The need for a national framework
The committee's second term of reference asks it to contemplate the
[P]otential role of the Commonwealth in developing a national
framework to assist states and territories to address the consequences for the
mothers, their families and children who were subject to forced adoption
As Chapters 5 to 7 have shown, the Commonwealth had a limited role in
adoption policy between 1950 and 1970. Adoption legislation falls within the
jurisdiction of the states and territories. Adoption orders in the 1950s–1970s
were made, as remains the case, by state and territory courts. In addition, until
1973 the Commonwealth provided limited support for unmarried women through the social
Regardless of Commonwealth responsibility, the committee heard evidence—summarised
in Chapters 3 and 4—that the effects of forced adoption have been long-lasting
and far reaching. The committee accepts that there is a need to address the
consequences of past forced adoption policies and practices.
The committee agrees, as foreshadowed by the inquiry terms of reference,
that the states and territories are best placed to address the consequences of
former forced adoption policies. However, the Commonwealth should play a role
in developing a national framework to assist the states and territories to
address these consequences.
This chapter summarises the rapid change in values that has taken place
since the 1970s on single parenting and how adoptions should be arranged. It
shows that these changes in views were expressed at a national rather than a
Adoption was just one of an increasing number of policy issues that were
taking on national and international dimensions. Mechanisms developed to enable
intergovernmental discussions about this growing range of topics, particularly
ministerial councils such as the Community and Disability Services Ministers
Conference (CDSMC). Between them, the various intergovernmental councils have
made and implemented numerous agreements and frameworks.
The committee considers that the consequences of former forced adoption
would be best addressed by a national framework, developed by the CDSMC. The
Commonwealth, through its membership of the CDSMC, should play a leadership
role in the development of the framework.
This chapter concludes by summarising what submitters to the current
inquiry believed should be included in such a framework. The four major
proposals—for a formal apology, access to support services, reforms to
information laws and services, and reparations—are examined further in Chapters
9 to 12.
Changes to adoption across Australia
The attitudes of Australians towards single mothers and adoption have changed
considerably since 1970. This shift towards greater support for single mothers
and open adoption happened across Australia—and indeed across the world—at the
same time. For example,
- The Commonwealth introduced benefits for single mothers in 1973.
- National Adoption Conferences were held in 1976, 1978 and 1982.
- National lobby groups to support single mothers and to address
the harms of adoption practices were established in the 1970s.
- All jurisdictions changed their adoption legislation in the
period of 1984 to 1991.
There was also increasing reference in policy debate and international
agreement to rights and to preventing discrimination.
- The Commonwealth signed the 1993 Hague Convention on Protection
of Children and Co-operation in Respect of Intercountry Adoption (Hague
Adoption Convention), and later took over primary responsibility for
Australia's intercountry adoption programs.
This section briefly outlines these developments.
Support for unmarried mothers
Chapter 5 explained that the Supporting Mothers' Benefit assisted
single mothers from 1973. This benefit was part of a wider social welfare and
health care reform agenda which also included the elimination of sales tax on
the contraceptive pill, the introduction of Medibank (now Medicare),
legislation to establish the Family Court, the introduction of paid maternity
leave in the Commonwealth Public Service, and the first Commonwealth childcare
Academic commentators have described the changed attitudes towards adoption as
part of the wider social changes following the rise of feminism:
However, by the 1970s a number of factors, including the
complex social changes occasioned by feminism, saw adoption practices come
under challenge as the impacts of these policies, on both relinquishing mothers
and adopted children, became better understood. The social stigma associated
with unmarried motherhood was brought into question and ultimately reduced, in
part as a result of the introduction of the Mother's Benefit for single mothers
(1973). This was part of a raft of legislative and administrative reforms made
by the Whitlam Government which effectively redefined 'family' in Australian
legal practice in the interests of women, children, and diversity. The growing
cultural value placed on female agency created a climate in which the stories
of unmarried mothers who had been coerced into adopting out their children
could be told.
The 1973 reforms comprehensively demonstrated the national nature of
both value changes and policy responses, but they had also been foreshadowed by
the Commonwealth's 1968 legislation, which had moved to guarantee nationally
consistent welfare benefits for single women. Such reforms demonstrated a
significant value change, and a move towards addressing the concerns of single
mothers on a national scale.
The increasing empowerment of women, and their determination to
eliminate institutionalised disadvantage, was demonstrated by the establishment
of women's lobby groups such as the Council of Single Mothers and their
Children (CSMC). The CSMC was founded in 1969, and expanded to become a
national organisation in 1973:
In late 1969, one of the members placed an advertisement in
the Melbourne Herald inviting women to a meeting with the intention of
forming a new organisation for single mothers. A large group attended, many
remained silent, but it didn't take long to determine what their role would be—working
within a self-help model with the aim of supporting single mothers as well as
advocating Social and Legal Reform...
The National Council for the Single Mother and her Child
(NCSMC) was set up in 1973...[a]t the National Conference the following motion
was carried unanimously:
That the aims of NCSMC are best achieved through the
operation of a nationally organised body, therefore we move that this
organisation continue to function. In coming to this conclusion, it is
simultaneously recognised that it is both valid and advantageous to have a
national arena of operations. 
Lobby groups to assist adopted people affected by adoption were
established at a similar time, including Adoption Triangle and Adoption Jigsaw.
Adoption Jigsaw WA's website provides a brief history of the organisation in
Adoption Jigsaw was founded in 1978 by adopted adults, birth
parents and adoptive parents for the purpose of lobbying for legislative change
and more openness in adoption. Some changes came about in 1987, when adopted
people were given the right to access records giving information about their
birth parents, and in 1994 when birth parents were given similar rights
regarding their children. Further changes were proclaimed in June 2003.
Though support and lobbying were Adoption Jigsaw's initial
priorities, partial funding from the Department for Child Protection enabled us
to expand and professionalise our service, whilst maintaining the level of understanding
that only personal, first-hand experience of adoption can provide.
These groups had branches across different states. For example, Adoption
Jigsaw Qld's submission to the inquiry indicates that it has an (inter)national
scale but a local focus:
Jigsaw was established in Australia and New Zealand in 1976
and was incorporated in Queensland in 1988. We have assisted over 17 000
people in their search for their biological heritage and many more who were not
actively engaged in the process of searching or seeking reunion. Jigsaw Queensland
- Emotional support by phone or email.
- Monthly Support Group meetings for birth mothers, adoptees and an
open group for all those affected by adoption.
- Providing Information to assist with individuals with their own
- Referral to professionals and other agencies.
Jigsaw Queensland is a non-profit, member-based organisation
relying on trained volunteer helpers to provide a range of services to all
those affected by adoption. We rely on membership and donations from
individuals, business and government to achieve our objectives and to help us
provide ongoing services to our members and the community at large.
The founders of adoption lobby groups in the 1970s considered that
national coordination and cooperation would be advantageous. This demonstrated
that there were people across Australia who held the same views about adoption
and wished to 'join forces' to promote their views nationally.
National Adoption Conferences
Significantly altered attitudes towards adoption were also evident at the
National Adoption Conferences held in 1976, 1978 and 1982. The first
conference in 1976 was very significant as it marked the sector's recognition
that Aboriginal children were best raised by Aboriginal families.
A major issue raised during the 1978 conference was access to records. A
keynote speaker, Dr John Triseliotis, then Director of Social Work Education at
the University of Edinburgh, 'argued that it was essential that adults have
access to their origins'.
At that time, adoption records in Australia remained relatively closed compared
to the situation in Scotland.
John Triseliotis...was able while he was there to address the
parliamentary legislative review committee in relation to the rights of adult
adoptees. There was by this time all over Australia a loud and insistent voice
demanding such reform.
Papers from the 1978 conference were framed by very different concerns than
were evident in the 1960s. For example, the paper provided by the Western
Australian group proposed a discussion of five themes, two of which were:
Changing concepts in adoption with particular emphasis on
access versus confidentiality, post relinquishment counselling and the issue of
rights including those of the putative father.
Adoption—a middle class phenomenon: A look at the effects of
outdated middle class value systems as major determining factors in the
As discussed in Chapter 7, WA child welfare officers expressed views
during discussions on model adoption legislation in the 1960s that were very
much pro-adoption, and particularly dismissive of birth fathers. The above
example from WA social workers in 1978 demonstrates professional opinions
almost diametrically opposed to those expressed by child welfare officers in
The third conference in Adelaide in 1982 addressed issues for birth
mothers, and led to the establishment of the Australian Relinquishing Mothers
Society (ARMS) self-help and lobby group in each state.
As the SA branch stated:
That conference was probably one of the
first times in Australia that a group of women separated from their children by
adoption came together and compared their stories.
As well as signalling a changed attitude towards adoption, the three
conferences demonstrated the collective will of social workers across Australia
to meet and debate issues of relevance to adoption.
Together, the conferences provided an impetus for nationwide lobbying
for legislative change away from the clean break theory and closed adoptions,
toward open adoptions. In a 1992 article, J. Neville Turner, then
President of the National Children's Bureau of Australia and law lecturer at
Monash University, explained that each jurisdictions' amendments to adoption
legislation enacted across Australia between 1984 and 1991 represented a
significant departure from the model legislation of the mid-1960s:
The current trend towards open adoption in Australia was
sparked by a series of three conferences in the late 1970s and early 1980s. At
these conferences, several papers were delivered emphasizing the harmful
consequences of secrecy, which had been the hallmark of 'uniform' legislation
passed in every Australian state in the 1960s.
Following these conferences, strong campaigns were waged
throughout Australia to have the legislation passed in the 1960s repealed, and
to pass new legislation giving parties to an adoption rights to ascertain the
true situation. It was recommended that birth parents be provided with a
mechanism by which they could trace the adoptive parents of their relinquished
children. Likewise, adopted persons should be permitted, and indeed, encouraged
to seek information about the circumstances of their birth.
This new 'open' philosophy was first translated into
legislation in 1984 in Victoria, following intensive debate and lobbying by
interest groups. Now, it has been legislated for throughout Australia. But the
legislation varies substantially from state to state.
State and territory adoption legislation continues to vary between
jurisdictions. These differences continue to affect the parties to adoptions
that took place under the old 'closed adoption' regimes that were in place
before the reforms of the 1980s. This is particularly true regarding access to
information and is discussed further in Chapter 12.
Rights and anti-discrimination
As the states were contemplating changes to adoption legislation to
promote open adoptions and access to information, other developments took place
at the Commonwealth and international level. While HREOC was established by the
Human Rights and Equal Opportunity Commission Act 1986, the organisation
had operated from 1981, with lesser responsibilities, as the Human Rights
Commission. In 1984, the Commission produced a Discussion Paper entitled Rights
of Relinquishing mothers to Access to Information Concerning their Adopted Children.
The paper was written in response to complaints about 'adoption legislation and
practice', and discussed how, in the case of adoption records, the different
states' laws balanced the right to privacy and the right to information:
The right of a relinquishing mother to information,
particularly identifying information, about her adopted child has to be
balanced against the rights of privacy of all the parties to adoption. At
present the bearing of these rights on adoption matters is being reconsidered
in response to a number of changes in social attitudes to adoption and to
ex-nuptial birth. These changes have in their turn foregrounded a number of
civil rights issues flowing from adoption, issues bound up with the Declaration
of the Rights of the Child and with the Articles of the International Covenant
on Civil and Political Rights (ICCPR) relating to privacy, access to
information, discrimination on the grounds of status and the rights of the
The discussion paper referred to the potential for actions taken to
force unmarried mothers to have their children adopted to be considered
If, for example, a hospital social worker were to put
pressure...on single women to consent to adoption because an assumption is made
about the capability of single women (as opposed to partnered women) to support
a child, or because of an assumption that a single parent would be unable to
provide a stable, happy background for the child, then that pressure could
constitute a direct discrimination on the ground of marital status.
Similarly, if, once a mother had indicated her interest in
the possibility of relinquishing her child, she became subject to any
automatically applied rules which denied her access while in hospital to her
child or to information about her child, that denial could constitute indirect
discrimination on the ground of marital status.
As a discussion paper, the publication concludes with a number of
recommended discussion points rather than definitive conclusions. The
discussion points include the suggestion that 'the advantages of open adoption
be carefully considered', and that 'all these considerations be taken into
account in any review of ACT adoption legislation'.
Influential in the reform of ACT legislation, the discussion paper was also
widely referred to by stakeholders around the country.
In 1990, Australia ratified the United Nations Convention on the Rights
of the Child. The Convention included two articles that could be applied to the
issue of adopted people's access to information about their birth parents:
The child shall be registered immediately after birth and
shall have the right from birth to a name, the right to acquire a nationality
and, as far as possible, the right to know and be cared for by his or her
States Parties shall ensure the implementation of these
rights in accordance with their national law and their obligations under the
relevant international instruments in this field, in particular where the child
would otherwise be stateless.
States Parties undertake to respect the right of the child to
preserve his or her identity, including nationality, name and family relations
as recognized by law without unlawful interference.
child is illegally deprived of some or all of the elements of his or her
identity, States Parties shall provide appropriate assistance and protection,
with a view to re-establishing speedily his or her identity.
Australia's ratification of the Convention was not the main reason
for state adoption law reform. However, it provides a further illustration of
the value changes that had taken place since the law reform of the 1960s, and
of the extent to which this was perceived as a national and international
issue, rather than one purely for individual jurisdictions. While the language
of a 1961 brief from WA was couched in prioritising the 'rights of the child'
over the 'rights' of the natural and adoptive parents,
subsequent meeting discussions were not centred on 'rights'. Rather, the
language used mentioned the 'interests' of the parties and addressing existing
'shortcomings'. It was the 'welfare and interests of the child' that were to be
paramount, not the child's rights.
However, the UN rights frameworks of the 1970s and 1980s did
influence the language of public and government discourse in Australia, which
extended to discussions about adoption. For example, the NSW Law Reform
Commission's 1992 Review of the Adoption Information Act 1990 shows the
prominence of 'rights' based thinking and language:
Rights created by the
Adoption Information Act 1990
2.7 The Adoption Information Act 1990 represents a
major change in the approach taken to confidentiality of information concerning
parties to adoptions. The Act was passed in October 1990 and came fully into
force on 2 April 1991...
2.9 The rights to information created by the Act are
absolute, in that adopted persons cannot legally prevent birth parents from
obtaining their amended birth certificates, nor can birth parents prevent the
adopted person from obtaining his or her original birth certificate, and the
other information specified in the Act.
Subsequent headings include 'Adopted persons’ rights to information', 'Adopted
persons’ rights to lodge a contact veto', 'Birth parents’ rights to information'
and 'Birth parents’ rights to lodge a contact veto'.
The rights of the child in intercountry adoption were reinforced by the Hague
Adoption Convention, which Australia ratified in 1998. Intercountry adoption programs
to enable Australian adoptive parents to adopt children from overseas had begun
in 1975 as a result of the Vietnam War.
However, AGD explained that in the past the states managed particular country
programs on a 'lead state' basis (e.g. NSW managed the Taiwan adoption program;
Victoria managed the Philippines adoption program
The department's contemporary portfolio responsibilities
relevant to adoption relate to intercountry adoption issues. These arise from
Australia's ratification in 1998 of the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption. At that time,
the department's role was limited to ensuring that Australia as a whole met its
obligations under the convention and performing minor functions as the
Australian central authority. State and territory departments were also
designated as central authorities under the convention, and different
jurisdictions took the 'lead state' role in managing particular country programs.
Since 2006, however, AGD has been responsible for intercountry adoption
In 2005, the House of Representatives Standing Committee on
Family and Human Services conducted an inquiry into the adoption of children
from overseas. A key recommendation of the resulting report was that the
Australian government assumed primary responsibility for the establishment and
management of Australia's intercountry adoption programs. A specific
intercountry adoption branch was created within this department in 2006. The
Commonwealth became responsible for strategic leadership and high-level
management of Australia's intercountry adoption programs with other countries.
State and territory central authorities retained responsibility for all
AGD also chairs two working groups of state and territory community and
disability services officers. These groups address the harmonisation of
legislation, fees and administrative procedures for, and alternative models of,
intercountry adoption respectively.
Why a national framework?
The preceding section has shown that since the early 1970s, the
discussion of adoption policy has changed. With respect to content, there has
been a shift away from closed adoptions towards support for single mothers to
keep their children and open adoptions. The natural parents have a stronger
voice in policy discourse, and there is greater recognition of their rights.
Finally, adoption policy is predominantly discussed on a national scale, despite
remaining state-based law.
The committee believes that a national framework is justified to address
the consequences of former forced adoption. Firstly, the issues surrounding
forced adoption are national in scope. Second, a national approach reduces the chance
of significant policy inequities that can themselves cause distress for the
people affected. This is a reason why both the Community Affairs and Legal and
Constitutional Affairs Committees have in the past favoured a national response
to the needs of children who were in institutional care: they have seen the
poor results of variable state-based restorative action. Third, the mechanisms
to discuss adoption are already intergovernmental. The committee is simply
recommending that existing work in this area be extended to address a set of issues
around past adoption practice.
The committee has received submissions from people affected by forced
adoption from every Australian state and territory. In addition, the committee
has visited each capital city, with the exception of Darwin. The evidence
presented to the committee in submissions and at public hearings showed that
the experience of forced adoption was similar and regardless of the submitters'
state of origin.
In addition, the committee heard that the experience itself of forced
adoption often traversed jurisdictional boundaries. As recounted in Chapter 3,
the social stigma of unmarried pregnancy caused many mothers to be sent away
from home to give birth, in some cases interstate. This has exacerbated the
difficulties of adopted people and their birth parents seeking access to
records while negotiating different regulations in different states. The
interstate nature of the experience of forced adoption suggests that a national
framework would be more appropriate in addressing its consequences.
Importance of national consistency
This is not the first time that the Senate's Community Affairs
References Committee has advocated a national approach to addressing significant
past injustices. Recommendations from the Lost Innocents: Righting the
Record report (2001) the Forgotten Australians report (2004) and the
Lost Innocents and Forgotten Australians Revisited (2009) recognised the
national dimensions of wrongs experienced by child migrants and children in
institutional care, and identified a role for the Commonwealth in rectifying
these. The committee, in framing recommendations as a result of both inquiries,
considered that the consistent pattern of the issues faced by affected people
across the states justified a national approach. The committee considers that
the parallel nature of the experiences and consequences of forced adoption
across the states provides similar justification.
In addition, the committee notes that inconsistency in state action can
cause inequity and distress to the very people restorative schemes are seeking
to assist. In 2004, the committee recommended that a national reparation fund
for people who had suffered in institutional care be managed by the
Commonwealth, and funded by contributions from a range of government and
However, the Commonwealth Government did not accept this recommendation, and
instead, separate redress schemes were established in Tasmania, Queensland,
Western Australia and South Australia.
New South Wales and Victoria advised the committee that payments were made on a
case-by-case basis, and no such scheme was established in the territories.
The Senate Legal and Constitutional Affairs References Committee
examined this disparity between states' redress schemes in its 2010 report, Review
of Government Compensation Payments. Several submitters to that inquiry
expressed the view that redress should be 'dealt with as a national issue' and
'not depend on which state they grew up in'.
Other submitters noted the distress experienced by affected parties who found
that their own state did not have a redress scheme.
In order to avoid a similar situation, the committee is strongly of the view
that a national framework to address the consequences of former forced adoption
must be implemented in a consistent manner across the states and territories.
Continuity in approach
The committee considers that a national framework is warranted as it has
already been recognised by the jurisdictions that high-level policy in the area
of adoption requires a national approach.
Adoption is currently being discussed at intergovernmental forums in two
contexts. The first is intercountry adoption. The Attorney-General's Department
explained that the Community and Disability Services Ministers Advisory Council
(CDSMAC) monitors the operation of the Commonwealth State Agreement with
respect to intercountry adoption:
The 2008 Commonwealth State Agreement for the Continued
Operation of Australia's Intercountry Adoption Programs, signed by the
Attorney-General and all the state and territory human and community services
ministers, sets out the framework for a cooperative scheme for intercountry
adoption in Australia. The Community and Disability Services Ministers Advisory
Council formally monitors the implementation of the agreement and progresses
work through several working groups. This department provides a secretariat and
chair for the meetings of the Commonwealth, state and territory central
authorities as well as the working groups I mentioned. It is through these
relationships that this department's work can occasionally intersect with the
state and territory central authorities' consideration of domestic adoption
The second area of existing inter-governmental policy work on adoption
is the Enhancing Adoption as a Service for Children Working Group. This group,
a body of the Community and Disability Services Ministers Advisory Council, was
established in 2008, and is currently undertaking policy review work of direct
relevance to the current inquiry, including a review of the National Principles
in Adoption. We return to this in the final chapter.
8.46 The committee recommends that a national framework to address the
consequences of former forced adoption be developed by the Commonwealth, states
and territories through the Community and Disability Services Ministers
Having established that a national framework would be the most
appropriate way for the consequences of former forced adoption policies to be
addressed, the committee now turns to the substance of the framework, expanded
upon in Chapters 9 to 12.
Suggested content of a national framework
Many submissions to the inquiry addressed the committee's second term of
reference. The vast majority of submitters considered that forced adoptions
constituted an injustice that should be addressed. However, opinions varied as
to what kind of redress would be most appropriate.
Requests for an apology or similar recognition, and requests for
compensation appeared to be intertwined, suggesting that compensation
represents a tangible form of acknowledgement. Of those individual submitters
who proposed compensation, only six did not also request an acknowledgement
and/or an apology. These suggestions are discussed further in Chapters 9 and 11.
Secondly, a commonly expressed view was that the provision of
counselling and mental health care services would be an appropriate way to
address the continued pain of former forced adoptions. This is discussed
further in Chapter 10.
Thirdly, difficulties accessing information and birth records were
raised by many submitters. It was suggested that improving access to adoption
records throughout the jurisdictions would assist people affected by former
forced adoptions. Access to information is discussed in Chapter 12.
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