about the eligible couples; it is more about the requirements of the child, what their circumstances are, what their needs are, what connections they may have to their relinquishing parent and how they would be best positioned going forward.

The Hon. R.L. BROKENSHIRE: Just for further clarification on that, I take it that notwithstanding that there are 150 families that have been seeking adoption—and I foreshadow that I will ask what length of time some of those have been waiting—and so that we understand the answer exactly, is the minister saying that notwithstanding the 150 families at this point in time, heterosexual families, who have been waiting for adoption, it could be that a non-heterosexual family, if it were decided that the child was better suited with a non-heterosexual family, could come up the list over and above any of those 150?

The Hon. I.K. HUNTER: My advice is that we need to make a distinction between intercountry adoptions and local adoptions. It could be said that intercountry adoptions are more like a list in the way they work. My advice is the placement assessment is made by the jurisdiction that the child is coming from; therefore, anyone new going onto the list would not displace people who have been on the waiting list for some time in that regard. My further advice—even though the question has not been asked yet, it is bound to be—is that currently the only country that will allow children to be adopted by non-heterosexual couples is South Africa.

The Hon. R.L. BROKENSHIRE: Let's forget overseas adoption at this point in time and focus on adoption of South Australian children in South Australia. A massive number of three on average a year in the last few years—

The Hon. S.G. Wade: Zero to three; don't overstate it.

The Hon. R.L. BROKENSHIRE: Zero to three. Would there be any priority given to those people already seeking adoption in South Australia for South Australian children before any changes that may occur in this chamber today allow other options?

The Hon. I.K. HUNTER: My advice is that at this point in time there are only five couples who are looking to adopt locally (that is, from South Australia) so there is not a large waiting list. In any case, the previous information that I provided to the house stands: determinations are made on the best interests of the child, not in terms of the adopting couple. The child's best interests and needs are looked at and addressed and then matched to whoever might be waiting on the adoption list to give the child the best possible outcome.

The Hon. R.L. BROKENSHIRE: If there are only five South Australian couples waiting to adopt South Australian children, does the minister have any information as to how many South Australian couples were waiting to adopt South Australian children five or 10 years ago?

The Hon. I.K. HUNTER: I can only give an approximation based on the experience of one of my advisers. Up to about 10 years ago, the number of couples wanting to adopt locally was higher. It would have been in the order of—again this is just an approximation—20 couples.

The Hon. T.T. NGO: I have one quick question arising from the previous answers: can the minister tell the house how many children are on the waiting list to be adopted?

The Hon. I.K. HUNTER: There is no waiting list.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

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

Amendment No 1 [Broke–1]—

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

Delete the definition of qualifying relationship and substitute:

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

The amendment is straightforward but, for the benefit of the committee, I will let everyone know that it relates to the definition of a 'qualifying relationship'. This amendment moves to delete the definition of 'qualifying relationship' and to substitute it with:

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

The Hon. T.A. FRANKS: I have a question for the mover (the Hon. Mr Brokenshire): would this define a qualifying relationship in the case of federal law reform for marriage equality as a same-sex couple, should that occur federally? Is that the case?

The Hon. R.L. BROKENSHIRE: I am dealing with the case as it is at the moment, and the case at the moment is not futuristic; it is realistic. The law of the Commonwealth of Australia is that marriage is between a man and a woman.

The Hon. T.A. FRANKS: The mover made his position on same-sex marriage clear—and I note that none of these bills today deal with same-sex marriage, but he said he opposed all four 'same-sex marriage bills currently before us' earlier on in the debate. Is he not here advocating for the rights of same-sex couples to adopt in the future should the federal laws change? Does he realise that there is an inconsistency in his position?

The Hon. R.L. BROKENSHIRE: No, there is no inconsistency at all. I make it very clear to the house that as long as I am in the parliament I will oppose same-sex marriage. You cannot deal with futuristic law and pre-empt situations. We will deal with that one if and when it comes, but at this point in time the fact is that only a man and a woman can marry in Australia. This is specific to the law of the day, not the law that some may hope to see in the future.

The Hon. I.K. HUNTER: The definition of 'qualifying relationship' in the bill, if it is accepted, simply means that same-sex couples will be treated on par with different-sex couples for the purposes of the Adoption Act. The amendment moved by the Hon. Mr Brokenshire effectively maintains the status quo and excludes same-sex couples from adopting. I must congratulate the Hon. Tammy Franks for her question to the mover of the amendment—

The Hon. T.A. Franks: I have another one.

The Hon. I.K. HUNTER: I am sure you do—because, in fact, I think she is right. Should the Hon. Mr Brokenshire's amendment get up, then when the federal government changes the Marriage Act it would automatically flow through, via the Hon. Mr Brokenshire's amendment, to mean that same-sex couples who are married, I presume, will be able to adopt anyway. We are trying to get there first through our 'qualifying relationships' definition at clause 5. I certainly will not be supporting the Hon. Mr Brokenshire's amendment. I do note that this is a conscience vote for members of the Labor Party.

The Hon. D.G.E. HOOD: I indicate that—and this is hypothetical, of course—should the commonwealth parliament decide to change their definition of marriage at some future point to include same-sex couples then, when and if that occurs, by that very action, same-sex couples will have access to adoption anyway. Regardless of whether the Hon. Mr Brokenshire's amendment passes or fails, the reality is that same-sex couples will be afforded those rights simply by changing the Marriage Act at commonwealth level. That remains to be seen; we will watch and see. Perhaps I will not get distracted by that, but we will see what happens in that regard.

With respect to the amendment that my colleague has moved, it will surprise no-one here to know that I will be voting for it and supporting the amendment, as did 16 members in the other place when an identical amendment was moved some two weeks ago when it was debated in the chamber. We have been through the reasons for that a number of times in this place and I will not labour those again except to say that I do firmly believe that it is to the benefit of a child, where possible, to have a mother and a father. I think they are complementary roles and both important in their own way. For that reason, I will be supporting the amendment.

The Hon. T.A. FRANKS: I have a further question for the mover of the amendment. Many members of this place have met a gorgeous family, Shaun and Blue Douglas-Galley and their two little boys, Joshi and Dylan. What will be the legal status of Joshi and Dylan if this amendment succeeds today? Will they have recognition of their two dads or will they be somehow orphaned?

The Hon. R.L. BROKENSHIRE: I believe that the honourable member had quite a bit to do with that particular matter at the time. The situation would be the same as it is, as I understand.

The Hon. T.A. FRANKS: Could the honourable mover outline the current situation as it is, as he understands?

The Hon. R.L. BROKENSHIRE: I think the honourable member is asking a question that she knows the answer to, because if I—

The Hon. T.A. FRANKS: I do; I am wondering if you do.

The Hon. R.L. BROKENSHIRE: Yes, because you put the legislation forward.

The Hon. T.A. FRANKS: No, I did not.

The CHAIR: Order! Let the honourable member answer the question without interference.

The Hon. R.L. BROKENSHIRE: As a point of clarification so I can better understand the question, I asked the member to explain. You talked about two particular young boys—

The Hon. T.A. FRANKS: That is right, Joshi and Dylan.

The Hon. R.L. BROKENSHIRE: —who I believe you may or may not have had in this chamber at some point in time.

The Hon. T.A. FRANKS: They have visited the parliament, but I do not think they have been in this chamber. They have certainly not been the subject of any legislation before this place.

The Hon. R.L. BROKENSHIRE: The legislation that I am putting up as an amendment is quite clear. At the moment, the situation is that same-sex couples cannot adopt—that is the situation at present. There is a change to that with respect to this legislation put up by the government regarding the definition of 'qualifying relationship' under clause 5(6). I am specifically moving an amendment that clearly says that 'qualifying relationship' means:

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

It is that clear. It is a marriage between a female and male or a de facto relationship between a female and male.

The Hon. T.A. FRANKS: For the information of the mover, I shall clarify the situation that I asked him the question about, and he might like to have another go. The Douglas-Galley family moved here from the UK. They are a family headed by two males with two young boys. These boys were in the institutionalised care system in the UK and were adopted by this couple, Shaun and Blue, and taken from a life that would have been, in this state, residential care and given a loving family home. They have moved to this state. What is their legal status, and how will this amendment affect their legal status?

The Hon. R.L. BROKENSHIRE: I am not privy to an adviser, which the government has. My understanding is not 100 per cent on this because this couple were able to do that under the law of another country. If the adviser is in a position to be able to clarify this through the minister, then I would seek that. However, I am not dealing with laws of another country here; I am dealing with the South Australian law, and what I am moving is very clear.

The Hon. T.A. FRANKS: I rise to indicate, with no surprise to the honourable mover, that the Greens will be opposing this amendment. I think it is sloppily worded, even if you do agree with the content. It actually provides the very opposite of what the member believes it provides. Indeed, it will open the way for same-sex couples to adopt children in the future, and I welcome Family First's progressive steps today towards that.

Certainly, the Greens have long stood for LGBTIQ equality, and we will be opposing this amendment. We also caution members who are not understanding the framework in which they operate when they move such an amendment is this. We are looking at a situation here that would stop a family currently in South Australia from having legal rights that protect the rights of the child. Joshi and Dylan deserve that protection, so that is why I will be opposing this amendment today.

The Hon. R.I. LUCAS: For the reasons I outlined in the Relationships Register (No 1) Bill, I will be supporting the amendment. However, in relation to the interesting discussion between the Hon. Ms Franks and the Hon. Mr Brokenshire, I am not a lawyer, but I can proffer the view that whatever the legal position is at the moment will be the legal position should the amendment pass, because this is seeking to reinforce the current legal position. Again, not being a lawyer, I cannot offer any legal advice to the Hon. Ms Franks, and I do not intend to, but I can offer an observation; that is, if the amendment is passed, it will just be the existing position.

Whatever the legal status is of the family in question that the Hon. Ms Franks is speaking about, and I have no direct knowledge of their personal circumstances, the status will remain the same. Should this particular amendment pass, it will maintain the status quo in terms of the state legislation as it would relate to anybody.

The Hon. K.L. VINCENT: Given that what is in the bill is the recommendation of a very comprehensive review that was done of the state's adoption law—which found that it is in the best interests of the child or children to allow same-sex couples to adopt, and that same-sex couples would have to undergo the same checks and balances when applying to adopt as any other couple in terms of their ability to financially, materially and emotionally provide for and care for a child—I do not think it will be surprising to anyone that I will oppose this particular amendment, particularly given that the majority of this parliament has agreed to establishing a relationships register because we find that marriage is not always the most suitable situation for everyone.

Given those two factors, that the majority of this parliament, as I understand it, agrees to a relationships register separate from marriage, and that a very comprehensive review has found that same-sex couples should be able to adopt in the best interests of the child and to go through the same checks and balances as anyone else, I see no need for this amendment.

The committee divided on the amendment:

Ayes 4

Noes 13

Majority 9

AYES
Brokenshire, R.L. (teller) Hood, D.G.E. Lee, J.S.
Lucas, R.I.
NOES
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Gazzola, J.M. Hunter, I.K. (teller) Lensink, J.M.A.
Maher, K.J. Malinauskas, P. McLachlan, A.L.
Ngo, T.T. Parnell, M.C. Vincent, K.L.
Wade, S.G.
PAIRS
Ridgway, D.W. Kandelaars, G.A. Stephens, T.J.
Gago, G.E.

Amendment thus negatived; clause passed.

Clauses 6 to 18 passed.

New clause 18A.

The Hon. S.G. WADE: Sir, by way of clarification, you mentioned that a new amendment has been distributed. I indicate that I have not seen the amendment. I would be extremely uncomfortable with the committee progressing without due consideration of the amendment.

The Hon. I.K. HUNTER: Mr Chairman, given that the amendment has been tabled, I wonder whether the mover would like to explain it for the chamber's benefit before we determine how to proceed.

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

Amendment No 1 [Broke–2]—

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 prospective adoptive parents to be applicants for an adoption order, ensure that persons on a register or subregister kept for the purpose of selecting such applicants who are living together as husband and wife or de facto husband and wife are given priority over a person or persons on the register or subregister who are not living together as husband and wife or de facto husband and wife.

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

I apologise to colleagues for the lateness of this amendment. It is not the first time an amendment has been filed during proceedings. In summary, this amendment would ensure at law that, in selecting prospective adoptive parents, the chief executive officer must focus on married couples or de facto couples.

The Hon. T.A. FRANKS: Both the Hon. Michelle Lensink and I have reflected on the provisions in this bill that restrict access to adoption for single people. Indeed, it is in special circumstances where often these single people have cared for the child for a very long period of time and where that child has special needs. Does the mover of the amendment anticipate that, in such a case, a married couple will simply be able to come in and jump the line over that single person who has cared for a child for an extensive period of time?

The Hon. R.L. BROKENSHIRE: It is a straightforward amendment. In circumstances where children have been chosen through the department to be made available for adoption, and there are people who have passed the requirements from the point of view of qualification (if I can put it that way), married or de facto couples—husbands and wives—will have a priority on registration. A child is not adopted until the child is adopted. There may be a child in care, there may be a child in foster care but, until formal adoption occurs, there is no adoption under law. This specifically says that a male and a female, a married couple or a de facto couple, have a priority for adoption.

The Hon. I.K. HUNTER: In a brief glance at this amendment that has been dropped on us, it does a couple of things. It does one thing clearly, and that is to try to make sure that heterosexual couples have priority over non-heterosexual couples—

The Hon. J.M.A. Lensink: And single people.

The Hon. I.K. HUNTER: Yes, indeed. As alluded to by the Hon. Michelle Lensink and the Hon. Tammy Franks, it also applies to single people in dropping them down the order. Let's be quite clear about this: what it actually does is oppose the recommendation of Lorna Hallahan, which is to put the children's best interest first.

The whole process of the drafting of this legislation is actually to put the child at the focus of everything we do under the Adoption Act. The child's interests, and where they are placed, are determined on the basis of their best future life. What this amendment is trying to do is say, no, that will now be second place to the interests of married or de facto heterosexual couples. Let's be very clear about this amendment: it puts couples above the interests of children, and for that reason the government will be opposing it.

The Hon. K.L. VINCENT: I have a couple of questions, first to the mover of the amendment, and then on some further information from the minister which I think might be useful. To reword the Hon. Ms Franks' question slightly, just to ensure that we get this point across, as the Hon. Ms Franks has said, single people under the existing adoption law can already adopt where there is an extenuating circumstance, if I can call it that, including where they might have a long-term parent-like caring relationship for a child or young person with special needs, as the legislation calls it; I do not particularly like that term myself. That would obviously include a disability.

Is the mover suggesting that, rather than that child or young person remaining with the person who has been caring for them for a long time and understands their particular needs to do with their disability or health condition, they instead be given priority to move to another couple who might be less familiar with their needs, particularly if they have, say, a communication difference or other particular needs? Is that truly the mover's preference?

The Hon. R.L. BROKENSHIRE: New subsection (2) provides:

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

There are a range of examples where children who are in foster care or under the guardianship of the minister are cared for by people now, but this clause quite clearly says that if this were to be passed then in future the priority would be towards a married couple under the commonwealth recognition of a married couple, which is a husband and wife or a de facto husband and wife. So, yes, they would have priority over a person or persons on the register or subregister who are not living in a marriage as a husband and wife, or in a de facto situation as a husband and wife.

The Hon. K.L. VINCENT: I will ask a further question of the mover, if I may have the floor, because, with all due respect, I do not think he has addressed the question at all. Does the mover believe that his amendment does or does not apply to where there is an existing caring relationship and, if there is an existing relationship, would the preference still be given under the mover's amendment to that existing caring relationship, particularly where the child has a disability or an additional health condition?

The Hon. R.L. BROKENSHIRE: While I wait for the minister, I want to reinforce that I have said that there is a clause that makes this not retrospective; it is not a retrospective amendment.

The Hon. S.G. WADE: I am certainly not going to move the motion, but I think it is important to clarify for the house that, as shadow minister responsible for this bill, my view is that this would be a conscience matter for our party. It is certainly my view that our members need more time to consider it. I would be happy to continue unpacking it, and I have a couple of comments and questions of my own. My comments and questions will be personal because this is a conscience matter.

The Hon. I.K. HUNTER: In terms of the issue the Hon. Kelly Vincent is pursuing with the mover of the motion, my concern would be, in that line of questioning, that a long-term foster carer, for example, who has a foster care relationship with a child, who may not be registered to adopt, and if they are not registered to adopt by the time that this amendment comes into commencement, then they will be precluded.

Of course, you would think that a person in that situation might be advised of this amendment coming into place, but possibly not. So, someone who has a long-term foster care situation with a child, who is not currently registered as an adoptive parent or in the pool of adoptive parents (and certainly single people usually are not because they are not allowed to be, except under special circumstances), would be caught by this.

The Hon. S.G. WADE: As I mentioned earlier, my comments will be personal; it is a conscience matter. I am drawn to the minister's logic earlier when he reminded the house that this amendment threatens, if you like, the centre tent pole of the bill, that is, that the best interests of the child are paramount. I think that in recent days some unhelpful comments have been made right across the spectrum in relation to this bill. I would remind people that new section 3(1)(a) in the objects of this act provides:

the best interests, welfare and rights of the child concerned, both in childhood and in later life, must be the paramount consideration;

Then new subsection (2)(d) very wisely states that 'no adult has a right to adopt a child'. Whether they are a same-sex couple or a heterosexual couple, the right of the child must be paramount, so I am puzzled to see how this amendment could fit into that schema because it says that a heterosexual couple will take priority. Does that mean that somehow the child's rights are not paramount?

Because of my legal education—I stress that, unlike the Hon. Kyam Maher, I am not a lawyer but I have had some legal education—I would have expected to see this clause more in terms of, if one wanted to have a bias towards heterosexual couples, all other things being equal. In other words, if the best interests of the child could not be distinguishably differentiated between two prospective couples, one may—I am not suggesting this—want to give priority to a heterosexual couple. This does not say that. This almost says, 'Ignore the paramount rights of the child and assert the rights of heterosexual couples, in contrast to any other couples.'

As I said, they are personal comments on a conscience matter. I will give it further consideration. At this stage, I think it raises significant issues for what is almost a holy principle of this act. From the decades of harm that our state laws and practices have done to children, we know that we should tread very carefully in this area. I think that anything that would challenge that principle of paramountcy of the best interests of a child should be treated with great caution.

The Hon. T.A. FRANKS: When did the mover decide that this was an appropriate course of action? When did he come up with this amendment?

The Hon. R.L. BROKENSHIRE: I have considered a number of amendments for some time. I put this amendment up in consideration of other amendments I had already tabled. I am not moving any change to the objects and guiding principles. The objects of this bill are to emphasise that the best interests, welfare and rights of the child concerned, both in childhood and in later life, must be the paramount consideration in adoption law and practice. That is not changing. What is changing is the proposal that there be a priority to a married couple, a husband and wife or, for that matter, a de facto couple.

I personally believe, although others may not, that in the interests of obtaining what is the focus of paragraph (a) of the objects and guiding principles, the best outcome is for the adopted child to be with a married couple as recognised under the commonwealth Marriage Act, namely, a male and a female, a mother and a father, or a de facto mother and father.

The Hon. T.A. FRANKS: My question was not answered. I asked the mover when he decided that this was a good course of action, because the date on the draft of the amendments tabled—not properly filed, but in fact a draft—is 4.36pm on 29 November.

The Hon. R.L. BROKENSHIRE: I did have a draft done. When did I decide to file it? Once I saw, after listening to the debate, that there was going to be no chance of getting the first amendment up.

The Hon. R.I. LUCAS: Mr Chairman, I am quite interested to listen to the debate going backwards and forwards, but I have a very strong view that, as someone who has not formed a view and who has only just seen the amendment, it would be appropriate not to be forced to vote on it at the moment. We should report progress so that we can consider whether or not we want to support it. The Hon. Mr Brokenshire might even consider the advice of the Hon. Mr Wade to see whether, upon advice, he wants to move it in a different way.

My position is pretty simple in relation to this. We have been asked to come back and sit for the optional week; the slackers in the other place have not, so this is not going to be resolved ultimately until February. I am not asking for it to be resolved in February, from our position. We are here for three days. We have three days—today, tomorrow and Thursday—to resolve these issues. From my viewpoint, and I know from my colleagues' viewpoint, we are quite happy in this chamber to resolve by Thursday whatever it is we need to do with these four bills. No-one is arguing to delay them until February. It may well be because the house is not sitting that some issues will have to be resolved in February.

It would be appalling parliamentary practice if we were forced to vote on this issue. I foreshadow that, in relation to the surrogacy eligibility bill, we have two pages of amendments which the Hon. Mr Hood has flagged which I have not yet had a chance to consider. We have all been sitting here assiduously debating these other issues. I would like to take advice and reflect on those and form a view as to whether or not I support them so that we can vote on them tomorrow or Thursday. We are here for three days. We can complete these bills—we have done one already—within the optional sitting week we have talked about.

In my view, it would be appalling parliamentary practice to be required to vote on the issues now. If the minister in charge of the bill—I do not have a problem with the further exploration of issues, if he wishes—is ultimately not prepared to report progress on this issue now, I foreshadow that at some stage after the debate has continued for a while I will move to report progress and test the will of the committee as to whether there are others who agree with the view that I put.

The Hon. D.G.E. HOOD: I will be very brief. On the response of the Hon. Mr Lucas, I indicate that in my amendment, whilst it does spill onto a second page, there is really only one issue on that particular bill, and I do not think it is the sort of thing that would warrant a great deal of consideration, but that is a matter for the chamber.

The Hon. S.G. WADE: I took the minister's earlier response to my comments about reporting progress to mean that he was not going to object to reporting progress. In the light of the Hon. Robert Lucas's comments, I suggest to the government that it might be orderly to adjourn this matter until tomorrow, not on motion—when we have as many views in the chamber as we have members, it is difficult to have a debate that is not, shall we say, marshalled by our whips—and I think that would be orderly practice.

The Hon. I.K. HUNTER: I concur with the views put about having further consideration on this amendment. I note the Hon. Tammy Franks' questions about the lateness of the tabling of the amendment. I invite the honourable member, and any other members who are sitting on any amendments potentially, to do the chamber the courtesy of tabling them now so that we do not find ourselves in this situation two, three or four more times during the course of today or tomorrow. I do think it is sensible to report progress; however, I will be asking to report progress on motion.

The Hon. S.G. WADE: I take the points made about the late tabling of this amendment but, with all due respect to the minister's comments, the Hon. Robert Brokenshire's second amendment would be totally irrelevant if same-sex couples did not have access to adoption. It needed to be late breaking because his previous amendment was dismissed.

Progress reported; committee to sit again.

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