On 29 May 2014, the Prime Minister, the Hon Tony Abbott MP, introduced
the Australian Citizenship Amendment (Intercountry Adoption) Bill 2014 (the
Bill) into the House of Representatives.
On 17 June 2014, pursuant to a report of the Selection of Bills Committee, the
Senate referred the provisions of the Bill to the Legal and Constitutional
Affairs Legislation Committee (the committee) for inquiry and report by 26
Conduct of the inquiry
In accordance with usual practice the committee wrote to a number of
individuals and organisations, inviting submissions by 18 July 2014. Details
of the inquiry were also made available on the committee's website (www.aph.gov.au/senate_legalcon).
The committee received ten submissions, which are listed at Appendix 1.
The committee thanks those individuals and organisations who made submissions
to the inquiry. The committee held a public hearing on 28 July 2014, in
Sydney. The witnesses who appeared at the hearing are listed at Appendix 2.
Background to the Bill
In December 2013 the Prime Minister announced that the government would
reform Australia's processes for intercountry adoption, in cooperation with the
states and territories. An interdepartmental committee was convened to
undertake consultations and report to the government by March 2014, 'including
on the immediate steps that could be taken to make inter-country adoption
easier and faster for Australian couples'.
The interdepartmental committee submitted its report to the government
in April 2014. The report recommended, inter alia, that the government:
introduce amendments to the Australian Citizenship Act
2007...to enable children from non-Hague [Convention] countries that issue
final adoption orders, with which Australia has a bilateral arrangement, to
obtain Australian citizenship in their country of origin where one or both of
the adoptive parents is an Australian citizen.
On 5 May 2014, the Prime Minister announced that the Council of
Australian Governments (COAG) had agreed to a new national system for
intercountry adoption, to be put in place by early 2015. This would include
amendments to the Australian Citizenship Act to allow adoptees to obtain
Australian citizenship in their country of origin.
Purpose of the Bill
The Bill seeks to amend the Australian Citizenship Act 2007 (the
Act) with respect to the acquisition of Australian citizenship by a person
adopted outside Australia by an Australian citizen under a bilateral
arrangement between Australia and another country.
According to the Explanatory Memorandum, the amendments would provide
persons adopted in a country with which Australia has a bilateral adoption
arrangement with the same citizenship entitlement as persons adopted in a
country which is a party to the Hague Convention on Protection of Children
and Co-operation in Respect of Intercountry Adoption (the Hague
The Hague Convention process, as implemented into Australian law, provides for the
immediate grant of citizenship following the completion of the adoption in the
In his second reading speech on the Bill, the Prime Minister said that:
At present, children adopted under bilateral arrangements
require a passport from the home country and an adoption visa to travel to
Australia. This imposes additional complexity and cost on the adopting
families. Under the amendments to be made by this bill, children will be able
to be granted citizenship as soon as the adoption is finalised. They will then
be able to travel to Australia on an Australian passport, with their new
families, as Australian citizens.
This bill will place children adopted by Australian citizens
under bilateral arrangements in the same position as children adopted by
Australian citizens under Hague Convention arrangements. The overarching
requirement from Australia's perspective is that a potential partner country,
first, is willing to participate in an intercountry adoption arrangement with
Australia, and, secondly, will meet the standards and safeguards equivalent to
those required under the Hague convention.
Where a non-convention country meets these standards, there
is no reason why adoptions should not be recognised in the same way as
adoptions in convention countries.
The bilateral arrangements to which the amendments would apply are
specified in the Family Law (Bilateral Arrangements – Intercountry Adoption)
Regulations 1998. Presently there are three such arrangements, with
Ethiopia, the Republic of Korea and Taiwan, although Australia's adoption
programme with Ethiopia has been closed since 2012.
Key provisions of the Bill
As discussed above, the Bill seeks to amend the Australian
Citizenship Act 2007 (the Act). The Bill consists of three items and a
schedule, Schedule 1. Schedule 1 of the Bill sets out the amendments to the
The substantive provisions of the Act covering citizenship for persons
adopted overseas are found in its Subdivision AA. Items 2 to 7 of the schedule
amend the subdivision to extend the procedures for Australian citizenship
currently applied to persons adopted under the provisions of the Hague
Convention, to also cover persons adopted overseas in accordance with bilateral
Item 4 of the schedule amends paragraph 19C(2)(a) of the Act to apply
the citizenship criteria for adoptions in accordance with the Hague Convention
equally to adoptions from a 'prescribed overseas jurisdiction'. A prescribed
overseas jurisdiction is the term used in the Family Law (Bilateral
Arrangements – Intercountry Adoption) Regulations 1998 (the regulations) to
refer to countries which are parties to bilateral arrangements with Australia.
This means that the eligibility for citizenship set out in section 19C will
apply to persons adopted under current bilateral arrangements, and under any
bilateral arrangements entered into by Australia in the future.
Item 5 of the schedule inserts reference to the regulations into
paragraph 19C(2)(c) of the Act. This means that an adoption 'recognised and
effective for the laws of the Commonwealth and each state and territory' under
the regulations will now be eligible immediately for citizenship under Section
19C of the Act.
Under section 5 of the regulations, an adoption is recognised and
effective for Commonwealth, state and territory laws once it takes effect in
the relevant overseas jurisdiction, provided that:
the adoption is of a child habitually resident in that
the adoption is by a resident of a state or territory of
the competent authority of that state or territory has agreed to
an adoption compliance certificate has been issued by a competent
authority of the overseas jurisdiction, and it states that the adoption was
carried out in accordance with the laws of that jurisdiction; and
the adoption effectively ends the legal relationship between the
child and its previous parent/s.
Item 9 of the schedule provides that a person adopted in accordance with
a bilateral arrangement may apply for citizenship under section 19C of the Act
as soon as the amendments commence, regardless of whether the adoption was
finalised before or after the commencement of the amendments.
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