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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Adoption Amendment Bill (No. 2) 2002
CONTENTS
1. Short title 1
2. Commencement 2
3. The Act amended 2
4. Section 3 replaced 2
5. Section 4 amended 3
6. Section 4A replaced 5
7. Section 9 amended and a transitional provision 6
8. Section 10 amended 6
9. Heading to Part 2 Division 3 amended 7
10. Section 12 replaced 7
11. Section 13 amended 7
12. Section 14 amended 8
13. Section 15 amended 8
14. Part 3 Division 1 heading replaced 9
15. Section 16A inserted 9
16. Section 18 amended 9
17. Section 19 repealed 10
18. Section 21 amended 10
19. Section 23 amended 11
20. Section 24 amended 11
21. Section 26C amended 11
22. Section 37 amended 11
23. Section 39 amended 12
24. Section 41 amended 12
25. Section 42 amended 12
26. Section 44 amended 13
27. Section 45 amended 13
28. Section 46 amended 13
29. Section 52 amended 13
30. Section 53 replaced 15
31. Section 58 amended 15
137--3 page i
Adoption Amendment Bill (No. 2) 2002
Contents
32. Section 59 amended 16
33. Section 61 amended 16
34. Section 65 amended and validation of certain adoption
orders 16
35. Section 66 amended 17
36. Section 67 amended 17
37. Section 68 amended 18
38. Section 69 amended 18
39. Section 73 replaced 20
40. Section 74 amended 20
41. Section 77 amended 20
42. Section 79 amended 21
43. Section 80 amended 22
44. Section 82 amended 23
45. Section 84 amended 23
46. Section 86 amended 24
47. Section 87 repealed 24
48. Section 89 replaced 24
49. Section 90 replaced 26
50. Section 94 amended 27
51. Part 4 Division 4 heading amended 28
52. Section 95 repealed 28
53. Section 96 repealed 28
54. Section 97 repealed 28
55. Section 98 amended 28
56. Section 98 repealed 29
57. Section 99 replaced 29
58. Section 100 amended 29
59. Section 101 repealed and a provision declaring
information vetoes to be ineffective from the time of
the repeal 30
60. Section 102 amended 30
61. Heading to Part 4 Division 5 amended 31
62. Section 105 amended 31
63. Section 106 amended 31
64. Section 107 amended 31
65. Section 108 amended 32
66. Section 110 amended 32
67. Heading to Part 5 Division 2 replaced 33
68. Section 113 amended 33
69. Section 114 amended 33
page ii
Adoption Amendment Bill (No. 2) 2002
Contents
70. Section 116 amended 33
71. Section 120 amended 34
72. Section 124 amended 34
73. Section 127 amended 34
74. Section 128 replaced 35
75. Section 129 amended 36
76. Section 130A amended 36
77. Section 131 amended 36
78. Section 134 amended 36
79. Section 136F amended 38
80. Section 136H amended 38
81. Section 138D amended 38
82. Section 143 amended 38
83. Section 146 replaced 38
84. Schedule 1 amended 40
85. Schedule 2A replaced 42
86. Schedule 3 amended 43
87. Consequential amendment to Constitution Acts
Amendment Act 1899 43
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Adoption Amendment Bill (No. 2) 2002
A Bill for
An Act to --
• amend the Adoption Act 1994;
• validate certain purported adoption orders; and
• consequentially amend the Constitution Acts Amendment
Act 1899.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Adoption Amendment Act
(No. 2) 2002.
page 1
Adoption Amendment Bill (No. 2) 2002
s. 2
2. Commencement
(1) Subject to subsection (2), this Act comes into operation on a day
fixed by proclamation.
(2) Sections 5(4) and (5), 42(1) and (3), 44, 51, 53,
5 54, 56, 57, 59, 60 and 86(2), (4) and (5) (which relate to
information vetoes no longer having effect) come into operation
24 months after the day fixed under subsection (1).
3. The Act amended
The amendments in this Act are to the Adoption Act 1994*
10 except in section 87.
[* Reprinted as at 2 January 2001.]
4. Section 3 replaced
Section 3 is repealed and the following section is inserted
instead --
15 "
3. Principles
(1) The paramount considerations to be taken into account
in the administration of this Act are --
(a) the welfare and best interests of a child who is
20 an adoptee or a prospective adoptee;
(b) the principle that adoption is a service for a
child who is an adoptee or a prospective
adoptee; and
(c) the adoption of a child should occur only in
25 circumstances where there is no other
appropriate alternative for the child.
(2) It is acknowledged that adoption is not part of
Aboriginal or Torres Strait Island culture and that
therefore the adoption of a child who is an Aboriginal
page 2
Adoption Amendment Bill (No. 2) 2002
s. 5
person or a Torres Strait Islander should occur only in
circumstances where there is no other appropriate
alternative for that child.
".
5 5. Section 4 amended
(1) Section 4(1) is amended in the definition of "adoption
applications committee" by deleting "a" and inserting instead --
" the ".
(2) Section 4(1) is amended in the definition of "carer" by deleting
10 "child;" and inserting instead --
"
child through a placement arranged or approved by the
Department for the care of the child by the person or
persons;
15 ".
(3) Section 4(1) is amended in the definition of "contact and
mediation agency" by deleting "agency" and inserting
instead --
" licensee ".
20 (4) Section 4(1) is amended in the definition of "contact veto" by
deleting "registered under section 98(1)" and inserting
instead --
"
that was registered under Part 4 Division 4 before the
25 veto cut off day
".
(5) Section 4(1) is amended by deleting the definition of
"information veto".
(6) Section 4(1) is amended in the definition of "parental
30 responsibility" by inserting after "the" --
" duties, ".
page 3
Adoption Amendment Bill (No. 2) 2002
s. 5
(7) Section 4(1) is amended after the definition of "step-parent" by
deleting the full stop and inserting a semicolon instead.
(8) Section 4(1) is amended by inserting in the appropriate
alphabetical positions the following definitions --
5 "
"Aboriginal person" means a person who is a
descendant of Aboriginal people of Australia;
"lineal relative", in relation to a person, means each of
the following people --
10 (a) the person's parent or remoter lineal
ancestor;
(b) the person's child or remoter lineal
descendant;
(c) the person's sibling of the whole or half
15 blood,
whether the relationship is established by, or
traced through, marriage, a written law or a natural
relationship;
"relative", in relation to a person, means each of the
20 following people --
(a) the person's --
(i) spouse or de facto partner;
(ii) parent or other ancestor;
(iii) child or other descendant;
25 (iv) step-parent or step-child;
(v) sibling;
(vi) uncle or aunt,
whether the relationship is of the whole or
half blood, established by, or traced through,
30 marriage, a written law or a natural
relationship;
page 4
Adoption Amendment Bill (No. 2) 2002
s. 6
(b) in the case of an Aboriginal person, a person
regarded under the customary law or
tradition of the person's community as the
equivalent of a person mentioned in
5 paragraph (a);
(c) in the case of a Torres Strait Islander, a
person regarded under the customary law or
tradition of the Torres Strait Islands as the
equivalent of a person mentioned in
10 paragraph (a);
"Torres Strait Islander" means a person who is a
descendant of the indigenous inhabitants of the
Torres Strait Islands;
"veto cut off day" means the day fixed under
15 section 2(1) of the Adoption Amendment Act
(No. 2) 2002.
".
(9) Section 4(2)(c) is amended by inserting after "Aboriginal
person" --
20 " or a Torres Strait Islander ".
6. Section 4A replaced
Section 4A is repealed and the following section is inserted
instead --
"
25 4A. Presumptions of parentage
The presumptions of parentage set out in Part 5
Division 11 Subdivision 3 of the Family Court
Act 1997 apply when considering, for the purposes of
this Act, who is --
30 (a) a parent of a person who is a prospective
adoptee; or
(b) a birth parent of a person who is an adoptee.
".
page 5
Adoption Amendment Bill (No. 2) 2002
s. 7
7. Section 9 amended and a transitional provision
(1) Section 9 is amended by inserting before "The" the subsection
designation "(1)".
(2) At the end of section 9 the following subsections are inserted --
5 "
(2) An application for a licence can only be made during a
period of time set by the Minister as a period during
which applications for licences can be made.
(3) The Minister is to publish the periods of time set under
10 subsection (2) in such manner as the Minister thinks is
appropriate.
".
(3) An application for a licence to conduct adoption services and to
perform other functions for the purposes of the Adoption
15 Act 1994 that was made before the day fixed under section 2(1)
of the Adoption Amendment Act (No. 2) 2002 is not affected by
the enactment of this section.
8. Section 10 amended
(1) After section 10(g) the following paragraph is inserted --
20 "
(ga) the undertaking by the Director-General of
reviews of the operations of private adoption
agencies;
".
25 (2) Section 10(h) is amended by deleting "them;" and inserting
instead --
"
them, whether for the purposes of a review of
an agency's operations under regulations made
30 under paragraph (ga), a review under Part 5
Division 1, or otherwise;
".
page 6
Adoption Amendment Bill (No. 2) 2002
s. 9
9. Heading to Part 2 Division 3 amended
The heading to Part 2 Division 3 is amended by deleting
"committees" and inserting instead --
" committee ".
5 10. Section 12 replaced
Section 12 is repealed and the following section is inserted
instead --
"
12. Establishment of adoption applications committee
10 The Director-General is to appoint an adoption
applications committee in accordance with this
Division.
".
11. Section 13 amended
15 (1) Section 13 is amended by inserting before "The" the subsection
designation "(1)".
(2) Section 13 is amended by deleting "an" and inserting instead --
" the ".
(3) Section 13(b) is amended by inserting after "to approve," --
20 "
either generally or in accordance with
subsection (2),
".
page 7
Adoption Amendment Bill (No. 2) 2002
s. 12
(4) At the end of section 13 the following subsection is inserted --
"
(2) The adoption applications committee may approve a
person as a prospective adoptive parent for adoptive
5 parenthood of children in one or more of the following
categories --
(a) children who are of an age, origin or ethnic
background specified by the committee;
(b) children who require medical, behavioural or
10 psychological care specified by the committee;
(c) children who are not of an age, origin or ethnic
background specified by the committee;
(d) children who do not require medical,
behavioural or psychological care specified by
15 the committee.
".
12. Section 14 amended
(1) Section 14(1) is amended by deleting "An" and inserting
instead --
20 " The ".
(2) Section 14(3) is repealed.
13. Section 15 amended
(1) Section 15 is amended by deleting "adoption applications
committees" and inserting instead --
25 " the adoption applications committee ".
(2) Section 15(b) is amended by deleting "each adoption
application" and inserting instead --
" the adoption applications ".
page 8
Adoption Amendment Bill (No. 2) 2002
s. 14
14. Part 3 Division 1 heading replaced
The heading to Part 3 Division 1 is deleted and the following
heading is inserted instead --
"
5 Division 1 -- Preliminary matters
".
15. Section 16A inserted
After section 16 the following section is inserted in
Part 3 Division 1 --
10 "
16A. Matters relevant to the adoption process for
Aboriginal or Torres Strait Islander children
(1) The Director-General is to ensure that an officer of the
department who is an Aboriginal person or a Torres
15 Strait Islander is involved at all relevant times to assist
in the adoption process of a child who is an Aboriginal
person or a Torres Strait Islander.
(2) The Director-General is to consult with an Aboriginal
or Torres Strait Islander agency that is approved by the
20 Director-General for the purposes of this section,
regarding the prospective adoption of a child who is an
Aboriginal person or a Torres Strait Islander.
".
16. Section 18 amended
25 (1) Section 18(1)(c) is amended by deleting "Minister" and
inserting instead --
" Director-General ".
page 9
Adoption Amendment Bill (No. 2) 2002
s. 17
(2) Section 18(1) is amended after paragraph (d) by deleting "and"
and inserting the following --
"
(da) in the case of a proposed adoption by a
5 step-parent of a child, the Director-General has
had at least 30 days to comment on the
provisions of a proposed adoption plan
prepared for the purposes of section 55(1); and
".
10 (3) Section 18(7)(b)(i) is amended by deleting "father is also a
lineal relative of the birth parent;" and inserting instead --
" birth parents are lineal relatives; ".
(4) Section 18(8) is repealed.
17. Section 19 repealed
15 Section 19 is repealed.
18. Section 21 amended
(1) Section 21(1)(a) is amended by deleting "clause 4 or 5 of
Division 2 of Schedule 2A;" and inserting instead --
" section 188 or 189 of the Family Court Act 1997; ".
20 (2) Section 21(1)(b) is amended by deleting "Division 2 of
Schedule 2A)" and inserting instead --
"
Part 5 Division 11 Subdivision 3 of the Family
Court Act 1997)
25 ".
(3) Section 21(5) is repealed.
page 10
Adoption Amendment Bill (No. 2) 2002
s. 19
19. Section 23 amended
Section 23(1)(a) is amended by deleting "Minister" and
inserting instead --
" Director-General ".
5 20. Section 24 amended
(1) Section 24(2)(b) is amended by deleting "2 years" and inserting
instead --
" one year ".
(2) Section 24(2)(g) is amended by deleting "exceptional" and
10 inserting instead --
" special ".
(3) Section 24(3) is repealed.
21. Section 26C amended
Section 26C(1)(a) is amended by deleting "Division 2 of
15 Schedule 2A;" and inserting instead --
"
Part 5 Division 11 Subdivision 3 of the Family
Court Act 1997;
".
20 22. Section 37 amended
After section 37(2) the following subsection is inserted --
"
(3) Despite subsection (1), the Director-General does not
have to provide a person who is already an adoptive
25 parent and who is contemplating adoptive parenthood
for a second or subsequent time with oral information
about, and counselling in relation to, adoption unless
the person chooses to be provided with such
information and counselling.
30 ".
page 11
Adoption Amendment Bill (No. 2) 2002
s. 23
23. Section 39 amended
(1) Section 39(1) is amended as follows:
(a) after paragraph (c) by deleting "and";
(b) by deleting paragraph (d) and inserting the following
5 instead --
"
(d) if married to, or in a de facto relationship with,
another person, applies as a joint applicant with
that person; and
10 (e) if applying as a joint applicant --
(i) has been married to, or in a de facto
relationship with, the other applicant for
at least 3 years; and
(ii) is not married to, or in a de facto
15 relationship with, any other person.
".
(2) Section 39(3) is amended by deleting "subsection (1)(d)" in
both places where it occurs and inserting instead --
" subsection (1)(e)(i) ".
20 24. Section 41 amended
Section 41(1) and (2) are amended by deleting "an" and
inserting instead --
" the ".
25. Section 42 amended
25 (1) Section 42(1) is amended by deleting "An" and inserting
instead --
" The ".
page 12
Adoption Amendment Bill (No. 2) 2002
s. 26
(2) Section 42(2) and (3) are amended by deleting "an" and
inserting instead --
" the ".
26. Section 44 amended
5 Section 44(1)(b) is amended by deleting "an" and inserting
instead --
" the ".
27. Section 45 amended
Section 45 is amended by deleting "not less than 18 days".
10 28. Section 46 amended
Section 46(3) is amended by deleting "7" in both places where it
occurs and inserting instead --
" 21 ".
29. Section 52 amended
15 (1) Section 52(1)(a)(iii) is deleted and the following subparagraphs
are inserted instead --
"
(iii) is not more than 45 years older than the
child in the case where the prospective
20 adoptive parent is the younger of
prospective joint adoptive parents who,
as a couple, have not adopted a child
before;
(iiia) is not more than 50 years older than the
25 child in the case where the prospective
adoptive parent is the older of
prospective joint adoptive parents who,
as a couple, have not adopted a child
before;
page 13
Adoption Amendment Bill (No. 2) 2002
s. 29
(iiib) is not more than 50 years older than the
child in the case where the prospective
adoptive parent is the younger of
prospective joint adoptive parents who,
5 as a couple, have adopted a child before;
(iiic) is not more than 55 years older than the
child in the case where the prospective
adoptive parent is the older of
prospective joint adoptive parents who,
10 as a couple, have adopted a child before;
(iiid) is not more than 45 years older than the
child in the case where the prospective
adoptive parent is a prospective sole
adoptive parent and has not adopted a
15 child before (whether as a joint or sole
adoptive parent); or
(iiie) is not more than 50 years older than the
child in the case where the prospective
adoptive parent is a prospective sole
20 adoptive parent and has adopted a child
before (whether as a joint or sole
adoptive parent);
".
(2) Section 52(1)(a)(v) is deleted and the following subparagraphs
25 are inserted instead --
"
(v) meets, if relevant, the child's wishes;
(va) recognises the value of, and need for,
cultural and ethnic continuity for the
30 child;
(vb) shows a desire and ability to continue
the child's established cultural, ethnic,
religious or educational arrangements;
".
page 14
Adoption Amendment Bill (No. 2) 2002
s. 30
(3) After section 52(1)(a) the following paragraphs are inserted --
"
(aa) where the adoption applications committee has
approved the prospective adoptive parent in
5 accordance with section 13(2), the child
belongs to a category of children in respect of
whom the prospective adoptive parent has been
approved for prospective adoptive parenthood;
(ab) where the child is an Aboriginal person or a
10 Torres Strait Islander, the placement is in
accordance with the Aboriginal or Torres Strait
Islander children -- placement for adoption
principle as set out in Schedule 2A;
".
15 30. Section 53 replaced
Section 53 is repealed and the following section is inserted
instead --
"
53. Placing children who cannot be placed under s. 52
20 The Director-General may place a child with a
prospective adoptive parent with a view to the child's
adoption even though the placement does not fulfil
some of the requirements of section 52(1) if --
(a) the child is a sibling of an adoptee who is
25 resident in the State; or
(b) the child cannot otherwise be placed.
".
31. Section 58 amended
Section 58(1) is amended by deleting "Department or sent by
30 registered post to the".
page 15
Adoption Amendment Bill (No. 2) 2002
s. 32
32. Section 59 amended
Section 59(2) is amended as follows:
(a) by inserting after "applies" --
" ("the birth parent") ";
5 (b) in paragraph (a) by deleting "parent;" and inserting
instead --
"
parent of the birth parent or, if the birth parent's
birth parent was an adoptee, an adoptive parent
10 of the birth parent;
";
(c) in paragraph (b) by inserting after "sister" --
" of the birth parent whether ";
(d) in paragraph (c) by deleting "aunt," and inserting
15 instead --
" aunt of the birth parent, ".
33. Section 61 amended
Section 61(1) is amended by deleting "section 58(1)," and
inserting instead --
20 "
section 58(1) and on payment of the prescribed fee, if
applicable,
".
34. Section 65 amended and validation of certain adoption
25 orders
(1) Section 65(1)(a) and "and" after it are deleted and the following
is inserted instead --
"
(a) either --
30 (i) the person is present in the State and is
permitted under a law of the
page 16
Adoption Amendment Bill (No. 2) 2002
s. 35
Commonwealth to remain permanently
in Australia; or
(ii) the person, having been born in the
State, is present in the State;
5 and
".
(2) An adoption order made or purported to be made by the Court
before the commencement of this Act is, and is taken always to
have been, as valid and effective as it would have been if the
10 amendments made by subsection (1) were in effect at the time
the order was made or purported to be made.
35. Section 66 amended
(1) Section 66(1)(b) is amended by deleting "for at least 3 years,".
(2) After section 66(2) the following subsection is inserted --
15 "
(3) A person cannot be adopted by a relative of the person,
other than a step-parent.
".
36. Section 67 amended
20 (1) Section 67(1)(a) is amended by deleting "child;" and inserting
instead --
"
child and has been married to, or in a de facto
relationship with, a parent of the child for at
25 least 3 years;
".
(2) After section 67(3) the following subsections are inserted --
"
(4) For the purposes of subsection (1)(a) if the step-parent
30 is married to a parent of the child and before the
marriage those persons were living as de facto partners,
page 17
Adoption Amendment Bill (No. 2) 2002
s. 37
the period of living as de facto partners may be
included when calculating the period referred to in
subsection (1)(a).
(5) For the purposes of subsection (2) if the persons
5 referred to in subsection (1)(b) and (c) or the carers
referred to in section 66(2) are married and before the
marriage those persons or carers were living as de facto
partners, the period of living as de facto partners may
be included when calculating the period referred to in
10 subsection (2).
".
37. Section 68 amended
After section 68(1)(f) "and" is deleted and the following is
inserted instead --
15 "
(fa) if a step-parent of a child wishes to adopt the
child, the Court has determined that the child's
adoption by the step-parent is preferable to any
of the following orders being made under the
20 Family Law Act 1975 of the Commonwealth or
the Family Court Act 1997, as is relevant to the
case --
(i) a parenting order in respect of the child;
(ii) an order in respect of the welfare of the
25 child; or
(iii) an order in respect of the appointment
or removal of a guardian of the child;
and
".
30 38. Section 69 amended
(1) After section 69(1)(a) "and" is deleted.
page 18
Adoption Amendment Bill (No. 2) 2002
s. 38
(2) After section 69(1)(b) the full stop is deleted and the following
is inserted instead --
"
; and
5 (c) notices required by subsection (4) have been
given or the application is in accordance with
an order under subsection (6).
".
(3) After section 69(3) the following subsections are inserted --
10 "
(4) A person is not to file an application for an adoption
order in relation to an adult unless at least 30 days
before the application is filed, the person gives notice
of the intention to file the application to each of the
15 prospective adoptee's birth parents in a written notice
delivered personally or by registered post to the
respective birth parent's last known address.
(5) A person intending to file an application for an
adoption order in relation to an adult may apply to the
20 Court for orders in relation to a requirement to give
notice under subsection (4).
(6) On an application under subsection (5) the Court may,
on such terms and conditions as it thinks fit --
(a) vary the time for giving the notice; or
25 (b) dispense wholly or partly with a requirement to
give the notice.
".
page 19
Adoption Amendment Bill (No. 2) 2002
s. 39
39. Section 73 replaced
Section 73 is repealed and the following section is inserted
instead --
"
5 73. Dispensing with adoption plans
The Court may dispense with the requirement for an
adoption plan or that a particular birth parent be a party
to the plan --
(a) if a birth parent is --
10 (i) unable or unwilling to participate, or
incapable of participating, in a plan; or
(ii) cannot be found or contacted after
enquiries which the Court thinks are
sufficient;
15 or
(b) in special circumstances.
".
40. Section 74 amended
Before section 74(2)(a) the following paragraph is inserted --
20 "
(aa) the principle that a child's first name should not
be changed at the time of adoption except in
special circumstances;
".
25 41. Section 77 amended
(1) Section 77(1) is repealed and the following subsection is
inserted instead --
"
(1) The following persons may apply to the Court for an
30 order to discharge an adoption order --
(a) the Attorney General;
page 20
Adoption Amendment Bill (No. 2) 2002
s. 42
(b) the Director-General;
(c) an adult adoptee who has notified the
Director-General of the adoptee's intention to
so apply.
5 ".
(2) Section 77(3) is repealed and the following subsections are
inserted instead --
"
(3) The Court is not to make an order under
10 subsection (2) --
(a) if to do so would not be for the welfare and in
the best interests of the adoptee; and
(b) unless the Court is satisfied that reasonable
efforts have been made to notify all the parties
15 to the adoption of the application.
(3a) Any person may apply for leave to intervene in an
application under subsection (1) and the Court may
make an order entitling the person to intervene in the
application.
20 (3b) A person who, under subsection (3a), intervenes in an
application under subsection (1), is to be treated as a
party to the application with all the rights, duties and
liabilities of a party, unless the Court orders otherwise.
".
25 42. Section 79 amended
(1) Section 79(1)(f)(i) is amended by deleting "or information
veto".
(2) Section 79(1)(i) is amended by deleting "agencies" and
inserting instead --
30 " licensees ".
page 21
Adoption Amendment Bill (No. 2) 2002
s. 43
(3) Section 79(2)(b) is amended by deleting "veto or an information
veto." and inserting instead --
" veto. ".
(4) After section 79(2) the following subsection is inserted --
5 "
(3) The Director-General is not to release identifying
information under this Act to a person whose access to
the information is the subject of an information veto
that will become, or became, ineffective because of the
10 operation of section 59(2) of the Adoption Amendment
Act (No. 2) 2003 unless --
(a) the person attends an interview with an officer
of the Department; and
(b) all the parties to the adoption and their relatives
15 have been provided with the information,
counselling and mediation that the
Director-General thinks is necessary in the
particular case.
".
20 43. Section 80 amended
After section 80(2) the following subsection is inserted --
"
(3) The Director-General does not have to inform a person
under subsection (1) or (2) of a death --
25 (a) if the person has, in a manner approved by the
Director-General, notified the Director-General
that the person does not wish to be so advised; or
(b) in special circumstances.
".
page 22
Adoption Amendment Bill (No. 2) 2002
s. 44
44. Section 82 amended
Section 82(2) is repealed and the following subsection is
inserted instead --
"
5 (2) On an application under subsection (1), the
Director-General is to give his or her authority for the
applicant to have access to the information as requested
in the application unless the Director-General thinks
that there is a good reason for not doing so and in that
10 case, the Director-General may give the authority on
condition that the applicant may or may not have
access to the information specified in the authority.
".
45. Section 84 amended
15 (1) After section 84(2)(b) "and" is deleted.
(2) After section 84(2)(c) the full stop is deleted and the following
is inserted instead --
"
; and
20 (d) sections 89 and 90.
".
(3) After section 84(3) the following subsections are inserted --
"
(4) Nothing in subsection (1) or (2) prevents a person
25 referred to in subsection (1)(a) to (d) from applying in
writing to the Court for a copy of a report under
section 61 or a report from a representative of the child
submitted to the Court in relation to the adoption.
(5) On an application under subsection (4) the Court may,
30 as it thinks fit, release all or part of a report under
section 61 or a report from a representative of the child
submitted to the Court in relation to the adoption.
".
page 23
Adoption Amendment Bill (No. 2) 2002
s. 46
46. Section 86 amended
(1) Section 86 is amended by inserting before "At" the subsection
designation "(1)".
(2) At the end of section 86 the following subsection is inserted --
5 "
(2) A certified copy of that portion of the registration of an
adoptee's birth that does not refer to the adoptee's
adoption or birth parents that is issued by the Registrar
under subsection (1) is admissible in legal proceedings
10 as evidence of the facts recorded on the document.
".
47. Section 87 repealed
Section 87 is repealed.
48. Section 89 replaced
15 Section 89 is repealed and the following section is inserted
instead --
"
89. If party to adoption deceased
(1) If a party to an adoption is deceased, any --
20 (a) grandparent of the party;
(b) descendant of the party; or
(c) sibling of the party,
who is 18 or more years of age has the right to have
access to the registration of the adoptee's birth.
25 (2) Subsection (1) is subject to --
(a) section 82(2);
(b) production to the Registrar, of the authority
under section 82(2) to allow access to the
information; and
page 24
Adoption Amendment Bill (No. 2) 2002
s. 48
(c) the Births, Deaths and Marriages Registration
Act 1998 in relation to the manner of
application for access to information held by
the Registrar.
5 (3) The production to the Registrar of the authority
referred to in subsection (2)(b) is to be treated as an
adequate reason, for the purposes of section 54 or 55 of
the Births, Deaths and Marriages Registration
Act 1998, for the Registrar --
10 (a) to allow a person access to the Register;
(b) to provide a person with information extracted
from the Register; or
(c) to search for information in the Register,
within the meaning of that Act.
15 (4) If a party to an adoption is deceased, any --
(a) grandparent of the party;
(b) descendant of the party; or
(c) sibling of the party,
who is 18 or more years of age has the right to have
20 access to the record of proceedings in a court in
relation to an adoption or a proposed adoption.
(5) Subsection (4) is subject to --
(a) section 82(2);
(b) the production to the registrar of the court or
25 other similar officer, of the authority under
section 82(2) to allow access to the
information;
(c) the requirements of the relevant court under any
law or rule of practice relating to inspection of
30 and release of information generally from its
record of proceedings; and
page 25
Adoption Amendment Bill (No. 2) 2002
s. 49
(d) any court order in relation to exclusion of
persons from the hearing of the proceedings.
".
49. Section 90 replaced
5 Section 90 is repealed and the following section is inserted
instead --
"
90. If adoptee cannot be found
(1) If an adoptee who is 18 or more years of age, cannot be
10 found or contacted after enquiries which the
Director-General thinks are sufficient, any --
(a) grandparent of the adoptee;
(b) descendant of the adoptee; or
(c) sibling of the adoptee,
15 who is 18 or more years of age has the right to have
access to the registration of the adoptee's birth.
(2) Subsection (1) is subject to --
(a) section 82(2);
(b) production to the Registrar, of the authority
20 under section 82(2) to allow access to the
information; and
(c) the Births, Deaths and Marriages Registration
Act 1998 in relation to the manner of
application for access to information held by
25 the Registrar.
(3) The production to the Registrar of the authority
referred to in subsection (2)(b) is to be treated as an
adequate reason, for the purposes of section 54 or 55 of
the Births, Deaths and Marriages Registration
30 Act 1998, for the Registrar --
(a) to allow a person access to the Register;
page 26
Adoption Amendment Bill (No. 2) 2002
s. 50
(b) to provide a person with information extracted
from the Register; or
(c) to search for information in the Register,
within the meaning of that Act.
5 (4) If an adoptee who is 18 or more years of age, cannot be
found or contacted after enquiries which the
Director-General thinks are sufficient, any --
(a) grandparent of the adoptee;
(b) descendant of the adoptee; or
10 (c) sibling of the adoptee,
who is 18 or more years of age has the right to have
access to the record of proceedings in a court in
relation to an adoption or a proposed adoption.
(5) Subsection (4) is subject to --
15 (a) section 82(2);
(b) the production to the registrar of the court or
other similar officer, of the authority under
section 82(2) to allow access to the
information;
20 (c) the requirements of the relevant court under any
law or rule of practice relating to inspection of
and release of information generally from its
record of proceedings; and
(d) any court order in relation to exclusion of
25 persons from the hearing of the proceedings.
".
50. Section 94 amended
Section 94(3) is amended as follows:
(a) by deleting "an association" and inserting instead --
30 " a hospital or hostel or any other association ";
page 27
Adoption Amendment Bill (No. 2) 2002
s. 51
(b) by deleting "75" and inserting instead --
" 100 ".
51. Part 4 Division 4 heading amended
The heading to Part 4 Division 4 is amended by deleting "and
5 information".
52. Section 95 repealed
Section 95 is repealed.
53. Section 96 repealed
Section 96 is repealed.
10 54. Section 97 repealed
Section 97 is repealed.
55. Section 98 amended
(1) Section 98(1) is amended by deleting "veto." and inserting
instead --
15 "
veto,
but a statement cannot be registered on or after the veto
cut off day.
".
20 (2) Section 98(2) is amended by deleting "plan." and inserting
instead --
"
plan,
but a request cannot be registered on or after the veto
25 cut off day.
".
page 28
Adoption Amendment Bill (No. 2) 2002
s. 56
56. Section 98 repealed
Section 98, as amended by section 55 of this Act, is repealed.
57. Section 99 replaced
Section 99 is repealed and the following section is inserted
5 instead --
"
99. Register of contact vetoes
The Director-General is to maintain a register of --
(a) the statements of wishes that were registered
10 under this Division before the veto cut off day;
and
(b) any cancellation or variation under
section 102(1).
".
15 58. Section 100 amended
(1) Section 100(1)(d) is amended as follows:
(a) inserting before "where" --
" subject to subsection (3), ";
(b) deleting "18" in the second place where it occurs and
20 inserting instead --
" 19 ".
(2) After section 100(2) the following subsection is inserted --
"
(3) An adoptee on behalf of whom a statement of wishes
25 for a contact veto was lodged before the veto cut off
day may --
(a) within 12 months after attaining the age of
18 years; and
(b) in writing given to the Director-General,
page 29
Adoption Amendment Bill (No. 2) 2002
s. 59
continue the effect of the statement of wishes and, in
that case, subsections (1)(a), (b) and (c) and (2) and
sections 102, 103 and 104 apply in relation to the
adoptee as if the adoptee were the person who lodged
5 the statement of wishes or sought the registration of the
relevant contact veto.
".
59. Section 101 repealed and a provision declaring information
vetoes to be ineffective from the time of the repeal
10 (1) Section 101 is repealed.
(2) An information veto --
(a) that was registered under Part 4 Division 4 of the
Adoption Act 1994 before the veto cut off day; and
(b) that has effect immediately before the day on which
15 subsection (1) comes into operation,
has no effect on and from the day on which subsection (1)
comes into operation.
60. Section 102 amended
(1) Section 102(1) is repealed and the following subsection is
20 inserted instead --
"
(1) A person whose statement of wishes was registered
under this Division before the veto cut off day may, in
a form approved by the Director-General, cancel or
25 apply to vary the statement.
".
(2) Section 102(2) is amended as follows:
(a) by deleting "or an information veto";
(b) in paragraph (c) by deleting ", or information in relation
30 to,".
(3) Section 102(3) is amended by deleting "or an information veto".
page 30
Adoption Amendment Bill (No. 2) 2002
s. 61
61. Heading to Part 4 Division 5 amended
The heading to Part 4 Division 5 is amended by deleting
"agencies" and inserting instead --
" licensees ".
5 62. Section 105 amended
Section 105(2) is amended by deleting "agency" in both places
where it occurs and inserting instead --
" licensee ".
63. Section 106 amended
10 Section 106 is amended as follows:
(a) by deleting "Minister" and inserting instead --
" Director-General ";
(b) by deleting "a person" and inserting instead --
" an individual ".
15 64. Section 107 amended
(1) Section 107(c) is amended as follows:
(a) by deleting "Minister" and inserting instead --
" Director-General ";
(b) by deleting "agency" and inserting instead --
20 " licensee ".
(2) Section 107(d) is amended by deleting "Minister's" and
inserting instead --
" Director-General's ".
(3) Section 107(f) is amended by deleting "agencies" and inserting
25 instead --
" licensees ".
page 31
Adoption Amendment Bill (No. 2) 2002
s. 65
65. Section 108 amended
(1) Section 108(1) is amended as follows:
(a) by deleting "agency that" and inserting instead --
" licensee who ";
5 (b) by deleting "it" and inserting instead --
" the licensee ".
(2) Section 108(2) is amended by deleting "agency" in both places
where it occurs and inserting instead --
" licensee ".
10 (3) Section 108(3) is amended as follows:
(a) by deleting "agency" in the 3 places where it occurs and
inserting instead --
" licensee ";
(b) by deleting "Minister" and inserting instead --
15 " Director-General ";
(c) by deleting "agency's" and inserting instead --
" licensee's ".
66. Section 110 amended
(1) Section 110(1) is repealed and the following subsection is
20 inserted instead --
"
(1) A person who is aggrieved by a decision made for the
purposes of this Act by --
(a) a person to whom the Director-General had
25 delegated a function under section 6(1); or
(b) a private adoption agency,
may apply to the Director-General to review the
decision.
".
page 32
Adoption Amendment Bill (No. 2) 2002
s. 67
(2) Section 110(2) is amended by deleting "an" and inserting
instead --
" the ".
67. Heading to Part 5 Division 2 replaced
5 The heading to Part 5 Division 2 is deleted and the following
heading is inserted instead --
"
Division 2 -- Decisions of the adoption
applications committee
10 ".
68. Section 113 amended
(1) Section 113(1) is amended by deleting "an" and inserting
instead --
" the ".
15 (2) Section 113(3) is repealed and the following subsection is
inserted instead --
"
(3) The committee must comply with a direction given
under subsection (2).
20 ".
69. Section 114 amended
Section 114(2) is amended by deleting "an" and inserting
instead --
" the ".
25 70. Section 116 amended
Section 116 is amended by deleting "an adoption" and inserting
instead --
" the adoption ".
page 33
Adoption Amendment Bill (No. 2) 2002
s. 71
71. Section 120 amended
Section 120(1) is amended as follows:
(a) after the definition of "publish" by deleting the
semicolon and inserting a full stop instead;
5 (b) by deleting the definition of "relative".
72. Section 124 amended
(1) Section 124(1)(a) is amended by inserting after "is" --
" , or was but is no longer, ".
(2) Section 124(1)(b) is amended by deleting "or proposed
10 adoption," and inserting instead --
"
, a proposed adoption or the discharge of an
adoption order,
".
15 (3) After section 124(3) the following subsection is inserted --
"
(4) In subsection (3) --
"adoptee" includes a person who was but is no longer
an adoptee.
20 ".
73. Section 127 amended
Section 127(2) is amended as follows:
(a) after paragraph (b) by inserting the following
paragraph --
25 "
(ba) an Aboriginal or Torres Strait Islander agency,
approved by the Director-General for the
purposes of section 16A(2);
";
page 34
Adoption Amendment Bill (No. 2) 2002
s. 74
(b) in paragraph (d) by deleting "agency" and inserting
instead --
" licensee ";
(c) by deleting "adoption." and inserting instead --
5 " adoption, or the discharge of an adoption order. ".
74. Section 128 replaced
Section 128 is repealed and the following section is inserted
instead --
"
10 128. Authority, and time in which, to prosecute
(1) All proceedings for offences against this Act are to be --
(a) instituted by a person who --
(i) is the Attorney General;
(ii) is the Director-General;
15 (iii) is the Commissioner of Police; or
(iv) has the written consent of a person
referred to in subparagraph (i), (ii) or
(iii) to do so;
and
20 (b) commenced within 12 months after the day on
which evidence, sufficient in the person's
opinion to justify the proceedings, comes to the
person's knowledge.
(2) A certificate of the person referred to in subsection (1)
25 that evidence referred to in subsection (1)(b) came to
the person's knowledge on a particular day, is
conclusive evidence of that fact.
page 35
Adoption Amendment Bill (No. 2) 2002
s. 75
(3) Judicial notice is to be taken, for the purposes of this
section, of the signature of a person referred to in
subsection (1) on a complaint and on a certificate
purporting to be issued under subsection (2).
5 ".
75. Section 129 amended
Section 129(1)(a) is amended by deleting "mediation agency"
and inserting instead --
" mediation licensee ".
10 76. Section 130A amended
Section 130A is amended by inserting after "to" --
" the Director-General or ".
77. Section 131 amended
(1) Section 131(1)(e) is deleted and the following paragraph is
15 inserted instead --
"
(e) the adoption applications committee or a
member of that committee;
".
20 (2) Section 131(2) is amended by deleting "agency" and inserting
instead --
" licensee ".
78. Section 134 amended
(1) Section 134(1) is repealed and the following subsections are
25 inserted instead --
"
(1) The Director-General may, at any time, appoint a
person who, in the Director-General's opinion, is
page 36
Adoption Amendment Bill (No. 2) 2002
s. 78
suitably qualified to represent a child who is a
prospective adoptee or adoptee.
(1a) The Director-General must, as soon as practicable after
the Department has been contacted in relation to the
5 matter, appoint a person who, in the Director-General's
opinion, is suitably qualified to represent a child
who --
(a) is a prospective adoptee or adoptee; and
(b) has a disability of a kind that is likely to affect
10 the placement of the child.
(1b) The Director-General must, as soon as practicable after
the Department has been contacted in relation to the
matter, appoint a person who, in the Director-General's
opinion, is suitably qualified to represent a child who is
15 a birth parent and who is considering the adoption of
her or his child.
".
(2) Section 134(2) is amended by inserting after "subsection (1)" --
" , (1a) or (1b) ".
20 (3) After section 134(4) the following subsections are inserted --
"
(5) A lawyer who represents a child under a direction
under subsection (3) must act on the instructions of the
child if the child --
25 (a) has sufficient maturity and understanding to
give instructions; and
(b) wishes to give instructions,
and in any other case must act in the best interests of
the child.
page 37
Adoption Amendment Bill (No. 2) 2002
s. 79
(6) Any question as to whether a child has sufficient
maturity and understanding to give instructions is to be
determined by the court.
".
5 79. Section 136F amended
After section 136F(5) the following subsection is inserted --
"
(6) A declaration made by a court of another State or a
Territory under a law corresponding to subsection (2)
10 is to be treated as having the same effect as a
declaration made under that subsection.
".
80. Section 136H amended
Section 136H(b) is amended by deleting "an" and inserting
15 instead --
" the ".
81. Section 138D amended
Section 138D(b) is amended by deleting "an" and inserting
instead --
20 " the ".
82. Section 143 amended
Section 143(4)(g) is amended by deleting "the Minister's".
83. Section 146 replaced
Section 146 is repealed and the following section is inserted
25 instead --
"
146. Review
(1) The Minister is to carry out a review of the operation
and effectiveness of this Act as soon as is practicable
page 38
Adoption Amendment Bill (No. 2) 2002
s. 83
after the expiration of 3 years from the commencement
day, and in the course of that review the Minister is to
consider and have regard to --
(a) the implementation and administration of the
5 Act;
(b) the extent to which members of the public are
aware of the effects of the Act;
(c) the effect of the Act on birth parents, adoptees
and prospective adoptive parents and the
10 relatives of parties to adoptions; and
(d) such other matters as appear to the Minister to
be relevant to the operation and effectiveness of
this Act.
(2) The Minister is to prepare a report based on the review
15 under subsection (1).
(3) The Minister is to cause the report to be laid before
each House of Parliament not later than 12 months
after the expiration of 3 years from the commencement
day.
20 (4) In this section --
"commencement day" means the day fixed under
section 2(1) of the Adoption Amendment Act
(No. 2) 2003.
".
page 39
Adoption Amendment Bill (No. 2) 2002
s. 84
84. Schedule 1 amended
(1) Schedule 1 clause 1 is repealed and the following clause is
inserted instead --
"
5 1. Information and counselling before consent
(1) A person whose consent is required for a child's adoption
must not sign a form of consent to the adoption unless the
person --
(a) has received from the Director-General oral and
10 written information on --
(i) the alternatives to adoption;
(ii) the community supports available whether
or not the child is relinquished for adoption;
(iii) the social implications of adoption for the
15 parties to an adoption;
(iv) the legal process of adoption, including
consent, revocation of consent, the selection
procedure, adoption plans, the role of the
Court and review and appeals procedures;
20 and
(v) the rights and responsibilities of the parties
to an adoption including access to
information about, or contact with, the other
parties to the adoption,
25 in a manner that the Director-General thinks will be
understood by the person;
(b) has been offered counselling to be given on behalf
of the Director-General on the matters referred to in
paragraph (a);
30 (c) has received from the Director-General a list of
independent counsellors from whom the person may
seek further counselling if the person so wishes;
(d) if he or she has sought counselling from the
Director-General or an independent counsellor on
page 40
Adoption Amendment Bill (No. 2) 2002
s. 84
the matters referred to in paragraph (a), has received
the counselling; and
(e) has considered the alternatives to the child's
adoption.
5 (2) In this clause --
"independent counsellor" means a person, other than an
officer or employee of the Department, who has been
approved by the Director-General as a person who has
such qualifications and experience as are appropriate
10 for the person to provide counselling for the purposes
of this Schedule.
".
(2) Schedule 1 clause 3 is repealed and the following clause is
inserted instead --
15 "
3. Certificate of witness
A person referred to in clause 2(1) is not to witness the
signing of a form of consent to adoption unless the person
certifies, in a form approved by the Director-General, that
20 he or she has seen affidavit evidence sworn by or on behalf
of the person who provided the information or counselling
under clause 1 to the effect that the person who has signed
the form of consent --
(a) has been provided with written and oral information
25 on the matters referred to in clause 1(1)(a) by the
Director-General;
(b) has been offered counselling to be given on behalf
of the Director-General on the matters referred to in
clause 1(1)(a);
30 (c) has received from the Director-General a list of
independent counsellors from whom the person may
seek further counselling if the person so wishes;
(d) if he or she has sought counselling from the
Director-General or an independent counsellor on
35 the matters referred to in clause 1(1)(a), has
received the counselling; and
page 41
Adoption Amendment Bill (No. 2) 2002
s. 85
(e) has considered the alternatives to the child's
adoption.
".
85. Schedule 2A replaced
5 Schedule 2A is repealed and the following Schedule is inserted
instead --
"
Schedule 2A -- Aboriginal and Torres Strait
Islander children -- placement for
10 adoption principle
[s. 52(1)(ab)]
The objective of this principle is to maintain a connection with family
and culture for children who are Aboriginal persons or Torres Strait
Islanders and who are to be placed with a person or persons with a
15 view to adoption by the person or persons.
If there is no appropriate alternative to adoption for the child, the
placement of the child for adoption is to be considered in the
following order of priority.
1. The child be placed with a person who is an Aboriginal
20 person or a Torres Strait Islander in the child's community
in accordance with local customary practice.
2. The child be placed with a person who is an Aboriginal
person or a Torres Strait Islander.
3. The child be placed with a person who is not an Aboriginal
25 person or a Torres Strait Islander but who is sensitive to the
needs of the child and capable of promoting the child's
ongoing affiliation with the child's culture, and where
possible, family.
".
page 42
Adoption Amendment Bill (No. 2) 2002
s. 86
86. Schedule 3 amended
(1) Schedule 3 clause 8(2) is amended by deleting "father, within
the meaning of section 4(3)," and inserting instead --
" person presumed under section 4A to be the father ".
5 (2) Schedule 3 clause 9(7) is repealed.
(3) Schedule 3 clause 9(8) is amended by deleting "exchange." and
inserting instead --
"
exchange,
10 but a request cannot be registered on or after the veto cut off
day.
".
(4) Schedule 3 clause 9(8), as amended by subsection (3), is
repealed.
15 (5) Schedule 3 clause 9(9) is repealed.
87. Consequential amendment to Constitution Acts Amendment
Act 1899
(1) The amendments to this section are to the Constitution Acts
Amendment Act 1899*.
20 [* Reprinted as at 8 June 2001.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 72, and Acts Nos. 24 and 25 of
2001 and 5 of 2002.]
(2) Schedule 5 Part 3 to the Constitution Acts Amendment Act 1899
25 is amended in the item commencing "Any adoption applications
committee" by deleting "Any" and inserting instead --
" The ".
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