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Review of the Adoption Act 1984: Consultation Paper

  • Posted on August 10, 2016

8. Information and identity

Introduction

8.1 This chapter considers three issues central to an adopted person’s identity:

• the ability to obtain information about an adoption

• how an adopted person’s identity is reflected on their birth certificate

• the ability to change a child’s name when they are adopted.

8.2 These issues also affect birth parents, adoptive parents and other parties.

8.3 The Adoption Act 1984 (Vic) gives adopted people, parents, adoptive parents and other people rights to obtain information about an adoption. The ‘information provisions’, introduced in 1984, were a major reform, both in Victoria and Australia.[1] The terms of reference ask the Commission to review the information provisions and consider whether there are any gaps in the legislation. This is discussed in the first part of the chapter.

8.4 The Commission cannot consider submissions about ‘contact statements’, which were introduced in 2013 to prohibit parents of an adopted person contacting the person against their wishes (see Chapter 2). Contact statements were removed in 2015 and are excluded from the Commission’s review (see Chapter 1).

8.5 The terms of reference ask the Commission to consider whether there should be any changes to how an adopted person’s identity is reflected on their birth certificate. Adopted people, birth parents and adoptive parents have views about this and there have been some recent recommendations for reform. These are discussed in the second part of the chapter.

8.6 The third part of the chapter considers a related question: whether adoptive parents should be able to change the name of the child they adopt.

Language used in the chapter

8.7 The information provisions give rights of access to information on the basis of specified terms. These include ‘natural parent’, ‘natural relative’ and ‘natural child’.[2] To avoid confusion, this chapter uses the terms used in the legislation (including the parts of the chapter that do not relate to the information provisions). The definitions of these terms are set out below at [8.18]–[8.30].

Information provisions

8.8 The information provisions in the Adoption Act give certain people access to adoption information. They also provide a process for obtaining the information, and include provisions intended to protect people’s privacy.

8.9 The Commission is required to consider whether there are any gaps in the information provisions. The following sections discuss:

• why the information provisions exist

• how the information provisions operate

• the process of seeking adoption information

• people’s rights to adoption information and the limitations on those rights

• how the information provisions affect people’s right to privacy

• lack of clarity in the provisions relating to the release of adoption information.

The need for information

8.10 Information about adoptions is private, and access to this information is restricted by the Adoption Act.[3]

8.11 The information provisions provide rights to information for particular people involved in and affected by an adoption. They include the adopted person and their natural parents, natural relatives, adoptive parents and natural children.

8.12 Information about their adoption and origins is crucial to an adopted person’s sense of identity.[4] At different points in their lives, as they grapple with questions about their identity and background, adopted people may want to understand who their natural parents were and why they were adopted. They may want to know about, and possibly make contact with, their families of origin.

8.13 Natural mothers and natural fathers may want to know what has happened in the life of the adopted person and to re-connect with them. A natural grandparent, uncle or aunt may also seek information about, or want contact with, the adopted person. A sibling may want to find a brother or sister who was adopted.

8.14 Adoptive parents may need information about an adopted child’s family medical history, or information that might help explain the adoption to their child.

8.15 An adopted person’s children might want to find out about their parent’s adoption and the families they are connected to but do not know.

8.16 The information provisions were introduced to make this information available. However, the rights to information are not identical and access to it is regulated. The information provisions regulate:

• who is entitled to receive adoption information

• what information they can receive

• how they receive it

• when they can and cannot have access to it.

8.17 These points are discussed below.

Who has rights to adoption information?

8.18 The Adoption Act specifies who has rights to adoption information. They are:

• adopted people

• natural parents of adopted people

• adoptive parents of adopted people

• natural children of adopted people

• natural relatives of adopted people.

8.19 Each of these groups of people, other than adoptive parents, is defined by the Adoption Act, as set out below. People in each group made requests for information in 2014–15. In that year, 616 requests were made.[5]

Adopted person

8.20 The term ‘adopted person’ includes a person adopted under the Adoption Act or Victoria’s previous adoption legislation.[6] This means a person adopted before 1984 has the same rights to information as someone adopted under the Adoption Act.

8.21 A large proportion of adopted people who seek information about their adoption were adopted before the Adoption Act came into effect.[7]

8.22 Adopted people made the majority of requests for information in 2014–15 (429 requests out of the total 616).[8]

8.23 An adopted person will only know to use the information provisions if they know they were adopted. Adoptive parents are strongly encouraged to tell their children about their origins, but they are not required to.

Natural parent

8.24 A ‘natural parent’ of an adopted person is a person who is named in the birth registration entry relating to an adopted person.[9]

8.25 A man not named in the birth registration[10] is recognised as a natural parent in certain circumstances,[11] including where:

• The Supreme Court has declared the man is the adopted person’s father under the Status of Children Act 1974 (Vic).[12]

• The Family Court of Australia has made a parenting order in his favour.[13]

• The man satisfies the Secretary of the Department of Health and Human Services (DHHS) ‘that there is prima facie evidence that [he] is the father of [the adopted person]’.[14]

8.26 Natural parents made 69 requests for information in 2014–15. Natural mothers made most of these requests (56).[15]

Natural relative

8.27 A ‘natural relative’ of an adopted person is defined as a grandparent, brother, sister, uncle or aunt who is a blood relation of an adopted person. (The Adoption Act uses the terms ‘whole blood and half-blood’. Chapter 9 considers whether language such as this needs to be updated.)[16]

8.28 This definition means that relations through marriage do not have rights to adoption information.

8.29 Natural relatives made 57 requests for information in 2014–15.[17]

Natural child of an adopted person

8.30 ‘Natural child’ of an adopted person means the adult son or daughter of an adopted person ‘where the relationship is of the whole blood’.[18] This definition excludes step-children and adopted children of an adopted person. As a result, an adult natural child has the right to seek information about their parent’s adoption, but a step-child or adopted child of an adopted person does not have the same right.

8.31 Natural children of adopted people made 50 requests for information in 2014–15.[19]

Other people

8.32 People who do not have rights to adoption information may apply to the County Court for access to adoption information.[20] The Adoption Act does not specify who these people might be. The Court may grant access to the information if:

1. The Secretary or an approved counsellor provides a report.

2. The Court is satisfied that ‘circumstances exist which it make it desirable’ that the applicant receive the information.

8.33 The Adoption Act does not indicate what these circumstances would be.

Should anyone else have rights to adoption information?

8.34 The definitions set out above, particularly the definitions of ‘natural relative’ and ‘natural child’, limit the people who can have access to adoption information. A question arises as to whether the definitions should be expanded to include other people who may have an interest in information about an adoption.

Question

33 Should any other people have rights to adoption information under the Adoption Act? If yes, who should be given these rights and what should their rights be?

What is adoption information?

8.35 The Adoption Act defines the information that people can have access to. It uses a broad term: ‘information about the adopted person’. This means:[21]

information about the adopted person or the natural parents or the relatives of the adopted person which … –

(a) is reasonably likely to be true; and

(b) does not unreasonably disclose information relating to the personal affairs of a natural parent, a relative or any other person.

8.36 The Adoption Act uses the term ‘relative’ in this definition, rather than ‘natural relative’. The term ‘relative’ captures a broader range of people:[22]

a grandparent, brother, sister, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity, and notwithstanding that the relationship depends upon the adoption of any person.

Information about people

8.37 The definition of adoption information therefore enables people to receive information about another person. For example:

• An adopted person or adoptive parent can receive information about a natural parent or a relative of the adopted person.

• Natural parents and natural relatives can receive information about the adopted person.

• A natural child of an adopted person can receive information about a relative of the adopted person.

Non-identifying and identifying information

8.38 The information provisions allow access to:

• general information that does not identify the person, such as information relating to the person’s education, age, nationality, health and general physical appearance

• information that identifies the person or could lead to a person being identified.

8.39 The first type of information is referred to as ‘non-identifying information’. The second type of information is referred to as ‘identifying information’.[23] Identifying information can also include a person’s whereabouts.[24]

8.40 Nearly 90 per cent of requests for adoption information in 2014–15 were for identifying information.[25] Most of these were made by adopted people.[26] Natural parents and natural children of adopted people also sought identifying information.[27]

8.41 Natural relatives made the majority of requests for non-identifying information (more than 80 per cent).[28] As discussed below at [8.60]–[8.61], there are limits on natural relatives’ rights to identifying information. Adoptive parents also made a small number of requests for non-identifying information in 2014–15.[29]

Information in records

8.42 Information about adoptions is contained in adoption records and court records.

The Commission understands that records are held across DHHS, approved agencies, the County Court and the Registry of Births, Deaths and Marriages (BDM).[30]

How do people gain access to adoption information?

8.43 The Adoption Act creates a process for people to search for adoption information and family members. It establishes an ‘adoption information service’ within DHHS and approved agencies.[31] A person seeking adoption information contacts an adoption information service.[32] The Adoption Act imposes duties on the adoption information service to assist and support people with their searches.[33]

Registration

8.44 The adoption information service registers the person seeking the information on a statewide ‘adoption information register’.[34] The adoption information register records the names and addresses of people who have used an adoption information service or asked to register their information.[35] It records their wishes about whether they agree to:

• their information being disclosed if a request is made about them

• being contacted by a party to the adoption (adopted person, natural parent, adoptive parent) or person related to the adoption (relative or natural child of the adopted person).[36]

Searches

8.45 The adoption information services carry out searches to locate the information the person is seeking.[37] If the information is not contained in records they hold, they must make ‘reasonable enquiries’ to obtain it.[38] The Adoption Act describes these as:

such reasonable enquiries as in all the circumstances of the case ought reasonably to be made for the purposes of obtaining the information.

8.46 The searches typically involve requests to another agency, such as BDM.[39]

8.47 An adoption information service must provide the information it holds or obtains if the person is entitled to the information under the Adoption Act.[40]

Interview

8.48 When the information is found, it is provided to the person in an interview with ‘an approved counsellor’.[41] The counsellor explains the rights under the information provisions and how people can be affected by learning information about an adoption.

8.49 The interview is a mandatory part of the process. The adoption information service cannot provide the information unless the person attends an interview (or an exception applies).[42]

Finding family members

8.50 The adoption information service can provide further assistance to find and make contact with a person’s family member. It can approach the person and assist with facilitating contact between the parties.[43]

8.51 However, the adoption information service does not have to be involved. People may undertake their own searches, using the information they have received, and try to make contact with the other party directly. Issues that can arise when this happens are discussed in the section on privacy at [8.62].

8.52 The Commission is interested in hearing about people’s experiences of using the adoption information services and, in particular, whether they have encountered any problems that might require legal changes to be considered.

Question

34 Do any problems arise when people seek adoption information through an adoption information service? If yes, what are the problems and what legal changes, if any, are required to address them?

Rights to information

8.53 The information provisions give people rights to:

• request information (the Adoption Act describes the request as an ‘application to a relevant authority’)[44]

• receive the information if all requirements in the Adoption Act are complied with.[45]

Limitations on rights

8.54 There are limitations on people’s rights to receive adoption information. Some limitations apply in all (or most) situations, whether the information sought is identifying or non-identifying. The mandatory interview discussed above is an example. Generally a person cannot receive any information (identifying or non-identifying) without attending an interview.[46] Another limitation that applies in all cases is that a person is not entitled to any information which ‘unreasonably discloses the personal affairs’ of another person.[47]

8.55 Some limitations apply only to requests for identifying information about another person. The main type of limitation in these situations is the need for a person’s consent, discussed below.

Identifying information and consent

8.56 In some cases where a person seeks identifying information about another person, the information cannot be given without the person’s written consent.[48] However, a person’s consent is not required in all cases where identifying information is requested. Whether consent is required generally depends on who is seeking the information and who the information relates to.[49]

8.57 An adopted person aged 18 or over can generally receive identifying information about a natural relative without the relative’s consent.[50] However, a natural relative cannot obtain identifying information about the adopted person unless the person consents

to the information being given.[51]

8.58 The consent requirement means that, if consent is not given (because a person refuses to give consent or because the person cannot be found), the person seeking the information is denied access to it. In this situation the person can apply to the County Court for access to the information.[52]

8.59 In some situations a person can consent to the disclosure of the information on certain conditions.[53] In some cases the adoption information service must comply with the conditions.[54] In other situations it has a discretion to withhold information, to give effect to any conditions put on the consent.[55]

Other limitations

8.60 Other specific limitations may apply, depending on the situation. For example:

• An adopted child’s wishes must be taken into account when a natural parent seeks identifying information about the child.[56] An adoption information service can withhold information to give effect to the child’s wishes.[57]

• An adult adopted person must be notified about certain requests for information. For example, an adoption information service must notify an adopted person if it intends to give identifying information about a natural parent to the person’s adoptive parents.[58]

• A natural relative can have access to identifying information about an adopted person or their adoptive parents only where ‘circumstances exist which make it desirable’.[59]

• An adopted child needs the consent of their adoptive parents to seek any information, identifying or non-identifying.[60] [61][62] [63][64]

Different rights

8.61 Because different limitations apply, people have different rights to adoption information. A full description of the rights of each type of person and the limitations on their rights is set out in Appendix B. A summary of key rights to information is provided in Table 3.

Table 3. Summary of rights to information

Person

Rights to information about another person

Adult adopted person (over 18)

Can receive identifying information about a natural parent

or a natural relative without their consent.

Adopted child (under 18)

Cannot receive any information (identifying or non-identifying) without adoptive parents’ agreement.

Identifying information about a natural parent can only be given if the natural parent consents to the disclosure.61

Natural parent

Can receive identifying information about an adult adopted person and adoptive parent without their consent.

Identifying information about an adopted child can only

be given if each adoptive parent consents to the disclosure.62

The child’s wishes must also be considered.

Adoptive parent

Identifying information about a natural parent can only be given if the natural parent consents.63

Natural relative

Identifying information about an adopted person or adoptive parent cannot be given unless ‘circumstances exist which make [the disclosure] desirable’.64

Consent requirements apply.

Adult children of adopted person

Can receive identifying information about a natural parent or a natural relative of the adopted person without the parent or relative’s consent.65 The adopted person must be notified.66

Question

35 Are the rights to adoption information and the limitations on those rights fair to all people involved in the adoption process? If not, what changes are needed?

Privacy

8.62 Privacy is important for many people affected by adoption, who may not want information about them disclosed or contact from another party.[65][66]

8.63 Privacy is protected in Victorian law. The Charter of Human Rights and Responsibilities Act 2006 (Vic) contains a right to privacy.[67] The Privacy and Data Protection Act 2014 (Vic), which applies to the adoption information services, protects people’s personal information.

8.64 However, protection of privacy is not absolute. The right to privacy in the Charter is limited to protection from unlawful or arbitrary interference with a person’s privacy.[68]

The Privacy and Data Protection Act gives way to other laws, such as the Adoption Act, which allow personal information to be disclosed.[69]

8.65 The information provisions in the Adoption Act authorise and require disclosure of identifying information about a person. The Adoption Act also contains provisions which seek to balance the rights of one person to have information relating to an adoption with another person’s right to privacy.

8.66 The Adoption Act states that a person is not entitled to any information about the personal affairs of someone else unless the Adoption Act allows it.[70]

8.67 The privacy protections in the Adoption Act include the consent requirements discussed above and the ability to record wishes about contact and disclosure of information on the information register.[71] A person’s name and address on the information register cannot be disclosed unless the Adoption Act permits it.[72] Adoption information services must ensure that any information given does not ‘unreasonably’ disclose ‘the personal affairs’ of a natural parent, relative or any other person.[73]

8.68 However, in some situations the protection of privacy is limited, for example where:

• An adult adopted person seeks identifying information about a natural parent or a relative.

• A natural parent seeks identifying information about an adopted person.

8.69 In these cases, the identifying information can be released without the consent of the other party (see Table 3 above).[74] The information can be released even if the person has recorded on the adoption information register that they do not want information disclosed or contact from another party.[75] The person cannot prevent the release of the information.

8.70 The information can be given without the person’s knowledge, because (except in limited cases)[76] there is no requirement in the Adoption Act that people be notified about a request for information relating to them.[77] Nor is there a requirement that wishes recorded on the adoption information register be conveyed to the person requesting the information. The Commission understands this would generally happen in practice, but if a person is told about those wishes, the wishes may not be respected.[78]

8.71 This means unwanted contact can occur. For example, an adopted person could obtain identifying information about a natural parent without the natural parent’s knowledge. The adopted person could then make contact with the natural parent. If the contact is not welcome, this could be a highly distressing situation for all concerned.

8.72 The Commission is interested in the community’s views about whether the Adoption Act strikes a fair and reasonable balance between the rights of people seeking adoption information and the privacy rights of people affected by a request for information.

Questions

36 Is the balance in the Adoption Act between providing access to information and protecting people’s privacy appropriate? If not, what changes are needed?

37 What factors should be taken into account in deciding to release identifying information about a person?

The release of information

8.73 This section discusses issues that could arise when decisions are made about the release of adoption information. The provisions that apply in these situations are not always clear.

Decisions by adoption information services

8.74 When handling a request for information, an adoption information service must determine whether the person is entitled to the information under the information provisions.

8.75 This decision might be difficult. Depending on the circumstances, it can be difficult to determine whether information is ‘identifying’ or ‘non-identifying’ information under the Adoption Act. For example, while a person’s date of birth alone may not identify the person, in combination with other pieces of information, it could lead to the person being identified.

8.76 The decision whether information is ‘identifying’ or ‘non-identifying’ is important because it could mean that a person’s consent is required before the information can be released (see the section beginning at [8.56] above). However, there is little guidance in the Adoption Act about what identifying information is.[79]

Decisions by other agencies

8.77 Complications could arise when an adoption information service requests information from another agency.

8.78 Agencies must comply with a request for information from the Secretary ‘so far as [they are] able to do so’.[80] These words leave room for interpretation. An agency may hold the required information but consider there are legal and policy reasons which prevent its release.[81]

Question

38 Should the provisions of the Adoption Act relating to the release of adoption information be made clearer? If yes, what changes are needed?

Birth certificates

8.79 This section discusses how an adopted person’s identity is reflected on their birth certificate. The terms of reference ask the Commission to consider this issue, which is important for many adopted people, parents and adoptive parents.

The issues

8.80 Birth certificates are significant documents.[82] They provide legal proof of a person’s identity[83] and are the primary form of identification used in a wide range of situations, including school enrolments and passport applications. They are evidence of parental responsibility for a child.[84]

8.81 A birth certificate tells the story of a person’s beginnings. It is a record of a person’s birth and includes details such as when and where a person was born, the names they were given, who their parents are and the families they belong to. This aspect of a birth certificate has particular significance for adopted people and their natural parents.

8.82 When a child is adopted, a new birth certificate is created. It replaces the child’s original birth certificate, which is no longer valid. The new certificate looks like the birth certificate of every other person. It names the adoptive parents as the child’s parents and does not mention the parents to whom the child was born.

8.83 This reflects the legal effect of adoption. As discussed in Chapter 3, the adoptive parents become the child’s parents and the law treats the child as if the child were born to them.[85]

8.84 Thus, the birth certificate does not reflect that an adopted person is part of two families. For some adopted people, this means a crucial part of their identity and origins is not reflected on the birth certificate—the main official record of their identity. It is also significant to some natural mothers and fathers, because their relationship with the adopted person is not reflected on the birth certificate. For them, this represents an extinguishment of their fundamental connection with the child.

8.85 The concerns of adopted people and natural parents were expressed to the 2012 Senate Community Affairs References Committee on Commonwealth Contribution to Former Forced Adoption Policies and Practices.[86] It ‘heard evidence from both adopted people and mothers saying that the truthful recording of a birth was fundamental to a person’s identity’.[87] It referred to the anguish caused to adopted people and natural mothers and fathers.[88]

8.86 The 2015 review of South Australia’s adoption law (discussed in earlier chapters) heard similar concerns and reported adopted people’s feelings of identity confusion and ‘pain’.[89]

8.87 Both the Senate Committee and South Australian review recommended changes. These are discussed below at [8.100]–[8.101]. The following sections discuss the historical background and the relevant law in Victoria.

Historical background

8.88 Victoria’s earliest adoption legislation, the Adoption of Children Act 1928 (Vic), ‘provided adopted children with a new birth certificate naming the adoptive parents as [the child’s parents]’.[90] The new certificate was a copy of information entered into an ‘Adopted Children Register’ when a child was adopted.[91] The original birth certificate was not available, ‘except under an order of a court’.[92]

8.89 The same practices continued under the Adoption of Children Act 1958 (Vic)[93] and Adoption of Children Act 1964 (Vic).[94]

8.90 When the Adoption Legislation Review Committee reviewed Victoria’s adoption law in 1983 (see Chapter 2), the committee considered what form an adopted person’s birth certificate should take. Its view was that an adopted person’s birth certificate should look identical to every other person’s birth certificate:[95]

The Committee has concluded that a birth certificate for an adoptee should not differ in format or content (apart from the schedule Number) from the birth certificate of a natural born child. While the Committee considers that adoption should be an open matter, disclosure of the person’s status should be a matter for the choice of that person and/or his/her adoptive parents and not inevitable through the production of the birth certificate. Further, the fact that a person is adopted is irrelevant to many people to whom a birth certificate may need to be produced.

8.91 The Committee’s view was reflected in the 1984 Adoption Act, which followed the same approach as the previous legislation,[96] but enabled adopted people to have access to their original birth certificate on turning 18.[97]

Birth certificates in Victoria today

8.92 Current law does not require birth certificates in Victoria to be in any particular form.[98] The main legislation that relates to birth certificates in Victoria, the Births, Deaths and Marriages Registration Act 1996 (Vic) (BDMR Act), leaves the form of birth certificates to the discretion of the Registrar of Births, Deaths and Marriages (BDM).[99] There is no provision in the BDMR Act that relates specifically to the birth certificates of adopted people.[100]

8.93 The Adoption Act contains a number of provisions relating to adopted people’s birth records and birth certificates.[101] These provisions are similar to those in Victoria’s previous adoption legislation. They require:

• the County Court to send a record of the adoption order (called a memorandum of adoption order) to the Registrar of BDM[102]

• the Registrar to record details of the adoption in the BDM register,[103] including:[104]

• the child’s date and place of birth and name under the adoption order

• the adoptive father’s given and family names and age when the child was born

• the adoptive mother’s given names, family name and maiden name and age when the child was born

• the Registrar to mark the birth registration entry that relates to the child with the word ‘adopted’.[105]

8.94 The new information supersedes the original birth registration entry containing the details of the child’s natural parents. That entry, marked ‘adopted’, is closed.[106] The new entry becomes the current record of the child’s birth. It provides the information that goes onto the child’s new birth certificate.[107]

8.95 The adopted person can obtain the original birth certificate under the Adoption Act when the person turns 18,[108] but it cannot be used as valid proof of identity.[109]

Only the post-adoption birth certificate can be used for identification purposes.

8.96 Some options for change are discussed in the next section.

Options and considerations

8.97 The Commission’s terms of reference require it to consider alternative ways of reflecting an adopted person’s identity on a birth certificate. This section considers some possible options for reform and some of the factors that will need to be taken into account.

8.98 There are different views about how this should be done. Origins Victoria suggested to the Senate Committee that an adopted person have two certificates, the original birth certificate and post-adoption birth certificate, both legally valid.[110]

8.99 The Senate Committee expressed concerns about this suggestion. It considered that ‘risks of security, fraud and identity theft’ could arise if a person had two ‘legally valid identity documents’.[111]

8.100 The South Australian review recommended that a birth certificate ‘reflect the “truest possible” account’ of a child’s birth history, but did not recommend a particular way of doing this.[112]

Integrated birth certificates

8.101 The Senate Committee recommended the introduction of an ‘integrated birth certificate’ that records both the natural and adoptive parents of an adopted person.

It recommended that:

all jurisdictions adopt integrated birth certificates, that these be issued to eligible people upon request, and that they be legal proof of identity of equal status to other birth certificates.[113]

8.102 The Victorian Government responded to this recommendation in 2012 with ‘support for the development of an integrated birth certificate in conjunction with national reforms relating to documentation and provisions of birth and adoption records’.[114]

8.103 New South Wales legislation is consistent with the Senate Committee’s recommendation.[115] An adopted person can receive an ‘adopted person’s birth record’.[116] This is a ‘single certificate’ that certifies details about both birth and adoption.[117] The Commission understands it cannot be used for identification purposes.

8.104 The view of the Victorian Registry of Births Death and Marriages (BDM) is that the BDMR Act does not enable BDM to issue an integrated document with the legal status of a birth certificate.[118] In addition, the Commission understands that it is not currently technically possible for BDM to produce integrated birth certificates from the BDM Register. BDM is considering the feasibility of creating integrated birth certificates as part of specifications for a replacement IT system, due to be implemented in 2017.[119]

Birth certificates of donor-conceived people

8.105 In 2007, the Commission considered birth certificates for people conceived through donor treatment procedures, in its report on assisted reproductive technology (ART) and adoption.[120]

8.106 In 2008, Parliament enacted a provision relating to the birth certificates of donor-conceived people, in the BDMR Act.[121]

8.107 The Commission’s views in the 2007 report and the reasons behind the BDMR Act provision are relevant to this discussion and outlined below.

Commission’s 2007 report on ART and adoption

8.108 The Commission received submissions about the form of birth certificates from donor-conceived people and people involved in adoption. People in both groups considered ‘that birth certificates should always display the names of a child’s genetic parents, to reflect the biological truth about his or her parentage, and to guard against the secrecy that has historically accompanied donor conception and adoption’.[122] Some submissions from donor-conceived people argued for the donor’s details to be included on their birth certificates. Other submissions suggested that donor-conceived people should have two birth certificates: ‘one that records all the relevant information about a child’s parentage, and another that contains only the information which is required for official purposes’.[123]

8.109 The Commission considered these arguments and concluded that no change should be made to the birth certificates of donor-conceived people, due to ‘the primary role that birth certificates play as documents with legal consequences’.[124] The report stated:[125]

Having regard to these consequences, the Commission believes that only those people who are recognised as the legal parents of the child should be named on the birth certificate … A donor should not be recorded on the register of births or on a child’s birth certificate.

Although birth certificates do have symbolic value for many people, that is not their primary purpose. To include information on the birth certificates that does not give rise to legal obligations and which does not assist in identifying a person for legal and administrative purposes would create confusion about a person’s legal status in respect of the child. This could lead to problems with organisations such as government agencies, schools and health providers. It is also likely that a birth certificate listing such information would not be accepted for official purposes both within Australia and internationally.[126]

Amendment to BDMR Act in 2008

8.110 Parliament passed legislation in response to the Commission’s 2007 report.[127] This included a provision relating to the birth certificates of donor-conceived people.[128]

8.111 This provision requires that when the Registrar issues a birth certificate relating to the birth of a person conceived by a donor treatment procedure,[129] the Registrar must attach an addendum to the certificate stating that ‘further information is available’ about the person’s birth.[130]

8.112 The provision was introduced to ensure that information about the person’s genetic origins is available to them.[131] Members of Parliament who supported the provision considered donor-conceived people were entitled to this information about their identity and background. They intended that the provision would encourage parents to be open with their donor-conceived children about the children’s origins.[132]

8.113 Supporters of the provision also stressed that it did not create a different form of birth certificate, but simply indicated on a separate document that further information was available.[133] They considered it important that the birth certificates of donor-conceived people be indistinguishable from other birth certificates, to respect their privacy and avoid possible discrimination.[134] Some speeches spoke of not repeating past practices such as ‘Sixth Schedule’ birth certificates, which had provided a ‘subtle’ or ‘cryptic’ indication that a person had been adopted.[135]

Considerations

8.114 The function of a birth certificate must be considered as well as its form. A birth certificate is relied upon for many purposes as legal proof of a person’s identity. There is a question whether an integrated birth certificate, or another form of birth certificate, should or can be used for this purpose.

8.115 The Commission must ensure any recommendations for change are practical and do not give rise to the kinds of potential problem identified in the 2007 ART and adoption report and the Senate Committee’s 2012 report. It is also important that any recommendation can be implemented operationally. These considerations need to be taken into account.

8.116 It must be clear who has legal responsibility for a child, as the Commission noted in its 2007 report.[136] It is important that adoptive parents are able to clearly establish  their role as parents.

8.117 Adopted people, natural parents and adoptive parents all have an interest in this issue. The Commission seeks their views, and those of the wider community, in response to the questions below.

Questions

39 How should an adopted person’s identity be reflected on their birth certificate?

40 If a different form of birth certificate were available to adopted people, what legal status should it have?

41 Are there any problems with introducing integrated birth certificates or another form of birth certificate? If yes, what are the problems and how could they be addressed?

Changing the adopted child’s name

8.118 This section considers the ability under the Adoption Act of adoptive parents to change the given names of the child they adopt.[137]

8.119 A child’s name is central to their identity. It may provide a connection to the child’s family of origin and cultural background. Article 8 of the United Nations Convention on the Rights of the Child states that every child has a right ‘to preserve his or her identity, including nationality, name and family relations’.[138] A guiding principle in the New South Wales Adoption Act is that:[139]

the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.

8.120 The court must consider this principle before approving a change to the given names of children who are more than one year old or non-citizen children.[140]

8.121 In Victoria, an adopted child’s name may change under the Adoption Act. The child’s family name usually changes to the adoptive family’s surname, provided the County Court approves.[141] The child’s given names may also change if the adoptive parents request it in the application for the adoption order, and if the County Court approves.

8.122 Before approving a change of given name, the Court must be satisfied that, as far as practicable given the child’s age and level of understanding, the wishes and feelings of the child have been ascertained and given due consideration.[142] The Court must also have regard to the overarching principle that ‘the welfare and interests of the child’ are the ‘paramount consideration’.[143]

8.123 South Australia’s law is similar to Victoria’s, except that it requires that a child over 12 consent to a change of name (unless the child is ‘intellectually incapable of consenting’).[144]

8.124 The recent South Australian review recommended that this law be changed to ensure a child’s name is retained unless ‘special circumstances’ apply.[145] It considered that:

[a] child’s first name should always be retained except in special circumstances such as where the Court is convinced that the child’s name may be offensive in English, or where the child may have the same name as a child already in the family.

8.125 It suggested that where one of those special circumstances applied, ‘the family should use a second name or select a name that is of significance in the child’s birth family if that can be known’.

8.126 In the Australian Capital Territory a child’s name can only be changed in ‘exceptional circumstances’.[146] The legislation gives the following example:

An exceptional circumstance would be if the given name is likely to make the child or young person vulnerable to ridicule or teasing in everyday life in Australian society.

8.127 The Commission seeks community views regarding the ability to change an adopted child’s given names under the Adoption Act.

Questions

42 Is changing a child’s given names consistent with the best interests of the child?

43 In what circumstances (if any) should the Adoption Act allow a child’s given names to be changed?

  1. The information provisions are contained in Part VI of the Adoption Act 1984 (Vic), ‘Access to information’. Victoria was the first jurisdiction in Australia to introduce information provisions. See, eg, Department of Health and Human Services, Government of Victoria, Adoption: Myth and Reality – Family Information Networks and Discovery Service Victoria (2015) 8 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>; Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) 184.

    ↑

  2. The report of the Adoption Legislation Review Committee, on which the Adoption Act 1984 (Vic) is based (see Chapter 2), uses this language throughout the report.

    ↑

  3. See, eg, Adoption Act 1984 (Vic) ss 83, 85, 107; Supreme Court (Adoption) Rules 2015 (Vic) r 24. See Chapter 2 for a history of secrecy surrounding adoption and the development of open adoption. See also Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) 37, 171–3; Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 73.

    ↑

  4. Article 7 of the United Nations Convention on the Rights of the Child states that every child has a right to know his or her parents: Convention on the Rights of the Child 1990, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 7(1). See also, eg, Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 2, 85, 90–1; Department of Human Services, Government of Victoria, ‘Stepchildren and Adoption: Information for Parents and Step-parents’ (2009); Information for parents considering adoption of their child (2008) 8; Adoption and Permanent Care Learning Guide (Part 1 ‘Introduction’) 17; (Part 2 ‘Infant Adoption’) 41; (Part 4 ‘Special Issues’) 26–29: all documents at <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>; Department of Health and Human Services, Government of Victoria, Adoption: Myth and Reality – Family Information Networks and Discovery Service Victoria (2015) 11–12 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>; Pauline Kenny and Daryl Higgins, ‘Past Adoption Practices: Key Messages for Service Delivery Responses and Current Policies’ in Alan Hayes and Daryl Higgins (eds), Families, Policy and the Law (Australian Institute of Family Studies, 2014) 29, 31–35.

    ↑

  5. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 31–2.

    ↑

  6. Adoption Act 1984 (Vic) s 82 (definition of ‘adopted person’). Former wards of the state (known as ‘Forgotten Australians’) are not included in the Adoption Act. They may seek access to records relating to them through the Freedom of Information Act 1982 (Vic): Department of Human Services, Government of Victoria, Former Victorian Wards of the State (14 May 2015) <http://www.dhs.vic.gov.au/for-individuals/applying-for-documents-and-records>.

    ↑

  7. Nationally in 2014–15, the majority of adopted people seeking information (87%) were aged 35 and over, and most of these were aged 45 and over: Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 30–2.

    ↑

  8. Adopted people made 429 requests for identifying information in 2014–15, making up nearly 75% of the total number of requests for identifying information (548) and nearly 70% of the total number of requests (616): ibid 30. ‘Identifying information’ and ‘non-identifying information’ are explained at [8.38]–[8.39].

    ↑

  9. Adoption Act 1984 (Vic) s 82 (definition of ‘natural parent’).

    ↑

  10. During the era of forced adoptions in the 1950s–1970s, fathers were commonly not identified and therefore not named in birth registrations: Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) 12, 249, 252–4.

    ↑

  11. Adoption Act 1984 (Vic) s 82 (definition of ‘natural parent’).

    ↑

  12. Status of Children Act 1974 (Vic) ss 9–10;

    ↑

  13. See Chapter 3 for information about parenting orders.

    ↑

  14. Adoption Act 1984 (Vic) s 82 (definition of ‘natural parent’). This applies to sections 95, 96 and 103 of the Adoption Act.

    ↑

  15. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 30.

    ↑

  16. Adoption Act 1984 (Vic) s 97(1).

    ↑

  17. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 31.

    ↑

  18. Adoption Act 1984 (Vic) s 96A.

    ↑

  19. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 30.

    ↑

  20. Adoption Act 1984 (Vic) s 100.

    ↑

  21. Ibid s 91.

    ↑

  22. Ibid s 4 (definition of ‘relative’). This definition uses the language of the Adoption of Children Act 1964 (Vic), which defined ‘relative’ as ‘a grandparent, brother, sister, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity, and notwithstanding that the relationship is traced through, or to, an illegitimate person or depends upon the adoption of any person’: s 4.

    See Chapter 9 for a discussion about whether language in the 1984 Adoption Act needs updating.

    ↑

  23. These terms are not used in the Adoption Act 1984 (Vic). The Adoption Act describes identifying information in language such as ‘information about the adopted person from which the identity of either of the natural parents … may be ascertained’ (s 94(1)(b)) and ‘information about the adopted person from which the adoptive parents … may be identified or the whereabouts of the adopted person ascertained’ (s 96(1)(b)). It describes non-identifying in language such as ‘information about the adopted person (other than information from which whether directly or indirectly the adoptive parents … may be identified or the whereabouts of the adopted person ascertained)’ (s 96(1)(b)).

    ↑

  24. See, eg, Adoption Act 1984 (Vic) ss 93(2), 96(1)(b), 96A(4), 97(2)(b). Whether identifying information encompasses information about

    a person’s whereabouts in all cases is unclear.

    ↑

  25. A total of 616 requests for information were made in 2014–15, of which 89% (548) were for identifying information and 11% (68) were for non-identifying information: Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 30.

    ↑

  26. Adopted people made 429 requests for identifying information: ibid 30.

    ↑

  27. Natural mothers made 56 requests for identifying information, natural fathers made 13 requests, and natural children made 50 requests: ibid 30.

    ↑

  28. Of the 68 requests for non-identifying information, natural relatives made 57 requests, adoptive mothers made 6 requests and adoptive fathers made 5 requests: ibid 31.

    ↑

  29. Ibid.

    ↑

  30. See, eg, Adoption Act 1984 (Vic) ss 79A–79B, 83, 85–86. Section 79A states that the Registrar of BDM ‘has the management and control of any records concerning adoptions which are in the possession of the County Court, Supreme Court and Magistrates’ Court’.

    ↑

  31. Ibid s 102. The service within DHHS is called Family Information Networks and Discovery (FIND): Department of Health and Human Services, Government of Victoria, Adoption: Myth and Reality – Family Information Networks and Discovery Service Victoria (2015) 8 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>. There is some variation across agencies in the practices of the adoption information services.

    ↑

  32. Other organisations such as the Victorian Adoption Network for Information and Self Help (VANISH) also assists people searching for information or family members. See Chapter 9 for more information. See also Department of Health and Human Services, Government of Victoria, Adoption: Myth and Reality – Family Information Networks and Discovery Service Victoria (2015) 10–11 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

  33. Adoption Act 1984 (Vic) ss 102, 104.

    ↑

  34. Ibid ss 102–103.

    ↑

  35. Ibid s 103(a).

    ↑

  36. Ibid s 103(b); Department of Health and Human Services, Government of Victoria, Access to Information about an Adoption: Information Sheet for Adopted Persons, Natural Parents and Other Family (2015) 3–4 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

  37. Department of Health and Human Services, Government of Victoria, Access to Information about an Adoption: Information Sheet for Adopted Persons, Natural Parents and Other Family (2015) 3 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

  38. Adoption Act 1984 (Vic) s 90(1)(b).

    ↑

  39. Section 79B of the Adoption Act 1984 (Vic) states that a ‘relevant authority’ (ie an adoption information service) ‘may apply to the Registrar [of BDM] for copies of or information contained in any records of the County Court, Supreme Court or Magistrates’ Court which are in the custody of the Registrar’. It requires the Registrar to give the information, if it is in the Registrar’s possession or control. Section 90(2) states that an approved agency’s adoption information service may request the Registrar to provide any information in the BDM Register relating to births, deaths and marriages of an adopted person’s natural parents or natural relatives. However, in this instance, the Adoption Act does not require the Registrar to provide the information.

    ↑

  40. Ibid s 90.

    ↑

  41. Ibid s 87. An approved counsellor is a counsellor approved by the Secretary of DHHS: ss 4 (definition of ‘approved counsellor’), 5. The counsellor must be an officer or employee of DHHS, employed by an approved agency or a person who the Secretary considers has appropriate qualifications and experience. See also Department of Health and Human Services, Government of Victoria, Adoption: Myth and Reality – Family Information Networks and Discovery Service Victoria (2015) 10; Access to Information about an Adoption: Information Sheet for Adopted Persons, Natural Parents and Other Family (2015) 3: both documents at <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

  42. The requirement does not apply if the adopted person and a natural parent have ‘already exchanged information which may identify

    that natural parent or a relative of the adopted person’: Adoption Act 1984 (Vic) s 87(3).

    ↑

  43. Department of Health and Human Services, Government of Victoria, Adoption: Myth and Reality – Family Information Networks and Discovery Service Victoria (2015) 11 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>. See also Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 100.

    ↑

  44. A relevant authority includes the Secretary of DHHS and an approved agency: Adoption Act 1984 (Vic) s 82 (definition of ‘relevant authority’). An adoption information service receives applications for information: s 102(c).

    ↑

  45. As stated at [8.47], the Adoption Act 1984 (Vic) requires information in the possession or control of the Secretary or an approved agency

    to be given to the person requesting the information, if all the Act’s requirements have been complied with: s 90.

    ↑

  46. Adoption Act 1984 (Vic) s 87. The exception is set out at fn 42 above. The requirement in the Adoption Act differs from the counselling requirement in the Assisted Reproductive Treatment Act 2008 (Vic). Under that Act, the Registrar of BDM cannot release identifying information to a person who has not received counselling but the Registrar is only required to offer counselling to a person seeking non-identifying information:

    s 61.

    ↑

  47. Ibid s 88.

    ↑

  48. To protect people’s privacy: Victoria, Parliamentary Debates, Legislative Assembly, 2 May 1984, 4250 (Pauline Toner, Minister for Community Welfare Services).

    ↑

  49. It can also depend on the type of information requested and whether information is contained in the records held by the adoption information service. For example, a person’s consent might be required if information would disclose the person’s whereabouts and it is not contained in the records held by the adoption information service. See fn 50 below and Appendix B for more information.

    ↑

  50. Adoption Act 1984 (Vic) s 93(1). There is one exception to this, where the information would reveal the natural relative’s whereabouts and the information is not contained in the records held by the adoption information service: s 93(2)(b).

    ↑

  51. Ibid ss 97(2)–(3).

    ↑

  52. Ibid s 99.

    ↑

  53. See, eg, ibid ss 93(2), 95(2)(a)(ii), 96A(4)(d), 97(3)(a), 98(2)(a).

    ↑

  54. See, eg, ibid ss 93(2), 96A(4)(d).

    ↑

  55. See, eg, ibid ss 95(2)(b), 97(3)(b), 98(2)(b).

    ↑

  56. Ibid s 95(2)(a)(i).

    ↑

  57. Ibid s 95(2)(b).

    ↑

  58. Ibid s 98(2)(aa).

    ↑

  59. Ibid s 97(3)(a)(i).

    ↑

  60. Ibid s 94(2).

    ↑

  61. Or the County Court makes an order for the information to be given: Adoption Act 1984 (Vic) s 99.

    ↑

  62. Ibid.

    ↑

  63. Ibid.

    ↑

  64. Ibid s 97(3)(a). The County Court can also order that the information be given: s 99.

    ↑

  65. Ibid s 96A(2).

    ↑

  66. Ibid s 96A(3).

    ↑

  67. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.

    ↑

  68. Ibid. The right is also subject to reasonable limits: s 7(2).

    ↑

  69. Privacy and Data Protection Act 2014 (Vic) s 6(1)

    ↑

  70. Adoption Act 1984 (Vic) s 88.

    ↑

  71. Ibid s 103(3).

    ↑

  72. Ibid s 103(4).

    ↑

  73. Ibid s 91.

    ↑

  74. Ibid ss 90, 93(1).

    ↑

  75. The Adoption Act 1984 (Vic) does not require adoption information services to comply with the person’s wishes. As discussed above, the Act requires the information to be disclosed if the person is entitled to it. See Access to Information about an Adoption: Information Sheet for Adopted Persons, Natural Parents and Other Family (2015) 3 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

  76. An adopted person (adult) must be notified when an adoption information service intends to give identifying information about a natural parent or natural relative to an adoptive parent or adult natural child of the adopted person: see [8.60] above and Adoption Act 1984 (Vic) s 96A(3).

    ↑

  77. By contrast, section 62 of the Assisted Reproductive Treatment Act 2008 (Vic) provides that if the Registrar of BDM ‘intends to disclose identifying information’ to a person entitled to the information under that Act (see Part 6, Division 3), ‘the Registrar must make all reasonable efforts to give notice of the intended disclosure to the person to whom the information relates’.

    ↑

  78. The Adoption Legislation Review Committee recommended that an adoption information service ‘have an obligation to inform [an adopted person] of the wishes of the natural parent regarding contact, if such information is recorded. Contact should not be actively promoted where a natural parent or adult adoptee has indicated that they do not want contact’ (Recommendation 66). See Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 103.

    ↑

  79. As explained at fn 23 above, the Adoption Act 1984 (Vic) does not define ‘identifying information’ and ‘non-identifying information’ or use these terms. The terms are used in the Assisted Reproductive Treatment Act 2008 (Vic). It defines ‘identifying information’ as ‘information from which a person will or may be identified, directly or indirectly’: s 64. See also s 3 (definition of ‘identifying information’). ‘Non-identifying information’ means ‘information other than identifying information’: s 3 (definition of ‘non-identifying information’). The Queensland Adoption Act 2009 (Qld) also uses the terms ‘identifying information’ and ‘non-identifying information’. ‘Identifying information’ means ‘information that identifies a party to an adoption’: s 279. This includes information that is likely to lead to a person being identified: s 248. The Act clarifies that ‘[i]nformation may identify a person, if given to another person, because of other information that the person has or is able to obtain’: s 248. It defines ‘non-identifying information’ as ‘information other than identifying information’:

    s 279.

    ↑

  80. Adoption Act 1984 (Vic) ss 90(1)(a)(ii), 123. See also ss 79B, 90(2) explained at fn 39 above. The Adoption Legislation Review Committee considered that an adoption information service would not be able to ‘operate effectively and without risk of error unless it [had] direct access to [the] records’. It stated: ‘The Adoption Information Service should be given the legal right of access to records at the Government Statist [now the Registrar of BDM] and court adoption records. This may be the only way by which information on a particular child can be ascertained’. See Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 98.

    ↑

  81. For example, BDM has a policy relating to access to its records: Births, Deaths and Marriages Registration Act 1996 (Vic) s 47; Births, Deaths and Marriages Victoria, Access Policy (23 March 2015) <http://www.bdm.vic.gov.au/utility/about+bdm/legislation+and+policies/>.

    ↑

  82. See, generally, Victorian Law Reform Commission, Birth Registration and Birth Certificates, Report No 25 (2013).

    ↑

  83. Births, Deaths and Marriages Act 1996 (Vic) s 46. A certificate issued by the Registrar of BDM certifying particulars in an entry in the BDM Register is ‘admissible in legal proceedings as evidence of (a) the entry to which the certificate relates; and (b) the facts recorded in the entry’. See, generally, Victorian Law Reform Commission, Birth Registration and Birth Certificates, Report No 25 (2013).

    ↑

  84. Status of Children Act 1974 (Vic) s 8; Family Law Act 1975 (Cth) ss 69R, 102.

    ↑

  85. Adoption Act 1984 (Vic) s 53.

    ↑

  86. Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012). See Chapter 2 for more information about this Inquiry.

    ↑

  87. Ibid 250.

    ↑

  88. Ibid 250–1.

    ↑

  89. Lorna Hallahan, Adoption Act 1988 (SA) Review (2015) 15, 66.

    ↑

  90. Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 73; Adoption of Children Act 1928 (Vic) ss 17–18.

    ↑

  91. Adoption of Children Act 1928 (Vic) ss 17–18. The 1928 Act required the child’s birth entry to be marked with the word ‘Adopted’ and a ‘fresh entry’ of the child’s birth to be made: ss 17(3), 18(1). A ‘certified copy’ of an entry in the Adopted Children Register provided proof of the adopted person’s date of birth ‘in all respects as though [it] were an entry in a register book of births’: s 17(5).

    ↑

  92. Adoption of Children Act 1928 (Vic) s 18(3); Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 73.

    ↑

  93. The 1958 Act largely replicated the provisions in the 1928 Act, but it did not require a ‘fresh’ birth entry to be made. See ss 18–19. See also fn 135 below. The report of the Senate Community Affairs References Committee noted that a 1961 Victorian brief regarding national model adoption legislation (see Chapter 2) stated that ‘the “sealing of [a] child’s previous registration of birth and substitution of one in which [the child] is recorded as a child of the adopters” was one of the two principal effects of an adoption order’: Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) 172. See also 12, 155, 173.

    ↑

  94. The Adoption of Children Act 1964 (Vic) required the Government Statist to register ‘memorandums of adoption orders’ in a ‘Register of Adoptions’ and ‘make alterations’ to the entry in the ‘Register of Births’ as prescribed by regulations: ss 57, 67. The Adoption of Children Regulations 1965 (Vic) required the Government Statist to mark the entry in the Register of Births with the word ‘Adopted’. The Government Statist could not ‘open for inspection or issue an extract from or copy of any entry’ with that marking except under court order: reg 36. The Government Statist entered particulars in the Adopted Children Register, including the child’s name, sex and date of birth and names and addresses of the child’s ‘Father and Mother’, who were the ‘two spouses’ who adopted the child: regs 33, 39, eighth sch. A ‘certified copy of an entry in the Adopted Children Register’ could be issued (reg 37), which the 1964 Act provided ‘was ‘prima facie evidence of … the facts stated [in the copy]’: s 66. See also Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 30.

    ↑

  95. Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 31. Recommendation 10.1 stated: ‘That the Birth Certificate (Certified Copy of Entry) of an adopted child be identical in format with, but under a different schedule from that of a natural born child’: 38. The Committee also recommended: ‘That provision be made in legislation for a person to apply in writing to the Government Statist to ascertain whether he/she had been adopted, and for the Government Statist to give this information’: Recommendation 10.3, 38. That recommendation was not implemented.

    ↑

  96. The provisions in the 1984 Act followed the 1965 Adoption of Children Regulations. See, eg, Adoption Act 1984 (Vic) ss 70, 74–78. Sections 74 and 78 were later amended by the Adoption (Amendment) Act 1987 (Vic). From 1984 to 1987, s 78 stated that: ‘Upon application, the Government Statist shall… issue… an extract from, or certified copy of, an entry in the Adopted Children Register’.

    ↑

  97. The Adoption Legislation Review Committee considered that adopted people were entitled to a copy of their original birth certificate (Recommendation 43). See Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 31, 90, 98, 101. The Committee also considered that where a step-parent or relative adopted a child, ‘access to the original birth certificate be maintained’ in addition to the issuing of a new birth certificate (Recommendations 31 and 33): see 55–6. The Committee’s recommendations are reflected in section 92 of the Adoption Act 1984 (Vic).

    ↑

  98. Previous legislation has prescribed that adopted people’s birth certificates be in a particular form. ‘Sixth Schedule’ birth certificates were issued under the Adoption of Children Act 1958 (Vic) and Registration of Births, Deaths and Marriages Regulations 1960 (Vic). See fn 135 below. From 1989 to 1997, the Births Deaths and Marriages (Prescribed Forms and Procedures) Regulations 1986 (Vic) (as amended by a series of amending regulations in 1989, 1992 and 1993) prescribed ‘Birth Registration’ forms for the purposes of s 78 of the Adoption Act 1984 (Vic). These regulations also provided for copies of entries from the Adopted Children Register to be issued: reg 21, as amended by the Births Deaths and Marriages (Prescribed Forms and Procedures) (Amendment) Regulations 1987 (Vic) regs (2)–(4).

    ↑

  99. Births, Deaths and Marriages Act 1996 (Vic), s 46. The Registrar may issue a certificate ‘certifying particulars in an entry’.

    ↑

  100. The Births, Deaths and Marriages Act 1996 (Vic) contains few provisions about adoption. It states that one of the objects of the Act is the keeping of registers for recording and preserving information about adoptions: s 3(c). Adoption is a ‘registrable event’: s 4 (definition of ‘registrable event’).

    ↑

  101. The Commission understands that this part of the Adoption Act requires modernising as it refers to practices no longer in use at BDM.

    See Chapter 9.

    ↑

  102. Adoption Act 1984 (Vic) s 70(1)(a). The form is available on the County Court website: County Court Victoria, Adoption and Parentage Procedure <https://www.countycourt.vic.gov.au/adoption-and-parentage-procedure>. See also Adoption of Children Act 1928 (Vic)

    s 17(4); Adoption of Children Act 1958 (Vic) s 18(4); Adoption of Children Act 1964 (Vic) s 57.

    ↑

  103. The Adoption Act 1984 (Vic) continues to refer to the Adopted Children Register: s 70. The Births, Deaths and Marriages Act 1996 (Vic) refers to a single ‘Register’, which ‘may be wholly or partly in the form of a computer data base, in documentary form, or in another form the Registrar considers appropriate’: see s 41.

    ↑

  104. Adoption Act 1984 (Vic) s 70(1)(b); Adoption Regulations 2008 (Vic) reg 38(3). See also Adoption of Children Act 1928 (Vic) s 17(1)–(3), sch; Adoption of Children Act 1958 (Vic) s 18(1)–(3), 19, second sch; Adoption of Children Regulations 1965 (Vic) regs 33, 39, eighth sch.

    ↑

  105. Adoption Act 1984 (Vic) s 74. See also Adoption of Children Act 1928 (Vic) s 17(3)–(4); Adoption of Children Act 1958 (Vic) s 18(3)–(4); Adoption of Children Regulations 1965 (Vic) reg 36.

    ↑

  106. Unless the Adoption Act or a court order gives access to it: Adoption Act 1984 (Vic) s 74(3). The Registrar must not permit inspection of the entry, or issue an extract from or copy of the entry, except as provided by the Adoption Act or required by a court order. The Adoption Act allows the Registrar to issue a copy of the entry to a natural parent: s 74(4). The Supreme Court (Adoption) Rules 2015 (Vic) require a couple applying for an adoption order to serve a copy of the child’s birth certificate on the child’s guardian (the Secretary or a principal officer):

    r 13. The report to the court about the proposed adoption must include a copy of the birth certificate: r 23(3).

    ↑

  107. This is not expressly provided as it was under the previous adoption legislation and the previous version of s 78 of the Adoption Act 1984 (Vic) (see fns 91, 94, 96 above). The current s 78, introduced in 1987, states that if an adopted person or adoptive parent applies to the Registrar of BDM ‘for an extract from, or copy of an entry in the Register of Births relating to the birth of the adopted person’, the Registrar must issue an extract or copy under the BDMR Act ‘which, as far as is practicable, contains all of the items of information which are required to be included in an extract or copy issued to a person who is not an adopted person’: s 78(1)–(2). See also (3)–(8). The current Births, Deaths and Marriages Registration Act 1996 (Vic) does not prescribe a particular form of birth certificate: see [8.92] above.

    ↑

  108. Ibid ss 92(2)(a), (4)–(6); Adoption Regulations 2008 (Vic) reg 40, sch 22. The adopted person must receive counselling in accordance with

    s 87: see [8.48] and Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 98. See also fn 97 above; Adoption Act 1984 (Vic) ss 92(1), 74(4), 78; Department of Human Services, Government of Victoria, Adoption and Permanent Care Learning Guide (Part 1 ‘Introduction’) 9 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

  109. The relevant provisions of the Adoption Act 1984 (Vic) (s 92) are unclear and the Commission understands some of them may be redundant (see Chapter 9). The Adoption Act states that the Registrar may issue ‘an extract from, or certified copy of, the entry in the Register of Births relating to the person’: s 92. An extract must be marked with the word ‘adopted’: Adoption Act 1984 (Vic) s 92(5)–(6). The Commission understands that an extract or certified copy is not a certificate issued under section 46 of the Births, Deaths and Marriages
    Act 1996     (Vic). Under previous legislation, certified copies of birth entries provided prima facie evidence of births: see, eg, Registration of Births Deaths and Marriages Act 1928 (Vic) ss 46, 50; Registration of Births Deaths and Marriages Act 1958 (Vic), ss 49, 53; Registration of Births Deaths and Marriages Act 1959 (Vic) ss 47, 53, later amended by Registration of Births Deaths and Marriages (Amendment) Act 1985 (Vic) s 8.

    ↑

  110. Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) 252, 256.

    ↑

  111. Ibid 256.

    ↑

  112. Lorna Hallahan, Adoption Act 1988 (SA) Review (2015) 15, 66–7.

    ↑

  113. Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) Recommendation 13.

    ↑

  114. The Hon Ted Baillieu MP, Premier and Minister for the Arts, and The Hon Mary Wooldridge MP, Minister for Mental Health, Minister for Women’s Affairs and Minister for Community Services, ‘Parliament apologises for past adoption practices’ (Media release, 25 October 2012).

    ↑

  115. New South Wales Registry of Births, Deaths and Marriages, Birth Certificate Content Review (2014) 7 <www.bdm.nsw.gov.au/Documents/BDM-birth-cert-review-2014.pdf>.

    ↑

  116. Adoption Act 2000 (NSW) s 133C; Births, Deaths and Marriages Registration Act 1995 (NSW) s 49(4). These provisions were enacted in 2000.

    ↑

  117. Births, Deaths and Marriages Registration Act 1995 (NSW) s 49(4). The New South Wales Registry of Births, Deaths and Marriages website states that an adopted person’s birth record cannot be used for identification purposes: New South Wales Registry of Births, Deaths and Marriages, Adoptions (18 April 2016) <www.bdm.nsw.gov.au/Pages/births/adoptions.aspx>.

    ↑

  118. Email correspondence from Erin Keleher, Registrar of Births, Deaths and Marriages, to the Commission, 5 June 2016. Under section 46 of the Births, Deaths and Marriages Act 1996 (Vic), the Registrar may issue a certificate certifying particulars contained in an entry in the BDM Register and the certificate is admissible in legal proceedings as evidence of the entry to which the certificate relates and the facts recorded in the entry.

    ↑

  119. Email correspondence from Erin Keleher, Registrar of BDM, to the Commission, 5 June 2016.

    ↑

  120. Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report No 12 (2007). See Chapter 2 for more information.

    ↑

  121. Assisted Reproductive Treatment Act 2008 (Vic) s 153, as repealed by Statute Law Revision Act 2015 (Vic) s 3, sch 1, cl 6.

    ↑

  122. Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report No 12 (2007) 142.

    ↑

  123. Ibid 143.

    ↑

  124. Ibid 145–6. See also 191 and Recommendation 128.

    ↑

  125. Ibid.

    ↑

  126. The Commission was concerned about creating a potential conflict with the Status of Children Act 1974 (Vic). It explained that if a donor were named on a person’s birth certificate, the person could produce the certificate in court as evidence that the donor was a parent of the child, to establish a legal right, for example, to the donor’s deceased estate: Births, Deaths and Marriages Registration Act 1996 (Vic) s 46; Status of Children Act 1974 (Vic) s 8; Family Law Act 1975 (Cth) ss 69R, 102. The Commission considered ‘[t]his would clearly conflict with the provisions of the Status of Children Act that remove any legal responsibilities from the donor’ and, although the presumption could be rebutted, it would be ‘undesirable for this conflict to arise in the first place’.

    ↑

  127. Assisted Reproductive Treatment Act 2008 (Vic).

    ↑

  128. Ibid s 153, as repealed by Statute Law Revision Act 2015 (Vic) s 3, sch 1, cl 6. The provision was added to the Assisted Reproductive Technology Bill during the parliamentary debates: Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4013–19;

    4 December 2008, 5048–57.

    ↑

  129. Births, Deaths and Marriages Registration Act 1996 (Vic) s 17B. A ‘donor treatment procedure’ is ‘a treatment procedure in which donor gametes or a donor embryo is used’: Births, Deaths and Marriages Act 1996 (Vic) s 17B(4); Assisted Reproductive Treatment Act 2008 (Vic) s 3 (definition of ‘donor treatment procedure’). ‘Treatment procedure’, ‘donor gametes’ and ‘donor embryo’ are defined in section 3 of the Assisted Reproductive Treatment Act 2008 (Vic) (ART Act). As noted above at fn 95, the Adoption Legislation Review Committee recommended ‘that provision be made in legislation for a person to apply in writing to the Government Statist to ascertain whether he/she had been adopted, and for the Government Statist to give this information’: Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) Recommendation 10.3, 38. The recommendation was not implemented.

    ↑

  130. Births, Deaths and Marriages Registration Act 1996 (Vic) s 17B(2). The Registrar must not issue the addendum to any person other than the person conceived by a donor treatment procedure named in the entry.

    ↑

  131. See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4013–14 (Robert Hudson), 4014–15 (Robert Clark), 4015–16 (Christine Campbell). If the person wishes to obtain further information, the person may make an application to the Registrar of BDM under Part 6 of the ART Act. One of the parliamentary speeches emphasised the importance of access to genetic information concerning inheritable diseases: Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4015 (Peter Crisp).

    ↑

  132. See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4013 (Robert Hudson), 4014–15 (Robert Clark), 4015–16 (Christine Campbell), 4016–4017 (Telmo Languiller), 4017–18 (Denis Napthine), 4018 (Robert Hudson), 4019 (Robert Clark); 4 December 2008, 5050 (Robert Clark), 5053 (Robert Hudson). One of the guiding principles of the ART Act is that ‘children born as the result of the use of donated gametes have a right to information about their genetic parents’: s 5(c). The Adoption Act does not contain a principle like this. The Adoption Legislation Review Committee considered that giving adopted people a ‘right of access to information would encourage openness about the adoption which could enable the child to achieve a proper sense of identity’: Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983) 91. There is no requirement in the ART Act or the Adoption Act that parents tell their children about their origins.

    ↑

  133. See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 9 October 2008, 4014 (Robert Hudson), 4014–15 (Robert Clark), 4016–17 (Telmo Languiller), 4018 (Robert Hudson), 4019 (Robert Clark); 4 December 2008, 5048 (Rob Hulls, Attorney-General).

    ↑

  134. See, eg, ibid, 9 October 2008, 4016 (Rob Hulls, Attorney-General), 4016–17 (Telmo Languiller), 4017–18 (Denis Napthine).

    ↑

  135. See, eg, ibid, 9 October 2008, 4013–14 (Robert Hudson), 4015 (Robert Clark). ‘Sixth Schedule’ birth certificates were issued under the Adoption of Children Act 1958 (Vic) and Registration of Births, Deaths and Marriages Regulations 1960 (Vic). The form of the certificate was prescribed by the Sixth Schedule of the 1960 Regulations. It was a ‘certified copy of an entry in the Adopted Children Register’ (reg 8) that the Government Statist was required to maintain under the 1958 Act: s 18. The certificate showed the child’s date of birth, sex, full given name(s) and surname (the surname of the adoptive father or child’s adopter) and the names and occupations of adoptive parents, who appeared on the certificate as ‘Father and Mother’. These details were kept in the Adopted Children Register: ss 18–19. The Sixth Schedule certificate provided proof of the person’s date of birth ‘in all respects as though [it] were a certified copy of an entry in a register book of births’:s 18(5). Certified copies of entries were prima facie evidence of a person’s birth: Registration of Births Deaths and Marriages Act 1959 (Vic) s 53.

    ↑

  136. Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report No 12 (2007) 145–6. See also 113–14, 185–6.

    ↑

  137. The Adoption Act does not affect the ability to change the name of an adopted child after the adoption order is made, under the Births, Deaths and Marriages Registration Act 1996 (Vic): Adoption Act 1984 (Vic) s 56(3).

    ↑

  138. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 8(1).

    ↑

  139. Adoption Act 2000 (NSW) s 8(1)(e).

    ↑

  140. Ibid s 8(1)(e), s 101(5). For information about non-citizen children, see Chapter 3.

    ↑

  141. Adoption Act 1984 (Vic) s 56; Adoption Regulations 2008 (Vic) sch 6; Department of Human Services, Government of Victoria, Information for parents considering adoption of their child (2008) 16 <http://www.dhs.vic.gov.au/about-the-department/documents-and-resources/reports-publications>.

    ↑

  142. Adoption Act 1984 (Vic) s 56(3).

    ↑

  143. Ibid s 9.

    ↑

  144. Adoption Act 1988 (SA) s 23(3). A child over 12 must consent in other jurisdictions: see, eg, Adoption Act 2000 (NSW) s 101; Adoption Act 1994 (WA) s 74.

    ↑

  145. Lorna Hallahan, Adoption Act 1988 (SA) Review (2015) 53.

    ↑

  146. Adoption Act (ACT) s 45(5).

    ↑

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