This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Adoption Act 2000 so as:

(a) to clarify the circumstances that must exist before the Supreme Court makes
an adoption order in relation to an adult, and

(b) to require adoption plans for Aboriginal and Torres Strait Islander children to
make provision for certain matters, and

(c) to specify the circumstances that must exist before an adoption order may be
made so as to enable a child to be adopted by his or her authorised carers, and

(d) to facilitate the return of children to the parental responsibility of the
Director-General of the Department of Community Services, and

(e) to ensure that the provision of certain documents to adopted children does not
contravene the provisions of the State Records Act 1998, and

(f) to provide for the issue of search warrants to facilitate the investigation of
suspected offences under the Adoption Act 2000 and the regulations under that
Act, and

(g) to enable the prescription of adoption services and accreditation standards to
be effected by administrative order rather than, as is currently the case, by
regulation, and

(h) to enact savings and transitional provisions, and
        (i) to align certain terminology used in that Act with terminology used in the
Children and Young Persons (Care and Protection) Act 1998.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date on which
it is assented to.

Clause 3 is a formal provision that gives effect to the amendments to the Adoption
Act 2000 set out in Schedules 1 and 2.

Clause 4 is a formal provision that gives effect to the amendment to the Law
Enforcement (Powers and Responsibilities) Act 2002 set out in Schedule 3.

Clause 5 provides for the repeal of the proposed Act after the amendments made by
the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Principal amendments to Adoption Act
2000
Adoption orders for adults
Section 24 (1) specifies who may be the subject of an adoption order. In the case of
a child who is over the age of 18 years when the application for the adoption order is
made, section 24 (1) requires the child to have been cared for by the applicant.

Section 24 (2) (a) states that a child has been cared for if he or she has been brought
up, maintained and educated by the applicant for a continuous period of at least 5
years before the application was made. Schedule 1 [3] amends section 24 (2) (a) so
as to make it clear that the period of 5 years must have occurred before the child
reached the age of 18 years. Schedule 1 [4] inserts proposed section 24 (3) to make
it clear that the Supreme Court may, in exceptional circumstances, make an adoption
order even if the child has been brought up, maintained and educated by the applicant
for less than that period.

Adoption plans for Aboriginal and Torres Strait Islander children
Section 46 prescribes the matters for which an adoption plan must, and may, make
provision. One of the matters for which an adoption plan may make provision in
respect of a child is the way in which the child is to be assisted to develop a healthy
and positive cultural identity and for the links with his or her heritage to be fostered.

Schedule 1 [5] inserts proposed section 46 (3) which provides that, in the case of an
Aboriginal or Torres Strait Islander child to be adopted by persons who are not
Aboriginal or Torres Strait Islander persons, that matter is one for which an adoption
plan must make provision.

Adoption of children by authorised carers
Section 67 enables the Supreme Court, when considering an application for an
adoption order for a child, to dispense with the consent of certain persons (other than
the child) in certain circumstances. Schedule 1 [6] amends section 67 so as to allow
the consent of any person (other than the child) to be dispensed with in the case of an
application made by an authorised carer if the Supreme Court is satisfied that the
child has established a stable relationship with the authorised carer and the adoption
of the child by the authorised carer will promote the child’s interests and welfare.

Return of children to parental responsibility of Director-General
Part 6 of Chapter 4 gives guardianship to the Director-General of any child who is
awaiting adoption. Section 79 provides for when that guardianship comes to an end.

Section 79 (1) (d) provides that guardianship comes to an end if the child is placed in
the care of some other person. Schedule 1 [7] omits section 79 (1) (d). Schedule 1
[8] inserts proposed section 79 (2A) which provides instead that the
Director-General’s guardianship is merely suspended while the child is so placed.

Schedule 1 [8] also inserts proposed section 79 (2B) which provides that such a
placement may be terminated at any time, and for any reason or no reason. Schedule
1 [9] inserts proposed section 79A which enables the Director-General to make an
order directing that a child who has left, or been removed from, the care of the
Director-General or of any person with whom the child has been placed to be
returned to that care.

Provision of documents to adopted persons
Part 2 of Chapter 8 entitles an adopted child to be given certain information
(including an original birth certificate and original birth record). In some
circumstances, giving such information and documents to the child may contravene
the provisions of the State Records Act 1998. Schedule 1 [10] inserts proposed
section 143A so as to ensure that there will be no such contravention.

Search warrants
Schedule 1 [9] inserts proposed section 79B, and Schedule 1 [11] inserts proposed
section 202A, each of the proposed sections enabling the Director-General or a
police officer to apply for a search warrant. A search warrant under proposed section
79B will facilitate the search for missing children for whom the Director-General has
parental responsibility. A search warrant under proposed section 202A will facilitate
the investigation of alleged offences under the Act or the regulations.

Prescription of adoption services and accreditation standards
Section 13 (2) enables the regulations to prescribe the adoption services for which an
adoption service provider may be accredited and standards that an adoption service
provider must comply with in order to be accredited in relation to such a service.

Schedule 1 [1] amends section 13 (2) so as to provide that such matters are to be
prescribed by administrative order. Schedule 1 [2] inserts proposed section 13 (3)
which will provide for the tabling and disallowance of such an order, and proposed
section 13 (4) which requires any prescribed accreditation standards to be posted on
the Department’s internet website.

Savings and transitional provisions
Schedule 1 [13] inserts proposed Part 3 into Schedule 3. The new Part contains
savings and transitional provisions consequent on the enactment of the proposed Act.

Schedule 1 [12] amends clause 1 of Schedule 3 so as to enable further savings and
transitional provisions to be made by regulation.

Schedule 2 Amendments to Adoption Act 2000 in
relation to changes in terminology
Schedule 2 amends various provisions of the Act so as:

(a) to substitute the expression “care responsibility” for the expression “care”, and

(b) to substitute the expression “parental responsibility” for the expression
“guardianship”, and

(c) to substitute the expression “authorised carer” for the expression “foster
parent”.

The Schedule also inserts definitions of authorised carer and care responsibility into
the Dictionary to the Act (Schedule 2 [55]).

The purpose of these amendments is to align the concepts used in the Act with
concepts used in the Children and Young Persons (Care and Protection) Act 1998.

Schedule 3 Consequential amendment of Law
Enforcement (Powers and
Responsibilities) Act 2002
Schedule 3 amends Schedule 2 so as to include references to proposed sections 79B
and 202A of the Adoption Act 2000, to be inserted into that Act by Schedule 1 [9] and [11].

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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