Review of the Adoption Act 1984: Consultation Paper

Terms of reference

[Matter referred to the Commission pursuant to section 5(1)(a) of the Victorian Law Reform Commission Act 2000 by the Victorian Attorney-General, the Hon. Martin Pakula MP on

18 December 2015.]

At the time of its introduction, the Adoption Act 1984 represented a significant change in Victorian adoption policy.

The government recognises that adoption is complex, and past adoption practices have resulted in significant trauma for people affected by those practices. The government also acknowledges the positive experience of adoption for many Victorian children, adult adopted people and their families.

To ensure that the Adoption Act, now over 30 years old, meets the needs of the children and families it affects, it is time to review the Act to ensure:

• the best interests of the child are paramount

• it is consistent with contemporary law in relation to family and community 

• it operates harmoniously with other relevant areas of law that have developed since the introduction of the Adoption Act

• it is structurally sound and in accordance with contemporary drafting practice.

Accordingly, the Victorian Law Reform Commission (the ‘Commission’) is requested to provide recommendations to government on the modernisation of the Adoption Act 1984 and the Adoption Regulations 2008.

The Commission should consider and provide recommendations to government on opportunities to amend adoption law to:

• ensure the best interests and rights of the child are the foremost consideration in any decision made under the Adoption Act

• better reflect community attitudes and contemporary law in relation to family, for example, the way a child’s identity is reflected on a child’s birth certificate, or ensuring requirements in relation to prospective parents’ relationship status or living arrangements are consistent with current Victorian law

• uphold principles set out in the Charter of Human Rights and Responsibilities and the United Nations Convention on the Rights of the Child

• improve the operation of the Adoption Act and Adoption Regulations including,

but not limited to:

1. addressing any gaps in current information provisions

2. clearly articulating legislative practice and procedural requirements, for example

in relation to assessment of adoption applicants

3. ensuring the Act uses clear, contemporary language.

In making recommendations, the Commission should ensure amendments are capable

of harmonious operation with other relevant Victorian and Commonwealth legislation.

The Commission should not consider:

• intercountry adoption programs or commercial surrogacy: these matters are more appropriately considered at a national level

• adoption by same-sex couples: the government made an election commitment to legislate to allow same-sex adoption. This commitment has been delivered by the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 and is not within the scope of this review

• contact statements: the government made an election commitment to legislate to remove contact statements. This commitment has been delivered by the Adoption Amendment Act 2015 and is not within the scope of this Review.

The Commission is asked to report by 28 February 2017.