Powers to Seal Birth Records Forever - Comparison by State

Apart from the numerous other contraventions of the United Nations Convention on the Rights of the Child (UNCRC) enabled by the various Adoption Acts of Australia, the differences on crucial points between the states and territories illustrate the arbitrary nature of the legislation.

Article 16

  1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence…

The most arbitrary of these is arguably the fact that the state you were adopted in determines whether you can have the right to know who you were born as, and who you were born to, taken away from you.

Aside from the sheer inhumanity of laws in this day and age that allow identity and ancestry to be severed in the name of “best interests”, the 2013 Federal Apology for Forced Adoptions made specific reference to and apologised for illegal acts that led to that severing of arguably most adopted adults alive today. Yet without knowing – or even questioning – if an adoption order was obtained illegally, most Australian jurisdictions still maintain powers to prevent an adoptee finding out their identity, let alone re-establishing it.

Article 8

  1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
  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.
 

 

State

Restrictions on Adopted Adults Rights to Knowledge of their Origins – Comparison by State

 

ACT

1993

Division 5.3 Identifying Information

 

 

 No restriction.

Vic

 1984 Part VI

 

No restriction.

NSW

 

2000

 

Chapter 8

Part 2

 

 

 

 

Current: No restriction on supply to the adopted adult if they were adopted after 2008.

 

 

(Pre 2008 adoptions) Restriction “if, in the opinion of the Secretary, exceptional circumstances exist that make it necessary to do so to prevent serious harm to a party concerned.”

 

Who can request that the Secretary  restrict supply? –  The adopted person, the “birth parent” , and the adoptive parent of a person who is 18 or more years of age and who has consented to the request being made.   

 

136A (3) The Secretary may refuse to issue an authority to supply adoption information under this section only if, in the opinion of the Secretary, exceptional circumstances exist that make it necessary to do so to prevent serious harm to a party concerned.

 

 

 

 

 

NT

1994

Part 6

 

Current (post 1994) Restriction  – “The Minister shall not provide information to a person under this Part where he or she is satisfied that there are reasonable grounds for believing that the personal safety of another person may be endangered as a result of the provision of the information.”

 

Adoptions under repealed legislation (pre 1994):  “Notice of prohibition” can be applied for 3 year periods by a “relinquishing parent” or an adopted person.

 

 

Qld

 

2009

Part 11 Division 5

 

Restriction – “An application may be made to the Childrens Court for an order that the chief executive must not give stated information to a stated person… The court may make the order if satisfied there would be an unacceptable risk of harm to the applicant (other than the chief executive) or someone else if the information were given. “

 

An application can be made by an adopted person, a “birth parent” or adoptive parent of an adopted person or the chief executive.

 

This order can be made at the time of the adoption, or after the adoption order is made.

 

SA

Adoption Act 1988

Amended 2016

Part 2A

Open Adoptions

 

27, 27B

 

Section 41

 

 

 

 

 

 

 

 

 

 

 

 

 

SA (cont)

 

Pre-17th August, 1989 adopted adults can be subject to restriction on “identifying information” for 5 year periods on application by the “birth parent”. During the transition to the 2016 Adoption Act all existing information veto holders will re-commence a 5 year period from the commencement of the Act. This is in effect from 18/12/17. 

**Although these vetoes are ending, the same effect can be gained by asking the Chief Executive to apply any of these subsections:      

 

 Restriction if the Chief Executive determines “in his or her absolute discretion” that disclosure:

 

– “would be an unjustifiable intrusion on the privacy of the person to whom the information relates.” OR

 

– “would give rise to a serious risk to the life or safety of a person.”OR

 

– (Pre-17th august, 1989 adoptees – added after the 2016 Amendment) “would not be in the best interests of the adopted person, taking into account the rights and welfare of the adopted person and any other prescribed matter.”

 

 

 

Section 41 (7)         The Registrar of Births, Deaths and Marriages may, without the authorisation of the Chief Executive, allow access to information contained in an entry cancelled under subsection (1)—

            (a)         if the person to whom the entry relates has attained the age of 18 years, to that person;

            (b)         to a birth parent of the person to whom the entry relates.

According to this legislation, it may be possible to request the cancelled birth certificate from the Registrar of BDM. As of 2/9/18, the Registrar has not supplied the subordinate legislation backing their assertion that despite it being legislated, they will not do this. “It is there, but we just don’t do it” Helen Paues, Registrar of Births Deaths & Marriages, SA.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tas

 

1988

 

Part VI

Division 2

Restriction on supply of birth certificates or information:

– An adopted adult can apply. BUT “a relevant authority may decide to refuse to give any or all of that information.” The reasons for the decision must be specified in writing.

 

– The adopted adult can then apply for a review of a decision to the Secretary or the principal officer of an approved agency, and the decision can be to “refuse to give any or all of that information.”

 

– The adopted adult then “may apply to a judge in chambers for an order permitting him to obtain that information” and this may be granted under best interests/special circumstances provisions but the information cannot be given unless the parent, if they can be found and if they have failed to agree in writing, has had “an opportunity to be heard in circumstances in which [their] identity is not disclosed to the applicant.”  

WA

 

1994

 

Part 4

 

 

 

Sect 82 Restriction: The CEO is to give access to the information unless the CEO thinks there is a good reason for not doing so.

Sect 83 Court may prevent CEO granting access under s. 82(2) etc.         (1)         On an application for an adoption order or after an adoption order has been made, a party to the adoption may apply to the Court for an order to prevent the CEO from giving his or her authority under section 82(2) in relation to a person who would otherwise have a right of access to information under this Act.

        (2)         On an application under subsection (1), the Court may make an order referred to in that subsection if it is satisfied that the person’s access to the information would be likely to place the applicant or the person to whom the applicant is married, or in a de facto relationship with, or the applicant’s children at serious risk.

Also, information cannot be released by the CEO to adopted adults who had information vetoes placed on them which became ineffective in 2003 unless the adopted adult has attended an interview with an officer of the Department AND “all the parties to the adoption and their relatives have been provided with the information, counselling and mediation that the CEO thinks is necessary in the particular case.”