The Submission is No. 224 here: Inquiry into Australia’s Human Rights Framework
Adoptee Rights Australia (ARA) Inc.
Submission to the Inquiry into Australia’s Human Rights Framework
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.
Adoptee Rights Australia supports the call for a national Human Rights Act, and endorses the model provided by the Australian Human Rights Commission.
Adopted people are a vulnerable population who are the subject of some of the most anachronistic, draconian and arbitrary legislation in Australia, much of which has been made exempt from common protections without proper scrutiny. The Australian Adoption Acts have limited to no access to administrative review processes for adopted people, and this not only affects individuals’ ability to seek justice but also prevents the collection of general feedback necessary for driving systemic change. A national Human Rights Act would create a platform where these issues could be raised.
Legislation governing adoption has been in place in Australia for a little over one hundred years. In this time, more than 250,000 Australians have had their identities extinguished and their lives profoundly affected by adoption. Despite the complex raft of adoption legislation in all jurisdictions, and the significant impacts it has on adopted people and their families throughout their lifetime and beyond, there is a glaring absence of recognition of rights issues in adoption, and no funded federal or state bodies advocating for the rights of those subject to Australian adoption legislation (which includes both ‘intercountry’ and ‘domestic’ adoptees).
Adoptee Rights Australia is a volunteer run organisation that was established in 2018 by adopted persons to advocate for the rights of adopted people in Australia and to give a national voice to the lived experience of adoption. Adoptee Rights Australia has long been calling (most recently here) for data collection and further research on the long-term outcomes for adopted people (who have been shown to be at significantly higher risk of suicide and attempted suicide, mental health issues, drug and alcohol abuse, homelessness and imprisonment as a population group) to inform decision making on adoption in Australia.
Although adoption laws are administered at the state and territory levels, the federal government continues to uncritically endorse and normalise the adoption narrative in all spheres of influence, including in:
- the skewed categories of adoption data collected and discourse on adoption in the Australian Institute of Health and Welfare (AIHW) yearly adoption reports (funded by the Department of Social Services (DSS) and the Department of Health and Aged Care (DHAC)
- Centrelink/Welfare payments for adoption being represented as if adoption is an everyday occurrence (i.e. promoting and normalising adoption) – despite the latest AIHW figures showing only 208 adoptions occurred in all of Australia in the 2021/2022 year.
- the 2018 federal ‘Inquiry into Local Adoption’ which was not an inquiry into adoption itself, which Adoptee Rights Australia continues to call for, but an inquiry into the “barriers” preventing adoption in Australia. (Despite this, over 80% of the 110 submissions to this inquiry were not in favour of adoption or had serious concerns about its increase).
- promotion/referrals for/information about intercountry adoption via the Australian Government website “intercountry adoption australia, your guide to overseas adoption”
- promotion of domestic adoption on the Australian Government website Health Direct (and lack of information about negative effects).
Also at a federal level there is a continued lack of engagement and consultation with adopted people and representative organisations who are directly affected by adoption policy and legislation, while the influence of high profile pro-adoption lobby groups has been very clear in decision-making around adoption issues (see Adoptee Rights Australia’s submission to the Media Diversity in Australia Inquiry).
Although over 95% of the several hundred thousand Australian adopted people are adults who are subject to current adoption legislation, this population is regularly dismissed and characterised as having adoptions under ‘past practices’ of “forced adoption” that are claimed to be very different to adoptions today, (even under the banner of forced adoption, most of the promises made in the little-known federal Forced Adoption Apology in 2013 remain unfulfilled (see our analysis here)).
But the past practices that were apologised for were centred around mothers, and were about questions of consent, relinquishment, and illegal practices in obtaining infants for adoption – not the lived experience of being adopted for adopted people.
Adoptee Rights Australia considers that establishing a federal Human Rights Act would provide a much-needed framework for recognising and examining the inherent human rights violations in adoption itself.
Just a few of the human rights violations inherent in adoption:
Cruel, inhuman and degrading treatment
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.
Adopted children-then-adults legally do not have the right to their identity information and details of their origins in their developmental years, and beyond. As soon as the adoption order is made, their birth certificates are 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.
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.
Lack of information as a child also extends to their 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. For example, in South Australia, the adopted person can only find out the name (subject to the discretion of the Chief Executive) of a sibling if they are over 18, the sibling is over 18, AND the sibling is also adopted:
Adoption Act SA 1988, Section 27—Disclosure of information once adopted person turns 18
(1) Subject to this Part, an adopted person who has attained the age of 18 years or, if the adopted person consents or is dead or cannot be located, a lineal descendant of the adopted person, may obtain—
(d) information in the possession of the Chief Executive relating to a sibling (whether of the whole or half blood) of the person who has also been adopted and who has also attained the age of 18 years.
There is no provision for being told about any other siblings, let alone having the right to know them and spend time with them while growing up.
Not being treated equally before the courts and tribunals, no rights to fair and public hearings
- In South Australia, all adoption matters are held in the Youth Court – a closed court, including for matters where all parties are adults, which violates the right to a public hearing, and means that important judgments are not made publicly available.
- While all persons have access to restraining or intervention orders which could be used if needed, in most jurisdictions, another legal restraint can be put on adopted people, making it a criminal offence for them to contact another party to adoption. The subject doesn’t need to have actually done or threatened to do anything and there are no review or appeal rights – and in most jurisdictions the veto remains unless lifted.
Age discrimination – Lack of equal protection under the law due to age
Although the adoptee is explicitly defined as a ‘party’ to the adoption in most Australian Adoption Acts, and this does not cease when they reach adulthood, the adopted person is never given the opportunity as an adult to consent, or have their views considered, nor is there a legal requirement for the adoptee to be advised they are adopted.
Violations of rights to seek and to impart information and ideas of all kinds
The right to seek information:
At 18 years old, adoptees can request permission to access their birth certificate and details from their file and of the circumstances of adoption (if they are aware they are adopted). In most jurisdictions, broad discretionary powers mean this still may be denied and there is no avenue of appeal or review of this decision, and no recognition of the need for independent advocacy and protections for this vulnerable group of people.
There is no timeframe requirement for processing requests for information/access to birth certificates and currently in NSW the processing time from the date of the application is currently sitting at an appalling timeframe of over two years. Adoption is an ‘exempt’ category – outside of Freedom of Information processing time requirements. This also falls under ‘cruel, inhuman and degrading treatment’ as do most of the other points.
The right to impart information:
The right to freedom of expression for an adopted person and to impart information is contravened for adopted people because in all jurisdictions (with variations) it is a criminal offence to publish anything which would identify, or be likely to lead to the identification of a party to the adoption without the consent of all parties, or a court order. So an adopted adult telling their story – or even identifying as an adopted person – online or in a magazine or newspaper, exposes themselves to the risk of potential criminal charges, fines and a jail term.
South Australia: Maximum penalty: $40 000 or 4 years imprisonment.
Queensland: $13,345 or 2 years imprisonment
NSW: $2750 or 12 months imprisonment or both.
Yet it is not a criminal offence to identify before the public as an adult who has been under Guardianship or foster care orders – no matter if it would identify any parties to those orders. But an adopted adult’s right to talk about their own life in the same way every other citizen can is limited by the fact that they are bound by adoption legislation.
Violation of the right of children in care to follow up welfare checks
The requirement for welfare checks referred to in the United Nations Convention on the Rights of the Child (CRC) for children in care is ignored in Australian Adoption Acts:
- A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
- States Parties shall in accordance with their national laws ensure alternative care for such a child.
- Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.
States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.
If long-term care orders are used instead of adoption, then follow up checks (and a care plan) are required, and the state remains accountable even if the carers are given the majority of the decision-making power.
Adoption is the legal fiction that a child was biologically born to the adopters. All of the warranted and added protections that recognise that a child has been in the care of the State, has a different family of origin, and is not (in non-kinship adoption) a biological member of the caring family group disappear when the final adoption order is made.
An abused or murdered adopted child is not recognised in data collection as they are indistinguishable from children who have never been in the care system. Despite many adopted people who could have told their horror stories to the Royal Commission into Institutional Responses to Child Abuse, adoptees were excluded. This is because of the convenient interpretation of the legal fiction that adoption creates a parent-child relationship – rather than being a form of care as defined in Article 20 (3) of the CRC above.
Violation of rights relating to culture and ethnic group
“to enjoy their own culture, to profess and practise their own religion, or to use their own language”
Most Australian Adoption Acts ignore the existence of cultural groups other than Aboriginal and Torres Strait Islander peoples. Vulnerable children (then adults) who are Culturally and Linguistically Diverse (CALD) Australians are not specifically safeguarded.
In all cases, the adoption order legally makes adopted persons the same ethnic and cultural group as the adopters.
Adopted children-then-adults are not only denied protections that require recognition and involvement in their community and enjoyment of their cultural identity growing up, but they have their legal heritage “colonised” or usurped and replaced with the heritage of the adopters. This has an intergenerational effect.
For adopted persons, who already don’t have the right to know their names and parentage, there is also no legal requirement that they be told about their cultural heritage.
Arbitrary or unlawful interference with privacy, family, and home
Adoption severs ties between families through the adoption order, or distorts them in kin adoption. Due to the lack of an evidence base supporting the supposed long-term positive effects of adoption, any decision made to apply an adoption order is, by definition, an arbitrary decision. The alternative to adoption is long-term guardianship which does not use such a radical approach to enable care.
Unlawful interference in family life and illegal deprivation of some or all elements of identity
CRC Article 8 (2) 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.
Then Prime Minister, Julia Gillard, apologised on behalf of the Australian Government for “forced” adoptions in 2013. Yet adopted people are still forced into prolonged legal battles to restore the identities which were acknowledged as having been stolen from them as children.
This submission was prepared by Sharyn White for Adoptee Rights Australia (ARA) Inc with approval of the ARA Committee