Review of the Adoption Act 1984: Report

13. Adoption services and the Equal
Opportunity Act

Introduction

13.1 The terms of reference require the Commission to provide recommendations to ensure that the Adoption Act 1984 (Vic) operates harmoniously with other relevant legislation and upholds principles set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).

13.2 The Charter protects and promotes human rights in Victoria^[1] when people are dealing with state and local government, and private entities where they are performing public functions.^[2] The Charter includes 20 basic human rights, including the right to recognition and equality before the law, which recognises the right to protection against discrimination,^[3] and the right to freedom of thought, conscience, religion and belief.^[4]

13.3 Discrimination can be justified and necessary to ensure that children are protected.^[5] The Adoption Act and Adoption Regulations 2008 (Vic) permit discrimination^[6] in several ways, including in the eligibility criteria,^[7] in the suitability and assessment criteria,^[8] and in giving consideration to a natural parent’s wishes about prospective adoptive parents.^[9]

13.4 Under the Equal Opportunity Act 2010 (Vic), religious exceptions permit discrimination in specified circumstances.^[10]

13.5 On 1 September 2016, the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) came into force and amended the eligibility criteria under the Adoption Act to permit same-sex couples to adopt.

13.6 Since those amendments, the majority of adoption agencies in Victoria, including faith-based organisations, have agreed to assist same-sex couples with their applications to adopt.^[11] However, one faith-based agency, CatholicCare, has relied upon a religious exception under the Equal Opportunity Act to deny some adoption services to LGBTI couples.^[12]

13.7 This chapter explores the relationship between the Charter, the Equal Opportunity Act and adoption service provision in Victoria, to the extent that it affects the operation of the Adoption Act.

Current law and practice

Adoption services in Victoria

13.8 Adoption services in Victoria are funded by the Secretary of the Department of Health and Human Services (DHHS). Welfare organisations can apply to the Secretary to be approved to provide adoption services.^[13]

13.9 A welfare organisation is defined by the Adoption Act as:

an organization, corporate or unincorporate, formed or carried on primarily or principally for religious, charitable, benevolent, philanthropic or welfare purposes, but does not include an organization formed or carried on for the purpose of trading or securing a pecuniary profit to its members.^[14]

13.10 The inclusion of an organisation for ‘religious’ purposes in the definition was carried over from the Adoption of Children Act 1964 (Vic).^[15]

13.11 In Victoria, adoption and permanent care teams provide adoption services for particular geographical regions. Regional adoption services are provided by departmental teams and four community service organisations.^[16] CatholicCare is the only organisation that provides a statewide adoption service.^[17]

13.12 Service delivery was regionalised in the 1980s.^[18] The Commission has heard that under regionalisation, people who wish to apply to adopt are assigned to the adoption service in their local region. Applicants are unable to ‘shop’ between regional adoption services. In practice, the only choice that applicants are able to exercise is to select a preferred adoption service from either their local adoption and permanent care team, or the statewide service provided by CatholicCare.^[19]

13.13 Same-sex couples have been eligible to adopt since 1 September 2016. Following the enactment of the Adoption Amendment (Adoption by Same-Sex Couples) Act, CatholicCare has relied upon a religious exception under the Equal Opportunity Act to deny some services to same-sex couples. LGBTI couples who approach the organisation to adopt are referred to another approved adoption agency.^[20]

13.14 CatholicCare has developed an information sheet for prospective adoptive parents. That sheet states:

Following the assessment and accreditation of couples, the matching process involves a family being selected as the best possible match to ensure the welfare and best interests of the child. Once a match is made, the adoption proceeds to legalisation through the court. CatholicCare, as a Catholic agency, is not able to complete these final two steps with LGBTI couples. We have a protocol in place with other adoption agencies to ensure that any LGBTI couples who are accredited through CatholicCare can be matched appropriately and supported by another agency for legalisation. This protocol also means that at any stage in the process, an LGBTI couple who chooses to transfer to another agency will be supported to do so.^[21]

13.15 The effect of this policy and the regionalisation of adoption services in Victoria has meant that heterosexual couples can choose to adopt through their regional adoption service or the statewide service, CatholicCare. LGBTI couples cannot adopt through CatholicCare. However, they can approach CatholicCare for the application and assessment process.

13.16 From 2012 to 2015, 16 infant adoptions were facilitated by CatholicCare and a further three special needs adoptions.^[22]

Anti-discrimination and freedom of religion

13.17 The primary legislation for human rights in Victoria is the Charter.^[23]

13.18 The Charter requires the actions of public authorities in state and local government to be compatible with human rights.^[24] Rights under the Charter include:

• the right to recognition and equality before the law. Everyone is entitled to equal and effective protection against discrimination and to enjoy their human rights without discrimination.^[25]

• the right to freedom of thought, conscience, religion and belief.^[26] This right includes the freedom to adopt a religion or belief of choice, and the freedom to demonstrate that ‘religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private’.^[27]

13.19 Religious freedom is also reflected in the recognition of a person’s cultural rights under the Charter. People with cultural or religious backgrounds must not be denied the right to enjoy their culture and declare and practise their religion.^[28]

13.20 An object of the Equal Opportunity Act is to ‘eliminate discrimination, sexual harassment and victimisation’^[29] in many areas of public life,^[30] including in the provision of goods and services to the greatest extent possible.^[31] The Act prohibits discrimination on the basis of attributes including gender identity, marital status, sex and sexual orientation.^[32]

13.21 However, legal protection from discrimination is not absolute. The Equal Opportunity Act contains exceptions and exemptions that limit Charter rights and permit discrimination.^[33] A person may also discriminate if they have statutory authority to do so.^[34] For example, the Adoption Act provides statutory authority for the Secretary or principal officer to act on a natural parent’s wishes regarding a prospective adoptive parent’s religion, race or ethnic background.^[35]

Religious exceptions

13.22 Under the Equal Opportunity Act, religious exceptions permit discrimination in certain circumstances.^[36]

13.23 The religious exception under section 82(2) relates to the conduct of religious bodies and provides an exception to the anti-discrimination provisions in the Act. It states:

Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a religious body that—

(a) conforms with the doctrines, beliefs or principles of the religion; or

(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.^[37]

13.24 The definition of a ‘religious body’ may cover a wide range of organisations. It is defined as:

(a) a body established for a religious purpose; or

(b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.^[38]

13.25 Similarly, section 84 permits a person to discriminate against another person. It states:

Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.^[39]

13.26 The religious exceptions under the Equal Opportunity Act demonstrate an inherent tension between the right to religious freedom and the right to equality and protection from discrimination.

… the problem for social policy is seeking to ensure that different values and beliefs around personal morality and religious faith are respected, while maintaining the most important aspect of the principle of non-discrimination—that in our shared communal life as a society, differences in race, gender, sexual orientation, and other personal attributes are not grounds for exclusion. How best to achieve this balance goes to the heart of debates about the proper role of the state in relation to other forms of social organisation within a society, and the support that the state should provide to mediating institutions between the individual and the state.^[40]

13.27 A faith-based organisation wishing to avail itself of the protection provided by the religious bodies exception, would first need to establish that it is an entity established for a religious purpose and demonstrate that its reason for discriminating is in accordance or conforms with the doctrines, beliefs or principles of the religion.^[41]

13.28 It is not the Commission’s function to determine whether particular faith-based organisations providing adoption services in Victoria are entitled to the cover of a religious exception or would be able to defend a claim of discrimination. However, by reason of its terms of reference, it is appropriate for the Commission to address the consequences of the fact that currently a faith-based organisation providing adoption services is relying upon a religious exception so as not to provide some services to LGBTI couples.

Adoption by same-sex couples

13.29 The 2015 Adoption by Same-Sex Couples Legislative Review considered the legislative amendments required to permit adoption by same-sex couples in Victoria.^[42]

13.30 The review recognised that the introduction of same-sex adoption could mean that faith-based organisations providing adoption services may rely on a religious exception under the Equal Opportunity Act to deny services to same-sex couples on the basis of their marital status, sexual orientation and gender identity.^[43]

13.31 The review recommended that there should be no specific exemption for adoption services. It recommended that consideration be given to excluding the application of any exemptions or exceptions under the Equal Opportunity Act available to faith-based organisations providing adoption services.^[44]

13.32 When the Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic) was introduced, clause 17 proposed an amendment to section 82(2) of the Equal Opportunity Act. Clause 17 stipulated:

Despite subsection (2), Part 4 applies to anything done by a religious body that is an approved agency within the meaning of the Adoption Act 1984 in relation to its exercise of any power or performance of any function or duty under that Act for or with respect to adoption, whether or not the power, function or duty relates to a service for a child within the meaning of that Act or for any other person.^[45]

13.33 This amendment would:

ensure that neither same-sex couples, nor children, are unfairly discriminated against in the provision of adoption services. The state is required to act in a non-discriminatory way as a secular provider of services and cannot rely on a religious defence when providing public services. Access to adoption services should be provided equitably, with the welfare and interests of the child concerned to be the paramount consideration.^[46]

13.34 It was proposed that the amendment was compatible with Charter rights as only individuals have human rights and not organisations.^[47] In any case, it was considered that the right to freedom of religion and belief needed to be balanced against the impact of allowing a discriminatory adoption policy.^[48]

13.35 There was some opposition to clause 17 of the Bill. Faith-based organisations made submissions to Parliament’s Scrutiny of Acts and Regulations Committee.^[49] Submissions outlined concern that the amendment would:

• be contrary to and trespass upon the right of religious bodies to freedom of thought, conscience, religion and belief, under section 14 of the Charter^[50]

• amount to discrimination against people with religious convictions, contrary to section 8 of the Charter^[51]

• present as an issue for natural parents who, when they consent to an adoption, may not be able to express a wish that their child not be raised by a same-sex couple and would prevent any agency from being able to meet those wishes.^[52]

13.36 Submissions also detailed the likely effect of the clause on a faith-based organisation’s ability to continue to provide adoption services.^[53] CatholicCare submitted that it would lose its capacity to provide its adoption support services and adoption information service.^[54]

13.37 The Scrutiny of Acts and Regulations Committee observed that the removal of the application of the religious bodies exception ‘may be to bar an approved agency from acting on the wishes of the parent of a child as to the sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity of the proposed adoptive parents’.^[55]

13.38 When the Adoption Amendment (Adoption by Same-Sex Couples) Act came into force, the proposed clause 17 was not enacted.

13.39 The Commission is not reviewing Parliament’s decision regarding clause 17 but is required by the terms of reference to consider the consequences of that decision to ensure Victoria’s legislation operates harmoniously.

Discrimination and the provision of services

13.40 When the same-sex adoption amendments were considered, the Hon. Martin Foley MP remarked:

Approved adoption agencies, whether faith-based or secular, are providing services on behalf of the government and these services are essentially secular services that should be available to all members of the public.^[56]

13.41 The ability of publicly funded organisations to discriminate is an issue that has long been debated.

13.42 The Victorian Scrutiny of Acts and Regulations Committee, in its 2009 report on Exceptions and Exemptions to the Equal Opportunity Act 1995, made recommendations regarding the application of the definition of a religious body under the 1995 Act.^[57]

13.43 The Committee observed that a religious exception could undermine equality rights if a religious body could rely upon the exception by ‘self-declaring that it conducts its activities in accordance with religious doctrines, beliefs or principles’.^[58] It noted that there had ‘been a vast expansion in recent years of provision of public services by religiously based organisations as a result of government policies of contracting out service provision’.^[59] The Committee stated that contracting out services:

does not provide a justification for extending the religious exception, especially where the activity is undertaken with public money and to provide services to the whole community, not just a section of the community. The Committee is aware that for many such activities, the funding contracts for the services may provide that discrimination should not occur, but it notes that this may be inadequate to ensure that a person affected could seek a legal remedy for discrimination.^[60]

13.44 The Australian Law Reform Commission also identified this issue in its 2016 report, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws when some stakeholders questioned whether religious organisations that perform public services and rely upon exemptions, such as adoption services, should receive public funding.^[61] Submissions to the ALRC suggested that restricting funding for religious organisations would in itself be discrimination.^[62] The Australian Christian Lobby submitted:

Religious organisations receiving taxpayer funds should be able to determine their own identity without government interference. It is not the role of government to interfere in a religious organisation’s mission or vision.^[63]

13.45 Limitations on religious exceptions available to taxpayer-funded services are reflected in Commonwealth legislation. For example, the religious bodies exemption under the Sex Discrimination Act 1984 (Cth) does not apply to the practice of a religious body if that body provides Commonwealth-funded aged care services.^[64]

13.46 In a 2014 article in the Monash University Law Review, the authors remarked that:

The distinction that needs to be made is between situations where governments are ‘purchasing’ services to be delivered through non-government agencies to the general community in a given locality, and situations where the government is providing funding support to a diverse range of bodies that are delivering services, giving the consumer some choice or reflecting the existing different communities.^[65]

13.47 The authors observed that for governments to permit discrimination where they are purchasing services would be an abdication of their responsibility to provide services to the whole community in that area.^[66]

13.48 The effect of anti-discrimination laws on faith-based organisations providing adoption services has been observed in overseas jurisdictions. Catholic charities in Boston were denied an exemption from the state’s non-discrimination laws, after which they decided to terminate their adoption services rather than place children with same-sex couples. Similarly in Illinois, the state required publicly funded Catholic charities to provide adoption and foster-care services to same-sex couples on the same grounds as different-sex couples. Rather than comply, the charities closed their doors.^[67]

13.49 In the United Kingdom, Catholic Care sought to confine its delivery of adoption services to heterosexuals only.^[68] It was unsuccessful in its application to do so. Upon appeal, the tribunal noted:

The legal context in which the Charity comes before the Tribunal is one in which the national authorities, in particular Parliament, have established a very clear framework of equality law which makes discrimination on grounds of sexual orientation unlawful. That is the basic ground rule of public policy established by the national authorities in their assessment of and responding to the needs of society.^[69]

13.50 In New South Wales^[70] and Western Australia,^[71] adoption agencies are permitted to refuse some services on religious grounds.

Responses

13.51 In its consultation paper, the Commission asked for submissions on whether the religious bodies exception in the Equal Opportunity Act is consistent with amendments to the Adoption Act that enable same-sex couples and people who do not identify with a specific sex or gender to adopt.

13.52 The Commission heard support for the religious bodies’ exception to remain in relation to adoption services.^[72] Some of that support related to general opposition to the same-sex adoption laws.^[73]

13.53 The Australian Christian Lobby (ACL) submitted that the ‘right to freedom of thought, conscience, and religion lies at the foundation of freedom’ and is recognised by the Charter and international law.^[74] It asserted that the Catholic position is that the wellbeing of the community and children is best served by having the love and experience of a mother and a father in a ‘safe, secure and stable relationship’ and adoption by same-sex couples is contrary to this belief.^[75]

13.54 The ACL submitted that faith-based adoption services may not be able to continue to operate should the religious bodies’ exception be removed. It submitted that same-sex couples already have access to other adoption services in Victoria.^[76]

13.55 A participant at a roundtable with the legal sector told the Commission that denying religious bodies the right to refuse services would have the effect of denying the religious body ‘equal opportunity’.^[77]

13.56 At that same roundtable, the Commission heard from most participants that they do not consider that the religious bodies’ exception operates harmoniously with recent amendments to the Adoption Act allowing same-sex couples to adopt.^[78]

13.57 The Commission heard strong support for the religious bodies’ exception not to apply to the provision of adoption services.^[79]

13.58 Child & Family Services Ballarat, an agency that currently provides adoption services in Victoria, submitted that no accredited adoption agencies should be able to refuse services on the grounds of sex or gender.^[80]

13.59 The Commission heard concern about agencies being permitted to refuse services to same-sex couples, because adoption is not a religious practice which should warrant being covered by the exception.^[81] It was submitted that adoption services should be provided only by secular^[82] agencies and not service providers which rely on an exception and receive public funding.^[83]

13.60 The Law Institute of Victoria (LIV) submitted that the religious bodies’ exception is not consistent with the Adoption Act. The LIV stated that it is ‘fundamentally opposed to discrimination and inequality before the law in any circumstances, including discrimination on the basis of gender identity or sexual orientation’.^[84]

13.61 When the Adoption Amendment (Adoption by Same-Sex Couples) Act was introduced, the LIV welcomed the amendments but continued to have concerns regarding the religious bodies’ exception still applying to adoption services. They submitted that religious freedoms need to be respected but balanced against the right to be treated equally, as well as the best interests of the child.^[85]

13.62 ARMS (Vic) submitted that there are common assumptions that two parents are better than one, and heterosexual couples are better. It submitted that the concept of family is changing and faith-based organisations need to take this on board, but recognised the difficulty with changing long-held religious beliefs and views.^[86]

13.63 The Victorian Gay & Lesbian Rights Lobby (VGLRL) told the Commission that the blanket exceptions under the Equal Opportunity Act for educational institutions and religious bodies should be removed, as the exceptions fail to balance the right to freedom of religion and freedom from discrimination.^[87]

13.64 The VGLRL supported the removal of the broad exceptions in the Equal Opportunity Act on the basis that there is already a general justification defence which allows the tribunal to grant an exemption from any provision in the Act.^[88] This would allow a case-by-case approach and judicial oversight, which would accommodate changing standards and community expectations.^[89]

13.65 The VGLRL proposed the following options to amend the application of the Equal Opportunity Act:

1) Section 82(2)(a) of the Equal Opportunity Act be amended to remove the words ‘beliefs or principles’. It considered it would be difficult to ascertain the beliefs or principles of a body corporate.^[90]

2) Alternatively, faith-based organisations intending to rely on the exception should notify prospective employers and service users, such as prospective adoptive parents, that it does not provide services to same-sex couples. This would include providing a written policy stating its position that is available to the public upon request, free of charge.^[91]

3) Alternatively, a limitation on the application of the religious exception under section 82(2) that applies to anything done by a religious body exercising functions of a public nature or a stipulated set of services, such as adoption services.^[92]

13.66 Dr Briony Horsfall said that the Adoption Act should be non-discriminatory and the heteronormative nuclear family should not be privileged over other family forms.^[93]

13.67 VANISH submitted that it can be argued that there are too many organisations providing adoption services in Victoria, and if the government is concerned about the ideology of an adoption service, it could cease to fund it.^[94]

Commission’s conclusions

13.68 Since the introduction of the Adoption Act in 1984, the Charter and the Equal Opportunity Act have provided new rights and protections. However, discrimination that would otherwise be unlawful under those Acts is permitted when there is statutory authority to discriminate,^[95] or when there is an exception or exemption to the application of the Equal Opportunity Act.^[96]

13.69 The Adoption Act provides authority to discriminate by:

• restricting eligibility to adopt to certain classes of people^[97]

• prescribing criteria to determine an applicant’s suitability to adopt^[98]

• permitting natural parents to express wishes about prospective adoptive parents’ religion, race and ethnic background.^[99]

13.70 Discrimination in these forms is intended to protect the best interests and rights of children by ensuring that they are adopted by people who are able to best meet their needs.

13.71 However, religious exceptions under the Equal Opportunity Act have enabled faith-based organisations providing adoption services to discriminate and not provide some services to same-sex couples recognised as eligible to adopt by the Adoption Act.

13.72 Currently, only CatholicCare is relying upon a religious exception. All regional approved adoption agencies are able to provide services to the LGBTI community. However, the manner in which adoption services in Victoria are provided means that heterosexual couples who are unhappy with the service they receive from their regional adoption agency, or who wish to approach another agency, have the choice of approaching CatholicCare and being put forward as prospective adoptive parents by that agency. This option is not available to LGBTI couples.^[100]

13.73 Though adoption services in Victoria historically have been provided by faith-based organisations, adoption is secular in nature under Australian and Victorian law. Adoption services are funded and administered by the state government. It is not appropriate for the government to fund a body which discriminates against any person eligible to adopt on grounds not related to the best interests of a child.

13.74 A number of options were put to the Commission to remove the application of the religious exceptions. Amendments to the specific wording of the religious exceptions under the Equal Opportunity Act are outside the terms of reference and would have consequences beyond the provision of adoption services.^[101]

13.75 One proposed option was to require an approved adoption agency relying upon a religious exception to notify prospective adoptive parents and advertise that they do not provide services to same-sex couples.^[102] The Secretary has already taken this initiative and advertised on the DHHS website. The Commission considers this does not respond to or remove the effect of discrimination on same-sex couples and future applicants.

13.76 Parliament recently elected not to restrict the application of the religious bodies’ exception to the provision of adoption services as part of the Adoption Amendment (Adoption by Same-Sex Couples) Bill.^[103] A central concern raised during debate was that religious bodies would no longer have the protection of the exception and would not be able to give effect to a natural parent’s religious belief that their child should not be raised by a same-sex couple.^[104]

13.77 The Commission does not express a view about the correctness of this analysis and it is unnecessary to examine the concern further, as in Chapter 12 the Commission recommends that the Equal Opportunity Act not apply to the selection of adoptive parents.^[105] This recommendation links the natural parents’ wishes to the selection criteria and provides certainty to the Secretary and principal officer in giving effect to the natural parent’s wishes.

13.78 Removing the application of religious exceptions to the provision of adoption services may have consequences. In some overseas jurisdictions, Catholic agencies unable to rely upon a religious exemption have ceased to provide adoption services.^[106]

13.79 In Victoria, submissions by faith-based organisations to Parliament’s Scrutiny of Acts and Regulations Committee^[107] maintained that to exclude the provision of adoption services from the application of a religious exception might cause a faith-based agency providing adoption services to:

• continue to deny same-sex couples equal access to its service and risk breaching the Equal Opportunity Act^[108]

• change its religious convictions^[109] or

• close its adoption service.^[110]

13.80 In its submission to the Commission, the Australian Christian Lobby stated that CatholicCare employees may face similar dilemmas and have to decide between quitting their jobs or acting against their religious convictions.^[111]

13.81 The Adoption Act does not create a right for any welfare organisation to provide adoption services in Victoria. The Act sets out the grounds for a welfare organisation to provide adoption services and the Secretary may grant, refuse, suspend or revoke approvals.^[112] Approval can be revoked upon the ground that an approved agency has failed to comply with a provision of the Adoption Act or Regulations applicable to it.^[113]

13.82 Ultimately, how best to arrange and manage adoption services and the terms of service arrangements are decisions for the Secretary. If CatholicCare elects to no longer provide adoption services, there are other regional services already providing adoption services across Victoria which could provide services to CatholicCare clients.

Options

13.83 The Commission has considered three possible options:

1) Not to recommend any change to the current effect of the religious exception on the operation of the Adoption Act on the basis that Parliament recently considered its effect under the Adoption Amendment (Adoption by Same-Sex Couples) Bill.

2) Not to recommend any change to the current effect of the religious exception, as the effect of the discrimination is numerically limited. In contrast, the effect on CatholicCare, which is an established adoption agency in Victoria, may result in the organisation no longer providing its adoption services to numerous people.

3) To make recommendations that ensure that the Adoption Act operates harmoniously with the Equal Opportunity Act and that remove unnecessary discrimination by taxpayer-funded approved adoption agencies operating under the Adoption Act.

13.84 The Commission considers that option 1 would fail to fulfil the terms of reference to ensure that the Adoption Act operates harmoniously with other relevant laws. The Commission has not followed option 1, as it would not be harmonious with the religious exceptions under the Equal Opportunity Act.

13.85 The Commission considers that option 2 is not appropriate. While the services of CatholicCare are undoubtedly commendable and valuable, it is for government, not a private entity, to determine policy. That policy is that adoption is secular in nature, is taxpayer-funded, and it is not the preserve of any particular agency or religious entity.

13.86 The Commission considers that option 3 is appropriate.

13.87 A ‘blanket’ religious exception should not apply to the provision of adoption services under the Adoption Act. Discrimination should only be permissible to the extent that the Adoption Act provides, upon grounds that are in the best interests of children.

Recommendation

60 The religious exceptions under the Equal Opportunity Act 2010 (Vic) should not apply to approved adoption agencies providing adoption services under the Adoption Act.

13.88 The Commission recommends that religious exceptions under the Equal Opportunity Act should not apply to approved adoption agencies providing adoption services under the Adoption Act. This recommendation is consistent with the secular nature of adoption, its taxpayer funding, consistent with the relevant legislation, and eliminates discrimination.

1. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 1(2).

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2. Ibid s 4.

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3. Ibid s 8.

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4. Ibid s 14.

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5. For example, s 25 of the Equal Opportunity Act 2010 (Vic) includes exceptions to anti-discrimination laws in relation to the employment of a person who cares, instructs or supervises children, necessary for the protection of children.

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6. Discrimination is permitted when there is statutory authority to do so: Equal Opportunity Act 2010 (Vic) s 75.

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7. Adoption Act 1984 (Vic) ss 11–2. This is discussed in Chapter 10.

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8. Ibid ss 13(3), 15(1)(a); Adoption Regulations 2008 (Vic) regs 35, 37. This is discussed in Chapter 11.

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9. Adoption Act 1984 (Vic) s 15(1)(b). This is discussed in Chapter 12.

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10. Equal Opportunity Act 2010 (Vic) ss 82–84.

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11. Department of Humans Services, Victoria, Fact Sheet: Adoption by Same-Sex and Gender Diverse Couples (1 September 2016)
    
    <http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people>.

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12. Ibid.

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13. Adoption Act 1984 (Vic) s 21.

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14. Ibid s 21(4).

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15. See Adoption of Children Act 1964 (Vic) s 18(3).

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16. Email correspondence from the Department of Health and Human Services to the Commission, 6 January 2017. These organisations operate as approved adoption agencies under ss 20–32 of the Adoption Act 1984 (Vic).

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17. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 1 Introduction (2005) 14; Email correspondence from the Department of Health and Human Services to the Commission, 6 January 2017.

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18. Department of Human Services, Victoria, Adoption and Permanent Care Learning Guide, Part 1 Introduction (2005) 13.

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19. Email correspondence from the Department of Health and Human Services to the Commission, 6 January 2017.

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20. Department of Humans Services, Victoria, Fact Sheet: Adoption by Same-Sex and Gender Diverse Couples (1 September 2016)
    
    < http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/adoption-and-permanent-care/adoption-by-same-sex-and-gender-diverse-couples>.

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21. CatholicCare Melbourne, Adoption Service Information for Prospective Parents, Information Sheet (2016) provided to the Commission
    
    11 November 2016, 2. CatholicCare advised the Commission that this information sheet is the only documentation of CatholicCare’s policy or protocol in relation to adoption by same-sex couples.

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22. Department of Health and Human Services, Victoria, Data Collections for the Victorian Law Reform Commission, provided to the Commission 17 November 2016.

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23. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 1(2).

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24. See generally, Michael Brett Young, From Commitment to Culture—The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (State of Victoria, 2015); Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1289–95 (Rob Hulls, Attorney-General).

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25. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8.

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26. Ibid s 14.

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27. Ibid s 14(1).

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28. Ibid s 19(1).

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29. Equal Opportunity Act 2010 (Vic) s 3(a).

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30. Ibid pt 4.

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31. Ibid s 44.

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32. Ibid s 6.

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33. Ibid pt 4. Discrimination is permitted if that discrimination is necessary to comply with, or is authorised by, a provision of an Act, or where VCAT has granted a temporary exemption to allow discrimination in a certain circumstance, or where a specific action is already covered by an exemption or a special measure under the Act. See, eg, Equal Opportunity Act 2010 (Vic) ss 12, 75–91.

    ↑

34. Ibid s 75.

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35. Adoption Act 1984 (Vic) s 15(1)(b). This is further discussed in Chapter 12.

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36. Equal Opportunity Act 2010 (Vic) ss 82–4.

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37. Ibid s 82(2).

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38. Ibid s 81. See also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(5).

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39. Equal Opportunity Act 2010 (Vic) s 84. See also Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 308 ALR 615 [309]–[323], [413]–[422], which took a narrow view of ‘necessary’ for a person to comply with their doctrines, beliefs or principles, in relation to the precursor to s 84 under the Equal Opportunity Act 1995 (Vic). Generally, corporate bodies are prevented from relying upon this exception to refuse services on the basis of religious beliefs, as the exception applies to individuals not organisations. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) Vol V, 156. The Royal Commission observed that few people are aware of the potential application of Cobaw.

    ↑

40. Joel Harrison and Patrick Parkinson, ‘Freedom Beyond the Commons: Managing the Tension between Faith and Equality in a Multicultural Society’ (2014) 40(2) Monash University Law Review 413-–14.

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41. Equal Opportunity Act 2010 (Vic) ss 81, 82(2).

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42. Eamonn Moran and Teresa Porritt, Adoption by Same-Sex Couples: Legislative Review (2015) 3.

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43. Ibid 33–8.

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44. Ibid 38, Recommendation 6.

    ↑

45. See, eg, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic) cl 17; Explanatory Memorandum, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic) 7. The Bill proposed to insert a new subsection after section 82(2) of the Equal Opportunity Act 2010 (Vic).

    ↑

46. Victoria, Parliamentary Debates, Legislative Assembly, 7 October 2015, 3557, (Martin Foley, Minister for Equality).

    ↑

47. Victoria, Statement of Compatibility, Legislative Assembly, 7 October 2015, 3556.

    ↑

48. Ibid.

    ↑

49. Scrutiny of Acts and Regulations Committee, Parliament of Victoria, 58th Parliament Alert Digest, No 13 of 2015, 20 October 2015.

    ↑

50. CatholicCare, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 16 October 2015; Victorian Christian Legal Society, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 18 October 2015; Freedom 4 Faith, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 19 October 2015.

    ↑

51. Freedom 4 Faith, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 19 October 2015. CatholicCare also submitted that cl 17 would be contrary to the right to freedom of association pursuant to s 16 of the Charter: CatholicCare, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 16 October 2015.

    ↑

52. Australian Family Association, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 19 October 2015. Giving effect to a natural parent’s wishes is discussed in Chapter 12.

    ↑

53. Freedom 4 Faith, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 19 October 2015; Victorian Christian Legal Society, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same Sex Couples) Bill 2015 (Vic), 18 October 2015.

    ↑

54. CatholicCare, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 16 October 2015.

    ↑

55. Scrutiny of Acts and Regulations Committee, Parliament of Victoria, 58th Parliament Alert Digest, No 13 of 2015, 20 October 2015, 4.

    ↑

56. Victoria, Statement of Compatibility, Legislative Assembly, 7 October 2015, 3556 (Martin Foley, Minister for Equality).

    ↑

57. Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Exceptions and Exemptions to the Equal Opportunity Act 1995: Final Report (2009) 62–4.

    ↑

58. Ibid 63.

    ↑

59. Ibid 64.

    ↑

60. Ibid.

    ↑

61. Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Report No 129 (2016) 148 [5.102].

    ↑

62. Ibid 149 [5.105].

    ↑

63. Ibid.

    ↑

64. Sex Discrimination Act 1984 (Cth) s 37(2).

    ↑

65. Joel Harrison and Patrick Parkinson, ‘Freedom Beyond the Commons: Managing the Tension between Faith and Equality in a Multicultural Society’ (2014) 40(2) Monash University Law Review 413, 446.

    ↑

66. Ibid.

    ↑

67. Kerry O’Halloran, The Politics of Adoption: International Perspectives on Law, Policy and Practice (Dordrecht Springer, 3rd ed, 2015) 342–3.

    ↑

68. Catholic Care (Diocese of Leeds) v the Charity Commission for England and Wales and the Equality and Human Rights Commission [2010] EWHC 520 (Ch); [2011] EqLR 597. See also, Kerry O’Halloran, The Politics of Adoption: International Perspectives on Law, Policy and Practice (Dordrecht Springer, 3rd ed, 2015) 213; CatholicCare, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 16 October 2015; Freedom 4 Faith, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 19 October 2015.

    ↑

69. Catholic Care (Diocese of Leeds) v the Charity Commission for England and Wales and the Equality and Human Rights Commission [2012] UKUT 395 (TCC) [47].

    ↑

70. Anti-Discrimination Act 1977 (NSW) s 59A. See also Adoption Act 2000 (NSW) s 45B(2).

    ↑

71. Equal Opportunity Act 1984 (WA) ss 35Y, 4(1) (definition of ‘services’); Eamonn Moran and Teresa Porritt, Adoption by Same-Sex Couples: Legislative Review (2015) 37 [5.15].

    ↑

72. Submissions 9 (Australian Adoptee Rights Action Group), 12 (Dorothy Long), 15 (Jeremy Orchard), 20 (Name withheld), 22 (Confidential), 33a (Name withheld), 54 (Australian Christian Lobby).

    ↑

73. Submissions 15 (Jeremy Orchard), 20 (Name withheld).

    ↑

74. Submission 54 (Australian Christian Lobby).

    ↑

75. Ibid.

    ↑

76. Ibid.

    ↑

77. Consultation 9 (Roundtable with legal sector).

    ↑

78. Ibid.

    ↑

79. Submissions 19 (Sharyn White), 21 (Name withheld), 36 (Child & Family Services Ballarat Inc.). See also, Submissions 7 (Name withheld), 8a (Name withheld).

    ↑

80. Submission 36 (Child & Family Services Ballarat Inc.).

    ↑

81. Submission 58 (Name withheld).

    ↑

82. Submission 7 (Name withheld).

    ↑

83. Consultation 17 (Rainbow Families Council and the Victorian Gay & Lesbian Rights Lobby).

    ↑

84. Submission 51 (Law Institute of Victoria).

    ↑

85. Ibid.

    ↑

86. Submission 39 (ARMS (Vic)).

    ↑

87. Submission 44 (Victorian Gay & Lesbian Rights Lobby); Victorian Gay & Lesbian Rights Lobby, Positions Paper: Religious Exemptions (2016), provided to the Commission 19 September 2016, 7 [4.1] (attached to Submission 44 (Victorian Gay & Lesbian Rights Lobby)).

    ↑

88. Victorian Gay & Lesbian Rights Lobby, Positions Paper: Religious Exemptions (2016), provided to the Commission 19 September 2016 8 [4.3]; Submission 44 (Victorian Gay & Lesbian Rights Lobby).

    ↑

89. Victorian Gay & Lesbian Rights Lobby, Positions Paper: Religious Exemptions, provided to the Commission 19 September 2016 8 [4.4].

    ↑

90. Submission 44 (Victorian Gay & Lesbian Rights Lobby).

    ↑

91. Ibid. See, eg, Equal Opportunity Act 1984 (SA) s 34(3).

    ↑

92. Submission 44 (Victorian Gay & Lesbian Rights Lobby). This was proposed as part of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 which amended s 37(2)(a) of the Sex Discrimination Act 1984 (Cth), in relation to the delivery of Commonwealth-funded aged care services.

    ↑

93. Submission 45 (Dr Briony Horsfall).

    ↑

94. Submission 34 (VANISH).

    ↑

95. Equal Opportunity Act 2010 (Vic) s 75.

    ↑

96. Ibid pt 5.

    ↑

97. Adoption Act 1984 (Vic) ss 11–2. This is further discussed in Chapter 10.

    ↑

98. Ibid ss 13(3), 15(1)(a); Adoption Regulations 2008 (Vic) regs 35, 37. This is further discussed in Chapter 11.

    ↑

99. Adoption Act 1984 (Vic) s 15(1)(b). This is further discussed in Chapter 12.

    ↑

100. Centralising the process for selecting adoptive parents may mitigate the risk of discrimination against same-sex couples. See Chapter 12.

     ↑

101. See, eg, Submission 44 (Victorian Gay & Lesbian Rights Lobby).

     ↑

102. Ibid.

     ↑

103. The Legislative Council omitted clause 17 from the Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015.

     ↑

104. Scrutiny of Acts and Regulations Committee, Parliament of Victoria, 58th Parliament Alert Digest, No 13 of 2015, 20 October 2015. See, eg, Victoria, Parliamentary Debates, Legislative Council, 12 November 2015, 4347, 4364 (Dr Rachel Carling-Jenkins), , 4364 (Jenny Mikakos, Minister for Families and Children), 4364–65 (Gavin Jennings, Special Minister of State).

     ↑

105. Recommendation 56(b)–(c).

     ↑

106. See [13.48]–[13.49].

     ↑

107. See submissions made to the Scrutiny of Acts and Regulations Committee, Parliament of Victoria, 58th Parliament Alert Digest, No 13 of 2015, 20 October 2015.

     ↑

108. Australian Christian Lobby, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 15 October 2015; Freedom 4 Faith, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 19 October 2015; Victorian Christian Legal Society, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 18 October 2015.

     ↑

109. Freedom 4 Faith, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 19 October 2015; Victorian Christian Legal Society, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 18 October 2015.

     ↑

110. CatholicCare, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 16 October 2015; Freedom 4 Faith, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 19 October 2015; Victorian Christian Legal Society, Submission to Scrutiny of Acts and Regulations Committee, Adoption Amendment (Adoption by Same-Sex Couples) Bill 2015 (Vic), 18 October 2015.

     ↑

111. Submission 54 (Australian Christian Lobby).

     ↑

112. Adoption Act 1984 (Vic) ss 21–32.

     ↑

113. Ibid s 24(1)(d).

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