Bills Digest no. 8 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Mary Anne Neilsen
Law and Bills Digest Section
14 July 2014
Purpose of the Bill
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 29 May 2014
House: House of Representatives
Portfolio: Immigration and Border Protection
Commencement: The day of Royal Assent
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
The Australian Citizenship Amendment (Intercountry Adoption) Bill 2014 (the Bill) amends the Australian Citizenship Act 2007 (the Act) to facilitate the grant of Australian citizenship to children adopted by Australian citizens through bilateral adoption arrangements between Australia and countries not party to the Hague Convention on Intercountry Adoption (Hague Convention). The purpose is to create an entitlement to citizenship for children adopted under bilateral arrangements equivalent to the entitlement currently provided for children adopted under Hague Convention arrangements.
Intercountry adoption first became a recognised phenomenon in Australia following the airlift in 1975 of Vietnamese war orphans to Western nations— with 280 children coming to Australia from orphanages in Saigon and being adopted by Australian families.
Since that time many Australians have adopted children from overseas—with numbers reaching a peak of 434 in 2004–05. More recent years have seen a decline in the numbers (in 2012–13, there were only 129 adoptions) with the characteristics of children available for adoption also having changed.
Intercountry adoption is also a global phenomenon, although as in Australia, intercountry adoption rates are declining worldwide.
The Hague Convention was negotiated because of the lack of uniform standards in relation to intercountry adoption. The Convention entered into force on 1 May 1995 and was ratified by Australia in 1998. As at January 2014, there were 93 contracting States to this Convention.
The objects of the Hague Convention are to:
- establish safeguards that will ensure that intercountry adoptions take place in the best interests of the child and with respect to his or her fundamental rights
- establish a cooperative system among Contracting States so that safeguards are respected and the abduction, sale of and trafficking in children is prevented and
- ensure that Contracting States recognise adoptions made in accordance with the Convention.
Australia has intercountry adoption programmes with 12 Hague Convention countries (the most recent addition being South Africa) and has bilateral arrangements with two non-Hague convention countries (Taiwan and South Korea). Taiwan is now Australia’s largest programme. Australia requires that all programmes are ethical and meet the standards and principles set by the Convention. Some programmes, (including with Ethiopia and India) have been suspended or cancelled because of concerns about failure to meet the Convention standards.
The Family Law Act 1975 implements the Hague Convention into Australian law, largely through the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Intercountry Adoption regulations). There are also regulations to give effect to bilateral arrangements with other countries on intercountry adoption— the Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 1998 (Bilateral Arrangements regulations). The Bilateral Arrangements regulations provide that adoptions carried out in prescribed countries are recognised for the purposes of Australian law.
In what might be seen as a precursor to this legislation, the Bilateral Arrangements regulations were amended in March 2014. This was to enable children adopted through bilateral arrangements with Taiwan, South Korea and previously Ethiopia, to obtain automatic recognition under Commonwealth, state and territory laws – thus removing the need for families adopting children from non-Hague Convention countries to go through the process of applying for an additional final adoption order from an Australian court.
In addition to the Family Law Act and associated regulations, Commonwealth legislation also governs the immigration and citizenship requirements and processes for adoptive families. To adopt in Australia an applicant must be an Australian resident and, as per the Convention, must apply to the Central Authority (a Government agency) in the country in which they are ‘habitually resident’.
Adopted children enter Australia either on an Adoption (subclass 102) visa, or through acquisition of Australian citizenship, which occurs in accordance with the Migration Act 1958 and Migration Regulations 1994 in relation to visas and the Australian Citizenship Act 2007 in relation to citizenship.
State and territory legislation governs the general processes and administration of intercountry adoptions in Australia. Thus it is state and territory legislation which sets out the processes and criteria for determining the eligibility and suitability of prospective adoptive parents.
Interdepartmental Committee on Intercountry Adoption
Following the 2013 election, the Abbott Government moved quickly to investigate possible improvement of Australia’s intercountry adoption programme with the Prime Minister announcing on 19 December 2013, that he would establish an Interdepartmental Committee on Intercountry Adoption, to report to him in March 2014, with options for implementing reform within Australia over the next 12 months. The Committee’s report identified a range of impediments to intercountry adoption, including the lack of nationally consistent state and territory regulation, prohibitive fees, waiting times and the standard of post-adoption support services. Among the Committee’s more significant recommendations was a proposal for a new national intercountry adoption service to apply to all Australians wanting to adopt a child from overseas. This proposal was put to the May Council of Australian Governments (COAG) meeting with a subsequent announcement that COAG agreed to a national system of intercountry adoption and that the Commonwealth would work vigorously with the states and territories to have a new system operating by early 2015. The COAG communique states:
Under the new service, the Commonwealth will fund either a new accredited non-government organisation or organisations, or a Commonwealth agency, to provide services for intercountry adoption by early 2015.
The Commonwealth and the States and Territories will work closely together to make sure there is a smooth transition to the new system.
In addition to this more substantial long-term reform, the Interdepartmental Committee report recommended some immediate actions that the Commonwealth could undertake to improve and streamline the delivery of intercountry adoption to Australians. Amongst other things, the Committee recommended:
- reinvigorating Australia’s efforts to establish new country programmes
- improving integration of existing Commonwealth funded family services programmes with existing post adoption support services provided by the states and territories
- removing legal distinctions between adoptions from countries that are parties to the Hague Convention and those that are not, that are carried out under the auspices of state/territory supervision and
- making reforms to immigration and citizenship requirements to make that aspect of the adoption process easier and faster and to address the negative perception of the visa health requirement.
The Bill seeks to address aspects of the third and fourth of these recommendations.
Requirements for immigration and citizenship
As the Interdepartmental Committee report explained, the route by which an adopted child obtains Australian citizenship varies depending on whether the country of origin was a Hague country, and what type of adoption order the overseas country issued. The report describes the process in some detail:
Children adopted from a Hague country where a full and final adoption order is issued (China, Bolivia, Chile, Colombia, Sri Lanka, Lithuania and India) can obtain Australian citizenship overseas and enter Australia on an Australian passport (section 19C of the Australian Citizenship Act 2007) provided one or both of the adoptive parents is an Australian citizen. This route is only available if the country issues an adoption compliance certificate under the Hague Convention prior to the child travelling. If this course is followed, the child does not need to go through the process of obtaining an adoption visa to enter Australia (see below). In some cases, adoptive families may still choose to follow the adoption visa and not the citizenship pathway.
Children adopted from an overseas country (whether or not the country is Hague), where only a simple adoption order or guardianship order is issued (Thailand, Hong Kong, Philippines), cannot apply for Australian citizenship prior to arrival in Australia. These adoptions are converted into full adoptions by State and Territory courts, at which time citizenship is automatically acquired (section 13 of the Australian Citizenship Act 2007). The Attorney-General’s Department has advised that this approach is appropriate, as Australian law is primarily designed to support full adoptions, which sever the legal tie between a child and their biological family.
Children adopted from a country with which Australia has a bilateral arrangement on intercountry adoption where a full and final adoption order is issued (Taiwan and South Korea) are required to go through the process of obtaining an adoption visa to enter Australia, and are not able to obtain Australian citizenship overseas and enter Australia on an Australian passport.
The Interdepartmental Committee report took the view that while there are factors in each country of origin and personal circumstances of the adoptive family that will influence the immigration pathway chosen, there are clear benefits to having a streamlined approach irrespective of whether a child is adopted from a Hague or non‑Hague country.
There are also significant financial differences depending on which path a child takes to Australian citizenship. The visa application charge by the Australian Government for an adoption visa is $2,370 per child whereas a child adopted under the Hague Convention may apply immediately for Australian citizenship and the child does not require a visa to enter Australia. The citizenship application fee is $120 for the first sibling and $95 for the second and any subsequent siblings.
A further difference relates to health check requirements. As part of the process of applying for an adoption visa, children must undertake a medical examination and meet the health requirement for entry into Australia. In contrast, there are no health criteria that need to be met for the grant of Australian citizenship.
The Explanatory Memorandum to the Bill states that the financial impact of the amendments in the Bill is low. The estimated costs will be met from within the Department’s existing funding.
Senate Legal and Constitutional Affairs Legislation Committee
The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 26 August 2014. Details of the inquiry are at the inquiry web page.
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights has considered the Bill and questions the conclusion in the statement of compatibility referred to above that the Bill is compatible with human rights ‘as it does not raise any human rights issues’.
Expressing a contrary view, the Committee notes that by providing for the grant of Australian citizenship to children adopted by Australian citizens, the Bill would clearly provide for the exercise of Australian jurisdiction over any such children adopted both prior to and following their arrival in Australia. Moreover, article 21 of the Convention on the Rights of the Child [CRC] imposes obligations on both the country of the child’s birth and the country of the adopting parents to ensure that the adoption is in the best interests of the child. In the Committee’s view, it follows that:
[…] the bill is therefore properly seen, in relation to a child the subject of inter-country adoption proceedings under the bill, as potentially engaging the requirement to act in the best interests of the child and the rights guaranteed by the CRC. The committee considers that the assessment in the statement of compatibility, to the extent it suggests that Australia has no jurisdiction over or responsibility in relation to, such children until their arrival in Australia, is based on an unduly restricted view of both the scope of Australia's human rights obligations, and the circumstances in which they may apply.
In the committee's view, the bill may limit the rights of the child, and particularly the obligation to consider the best interests of the child in relation to inter-country adoptions.
This is because the bill specifies no standards or safeguards that will apply to inter-country adoptions under a bilateral agreement, and it is therefore not clear whether lower standards, or fewer safeguards, may apply to inter-country adoptions under a bilateral agreement that apply under the Hague Convention. 
It is the Committee's usual expectation that where a right may be limited, the statement of compatibility should set out the legitimate objective being pursued, the rational connection between the measure and that objective, and the proportionality of the measure.
The Committee therefore seeks the advice of the Minister as to whether the Bill is compatible with the best interests of the child and the specific protections for inter-country adoptions provided for in article 21 of the CRC and the Hague Convention.
The Bill consists of one Schedule containing amendments to Subdivision AA in Division 2 of Part 2 of the Australian Citizenship Act.
Subdivision AA (sections 19B to 19F) currently sets out the criteria for eligibility for citizenship for persons adopted in accordance with the Hague Convention. Under section 19C an application must be made to the Minister for the child to become an Australian citizen. The application can only be approved if the adoption has been finalised in the overseas country and an adoption compliance certificate issued by the authorities of that country (paragraph (19C(2)(b)). The adoption must also have the effect of terminating the legal relationship between the child and his or previous parents (paragraph (19C(2)(d)). The Minister also has a discretion to refuse an application which meets all of the statutory requirements of section 19C (subsection 19D(3)). For example, the Minister must not approve a child becoming a citizen if the Minister is not satisfied of the identity of the child (subsection 19D(4)) or where there are security concerns (subsection 19D(5)).
Items 4 to 7 amend section 19C within Subdivision AA with the effect of expanding the eligibility criteria for citizenship so that the procedures and criteria that apply in relation to Hague Convention intercountry adoptions will also apply in relation to adoptions carried out in accordance with bilateral arrangements.
More specifically, item 4 inserts the words ‘or a prescribed overseas jurisdiction’ after the words ‘Convention country’ in paragraph 19C(2)(a), the purpose being to extend eligibility for citizenship to persons adopted in accordance with bilateral arrangements. The prescribed overseas jurisdictions are those listed in Schedule 1 of the Bilateral Arrangements regulations. The countries currently listed are the Federal Democratic Republic of Ethiopia, the Republic of Korea, and Taiwan. The list of prescribed overseas jurisdictions could be altered by amendment of the regulation should the bilateral arrangements be altered.
Paragraph 19C(2)(c) currently requires, as a condition of eligibility for citizenship under Subdivision AA, that the adoption is recognised and effective for the laws of the Commonwealth and each state and territory, in accordance with the Intercountry Adoption regulations. Item 5 inserts the words ‘or the Bilateral Arrangements regulations as applicable’ after the words ‘Intercountry Adoption regulations’ in paragraph 19C(2)(c). The effect of item 5 is to create an equivalent criterion for persons adopted under a bilateral arrangement. This means that as a condition of eligibility for citizenship, the adoption must be recognised and effective for the laws of the Commonwealth and each state and territory, in accordance with the Bilateral Arrangements regulations. Under regulation 5 of the Bilateral Arrangements regulations, an adoption is recognised and effective, for the laws of the Commonwealth and each state and territory, on and after the date that the adoption takes effect in the prescribed overseas jurisdiction, provided that:
- the adoption is of a child habitually resident in the prescribed overseas jurisdiction
- the adoption is by a person habitually resident in a state or territory of Australia
- the competent authority of that state or territory has agreed that the adoption may proceed
- an adoption compliance certificate is in force in relation to the adoption and
- the adoption has the effect of ending the legal relationship between the child and each person who was, immediately before the adoption, the child’s parent.
Items 6 and 7 insert definitions relevant to the new arrangements. Items 6 contains an amended definition of ‘adoption compliance certificate’ to take account of the adoption compliance certificate for bilateral arrangements as well as the Hague Convention compliance certificate. Item 7 inserts new definitions of ‘Bilateral Arrangements regulations’ and ‘prescribed overseas jurisdiction’.
Items 1 to 3 and 8 are consequential, proposing amendments to relevant simplified outlines and headings to reflect the changes described above.
Item 9 is an application provision. It provides that applications for citizenship under the new and amended section 19C may be made from the day of commencement of the amendments (Royal Assent) and may be made in relation to adoptions which were finalised either before or after the amendments come into force.
While the practice of intercountry adoption has not always been free from controversy, the Bill is small and relatively uncontroversial, its purpose being to create an equivalent entitlement to citizenship for children adopted under bilateral intercountry adoption arrangements to the entitlement currently provided for children adopted under Hague Convention arrangements.
The Bill implements only one fairly minor recommendation of the Interdepartmental Committee report and is a small part of the Government’s bigger plan to change and extend Australia’s intercountry adoption programme. COAG has given in-principle support for the creation of a new national organisation (or utilisation of an existing agency) to provide services for intercountry adoptions, although the detail of that programme is yet to be worked out. Given there are important decisions to be made, such as the preliminary question of whether the proposed national organisation should be a non-government organisation or another Commonwealth administrative body, an implementation date of early 2015 would seem ambitious. Any discussion of changes to intercountry adoption will raise complex questions about the needs of adopting families in Australia for smooth and streamlined processes as well as the need for Australia to act in accordance with its obligations under the Hague Convention and ensure that the best interests of the child are always paramount.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
. The full title of the Convention is: Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.
. Figures from International Social Services show a global decline of nearly 50 per cent, from 43,142 adoptions in 2004 to 21,991 adoptions in 2011. See Attorney-General’s Department (AG), ‘Intercountry adoption statistics’, AG website, accessed 16 June 2014.
. See: Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, ‘Status table’, HCCH website, accessed 16 June 2014.
. The India programme is on hold, suspended by the Australian Government in 2010 due to trafficking allegations. Ibid. In 2012, the Australian Government announced the closure of the programme with Ethiopia. The Government has refused to consider requests to reopen the Ethiopia adoption programme because of ongoing concerns about the financial viability and future ethical conduct of the programme. Report of the Interdepartmental Committee on Intercountry Adoption, op. cit., p. 18.
. Explanatory Statement, Family Law (Bilateral Arrangements—Intercountry Adoption) Amendment (2014 Measures No. 1) Regulation 2014, Select Legislative Instrument No. 7, 2014, accessed 16 June 2014. The Explanatory Statement explains that although the Ethiopia-Australia Intercountry Adoption Program was closed in June 2012, over 600 Ethiopian-born children have been adopted by Australians through the program. Those families who have not yet finalised their Ethiopian intercountry adoptions will benefit from these automatic recognition provisions.
. The Attorney-General’s Department is the Commonwealth central authority. The various state and territory central authorities are listed on the Attorney-General’s website, accessed 16 June 2014.
. ‘Habitually resident’ is not specifically defined in either the Convention or the regulations, but it is a central concept in both, relying on a plain English meaning of the phrase in a number of the articles or regulations – Regulation 14–17 and 20 and 24, and Articles 2, 14, 22 and 28. The limitation is designed to prevent attempts to circumvent the safety mechanisms put in place by the Hague Convention. The following types of applicants living in Australia are considered to be habitually resident in Australia for the purposes of intercountry adoption:
- Australian citizens and permanent residents
- a single parent who is an Australian citizen or permanent resident, but also holds citizenship of, or rights to permanent residency in, another country and
- couples where at least one is an Australian citizen or permanent resident, regardless of whether one or both hold citizenship of, or rights to permanent residency in, another country. For further information see: Attorney-General’s website, accessed 16 June 2014.
. Council of Australian Governments (COAG), Communique, COAG Meeting, Canberra, 2 May 2014, accessed 16 June 2014.
. The report states that in Chile and Colombia for example, children are required to exit the country on a Chilean/Colombian passport even though they have Australian citizenship and an Australian passport. This means the child must obtain two passports if following the citizenship route, whereas the adoption visa route only requires a Chilean/Colombian passport.
. The Statement of Compatibility with Human Rights can be found at Attachment A to the Explanatory Memorandum to the Bill.
. Parliamentary Joint Committee on Human Rights, Eighth report of 2014, The Senate, Canberra, June 2014, pp. 8–10, accessed 14 July 2014.
. Ibid., p. 10.The Committee further notes that no such standards are contained in the Bilateral Arrangements regulations.
. ‘Prescribed overseas jurisdiction’ is defined as having the same meaning as in the Bilateral Arrangements regulations (item 7, subsection 19C(4)).
. See footnote 15 for the reason why Ethiopia is listed.
. ‘Bilateral Arrangements regulations’ is defined as meaning the Family Law (Bilateral Arrangements–Intercountry Adoption) Regulations 1998 (item 7).
. For instance, of the 108 submissions received by the Interdepartmental Committee examining options for reform (Report of the Interdepartmental Committee on Intercountry Adoption, op. cit.), 24 submissions did not support intercountry adoption, highlighting concerns with the safeguards in place to protect parents and children from unlawful practices and the effects on children of growing up outside their own culture.
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