House of Representatives Committees

House Standing Committee on Family and Human Services

Committee activities (inquiries and reports)

Overseas Adoption in Australia

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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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