This chapter discusses a number of issues raised about the Bill by the
Parliamentary Joint Committee on Human Rights and submitters and witnesses to
Issues raised by the Parliamentary Joint Committee on Human Rights
In its report on the Bill, tabled on 24 June 2014, the Parliamentary
Joint Committee on Human Rights (PJCHR) noted that Article 21 of the Convention
on the Rights of the Child
(CRC) provides specific protections for children in relation to intercountry adoption,
to ensure the primacy of the best interests of the child. These include the
requirement that adoptions are authorised only by competent authorities, are
subject to equivalent safeguards and standards to those applied to national
adoption, and do not result in improper financial gain for those involved. The
obligations in Article 21 of the CRC are imposed upon both the country of the
child's birth and the country of the adopting parents. The Hague Convention
establishes a common regime, including minimum standards and appropriate
safeguards, for ensuring that those obligations are met by its parties.
Given Australia's obligations under Article 21 of the CRC, the PJCHR concluded
that the government's assessment that the Bill does not raise any human rights
issues for Australia was 'based on an unduly restricted view of both the scope
of Australia's human rights obligations, and the circumstances in which they
The PJCHR expressed the view that the Bill may limit the rights of the
child, and particularly the obligation to consider the best interests of the
child in relation to intercountry adoptions, because neither the Bill nor the regulations
specify standards or safeguards that will apply to intercountry adoptions under
a bilateral agreement. The PJCHR therefore sought:
the advice of the Minister for Immigration and Border
Protection as to whether the Bill is compatible with the best interests of the
child and the specific protections for inter-country adoption provided for in
article 21 of the CRC and the Hague Convention.
At the time of finalising this report, the PJCHR had not reported any
response from the minister.
At the public hearing on 28 July, the Department of Immigration and
Border Protection stated that the Bill was consistent with Article 21 of the
CRC, because in practice the same safeguards were applied to adoptions from
Hague and non-Hague countries. The department added that in its opinion the
Bill enhanced the wellbeing of adopted children by creating a more streamlined
and cost-effective process which allowed them to commence their lives in
Australia more quickly.
Issues raised during this inquiry
The issues raised in submissions focused on Australia's obligations to
prioritise the best interests of the child in intercountry adoptions. All the
submissions emphasised that streamlining adoption procedures through the Bill
(and through the broader package of reforms of which it forms a part) must not weaken
the protections for children built in to the current system.
Standards applied under bilateral
Responding to the committee's query as to the terms of Australia's
existing bilateral arrangements, the Attorney-General's Department advised that
'the government does not have formal government-to-government agreements with
South Korea or Taiwan' in relation to intercountry adoption.
Thus there does not appear to be a legally binding framework mandating
standards and safeguards for child protection applicable to the parties to bilateral
arrangements, equivalent to that established by the Hague Convention for its
Many of the submissions expressed concerns that in the absence of such
legal provisions, and with Australian authorities no longer having a role in
determining the validity of an adoption, the streamlined citizenship process
created by the Bill would make the process vulnerable to reduced standards for
the protection of children, and greater risks of malpractice.
In their submission, three academics from Griffith University and RMIT commented
Diminishing the checks and protections built into Australia's
world class intercountry adoption system risks opening the doors to increased
incidents of child trafficking, coercive practices and breaches of
international and national laws. Non-Hague countries, even those with whom
Australia has bilateral arrangements do not necessarily guarantee the same
protections nor meet the same standards as those countries which have
International Social Service (ISS) Australia offered its view of the
The ISS network is aware that in countries whose child
protection systems have limited capacity to monitor individual cases,
individuals and criminal organisations may exploit loopholes in the adoption
system, for financial gain or other unlawful or unethical purposes. Admittedly
unlawful or unethical practices may also occur in Convention countries, however
the probability is higher in non-Convention countries as they are not required
to follow the rigorous processes required by the Convention.
Witnesses at the public hearing discussed the types of malpractice that
could occur in countries of origin, including failure to adequately explore
domestic adoption options as a first priority for children, falsification of
records, insufficient efforts to trace a child's family prior to authorising an
adoption, and the absence of genuine free and informed consent from the child's
parents, including pressure to release children for adoption.
In its submission and at the hearing, UNICEF Australia stated its
'unequivocal' view that intercountry adoptions should only occur under the
terms set out in the Hague Convention:
In real terms, UNICEF's view is that our overarching
recommendation is that we work only with Hague countries. If the government
was absolutely committed to working under bilateral agreements then we would
recommend that, where possible, they adopt most of the safeguarding that is
already set out in the Hague Convention and then, as has just been mentioned,
have those checks and balances in place through the life of the adoption
process so that the adoptive family, the biological family and the child are
all adequately protected.
It was recognised that the problem may not necessarily be that lower
standards were accepted by bilateral arrangement countries, rather that the
capacity and ability of non-Hague countries to meet the standards tended to be
poorer, and thus, there was a greater prevalence of serious problems with
adoptions in non-Hague countries.
Moreover, non-Hague countries were not able to benefit from the systems of
monitoring and technical assistance provided under the Convention framework.
At the public hearing, Mr Greg Manning from the Attorney-General's
Department emphasised that
...the approach of the department in relation to regulating or
administering intercountry adoption programs is the same whether or not the
country you are dealing with is a Hague or a non-Hague country...our approach
generally...is one of ensuring practical compliance with and implementation of
Hague convention standards, rather than something more theoretical.
...We would encourage and probably prefer all countries being
party to an important multilateral convention such as the Hague convention. But
the reality is that being a party is not enough in relation to satisfying
ourselves about what occurs in a country in relation to intercountry adoption,
so we undertake more practical measures to satisfy ourselves of that.
The department advised that these practical measures included ongoing review
of relevant legislation, guidelines and infrastructure in the countries in
question, monitoring the practical operation of programs, regular dialogue with
relevant in-country authorities through Australia's diplomatic missions and
through visits to the country, and exchanging information with other countries
and with NGOs working in the field.
Mr Manning mentioned that while bilateral arrangement countries were not
eligible to receive technical assistance for compliance through the Hague Convention
mechanisms, international NGOs often provided such assistance.
Post-adoption monitoring and
Several submissions raised concerns about the nature and level of
post-adoption monitoring and support to be provided to adopted children and
their families under adoptions completed overseas under bilateral
arrangements. This included both follow up support to the child and family in
Australia, and the sharing of post-adoption information and reporting with
authorities in the sending country.
While post-adoption processes did not fall directly within the terms of
the Bill, it was noted that the immediate grant of citizenship to children
adopted overseas would remove the guardianship of the minister over the child
that had previously prevailed while the adoption was being finalised in
Australia, and may therefore remove the monitoring and reporting requirements
which accompanied that status.
Witnesses also felt that post-adoption support was an indispensable part of the
bigger picture in a reformed adoption system which must be taken into account
when considering the Bill.
Speaking at the public hearing, Dr Patricia Fronek said that 'the
biggest issue with post-adoption support is that we do not have enough',
especially in light of the growing proportion of adoptees being older children
and children with special needs.
This was also well expressed in the submission of Ms Sandi Petersen:
Children adopted from overseas often have a history of trauma
and loss which brings additional and complex emotional, developmental and
social needs... these exceedingly vulnerable children deserve the highest
standard of care and supervision that our country can provide, including
provision of specialised support and supervision during their first year in
Origins Vic Inc observed that 'the fast adoption process may increase
the numbers of intercountry adoptions and government resources may need to
increase to monitor the arrangements once the child is in Australia'.
Origins and other submitters also emphasised the importance of maintaining
reporting systems which ensured that children could develop an understanding of
their identity and family of origin, and be able to contact their biological
family if they chose to do so in future.
The Attorney-General's Department advised that the Bill would not change
post-adoption support arrangements, which were provided by state and territory
governments in accordance with their respective laws. While the laws and
processes may vary in some respects between states and territories, support
services were provided to adopted children and their families on an identical
basis whether the adoption took place under the Hague Convention or under
bilateral arrangements. With respect to post-adoption reporting, the department
advised that this was determined by the requirements imposed by the country of
origin, and facilitated by state and territory governments accordingly.
In its submission UNICEF recommended that the Bill include provision
that wherever legally possible, and wherever in the best interests of the
child, children granted citizenship under the amended provisions of the Act
would automatically retain dual nationality.
UNICEF explained during the hearing that this reflected 'a simple idea about a
child's right to their own nationality', to embrace their identity and, if they
wished, to reconnect with their country of origin later in life.
The Australian Institute of Family Studies advised that its studies into
past adoption practices in Australia had revealed the importance of supporting
and sustaining contact between adoptees and their biological families, while
recognising the greater difficulty of this in the intercountry adoption
Possible future bilateral
A key concern expressed in almost all submissions, and by witnesses at
the public hearing, was that the Bill reflected an intention on the part of the
government to expand the number of countries with which Australia carried out
intercountry adoptions under bilateral arrangements rather than under the Hague
Convention. While the existing bilateral arrangements pre-dated the Hague
Convention, submitters took the view that the Hague Convention should now be
the preferred (or the only) framework under which Australia facilitated intercountry
In its evidence to the committee, the Attorney-General's Department advised
that there were only two countries with which intercountry adoptions were
presently taking place under bilateral arrangements. One of these, the
Republic of Korea, was in the 'final stages' of becoming party to the Hague
Convention. The other, Taiwan, may be precluded by its international status
from becoming party to the Convention.
The department further advised that discussions were presently under way
about opening new intercountry adoptions with seven countries, all of whom were
parties to the Hague Convention,
and that there were no current plans to consider new bilateral arrangements
with non-Hague Convention countries.
At the same time, the department noted that Article 21(e) of the
Convention on the Rights of the Child specifically envisaged that parties could
undertake bilateral as well as multilateral adoption arrangements, and that
nothing in the present Bill was directed toward making future bilateral
arrangements more or less likely.
The department reiterated that 'Australia will only consider opening a new
intercountry adoption programme where it can be demonstrated that there is practical
compliance with the Hague Convention'.
The committee believes that the Bill offers benefits to all parties
involved with intercountry adoptions under Australia's bilateral arrangements.
The streamlined citizenship process effected by the Bill will make overseas
adoption a little bit faster, easier and more cost-effective for adopting
families, and will enable adopted children to settle more quickly and easily
into their new lives, and access key support services immediately on arrival in
The committee notes the advice provided by the relevant departments that
in doing so, the Bill will not in any way compromise the interests of the
child, nor the standards and safeguards
applied to intercountry adoption programs under bilateral arrangements, which
will continue to mirror the principles of the Hague Convention.
The committee recommends, subject to the two subsequent recommendations,
that the Bill be passed.
The committee acknowledges the view shared by both government and
community stakeholders that the Hague Convention represents the best-practice
international framework for intercountry adoptions today. The committee
commends the unequivocal assurances given by the Attorney-General's Department
that whether an overseas adoption is covered by the Hague Convention or a
bilateral arrangement, the same standards, safeguards and monitoring procedures
are and will be applied.
Unlike the Hague Convention regime, the principles governing Australia's
bilateral arrangements are not set out in law, either in
government-to-government agreements or in the Bill and the related
regulations. This lacuna gives rise to understandable concerns within the
community as to whether, and how, relevant standards are agreed and enforced in
the context of bilateral arrangements. A similar concern was expressed by the
PJCHR in its consideration of the Bill.
The committee does not question the good faith of Australia's
authorities in their efforts to ensure that appropriate and consistent
standards are upheld in all intercountry adoptions. The committee believes
nonetheless that the principles of the Hague Convention, and most notably the
requirement that the best interests of the child be the paramount consideration
throughout the adoption cycle, need to be not just implicitly understood but
explicitly and publicly stated in the context of Australia's bilateral
The committee recommends that the child protection principles set out in
the Hague Convention, particularly the overarching requirement that the best
interests of the child be the paramount consideration in intercountry adoption processes,
be explicitly articulated in Australia's bilateral arrangements and, where
relevant, in the related legislation and regulations.
The committee recognises that that accords with the government's general
position, and is comforted by the approach that the government currently goes
'behind' both the Convention and bilateral arrangements when considering
intercountry adoptions, by undertaking practical measures such as those
discussed at paragraph 2.16: ongoing review of relevant legislation, guidelines
and infrastructure in the countries in question, monitoring the practical
operation of programs, regular dialogue with relevant in-country authorities
through Australia's diplomatic missions and through visits to the country, and
exchanging information with other countries and with NGOs working in the field.
In the course of the inquiry it became clear that post-adoption
monitoring and support was crucially important to protecting the welfare of
adopted children, as well as the families involved. The committee noted the
evidence of several submitters that post-adoption support may be
under-resourced at present, and the strongly-held view that under a more
streamlined adoption system the level of support provided, as well as monitoring
and reporting to countries of origin, must not be compromised.
While not directly relevant to the committee's terms of reference, the
committee strongly urges Commonwealth, state and territory governments to ensure
that adequate resourcing and priority is provided for follow up monitoring and
support to ensure that it fully addresses Australia's obligations to adoptees
throughout the adoption cycle, regardless of whether adoptions take place under
the Hague Convention or under bilateral arrangements.
The committee recognises the historical and legal reasons which gave
rise to the bilateral arrangements currently in place, noting that only two
remain in practical effect, and one of these will soon become obsolete.
At this point in time, with the Hague Convention attracting a robust and
growing list of parties, and representing the benchmark for global
best-practice in intercountry adoption, the committee is of the view that it
would be preferable if further bilateral arrangements with non-Hague parties were
not pursued unless there are compelling reasons for doing so.
Senator the Hon Ian Macdonald
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