House Standing Committee on Family and Human Services
Overseas Adoption in Australia
Appendix G – Commonwealth-State Agreement for the implementation of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption
This agreement (to be known as the “Commonwealth-State Agreement for the
Implementation of the Hague Convention on Protection of Children and
Cooperation in respect of Intercountry Adoption”) is made between –
THE COMMONWEALTH OF AUSTRALIA ; and
THE STATE OF VICTORIA ; and
THE STATE OF QUEENSLAND ; and
THE STATE OF WESTERN AUSTRALIA ; and
THE STATE OF SOUTH AUSTRALIA ; and
THE STATE OF TASMANIA ; and
THE AUSTRALIAN CAPITAL TERRITORY ; and
THE NORTHERN TERRITORY .
(A) The Ministers of the respective governments in Australia who are
responsible for intercountry adoption have agreed that it is in the
interests of Australia to recommend to the Commonwealth Government
that it ratify the Hague Convention on Protection of Children and
Cooperation in respect of Intercountry Adoption [“ the Hague
Convention”].
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(B) The Minister have agreed that in order to enable the Commonwealth
Government to ratify the Hague Convention, Australia as the
Contracting State, must be able to demonstrate its ability to carry out the
obligations of the Convention.
(C) The Ministers have also agreed that the existing standards applicable to
intercountry adoption, found in the legislation and administrative
procedures of each of the State, are sufficient to comply with the
standards and procedures of the Hague Convention.
PART I – INTERPRETATION
1. In this agreement, unless the contrary intention appears:
“Hague Convention” means the Hague Convention on Protection of
Children and Cooperation in respect of Intercountry Adoption done at
The Hague on 29 May 1993;
“Minister” means the Minister for Family Services of the
Commonwealth, to a State Minister for the time being responsible for
the administration of the laws of the State relating to adoption of
children, and includes a Minister who is for the time being acting for or
on behalf of that Minister;
“reasonable time” in clause 16(c) means such period of time, not
exceeding twelve months, as is determined by the Community Services
Ministers’ Council’
“State” includes the Australian Capital Territory and the Northern
Territory.
PART II – OBJECTIVES OF AGREEMENT
2. An objective of this agreement is to produce a statement of compliance
that guarantees that existing State legislation and administrative
procedures relating to intercountry adoption are sufficient to ensure
compliance with the obligations of the Hague Convention.
3. A further objective of this agreement is that, in conjunction with the
relevant Commonwealth legislation and the relevant State legislation
and practices, it shall provide a cooperative scheme for the
implementation and administration of the Hague Convention in
Australia , and that it shall do so with a minimum of disruption or
alteration to existing State legislation and administrative procedures.
4. Another objective of this agreement is that questions of policy which
affect the implementation, operation or administration of the Hague
Convention in Australia shall be determined through consultation
APPENDIX G 175
between the Commonwealth and the States while the operation and
administration of intercountry adoption casework and adoption policy
shall remain the responsibility of the States unless the intervention of
the Commonwealth is requested by a State or another Contracting State .
PART III – GENERAL PROVISIONS
5. The Commonwealth will as soon as practicable after the conclusion of
this agreement submit to the Federal Executive Council for making by
the Governor-General regulations under section 111C of the Family Law
Act 1975.
6. The regulations shall provide for the establishment of the
Commonwealth Central Authority and shall, subject to this agreement,
include such other provisions as would enable the Commonwealth to do
all things necessary to fulfil its obligations under the Hague Convention.
7. The regulations, and an intercountry adoption law mentioned in clause
20, shall provide for the appointment by the States of State Central
Authorities and require the States to inform the Commonwealth of such
appointment and of any changes in those appointments.
8. The functions that a State may give its State Central Authority include:
(a) processing the day-to-day casework involved in a particular
adoption; and
(b) approving an application for the adoption of a child; and
(c) giving consent to the adoption of a child; and
(d) accrediting a body for the purposes of the Hague Convention;
and
(e) revoking the accreditation of a body; and
(f) recommending to the Commonwealth Central Authority the
preparation of legislation to ensure that Australia meets its
obligations under the Hague Convention; and
(g) advising the Commonwealth Central Authority that:
(i) a provision of the Hague Convention has not been
respected; or
(ii) there is a serious risk that a provision of the
Convention may not be respected.
9. The functions that a State may give its State Central Authority do not
include any functions of the Commonwealth Central Authority under
the regulations.
10. If the regulations are made after the commencement of the Legislative
Instruments Act 1997, the regulations will be registered in the Federal
Register of Legislative Instruments. In accordance with section 11C of
the Family Law Act 1975, the regulations will enter into force when the
Hague Convention enters into force for Australia .
176 INQUIRY INTO ADOPTION OF CHILDREN FROM OVERSEAS
11. The signature of a State Minister to this agreement indicates that at the
time when this agreement commences operation the legislation (other
than an intercountry adoption law mentioned in clause 20) and
administrative procedures of the State which that Minister represents
comply with the requirements of the Hague Convention.
12. If a State determines that its State Central Authority should exercise its
function to accredit bodies for the purposes of Article 9 of the Hague
Convention, the State agrees to ensure that the Authority will only
accredit a body that satisfies the criteria set out in Part II of the
Accreditation Criteria agreed by the Community Service Ministers’
Council, the terms of which are set out in the Schedule to this
agreement.
13. If a State Central Authority proposes to revoke the accreditation of a
body, the State of the Authority agrees to ensure that the Authority will
only revoke the accreditation if the body does not comply with the
criteria set out in Part IV of the Accreditation Criteria agreed by the
Community Service Ministers’ Council, the terms of which are set out in
the Schedule to this agreement.
14. Each State agrees not to introduce amendments to its legislation or
change its administrative procedures in relation to intercountry
adoption in such a way as may adversely affect Australia ’s ability to
comply with the Hague Convention.
15. If the legislation or administrative procedures of a State do not enable
compliance with the Convention, then:
(a) the State may amend its legislation or administrative procedures
to ensure compliance with the Hague Convention; or
(b) the State may request the Commonwealth to enact such
legislation for the duration of time and to the extent necessary to
ensure compliance.
16. If it subsequently comes to notice that there is a deficiency in the
legislation or administrative procedures of a State such that the State
does not comply with the requirements of the Hague Convention, then
the State shall forthwith notify in writing the other parties to this
agreement of the deficiency, and:
(a) the State may amend its legislation or administrative procedures
to ensure compliance with the Hague Convention; or
(b) the State may request the Commonwealth to enact such
legislation for the direction of time and to the extent necessary to
ensure compliance; or
(c) if, within a reasonable time from the deficiency coming to
notice, a State does not amend its legislation or administrative
procedures in accordance with paragraph (a) or make a request
of the kind referred to in paragraph (b), the Commonwealth
APPENDIX G 177
will, if necessary and in consultation with the State, enact such
legislation as is required to ensure compliance with the Hague
Convention.
17. Where a country which has an existing bilateral agreement with
Australian States does not become a party to the Hague Convention
within three years from the date of Australia ’s ratification of the
Convention, that bilateral agreement is to be renegotiated by the
Commonwealth (in conjunction with the States) to obtain conformity
with the provisions of the Hague Convention.
18. For a country that is not a party to the Hague Convention, and where
there is no existing bilateral arrangement or agreement between a State
and the country, any proposals for a bilateral agreement between the
State and the country shall be on the basis of compliance with the
requirements of the Hague Convention and shall be negotiated in
accordance with the State Protocols and Procedures for Developing New
Programs with New Countries 1991 with Commonwealth involvement
because of Australia ’s ratification of the Hague Convention and entering
into of this agreement.
19. This agreement does not give rise to any legally enforceable right,
privilege, obligation or liability in respect of:
(a) anything done under the agreement; or
(b) anything omitted to be done under the agreement.
PART IV – STATE LAWS TO GIVE EFFECT TO THE HAGUE
CONVENTION
20. If a State proposes to make an intercountry adoption law to give effect
to the Hague Convention, the responsible State Minister will inform the
responsible Commonwealth Minister of the proposal in sufficient time
to allow the Commonwealth to make regulations that disapply to the
State the Commonwealth regulations made for the purpose of section
111C of the Family Law Act 1975 .
21. If the Commonwealth proposes to make regulations that will amend
regulations made for section 111C of the Family Law Act 1975 , the
Commonwealth Central Authority will consult the State Centra
Authority of each State regarding the proposal.
22. If a State proposes to amend an intercountry adoption law to give effect
to the Hague Convention, the State Central Authority of the State will
consult the Commonwealth Central Authority and the State Central
Authority of each other State regarding the proposal.
178 INQUIRY INTO ADOPTION OF CHILDREN FROM OVERSEAS
PART V – OPERATION OF THE AGREEMENT
23. This agreement shall commence operation and shall have effect on and
from the date on which the agreement is signed by all the parties to the
agreement.
24. This agreement may be amended by the parties to it for the time being
only in accordance with a resolution of the Community Service
Ministers’ Council passed by a unanimous vote of all the members of
that Council with a right to vote in its proceedings.
25. If a State no longer wishes to be a party to this agreement, it may give a
notice to that effect to the Community Service Ministers’ Council. The
State will cease to be a party to the agreement 12 months after the State
gives the notice unless the State withdraws the notice before the
expiration of those 12 months.
26. If a State ceases to be a party to this agreement under clause 25, and the
State wishes to again be a party to the agreement, the State may give a
notice to that effect to the Community Service Ministers’ Council. If the
Council is satisfied that at the time of giving the notice the State
complied with the requirements of this agreement, the State will again
become a party to the agreement 3 months after giving the notice.
APPENDIX G 187
SCHEDULE
CRITERIA IN RELATION TO THE ACCREDITATION OF BODIES
UNDER THE HAGUE CONVENTION ON THE PROTECTION OF
CHILDREN AND COOPERATION IN RESPECT OF INTERCOUNTRY
ADOPTION
PART I – BACKGROUND
1. States and internal Territories may enter into arrangements with a
body for the accreditation of that body to provide State or Territory
intercountry adoption services or across border services consistent with the
terms of accreditation.
2. A body applying for accreditation is required to satisfy the criteria set
out in Part II.
3. Accreditation of a body is subject to annual review and may be
revoked at any time by the State Central Authority issuing accreditation if the
body does not comply with the criteria set out in Part IV.
4. A State Central Authority that accredits a body or revokes the
accreditation of a body is required to provide notice of that accreditation or
revocation to the Commonwealth Central Authority who will advise the
Permanent Bureau of the Hague Conference on Private International Law of
the terms of accreditation.
PART II – ACCREDITATION CRITERIA
Eligibility
5. The body must be an incorporated non profit body.
6. The body must not be, and must not be likely to be, a party to
negotiations or an agreement for the establishment of adoption arrangements
with overseas countries.
7. The body must give an undertaking that during any period of
accreditation the body will not enter negotiations for the establishment of an
adoption agreement with an overseas country.
The Body
8. The body must employ a principal officer with social science
qualifications and experience in adoption, substitute care or family services to
supervise the adoption arrangements undertaken by the body.
9. The body must be financially viable.
10. The body must employ professional staff with appropriate
qualifications to undertake training, assessment and placement tasks.
188 INQUIRY INTO ADOPTION OF CHILDREN FROM OVERSEAS
11. The body must have accommodation available for its use that:
(a) is suitable for the conduct of assessment, interviews, training
and support to adoption arrangements; and
(b) does not form part of, and is not adjacent to, accommodation
that is used by an aid organisation or an organisation that
represents adoptive parents.
Conduct of the Body
12. The body must comply with the practice that applies, in the State or
Territory in which the body is seeking accreditation, relating to the approval
or contracting of bodies to undertake arrangements with a view to the
adoption of a child.
13. The body must comply with:
(a) the laws of the Commonwealth and the State or Territory in
which it is seeking accreditation; and
(b) the requirements of the Convention.
14. The body must not be associated with, and must not be likely to be
associated with, the collection and disbursement of aid to an overseas
country.
15. A body must have suitable facilities for the confidential storage of
records, and must give an undertaking to maintain those records.
16. The body must give an undertaking that during any period of
accreditation the body:
(a) will only undertake the functions approved at the time of
accreditation; and
(b) will only offer adoption services in respect of the countries
specified in its accreditation; and
(c) will not destroy any records maintained by the body; and
(d) will not issue publications promoting adoption, or offer
preparation courses for adoption applicants, unless the content
of the publication or the course had been approved by the
State Central Authority to which the body has applied for
accreditation.
17. The body must give an undertaking that on its winding up it will lodge
any records, that it has maintained during any period of accreditation, with
the State Central Authority to which it has applied for accreditation.
PART III – FUNCTIONS OF AN ACCREDITED BODY
18. A body may be accredited to undertake any of the following functions
in relation to the adoption process:
(a) Initial Enquiries – respond to initial enquiries for intercountry
adoption;
APPENDIX G 189
(b) Information Sessions - conduct regular information sessions to
inform potential applicants;
(c) Expressions of Interest – receive and process expressions of
interest;
(d) Applications – receive and process applications to adopt
(Article 14);
(e) Assessments – undertake assessments of suitability (including
relevant medical, referee and police reports, and preparation
of the Home Study);
(f) Decision to approve or not approve – determine the suitability
of applicants;
(g) Forwarding of file – forward a report including all relevant
information required to the country of origin (Article 15);
(h) Allocation of children – receive allocation of children, confirm
suitability of match (Article 17b) and advise applicants;
(i) Supervision of placement – provide support and advice to
applicants following a placement;
(j) Placement Breakdown – in case of placement breakdown prior
to adoption orders being made, consult with the State Central
Authority regarding appropriate arrangements, but the body
is not to make decisions on alternative arrangements;
(k) Adoption Information – collect and preserve relevant
information about the child and the applicants (Article 9a),
and respond to requests for adoption information until the
child attains the age of 18 years;
(l) Evaluation Reports – prepare general evaluation report for the
State Central Authority (Article 9d);
(m) Post Adoptive Services – provide a referral and support
service post granting of the adoption order;
(n) Administrative arrangements – undertake approved
administrative arrangements between already established
programs.
PART IV – REVOCATION CRITERIA
Division 1 – Review and assessment of the body
19. A body must submit to the supervision of the State Central Authority that
accredited the body, and must provide the State Central Authority with access
to the records and reports of the body in accordance with the requirements of
the State Central Authority.
190 INQUIRY INTO ADOPTION OF CHILDREN FROM OVERSEAS
20. The body must provide biannual reports to the State Central Authority
as required in the accreditation of the body.
21. The accommodation at which the body performs its functions as an
accredited body:
(a) must be suitable for the conduct of assessment, interviews,
training and support to adoption arrangements; and
(b) must not form part of, or be adjacent to, accommodation that is
used by an aid organisation or an organisation that represents
adoptive parents.
22. Except in accordance with an arrangements between States and internal
Territories, the functions approved in the accreditation must only be provided
by the body within the State or internal Territory of the State Central
Authority that accredited the body.
23. The body must comply with any undertakings given for the purpose of
accreditation.
24. The body must continue to satisfy the criteria set out in Part II and any
conditions set out in the instrument of accreditation.
25. A body must comply with, and must ensure that its staff members comply
with, the code of conduct for bodies accredited to conduct adoption
arrangements set out in Division 2.
Division 2 – Code of Conduct
[NOTE: This code exists to recognise and give effect to the right of the public to expect that
accredited intercountry adoption bodies are of the highest integrity and competence and treat
all clients fairly, reasonably and equitably and are accountable to the State Central Authority
that accredited the body.]
Conflict of interest
26. A member of staff of an accredited body must not hold any financial or
other interest, and must not give an undertaking, that could directly or
indirectly compromise the performance of his or her functions. Conflict of
interest must be assessed by taking into account, amongst other things, the
likelihood that a member of staff possessing a particular interest could be
influenced, or might appear to be influenced, in the performance of his or her
responsibilities on a particular matter. A member of staff must notify the
State Central Authority that accredited the body if a potential or actual
conflict of interest arises.
Acceptance of gifts or benefits
27. An accredited body or member of staff must not accept a gift, donation or
benefit if it could be seen by a client as intended or likely to cause the member
to undertake his or her responsibilities in a particular way, or deviate from the
proper course of action.
APPENDIX G 191
Personal and professional behaviour
28. A member of staff of an accredited body must perform any duties
associated with his or her position diligently, impartially and conscientiously,
to the best of his or her ability.
29. In the performance of duties, a member of staff of an accredited body:
(a) must keep up to date with any changes in practice or procedure
relating to intercountry adoption; and
(b) must comply with the laws, and any relevant administrative
requirements
of the Commonwealth and the State or internal Territory of
accreditation; and
(c) must maintain and preserve record information systems in
accordance with the requirements of the State Central Authority
that accredited the body; and
(d) must treat all clients with courtesy, sensitivity and in confidence;
and
(e) must not take any improper advantage of any information gained
in the
carrying out of his or her duties; and
(f) must report to the State Central Authority that accredited the
body any
unethical behaviour or wrong doing by other members of staff of
which he or she is aware.
Fairness and equity
30. The manner in which an accredited body deals with issues or clients must
be consistent, prompt and fair. This includes:
(a) dealing with matters in accordance with approved procedures;
and
(b) dealing with matters without discrimination on any grounds; and
(c) providing appropriate review and appeal mechanisms.
31. If an accredited body proposes to exercise a discretionary power in
relation to a particular case, the body must ensure that all relevant
considerations are taken into account in regard to the particular merits of the
case.
Public comment and the use of information
32. While staff members of an accredited body have the right to make public
comment and to enter into public debate on political and social issues, the
accredited body must refrain from public comment where that comment is
192 INQUIRY INTO ADOPTION OF CHILDREN FROM OVERSEAS
sufficiently strong to undermine the accredited body, the State Central
Authority that accredited the body or the Commonwealth Central Authority.
33. An accredited body must not disclose official information or
documents acquired in the course of carrying out its functions as an
accredited boy unless the proper authority has been sought and given.
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