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This is a Bill, not an Act. For current law, see the Acts databases.
Adoption Amendment Bill 2008
No , 2008
A Bill for
An Act to amend the Adoption Act 2000 to make further provision with respect to the
adoption of children and access to adoption information.
Clause 1 Adoption Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Adoption Amendment Act 2008. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Amendment of Adoption Act 2000 No 75 6
The Adoption Act 2000 is amended as set out in Schedule 1. 7
4 Repeal of Act 8
(1) This Act is repealed on the day following the day on which all of the 9
provisions of this Act have commenced. 10
(2) The repeal of this Act does not, because of the operation of section 30 11
of the Interpretation Act 1987, affect any amendment made by this Act. 12
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Amendments Schedule 1
Schedule 1 Amendments 1
(Section 3) 2
[1] Section 8 What principles are to be applied by persons making decisions 3
about the adoption of a child? 4
Omit "not for adults wishing to acquire the care of the child," from section 5
8 (1) (b). 6
[2] Section 8 (1) (e1) 7
Insert after section 8 (1) (e): 8
(e1) undue delay in making a decision in relation to the 9
adoption of a child is likely to prejudice the child's 10
welfare, 11
[3] Section 24 Who can be adopted? 12
Omit section 24 (2) (a). Insert instead: 13
(a) has been cared for by the applicant or applicants, or by the 14
applicant and a deceased spouse of the applicant, as his or 15
her or their child prior to reaching the age of 18 years, or 16
[4] Section 24 (3) 17
Omit the subsection. 18
[5] Section 28 Adoption by couple 19
Omit "3 years" from section 28 (4). Insert instead "2 years". 20
[6] Section 29 Adoption by relative 21
Omit "5 years'" from section 29 (b). Insert instead "2 years'". 22
[7] Section 30 Adoption by step parent 23
Omit "3 years" from section 30 (b). Insert instead "2 years". 24
[8] Section 30 25
Insert at the end of the section after the note: 26
(2) Subsection (1) (b) does not apply to the adoption of a child who 27
is 18 years of age or more at the time of the application for the 28
adoption order. 29
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Adoption Amendment Bill 2008
Schedule 1 Amendments
[9] Section 33 Aboriginal participation in decision making 1
Insert at the end of the section: 2
(2) In addition, the Director-General or appropriate principal officer 3
must ensure that the placement of the child is made in 4
consultation with a local, community-based and relevant 5
Aboriginal organisation. 6
[10] Section 37 Torres Strait Islander participation in decision making 7
Insert at the end of the section: 8
(2) In addition, the Director-General or appropriate principal officer 9
must ensure that the placement of the child is made in 10
consultation with a local, community-based and relevant Torres 11
Strait Islander organisation. 12
[11] Section 46 What is an adoption plan? 13
Insert after section 46 (3): 14
(4) If provisions of the kind referred to in subsection (2) (a) are 15
proposed to be included in an adoption plan, those provisions 16
should be made after consultation with a local, community-based 17
and relevant Aboriginal or Torres Strait Islander organisation. 18
[12] Section 54 When consent of parent or person who has parental 19
responsibility not required 20
Omit "5 years" from section 54 (2). Insert instead "2 years". 21
[13] Section 55 Consent of child 22
Omit section 55 (1) (b). Insert instead: 23
(b) the counsellor has certified that the child understands the 24
effect of signing the instrument of consent (as required by 25
section 61), and 26
[14] Section 59 Mandatory written information 27
Insert at the end of the section: 28
(2) In the case of the adoption of a child by a step parent or relative 29
of the child: 30
(a) the applicant (and not the Director-General or appropriate 31
principal officer) must ensure that a person whose consent 32
to the adoption is needed before an adoption order can be 33
made is given the mandatory written information before 34
the person consents or refuses consent to the adoption, and 35
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Adoption Amendment Bill 2008
Amendments Schedule 1
(b) the requirement to give that information is satisfied if the 1
information given is information in a form approved by the 2
Director-General for the purposes of compliance with this 3
subsection. 4
(3) In the case of an adoption of a child who is under the parental 5
responsibility of the Minister administering the Children and 6
Young Persons (Care and Protection) Act 1998, this section does 7
not require the mandatory written information to be given to the 8
Minister or a delegate of the Minister who can consent to the 9
adoption. 10
[15] Section 60 When is consent to be given? 11
Insert "(if required)" after "mandatory written information" in section 60 (b). 12
[16] Section 63 Child or other person consenting must be counselled 13
Insert at the end of the section: 14
(3) This section does not require the Minister administering the 15
Children and Young Persons (Care and Protection) Act 1998 or 16
any delegate of the Minister to be counselled before giving 17
consent to the adoption of a child who is under the parental 18
responsibility of the Minister. 19
[17] Section 87 Application to be consented to by Director-General 20
Omit section 87 (c). 21
[18] Section 87 22
Insert at the end of the section: 23
(2) Despite subsection (1) (a), the consent of the Director-General to 24
an application for an adoption order is not required: 25
(a) if the applicant is a step parent or relative of the child, or 26
(b) if the application relates to an intercountry adoption. 27
[19] Section 91 28
Omit the section. Insert instead: 29
91 Report required before order made for adoption of child 30
(1) The Court may not make an order for the adoption of a child 31
under 18 years of age unless a report in writing concerning the 32
proposed adoption has been provided to the Court by the 33
applicant. 34
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Schedule 1 Amendments
(2) The report is to be accepted by the Court only if it has been 1
prepared by the Director-General, an approved assessor or a 2
principal officer. 3
(3) This section does not prevent the Director-General from making 4
a report to the Court in relation to the adoption of a child before 5
the Court if the Director-General considers it appropriate to do 6
so. 7
(4) The Court may require the Director-General to make a report in 8
relation to an application for an adoption order made by a person 9
other than the Director-General, but only if the child is under 18 10
years of age. 11
(5) However, the Court is not to require the Director-General to 12
make a report unless the Court considers that the 13
Director-General should report on the case because of: 14
(a) particular concerns about the safety, welfare or well-being 15
of the child concerned, or 16
(b) serious concerns about the reliability or independence of a 17
report made by an approved assessor or a principal officer 18
concerning the case, or 19
(c) other exceptional circumstances. 20
(6) The Court may require the Director-General to make such a 21
report within a period of 6 months after the date of the making of 22
the application or such other period as the Court may, having 23
regard to the circumstances of the case, specify. 24
(7) In this section, an approved assessor means a person, or a person 25
of a class, approved by the Director-General from time to time, 26
by order in writing, to provide a report to the Court for the 27
purposes of this section. 28
[20] Section 101 Names of adopted children 29
Omit "unless there are special reasons, related to the best interests of the child, 30
to do so" from section 101 (5). 31
Insert instead "unless the Court is satisfied that the name change is in the best 32
interests of the child". 33
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Amendments Schedule 1
[21] Section 101 (5), note 1
Insert after section 101 (5): 2
Note. Section 8 sets out the principles that are to be applied by persons 3
making decisions about the adoption of a child, and includes the 4
principle that a child's given name or names, identity, language and 5
cultural and religious ties should, as far as possible, be identified and 6
preserved. 7
[22] Section 133A 8
Insert after section 133: 9
133A Definition of "presumptive father" 10
In this Chapter: 11
presumptive father of an adopted person means a man who 12
claims to be the birth parent of the adopted person and who: 13
(a) is shown on the adopted person's original birth certificate 14
as the adopted person's father, or 15
(b) is a person whom the Director-General, Registrar or other 16
information source is entitled to presume, under any law 17
(including a law of another State, the Commonwealth or of 18
a country outside Australia), to be the adopted person's 19
father. 20
[23] Chapter 8, Part 2, Division 1 21
Insert after the heading to Part 2 of Chapter 8: 22
Division 1 Access entitlements (adoptions after 2008 23
changes) 24
133B Application of Division 25
This Division applies in respect of an adoption given effect to by 26
an adoption order made on or after the commencement of this 27
Division as a consequence of an application for an adoption order 28
made on or after the commencement of this Division. 29
Note. Changes to access entitlements were made by the Adoption 30
Amendment Act 2008 (which inserted this Division into this Act). For 31
access entitlements in relation to adoptions before those changes, see 32
Division 2. 33
133C Adopted person's rights 34
(1) An adopted person is entitled to receive (subject to this Act): 35
(a) the person's original birth certificate, and 36
(b) his or her adopted person's birth record, and 37
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Schedule 1 Amendments
(c) any prescribed information relating to the adopted person 1
held by an information source. 2
(2) Despite subsection (1) (a), an intercountry adopted person is 3
entitled to receive his or her original birth certificate only if such 4
a certificate is held by an information source. 5
(3) An adopted person who is less than 18 years of age is not entitled 6
to receive his or her original birth certificate or adopted person's 7
birth record, or prescribed information, except with the consent 8
of: 9
(a) his or her surviving adoptive parents, or 10
(b) the Director-General if there are no surviving adoptive 11
parents or if they cannot be found or if there is, in the 12
opinion of the Director-General, any other sufficient 13
reason to dispense with their consent. 14
133D Adoptive parent's rights 15
(1) An adoptive parent of an adopted person is entitled to receive 16
(subject to this Act): 17
(a) the adopted person's original birth certificate, and 18
(b) the adopted person's birth record, and 19
(c) any prescribed information relating to the adopted person 20
held by an information source. 21
(2) Despite subsection (1) (a), the adoptive parents of an intercountry 22
adopted person are entitled to receive the adopted person's 23
original birth certificate only if such a certificate is held by an 24
information source. 25
133E Birth parent's rights 26
(1) A birth parent of an adopted person is entitled to receive (subject 27
to this Act): 28
(a) the amended birth certificate of the adopted person if a 29
record of the adoption of the person is registered under the 30
Births, Deaths and Marriages Registration Act 1995, and 31
(b) the adopted person's birth record, and 32
(c) any prescribed information relating to the adopted person 33
or adoptive parents held by an information source. 34
(2) A birth parent of an adopted person who is less than 18 years of 35
age is not entitled to receive any adoption information held by an 36
information source unless the birth parent produces to the 37
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Amendments Schedule 1
information source an authority authorising the information 1
source to supply the adoption information issued by the 2
Director-General. 3
(3) The Director-General may issue, or refuse to issue, an authority 4
to supply adoption information to the birth parent of an adopted 5
person who is less than 18 years of age. 6
(4) The Director-General may refuse to issue the authority only if, in 7
the opinion of the Director-General, it would pose a risk to the 8
safety, welfare or well-being of the adopted child or adoptive 9
parents. 10
(5) The Director-General is required to comply with any guidelines 11
prescribed by the regulations in determining whether the supply 12
of information poses a risk to the safety, welfare or well-being of 13
an adopted child or adoptive parents. 14
(6) The Director-General may issue an authority to supply adoption 15
information under this section subject to conditions. 16
(7) An information source must not supply any adoption information 17
that is the subject of such an authority in contravention of any 18
such conditions imposed by the Director-General. 19
(8) In this section, a reference to a birth parent of an adopted person 20
includes a reference to a presumptive father of an adopted person. 21
133F Discretion to supply other information to birth parents 22
(1) A designated person may supply a birth parent with prescribed 23
information held by an information source about an adopted 24
person who is less than 18 years of age without production of the 25
amended birth certificate of the adopted person or authority to 26
supply the adoption information if, in the opinion of the 27
designated person, the information could not be used to identify 28
the adopted person or his or her adoptive parents. 29
(2) A birth parent of an adopted person may request the 30
Director-General or a principal officer to take such action as is 31
reasonable in the circumstances to ascertain from the adopted 32
person's adoptive parents information of a kind prescribed by the 33
regulations as to the current physical and emotional well-being of 34
the adopted person. 35
(3) A birth parent of an adopted person is entitled to receive from the 36
Director-General (or from an information source authorised to 37
supply the information) any information obtained in response to 38
a request made under this section: 39
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Schedule 1 Amendments
(a) that the Director-General considers does not identify, or 1
could not be used to identify, the adoptive parents, and 2
(b) if, in the opinion of the Director-General, it would promote 3
the welfare and best interests of any of the parties 4
concerned. 5
(4) In this section, a reference to a birth parent of an adopted person 6
includes a reference to a presumptive father of an adopted person. 7
133G Non-adopted sibling's rights 8
(1) A non-adopted sibling of an adopted person is entitled to receive 9
(subject to this Act) any prescribed information relating to the 10
adopted person. 11
(2) A non-adopted sibling who is less than 18 years of age is not 12
entitled to receive any prescribed information relating to an 13
adopted person except with the consent of: 14
(a) the surviving parents of the non-adopted sibling, or 15
(b) the Director-General, if there are no surviving parents or if 16
they cannot be found or if there is, in the opinion of the 17
Director-General, any other sufficient reason to dispense 18
with their consent. 19
(3) A non-adopted sibling of an adopted person who is less than 20
18 years of age is not entitled to receive any prescribed 21
information held by an information source relating to the adopted 22
person unless the non-adopted sibling produces to the 23
information source an authority authorising the information 24
source to supply the prescribed information issued by the 25
Director-General. 26
(4) The Director-General may issue, or refuse to issue, an authority 27
to supply adoption information to a non-adopted sibling of an 28
adopted person who is less than 18 years of age. 29
(5) The Director-General may refuse to issue the authority only if, in 30
the opinion of the Director-General, it would pose a risk to the 31
safety, welfare or well-being of the adopted child or adoptive 32
parents. 33
(6) The Director-General is required to comply with any guidelines 34
prescribed by the regulations in determining whether the supply 35
of information poses a risk to the safety, welfare or well-being of 36
an adopted child or adoptive parents. 37
(7) The Director-General may issue an authority to supply adoption 38
information under this section subject to conditions. 39
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Amendments Schedule 1
(8) An information source must not supply any adoption information 1
that is the subject of such an authority in contravention of any 2
such conditions imposed by the Director-General. 3
(9) In this section, a non-adopted sibling of an adopted person means 4
a sibling of an adopted person who is not himself or herself an 5
adopted person. 6
[24] Chapter 8, Part 2, Division 2 7
Insert before section 134: 8
Division 2 Continuation of former access entitlements 9
(adoptions before 2008 changes) 10
133H Application of Division 11
This Division does not apply to adoptions to which Division 1 12
applies. 13
[25] Section 136 Birth parent's rights 14
Omit section 136 (2). 15
[26] Section 136 (7) 16
Insert after section 136 (6) (before the note): 17
(7) In this section, a reference to a birth parent of an adopted person 18
includes a reference to a presumptive father of an adopted person. 19
[27] Section 136A 20
Insert after section 136: 21
136A Discretion to withhold supply or to supply subject to conditions
(cf AI Act s 12A) 22
(1) The following persons may request the Director-General to act 23
under this section: 24
(a) an adopted person who is 18 or more years old, 25
(b) a birth parent, 26
(c) an adoptive parent of a person who is less than 18 years of 27
age, 28
(d) an adoptive parent of a person who is 18 or more years of 29
age and who has consented to the request being made. 30
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Schedule 1 Amendments
(2) The Director-General may, at the request of a person referred to 1
in subsection (1): 2
(a) refuse to issue an authority authorising an information 3
source to supply adoption information to which an 4
entitlement arises under this Division, or 5
(b) supply such information subject to conditions specified in 6
writing by the Director-General. 7
(3) The Director-General may refuse to issue an authority to supply 8
adoption information under this section only if, in the opinion of 9
the Director-General, exceptional circumstances exist that make 10
it necessary to do so to prevent serious harm to a party concerned. 11
(4) Conditions that may be imposed by the Director-General under 12
this section include conditions requiring the person entitled to the 13
adoption information to undergo counselling by a person 14
specified by the Director-General before the adoption 15
information is supplied. 16
(5) The Director-General must deal with a request under this section 17
in accordance with any guidelines prescribed by the regulations. 18
(6) An information source must not supply any adoption information 19
that is the subject of an authority to supply adoption information 20
imposing conditions on its supply unless the conditions are 21
complied with. 22
(7) The Director-General may not (despite section 206) delegate to 23
another person the exercise of any function of the 24
Director-General under this section. 25
[28] Chapter 8, Part 2, Division 3, heading 26
Insert before section 137: 27
Division 3 Miscellaneous 28
[29] Section 137 Access to adoption information by relatives and others after 29
death of adopted person or birth parent 30
Insert after section 137 (5): 31
(5A) This section does not limit the entitlements of a non-adopted 32
sibling of an adopted person under Division 1. 33
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Amendments Schedule 1
[30] Section 140 Discretion to supply adoption information 1
Omit section 140 (3). Insert instead: 2
(3) The Director-General may supply (or authorise an information 3
source to supply) adoption information or other information to 4
any person who is not entitled under this Part to receive adoption 5
information or other information under this Part if, in the opinion 6
of the Director-General, it is reasonable to do so. 7
[31] Section 141 Discretion to withhold supply (or authorise the withholding 8
of supply) of information or to supply it subject to conditions 9
Omit the section. 10
[32] Sections 180 and 180A 11
Omit section 180. Insert instead: 12
180 Restriction on publication of material identifying persons affected 13
by adoption application 14
(1) A person must not publish material that identifies, or is 15
reasonably likely to identify, a person as a person affected by an 16
adoption application. 17
Maximum penalty: 25 penalty units or imprisonment for 18
12 months, or both. 19
(2) For the purposes of this section, each of the following persons is 20
a person affected by an adopted application: 21
(a) a child in relation to whom an adoption application is 22
made, 23
(b) a person who makes an adoption application, 24
(c) the mother and father of the child in relation to whom an 25
adoption application is made, and any other person who 26
has parental responsibility for the child when the adoption 27
application is made. 28
(3) This section does not prohibit: 29
(a) the publication of any material with the authority of the 30
Court under section 180A, or 31
(b) the publication of an official report of proceedings in the 32
Court that includes the name of any person the publication 33
of which would otherwise be prohibited by this section. 34
(4) This section does not prohibit the publication of any material 35
after an adoption application and any proceedings in the Court 36
with respect to the application have been finally disposed of: 37
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Schedule 1 Amendments
(a) if the person identified (or reasonably likely to be 1
identified) as a person affected by the adoption application 2
consents to being identified, and 3
(b) the material does not identify (and is not reasonably likely 4
to identify) any person affected by the adoption application 5
who does not consent to being identified. 6
(5) In subsection (4), a reference to the consent of a person affected 7
by an adoption application is, if that person is a child less than 8
18 years of age, a reference to the consent of the person who has 9
parental responsibility for the child. 10
(6) In this section: 11
adoption application means an application under this Act or 12
under a law of another State for an adoption order. 13
180A Court authorisation of publication of identifying material 14
(1) The Court may, during any proceedings with respect to an 15
adoption application, by order, authorise the publication of 16
material that identifies, or is reasonably likely to identify, a 17
person affected by the adoption application, other than material 18
identifying birth parents, if it is satisfied that: 19
(a) each person affected by the adoption application consents 20
to the publication (other than a child in relation to whom 21
the adoption application is made who is under 18 years of 22
age), and 23
(b) it is appropriate in the circumstances of the case to do so. 24
(2) If a child in relation to whom the adoption application is made is 25
12 or more years of age and is capable of giving consent, the 26
Court must not authorise the publication of the material unless 27
the child also consents to the publication. 28
(3) The Court may dispense with the consent of a person affected by 29
an adoption application if that person is no longer alive, or 30
cannot, after reasonable inquiry, be found or identified, or if there 31
is, in the opinion of the Court, any other sufficient reason to 32
dispense with their consent. 33
(4) The Director-General is entitled to appear and be heard at any 34
proceedings the purpose of which is to determine an application 35
for an order of the Court under this section. 36
(5) The Court is not to make an order authorising publication of 37
material under this section unless satisfied that the 38
Director-General has been given reasonable notice of the 39
application for authorisation. 40
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Amendments Schedule 1
(6) In this section: 1
adoption application has the meaning given by section 180. 2
material identifying birth parents means any material that 3
identifies, or is reasonably likely to identify, a person as a person 4
who, when an adoption application is made, is the mother or 5
father of the child to whom the adoption application relates or a 6
person who has parental responsibility for the child. 7
person affected by an adoption application has the meaning 8
given by section 180. 9
[33] Schedule 3 Savings, transitional and other provisions 10
Insert at the end of clause 1 (1): 11
Adoption Amendment Act 2008 12
[34] Schedule 3, Part 4 13
Insert after Part 3: 14
Part 4 Provisions consequent on enactment of 15
Adoption Amendment Act 2008 16
18 Definition 17
In this Part, the 2008 amending Act means the Adoption 18
Amendment Act 2008. 19
19 Changes to adoption process 20
(1) An amendment to Chapter 4 made by the 2008 amending Act 21
applies in respect of an application for an adoption order made 22
before the commencement of the amendment only if the Court, at 23
the request of the applicant or applicants, directs that the 24
amendment should be applied in respect of the application. 25
(2) However, section 59 (2), as inserted by the 2008 amending Act, 26
or an amendment to section 87 or 91 made by the 2008 amending 27
Act does not apply in respect of an application for an adoption 28
order made before that insertion or the commencement of the 29
amendment (as the case requires). 30
20 Discretion to supply information 31
The amendment made to section 140 by the 2008 amending Act 32
extends to an adoption given effect to by an adoption order made 33
before the commencement of the amendment. 34
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Schedule 1 Amendments
21 Discretion to withhold supply of information 1
(1) A request made under section 141 before the repeal of that 2
section is taken, on that repeal, to have been made under section 3
136A (as inserted by the 2008 amending Act). 4
(2) Any authority issued by the Director-General under section 141 5
that, immediately before its repeal by the 2008 amending Act, 6
still had effect, continues to have effect under section 136A (as 7
inserted by the 2008 amending Act). 8
22 Publication of identifying material 9
Sections 180 and 180A, as inserted by the 2008 amending Act, 10
extend to the publication of material, on or after the 11
commencement of those sections, relating to adoption 12
applications made or disposed of before the insertion of those 13
sections by that Act. 14
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