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Victorian law reform: Adopting 21st century values

Victorian law reform: Adopting 21st century values

By VLRC

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The operation of adoption law and practice in Victoria is under review.

Adoption is a subject that arouses strong and mixed responses. A large number of Victorians have experienced adoption, or been exposed to it, sometimes in traumatic circumstances. While some had positive experiences, many adoptions of the past occurred in circumstances of closed and sometimes forced adoption. Forced adoption practices have been the subject of a number of inquiries, resulting in apologies by the Commonwealth Parliament and all state and territory parliaments.

At the time of its introduction, the Adoption Act 1984 represented a significant change in Victorian adoption policy. The Adoption Act mandates open adoption, which facilitates information sharing or contact between the adoptive and biological parents, and all adoptions in Victoria since the introduction of the Act have been open.

The Adoption Act is more than 30 years old. Since it became law there have been numerous amendments to it, which have inevitably reduced its readability. The Act is now difficult to understand and navigate, and some of its language is archaic or unduly legalistic. In December 2015 the Attorney-General asked the VLRC to review the Act and recommend ways to modernise it, so that it meets the needs of children and families in the light of changing community values and expectations. The Act should reflect contemporary law in relation to family, including the principles set out in international agreements such as the United Nations Convention on the Rights of the Child. The VLRC will report by 28 February 2017.

It has not been asked to make recommendations regarding whether the numbers of adoptions should be increased: this is a policy matter for government. A number of specific matters have been excluded from the terms of reference: inter-country adoptions and commercial surrogacy, which are federal matters; adoption by same-sex parents, which was addressed in Victoria in December 2015 through the Adoption Amendment (Adoption by Same-Sex Couples) Act 2015; and contact statements, addressed through the Adoption Amendment Act 2015.

Adoption is not common in Australia today, especially compared to its peak in 1971-72 of almost 10,000 adoptions nationally. In 2014-15 there were only 56 infant (stranger) adoptions, of which 24 were in Victoria. Although it is currently uncommon in Victoria, adoption has far-reaching legal and emotional effects for all involved. It is important that any recommendations made by the VLRC are appropriate both for contemporary Victoria and the needs of future Victorians. To ensure that its recommendations are robust and draw on the views and expertise of the community, the VLRC is publishing a consultation paper on 10 August 2016. It seeks the views of the community on the operation of adoption law and practice in Victoria, and whether the Adoption Act is compatible with community attitudes and contemporary law. The terms of reference require the VLRC to ensure that the best interests of the child are paramount. However, there are different views of what constitutes a child’s best interests. The VLRC will be seeking community views on this question, particularly how the best interests of Aboriginal and Torres Strait Islander children can be assured under the Adoption Act.

The paper explores issues such as eligibility to adopt, and whether the current eligibility requirements are appropriate for Victoria today. It considers the appropriate balance of the right to information with privacy laws in an adoption context and the way a child’s identity is reflected on their birth certificate. Given some of the outdated phrasing used in the Adoption Act, the VLRC is looking at the terminology to ensure that it is clear and contemporary.

This review is an opportunity to modernise a significant piece of Victorian legislation, and redefine the practices and processes of adoption in Victoria for the 21st century. Over August-September the VLRC will be consulting key groups, including people with experience of adoption, welfare and adoption agencies and the general public.

The VLRC is interested in the views of legal professionals, particularly those with experience of the practice and process of adoption. Submissions are invited in response to the consultation paper by 16 September 2016. You can view the consultation paper and make a submission from 10 August 2016 on the website www.lawreform.vic.gov.au.


This column is contributed by the VLRC. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.

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Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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