Debate resumed from an earlier hour.
The Hon. HELEN SHAM-HO [5.07 p.m.]: Before question time I was referring to social change and the decline in the number of children available for adoption. The number of adoptions in New South Wales fell from over 4,500 in 1972 to just 154 in 1991. This figure can also be contrasted with the 19 adoptions arranged by the New South Wales Department of Community Services last year. In the early 1960s there was not the developed awareness of the culture of indigenous people that exists today, nor was there regard for the rights of children. Attitudes and laws relating to access and information have also changed markedly over the past 35 years. In the past, adoption practices involved almost total secrecy. Today adoptions are more open and honest. Children are usually told at an early age of their adoptive status and birth parents are provided with certain non-identifying information about the adoptive family.
Some of these changes are reflected in legislation, most notably the Adoption Information Act 1990. I am pleased that this Act has been incorporated into the bill. I might add that as a member of the Standing Committee on Social Issues I played a part in recommending the introduction of the 1990 legislation. It was the committee's first inquiry into these emotional issues since the Adoption of Children Act was enacted in the 1960s. It was the first time that I participated in a parliamentary inquiry since becoming a member of Parliament in 1988. That is why I remember the inquiry so well. It was a very emotional experience. The trend towards greater openness in adoption is reinforced and extended by the proposed legislation. For example, birth parents may be actively involved in the selection of adoptive parents. A degree of shared parenting is also encouraged through adoption plans. These plans will commonly contain provisions for the exchange of information between parties to the adoption and their continuing contact. I strongly support these changes. It is in the interests of the children involved to promote openness and honesty in adoption practices.
Another significant change under the bill concerns eligibility requirements. It has always been my view that adoption law and practice should not discriminate against people on the basis of age, race, religion or other characteristics. However, in the past adoptive parents have had to satisfy criteria relating to age, marital status, health, character, religious convictions and education. Under this bill adoption is permitted by a couple, a single person, a relative or a step-parent over the age of 21 years. The only proviso is that parents must be selected on the basis of who can best provide for the needs of the child. I welcome these changes. The discriminatory provisions of the existing legislation clearly violate our current antidiscrimination laws. I am especially pleased that the bill departs from the arbitrary upper age limit for people wanting to adopt a child in New South Wales. Under the existing legislation the age gap between adoptive parents and children cannot exceed 41 years. But, in my experience, older applicants are often highly suited to the task of raising children. They may be more mature, financially stable and have the time on their hands to provide children with the security and loving environment that they need and deserve.
I have recently made representations to the Minister for Community Services on behalf of two Chinese-Australian couples who desperately wish to adopt babies in China but have had enormous difficulties doing so because of their age. In the first case WenJuan and her husband, aged 53 and 65 respectively, have been trying to adopt an abandoned Chinese infant for the past nine months. This couple's case is particularly tragic as their own daughter, Shirley, was brutally murdered in Blacktown in 1995. At the time Shirley was a 23-year-old student at the University of New South Wales and about to graduate with a degree in accounting.
After numerous representations and inquiries, I have had to inform the couple that they are not able to adopt the child under the Department of Community Services' intercountry adoption program. While Chinese adoption law does not specify an upper age limit for adoptive parents, the Chinese Centre for Adoption Affairs, the nominated agency through which all Australian adoption applications must be processed, has specified that it wishes to place children under the age of two years with younger applicants. Because WenJuan’s husband is over 50, they will only ever be matched with an older child. This is in spite of the fact that they are both in good health, are emotionally and mentally stable, and are financially capable of supporting a newborn baby.
In the second case, Connie and Ron, aged 36 and 51 respectively, are hoping to adopt a newborn child from China. As with the first case, the problem for this couple is that the allocation of any Chinese child under the China-Australia adoption agreement is made using the age of the older member of the couple applying for adoption. For an applicant of Ron's age, the Chinese authorities would consider placement of a child of three to four years, rather than a newborn infant. This requirement is anomalous. Since single applicants may apply for adoption under the Department of Community Services assessment criteria, the best option for this couple is for Connie to divorce her husband, apply to adopt a newborn child under the department’s country adoption program, and then remarry Ron once the adoption has been finalised. Going to those lengths is simply ridiculous. I hope that, in time, the Chinese Centre for Adoption Affairs will follow this State's lead by dispensing with the arbitrary upper age limit for couples wishing to adopt Chinese infants, particularly as China has a one-child policy and consequently, I believe, a large number of abandoned babies and infants.
On the topic of overseas adoption, it is well known that more and more prospective parents are turning to intercountry adoption, with approximately 60 overseas adoptions being finalised in 1999. As I mentioned earlier, only 19 local children were available for adoption in New South Wales last year. The proposed legislation provides for the recognition of intercountry adoptions between New South Wales and countries mentioned in schedule 2 to the Hague convention in respect of intercountry adoption, which ensures that there is no illegal trading in children. The bill also allows New South Wales to recognise the adoption agreement with China signed by Australia in February of this year. I am pleased to report that the first 16 children adopted out to Australian families under the new China-Australia adoption agreement arrived in this country just last weekend, on 3 September. All 16 of those children are girls, a reflection of the one-child policy and the premium placed by many Chinese families on having boys. It is sad to note that an estimated 50,000 children remain in orphanages across China.
Another major focus under the proposed legislation relates to indigenous children. At this point I wish to congratulate the Minister for Community Services, the Hon. Faye Lo Po’, for including the Aboriginal child placement principle, or ACPP, within the proposed legislation. For the benefit of honourable members who may not be familiar with the concept, the ACPP outlines a preference for the placement of Aboriginal children with Aboriginal people when they are placed outside their families. The order of preference is generally that an Aboriginal child be placed within the child’s extended family. Failing this, the child is to be placed with other Aboriginal people. The ACPP is based on the premise that Aboriginal children are better off cared for in their Aboriginal families and communities. This is an assumption confirmed by the emergence of the stolen generation. The stories now being told by Aboriginal children who were removed from their families and placed in children's homes, missions and with foster families universally reflect a feeling that a part of themselves has been removed and lost forever.
While there are some provisions in the current Adoption of Children Act 1965 which are relevant to Aboriginal children, there is no reference to the ACPP. This is highly problematic. The very concept of adoption, whereby all ties with the natural family are severed, is contrary to Aboriginal child-rearing practices. Aboriginal children are generally regarded as the responsibility of the whole family, of relatives and of their community and any other Aboriginal community. In conclusion, I wish again to indicate my support for the Adoption Bill. The bill will modernise the law as it relates to adoption and adoption practices, and it addresses the great number of social changes that have occurred in New South Wales since the mid-1960s, when the current Act was drafted. I commend the bill to the House.
The Hon. J. P. HANNAFORD [5.17 p.m.]: I indicate my support for the Adoption Bill, which implements a major set of reforms. It adopts about 90 of some 110 recommendations of the Law Reform Commission's report, which I note resulted from a reference to the Law Reform Commission made by me in November 1992. In fact, since I became a member of Parliament, adoption has been the subject of significant reform. I can recall that the first package of changes, with which I am still belted about the head by the community, came as a result of a discussion between the Hon. Virginia Chadwick and me about how to achieve changes in access to information by relinquishing parents and adopted children. Both the Hon. Virginia Chadwick and I had had the experience of being lobbied by the Adoption Triangle and other groups. I said to her, "We put in place policy committees in this House and there should be no more important reference to the Standing Committee on Social Issues than this." At that stage Max Willis was the chairman of that committee. Virginia Chadwick said, "Right. We will draft the reference." I drafted it for her and it became the first reference to the social issues committee. That initiated what became this package of reforms.
A number of members who were concerned about some of these reforms—including a few members of my own political organisation—berated me. In fact, there is one Liberal Party branch that I cannot even attend because the people there are so concerned about these reforms. However, the reforms have been beneficial and today we see that more reforms are proposed. Interestingly, the 1992 reference to the Law Reform Commission arose out of problems associated with inter-country adoption and the age limit imposed by the legislation on adopting parents. If my recollection is correct, that was regarded as a politically sensitive issue at that stage. It is also my recollection that the Standing Committee on Social Issues was embarking on another analysis of issues associated with adoption. The matter was referred to the Law Reform Commission for examination because of pressures on the social issues committee and the fact that we did not want to overburden that committee.
I recall numerous representations at that time about the age limit. Some friends of mine wanted to adopt but could not do so because they were over the age limit. I believe they would have been excellent parents. This bill puts the focus back onto the primacy or interests of the child, which is of significance. I suppose I should declare an interest, as my two eldest children are adopted. Other members of this House are also adoptive parents and we look with interest at the proposed changes. I commend the Government for bringing forward this package of changes and for implementing the recommendations of the Law Reform Commission.
I congratulate the Law Reform Commission members who conducted this inquiry, under the chairmanship of Professor David Weisbrot. I consider that the New South Wales Law Reform Commission has been the most successful commission in Australia in achieving legislative implementation of its recommendations. Professor Weisbrot has been the most successful administrator of the New South Wales Law Reform Commission in achieving change. Most of his reports—in fact it might be fair to say every one of his reports—have been implemented by legislative change. I believe that no other executive director of a law reform commission in Australia can lay claim to that. That is to his significant credit. I note that Professor Weisbrot is now President of the Federal Law Reform Commission and I hope he is as successful there as he was in New South Wales. I commend him and his staff for their outstanding success during their period leading the New South Wales Law Reform Commission.
Before I take my leave of this House I would like to comment on other legislation which this House may have to consider. I hope the House will bear with me as I make these brief comments. I refer to the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill, which also relates to adoption, and which the House may or may not receive for consideration. I note that some of the measures in that bill have been implemented in the United States, but I think it would be a retrograde step if that legislation were to be introduced here.
We recognise that there are problems relating to the permanent placement of wards of the State but the Government should not abdicate its responsibility for meeting the needs of such young people and the needs of their foster carers by arranging for them to be adopted. The issue is to examine the needs of those young people, put in place permanency care plans to assist them and their foster carers, and provide the resources and support to meet those needs. For us today to say that we will take those young people from the care of their parents and arrange for them to be adopted, effectively saying that their parents are no longer their legal guardians, would be to significantly derogate from the direction that we, as caring State legislators, have traditionally taken.
The only occasion on which we departed from the principle of the primacy of parents as parents, and the primacy of the role of parents to voluntarily relinquish parental control, was when we dealt with Aborigines in that way. We are now coming to grips in this country with the issue of the stolen generation. If we adopt the policy direction that the permanency planning bill takes, we will create a white stolen generation. We should learn from history in that regard. I hope that this House, if it comes to consider the bill, will examine it very carefully. I believe the bill is bad policy and is driven more by the inability of government to find the resources to meet the needs of young people.
We should be trying to find ways to address the needs of those children and their support network, no matter what that may involve, rather than saying that we as the State will make a determination that parents will no longer have legal care and custody of their children. That is just bad policy. I hope that the left-wing members of the Australian Labor Party, who I know would take the same approach as I have taken in relation to that bill, will win the day and not allow the right-wing troglodytes to succeed in their policy objectives.
The Hon. Jan Burnswoods: Only some of the troglodytes.
The Hon. J. P. HANNAFORD: Only some of them. I only hope that those to the left of the centre right will win the day in that regard. I make these comments in the hope that, in the event that the legislation comes before this House, the majority of members will have learned from the way that we were able to succeed with adoption reform in the past decade and refer the matter to a parliamentary committee. If the bill is sent to this House it ought to be referred to a parliamentary committee; and I believe that the community will make it clear to this House what the right policy direction is.
The Hon. JAN BURNSWOODS [5.28 p.m.]: I have pleasure in supporting the Adoption Bill and I do so because I believe it is a very important bill. The issues that it addresses, particularly the rights of children, are of great importance to all of us. It is also very important legislation because it updates an Act that is now 35 years old, the Adoption Act of 1965, which came into effect in 1967—plus the Adoption Information Act 1990, which is now 10 years old. I am very conscious that the legislation has become more and more out of date, although I think it should be observed that while the legislation has become more and more old fashioned in many ways, and inappropriate, it is true that the administration of adoption has changed quite markedly since 1965. In many ways this overdue legislation is a matter of the Act catching up with the practice.
As previous speakers have done, I will refer briefly to the efforts of the Law Reform Commission in its marathon review of the adoption Acts of 1965 and 1990, as well as the issues and principles encompassed in this important subject. As the Hon. J. P. Hannaford reminded us, the legislation was referred to the commission in 1992 and the commission spent five years producing its very large report, which contains 110 recommendations. Since its production in 1997, the Minister has consulted further and worked over those recommendations, and I congratulate her on doing so. The end point is the bill we are now debating. I will quote briefly from the beginning of the executive summary of the Law Reform Commission report, which sums up where we find ourselves today. It states:
I read that paragraph because it sums up very well all of the areas of debate that have changed so much since the 1960s. It reminds me of some of the important issues that we are exploring when dealing with this and other legislation which will be introduced into this House in due course. The statement also reminds me of some of the evils that the Federal Government is currently committing, or planning to commit, and which highlights that the Federal Government still appears to be living in 1965 rather than having progressed with most of the rest of us. I urge honourable members to consider some of the implications of the observations of the Law Reform Commission in its 1997 report, which are as true now as they were then. The bill closely follows the recommendations of the Law Reform Commission and has been the subject of community consultation. It has the support not only of the commission but also of the various adoption agencies, the New South Wales Committee on Adoption, and the adoption community broadly, and it responds to the recommendations of the commission with the benefit of subsequent research and consultation.
In 1965, community attitudes towards ex nuptial births, the roles of men and women in society, de facto relationships, sexual orientation and many other aspects of family life were significantly different from attitudes which currently prevail. The nuclear family, headed by a legally married husband and wife, was not only perceived to be the norm but was considered by many to be the only truly acceptable form of family. In Australia, at least, reproduction technology had barely begun to be explored. Australia had yet to establish itself as an essentially multi-cultural society. There was not a developed and widespread awareness of the values of other cultures: in particular, that of indigenous peoples. The process of reconciliation with indigenous peoples had not begun. It was in this climate that the Adoption of Children Act 1965 (NSW) was drafted.
I will now refer to my experiences as Chair of the Standing Committee on Social Issues and its inquiry into adoption. Honourable members would know that for some time that committee has been conducting an inquiry into the adoption practices that prevailed in New South Wales between 1950 and 1998. The committee's first report, in 1989-90, dealt with adoption information and, as the Hon. J. P. Hannaford said, its role largely led to the introduction of the Adoption Information Act 1990, which brought old legislation up to date by focusing on a more open adoption process and on contact and reunion. From then we moved away from the old philosophy of secrecy.
Partly because I was Chair of the Standing Committee on Social Issues, I was invited to speak at a public forum organised by the Council of Social Service of New South Wales and the Association of Children's Welfare Agencies, which was held in late July. In the session in which I participated on that occasion, it was good to take the opportunity to talk about the Adoption Bill. Another session dealt with the exposure draft bill that is now subject to community consultation at the Minister's behest: the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill. People have far stronger opinions about that bill.
Because they are pertinent to this bill, I will refer to a few of the comments I made when talking to the forum on permanency planning and adoption on behalf of the social issues committee. The committee conducted the inquiry specifically into the professional practices in the administration and delivery of adoption and related services between 1950 and 1998. It had a very specific, and in many ways quite difficult, reference to consider whether those practices were unlawful or unethical. Some of those references are relevant to this bill. From the evidence, submissions, public hearings and forums conducted by the committee it became apparent that the underlying principle of the 1965 Act was to make sure that adoption arrangements were kept secret and that there would be no contact at the time of birth and adoption, or indeed ever, between the parties involved—that is, the birth parents, the child and the adoptive parents.
At that time secrecy was believed to be in everyone's best interests. Often the child was not told of his or her adoption and was issued with an amended birth certificate. The birth mother received little or no information about the child or the adoptive family. Members of the social issues committee heard many tragic stories of the continued effects of that adoption philosophy of the 1950s, 1960s, 1970s and into the 1980s on all people in the adoption triangle. The secrecy and often painful period of discovery not only affects the people most involved but has ramifications for siblings in both families, and later for partners, children and grandchildren. The ripple effect gets wider and wider. We have come to believe that there is not a family in New South Wales that has not been touched by adoption in some way.
This is an important bill because, once and for all, it puts an end to that principle of secrecy. It makes sure that the principle of open adoption, from the beginning, is enshrined in legislation as it has gradually become enshrined in practice. It is worth bearing in mind that to most people adoption probably has become less of an issue in the past few years, not just for those who have been directly affected by it, but by the general community. There has been an amazing drop in the number of adoptions. In New South Wales in 1972, adoptions reached a peak—approximately 4,500. By 1975 the number of adoptions had dropped to about 1,800. In the late 1990s there were as few as 70 to 80 adoptions per year, the majority of which have not been babies, but overseas adoptions and step-parent adoptions. Today we are dealing with a very different situation from that dealt with in the past. In itself, that makes changes to the legislation very much overdue. Currently the committee is working on its report and it would not be appropriate for me to talk about the contents or recommendations of that report. There is no doubt amongst members of the committee that we welcome the change in philosophy that has occurred over the years.
We firmly believe that the secrecy and the so-called shame, the stigma of illegitimacy, the shame attached to the birthmother in particular, the grief in relinquishing a child, and, even more, the fact that the grief was so often unrecognised have caused many problems for many people. I am sure that all members of the committee agree that counselling is necessary at the time of the adoption. I am very glad to see that the bill makes considerable provision for such counselling. In the past, consent was often taken five days after the birth, before the mother and other people had a chance to deal with and get over the emotional impact of the birth. The committee welcomes the changes in the bill to a minimum 30-day period before consent, with a further extension to the revocation period.
The bill does not deal in any detail with the necessity to continue to provide, long after the adoption has taken place, counselling, information and emotional support, as well as support for contact and reunion. The committee heard from many women who gave birth 40, 30 or 20 years ago, and from children who were born about the same time, but issues involving contact and everything associated with reunion or a choice not to have a reunion are very much alive today. In some ways the pain is greater now than it might have been all those years ago. We must ensure that appropriate and adequate post-adoption resources are provided. In due course I am sure honourable members will enjoy reading the social issues committee's latest report on adoption.
We will make useful recommendations, and we will urge the Government to ensure that they are implemented. I am particularly pleased that the bill deals in such detail with the requirements for adoption and consent to adoption of babies of Aboriginal and Torres Strait Islander origin. Cultural heritage, which is addressed with such precision and detail in the bill, will go a long way towards overcoming some of the problems that have continued to affect Aboriginal families.
I am disappointed to see a prohibition on same-sex couples adopting children—an aspect of the bill that will be further discussed at the Committee stage. The Law Reform Commission recommended the end of discrimination in that respect. I had hoped that the carriage of the property relationships bill and the changes in definition of "de facto couple", for instance, were an indication that we were well on the track to multipartisan support towards removing discrimination against same-sex couples, which would enable us to deal with married couples, and de facto heterosexual and homosexual couples on the same basis. Obviously, many same-sex couples have adopted children in a variety of circumstances—we probably all know some. It would be impossible to say that such arrangements are not in the best interests of the child, or have not been thought through.
I regret that the bill fails to follow through on the recommendations of the Law Reform Commission, but I welcome so many other aspects of the bill and, therefore, strongly support it as a whole. I do not want to say anything much about the permanency planning bill. I might have taken a point of order on the Hon. J. P. Hannaford, as I did on the Hon. Patricia Forsythe last night, except that, firstly, he has announced his retirement and regrets that he will not be able to speak on that bill, and, secondly, from talking to both the Hon. J. P. Hannaford and his wife about their adopted children I am aware of their concern about and their involvement in the issues surrounding adoption.
At the forum in July to which I referred, the Minister, through Carmel Niland, the director-general, made assurances about the genuine consultation period; the opportunity for people to make submissions; and the opportunity for the bill, which is an exposure draft, to be considerably amended if that is what people want. That process is still going on. It is not appropriate to deal with it at length in relation to this bill because they are very different issues. I would not like a point of order to be taken on me. We should not debate that bill now, but perhaps in the case of the Hon. J. P. Hannaford we were all prepared to make an exception.
The Hon. I. COHEN [5.45 p.m.]: The Adoption Bill is important to the Greens and, in general, we are very pleased to support it. The bill emphasises that the main consideration in adoption law and practice is the best interests of the child. This consideration replaces the considerations that applied under the 1965 Act. The existing law is a relic from the days when people were prevented from adopting for reasons that are now regarded as irrelevant and ridiculous. People who were too old, overweight, Aboriginal or not married were assumed to be incapable of being good parents. Now it is well recognised that people should not be excluded for these discriminatory reasons.
The bill is based on the sound premise that decisions made under adoption law, like other areas of law that affect children, must be made in the best interests of the child. However, one example of blatant discrimination is enshrined in the bill: the discriminatory and wrong assumption that same-sex couples cannot be good parents. The main problem with the bill is that it does not do enough to overturn the myth that the traditional nuclear family—comprised of mum, dad and the kids—is the best environment for children. The unfortunate experience of many children in the nuclear family is far from ideal.
It is quite clear that there are many ways in which a normal family can be of benefit to the child. There are many circumstances—particularly in the north of New South Wales where I live on a community property, which is a multiple occupancy in a community—in which communities have extended families and more traditional families. By that I mean traditional indigenous-type family structures in which children are brought up by many people in the community. I could not necessarily convince the House at this time that children growing up in such extended families are very well adjusted and have had a high-quality childhood and upbringing in what is often considered to be unusual family circumstances. But in many cases in such areas people are breaking new ground, particularly in multiple occupancies.
Parents might divorce or separate, yet continue to live on the same property, because that type of existence is allowed. In such a case a child would benefit in various ways by having access to both parents. However, many people still maintain a homophobic attitude that leads them to believe that gay and lesbian people cannot be caring parents. Such an attitude was frequently expressed during recent debate in Federal Parliament on the IVF legislation. The suggestion that lesbians and single women should be denied access to IVF programs conveniently ignores the fact that hundreds of thousands of children have been lovingly raised in single-parent families. Following the debate in the other place, in an attempt to placate the homophobes within its ranks and the Opposition, the Government quietly agreed to an amendment. The word "sexuality" was dropped from the list of considerations in clause 32.
Previously the bill had included this factor along with other factors such as culture, language, disability and religion in the principles for placing the adopted child. The Greens believe that the best environment for children is one in which they are surrounded by a network of caring people. There are many types of domestic arrangements in which children can thrive in a loving and caring environment. The sexuality of parents who are able to provide such an environment is completely irrelevant. Illicit drug use is another factor which should not be regarded as meaning that a person is unfit to parent children. The New South Wales Users and AIDS Association raised concerns about one aspect of the bill.
The Hon. D. F. Moppett: But it is not a good indicator that they are.
The Hon. I. COHEN: The honourable member has made a comment that is perhaps in keeping with society's general perception of people who are in some way involved in drug use. There may be other examples of homosexuals and suchlike. Some cases of neglect that are seen in the media should be judged on their individual circumstances. However, there are many, many cases in which people in such circumstances, be they gay people or people involved with drugs, are still very good parents. Often they are compensating for fear of lack of acceptance by society, but they can still be seen to be looking after their children adequately.
When we talk about sexual abuse in society it is important to remember that the vast majority of that abuse is committed by heterosexual people, close relatives and so on. It does not necessarily transfer that sexual abuse is the domain of one targeted group in society. Unfortunately, sexual abuse is widespread. I suggest that it is worth maintaining an open mind and recognising that people in all areas of society still undertake a legitimate and responsible role in parenting. For example, I refer to people who abuse a legal drug—alcohol—and the problems associated with that. The sexual abuse associated with that legal drug is substantial, but we cannot simply label people with an alcohol problem as being unfit parents. The same can be said for other groups of people.
The Hon. D. F. Moppett: I am sure that is very good logic.
The Hon. I. COHEN: It is important that we do not target particular people in society and condemn them out of hand. Each situation needs to be assessed on its merits.
The Hon. D. F. Moppett: But essentially it is the best interests of the child, not serving the needs of these disparate groups you are talking about.
The Hon. I. COHEN: What is in the best interests of a child is a matter of opinion. It may be one person's opinion that certain people in society are not serving the best interests of their children. I ask the Hon. D. F. Moppett to consider that there needs to be openness in considering what is best for the child. Am I right in saying that many years ago the Methodists or the Presbyterians did not believe in dancing at church socials? Was that in the best interests of children to be brought up in that environment? It is not fair to target different sections of the community; all sections of the community are attempting to look after children. However, it is important to target individuals lacking in parenting skills who are not coping—and they can be found everywhere. A crossbench briefing document of 29 August 2000 states:
I turn now to an issue that needs to be remembered in any debate on adoption. Past practices resulted in the permanent forced separation of many children from their families. This occurred in relation to Aboriginal and non-Aboriginal children. Until the 1970s many babies were taken from young women who were unmarried mothers and therefore judged to be incapable of looking after their children. One problem with the bill has been identified by International Social Service Australia. That organisation suggests that the bill does not contain adequate safeguards to prevent forced adoptions. In particular, the bill needs to state that adoption should only be considered when it is clearly preferable to all other options. An article by International Social Service Australia entitled "7 Problems in the New Adoption 2000 Legislation" states:
In NUAA's experience, many drug using parents have fears and concerns about the welfare of their children. Generally, the main issue for them is fear of their children being taken away from them due to the parent's drug use … We strongly believe that many drug using parents are unreasonably targeted as being unfit parents and consequently have their families threatened. At the same time we acknowledge that where children are being abused or neglected, something must be done to ensure that the best interests of the child are maintained …
While NUAA is completely supportive of appropriate child protection measures and swift action when there is evidence of child neglect and/or abuse (regardless of the reasons behind the abuse), we do not agree with statements that seek to make a direct and automatic correlation between child neglect and/or abuse and parental drug use. One only needs to look at the use of a drug like alcohol to see the absurdity of such a link. For example, it is probably not an exaggeration to state that the majority of parents use alcohol. Although there are widespread problems within the community associated with alcohol use such as domestic violence, child abuse and neglect and family breakdown, we do not make the assumption that any and all alcohol use will automatically lead to child neglect or abuse. And rightly so! Where would we be if we pursued such a policy? Many good and loving parents would have their children removed by DOCS and a great deal of unnecessary family separation would occur.
1. While the adoption bill speaks about the paramountcy of the child, there are a number of places in which this principle is not applied or not applied consistently to all children:
- Only Aboriginal children must have the prospect of adoption considered as "clearly preferable" to any other form of care order before they can be adopted. This principle should apply to all children and should not be watered down by statements such as "considered the possibility of placing a child for adoption ... and any other action which could be taken by law to care for the child" (Clause 106 b), and "make better provision for the best interests of the child than any other action that could be taken in relation to the care of the child" (Clause 90, 3).
... The Adoption Bill needs to ensure that the worst features of adoption do not happen. One of the worst features of adoption is legal severance from families. A child can be permanently cared for without legal severance from their birth families. All of the other features of adoption (changing of names and entitlements to estate) can be done through wills and deed polls.
- The heartaches that have been caused by adoption in the past need to be avoided. This can be done. The Adoption Bill needs to state that adoption should only be considered when it is clearly preferable to all other options!
3. The legislation does not take into account particular circumstances of adoption that are becoming more frequent in our society. This includes adoption by grandparents, which effectively makes adoptees a brother or sister to their father or mother. The Adoption Bill 2000 also does not require that the adoptee be made aware of genetic relationships in the family with regard to adoption after artificial donor conception techniques or in the case of adoption with relatives.
- If the law does not make a special case for requirements that an adoptee be made aware of their genetic relationships due to family adoptions or artificial insemination programs then the child will not know their true identity. Adoptees need the chance to develop a family narrative. Adoptees need to know important medical information that may affect them and their descendants. Medical history often changes with time. Without an adoptee knowing about these genetic relationships, it will be difficult for them to keep their own genetic medical history relevant and accurate.
4. The Bill does not require a criminal check of potential adoptive parents beyond the mention of fingerprinting (Article 45, 2). The Bill should also mention other forms of criminal profiling (such as genetic profiling) that may occur in the future.
- The Adoption Bill should require (not "may require") a criminal record check on adopting parents. This criminal record should be as thorough as possible. A record check is one of the easiest ways to ensure the protection of the adoptee child. The protection of adoptees is of particular concern when one considers that the Department of Community Services is not required to protect adoptees in the same way that they are required to protect foster children. While the protection of adoptee children is not upheld in law there is a danger that children may be adopted simply to save the government from more expensive protection options. Considering the history of adoption, this would be a tragic result.
Today I received a letter from Mr Daryl Lightfoot, a senior social worker with International Social Services Australia, who wrote in the following terms:
I am therefore … raising five specific issues … based on my own 40 years' involvement in the field.
1. I understand the "paramountcy principle" which I have advocated ceaselessly, and which has been recommended by the Law Reform Commission for incorporation in adoption law in NSW, to also find clear expression in the phrase "clearly preferable" with reference to adoption arrangements in the Bill. The Bill however restricts this test to those adoption arrangements involving children who are the subject of relative and step-parent adoption applications and also Aboriginal children. (Clauses 29, 30, and 36)
This appears to exclude all other adoption arrangements from the "clearly preferable" test as regards other care options, and as such in my view effectively underpins a double standard and a discriminatory adoption practice in respect of both local and inter-country adoptions falling outside these specific cases.
It is just such a double standard which I found it necessary to oppose in the DOCS Working Party on implementation of the Hague Convention in NSW as regards intercountry adoptions. I am greatly concerned therefore to note that such a discriminatory provision is now extended to local adoptions also.
Having regard to the issue of non-discrimination, and also to the express principles of both the UN Convention on the Rights of the Child and also those of the Hague Convention under reference, it is my firm belief that the "clearly preferable" test must apply to all adoption arrangements and that such must be written into the Adoption Bill
3. Relative adoptions generally:
I note that the term "relationship" as regards relative adoptions in Clause 29(b) has not been defined, and feel that this is very loosely worded. Given that the principle of relative adoptions has been strongly resisted by the Department in the past, I wonder why it is being so readily embraced in the Bill under reference.
There is by no means a unanimity of opinion on the value of inter-familial long-term care for a child unable to remain with his/her birth parent(s), and we have repeatedly seen a potential for abuse of such care arrangements in our inter-country casework practice in care and protection.
4. The limitation on "specific consent" in Section 53:
Superficially the restrictions here can be seen as purely based on prevention of trafficking in children as occurred via the "nominated consent" provisions of the 1939 legislation.
However, the same restriction may well operate against the long-term interests of the adoptee and also the fullest development of a positive relationship between the other parties in the interests of the adoptee. A particular case would be that of an adoption where there is the fact of, or potential for, the development of an "adoption plan" with the full, free, and informed consent of all parties required to consent to a particular adoption arrangement, such arrangement however being outside the narrow definition of the "specific consent" category in the Bill.
To cover this situation, while avoiding any possibility of the problem of child trafficking, I would suggest an additional sub-clause to Clause 53 along the following lines:
"… Provided that, in the case of an adoption plan being submitted to the Court in consequence of a general consent given under sub-clause (a), a parent or guardian may elect to submit a consent in the form of a specific consent in favour of the adoptive parents in substitution for the general consent previously given."
5. Ensuring the preservation of all relevant records to adoption arrangements:
To give fullest effect to the UNCROC provisions regarding the right to identity for all children, it is considered necessary that it been made an offence for any person or agency to destroy any record pertaining to an adoption arrangement and related substitute care arrangements.
The history of adoption in NSW is riddled with examples of the wilful destruction of such records by agencies "including the statutory agency" and other interested parties.
Ensuring the retention of such records is a specific recommendation of the "Bringing Them Home" Report, and one which in my view should be enshrined in legislation and supported by appropriate penalties. Such would moreover further underpin the "open adoption" principle which is supported by both present and proposed legislation.
Some of the issues I have raised are addressed in the amendments proposed by the Greens and have been addressed by other honourable members. I hope that these amendments will be accepted so that what is otherwise a good bill can be improved to truly protect the interests of all those children who through no fault of their own find themselves being placed for adoption. The Greens support this bill and appreciate that it has the general support of honourable members. We want to help the most vulnerable people in society and develop a strategy of protection and rights for children in relation to adoption.
The Hon. A. G. CORBETT [6.06 p.m.]: The Adoption Bill reflects a change in attitude of adults towards children since the enactment of the Adoption of Children Act 1965. Contemporary society has moderated the older view that children were owned, and that secrecy was vital in the transfer of that ownership from one parental group to another. The Adoption Bill gives paramount consideration to the best interests of the child. For the first time in our State, this legislation will place the welfare of the child ahead of that of the parents—whether birth or adoptive—during the legal process of adoption. The bill is largely based on the recommendations contained in the comprehensive Law Reform Commission report No. 81 of 1996. Indeed, it is surprising that this bill has taken so long to come before this House. The Adoption Bill offers us the opportunity to enact significant reforms in the adoption process. The bill goes further than the current law by introducing a number of new principles and by strengthening others, and it is worthy of support in this House.
This bill includes provisions for placement of children with regard to their cultural heritage, with particular reference to Aboriginal and Torres Strait Islanders, the hierarchy of placement suitability, and provisions which bring intercountry adoptions in line with the Hague Convention. It allows countries to be proscribed, even if they are not themselves a part of the Hague Convention. In keeping with that convention, the bill also enhances the Adoption Information Act 1990 by allowing what is now known as open adoption, ensuring the child assistance in access to his or her birth family and cultural heritage. Another new principle in the bill is that the child, if of suitable age, becomes an active participant in the process of adoption. This potentially improves the outcomes of the adoption process for all parties. Credence must be taken of the child's wishes and feelings on the outcomes, although these can be overridden by the court if it is judged again to be in the best interest of the child to do so.
One aspect of this principle is the concept in part 7 of the bill in relation to the preliminary hearing. The preliminary hearing may be held after consent is given but before the adoption placement order is made. The hearing allows the child to have a voice in the outcome of the adoption. The requirement of giving notice of the hearing to adoptive parents, the child and others as directed by the court is an improvement. However, there is a deficiency in the bill in the lack of requirement to give such preliminary hearing notice to persons giving consent or other significant people in the life of the child.
The requirement for accreditation and assessment status of adoption service providers is recognised within the bill. This precludes individuals from making their own adoption arrangements, either personally or through private institutions which are not accredited adoption service providers. This requirement ensures that all adoptions of children by residents of New South Wales must comply with this bill and its guiding principle of the child's best interest. It also precludes private institutions which do not comply with the necessary accreditation standards from organising adoptions within this State, thus ending any organisation which is profit driven or with other non-welfare motives continuing an adoption racket.
The bill provides welcome detail on the requirements for a current relationship between a child and adult, step-parent or otherwise to become formalised in the adoptive process. It also provides for the negotiation of adoption plans, which encourages the concept of open adoptions. It is particularly pleasing that the bill also provides for the registration and subsequent review of plans. Such formal and specified review of plans has been lacking in many of our various legislated child care procedures. The bill does not ignore the rights of parents. It requires an independent counsellor to witness the signature of the consenting birth mother and to state that the mother has received counselling on the known effects on mothers of giving up a child, such as long-term grief. It also extends the consent time from three days to 30 days from birth. These improvements should help to prevent some of the misery that occurred in the past which was caused by uninformed consent given by or forced from mothers, who are often children themselves, during a period of their life which is acknowledged medically as physically, hormonally and emotionally traumatic.
The lower House has passed an amendment to cover the omission of a set revocation period for the child's consent to adoption. Had this not been incorporated into the original bill, the child could theoretically have lost any right to a revocation. The bill allows for the appointment by the court of a legal guardian or advocate for the child's wishes. However, it does not address the need for a legal advocate for birth parents who, although legally classified as children, are asked to sign a legally binding contract. This topic was debated in the lower House, but I believe it needs further clarification in this House, the House of review. I will move amendments in Committee on this aspect of the bill to ensure that the under-age birth parent must have legal representation in the consent process and that parents who are minors are to be included in the definition as children.
If the mother is required to attend court, there must be both a guardian ad litem and a lawyer appointed by the court to protect the birth mother's legal rights in court. Clause 184 of the bill provides that it is illegal for undue pressure to be exerted on the parent or guardian of the child to either consent or revoke consent to adoption. However, it does not address such undue pressure being placed upon the child by anyone, whether parent, sibling or social worker. This issue also needs to be addressed before the bill is passed by the House. The amendment I will move in Committee makes it an offence to place undue pressure on the child to undermine the true expression of the child's wishes or consent. One further aspect of the bill requires clarification as to intent. This is a minor grammatical point but worthy of note. Subclause (1) of clause 136 states:
It is unclear whether the person who must be 18 or more years of age is the birth parent or the adopted person. The sentence needs to be grammatically corrected to convey the intent of the Minister. In summary, while I strongly support the worth of the Adoption Bill and commend the Government for bringing it forward, I believe that a number of amendments need to be made before the bill is passed to give the children of this State the best possible legislation for the adoption process.
A birth parent of an adopted person who is 18 or more years of age is entitled to receive (subject to this Act):
The Hon. D. F. MOPPETT [6.14 p.m.]: I support my colleague the Hon. Patricia Forsythe and her remarks on this bill. I congratulate her for her thoughtful and restrained contribution to this debate. The bill represents a strong legal framework for the views of contemporary society on adoption. However, it is akin to the building of an elaborate stable door which has continued since 1975 and is now finally finished after virtually all the horses have bolted. The Hon. Jan Burnswoods, in her excellent contribution to this debate, pointed to the rapidly diminishing rates of completed adoptions. I understand that the most recent figures show that the number of adoptions in New South Wales is in the middle teens, about 14.
When I listen to the rhetoric in this House, I wonder whether the honourable members who proselytise the views of small groups whom they think are important—which is their right—have any comprehension of the adoption process and what has previously taken place. Over the years society has moved in various ways to provide care for children who fall outside the acceptable ambit of care of their natural parents. These outcomes have been variable—some good, some bad. We have probably moved after the event to try to legislate for better outcomes. I am sure that all honourable members would be aware of the attitude of Victorian and later Edwardian society. People were reluctant to acknowledge any new relationship with a child for whom they provided care. Children were schooled to acknowledge that the person caring for them was a guardian, not their father or mother, even though the person may be fulfilling a parental role and doing it adequately within society's mores at the time.
However, adoption was not a favoured way to deliver care when people provided the care of a parent who may have died or was unable to provide care for a variety of reasons. We need to acknowledge that people of good intention at the time wanted to provide greater security for children who were not being cared for by their natural parents by strengthening the concept of adoption. Moving from childhood to adulthood is almost a process of transmogrification. As a child I was scarcely aware of the process of adoption. I thought there are children and there are adults. When I moved from the city and settled in the Coonamble district I became conscious of a large number of my friends who were bringing up adopted children. I thought it was an extraordinarily large number, considering the total incidence of adoption in our society. I freely acknowledge that was the 1950s and 1960s, just prior to the introduction of effective contraceptive methods.
To understand the enormous changes, we should not look to the legislators. We should look to the innovations of science which have changed society radically by providing women with the means of effective fertility control. I think we all salute that change. Among the problems that have been identified was the unexpected and unwanted pregnancy, particularly amongst young women who were not of independent means and, in many cases, not established in the world as adults. They were in difficult circumstances.
Like the Hon. Jan Burnswoods, I too am a member of the Standing Committee on Social Issues, although I think my service extends beyond hers. I joined the committee when it had completed but one report; however, it was a very significant report that led to the Adoption Information Act. When I joined the committee and committee members used to discuss their achievements in that area, I was not a dissident voice but, rather, put an alternative point of view about the need for open adoptions to the view that the committee members had so enthusiastically adopted. I have held perhaps a more cautious view than others throughout the long association that the social issues committee has had with adoption, and in particular most recently with the inquiry into adoption practices between 1950 and 1998.
I do not argue that the decisions were wrong, that they should be reviewed, or anything of that nature. Indeed, I would be wasting my time if I did so argue. But we must recognise that this debate was driven by people who were dissatisfied with the adoption arrangements. That is inevitably the case when an inquiry such as the inquiry that led to the Adoption Information Act is conducted. Indeed, the inquiry that the social issues committee is now conducting is obviously self-recruiting in the people who come before it. Those who have entered into stable relationships are not likely to come forward, and have not done so.
At the time when the Law Reform Commission conducted its review of the Adoption Information Act I urged many of my friends who live in the immediate vicinity—people whom I know very well, close friends—to appear before that review committee and put forward their views about the retrospective application of the idea of freedom of information and the effectiveness of the veto arrangements which they believed were inadequate. I told them that the committee would hear them in confidence, in camera, if they wanted to put their views forward. However, none of them wanted to do so. In fact, I was not able to recruit any of them to do so.
But they all told me that if they had their time again they would not enter into an adoption contract, as it were. They believed that the adoption arrangements offered today were not the arrangements that they had entered into. They felt that they would not be prepared to make that lifelong commitment to the welfare of the children—to embrace them as if they were their own children and to incorporate them in their aims and aspirations and all the complexities of modern family life—if they knew that at some point that relationship could be challenged by the arrival on the scene, for whatever reason, of a previously unrecognised, but not unknown, birth parent or sibling.
I followed the matter with considerable interest. Despite the claims made by various organisations, what was in the minds of our colleagues when they spoke in favour of the Adoption Information Act, and indeed the report of the social issues committee, I think they believed that this would gradually open the matter up so that virtually all previous adoptions would become open adoptions. But that is not the case. Despite the large number of people who were involved in the adoptions and who were given access to this information, very few have availed themselves of it. Although only a few witnesses appeared before the social issues committee, some of the witnesses who gave evidence during the recent inquiry were relinquishing mothers who were satisfied with the process and with the decision they had made. They believed that what they did was in the best interests of their children at the time and they did not want to look back.
I believe that those people were the tip of the iceberg. I have referred on many occasions to a relinquishing mother whom I know very well. To my knowledge she has never acknowledged or mentioned the fact to even her closest friends; it is a private matter for her. But others have spoken about it, and we respect them for that. A member of this House spoke openly about it. Good luck to her! I do not have a problem with that. However, it would be statistically wrong and unsound from a methodological point of view to believe that that represents what all relinquishing mothers were like; indeed, it would lead to false conclusions.
As I have said, we are now dealing with a very small demand for adoption. Regrettably, society moves to make its own solutions in these very complex and emotional matters. We hear of facilities being made available to adopt children in other countries to avoid this open adoption, which people do not find attractive. We must think about that and consider the implications. I wish to return to a matter that I referred to earlier, which I will summarise by reference to the excellent Parliamentary Library Research Service briefing paper that was prepared on the two bills, which are closely related. The briefing paper refers to the Children and Young Persons (Care and Protection) Act and quotes the words of Professor Parkinson in his paper on the Children (Care and Protection) Amendment (Permanency Planning) Bill. The concluding remarks in the briefing paper read in part:
At the end of the day acceptance of the Permanency Planning Bill measures may come down to:
The point I wanted to transpose from that into the debate on the Adoption Bill is that, at the end of the day, much of this depends not on the legislation but on the people who are at the coalface, that is, the officers who are dealing with the people. No amount of legislation will ever be as effective as we would hope. The Hon. A. G. Corbett spoke about his aspirations that the children might be involved, and that all sorts of amendments might protect their right to express themselves. I do not know whether it is a good idea to include such amendments in the legislation. However, it is extremely difficult to bring a child into such an arrangement unless the child is of mature years.
… whether child protection professionals are prepared to support the Minister's presumption in favour of adoption as the normal means of providing stability and security for children who are unlikely to return home.
At the end of the day, whether the legislation is implemented in the way we would hope depends very much on the practitioners. For example, we say that we will now identify the needs of the child as being absolutely paramount, that everything else is secondary, that we will no longer be interested in the needs of parents who want to acquire this responsibility and fulfil themselves through the care of children, and that the care of the child will come first. But most of us know that it will be much more difficult to put it into practice than to express it in legislation and speak in favour of it in debate on a bill such as this.
In summary, I support the passage of this legislation. I hope it will provide an important option for those seeking to provide care for children, whatever the circumstances may be—one could almost call them happenstances; they just happen, perhaps unintentionally—and I hope that better outcomes will result. However, we should remember that society has moved on and that adoption is no longer a popular arrangement for children. When we debate the other bill that is related to the Adoption Bill, we will need to revisit that aspect. I know that the Minister is very enthusiastic about pressing ahead with the legislation. I believe that all members are mindful of the issue raised by the Hon. J. P. Hannaford, that it is very easy to slip into the same words that could be reinterpreted by someone else at a later stage or from a different perspective who wants to brand what the Minister is doing as a revision of the stolen generation motives.
We need to be very careful about this. I do not believe that we can ever go back to the concept of adoption as I knew it amongst the many families who lived very happy, secure lives. I think that concept has passed, and I would be very surprised if we could reconstruct it, as honourable members have pointed out. It will be open adoption, it may be reviewed at some time, and I think it will be difficult to find people who are prepared to enter into that sort of arrangement. The reality is that people who have the generosity in their hearts to take on foster parenting in the way that we would like to provide for in the legislation are as scarce as hens' teeth. People today are not like that.
Demands and expectations of life have made it almost impossible to recruit people who will deliver such a service. Moreover, I know that some people are terribly suspicious that people who volunteer for the role may have motives that are certainly not in the best interests of children. I hope that is not so, but I realise that society has a very complex structure and the possibility cannot be ruled out. However, that may be a subject for debate on another day. In the meantime, useful contributions will probably be to the debate, but I anticipate that they will be made after the dinner adjournment. I conclude my remarks by commending the bill to the House.
[The Deputy-President (The Hon. Janelle Saffin) left the chair at 6.30 p.m. The House resumed at 8.00 p.m.]
The Hon. Dr A. CHESTERFIELD-EVANS [8.00 p.m.]: I speak for the Australian Democrats on the Adoption Bill. As honourable members who are present in the Chamber would realise, I have been involved in the Standing Committee on Social Issues inquiry into adoption practices. The inquiry began in 1988 and since that time more than 300 submissions have been received and the report is due to be presented in the near future. For that reason I find it hard to understand why this legislation is being pushed through prior to the delivery of the report.
Standing committees should be used to inform both the Minister and Parliament of the issues that are difficult, and adoption is surely one of those. It would seem that there is a trend on the part of this Government to send briefs to committees and then introduce legislation before any report is returned from that committee. Recently an inquiry was held into multiculturalism. Prior to the release of the report the Government applied a great deal of pressure to rush through the Community Relations Commission and Principles of Multiculturalism Bill before members were informed of the findings of the inquiry. That gives the lie to the Government's line that it is better to use a standing committee rather than a select committee because the Government will take more notice of the former than it will of the latter. It is clear that the Government does not take any notice of the findings of committees.
I believe it is very poor that the Government does not value the expertise and information that honourable members, staff and members of the public have taken a great deal of trouble to put together. It is hard to get the law, policy and practice right with regard to adoptions. The inquiry has shown that in the past many horrific practices have occurred, such as pressuring young mothers to sign over their children, never to be seen again. To its credit, this bill is an attempt to prevent such things from ever happening again. Children of adoptive parents who do not have a knowledge of their biological parents seem to go through an identity crisis, which causes disruption to both the child and the adoptive parents.
The Hon. Jan Burnswoods is reluctant to speak of the committee's conclusions or findings prior to release of its report, but as the bill with which the report is supposed to deal is now before the House—and because, presumably, the report will not be implemented until the bill is amended perhaps in 20 years—it is reasonable for me to speak about the findings of the adoption inquiry. My overwhelming impression is one of a tide of human misery which has been created by prudery and interference in people's lives.
The Hon. D. J. Gay: It must have been different from the adoption inquiries that I sat in on.
The Hon. Dr A. CHESTERFIELD-EVANS: The Deputy Leader of the Opposition was not involved in the inquiry to which I refer, so I suggest that he would not know. Children were taken from mothers on the basis of age alone. Many mothers were regarded as unfit. Forty years later, when many of them spoke about their experience, they were still clinging to memories, fragments of newspapers and small artefacts that reminded them of the child they had lost. Some of them kept the child's birthdays for years only to find that the child had died some 20 years earlier. Others, whose children had been told, "You were given to us because your mother did not want you." rejected the mother years later, when they tried to come to terms with it. Not knowing where they came from, the children have had difficulty defining their identity. That is a very bad situation. To its credit, the bill tries to address those problems. However, the matter is still quite controversial.
Those who wish to adopt or foster children have agendas, and those who have been fostered or were adopted have feelings about what they like to have happened. Many of the mothers who relinquished their children feel that adoption should be a crime and that it should be illegal to take a child from his or her birth mother because that blights the life of both the mother and the child. A clear message that I received from the adoption conference in Hobart was that open adoption seemed to work well in Victoria. A paper to that effect was delivered to the conference. The idea of open adoption is that the adopting family and the natural parents work together in an agreed framework in the interests of the children.
It is usually the case that the mother or the natural parents have had some difficulty in their lives or circumstances but still want to have contact with their child. The adopting parents agree to the natural parents having access and sharing in the care of the child, although the adopting family usually has the lion's share of the contact and decisions. The experience in Victoria reveals that there has not been a large number of adoptions—from memory, the number was 24 over a period of years. That demonstrates how uncommon adoption is in Australia generally these days. Open adoptions are not enshrined in this legislation, although they have been encouraged by ministerial directive.
The Australian Democrats are concerned to ensure that adoption should not be used merely to reduce the cost to the State of fostering, which was alluded to by the Hon. J. P. Hannaford during his contribution to the debate. I do not propose to speak, as that honourable member did, about bills which may be debated in this House and which have been foreshadowed with some misgivings. Rather, I should concentrate on the bill in hand. I do not think that adoption should be a way of dumping a child to reduce costs borne by the State, and that needs to be stated very clearly. The Australian Democrats will certainly support this bill but will seek support for some crossbench amendments which I believe will improve it and make it more inclusive.
The other point that should be stated is that there are only about 20 adoptions per year in New South Wales but there are 80 adoptions a year in other countries. I understand that the adoption rate in New South Wales may increase as a result of a new treaty with China and an increase in intercountry adoptions. However, I caution the Government about being, in a sense, subtly racist by assuming that children from overseas countries would be much better off in Australia than in their homeland. After all, if the suffering of the person in the overseas country where the children live is not seen, it is out of mind. If overseas children who are adopted have difficulty adjusting to Australian culture they, too, may need an inquiry, like those involved in the Aboriginal stolen generation controversy and those involved in the inquiry in relation to adopted children in Australia. I hope that is not the case. I hope that we learn from experience and do not allow the overseas adoption process to become just another administrative convenience.
The key feature of this bill, which is emphasised in a number of places, is the best interests of the child. It is emphasised also in intercountry adoptions, but we must be careful that it is not noted more in breaches of the provisions than in observance. The other point that needs to be made is that we have detailed adoption plans for how the child is to be managed. We must compare those plans to the 770 children who are in out-of-home care in New South Wales. Many such children are not suitable for adoption because of lack of parental consent, behavioural problems or other reasons. Some of them are in care for short periods to help their parents in times of crisis.
However, children in kinship arrangements have little supervision. I believe that of the order of 40 per cent of State wards are placed in kinship agreements because their parents are not able to look after them. Other relatives are given the responsibility of looking after them. However, if child abuse or the like is involved, those relatives may not protect the child by ensuring that there is no contact between the child and the person concerned. I believe that lack of supervision of those families is cause for concern. It is all very well to have Rolls Royce legislation and to sit here polishing the statue on the bonnet of that legislation that deals only with 20 or 100 children—or even a few hundred more children from overseas—but when 7,700 children are in out-of-home care and are not getting such a good deal we have to be very careful.
Of course, in medicine the old adage used to apply that the amount of interest in a disease was inversely proportional to the number of people who had the disease—a facetious comment but also true. One really has to judge diseases as public health people do by how many people have it and how much impact it has on society. Child care should be judged in the same way and not just in the interests of adoption and having legislation that is extremely enlightening in all its forms, expressions and implementation. We should note also that children in out-of-home care have problems, as noted by the Community Services Commissioner, and make sure that they too are looked after.
In order to save time in Committee I shall speak briefly now to the proposed amendments. The Greens amendment will make the status of de facto relationships for adoption purposes equal to that for property purposes. The rights of same-sex couples were recognised after lengthy and involved lobbying of the Government followed by the introduction by my predecessor the Hon. Elisabeth Kirkby of a private member's bill, the De Facto Relationships Amendment Bill, on 24 June 1998, just before I became a member of this House. On 25 May 1999, when the Property (Relationships) Legislation Amendment Bill was introduced, I reaffirmed in this Chamber the Australian Democrats commitment to ending discriminatory provisions, wherever they existed, in both State and Federal legislation. It was a pity that the Government at that time took so long to find the courage to introduce de facto relationships legislation similar to that introduced by the Australian Democrats. Indeed, as I recall an election saved the Government from having to face the electorate on this issue.
I believe our community still has an old-fashioned sense of fairness and justice. When we made the community aware of the discrimination faced by people of the same sex living together, most reasonable people agreed with our contention: that it was not right. In the closing remarks of her second reading speech on the De Facto Relationships Amendment Bill, the Hon. Elisabeth Kirkby said that she hoped "the Parliament would exercise compassion in granting equality to same-sex relationships". The Democrats support this long overdue legislation; any winding back of these hard earned rights must be opposed. The Canadian experience shows that its courts have had to grapple with increasing challenges to legislation and policies that treat differently same-sex couples wishing to adopt children. Justice Martin in the Alberta Court of Queens Bench found:
It would seem that if this proposed legislation passes without amendment we could be leaving ourselves open to a similar legal challenge. Although the objective of adoption law is to do things in the best interests of the child, in effect it adds a level of unnecessary discrimination against the gay and lesbian communities; it introduces unnecessary discrimination. With approximately 400 applicants wishing to adopt the small number of children available for adoption—about 20 per year—the chance of adoption remains fairly slim even if no further obstacles are put in the way. The level of discrimination in this State surprises me. Every February and March political leaders offer support for the Gay and Lesbian Mardi Gras and those communities, but when it comes to legislative change to support them they duck for cover.
It is reasonable and just to interpret the term "step-parent" to include same-sex couple, (as there is widespread recognition of the diverse family structures that exist).
Same-sex couples may constitute families, able to perform functions to the same extent as traditional families.
The overriding consideration must be whether that person has made a commitment to assume the role of the parent to that child.
This level of hypocrisy is even more pronounced, and causes hurt and upset, for the many gay and lesbian families raising children. It may come as a surprise to the people in this Chamber that many gay men in fact do have children and that about 50 per cent of lesbian couples either have children or plan to have them. Despite this, some people still promote arguments and laws opposing what is the reality of many people's lives. It seems that any legislation that comes before the Parliament touching on human rights and relationships excludes gay and lesbian people by denying their existence—the cultural invisibility. Consequently, the discrimination against them continues. The glaring hypocrisy is taken further with foster carers. This State places children in foster care with the best interests of the children in mind as they have been victims of abuse. Therefore, those children have special needs. They have behavioural problems and they require extra attention—a tough job for anyone.
Foster carers are wonderful people and no-one would deny the love and level of care they give to children in need. Foster families undergo relationship checks, criminal checks et cetera and children are placed with them when a match between child and foster carer is made. Of course, such carers are in short supply because they deal often with children who are emotionally and/or physically damaged; children with behavioural problems who are difficult to manage as a result. They distrust adults. The Minister, who is their guardian, quite rightly, through her officers, places these children with their best interests in mind.
Foster care families come in many shapes and sizes: There are heterosexual couples with or without children, single carers with or without children, older carers whose own children have grown up and left home, and, yes, same-sex couples with or without their own children, who provide quality care for these children in need. The Minister for Community Services is supportive of these families, yet if they apply for adoption they are rejected immediately without consideration. It is true that same-sex couples may be able to apply as singles. However, denying the existence of their other relationship with their partner is just simply denying the truth for convenience or necessity's sake with regard to adoption. It should be noted that Barnardo's advertises for foster carers in lesbian magazines because of the difficulty in finding foster carers. The January 2000 edition of the publication Lesbians on the Loose contains one such advertisement, on page 44.
Heterosexuals do not have a monopoly on good child-rearing practices, nor a monopoly on good supportive relationships. It is those who really want children, who want to love and care for children, who make the best parents. This level of discrimination does not exist in isolation; it is continued by a denial of the existence of the gay and lesbian communities and their ability to exercise not special rights but equal rights. Clearly, I will support that amendment.
A number of other amendments basically have the effect of trying to create discrimination. I will not go into them in detail but I will vote against them on behalf of the Australian Democrats. However, I will support the amendments of the Hon. A. G. Corbett. His first amendment would give legal representation to mothers under the age of 18. On the adoption inquiry I saw the harm done to young mothers who lost their children because they were considered too young to be parents.
As they have grown up into mature adults one cannot help reflecting that even when they were placed in that situation at 15 they had the determination, courage and the love that could have given their child a very good start in life. It would have done a lot less harm to the mother and the child than what occurred. I commend the Hon. A. G. Corbett for his continued work and commitment to children and young people and their families. The best interests of children are always at the forefront of his amendments. His second and third amendments would provide that the mother have a legal representative to appear for her in proceedings. The fourth amendment would make it an offence to put undue pressure on parents to give up their children for adoption, which is the one that—
The Hon. J. R. Johnson: Undue pressure by doctors on girls to have abortions.
The Hon. Dr A. CHESTERFIELD-EVANS: This is nothing to do with abortions; it is to do with children who have been born. I thought that was clear in the bill. Previously, women were extremely pressured to give up their children for adoption. They were told that if they loved their child they would give it up—a fairly insidious way of getting their consent. Such measures should be made illegal. I spoke to large numbers of women during the adoption inquiry. They had heart-rending stories. Many of them would make adoption illegal. This amendment is the least that can be done for them. The Hon. R. S. L. Jones has proposed an amendment providing for adoptive parents to undergo a criminal check, which is reasonable. I will support the crossbench amendments that are consistent with the Australian Democrats' philosophy, which is that the interests of the child should be paramount. The bill should not introduce discrimination by policies of exclusion. I commend the bill. I think it is a good effort. I look forward to the same sort of sensible attention being shown to kids in care, who are not adopted but who are being looked after by the State. They need as much attention and as much thought as the adopted children covered by this bill.
The Hon. Dr P. WONG [8.23 p.m.]: I am pleased to be able to support the Adoption Bill. I will support some of the foreshadowed amendments. I welcome the fact that the bill will implement the main recommendations of the report of the New South Wales Law Reform Commission, "Review of the Adoption of Children Act 1965". The recommendations were, essentially, to reform and update the law concerning adoptions in this State. The report and recommendations also aimed to improve the processes of the court in dealing with adoption law. The Government and the Minister are to be commended for introducing the bill.
It is appropriate that the bill be enacted to replace the Adoption of Children Act 1965. The community's attitude to adoption and related issues has changed considerably since the Act was introduced. I and the Unity Party appreciate that there is considerable community interest in and concern about the issue. The placement of children with an appropriate adoptive couple or carer is a matter that has to be handled with great care and sensitivity, with appropriate consideration of the needs of the child and the other parties concerned. I have no doubt that the community will overwhelmingly support the objectives of the bill, which are completely appropriate and in step with community attitudes. In particular, the community will support the objective to ensure that the interests of the child are a paramount consideration in adoption.
It is also of great importance to constituents who have contacted me that children will have access to their birth family and cultural heritage. Children must have access to their cultural heritage in particular if they are Aboriginal or from a minority ethnic community by birth, so that they can better understand who they are. Therefore, this is a particularly important reform. Too often in the past children and young people have been kept unaware of and confused about their ethnic and cultural origins. Adopted people who have searched for and discovered their ethnicity and origins, and who their birth parents are, almost always express how valuable it has been to them to discover more fully who they are and where they come from.
There is no doubt that proper safeguards must be in place for children who are adopted from overseas. There must be adequate protection against those less scrupulous people who act as go-betweens for adoptions, and who may try to exploit children or families from poorer nations, or who are negligent in safeguarding their interests. While talking about adoption from overseas, I raise the importance of this bill in protecting the rights of children adopted from overseas, as highlighted by the recent agreement between China and Australia on the adoption of Chinese children by Australian parents. I note an article dated 4 September 2000 in the Sydney Morning Herald about a couple, Susanna Lobez and her husband, a lawyer, Danny Masel, adopting three-year-old Alec Masel. The article states:
Along with 15 other families, the Melbourne couple are now the proud parents of a Chinese-born daughter. She is among the first 16 children—all girls, aged between 10 months and seven years—adopted out to Australians since an agreement was reached between China and Australia at the end of last year.
The families from Victoria, South Australia, Tasmania and NSW arrived in Guangzhou a fortnight ago to begin the final stage of the adoption process. Visas for the children were issued at the Australian Consulate in Guangzhou on Friday afternoon.
The article goes on to state:
... Ms Lopez and Mr Masel feel sad for the estimated 50,000 children who remain in orphanages in China. Ninety-five per cent of them are girls, a reflection of the one-child policy and the premium placed by many Chinese families on having a boy.
The Hon. D. J. Gay: The overrepresentation of males is evident in the streets. It is most tragic.
The Hon. Dr P. WONG: Yes, definitely. I agree fully with what you are saying. It is tragic. I wonder what will happen to China in 20 years time.
The Hon. D. J. Gay: It is causing a great distortion of the population.
The Hon. Dr P. WONG: Very much so. I fully agree with you. The Sydney Morning Herald article continues:
The Hon. J. M. Samios: How many of the 16 children adopted were girls?
While conscious of the problems they might face, they are optimistic. "As an adopted child, there will be problems, there will be unique problems, but they pale into insignificance in relation to the problems of parenting generally," said Mr Masel.
They estimated the adoption process has cost them $25,000.
The Hon. Dr P. WONG: I would say most of them. It is not reported here, but I would think probably all of them.
Reverend the Hon. F. J. Nile: Yes, girls tend to be adopted more.
The Hon. Dr P. WONG: Reverend the Hon. F. J. Nile probably knows as much as I do. From what I heard, usually girls are given away, sometimes at night, and sometimes they are dropped onto doorsteps.
Reverend the Hon. F. J. Nile: Most of them are abandoned.
The Hon. Elaine Nile: They have signs up in the cities, "Husband and wife and one child."
The Hon. Dr P. WONG: Yes. As a result, that is what happens. It is an odd phenomenon, very unnatural. I agree with what the Hon. Elaine Nile said. The article goes on to state:
Another article, published by the Daily Telegraph on 12 July, also placed importance on children having exposure to their culture. The article, which is entitled "Muslim carers call", states:
This first group of Australian adoptions was expedited by the Chinese Government. The waiting period was reduced to around five months.
It is expected that up to 100 Chinese babies will be adopted by Australian families each year.
Lastly, the previous faulty practice was highlighted in an article in the Daily Telegraph of 21 June, which stated:
A program to foster Muslim children with Muslim families will be launched today.
The Muslim Foster Care campaign is designed to find carers from the same religion to temporarily shelter Muslim children.
"Foster care is an important way the Department [of Community Services] works with the local community to care for the children," Community Services Minister Faye Lo Po' said. "Being a foster carer is a very rewarding experience.
"We need Muslim families to look after Muslim children, for anything from a few days to several months."
I also note with interest, as mentioned by the Hon. Dr A. Chesterfield-Evans not long ago, that evidence given to an upper House inquiry into adopting parents showed the change in attitudes during the past few years and the need for this bill. Ms Candlin, a social worker with the Catholic Adoption Agency, had this to say:
A Senate committee will examine whether Australia should apologise or pay compensation to mostly British child migrants who arrived here after World War II.
The Australian Democrats and Labor joined yesterday to refer the issue to the community affairs references committee for a 10-month inquiry.
It will examine whether government and private institutions responsible for the children were unsafe, improper or acting unlawfully.
It will also determine what efforts were made to inform the young migrants about their parents.
Furthermore, it was noted that the position of the Catholic agency had changed over the years. That is, the agency was no longer pressing young mothers to give up children for adoption. Mr Wilson had this to say:
Social workers at the Catholic Adoption Agency were employed to assess adoptive parents and counsel parents who were considering the placement of their child for adoption. The assessment of adoptive parents was certainly not as in-depth as current practices and usually involved one or two interviews, a report from a doctor and a reference from the parish priest. In 1972 education and preparation groups for couples considering adoption were introduced as well as more thorough assessments exploring relationship, family and infertility issues and also providing information about adoption and parenting an adopted child. In 1978 post-adoption support for adoptive families was introduced. The agency started to run workshops for adoptive parents and offered itself as support to families. This is different from current practice in relation to post-adoption support in that now it refers to mediating contact between birth and adoptive families, and supporting both the adoptive and birth families more closely, as well as running workshops, seminars and groups, and publishing newsletters for adoptive and birth families.
With counselling birth parents the agency's role was, and still is, to explore different options for the parents. In the 1960s and 1970s it would appear that clients commonly held the perception that they had few legitimate or acceptable options available to them. Reviewing both client files and literature of the day, it would seem that there was a significant stigma attached to being a single parent. Many families of single pregnant women who came to the agency offered little or no family support, which added to the parents' distress. In the 1980s it would seem that for women in general, and for our purposes it would seem particularly for Catholic women, the use of contraception and terminations significantly increased. Both were available and began to be seen as legitimate alternatives to unplanned pregnancies. This is reflected in the lower numbers of infants placed for adoption. It is significant also that the Catholic Adoption Agency had a major shift in its practice and began the process of openness in adoption.
It is the present practice of this agency, and has been so at least since I began work in the adoption program in 1993, that social workers and all welfare or counselling professionals are obliged to explore all options with their clients to assist them in coming to a decision, whatever that decision might be. Whether this practice happened in the 1980s or earlier, and if so, to what degree, I am unable to ascertain. The primary evidence available to us is from file notes, which were often poorly documented and basic. It would appear that for many women at that time few options were available, particularly if families were not prepared to support their daughters. It is not insignificant that today some parents, again mostly women, make an adoption plan with the knowledge that while supporting agencies and financial assistance are available, without support of their family or, in certain circumstances, with clear opposition from their family, they feel that they are still not able to parent a child at this point in their lives.
It is this agency's position that failure to explore non-adoption options is an unacceptable breach of agency practice and professional ethics. This agency is not in a position to comment whether it is a breach of any law. If any of our staff, be they social workers or adoption workers, were to actively and/or deliberately keep information regarding non-adoption options, this agency would consider it a breach of acceptable practice and would mandate itself to treat this misbehaviour as a breach of acceptable agency practice and ethics.
It has been the agency's experience that in the 1960s and 1970s, and even in some instances today, some families do place pressure on their single pregnant daughters by favouring adoption because families might consider it to be the so-called best solution. The degree of family support is a critical factor in parents' decision-making process, which in our opinion should not be underestimated. Clients have reported to us that they felt they would be stigmatised by broader society if they were to parent their child. It would seem that the fear was that both the mother and the family of that mother would become pariahs in their own communities. If a child was born illegitimate it was evidence that the mother had been involved in a full adult sexual relationship outside marriage. Historically, it appears that adoption was seen by many people as a solution to the so-called problem of having a child born ex-nuptially.
The mother's family and hospital staff lived and worked within a social milieu which would have appeared to have held the attitude that an ex-nuptial birth was a problem to be solved. Pressure may have been incorrectly or directly applied by individuals so that mothers and their families could avoid this alleged terrible stigma. Unfortunately, however, we are unable to say specifically how this pressure was applied. We have no documented information that indicates that adoption professionals applied direct pressure for parents to make an adoption plan, but, as previously stated, indirect pressure would seem to have existed within the system as a whole. Speaking to birth parents today, they indicate that in hindsight they believe they were pressured. Based on this anecdotal information, we would have to conclude that specific instances of overt pressure were applied to parents.
To show that the need for care in not placing children with adoptive parents before consent is given and the revocation period expires, Ms Candlin said:
Furthermore, to demonstrate changes in adoption practice since the 1960s and the need for reform to the adoption law, Mr Wilson stated:
During the 1960s and 1970s infants were placed with adoptive parents prior to the expiration of the revocation period. While this certainly occurred it did not appear to be the usual practice. This situation occurred usually when a social worker thought a parent appeared to be firm in his or her resolve to place the child for adoption and was unlikely to revoke consent. In the early 1960s and early 1970s infants were kept in hospital rather than in a foster care placement, as is the current practice. It was considered to be a child-focused practice, in order to remove the infant from a clinical setting and to assist in its bonding with the adoptive parents. Although the agency appreciates the rationale behind this practice it does not concur with it and considers it a misguided practice for two main reasons. First, while adoption workers were clear that the child be returned to the parent, it would have placed even greater pressure upon the birth parents not to change their mind. Second, contrary to the opinion that it would assist the bonding if the infant was placed as early as possible, it is likely that it would have had an impact on the adoptive parents' ability to bond with the child knowing that the child could be removed from their care. It is significant to note that some parents requested—and still do—that social workers place the child with adoptive parents as soon as possible prior to expiration of the revocation period. Despite requests, this practice is not engaged in by the agency.
I will not quote any further but merely say that this is a very good bill. However, although I support the bill, I also indicate that I would be interested in considering amendments to allow for a legal advocate for birth parents under 18 years of age to more clearly protect them against undue influence in relation to adoption.
I will break down that compound question. The adoption practices today differ from those of the 1960s, 1970s and 1980s in many ways. The most clear difference is the introduction of openness in adoption. As already indicated, this began during the early to mid-1980s. The practice of openness in adoption has evolved considerably in the 1990s and continues to evolve as the understanding of the impact of adoption grows. The agency takes the position that openness not only refers to the actual practice of contact between birth and adoptive parents but of the practice of being open about the adoption, in communication and in relationships. That has developed more in the last decade than it did in the 1980s. Practically speaking, openness involves letter exchanges and meetings between birth and adoptive parents. It usually starts as non-identifying and can move to being identifying if all parties agree. I would like to submit two videos to support my statement.
Reverend the Hon. F. J. NILE [8.44 p.m.]: The Christian Democratic Party supports the Adoption Bill. The bill deals with the adoption of children and access to information relating to an adoption. The bill will repeal the Adoption of Children Act 1965 and the Adoption Information Act 1990. It will amend the Births, Deaths and Marriages Registration Act 1995 with respect to the registration of adoptions and the birth records of adopted persons. It will also make further consequential amendments to other Acts and for other purposes.
A number of honourable members have commented on the small number of babies that are available for adoption. In 1972 the number of babies adopted in New South Wales was 4,500 and in 1975 that figure had dramatically decreased to 1,800. That figure has continued to decline dramatically into the 1990s and, as far as we can ascertain, last year there were only about 14 adoptions in New South Wales and between 70 and 80 overseas adoptions. As has been said, this is a large bill dealing with a small number of babies. The House should consider the reason for this dramatic decrease. First, it is obvious that a number of mothers are now deciding to keep their babies because of financial assistance, in particular from the Federal Government, and they are not putting them up for adoption. It is commendable that either married or single mothers have made the decision to continue with the pregnancy, to have the baby and to care for it, especially as it is so easy and they are often pressured to have an abortion.
The second factor has been the development and promotion of contraceptives such as the pill, which are used to reduce the risk of unwanted pregnancies. The third factor is the dramatic increase in abortions; previously those babies would have been made available for adoption because if the mother is prepared to have an abortion, presumably she would be agreeable to having the baby adopted. There has been considerable debate about young girls being forced to hand over their babies and no doubt that did happen throughout the years. I am sure that all honourable members would agree that it would be preferable for a baby to be given the chance to live and then be adopted if for various reasons the mother cannot continue to care for the baby when it is born.
I note that in the years 1972 to 1975 a number of dramatic events took place. One was the ruling of Justice Levine in 1971 that expanded the grounds for abortion. Abortion strictly speaking is still illegal but Justice Levine expanded the grounds for allowing abortion to include psychiatric grounds. I have received a newsletter from the Preterm Foundation—which carries out abortions, so one would assume that its evidence is pretty reliable—stating that an almost constant 98 per cent of abortions are now carried out on psychiatric grounds whereas previously abortions were allowed if the mother's life was at risk or if there was life-threatening danger. Psychiatric grounds could hardly be compared to life-threatening grounds. Nevertheless, the nebulous term "psychiatric grounds" has been used to allow abortions to take place. The Preterm Foundation provided figures indicating that in the early 1990s abortions were performed on 18.2 to 20.2 of every 1,000 women aged 15 years to 44 years, and similar rates applied in each of the States. Preterm News, under the heading "Preterm Celebrates its 25th", states:
Over the past decade there has been a proliferation of abortion clinics in Sydney and in major rural centres in NSW and Queensland.
I suppose they are saying that they are not providing as good a service as the Preterm Foundation would because it is, reading from its brochure, a "non-profit women's health clinic promoting choice", a "day surgery licensed with the NSW Health Department", and an organisation that is "fully accredited with the Australian Council on Health Care Standards". Interestingly, Preterm was established in 1974—back in that time gap between 1972 and 1975. That is a factor which the House should note as we discuss this issue of adoptions and ask: Why has there been such a dramatic decrease in the number of babies available for adoption? Of course, some places in Newcastle and Brisbane have been advertising that they perform what are called partial birth abortions.
The Hon. R. S. L. Jones: What is a partial birth abortion?
Reverend the Hon. F. J. NILE: It is a baby that is almost at full term and they have to crush the skull of the baby to remove the body from the mother's womb. Those types of abortions have been banned by laws that have been passed by the Senate and Congress in the United States of America, but to date President Clinton has kept vetoing that law.
The Hon. R. S. L. Jones: Up to what age is this procedure carried out—six months or eight months?
Reverend the Hon. F. J. NILE: Before the baby is born, so it can be almost up to the time of birth.
The Hon. R. S. L. Jones: Is that legal?
Reverend the Hon. F. J. NILE: Under American law it is because all abortions are legal. That is why President Clinton will not prohibit partial birth abortion, because he says if he prohibits those abortions people will argue to wind the age back further and further to earlier periods in the baby's development. I am sure that all honourable members of this House would agree that every child, from conception, is a unique special miracle made in the image of God and never to be repeated. I note that some honourable members who have spoken in this debate have referred to their relationships to this subject; in other words, some honourable members have adopted children. I do not have any adopted children. My wife and I have four children, but my sister had five children and when her husband deserted she reluctantly had to give up three of the five boys for adoption.
The Hon. R. S. L. Jones: What happened to those three in the end?
Reverend the Hon. F. J. NILE: They were adopted.
The Hon. R. S. L. Jones: Were they okay?
Reverend the Hon. F. J. NILE: I am about to tell the story. My sister continued as a single mother to raise the remaining two boys. As a single mother, deserted by the husband, that is very difficult. The adoptions took place in Sydney, and she moved to New Zealand. A couple of years ago, while I was serving on the Social Issues Committee when it was inquiring into the issue of open adoptions, my sister came back to Australia from New Zealand to try to locate the three children, two of them male twins. I was very pleased that, through the efforts of a number of people and with the assistance of organisations here in Sydney, my sister was able to locate the boys, who are now adults, and had a wonderful reconciliation with them. That was a very restorative experience for her, because she had been feeling the sadness all those years.
The Hon. R. S. L. Jones: How had the boys managed? Were they okay?
Reverend the Hon. F. J. NILE: The boys had been very well cared for by the adoptive parents, but as men they had developed certain problems. I think that often happens when adoptive children get older. Whether adoption was the reason, I do not know, so I had better not link adoption with their personal problems. My sister was able to meet the boys, live near them for a while, eventually felt she was satisfied and returned to New Zealand. So that was a happy story. I noted that the Hon. Jan Burnswoods said during her contribution that she was very pleased with this bill, and she referred in particular to the opening paragraph of the second reading speech of the Minister for Community Services, the Hon. Faye Lo Po'. I intend to refer to that as well, but from a different point of view.
The Hon. Jan Burnswoods said that she was pleased that the opening paragraph identified changes that had taken place that she regarded as progress. In many ways, I regard those changes not as progress but as retrograde steps. I do not think any honourable member would want a return to judgmental attitudes to single mothers and so on, but I think anyone with any real commonsense would say that some of the changes to which the Minister referred have not been for the progress of our society, and that increasingly we will pay the price for those changes. That is already happening now, but I believe the extent of the social disruption and dysfunction will increase in the future. I quote from the Minister's speech:
Formerly referred to as illegitimate. Again I am not talking about judging single mothers, but it is far better, in the best interests of the child, to bring up the child in a home where the parents are married and have made to each other a commitment which we hope will benefit the child. The way people show that commitment is not through being a single mother or being in a de facto relationship—circumstances that indicate a lack of commitment—but by being prepared to be married in a public ceremony, which we regard as a marriage service, before their parents, relatives, neighbours and friends. That is something that happens in every society, whether it be an Aboriginal community, a Samoan community, a Chinese community or so on. One publicly makes a commitment. From my point of view, obviously it is better if that public commitment is made before God, as an acknowledgement that God, not the government, instituted marriage. This is one of the first ceremonies recorded in Genesis, one of the oldest books of the Bible. The words in Genesis were quoted by Jesus Christ in the gospel of Matthew and by the apostle Paul. I always regard it as a definition of marriage and the beginning of family, for it says:
The current Adoption of Children Act 1965 was enacted some 34 years ago in an era when community attitudes towards ex nuptial birth—
That reference was made just after the description of Adam and Eve, so there could be no earlier quotation dealing with marriage and the family. That certainly would provide the baby with a better environment. I recognise that marriages break up and that some marriages have brutal husbands, violence and so on, but in a normal situation it is in the best interests of the child to have a mother and a father of opposite sexes. That is why I will move an amendment. I am not saying it should be compulsory to select an adult married couple of opposite sexes as the adoptive parents. The amendment provides that where the prospective adoptive parents are a married couple of opposite sexes, two lesbians, two drug addicts and so on, preference should be given to the normally married couple. I repeat that it is a preference. It is not a discrimination; one could say it is a priority..
A man shall leave his mother and his father and shall cleave to his wife and the two shall become one.
The Minister also referred in her speech to other changes such as the role of men and women in our society. Many would question whether all those changes have been for the good. The person hurt through these changes has been the male. I do not have the problem, but it seems that many younger males have a problem in identifying their role. They seem to be in a state of confusion as to what they are supposed to be as men. There is a positive aspect to saying with certainty that there is a role for the male with certain characteristics, and a role for the female with certain characteristics, with at times an exchange of some parts of those roles. However, there is a defined role, with women perhaps coping better with the variety of their role. It seems that many men cannot cope with their role, and this is causing a lot of stress among many males at the moment.
The Hon. R. S. L. Jones: Who defines that role?
Reverend the Hon. F. J. NILE: God does. The mother is biologically destined to have babies and obviously the father, the male, is meant to protect, care and provide for her while she is in that condition so that she does not have to provide for herself. That is a basic principle of all cultures on planet Earth. The Minister also referred to the increase in de facto relationships, but the last report I read indicated that de facto relationships make up only about 10 per cent of families. Traditional families number around 70 per cent to 80 per cent of all families. She also referred to the nuclear family. I have always liked the idea of a three-generation family—the mother and father with their children and the children's grandparents. No-one has argued that a family unit should be forced to live in isolation. I do not believe that is the belief of any religion or of any government. It happens in a modern society, but it is not something that is desirable. I preferred the Australian characteristic of a legally married husband and wife. That was regarded as the norm and considered by many to be the only truly acceptable form of married life.
The Minister said that has all disappeared. It is sad that it has disappeared. I believe that is the cause of the breakdown in our society and it is not something to be proud of. Governments have a responsibility to do what they can to encourage and strengthen those positive values and promote family life. The reason I introduced the Family Impact Commission Bill was to give families priority. It was not designed to disregard the needs of single mothers and those in other relationships. That was the priority, because those families are the building blocks of society. Strong families make a strong society. The Minister also mentioned family law but, as honourable members are aware, family law is just a code for divorce law, which Senator Lionel Murphy introduced in 1975 and which I believe has had a harmful impact on society.
Some matters that honourable members regard as progressive and to be applauded I consider to be matters of great sadness. As I said, we will pay for those changes as time goes on—we are paying for them now. I note that in the outline of the provisions of the bill there is reference to fulfilling our obligations that arise under the United Nations Convention on the Rights of the Child, the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption. I accept that the Hague convention has a number of positive aspects, as does having clear regulations dealing with intercountry adoption. I do not believe that that is what should be promoted.
I know that some people are so desperate to be parents that they are prepared to adopt children from China, Korea and other countries. Regardless of how much effort goes into providing the culture for such a child—which is now a legal requirement, and a Korean child, for example, must be allowed to experience Korean activities and culture—being brought up in the Australian community remains second best to the child being brought up in a Korean community. I believe that to be in the best interests of the child and that it should remain a priority. The same applies to Aboriginal children. The best thing that could happen to an Aboriginal child placed for adoption would be adoption by an Aboriginal family, if that is at all possible. If there are so few children available for adoption it surely must be possible and efforts should be made to do that. It is artificial and not in the best interests of the child for someone merely to say, "I want a child so desperately I will take a Chinese child." That is only meeting the needs of the adoptive parents and I question that.
The Howard Government is not keen on United Nations conventions and has been withholding enthusiastic support of the United Nations Convention on the Rights of the Child. There are some aspects of that convention that are very much under challenge because of interpretation and application. One part of that convention states that parents have no right to stop children from making decisions about what they want to read or see. If a child picks up a copy of Playboy or a pornographic magazine, parents must have the right to say, "That is not suitable for you." Some people have interpreted that convention as stating that the child has a right to choose to read what he or she wants to read. In my view that would undermine the authority of parents. It may be possible for that convention to be clarified in respect of some aspects that I know have been cause for concern.
That is why the United States of America, the United Kingdom and other countries have been reluctant to wholeheartedly adopt it. I know that Germany and some European countries have adopted it but other countries have had second thoughts about it. The bill will allow adoption by a couple, a single person, a relative and a step-parent, where that is in the best interests of the child. It could be argued whether removal of what is referred to as the restrictive criteria is a positive move. In my view those requirements were not draconian For example, under the Adoption of Children Act 1965 and its regulations adoptive parents were required to satisfy criteria relating to age, marital status, health and character. The court was also required to consider the applicant's religion, convictions, if any, and education. I do not consider those to be so negative that they should be rejected outright.. I think many of us would regard it as a bit strange for a baby to be brought up by people in their sixties because when that child was 15 years old the parents would be 75.
It would appear that age is a factor to be borne in mind. I suppose one could argue that that is age discrimination but what it comes down to is the best interests of the child. Children want to be able to play sport with their parents, and so on. If adoptive parents are too old, they may prefer to sit at home and watch television. The rights of the child are paramount and the various restrictions that existed were not all negative. It now appears that congratulations are in order because those restrictions have been removed, and that removal is in the best interests of the child.
A child's aboriginality and cultural heritage are to be identified and preserved, and arrangements are to be put in place to ensure that children have the opportunity of experiencing their cultural heritage in their upbringing. I know that some parents of adopted children from Asia are working hard to enable the child to experience that culture by attending Chinese or Korean outings, but it is still second best for the child compared with being brought up in a Chinese or Korean family. It may be that some Chinese or Korean families in Australia, of which there are many, would be happy to consider adopting children from other countries. I recognise that there is a need, and that some children in other countries are desperate, many having been found abandoned in the gutter and on rubbish tips. That is a tragedy and I am not suggesting that something should not be done for those babies. Ideally, the governments concerned should be far more active in caring for babies and small children of their nations. In regard to intercountry adoptions, perhaps the focus should be on Korean families in Australia adopting Korean children and Chinese families adopting Chinese children as a priority.
The exchanging of information and contact between birth and adoptive parents has been taken up from previous legislation. I was a member of the committee that brought forward the recommendations that led to those provisions. We heard heart-rending stories from mothers who had given up their babies for adoption and wanted to have some contact with them—in one case my own sister. In addition, some adopted children wanted contact with their natural parents. Because of that committee's recommendations—and I agreed in principle with those changes—open adoption was brought about. As the Hon. J. P. Hannaford said, he was attacked, and continues to be attacked, because he supported and helped to implement some of those changes. I believe they were in the best interests of the children who had been adopted and their adoptive parents. , the changes upset some parents who wanted to pretend that their adopted child was their natural child. They are some aspects of the legislation that I wanted to put on the record. I note the argument put forward by previous speakers in the debate that we should not discriminate against drug addicts, homosexuals and lesbians who want to adopt children. I believe we should, and that it is right to do so. How can we say it is in the best interests of a child to be put into a home with parents who are drug addicts? They are battling to cope with their own lives and it would be very difficult for them to provide care at the level required for an adopted child.
A couple of years ago there were television and newspaper reports of a young drug addicted mother who had overdosed on a footpath in Cabramatta. There were photographs of her young boy, who was about four years old, pulling his mother's sleeve and trying to wake her up. Would it be in the best interests of a child to put him into that situation? I am not talking about drug addicts who have children. That is another issue and will be dealt with by another bill. To put a child into the sort of environment to which I have referred would be irresponsible. The Christian Democratic Party will not support amendments that seek to allow a child to be placed in such circumstances. We support the bill and will do all we can to assist in its implementation.
The Hon. R. S. L. JONES [9.10 p.m.]: I support the Adoption Bill. This is an interesting debate because there is no doubt that in Australia today far fewer children are being adopted than in the 1950s and 1960s. As Reverend the Hon. F. J. Nile and others have said, one reason for that is that people do not have unwanted children. The use of contraception, including the pill, which is now readily available after many years, and abortion are the reasons for the declining birth rate. I would have thought that abortion is the least favoured way of not having children. I know of one woman who had eight abortions before she decided to have a family; I would have thought that she was very lucky to be able to bear a child after having eight abortions. I know of other women who have had abortions, and I wonder what would have happened to those children had they been allowed to live.
There is no doubt that there would be many more Australians today if abortion had not been so easily available. Many unwanted babies would have been adopted, hopefully into loving families. I know a number of adopted children and, by and large, their adoptions have been successful. I have a couple of friends who had a child of their own and adopted two children. One, a Chinese girl, is now in her thirties. She is very bright, very well educated and very successful. I think she is doing her third degree at this stage. Unfortunately, the other, an Aboriginal boy who is also now in his thirties, has not been as successful. He went back to his family, his grouping.
Another couple of friends went to Colombia to adopt a child. They met the mother, who could not afford to keep her child, and the people helping the mother. That young man is very bright and is adapting very well. My friends are making sure that he retains his cultural roots. I have another friend who was told this week that she is able to adopt a two-year-old Ethiopian orphan. She and her de facto husband will shortly go to Ethiopia to pick up the girl. My friend wanted to have her own child but, unfortunately, lost the child at birth and is unable to have another. She is thrilled that she will be able to adopt the child, who has no parents and no home. The child will have a wonderful life in Australia and my friends will be marvellous parents. I am to be the godfather of that child, and I will make sure that the child is okay if anything happens to the parents.
Whether single people, homosexuals or lesbians should adopt children is an interesting question. I understand the arguments of those who say that children should have a biological father and a biological mother. Obviously that is the ideal situation for most children, if only for balance. But a number of babies and children in this world live in orphanages. They would love to be adopted by a lesbian couple, a gay couple or single people who would provide them with good homes. At the moment those orphans have virtually no hope. One should realise that the best interests of those children would be for them to have loving parents, no matter what their sexuality or whether they are single or in couples. It goes without saying that there are many couples who could adopt children and give them the most marvellous life in Australia, which they would not otherwise have.
In Australia not many children are available for adoption, and there is a very long waiting list. That is why I have talked about overseas adoptions, which are covered by the bill. Age has been mentioned. My friend who is adopting the child from Ethiopia told me that a 40-year-old can adopt a one-year old. The age of the child one can adopt gets older as the adoptive parent gets older. For example, a person aged 50 or 60 can adopt a child aged eight, nine or 10. Under current regulations a 60-year-old would not be able to adopt a very young child: it is a weeding-out process. To me that makes sense, because if a 60-year-old adopts a baby, it may well be that the baby would be without a parent in its teens. Of course, there is nothing stopping older people from having children, especially men.
I have been approached by a number of organisations that are concerned about the Adoption Bill in its present form. I have given notice of three amendments I proposed to move in Committee. I will not now move the first of them, as the proposed amendment mandating the taking of fingerprints was not accepted. I do not understand why. I thank the Government and the Opposition for accepting my other two proposed amendments. While organisations including People with Disabilities, the New South Wales Users and AIDS Association, and the Australia International Social Services (New South Wales Office) have supported the Adoption Bill in principle, they have all voiced concerns over wider moves in the Department of Community Services.
It is a great relief that the Minister has delayed the draft exposure bill, the Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill. It was interesting to hear the Hon. J. P. Hannaford talk about that earlier. There have been a number of concerns about that bill, which would have been before the House today but for the Minister's sense in delaying it. The Sydney Regional Aboriginal Corporation Legal Service; the Council of Social Service of New South Wales; the New South Wales Council on Intellectual Disability; Professor of Law, Patrick Parkinson; and the New South Wales Disability Rights Service have all expressed concern about the Minister's package of child reforms. One particular concern is the lack of community consultation.
There was what seemed to be an unseemly rush to implement the entire package. There have been numerous inquiries and reports, both local and international, which graphically portrayed the horrific effects of forced adoptions on certain population groups. Those inquiries and reports warn us that adoption, particularly intercountry adoption, is complex and should be examined with a great deal of care. Healthy, wealthy Australians who wish to adopt children sometimes have no idea of the circumstances in which parents give up their children. There have been stories of people in underprivileged countries, such as China, having pressure placed on them to offer children, particularly unwanted female children, for adoption to Western couples. The same thing happens in other countries.
Recently a particularly horrible story emerged in the United States of a man engaged in an intercountry adoption racket. He attracted young unmarried women, generally African-Americans or Mexicans, killed the mothers and offered the children for adoption. It is absolutely horrible to contemplate that anybody could do such a thing, but while the trade exists such horrible things can occur. We have to be very careful about the precise circumstances of the children who are being adopted out and the reasons they are being adopted out. We should also question whether we in the West regard the adoption of children of the poor, the destitute and the disadvantaged as a satisfactory solution to the appalling problems experienced in too many countries from which people are seeking children.
Rather than rescuing children from a life we might shudder to contemplate, we as a community should do more to assist families to keep their children and not adopt them out. It might be worthwhile considering putting pressure on the Federal Government to direct some of its aid money towards helping parents who wish to keep their children rather than adopt them out. We do not have to look too far from home to realise that our history of child welfare is less than impressive. We need look no further than the current trauma surrounding the stolen generations debate to realise the effect of wrong-minded and forced adoptions. We do not want that practice to occur ever again. It affects both the communities from which children were taken and those in which they were placed. As we have seen clearly, the pain and trauma can last for more than one generation; it can last from generation to generation.
It could certainly be argued that the Adoption Bill could have been delayed until after the report of the Standing Committee on Social Issues inquiry into forced adoptions had been released. As all honourable members would be aware, that inquiry is currently examining cases of mothers who were forced to adopt out their babies between 1950 and as late as 1998. The evidence given to the inquiry, as the Hon. Jan Burnswoods could no doubt testify, has been extremely traumatic for all concerned, especially the mothers who were compelled to give up their children. The committee has seen film of mothers who never saw their babies: young teenagers who would have loved to have kept their babies, but who were cajoled, forced and convinced, in some cases by their families, to give up their children at birth.
The committee has heard of cases in which babies were taken away: the sheet was lifted up and the mother never saw her baby. Some mothers and some of the children have never recovered from that trauma. That shocking situation, thank heavens, is no longer with us today. I hope that it will never recur. The committee is due to report in a few weeks, and the report could contain lessons from which we could all benefit. I see no reason why debate on this bill has been pushed on before the recommendations of the inquiry into forced adoptions have been handed down. That is certainly the view of the major players in the community sector, such as the Association of Children's Welfare Agencies and Origins, the forced adoption support group.
If the proposed amendments of the Hon. A. G. Corbett relating to the consent provisions and to legal advocates for birth parents under 18 years of age are any guide, the same concerns that sparked the forced adoptions inquiry linger in relation to the bill. It is hoped that the amendments of the Hon. A. G. Corbett, which seek to address those fears, will be supported by both the Government and the Coalition. It is essential that we learn from the mistakes of the past. If we do not we or our children will be doomed to repeat those mistakes. That would be especially catastrophic in child welfare. To avoid a situation that results in children being permanently removed for less than ideal reasons we need to understand exactly who is caught up in our child welfare system.
Honourable members may recall that in this House the other day I noted that a number of murderers, who many members of this House want put away permanently, were removed from their parents or were not brought up by their parents and ended up in the child welfare system. Those murderers never knew the love of their parents. They were not capable of feeling love because they never received love. In a media release dated 28 July Gary Moore, Director of the Council of Social Service of New South Wales said:
That is an obvious statement, and it has been the argument from the Minister's office about the bill. Adoption will take place only when all other options have been exhausted, for example when children need to be protected from abusive parents. We have heard a lot about what type of circumstances will lead to the only option being exercised. The Minister has spoken publicly of her concerns about parents who have stubbed out cigarettes on children's bodies or in other horrific ways abused or neglected their children. With respect to the Minister, the current child welfare system does not appear to operate in that way. Taking children away from abusive parents is often not the last resort used by DOCS officers or by the courts. The types of families from which children are taken reflect more the failings of our society than the failings of the parents.
The bottom line is that permanency planning options, including adoption, should only be pursued when it is crystal clear that successful restoration of children or young people to their natural parents cannot be made.
For example, on 4 August 2000 the Sydney Morning Herald reported that a new study had found that more than half of all parents with intellectual disabilities who go before the Children's Court have their children taken away from them. That is a real tragedy. The report found that children whose parents had intellectual disabilities but had not abused them were more likely to become State wards than children whose parents had a history of abuse but no disabilities. The same article in the Sydney Morning Herald stated:
It was found that DOCS and the legal system prejudged parents with intellectual disabilities to be poor parents who could not change.
That position has been strongly rejected by the Chair of the New South Wales Council on Intellectual Disability, Ms Helen Sears, who stated that merely because someone has an intellectual disability does not mean that he or she would make a bad parent. The report in the Sydney Morning Herald said:
Like many other people who lack (parenting models) and experiences, people with intellectual disability can learn how to build happy supportive of families. They need appropriate support to do this.
The situation is equally problematic for the children of the physically disabled. The support organisation People with Disabilities has stated that the problems experienced by the intellectually disabled apply also to the physically disabled whose children are also taken away because DOCS and the courts believe the parents cannot cope. That was also the view of Ms Joy Said of the Mental Health Co-ordinating Council, who complained in a letter to the Sydney Morning Herald dated 25 July that children of mothers with depression will be considered for adoption. Although Ms Said was speaking of the permanency planning draft exposure bill I mentioned earlier, it is significant that the mentality of those planning the changes to current child welfare practices will again discriminate against a vulnerable section of the community, this time the mentally ill.
I do not know whether anyone saw the moving story a few weeks ago on the 7.30 Report of young man aged 13 or 14 who had embarked on a tour of schools and community groups to explain to people exactly what it was like to live with a parent with a mental illness. The overriding message of the story was of hope and the importance placed on maintaining the relationship between the ill parent and the child. As Ms Said stated in the article in the Sydney Morning Herald:
A mother with depression (or other mental illness) does not automatically qualify as an unfit parent.
We also know that Aboriginal children are 10 times more likely than non-Aboriginal children to be taken from their parents by DOCS. According to the Community Services Commission almost one-quarter of all children in care in New South Wales are Aboriginal. Three in 100 Aboriginal children are still being removed from their families. It is not surprising that indigenous representatives, such as the Chairperson of the Secretariat of National Aboriginal and Childcare Agencies, Ms Muriel Cadd, have termed the overrepresentation "another stolen generation". The bill provides for the cultural and religious backgrounds of the adopted child to be taken into consideration. It is obviously very important for the children—whether they are Aboriginal or from Colombia, Ethiopia or China—to maintain their identity, to know where they come from and to connect with their identity and their religion.
It is important that a child who comes from a Muslim background be brought up, where possible, with a Muslim family. There is no reason why, if the parents are Christian, that child cannot be brought up as a Muslim. It would be difficult, but it is possible. It would be better for a Muslim family to bring up a Muslim child, a Catholic family to bring up a Catholic child and a Jewish family to bring up a Jewish child, although not too many Jewish children are available for adoption. It is clear from these examples that DOCS is not doing a particularly good job of determining what children to take and on what grounds. The department also seems to be failing in restoring families once a child has been removed.
What faith should we have that adoption will not be used to remove children altogether from the care of their parents when that may not be the ideal result? Evidence shows that adopted children often search out their birth parents, their brothers and their sisters. Reports have indicated that significant trauma and conflict are often associated with that process for both the adopted child and the adoptive parents, not to mention the birth parents. The Post-Adoption Resource Centre was established to deal with the aftermath of adoption practices. To a certain extent the bill opens up the process of enabling children to maintain their identity and find out where they came from.
Evidence also shows that many parents who have had their children removed were themselves in the State's care at some stage. When examining the overrepresentation of children of the intellectually disabled now in the care system, University of Sydney academics David McConnell and Gwyneth Llewellyn found that many parents had themselves been institutionalised as children and lacked parenting models and experience of family life. That is a tragedy. Reports into the overrepresentation of indigenous children in the care system also revealed the same history. As Muriel Cadd has said, "It's all a legacy of past removalist policy."
The Sydney Morning Herald has reported that, like intellectually disabled parents, members of the stolen generation often had no family links or sense of community and lacked child-rearing experience. It is arguable that being taken away and placed in State care actually exacerbates the situation. We know that an experience of having been in State care is a key indicator that someone will end up in the juvenile justice system and subsequently, unfortunately, in adult gaols. Paragraph 4.71 on page 87 of the second report of the Standing Committee on Law and Justice on crime prevention through social support stated:
This is another indication that we must keep families together as much as possible and not allow a child to be removed or to be adopted unless it is vital for the child's welfare. It is important that this Government and future governments do all they can to assist children to stay with their parents, because it is clear from the evidence that children who stay with their parents are no doubt better off than those who end up without their parents, and sometimes in the juvenile and adult justice systems. We know that State wards comprise 0.2 per cent of the population aged between 10 and 17 years, yet they are overrepresented in juvenile detention by approximately 80 times more than the per capita distribution of State wards in the wider community.
The argument in several of these submissions and certainly in two Community Services Commission reports on the issue is that an inter-generational cycle of offending occurs: a significant number of State wards end up in juvenile justice institutions, then graduate to adult prisons where their children then become wards of the State because of their parents incarceration ...
The Community Services Commission 1996 report used juvenile justice data and concluded that wards are fifteen times more likely to enter juvenile justice detention centres than other members of the juvenile population, with State wards in detention being as high as 17%.
The Hon. D. F. Moppett: This is a lovely omnibus speech but it has little to do with adoption.
The Hon. R. S. L. JONES: It has: these are the people who would be adopted in many cases.
The Hon. D. F. Moppett: What proportion of the roughly 14 who were adopted last year fall into the universal characteristics you have described?
The Hon. R. S. L. JONES: Some children leave their parents by one means or another, whether it is because their parents were useless or the children ran away. I am pointing out that we should try to keep children within their families so that essentially they never become available for adoption. That is the whole point: the more we keep children with their families the less chance they have of becoming delinquent later. We are talking from opposite angles. I am saying that children will not become available for adoption if the State intervenes at a very early stage, so they are never actually available for adoption. The Minister's response to the standing committee's report, as reported in the Daily Telegraph, was to step up her campaign to remove children from abusive parents. That relates to a bill that is not before us today, but I thought I would cover that matter, hopefully to knock it on the head before it ever comes before us. I do not think we will ever have a debate on that bill, but I am making a pre-emptive strike so that it will not come before us.
The Hon. D. F. Moppett: Or, more plausibly, the person who prepared this speech for you prepared it for the other bill.
The Hon. R. S. L. JONES: No. I can assure the honourable member that this speech was prepared only recently. It was not prepared for the other bill. I promise that this was prepared in the past 24 hours. The Adoption Bill, while acceptable in itself, should not be seen in isolation but as part of a package of child welfare reforms that community organisations and experts have already argued is inherently flawed. As a said, I support the bill, but I will move a number of amendments in Committee. I welcome the bill.. I think a few changes need to be made, and there are some amendments from the Greens and other honourable members that hopefully will improve the bill, if they are accepted. This bill is a welcome move forward. It was interesting to hear the views of the Hon. J. P. Hannaford in one of his last speeches in this House. He has adopted children so he knows a lot about this subject.
The Hon. Dr B. P. V. Pezzutti: He has two adopted children.
The Hon. R. S. L. JONES: The Hon. Dr B. P. V. Pezzutti rightly says that the Hon. J. P. Hannaford has two adopted children. His two eldest children are adopted. I am sure they were brought up in a fantastic family, so they would have been very lucky children. We hope that other children who are adopted, whether from overseas or locally, also receive that same loving, supportive care and that they will grow up into well-adjusted Australians, whether they are from Ethiopia, Sri Lanka or China.
The Hon. Dr B. P. V. Pezzutti: And Bolivia.
The Hon. R. S. L. JONES: Yes, and Bolivia. Hopefully, they will be able to adapt to our way of life, having been brought here at a reasonably young age in most cases, and they will be able to have happy families later. This legislation will go some way towards supporting people who adopt children from overseas and locally, and it will go a long way to helping those children to adapt to their families.
The Hon. J. S. TINGLE [9.35 p.m.]: I did not intend to speak on this very welcome bill, but I shall comment briefly and take issue with my colleague the Hon. R. S. L. Jones for what I am sure was a slip of the tongue in what was otherwise a very compassionate speech. As we debate this bill and as we look at the ramifications of adoption, we must try to understand some of the emotional dynamics that go into the business of people taking someone else's child and bringing up that child as their own. I am an adoptive parent: I have two adopted children, of whom I am very proud. I believe that what the Hon. R. S. L. Jones said shows a basic misunderstanding, if unintentional, of what adoption is about. He spoke of friends of his who had adopted two children and then had one of their own. My wife and I adopted two children by the adoption process, and then we had another child by the more usual and more pleasurable process. However, we do not think of that child, my youngest daughter, as our own; all those children are our own.
The Hon. Dr B. P. V. PEZZUTTI [9.36 p.m.]: I support this bill. As my colleagues said in my absence yesterday and earlier today, the Opposition welcomes this bill. In preparing for this debate I had occasion to read all the contributions of members in the other place, including the unseemly row that developed early in the piece.
The Hon. D. F. Moppett: No wonder you had to take a couple of days off.
The Hon. Dr B. P. V. PEZZUTTI: I do it contemporaneously with speeches; I read them the very next morning and mark them up. This bill was introduced into the lower House on Thursday 29 June. For the record, it was lumped in with two or three other bills that had to go through the lower House in an hour. It was to be guillotined in the lower House after one hour. A bill of this magnitude, without consultation and without it being available to the Opposition, was to be rammed through. Needless to say, that caused a considerable ruckus. Generally, the lower House does not allow much debate on bills. This bill was introduced at about the same time as the Dairy Industry Bill was being debated.
Debate on this bill in the lower House commenced at 7.30 p.m. or 8.00 p.m. I note that members of the lower House have longer pauses in their speeches while they collect their thoughts, but the debate continues for some 13 pages of Hansard, so it must have taken quite a long time. There was much toing and froing between members and Hansard does not show times for all of them, but the debate went for a long time. The thrust of the matter was that the Opposition had not been privy to the bill. Although the Minister said in her summing up said that there had been an awful lot of consultation about the bill, she meant—because this Government does not understand the word "consultation"—that there has been a lot of discussion in the community, or perhaps a judicial inquiry of some sort. That does not mean consultation on the bill.
I point that out to the Minister for Juvenile Justice, because she will be in Government for at least three more years and during her time as Minister she might be involved in having discussions and what is called consultation on a bill.
The bill has to be released for discussions in the community generally—not just amongst corporate heavies in organisations—and all the views that are received have to be exposed to all the people who submitted a view. In other words, when the comments on the comments are received, everyone gets together to decide the best and clearest direction that, on balance, will satisfy most of the needs. That is consultation, but the Minister's idea of consultation is that 274 applications were submitted. The Minister must have received some letters after the Hon. J. P. Hannaford first spoke about reviewing the Act and sent a reference to the Law Reform Commission. In November 1992 the Law Reform Commission received its terms of reference and undertook an independent review.
It is terrific that the Law Reform Commission considered more than 270 submissions during its independent review of adoption practices. The Law Reform Commission substantially got it right, and this bill substantially reflects the findings of the Law Reform Commission. But, as all honourable members know, some of the matters addressed by the Law Reform Commission could not have been part of the wide community consultation because they are not widely accepted by the community, the Government or the Opposition. I draw the attention of honourable members to Hansard of 16 August, when the honourable member for Bligh moved amendments in relation to same-sex couples adopting. In reply the Minister said:
So, the Law Reform Commission went a lot further than the submissions it received. I will comment later about that amendment. Consultation does not mean referring something to the Law Reform Commission to ruminate about: it means getting the results of the Law Reform Commission's report and asking the community to comment on it. When one has a community response to the response of the Law Reform Commission, one asks what people think of it. It is not for the Minister to just suddenly ask Parliamentary Counsel to draft a bill, not consult with anybody about it, and not give the Opposition a briefing on the bill. I do not know whether the cross bench received a briefing on it.
The Government does not accept the Law Reform Commission's recommendation that same-sex couples be allowed to adopt.
The Hon. R. S. L. Jones: Not before it was introduced.
The Hon. Dr B. P. V. PEZZUTTI: I do not think they did. Her Majesty's loyal Opposition in the other place did not.
The Hon. I. Cohen: Loyal to what?
The Hon. R. S. L. Jones: Loyal to whom?
The Hon. Dr B. P. V. PEZZUTTI: Some of my colleagues simply do not understand the principle of the Westminster system but I am sure they will learn if they are here long enough. I ask the Minister to learn from the messy way in which this bill was introduced in the lower House. The Government should have consulted more widely and exposed the bill to examination for even a week, rather than introduce it and try to ram it through in one day on 29 June. As the Minister well knows the bill was reintroduced on 16 August after a delay, and it had to lay on the table because of the stink that was caused by the Opposition.
Reverend the Hon. F. J. Nile: No.
The Hon. Dr B. P. V. PEZZUTTI: Reverend the Hon. F. J. Nile said, "No." Incontrovertibly, if he had read the debate in the lower House—
Reverend the Hon. F. J. Nile: I read Hansard.
The Hon. Dr B. P. V. PEZZUTTI: Exactly.
Reverend the Hon. F. J. Nile: The Opposition made a fuss about being misled but it was misrepresenting the Government.
The Hon. Dr B. P. V. PEZZUTTI: Was it? I read the debate and I spoke to the manager of Opposition business, Chris Hartcher, who had the document with the three bills listed. In debate Mr Whelan said, "We really didn't mean to put it in there; it was a mistake. Oh dear, I did it again." Reverend the Hon. F. J. Nile can accept any excuse given by the Government but the record shows that the Government tried to introduce this bill on 29 June in an omnibus of three bills to go through in an hour. Because of the fuss that was made, the Government said that it had made a mistake, and that is what Reverend the Hon. F. J. Nile believes.
I am glad that somebody believes everything that the Government says but members of Her Majesty's loyal Opposition are paid not to believe everything the Government says. We are paid to expose any weaknesses in the Government's argument, to say whether we believe it, and to expose the arguments and see what people think about them. We are paid to represent opposition views and at the end of the day to support what is in the best interests of the people, particularly children, of New South Wales, as we are doing tonight.
I will be brief in my preliminary statements on this very important bill. Adoption has been referred to by many people. As a young doctor and as a registrar in anaesthetics I saw 12-, 13-, 16-, 18- and 43-year-old women having children at the Crown Street Women's Hospital—the hospital that Laurie Brereton closed. I saw lots of young people, single or married in stable relationships, give up their children for adoption. If the Hon. Judith Walker were here she could repeat her story, which was redolent of all the bad practices that happened in those times. Fortunately we have moved on from then.
The Hon. R. S. L. Jones: When were you there?
The Hon. Dr B. P. V. PEZZUTTI: I was at Crown Street Women's Hospital in 1968, when I did my midwifery term in obstetrics to try to learn about delivering babies. I was at the Royal Hospital for Women for two different terms when I was doing anaesthetics, epidurals, caesarean sections and the like.
The Hon. R. S. L. Jones: You saw many young girls giving up their babies for adoption in those days?
The Hon. Dr B. P. V. PEZZUTTI: Yes, and what used to happen has been described. There really was a sheet between the mother and the baby as it was thought that it was better for the mother if she did not see her baby or hear it crying. In government or non-government agencies the decision to adopt out the child was made and papers were signed before the child was born. A commitment was made by the mother that could be overturned at that stage, but it was made very difficult for her. The woman would have had to make a big song and dance and say, "I can't give up his child" and so on, but the baby was signed away.
The Hon. R. S. L. Jones: Did they take the baby at that stage?
The Hon. Dr B. P. V. PEZZUTTI: At the moment of birth the baby was whisked outside. In fact, instead of the baby being resuscitated in the delivery room, as is normal, the practice was to take it to a separate room for resuscitation. The minute the baby was born it was bundled up and taken away so that the mother never heard its first scream. That was done in the best interests of the mother but caring for the baby at the same time.
Those days are well and truly gone. There have been many changes both in practice and community expectations. Last weekend I went to a military conference in Brisbane. I returned with a friend of a friend, an anthropologist from New Zealand, who for four weeks had been studying anthropology in the New Guinea Highlands and in Port Moresby. He studied a group of people who live in a village in Port Moresby that, for a number of reasons, mirrors a village in the Highlands. In some of the clans, when a woman has a baby it can be claimed by a kinsman or a kinswoman according to an arrangement made before the baby is born. These are married people and it might be their first, second, third or fourth child.
The Hon. R. S. L. Jones: On what basis do they claim the baby?
The Hon. Dr B. P. V. PEZZUTTI: An older brother or sister who has been married for a number of years and does not have a child will claim the child. It is an accepted cultural practice. The clan is relatively small and everyone knows each other. One family may have three children from three different mothers and in another family a mother may have had six live children but only two of them may live with her. It is clan ownership of children. It is a completely different culture to ours, but it works for them.
The Hon. R. S. L. Jones: Do the children still relate to the birth mother?
The Hon. Dr B. P. V. PEZZUTTI: They know who their birth mother is, but they have been adopted and their mother is the person with whom they live. I am exposing different cultural practices, which is an important part of this bill. I wonder whether the Minister might address this issue. In New Guinea if a family has too many children they might adopt some out to a neighbour, for example. One could say this practice is a form of surrogacy. The number of adoptions that take place here now is extremely small. At the estimates committee the Department of Community Services Director-General, Ms Niland, said that 15 or 16 adoptions occurred last year and as a result of this bill the figure may increase to 60 or 65.
The Hon. R. S. L. Jones: Mostly overseas adoptions.
The Hon. Dr B. P. V. PEZZUTTI: That includes overseas adoptions because of the provisions relating to the Hague convention. When I was going through anaesthetics training two of my colleagues adopted children from South America. At that time overseas adoptions were approved by the Australian Government and the government of the day in, I think, Bolivia. Both couples adopted a boy and a girl. The children are very happy and have been brought up well here. The children know that they are adopted. It is perfectly obvious from their skin colour and other differences. They are bubbly, performing children who, like all children, are not quite as nice as mummy and daddy would like them to be but they are their own individuals. It is good to see that they have been brought up that way.
I return to the debate in the lower House on 8 August. Everyone has been warm and cuddly about the Government's bill. However, it is the mechanism which the Minister for Juvenile Justice must learn about as a young Minister who has a future in this place, although for only three more years. If she goes to the other place she may last longer. Her tenure as a Minister will probably end in 2003 because Labor will not be in government then. In the week that this bill was introduced the Opposition was given a 20-minute briefing by the Minister for Community Services and the Government, in the week that the children and young persons protection legislation was introduced. Only after it was made clear that the briefing was not adequate were matters deferred. The shadow Minister wanted a briefing from a Mr Milson so that he could brief the party room.
The shadow Minister approached the Minister for Community Services and wrote a formal letter asking for a briefing by Mr Milson. He was told that Mr Milson was busy all afternoon. The shadow Minister got to the stage where he was desperate to get information and he went up to the Minister's office. There he found Mr Milson reading a newspaper. Mr Milson had plenty of time to be in the gallery during the entire debate. Do not tell me that Mr Milson was too busy to brief the shadow Minister. If any honourable member is interested to read about this, it is well and truly documented in the lower House speeches on 8 August at pages 57 and 58 of the Hansard proof. The Minister for Juvenile Justice should read it so that she learns how not to behave. I am sure that she would never behave this way. I am sure if the wonderful Minister Lo Po' knew about this she would have been horrified. Was she horrified? Of course she was not. The saintly Faye Lo Po' hid Mr Milson from the Opposition, who wanted to be briefed on a relatively contentious bill.
I support two issues. First, I strongly support the focus of this bill. I have read yesterday's speeches, although I missed today's speeches. I am pleased that most honourable members have joined in the spirit of this bill. The detail of the bill has been corrected in the lower House. Had this bill been available for proper consultation, many of the drafting errors would have been picked up. However, I note that a few matters have fallen to the duty of the Hon. A. G. Corbett to fix. One is the serious issue of consent and whether a person aged 12, 13 or 14 can give consent. How does one ensure that the person understands? How does one ensure that the person is competent to make such a decision? How does one ensure that the person is properly counselled about the impact of adoption? That applies to a person who is 14 or 40. To ensure that a 14-year-old understands requires specialised psychological and legal knowledge.
As to consent from under-15s, the Minister says she will fix it up in the regulations. I am pleased that it is being fixed up in the legislation. In her speech in reply on 16 August—the debate went on for a while—the Minister said that the bill will be fixed up in the good old upper House. The Treasurer does not approve of the upper House, but the Hon. Faye Lo Po' told the members not to worry because the bill would be fixed up in the upper House. What would the Government do if it did not have the upper House? This bill would have gone through without any of these amendments because the Government has the numbers in the lower House. It would just rock on through.
The Hon. M. R. Egan: We have done all right all day without you. Now you turn up and upset the apple cart.
The Hon. Dr B. P. V. PEZZUTTI: You would be pleased to know that I had an hour's sleep on the plane. There is more to come on this matter when we get to permanency planning. The Minister was gung-ho about that issue on radio, but I think she has gone a bit cool on it. Does the Hon. R. S. L. Jones agree?
The Hon. R. S. L. Jones: I don't think we will ever see it.
The Hon. Dr B. P. V. PEZZUTTI: Although this bill applies to a very small number of people, everyone has a right to be dealt with appropriately and properly. I am also concerned about another matter which was raised in the lower House by a number of speakers and, I think, in this House—that is, when someone is adopted the government then walks away. The people involved need considerable support. Adoption might be more popular if more support was given to the mother giving up the child, the adopting parents and the adopted child, and there might be fewer problems with the adoption process. Honourable members must understand that this legislation is not only about adopting babies. The legislation also relates to children who can make their own decisions. This legislation carefully goes to that issue and deals with it in a good way. It is an excellent example of making sure that all the t's are crossed and the i's are dotted—except in the areas I have referred to. The issue of Aboriginality has been referred to by many speakers. I concur with most of the views, particularly the views of the shadow Minister in the other place. It is important also that we look at the issue of single parentage. Whilst single parentage was raised in debate, it is not in issue here.
The Hon. R. S. L. Jones: Why?
The Hon. Dr B. P. V. PEZZUTTI: Although it is possible for a single person to adopt a child, for that to happen would be the most extraordinary circumstance. This bill generally relates to two parents, therefore single parentage is really a sideline issue. If my reading of the bill is correct, single parentage relates to a relative adopting the child. I commend the bill to the House, together with the amendments proposed by the Hon. A. G. Corbett, which I have seen briefly.
The Hon. M. R. Egan: Did you take up all that time to agree?
The Hon. Dr B. P. V. PEZZUTTI: I said at the outset that I was going to agree. I take this opportunity to congratulate the drafters of the bill and all the people who made submissions. It is unfortunate that the Government could not wait just a little longer to see the outpourings and results of the inquiry conducted by the Standing Committee on Social Issues. As I understand from my colleague the Hon. Dr A. Chesterfield-Evans, a vast amount of information has come forward which may have been beneficial to the Government had it waited.
The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [10.01 p.m.], in reply: I thank all honourable members who participated in the debate. On the whole, honourable members made thoughtful and considered contributions. As members referred to, a number of amendments are to be moved in Committee. The Committee stage will also allow members the opportunity to further debate some of the issues raised. There is support for the principle that adoption services must be provided in the best interests of the child, both in childhood and in later life. This is the paramount consideration of the bill. There is also support for other aspects of the bill, as members have outlined.
A number of issues raised during the debate are worth addressing. Issues addressing children's rights and the need to care for and protect children should be the highest priority of government. This bill addresses, as a paramount consideration, the principle that decision makers must act only in the best interests of a child. Despite the Hon. Dr B. P. V. Pezzutti's comments, this bill is the culmination of a long and committed process of consultation. A total of 274 submissions were submitted in relation to this reform. I shall not read onto the record the range of organisations from which submissions were received because the list is available. However, it is true that this issue was on the public's mind and agenda.
A number of honourable members highlighted the fact that in 1992 the Hon. J. P. Hannaford referred the adoption legislation to the Law Reform Commission for review. The Law Reform Commission is to be commended for the thorough approach it has adopted in preparing and presenting its recommendations for legislative reform. During the winter recess adoption agencies were invited to further consider the bill. I acknowledge the opportunity for further consideration of the bill in a public forum provided by the Association of Children's Welfare Agencies and the Council of Social Service of New South Wales. The Minister has given a commitment to further consultation with the community during the making of the regulations and other requirements to support the Act, a commitment which has been reiterated in this place.
I will now address some of the specific issues raised in debate. A number of honourable members referred the fact that the Government has not accepted the recommendation of the Law Reform Commission that same-sex couples be allowed to adopt. The issue at this time is not the sexual orientation of the care provider but the legal recognition of the parentage of an adopted child, the protection at law that can be provided for the child, and the relationship of the adoptive parents. Adoption law has responded to law providing for the recognition of a heterosexual couple and a child of that relationship arising out of the De Facto Relationships Act 1984, the Adoption of Children (De Facto Relationships) Amendment Act 1984, and legislation that removed the legal disability of exnuptial children to facilitate the establishment of paternity and maternity of children—that is, the Children (Equality of Status) Act 1976.
It would be appropriate to consider a similar response only following a legislative recognition of same-sex relationships beyond property considerations, and legislation to remove legal disabilities of children in same-sex families. Adoption legislation, which is about the best interests of children, is not the legislation to address this issue. The bill removes artificial barriers to the most appropriate placement for a child, and requires decision makers to act only in the best interests of the child as a paramount consideration. The United Nations Convention on the Rights of the Child and the Hague Intercountry Adoption Convention provide direction and an acknowledgement that "the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding". These conventions, to which Australia is a party, are not conventions based on a hierarchy in favour of a special classification of "family" that may, in fact, deny a child an opportunity for the most appropriate adoptive placement. They are United Nations conventions to be administered without discrimination of any kind.
One honourable member in particular claimed that the Government implicates adoption in a cost-shifting exercise. That is absolute nonsense. In fact, the contrary applies. Clause 201 makes provision for the Director-General of the Department of Community Services to enter into arrangements for such financial and other assistance to promote the best interests of a child. The adoption plan will also address the support needs of the adoption placement and arrangements to facilitate the exchange of information between the parties to an adoption arrangement. I can assure the House that during consideration of Australia's ratification of the Hague Intercountry Adoption Convention the Commonwealth and the States committed considerable time to consideration of the most appropriate court to exercise the adoption jurisdiction.
At that time there was no uniform agreement, and there is still no uniform agreement. However, I assure the House that the Law Reform Commission gave most appropriate consideration to the exercise of jurisdiction in adoption matters. The Children's Court, the District Court, the Supreme Court and the Family Court were considered, as was an adoption tribunal. The New South Wales Supreme Court Chief Judge in Equity and the adoption judge acknowledge the Family Court's expertise. However, the close link that the administration of adoption has with other provisions for children in need of care, and constitutional problems involved in transferring adoption to the Commonwealth, did not justify the transfer of jurisdiction. State or Territory adoption services are based on uniform adoption principles, and at this time there is no national agreement for the transfer of this jurisdiction to the Commonwealth.
The Commonwealth's jurisdiction in intercountry adoption is vested in the New South Wales Supreme Court, and the Commonwealth has not yet considered whether it wants the adoption jurisdiction. No other aspect of the State's responsibility for children is being considered for referral to the Commonwealth. The Government has accepted the very considered recommendations of the Law Reform Commission that until issues of Federal and State jurisdiction have been resolved the adoption jurisdiction should continue to be exercised by the Supreme Court of New South Wales. Regulations are essential to the administration of this bill, which contains more than 50 references to regulations. A commitment has been given to a process of consultation surrounding the making of regulations. Honourable members raised a number of further issues. The Hon. Helen Sham-Ho raised adoptions from China. The bill will bring all adoption arrangements under State legislation and will replicate provisions currently in Commonwealth legislation. Adoption arrangements with countries who are signatories to the Hague Intercountry Adoption Convention and with countries who have entered into special arrangements with the Commonwealth will be easier for New South Wales residents when the Act is in place.
The Hon. I. Cohen raised a number of issues relating to International Social Services. Clause 8 (2) (j) provides that the best interests of a child must take account of the alternatives to the making of an adoption order, so that adoption is determined among all alternative forms of care to be in the best interests of the child. Special provisions are put in place for Aboriginal children, in recognition of the fact that adoption is foreign to Aboriginal custom. International Social Services was a member of the working party that considered the bill, and will be invited to join the regulation working party that will consider the administrative arrangements to support the bill. Most of its concerns will be addressed in regulations. The Hon. A. G. Corbett raised a grammatical concern about clause 136 (1). The adoption information provisions in chapter 8 relate to access to information following a child reaching 18 years of age. Parliamentary Counsel, in the preparation of the Statute Law Amendment Bill, will be requested to address a birth parent's right to make it clear that a birth parent does not have a statutory right to information about the adopted child until the child attains 18 years of age.
The Hon. R. S. L. Jones raised concerns with regard to clause 45 (2). Clause 45 is the regulation-making provision to address requirements for the assessment of the suitability of persons to be approved to adopt. Clause 45 (2) is an empowering provision to make it clear, and to remove any conflict with other legislation, that the Director-General is able to require the fingerprinting of an applicant to adopt. The regulation will require the person to furnish an imprint of his or her fingerprints to enable inquiries according to the Criminal Records Act 1991 as necessary. The issues raised by the Hon. R. S. L. Jones will be addressed at the regulation stage. As I have said, a commitment has already been given to a further period of consultation in relation to the regulations. I again thank honourable members for their contributions to debate on this bill and commend it to the House.
Motion agreed to.
Bill read a second time.