Commonwealth role: development of model legislation
In Australia, adoption legislation falls within the jurisdiction of the
states and territories. Prior to the 1960s, the states, and the Commonwealth on
behalf of the territories, drafted and enacted adoption legislation separately
from each other. However, during the period from 1961 to 1964, the Commonwealth
and states held discussions about model adoption legislation. A variation of
the model legislation was subsequently implemented in each state and territory
between 1964 and 1968.
This chapter examines how adoption legislation changed in the period
between 1896 and 1968. It first summarises the key purpose of the original
adoption acts enacted by the states. Secondly, it examines the impetuses for
model legislation and its development during the 1960s.
As model legislation was developed as a legislative response to a legal
recognition problem, this chapter does not address adoption practice more
broadly. Issues that arose during the drafting of model legislation, which the
Attorney General's Department referred to as 'social welfare' issues, including
consent, record keeping and the operation of adoption agencies, are discussed
in Chapter 7. Instead, this chapter focuses on involvement of the Commonwealth
in the development of model adoption legislation.
The Commonwealth does not have constitutional ability to legislate on
adoption. The Commonwealth's legislative role was therefore limited to
responsibilities of the Attorney-General and his Department, the
Attorney-General's participation on the Standing Committee on Attorneys-General
(SCAG), and the administration of the Commonwealth territories. While the
Attorney-General of the early 1960s, Sir Garfield Barwick, was not the first
person to suggest model adoption legislation, his advice to the Prime Minister
to seek the states' support of the proposal, and the mechanism of SCAG, helped
the model adoption bill to come to fruition. The Attorney-General's Department
provided secretariat services and arranged meetings between the states to
discuss the model bill. While the Commonwealth was technically responsible for
adoption in its territories, it had minimal resources and the territories had
very small populations. In the ACT, the administration of adoption was
delegated to NSW authorities and in other territories very few adoptions took
place. This chapter concludes that the Commonwealth's role in the development
of model adoption legislation was primarily one of coordinating the relevant
state parties in order to bring the bill to completion.
Initial adoption legislation in Australia
Anecdotal evidence suggests that informal adoption was taking place in
the states and territories of Australia from the 19th century. The first state
to enact adoption legislation was Western Australia, which passed the Adoption
of Children Act (WA) in 1896. This was a relatively short act which
formalised adoption arrangements by introducing Supreme Court-issued Adoption
Orders. The Act set out basic particulars in relation to an adoption order,
including permissible parties to an adoption, the legal effect of an order, and
the court procedures to be followed.
Other states enacted similar legislation during the early part of the 20th
century. The relevant acts and ordinances were:
- Adoption of Children Ordinance 1938 (Cth)  (regulated
adoption in ACT)
- Adoption of Children Ordinance 1935 (Cth)
(regulated adoption in NT)
- Child Welfare Act 1936, Part XIX Adoption of Children
- Adoption of Children Act 1935 (Qld)
Adoption of Children Act 1925 (SA)
Adoption of Children Act 1920 (Tas)
- Adoption of Children Act 1928 (Vic)
- Adoption of Children Act 1896 (WA)
The court issuing adoption orders varied between the jurisdictions. In
Victoria, a County Court issued most adoption orders, in Tasmania, a police
magistrate. Queensland was the only state where courts did not make adoption
orders; the authority was granted to the Director of the State Children's
Effect of the adoption order
The nucleus of the adoption legislation in all jurisdictions was to
establish and define a legal relationship between the adopted child and his or
her adopted parent, and (for the most part) extinguish the legal relationship
between the child and his or her natural parents. The Adoption of Children
Act (WA), for example, formally made the adopted child:
[F]or all purposes, civil and criminal...to be deemed in law
to be the child born in lawful wedlock of the adopting parents.
All acts and ordinances across the states and territories defined the
legal relationship between the adopted child and adopting parents, and
stipulated certain rights and responsibilities. The formalisation of a legal
relationship between these parties assisted them in their everyday interactions
with the law. All acts and ordinances prescribed that the child should take the
surname of the adopting parents. The Queensland legislation specifically noted
that the right to consent to the marriage of the child became a right of the
These types of provisions assisted adopted children and their parents to avoid
practical difficulties in everyday administrative tasks such as completing
The status of adopted children with respect to inheritance was an
important legal matter defined in each act and ordinance. In several states,
the rights granted to adopted children did not extend to property inheritance.
In NSW, SA, Tasmania and WA, adopted children were not considered next-of-kin
with respect to inheritance rights in cases where an adoptive parent died
intestate (that is, without having made a will). However, in these states,
children retained next-of-kin status if their natural parents died intestate.
In the ACT, NT and Queensland, the legal situation was essentially the
reverse. Adopted children were considered next-of-kin to their adoptive
parents, but could not inherit property if a relative of their adoptive
parents died intestate. In a complementary manner, adopted children could not
inherit property from intestate natural parents, but could do so if a relative
of their natural parents died without making a will.
The effect of the Victorian legislation on property rights was different
from all other jurisdictions. It completely extinguished the legal relationship
between the adopted child and his or her natural parents.
Thus next-of-kin rules applied as if the adopted child were the natural child
of his or her natural parents. The only specified caveat was that property
rights were not affected in instances when a person had died intestate before
the enactment of the legislation.
The issue of property inheritance was important because prior to the
introduction of adoption law, it was assumed that only natural children could
automatically inherit property from relatives who died intestate. Victoria, and
to some extent the ACT, NT and Queensland, had also taken the first step
towards addressing issues such as what they considered 'the interests of the
child', and effecting a 'clean break' between the natural parents and child.
These issues were to arise in discussions about model adoption legislation in
the 1960s, as states sought to harmonise provisions including those relating to
Model adoption legislation
Adoption acts and ordinances, originating in the early 20th century,
varied significantly between the jurisdictions. This section addresses the key
drivers for the development of model legislation in the 1960s. The most
important issue, as brought to the attention of the Commonwealth, was the
recognition of adoption arrangements between the states and territories, and
Impetus for the development of model legislation
While this section addresses the impetus for change to adoption
legislation during the 1960s, this is not to say that adoption laws and
ordinances were static between their original implementation and the 1960s. In
fact, quite the opposite was true in most jurisdictions. As an example, the
initial Adoption of Children Act (Vic) was implemented in 1928,
and later changed (either replaced or amended) in 1936, 1942, 1953, 1954, 1955
and 1958. However, the changes to state and territory adoption legislation that
took place between 1964–68 were the most significant up to that point because:
- Similar changes were made across all the jurisdictions, based on
model legislation that was developed following discussions between the states
and the Commonwealth;
- Each jurisdiction amended its legislation or enacted new
legislation at the same time, between 1964 (Victoria) and 1968 (Tasmania); and
- The changes were substantial, with an emphasis on the welfare of
the child rather than the legal rights of the parent.
There are many difficulties that arise when looking back in 2012 at the
reasons for the development of model adoption legislation in the early 1960s.
Many key players are no longer living. The archival records are fragmented and
incomplete. The records that do exist contain only glimpses of the views and
intentions of legislators and bureaucrats of the time. Records surviving from
the Attorney-General's Department files provide an indication of the Department's
advice, but not always the official government position. Many of the
institutions involved in childbirth and adoption have closed, and many records
no longer exist.
However, it is clear that the key issues driving the development of
model adoption legislation were related to the recognition of adoption
- Australian states and territories; and
- Australian jurisdictions and overseas.
First, legislators wanted to facilitate legal recognition of adoption
arrangements between the states and territories of Australia. This included
related issues such as the desire to enable parents to adopt a child who was
living in a different state. In addition, adoption law at the time did not
contemplate legal recognition of adoption orders made overseas, or the adoption
of a child living overseas by Australian parents. Once it was agreed that
recognition of adoptions made in other jurisdictions would be advantageous, it
followed that similarity (or uniformity) of state and territory legislation
would make sense:
One of the principle drivers for the development of the model
laws, it appears from the files, was that the rules of private international
law at that stage did not include any ability for adoptions conducted overseas
to be recognised in Australia. In addition, because of the way adoptions were
conducted, there were problems with recognition across jurisdictions within
Australia. So it was considered at that time that it was important to deal with
the effect of an adoption order both overseas and in Australia and to legislate
for that, at the same time recognising...that developing some kind of uniformity
in the legislation would be desirable.
As the impetus for the development of model adoption legislation was the
legal issue of recognition, this section is primarily a discussion of the legal
issues and formal processes. Debate between the states that took place about
the social welfare aspects of adoption is described in Chapter 7.
In the early part of the twentieth century, there were fewer
coordination mechanisms between the states and territories than there are
today. Organisations such as the Council of Australian Governments were
non-existent, and long-distance travel and communication were much more
difficult. Original adoption legislation did not contemplate the recognition of
interstate adoptions, however a lack of such provisions was not unusual.
Provisions to recognise interstate arrangements of other kinds rarely appeared
in other legislation of the period either.
Early coordination on adoption
legislation: transmission of documents
The first steps taken by the states towards model adoption legislation
were amendments made to some state adoption acts in the early 1940s. The
amendments provided for the transmission of adoption orders when a child was
adopted in a state other than his or her state of birth. Therefore, the state
where the child was born could note the adoption on its registry of births,
deaths and marriages.
The committee understands that the first instance of such a change
appeared in a set of 1940 amendments to the Adoption of Children Ordinance
1938 (Cth). One of the newly-inserted paragraphs allowed the
Minister to make arrangements with Ministers of other states and territories
about the exchange of adoption orders for registration when either a child was
born in the ACT and adopted interstate or vice-versa.
In response to this insertion, the Secretary to the WA Registrar-General wrote
to the Commonwealth Registrar-General in March 1940 to ask if it was 'the
intention' that the Minister would be making arrangements of this type.
A response was sent from the Commonwealth Department of the Interior,
The question of making reciprocal arrangements with the state
authorities for the transmission and reception of copies of adoption orders is
The consideration of reciprocal arrangements culminated in a letter from
the Prime Minister to all State Premiers sent on 27 December 1940.
The letter formally advised premiers of the provisions relating to reciprocal
arrangements, and requested:
I should be glad if your Government would reciprocate by
making arrangements for the transmission to the Minister for the Interior in
Canberra of a copy of any adoption order concerning a child born in the
Territory and adopted under the law of your State, and for reception from the
Minister for the Interior of a copy of any adoption order concerning a child
born in your State and adopted under the Adoption of Children Ordinance
A positive reply from WA indicated that it had made the necessary
arrangements and later supplied details of a child born in Canberra who had
been adopted in WA.
However, the replies from SA, Tasmania, and Victoria indicated that there was
no provision in their legislation that allowed them to transmit and receive
The reply from Tasmania indicated that it would make provision for such
arrangements when it next amended its own adoption legislation.
Victoria suggested that it would be useful to extend such arrangements to
children born in any state or territory and adopted in any another state or territory.
South Australia's reply raised the wider issue of the lack of recognition of
interstate adoption arrangements more generally:
This seems an opportune time to direct attention to the fact
that adoption orders of different States have no binding effect outside those
States, and that some form of reciprocal legislation or Commonwealth
legislation seems to be justified so that uniformity of registration can be
effective, and so the child and the adopting parents concerned can be afforded
the privileges the law intended.
Prime Minister the Hon. John Curtin responded, indicating that while it
would be 'desirable' for adoption orders to be recognised throughout the
Commonwealth, the constitution did not permit the Commonwealth to enact
adoption legislation effective in the states:
[T]he extension of the effect of adoption orders is a matter
for action by the States and that the Commonwealth powers can be exercised only
in respect of Territories of the Commonwealth and not generally.
Further, the issue appears not to have been widely discussed amongst
Commonwealth Ministers. An internal minute from the Department of the Interior
the Minister has not yet been informed of the proposal to ask
each of the States to introduce legislation to provide for registration of
Despite a lack of progress on uniform adoption legislation, some states
did make amendments to their acts or change their regulations in order to
facilitate the transmission of adoption orders to the state of the child's
birth (where the child was born interstate). The Acting Premier of Queensland forwarded
a copy of its amendment in June 1941 and added:
I am communicating with the other State Governments with a
view to uniform legislation being enacted in this respect.
Similar provisions were added to NSW legislation (1941), in Victoria
(1942), and the Tasmanian rules (1941). While South Australia wrote indicating
it would consider such legislation in the next session of parliament, it is not
apparent that such legislation passed.
At this point, Northern Territory did not yet have an adoption ordinance, and
arrangements had already been made in Western Australia.
Early problems with lack of
recognition of interstate adoption orders
The above amendments contemplated that children born in one state, say,
State A, might move to another state, State B, and be adopted in State B.
However, this could only take place if the child was already living in State B
before the adoption order was made. It was not possible for parents in State B
to apply directly to State A to adopt a child.
The Attorney-General's Department had received letters from ACT
residents who wished to adopt children living in NSW. It appears there were more
prospective adopters living in the ACT than there were children born in the ACT
to parents who wished them to be adopted.
Correspondence on the topic between the Attorney-General and the NSW
Child Welfare Department seems to have been somewhat interlinked with
correspondence about provisions permitting the transmission of adoption orders.
However, as an officer noted, this did not assist ACT parents wishing to adopt
children from NSW:
It seems to me that the proposed amending Ordinance and the
proposed agreement only provide for the transmission and recording of adoption
orders...have no bearing on the more important requirement that residents of
the Territory may legally adopt children domiciled in New South Wales.
A subsequent series of communications between the Commonwealth
Attorney-General's Department (AGD), Commonwealth Department of the Interior,
and NSW Child Welfare Department, confirm that NSW was considering the issue
but do not indicate significant progress.
At one point, the Attorney-General's Department noted that the Director of
Child Welfare NSW required a report on the suitability of adoptive parents
before an order was made. He suggested that a NSW inspector of the Child
Welfare Department, when visiting an area of the state close to the ACT, could
detour into the Territory to assess prospective adoptive parents.
AGD considered that it was NSW, not Commonwealth legislation, that
needed amending, as per a Department of the Interior internal brief from 12
[T]he Attorney-General's Department advised on the 10th
December 1941, that there is no provision in the Constitution [under] which the
Commonwealth Parliament can legislate with respect to adoption...
The committee found no further record of communication on the issue
until the question of uniform adoption legislation was raised in a letter sent
to the Prime Minister by the Country Women's Association Council of Queensland.
Early problems with disparity in
adoption legislation across Australia
On 17 August 1944, the Country Women's Association Council of Queensland
wrote to the Prime Minister, suggesting that adoption legislation be made
uniform across the states and territories. The letter notes disparities between
state legislation relating to what authority makes adoption orders, what the succession
rights of the child become, and what records are kept and transmitted.
The Prime Minister's Department referred the letter to the Department of
the Interior, which then replied indicating its support for the CWA proposal in
light of continued difficulties for prospective adoptive parents in the ACT:
The difficulties mentioned in Mrs. Palmer's letter have been
experienced in relation to the Australian Capital Territory due to conditions
in legislation of certain States which is apparently incompatible with the
adoption of children from such States by persons domiciled elsewhere.
Steps were taken to include provisions in the law of the
Australian Capital Territory whereby the Minister could make mutually
satisfactory arrangements with the States in respect to the transmission and
registration of adoption orders but it is found that this procedure does not go
far enough as amendments to State legislation would be necessary to admit full
reciprocity and reasonably simple administrative machinery for handling the
cases that may arise.
In these circumstances it is the view of this Department that
the suggestion made by the Country Women's Association Council of Queensland is
a good one and that an attempt should be made to secure the maximum degree of uniformity
possible throughout the Commonwealth in relation to this question including
simple provisions for dealing with cases where the adopter or adopters and the
children have a different domicile.
It is suggested that State Governments be invited to agree to
this matter being considered at a conference of Commonwealth and State
Ministers with the object of ascertaining whether it would be practicable for
agreement to be reached in respect to the law on this subject including
provisions for reciprocity and convenient machinery for administrative action.
It appears that this advice was taken, as the Tasmanian and NSW premiers
sent acknowledgements of notice that the issue was to be raised at the next
meeting of Commonwealth and State ministers.
However, the file is thus concluded, and no further detail is available
about any 'meeting of Commonwealth of State Ministers'. The next mention of
this issue appears in a 1958–59 AGD file. However, in the meantime, several
notable, and in one case widely publicised, adoption cases were brought to
Perhaps the most widely-publicised adoption case of the period was Mace
v Murray (1955).
Miss Murray was a single mother who initially signed consent to adoption
shortly after her son was born, but later withdrew her consent and sought
custody of her son. Mr and Mrs Mace were prospective adopters with whom Miss
Murray's son had been placed prior to an adoption order being made. After a
lengthy legal process culminating in an appeal to the High Court, Mr and Mrs
Mace were eventually granted the custody of the child on the basis that Miss
Murray's consent could lawfully be dispensed with.
The case of Mace v Murray is significant for a number of reasons.
In the first instance, it attracted significant and nationwide publicity. The
complex and lengthy legal battle between Miss Murray and Mr and Mrs Mace was
reported in major newspapers across Australia and both raised and contributed
to public awareness about adoption. This press coverage and related commentary
demonstrated polar views about the rights of mothers, children and adopters, as
well as exposing limitations of contemporary adoption legislation and practice.
The most significant limitation was the failure of adoption legislation to adequately
address a situation in which a mother revoked her consent to adoption after the
child had already been placed with the prospective adopters. This issue is
discussed further in Chapter 7.
Mace v Murray exposed a problem with an aspect of NSW adoption legislation.
Such a problem could have been solved in NSW by an amendment to that state's
legislation, without any action in other jurisdictions. However, consent
provisions were very similar across jurisdictions—except in Victoria—and it is
very likely that the case affected the administration of adoptions across
Australia. While adoption numbers had been climbing until 1955, there was a 12
per cent fall that year, and adoptions did not exceed pre-case levels again
In addition, the Mace v Murray case appeared to cross
jurisdictional boundaries, because Mrs Mace took the child to the ACT for a day
in order to escape the effect of a NSW court order compelling her to return the
child to Miss Murray. While model adoption legislation did not seek to, and did
not, change the application of NSW court orders interstate, Mrs Mace's actions
contributed to greater public awareness of jurisdictional recognition issues
and of the complexity of adoption law more generally. This kind of public
awareness, and the high profile nature of the case that was almost certainly
brought to the attention of government ministers of the day,
was likely to have contributed to building momentum towards adoption law
reform, and potentially, collaborative law reform through model legislation.
Another potentially significant influence on the reform process was the
new Attorney-General's personal experience. Sir Garfield Barwick was elected to
Parliament in December 1958 and immediately became Attorney-General in the
fourth Menzies government. Barwick had been an experienced barrister and Queens
Counsel when, in 1953, he represented a woman and her adopted children in an
appeal before the High Court.
The case concerned the application of provisions of the Child Welfare Act
(NSW) to adopted children in respect of their capacity to be beneficiaries
of a will of a relative of their mother.
Barwick's client was the beneficiary of a will that allowed her to
choose to establish a trust for any children she might have. After the will had
been made, the woman adopted two children and, nine years later, established a
trust in their favour. At that point, a trustee of the same will brought
proceedings against her, claiming that the act's provisions governing
inheritance should prevent her from establishing a trust for an adopted child,
if that child was adopted after the will was made.
The provisions of the Child Welfare Act (NSW) did not allow
adopted children to benefit from any will made prior to the adoption order. The
court effectively had to decide which was the decisive legal event: that the
woman made a decision to establish the trust after the adoption order,
or that the will had been made prior to the adoption order.
The legal arguments were technical, and Barwick's client lost. The court
decided the critical fact was that the will had been made prior to the adoption
order. As a result, the woman's adopted children could not be made
beneficiaries on the basis that the Act did not allow adopted children to
benefit from a will made prior to adoption.
Barwick referred to the case during subsequent discussions with the
states. His bruising encounter with this area of law may have been one
motivation in advancing the review of laws, and archival evidence shows that he
wanted the relevant adoption law provisions changed to avoid the result that
The details and judgement of Bairstow v Queensland Industries Pty.
later described by an AGD officer as 'unfortunate', was filed in full on the
Attorney-General's files. It provided an account of a widow who sought to claim
damages when her husband was killed in a car accident. While the judge awarded
damages to the widow, he found that she could not claim damages for the benefit
of her adopted child because the adoption order had been made in another
jurisdiction (the UK). Despite the judgement, the Insurance Commissioner
subsequently made a payment of £1550
to be held in a trust for the adopted child.
Again, there appears to have been no practical steps taken to address uniformity
in adoption legislation, or amendments facilitating the recognition of
interstate or overseas adoptions. However, the issue continued to arise.
In a later adoption case, the Victorian Solicitor-General wrote to the
Attorney-General providing a copy of a recent adoption order on 17 November
1960. The adoption order was made in favour of a couple who usually lived in
NSW but had travelled to Victoria and adopted a Victorian child. While the
adoption order was made by the Supreme Court, the judge noted considerable
difficulty due to a lack of uniform legislation or any provisions providing
recognition of adoption orders between states.
Continued problems arising from
disparity in adoption legislation across Australia
Problems continued to arise from a lack of recognition of adoption
orders across states and territories. Records indicate that the
Attorney-General's Department was sent or referred at least three letters
during 1958–59 from constituents in relation to problems encountered by
adopting parents of children who were living in other states.
One reply from the Attorney-General indicated that:
If I do ultimately conclude that the Commonwealth is unable
to do anything I will consider stimulating the States into passing identical
laws. This may have some promise, as the States have recently agreed upon a
common form of Hire Purchase Act and are now making progress towards a common
form of Companies Act.
Separately, correspondence is noted between the WA Premier's Department
and Commonwealth Department of External Affairs in relation to whether or not
UK adoption orders were recognised in that state. Advice from the
Attorney-General's Department was again sought, with WA ultimately advised:
The need for uniform adoption laws, including uniform rules
for recognition of foreign adoptions, is growing steadily, and the Commonwealth
has given some consideration to the problem. The Attorney-General authorised me
to say that early in the New Year he proposes to take steps to discuss with all
states the law of adoption, with a view to considering the introduction of
uniform laws on this subject. The Attorney-General is of [the] opinion that the
success of the uniform company law and hire purchase meetings suggests that
this is the best approach to the problem.
The reference of the Attorney-General to 'a common form of Companies Act'
referred to discussions between state attorneys-general at conferences of the
Standing Committee of Attorneys-General. It is very likely that the advice sent
to WA about the Attorney-General discussing adoption law with the states was
also envisaged to take place at a conference of the committee. The emergence of
this committee was one of the reasons that the development of model legislation
emerged in the early 1960s, rather than in the 1940s when first suggested. The
Standing Committee of Attorneys-General provided an effective mechanism for
state attorneys-general to meet and debate issues of legislation.
First steps towards harmonisation
of legislation: Standing Committee of Attorneys-General
Following a recommendation of the 1958 Report from the Joint
Committee on Constitutional Review, conferences of the Commonwealth and
State Ministers of Attorneys-General were held regularly between 1959 and early
1961 to consider and develop uniform company legislation.
The successful passage of the uniform company legislation in 1961–62 in
the jurisdictions was the first major achievement of what became known as the
Standing Committee of Attorneys-General (SCAG) in August 1961:
There is a standing committee of Attorneys-General of the
States and of the Commonwealth which, as I understand it, was given some form
of regularity by the Attorney-General (Sir Garfield Barwick). Previously the
committee had conducted ad hoc meetings somewhat irregularly. The purpose of
that committee has been to achieve uniformity of State legislation on a variety
of matters on which the Commonwealth itself could not act, or thought it could
not act. An instance of such a matter was the uniform companies legislation.
The committee, known as SCAG until September 2011, 'successfully
developed uniform and model laws to reduce jurisdictional difference and create
It is clear that the Attorney-General considered that SCAG was the most
effective mechanism to discuss uniform legislation. Writing in relation to the
process in 1962, Sir Garfield Barwick noted:
I have always considered that the co-ordination of the work
necessary to prepare a draft model law of adoption is a matter which is
peculiarly one that can best be done by the Standing Committee of Commonwealth
and State Attorneys-General. In this regard, I would point out that it was in
my capacity as Attorney-General for the Commonwealth that I had brought to my
notice quite a number of matters that underlined the necessity for a uniform
law of adoption, and also it was in that capacity that I took the initiative in
having work commenced on this project.
A later memorandum designed to brief the then new Attorney-General Sir
William (Billy) Snedden on work to date on uniform adoption legislation, reiterates
the message that Australian adoption law as it stood in the early sixties did
not effectively coalesce with that in overseas jurisdictions:
The rules of private international law relating to the
recognition of foreign adoption orders are unsatisfactory, and have caused
uncertainty in the recognition in Australia of adoptions overseas. The need to
have up-to-date, uniform recognition rules prompted your predecessor to suggest
to the States that an attempt be made to achieve uniformity in the whole field
It appears that the combination of the mechanism of SCAG and the
continued problems arising from a lack of recognition between the adoption laws
of the states and territories prompted the Attorney-General to decide to take
action in late 1960.
Agreement to develop a model
On 13 December 1960, the Attorney-General suggested to the then Prime
Minister (Sir Robert Menzies) that he write to the states with a view to
advancing the issue:
I am minded to propose to the States a conference of
Ministers to be followed by conferences of officers to seek a common form of
adoption legislation... 
The Prime Minister agreed, and on 22 December 1960, letters were sent to
premiers to seek their response to such a proposal. The letter explained that
the Attorney-General had 'in mind for some time' the question of a model
adoption bill, and that with the agreement of each Premier, the Commonwealth
Attorney-General would pursue the matter with the states' attorneys-general:
Matters at present in mind as suitable for inclusion in a
model Bill are the process of adoption, the basis of jurisdiction of courts to
make and rescind adoption orders, the status of an adoption order on legal
relationships between the natural parents and their child when adopted, the
effect of rescission of adoption orders, the recognition throughout Australia
of adoptions made in any part of it, the recognition in Australia of foreign
adoption orders both local and foreign; and the relationship between adoption
and birth registrations. Other ancillary matters will, no doubt, suggest
The states replied indicating their agreement with the proposal—although
WA noted that it was not committing itself to enacting a uniform bill—and
a meeting of Attorneys-General was organised for 29 March 1961.
The Commonwealth, under section 51 of Australia's Constitution, has no
legislative power to enact or enforce adoption legislation. Adoption
legislation is the responsibility of the states, unless the states choose to
refer it to the Commonwealth under section 51 (xxxvii), which they have not
done at any point.
The Commonwealth was aware of its lack of legislative power with respect to
adoption both prior to, and throughout the development of, model adoption legislation.
As discussed above, Prime Minister John Curtin indicated to the SA Premier in
1942 that the Commonwealth could not legislate on adoption.
This position is repeated in numerous memoranda and briefs in the 1940s, 1950s
and 1960s in AGD files.
The Commonwealth was well aware that it could not compel the states to develop
or enact model adoption legislation.
However, the Commonwealth did play two main roles with respect to the
development of model adoption legislation. The first was the coordination of
meetings and correspondence about provisions of model adoption legislation.
This coordination was undertaken by the AGD, acting as what would now be
considered the 'secretariat' for SCAG. AGD briefed the Attorney-General on many
of the legal aspects of the model legislation drafting process, and some of the
legal problems that had arisen due to the lack of uniformity of state laws. In
the 1960s, as is the case now, the portfolio of the Attorney-General related to
law and justice. There is no presupposition that the Department had any
expertise on, or provided direction in relation to, the principles behind
The other role of the Commonwealth was the responsibility for the
administration of the ACT, the NT and other Commonwealth territories. It
appears that adoption took place on a very small scale in these territories;
when AGD sought to obtain statistics on adoptions from the states it did not
seek, nor was supplied with, such data from the Minister for Territories. Prior
to self-government, laws of NSW applied in the ACT, but the Commonwealth could
make ordinances for the territories that were then administered by the Minister
for Territories under section 122 of the Constitution. In the ACT, the
Department of the Interior also played an administrative role.
The Minister for Territories provided feedback only on the legal technicalities
of the model bill, but did not have the capacity to provide comment on any
other substantial issues relating to adoption arrangements.
Commonwealth coordination; state
AGD provided a range of secretariat and coordination services during the
development of model legislation. It organised meetings of Ministers and
It arranged accommodation for officers coming to Canberra.
It sent updates to officers who were absent.
AGD prepared draft minutes of these meetings and circulated them. It sent draft
versions of the model bill to the states for comment.
This section provides examples of these types of activities to illustrate the
process of the development of model legislation.
At the SCAG meeting of 29 March 1961, the states decided to pursue the
development of model legislation, and to discuss the issue again at the next
meeting on 16 June 1961. In the interim, it was suggested that meetings of child
welfare officers should be arranged to debate the social welfare aspects of the
In addition, it was later decided that Child Welfare Ministers should be
invited to attend the June SCAG discussions on the issue.
Due to Chair responsibilities, the Victorian Attorney-General Mr Rylah invited
Child Welfare Ministers to attend or send a representative to the June SCAG
AGD sought and circulated meeting papers prior to the first meeting of
child welfare officers on 29/30 May 1961. On 2 May, AGD circulated a paper from
the retiring New South Wales Director of Child Welfare, Mr R.H. Hicks. States
were invited to respond or prepare their own similar papers, and many did.
Following, AGD again wrote to the states requesting statistics and responses to
a short list of questions.
AGD also circulated a detailed questionnaire.
The 29/30 May meeting was attended by child welfare officers from the
states—with the exception of Queensland—and one representative from the NSW
AGD. Commonwealth representatives were Mr Gordon Yuill, Secretary, AGD, and Mr
L Harvey, Marriage Guidance Officer, AGD.
Mr Yuille, acting as Chair of the meeting, noted to the Attorney-General in a
As I felt I was not in a position to contribute
authoritatively to the discussions on social welfare policy, I also acted as
secretary to the meeting.
It should be noted that AGD, acting as secretariat to SCAG, was also
coordinating discussions on a range of other issues apart from adoption
legislation. For example, much of the planning of the model adoption bill took
place in 1961. SCAG met six times throughout that year. Minutes show that two
of these were devoted to discussions on uniform company legislation, and one to
discussions on trade practices legislation.
Adoption matters were mentioned for a few minutes at the July and September
Only at the June meeting were provisions of a model adoption bill discussed in
detail. This discussion lasted between 11.00am and 12.45pm, while other agenda
items included: company law, hire purchase law, interstate enforcement of fines
and operation of service and execution of process, a proposed uniform maintenance
bill, a business names bill, and control of take-over efforts.
It appears from the SCAG minutes that discussions on a model adoption
bill occupied much less of the attorneys-generals' time in 1961 than issues
such as company legislation; total discussion on adoption comprised less than
two hours of SCAG's time over the year.
The development of model legislation was at times a difficult exercise. AGD
tried to ensure that the process ran as smoothly as possible.
Such challenges were also recognised by the Victorian Attorney-General:
One of the problems in relation to interstate co-operation is
the delay that is inevitable when seven groups, separated by many thousands of
miles, have to agree and I am anxious that the delay should be kept to a
Despite such goodwill, each state and territory did have its own systems
and processes, and unanimous agreement on adoption was difficult to obtain. For
example, a brief to the Attorney-General of 8 June 1961 noted that:
Unfortunately, a lot of this [time] will doubtless be taken
up in discussions with the Queensland people, whose attitude seems to be that
their legislation has worked well since 1935 and no changes are necessary or
This view appeared to be consistent with that held by the Queensland
Minister. A letter from the Queensland Assistant Parliamentary Draftsman to Mr
Yuille, dated 14 December 1962, notes that:
[O]ur Queensland [adoption] system is so different from the
antiquated systems in other States that all our Minister does whenever he reads
any of your communications on adoption is shudder.
Communication with non-government
When it became known that model adoption legislation was being
developed, some stakeholders chose to send correspondence to AGD. (It is likely
that more correspondence was forwarded to state governments, but this would be
kept in state archives and was not viewed by the committee). Some of these
documents were circulated to the states for comment. For example, the Law
Society of Western Australia wrote in June 1961 providing its position on
uniform adoption law provisions. It appears this, and similar documents, were
circulated through the Commonwealth to the other state stakeholders.
Other correspondents were referred to the states. For example, the Women
Justices Association of WA wrote to AGD requesting a copy of the draft bill. The
response from AGD reiterated its role as a coordinating body rather than a
Adoption of children is not a subject upon which the
Commonwealth Parliament has power to legislate. The Commonwealth and the States
have joined together in preparing a model Adoption Bill, which it is hoped will
be introduced in each State and Territory of the Commonwealth. The Bill has not
yet been finally settled, but it is hoped that the drafting will be completed
Copies of the model Bill will be distributed to each State and
you should make your request for a copy of the Bill to the Western Australian
However, AGD did communicate directly with national organisations, such
as the Australian Council of Social Services:
Publicity was given to the proposal for this uniform
legislation, and representations were made by a number of welfare
organisations, as well as by the Australian Council of Social
Services...incorporating the recommendations of eight named member
organisations of the Council... 
The Council, on behalf of its eight member organisations, sent AGD its
comments on the issue of uniform adoption legislation on 6 November 1963.
AGD responded in 1964, noting that:
[W]ith one major exception [role of agencies], the model Bill
incorporates the principles that had unanimous or majority support among the
Council's member organisations.
This did not please ACOSS, which wrote to complain,
but no further correspondence on the issue appears to have been sent by AGD.
Responsibility for drafting the model bill was originally vested by SCAG
in the NSW Parliamentary Draftsman, Mr H. Rossiter. However, records indicate
that Mr Rossiter's responsibilities increased to the extent that he told AGD
that he was unable to continue drafting unless expressly directed by his
Minister, the NSW Attorney-General.
It was subsequently decided that the Commonwealth Parliamentary Draftsman would
take over from where Mr Rossiter had left off, drafting the model legislation
as an ordinance.
It is clear that this happened for the sake of expediency rather than any other
Advice to the Commonwealth
As a member of SCAG, the Commonwealth Attorney-General was briefed on
the issue of uniform adoption legislation by his department. AGD briefs focus
on the key issues for the attorneys-general—provisions for the recognition of
interstate and overseas adoption arrangements.
In the early parts of the process, the Attorney-General considered that
interstate recognition of adoption arrangements was the most pressing issue,
and should be addressed before a model bill was drafted. The summary of
discussion from the Ministerial Conference on Adoption, 16 June 1961, notes
that the Attorney-General considered that:
Uniform Adoption Law in Australia was too high an aim to be
achieved now. He thought that such arrangements as would permit mutual
recognition of an adoption by all the States for legal purposes a wiser goal at
However, by September 1961, the secretary of AGD prepared a brief that
Presumably a uniform bill is to be drafted, for circulation
and consideration, although I can find no record of any such decision being
made. You might wish to raise this question during any discussions on adoption.
This turn-about could have been because it appeared by this time that
states had agreed, or agreed to disagree, on other aspects of the substance of
the bill. Following the June SCAG meeting, Sir Kenneth Bailey,
wrote to Professor Zelman Cowen, then Dean of the Faculty of Law at Melbourne
University, noting that 'most of the social welfare policy has been settled',
and requesting he comment on the matter of recognition of adoption orders
Professor Cowen's subsequent advice was supported by AGD. Professor
Cowen indicated that an 'insistence upon a jurisdictional requirement of the
domicile of the adoptive parents and the adopted child' could in some cases ''disregard
practical good sense'.
The Secretary wrote:
With this view I would respectfully agree. Australia being an
immigrant country, the recognition problem is much greater as regards
recognition of foreign adoptions in Australia, than recognition of Australian
adoptions overseas. And it would seem, on the basis of jurisdictions referred
to [New Zealand, England, Canada], that Australian decrees would be generally
recognized, at least in the common law countries.
The minute notes that such a bill should address matters of recognition
of adoption orders between states, but also internationally:
The principal matters outstanding are connected with
recognition. Recognition is, of course, bound up with jurisdiction...
All states, except possibly Victoria, appear to have tacitly
accepted the recommendation of the officers that the basis of the jurisdiction
of an Australian tribunal to make an adoption order should be –
domicile of the adoptive parents in Australia...
Such a recommendation was likely to have been made to give Australian
parents priority over foreign citizens, due to 'long waiting lists for children'.
However, it was raised that the courts should be able to exercise discretion in
relation to this matter, such to enable an 'American stationed here to adopt
his own illegitimate child'.
The Attorney-General also received advice on amendment of an aspect of
the provisions affecting inheritance of property. On 31 August 1962 the
secretary of AGD wrote to Sir Garfield Barwick, asking if he wished the laws to
be revised in such a way as to ensure no repeat of the outcome of Pedley-Smith
v Pedley-Smith, the 1953 High Court case in which Sir Garfield Barwick had
appeared as a barrister. The secretary wrote, 'I assume that you would want the
law to be altered so that adopted children would automatically be included as "issue",
unless the donor of the power specifically excluded adopted children from the
object of the power'.
The Attorney-General annotated the minute to say that he wished to seek such a
change. 'If the law is to be so changed,' the secretary continued, 'it should,
I suggest, only [apply] to powers of appointment created after the change in
the law'. Sir Garfield Barwick concurred. The model law, and in particular the
law in New South Wales (the jurisdiction from which Pedley-Smith v Pedley-Smith
originated), were changed during the model laws process in exactly this
While this kind of advice was delivered to the Attorney-General, no
corresponding advice was delivered in relation to social welfare aspects of
adoption. This reflected the portfolio responsibility of the Attorney-General,
that is, that his expertise was legal rather than social, and that he attended
SCAG rather than any meeting of Child Welfare Ministers. Indeed, the
Commonwealth had no minister for child welfare; its responsibilities in the
territories were carried by quite different portfolios.
Administration of the Commonwealth
As the SCAG coordinating body, the AGD briefed the Minister for the
Territories and the Minister for the Interior on the development of the model
legislation. Its advice to the two Departments reflected AGD's legal expertise
and concerns and did not extend beyond legal issues:
This paper is intended to examine briefly four main topics,
which are interconnected and are fundamental to any uniform adoption
legislation. They are:-
(a) the jurisdiction to make and to
rescind adoption orders;
(b) the nature of the status of
adoption and its incidents;
(c) the recognition in a State or
Territory of the Commonwealth of adoption orders made:
(i) in another State or Territory; or
(ii) elsewhere; and
(d) the effect of recognizing in a
State or Territory, the adoption orders referred to in (c).
This paper does not in any way deal with the child welfare
aspects of adoption.
However, it appears from the records that neither the Minister for the
Territories nor the Department of the Interior had any practical knowledge of
adoption arrangements. In the first instance, the Secretary of the Department
of the Interior delegated his role as the Director of Child Welfare under the Adoption
of Children Ordinance 1938 (Cth) to the NSW Director of Child
Welfare. This had the practical effect of NSW authorities arranging ACT
adoptions. This arrangement reflected the ACT's scant resources and small
As neither the Minister for the Interior nor the Minister for Territories
had the relevant portfolio responsibility, neither was invited to participate
on the SCAG nor meetings of Child Welfare Ministers. As such, it fell to the AGD
to brief these ministers on the development of model adoption legislation. A
draft bill from December 1963 sent to the Secretary of the Department of the
Interior noted NSW's role in arranging ACT adoptions:
You will see that it [the adoption bill] confers a number of
powers and functions, in relation to this Territory, on the Director of Child
Welfare. I appreciate the fact that, under section 7 of the Child Welfare
Ordinance, you yourself are the Director, and I am aware that you have
delegated your functions under that Ordinance to the New South Wales Director
of Child Welfare. Clause 6(2) of the draft Bill would enable you, if you so
wished, to make a similar delegation of your powers and functions under the
...The New South Wales Director has indicated to me in the
course of informal discussions that he would be willing to prepare the
application papers for applications in this Territory...
I should add that the New South Wales Director of Child
Welfare has taken part in the discussions on the Bill at all stages. I think I
am correct in saying that he agrees generally with the contents of the Bill,
with the possible exception of the inclusion of provisions relating to interim
While AGD sent several briefs to the Minister for the Interior in
relation to the model adoption legislation,
that Minister appears not to have followed the issue closely. In fact, his
Department prepared an amendment to the Adoption of Children Ordinance 1932
(Cth), which applied to Norfolk Island, at the same time as model
legislation was being developed. It appears that AGD considered this action
[I]t is proposed to draft a uniform adoption of children
I have already written to you on this subject on a number of
[U]nless you consider some hardship is being caused by the deficiencies
in the existing law, you may consider it desirable not to proceed with the
present amendments but to await receipt of the uniform bill.
A departmental brief prepared for the Attorney-General in 1964 noted
that 'there is nothing in the comments received from either Department
[Department of the Interior; Department of Territories] to suggest that they
would wish to make any alterations to the substance of the Bill.'
However, in the case of the Department of the Interior, the word 'comments' is
used generously. The Department's response, in its entirety, read:
I refer to your memorandum 20th December 1963, your reference
The draft Uniform Adoption Bill is satisfactory for the
purposes of this Department. I would appreciate your advice as to further
progress in this matter.
The Minister for Territories was primarily concerned with the legal
question of whether the model legislation would be enacted in the form of an
ordinance or Commonwealth law.
The option of an ordinance was much preferred by the Minister.
His response to the model bill cited the Constitution in relation to lack of
Commonwealth power to make laws relating to adoption, and his own ability to
make ordinances 'for the peace, order and good government of the Territory'.
Such administrative and legal concerns were the extent of the involvement of
The Commonwealth's role in the process of creating uniform adoption laws
in the 1960s was significant in respect of the process, but limited in regard
to the content. In terms of the process, it does appear that the Commonwealth
initiated a review of adoption laws, arranged for the initial exchange of
information, and provided some of the drafting support. It provided little of
the substance of documents that were discussed. Even though the Commonwealth
had legal responsibility for ordinances governing the ACT and NT, and reform of
the ACT ordinance became the vehicle for enactment of the model legislation,
the Commonwealth's ministers with responsibility for the territories provided
no substantive input to the content of the laws.
The Commonwealth's interest was very limited regarding the actual
content of adoption legislation, seeking only to have particular issues
resolved. It wanted adoptions, and documentation related to them, to be
recognised between the states and territories, and it wanted overseas adoptions
to be recognised in Australia. There is also evidence that the Attorney-General
secured a change to how inheritance laws applied in particular circumstances.
Beyond these topics, to use the words of the secretary of AGD at the time, it 'was
not in a position to contribute authoritatively to the discussions on social
welfare policy' and, as the next chapter shows, did not generally do so.
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