The submission is number 121 on the Social Development Committee webpage.
Submission to the South Australian Parliament’s Social Development Committee, Inquiry into the potential for a Human Rights Act for South Australia
26th February 2024
Adoptee Rights Australia (ARA) Inc. welcomes the opportunity to make this submission to the Parliamentary Joint Committee on Human Rights Inquiry into Australia’s Human Rights Framework.
ARA was formed in 2018, and is the national peak body advocating for the rights of persons adopted in Australia. We wholeheartedly support the enactment of a Human Rights Act/Human Rights Charter for South Australia.
This submission will outline just some of the human rights issues that affect South Australian adopted people arising from being under the South Australian Adoption Act 1988, to show the urgent need for effective remedies of these unjustifiable human rights violations, and the benefits of having a human rights focus at the centre of government law and decision making.
People adopted in South Australia are a vulnerable population who are the subject of some of the most anachronistic, draconian and arbitrary legislation that exists in South Australia, and much of this legislation is excluded from the usual human and civil rights protections and scrutiny.
There have been around 30,000 adoptions in South Australia since the first Adoption Act was introduced in 1925. At its peak, in the 20-year period from 1964 to 1984, between 7 and 14 newborns per week were being taken – at birth – in South Australian hospitals and unmarried mothers homes, in the attempt to supply a growing demand for infants.
Whether or not some adopted people individually consider they had a positive or negative experience of care, this doesn’t negate the fact that tens of thousands of adoptees in South Australia – no longer “babies” but adults from their 40’s to well above 90, are still the subject of Adoption Act legislation.
This means the state continues to have disproportionate and unjustifiable power over, and access to, the personal lives and family relationships of adopted people, compared to non-adopted citizens.
Despite apologies by the South Australian and Federal governments acknowledging the illegalities of many removals, all adopted people in South Australia are still treated as if the adoptions they are the subject of were completely legal and valid.
Notwithstanding all the apologies, there has been no corresponding action by the state government on following the requirement of the United Nations Convention on the Rights of the Child (UNCRC) –
Article 8 (2): that where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
And even where an adoption actually was legally obtained, the South Australian Adoption Act 1988 repeatedly and unjustifiably violates the basic civil liberties, rights and fundamental freedoms of the group of people it was set up to create and control. This is despite the Act including as its first object that:
“the rights of the child concerned, both in childhood and in later life must be the paramount consideration in adoption law and practice”
Some examples –
• The South Australian Adoption Act does not legally require the follow-up of the child’s welfare once adopted. Article 20, part 3, of the UNCRC defines ‘care’ as including adoption, yet the requirement for welfare checks referred to in Article 25 of the UNCRC for children in care is ignored in adoption legislation in South Australia.
This is in stark contrast to practices in foster care which legally require welfare checks, and legislates a Charter of Rights for children in care that emphasizes the rights of the child to know about their identity and story, and to know and be in contact with their family if it’s safe for them to do so.
• Although the adoptee is explicitly defined as a ‘party’ to the adoption in the South Australian Adoption Act, and this does not cease when they reach adulthood, the adopted person is never given the opportunity as an adult to consent to the adoption, or have their views considered – a lack of equal protection under the law due to age.
• Identification of a party to an adoption is a criminal offence in South Australia with a maximum penalty of $40 000 or imprisonment for 4 years.
It is a criminal offence to publish anything that identifies someone as an adult adoptee if this would identify, or be likely to lead to the identification of a party to the adoption unless there is written permission from all parties. An adopted person telling their story in a research study, on television, or in a book, magazine or newspaper without “permission” is open to prosecution.
It is not a criminal offence in South Australia to identify before the public as an adult who has been in foster care – no matter if it would identify any parties to those care orders.
But an adopted adult’s freedom to talk about their own life in the same way every other citizen can is limited by the fact that they are bound for life by adoption legislation, and this violates – among other rights, the right to seek and impart information and ideas of all kinds.
• Information on foster children who are abused or murdered by their carers is collected and often publicised, and this means the Department has accountability.
Information on child adoptees who are abused or murdered by their carers is not collected, because of the “legal fiction” that they are ‘as if born to’ those carers and therefore cannot be distinguished between biological children at hospitals and mortuaries. The Department also has no legal obligation to provide this vulnerable group of children with welfare checks after the adoption or treat them any differently to any child who is in the care of their biological family that has never come to the attention of the department.
And if by chance murdered or abused child adoptees are identified as being adopted, this cannot be publicised as it is a criminal offence to identify a party to an adoption, so murder and abuse of children in adoption is completely hidden from the public by adoption law.
• In South Australia, all adoption matters are held in the Youth Court – a closed court, including for matters where all parties are adults, violating the equal right to a public hearing, and this also means that important judgments are not made publicly available.
• Those subject to the South Australian Adoption Act generally have no access to review of any decisions made under the Act (but, tellingly, there are options in the Act and Regulations for review for adopters or potential adopters only), and this not only affects the adopted individuals’ ability to seek justice but also prevents the collection of general feedback necessary for driving systemic change.
Identity information for adopted people
The Queensland Human Rights Commission defines ‘inhuman and degrading treatment’ as being not necessarily intentional, or physical, and including acts that cause mental suffering, humiliation, anguish or a sense of inferiority. The following treatment, as well as being unjustifiably discriminatory, is highly likely to cause any human being mental suffering, humiliation, anguish and a sense of inferiority.
• In South Australia, adopted people – whether adopted in the past or currently, do not have the same right that non-adopted people have to their birth certificate and details of their birth, including knowing who gave birth to them, and who they are related to.
• As soon as the adoption order is made, the adoptee’s original birth certificate is sealed and a new one is issued which cannot be distinguished from the birth certificate of someone who is not adopted. Anything other than this remains a choice of the adopters, not a right of the adoptee.
• Adoptees are generally expected to wait in a vacuum until they are 18 years old and then they have the right only to apply for this information (if they have been told they are adopted). Then the State department that holds this information has wide discretionary powers around what, if anything, is provided.
• Lack of identity information is known to lead to severe impacts on identity formation growing up, on the health and mental health of the adoptee and later their children’s health (with lack of awareness of genetic issues and family medical history as well as the psychological effects). The stress and cost of tracing and – if possible – developing relationships with siblings, parents – if alive – and extended family as adults adds further suffering.
• As adults, when requesting crucial information about themselves and the adoption from government departments, adopted people have no right to receive their information in a timely manner, and no review rights on decisions made under the Adoption Act.
• Currently in South Australia, if an adopted adult requests their information, this process is taking over a year. As the information requests are all dealt with by the same section, those under FOI requirements will take precedence, so the priority of the requests of adoptees for information are lowest.
• Even anyone applying for trivial information has more right to have their application dealt with than an adopted person who is seeking information about their origins, and is trying to find living relatives rather than graves. Anyone else who was in care has the protection of the Freedom of Information Act, which has stringent requirements that the majority of information releases occur within 30 days, and also provides administrative review processes and accountability to ensure the protection of rights in what is released.
• Lack of information as a child also extends to siblings, grandparents, cousins, etc. While the importance of knowledge about family (and contact if safe) is acknowledged for every other child in care, once adopted the adoptee loses not only the right to contact with their siblings and extended family, but also the right to know they exist.
When adopted adults apply for information, under the South Australian Adoption Act, if they had siblings before the adoption, they don’t have the right to be told about them unless that sibling is also adopted, and also is over 18 years old – and again, the release of this information is subject to wide discretionary powers with no review rights, oversight or protections in place for the adoptee.
• For adopted persons, who already don’t have the right to know their name and parentage, there is also no legal requirement that they be told about their cultural heritage, violating the right to the preservation of cultural identity.
• The option that the adopted person is advised as a child about some of their identity information has been included in the South Australian Adoption Acts since the 1980s, but like most of the good intentions mentioned in the Act it’s aspirational only – and merely an option that all the adult parties might agree on. If that ever happens, the agreement is non-enforceable and in reality is rarely adhered to.
Consultation – the problem with relying on “good will” rather than a Human Rights Act
According to Associate Professor Laura Grenfell and Associate Professor Sarah Moulds in the December 2023 edition of the Law Society Bulletin: “Currently we rely on the good will of government offices to act consistently with human rights and to consult with communities most affected when drafting laws and policies. In our view, a Human Rights Act for SA could help to ensure that these executive activities take place in a robust, systematic way – and will make sure public servants are given the right tools and support to perform this role of upstream scrutiny.”
In South Australia, the adopted community are not included in consultation processes at all, and are actively excluded, even when the laws and policies in question only affect adopted people.
Consultation is even – unusually – actually legislated in South Australia: Adoption Act 1988 (SA)
7A—Minister to ensure consultation undertaken on operation of Act – The Minister must ensure that regular consultation is undertaken with representatives of organisations with a special interest in the adoption of children and any other interested persons in relation to the operation of this Act.
Yet it still doesn’t happen.
• Adopted people had the opportunity, like everyone else, to submit to the South Australian Adoption Act Inquiry in 2015-2016. But as always, adopted people were treated as very minor “stakeholders” among many others, and these others mainly included those with vested interests in the existence and control of adoption and adopted people as a group. The fact that adoptees are seen as only one minor “stakeholder group” when they are created by those laws, and the subject of those laws and policies for their lifetimes and beyond doesn’t seem to make a difference.
• Another example of the lack of community engagement of adopted people in South Australia was in the attempted (and failed) introduction of a backdoor to adoption through the Children and Young People (Safety) Act 2017 – where the supposed “consultation” took place behind the scenes, by invitation only! Then-Minister Rachel Sanderson, her Ministerial staff and her Departmental staff carefully handpicked supporters of their policies on adoption, and actively excluded any groups they knew wouldn’t agree, including all lived experience adoptee groups.
• A recent FOI release about the subject of notification of deaths of parties to adoption happened to reveal another practical example of exclusion. If not for the FOI request, it would have remained hidden. Adopted people were left out of consultation on the implementation of the notification of death of a party to adoption. Over a long process of months, the practice and procedures around notifying an adopted person that their mother was dead, or a mother or father that their child was dead were developed by the Department for Child Protection and “stakeholders”. The release included notes about the attendees of a meeting on the 6th February 2019 at the premises of a Non-Government Organisation:
An aboriginal consultant was included to advise on the protocol for advising of death for aboriginal people, otherwise, the meeting attendees were: 6 Adoption Services staff and an FOI staff-member from the SA Department for Child Protection; and representatives from Births, Deaths and Marriages and a Non-Government Organisation funded by the state.
The laws they were implementing were about the notification of the death of adopted people, and their parents. No lived experience representatives were included at any stage of this process.
It’s a lot easier to ignore the human impacts of policy and procedures if the people it affects are completely excluded from any and all consultation.
Sadly, the exclusion of lived experience adoptee community engagement and consultation in South Australia continues today and is evident in the lack of adoption competence and understanding of adoption issues in South Australian government offices that hold the files and influence and administer the legislation and policies that affect adopted people.
Summary and Recommendation
Adopted people are very much an example of a marginalised population that has completely fallen through the cracks and could benefit from the enactment of a South Australian Human Rights Act.
Any supposed legal protections for adopted people in current legislation are not working, and when the issues of adoption are raised, this seems to create a blind spot effect. People who would normally be the most outspoken critics of violations of human rights of any other group somehow don’t see the problems, and stay silent.
Adopted people are not consulted about laws and policies that affect them. There is no watchdog for adopted people. There are no review processes under the Adoption Act. There seems to be no-one to turn to.
Adoptee Rights Australia supports a legislated Human Rights Act, like those in Victoria, Queensland and the Australian Capital Territory. We believe that South Australia could take the best features of these laws, learning from the experience of these jurisdictions.
A legislated, effective Human Rights Act would provide a much-needed and positive change, making South Australia in general a better place to live for all, and giving hope and a framework in which to access practical help for those with nowhere else to turn.
Adoptee Rights Australia (ARA) Inc.
Postal address: PO Box 976
Toronto NSW 2283
Email: admin@adopteerightsaustralia.org.au
Website: www.adopteerightsaustralia.org.au
Contributors:
This submission was prepared by Sharyn White for Adoptee Rights Australia (ARA) Inc.