Northern Territory Explanatory Statements

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ADOPTION OF CHILDREN AMENDMENT BILL 2006

ATTACHMENT

Adoption of Children Amendment Bill

EXPLANATORY STATEMENT

Serial No 38

Minister Lawrie MLA
Minister for Family and Community Services


The Adoption of Children Act 1994 prohibits the issue of full Australian birth certificates for overseas born adopted children. At present, these adopted children can only be issued with a birth extract.

Changes to the Hague Convention on Intercountry Adoption, which came into force in Australia in December 1998, permit overseas adoption authorities to finalise adoption orders in the source country and to require automatic recognition of those orders by the receiving country.

As some adoptions are now automatically recognised under Australian law when they are finalised by a foreign court, they do not trigger the requirements for birth registration in states and territories, because there is no domestic order for adoption. As a result these children cannot be issued with an Australian birth certificate. This problem applies Australia wide.

The Bill provides for a birth registration system which applies irrespective of whether the overseas adoption is finalised in the northern territory or under a foreign adoption law which is automatically recognised by Australia or by way of foreign court order subsequently the subject of a declaration of validity by the local court.

The Bill provides a mechanism which ensures that the necessary birth information is entered into the adoptions register and that this in turn is able to be linked to the register of births.

A secondary purpose of the bill is to append to section 5 of the act a note that the commonwealth Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 apply in the Northern Territory. These regulations give effect to Australia’s obligations and entitlements under the Hague Convention on Intercountry Adoption, and already apply in the northern territory, pursuant to the commonwealth-state agreement on Intercountry Adoption 1998. This is intended as a courtesy reminder for magistrates in the local court that they have the power to exercise this jurisdiction in cases where it may be appropriate to do so.

PART 1

PRELIMINARY MATTERS
CLAUSE 1
THE ACT MAY BE CITED AS ADOPTION OF CHILDREN ACT 2006
PART 2
AMENDMENT OF ADOPTION OF CHILDREN ACT
CLAUSE 2
PRINCIPAL ACT AMENDED
THIS CLAUSE PROVIDES FOR THE AMENDMENT OF THE ADOPTION OF CHILDREN ACT
CLAUSE 3
AMENDMENT OF SECTION 5 (JURISDICTION OF LOCAL COURT)

THIS CLAUSE PROVIDES A NOTE STATING THAT THE LOCAL COURT HAS JURISDICTION UNDER THE FAMILY LAW (HAGUE CONVENTION ON INTERCOUNTRY ADOPTION) REGULATIONS 1998 (CTH) FOR A MATTER TO WHICH PART 4 OF THOSE REGULATIONS APPLIES.
CLAUSE 4
AMENDMENT OF SECTION 54 (REGISTRATION OF ORDERS)

SECTION 54 (1) (b) REQUIRES INSERTION OF THE WORDS ‘OR IS REQUIRED TO BE’ AFTER ‘WHOSE BIRTH IS’

SECTION 54 (3) (b) INSERTION OF THE WORDS ‘OR IS REQUIRED TO BE’ AFTER ‘WHOSE BIRTH IS’
CLAUSE 5
AMENDMENT OF SECTION 55 (REGISTRATION OF OVERSEAS BIRTH AND ADOPTION ORDER)

SECTION 55 (3)(a) OMITS THE WORDS ‘AS HE OR SHE SEES FIT’ AND SUBSTITUTE THE WORDS ‘AS PRESCRIBED’

SECTION 55 (3) (b) INSERTION OF THE WORDS ‘OR IS REQUIRED TO BE’ AFTER ‘WHOSE BIRTH IS’
CLAUSE 6
REPEAL AND SUBSTITUTION OF PART 9 HEADING


THIS CLAUSE REPEALS THE PART 9 HEADING AND SUBSTITUTES IT WITH ‘PART 9- TRANSITIONAL MATTERS FOR ADOPTION OF CHILDREN ACT 1994’
CLAUSE 7
THIS CLAUSE ALLOWS FOR A NEW PART 10, AFTER SECTION 90, TITLED ‘TRANSITIONAL MATTERS FOR ADOPTION OF CHILDREN ACT 2006’.

SECTION 91 PROVIDES FOR THE AMENDMENTS MADE TO SECTIONS 4 AND 5 OF THE ADOPTION OF CHILDREN AMENDMENT ACT 2006 TO APPLY TO ADOPTIONS MADE ON, BEFORE OR AFTER THE COMMENCEMENT OF THE ACT SUBJECT TO THE REGULATIONS
PART 3
AMENDMENT OF ADOPTION OF CHILDREN REGULATIONS
CLAUSE 8
PRINCIPAL REGULATIONS AMENDED.
THIS CLAUSE ALLOWS FOR THE AMENDMENT OF THE ADOPTION OF CHILDREN REGULATIONS.
CLAUSE 9
REPEAL AND SUBSTITUTION OF REGULATION 8 (PRESCRIBED FORMS FOR ORDER FOR ADOPTION, ORDER DISCHARGING ORDER FOR ADOPTION AND CERTIFICATE ISSUED BY MINISTER)
AND REGULATION 9 (REGISTER OF ADOPTIONS).

THIS CLAUSE REPEALS REGULATIONS 8 AND 9 AND SUBSTITUTES NEW CLAUSES 8 AND 9

THE NEW REGULATION 8 DESCRIBES THE FORMS TO BE USED FOR ADOPTION (FORM 5), AN ORDER DISCHARGING ORDER FOR ADOPTION (FORM 5) AND CERTIFICATE ISSUED BY MINISTER (FORM 6).


THE NEW REGULATION 9 SETS OUT THE PROCESS FOR REGISTERING ADOPTIONS. REGULATION 9(1) APPLIES IF AN ADOPTION DOCUMENT (WHICH CAN BE A MEMORANDUM OR CERTIFICATE REFERRED TO IN REGULATION 8(1), (2) OR (3), ORDER MADE UNDER SECTION 52 OF THE ACT, A DOCUMENT FORWARDED TO THE REGISTRAR UNDER SECTION 54(2) OF THE ACT OR A DOCUMENT EVIDENCING AN ADOPTION AS REFERRED TO IN SECTION 49 OF THE ACT) IS RECEIVED BY THE REGISTRAR. PURSUANT TO REGULATION 9(2) IF ONE OF THE ADOPTION DOCUMENTS IS RECEIVED, THE REGISTRAR MUST REGISTER THE ADOPTION DOCUMENT BY ENTERING PARTICULARS ABOUT THE CHILD AND PARENTS OF THE CHILD IN THE REGISTER OF ADOPTIONS.

REGULATION 9(3) STATES THAT THE REGISTER OF ADOPTIONS AND AN ADOPTION DOCUMENT OR COPY OF AN ORDER TO WHICH AN ADOPTION DOCUMENT RELATES MUST NOT BE OPEN FOR PUBLIC INSPECTION.

REGULATION 9(4) PROVIDES THAT THE REGISTRAR MUST NOT ISSUE A COPY OF, OR AN EXTRACT FROM AN ENTRY IN THE REGISTER OF ADOPTIONS OR AN ADOPTION DOCUMENT OR A COPY OF AN ORDER, UNLESS –

(A) A COURT ORDERS THE REGISTRAR TO DO SO,
(B) THE MINISTER HAS PROVIDED INFORMATION ASSOCIATED WITH THE ENTRY, ADOPTION DOCUMENT OR ORDER; OR
(C) THE REGISTRAR IS SATISFIED THAT THE COPY OR EXTRACT IS REQUIRED FOR COURT PROCEEDINGS AND THE ISSUING OF THE COPY OR EXTRACT IS APPROVED BY THE MINISTER.
CLAUSE 10
AMENDMENT OF REGULATION 10 (CERTIFICATE ABOUT ADOPTED CHILD)

THIS CLAUSE ALLOWS FOR THE CERTIFICATE TO INCLUDE THE PLACE WHERE THE CHILD WAS BORN


CLAUSE 11
THIS CLAUSE ALLOWS FOR REGULATION 11 TO BE REPEALED AND SUBSTITUTED WITH A NEW REGULATION 11 (REGISTRATION OF BIRTH OF ADOPTED CHILD).

THIS CLAUSE PROVIDES CONDITIONS FOR REGISTERING THE BIRTH OF CHILD WHOSE ADOPTION:
A) WAS FINALISED IN THE NORTHERN TERRITORY;
B) WAS FINALISED IN AN OVERSEAS COUNTRY.


THE CLAUSE PROVIDES PROCEDURAL SAFEGUARDS AGAINST THE RISK THAT PARENTS OF OVERSEAS BORN ADOPTED CHILDREN IN OTHER JURISDICTIONS MAY BE TEMPTED TO SEEK AN AUSTRALIAN BIRTH CERTIFICATE IN THE NORTHERN TERRITORY. A RESIDENCY REQUIREMENT OF SIX MONTHS WILL APPLY BEFORE THE CHILD’S ADOPTION CAN BE REGISTERED IN THE NORTHERN TERRITORY ADOPTION REGISTER.

IT WILL NOT DENY FORMER RESIDENTS A BIRTH CERTIFICATE AS LONG AS THE ADOPTION WAS FINALISED IN THE NORTHERN TERRITORY.

CLAUSE 12
THIS CLAUSE AMENDS REGULATION 15 (OFFENCES RELATING TO REGISTRATION OR RE-REGISTRATION) BY INSERTING THE WORD “REGISTRATION” AFTER “OBTAIN THE”.

THIS WILL MAKE IT AN OFFENCE FOR A PERSON TO OBTAIN THE REGISTRATION OTHER THAN IN ACCORDANCE WITH THE REGULATIONS.
CLAUSE 13
THIS CLAUSE PROVIDES FOR A NEW REGULATION 17 TO BE INSERTED AFTER REGULATION 16.

REGULATION 17 PROVIDES FOR TRANSTIONAL MATTERS FOR ADOPTION OF CHILDREN ACT 2006.

THE REGULATION ALLOWS FOR REGULATIONS, AS AMENDED BY THE ADOPTION OF CHILDREN AMENDMENT ACT 2006, TO APPLY TO AN ADOPTION MADE BEFORE, ON OR AFTER THE COMMENCEMENT OF THE ACT.

IT ALSO MAKES PROVISION FOR ADOPTIONS THAT OCCURRED BEFORE THE COMENCEMENT OF THE ACT, ON OR BEFORE OR AFTER 3 MAY 1994.
CLAUSE 14
AMENDMENT OF SCHEDULE

THIS CLAUSE ALLOWS THE CURRENT FORMS 5 AND 6 TO BE OMITTED AND SUBSTITUTED WITH NEW FORMS 5 AND 6.

 


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