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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Adoption Amendment Bill 2011 CONTENTS 1. Short title 2 2. Commencement 2 3. Act amended 2 4. Section 4 amended 2 5. Section 8 amended 3 6. Section 14 amended 4 7. Section 15A inserted 4 15A. Directions by CEO 4 8. Section 15 amended 4 9. Section 16 amended 5 10. Section 16A replaced 5 16A. Matters relevant to the adoption process for Aboriginal or Torres Strait Islander child 5 11. Section 20 amended 6 12. Section 24 amended 6 13. Section 26G amended 6 14. Section 26H amended 7 15. Section 27 amended 7 16. Section 28 amended 8 17. Section 29 replaced 9 29. Cessation of parental responsibility for children awaiting adoption 9 18. Section 30 replaced 10 30. If not possible or desirable to place child for adoption 10 19. Section 32 replaced 11 32. Responsibilities in relation to children awaiting adoption 11 20. Section 33 amended 11 21. Section 34 amended 13 22. Section 35 replaced 14 35. Offence 14 250--2 page i Adoption Amendment Bill 2011 Contents 23. Section 36 amended 14 24. Section 37 amended 15 25. Section 38 amended 16 26. Section 39 amended 16 27. Section 40 amended 17 28. Section 41A inserted 18 41A. CEO may conduct checks 18 29. Section 42 amended 19 30. Section 43 amended 19 31. Section 45 amended 19 32. Section 46 amended 19 33. Section 47 replaced 20 47. Duty of CEO as to adoption plans 20 34. Section 49 amended 20 35. Section 50 amended 21 36. Section 52 amended 21 37. Part 3 Division 8 heading amended 22 38. Sections 55A to 55C inserted 23 55A. CEO approval of relative or carer placement 23 55B. CEO may conduct checks 24 55C. When application for relative or carer adoption can be made 24 39. Section 55 amended 24 40. Section 59 amended 25 41. Section 66 amended 26 42. Section 67 amended 26 43. Section 68 amended 27 44. Section 69 amended 28 45. Section 74 amended 29 46. Section 76 amended 30 47. Section 77 amended 30 48. Section 81 amended 30 49. Section 82 amended 31 50. Section 84 amended 31 51. Section 85 amended 31 52. Section 90 amended 32 53. Section 100 amended 33 54. Section 104 deleted 33 55. Section 105 amended 33 56. Section 110 amended 33 57. Section 112 amended 34 page ii Adoption Amendment Bill 2011 Contents 58. Part 5 Division 2 replaced 34 Division 2 -- Review by State Administrative Tribunal 113. Review by State Administrative Tribunal 34 59. Part 5 Divisions 3 and 4 deleted 35 60. Section 120 amended 35 61. Section 122 amended 36 62. Section 124 amended 36 63. Sections 127A and 127B inserted 37 127A. False information 37 127B. Notification of changes in circumstances 37 64. Section 133 amended 38 65. Section 138 amended 38 66. Section 138A amended 39 67. Section 145 replaced 39 145. Adoption Amendment Act 2011 -- transitional provisions 39 68. Section 146 amended 40 69. Various references to "guardian" and "guardianship" amended 40 70. Various penalties amended 41 71. Schedule 3 amended 42 page iii Western Australia LEGISLATIVE COUNCIL (As amended in Committee) Adoption Amendment Bill 2011 A Bill for An Act to amend the Adoption Act 1994. The Parliament of Western Australia enacts as follows: page 1 Adoption Amendment Bill 2011 s. 1 1 1. Short title 2 This is the Adoption Amendment Act 2011. 3 2. Commencement 4 This Act comes into operation as follows -- 5 (a) sections 1 and 2 -- on the day on which this Act 6 receives the Royal Assent; 7 (b) the rest of the Act -- on a day fixed by proclamation, 8 and different days may be fixed for different provisions. 9 3. Act amended 10 This Act amends the Adoption Act 1994. 11 4. Section 4 amended 12 (1) In section 4(1) delete the definitions of: 13 carer 14 relative 15 (2) In section 4(1) insert in alphabetical order: 16 17 carer, in relation to a child, means a person with whom 18 the child lives and who, either alone or jointly with 19 another person, has the daily care of the child; 20 Class 1 offence has the meaning given in the Working 21 with Children (Criminal Record Checking) Act 2004 22 section 7(1); 23 Class 2 offence has the meaning given in the Working 24 with Children (Criminal Record Checking) Act 2004 25 section 7(2); 26 conviction has the meaning given in the Working with 27 Children (Criminal Record Checking) Act 2004 28 section 8; page 2 Adoption Amendment Bill 2011 s. 5 1 pending charge has the meaning given in the Working 2 with Children (Criminal Record Checking) Act 2004 3 section 4; 4 relative, in relation to a person, means the person's -- 5 (a) grandparent; or 6 (b) sibling; or 7 (c) uncle or aunt, 8 whether the relationship is of the whole or half blood, 9 established by, or traced through, marriage, a written 10 law or a natural relationship; 11 12 (3) In section 4(1) in the definition of Australian citizen delete 13 "Australian Citizenship Act 1948 of the Commonwealth;" and 14 insert: 15 16 Australian Citizenship Act 2007 (Commonwealth); 17 18 (4) In section 4(1) in the definition of birth parent delete 19 paragraph (b) and insert: 20 21 (b) the father, or a parent under the Artificial 22 Conception Act 1985 section 6A, of the child or 23 adoptee; 24 25 5. Section 8 amended 26 In section 8(1) in the Penalty delete "$25 000 and 2 years' 27 imprisonment." and insert: 28 29 a fine of $25 000 and imprisonment for 2 years. 30 page 3 Adoption Amendment Bill 2011 s. 6 1 6. Section 14 amended 2 Delete section 14(2) and insert: 3 4 (2) The CEO is to select the members from persons who 5 the CEO thinks have relevant expertise or experience 6 but -- 7 (a) a majority of the members are to be 8 independent of the Department; and 9 (b) at least one of the members is to be a lawyer. 10 (3) The CEO is to appoint one of the members who is 11 independent of the Department to be the chairperson of 12 the committee. 13 14 7. Section 15A inserted 15 After section 14 insert: 16 17 15A. Directions by CEO 18 (1) Subject to subsection (2), the CEO may give written 19 directions to the adoption applications committee with 20 respect to the performance of its functions and the 21 committee is to give effect to any such direction. 22 (2) The CEO must not under subsection (1) direct the 23 committee with respect to the performance of its 24 functions in respect of a particular application. 25 26 8. Section 15 amended 27 In section 15(b) delete "may" and insert: 28 29 may, subject to any direction given by the CEO 30 under section 15A, 31 page 4 Adoption Amendment Bill 2011 s. 9 1 9. Section 16 amended 2 (1) In section 16(1): 3 (a) in paragraph (a) delete "clause 1(a) of Schedule 1;" and 4 insert: 5 6 Schedule 1 clause 1(1)(a); and 7 8 (b) after each of paragraphs (b) to (d) insert: 9 10 and 11 12 (2) Delete section 16(2) and insert: 13 14 (2) The CEO is to commence the provision of a service 15 requested under subsection (1) -- 16 (a) in the case of a request by a person who is 17 thinking about relinquishing her or his child for 18 adoption by a step-parent, relative or carer of 19 the child, within 28 days of the request; 20 or 21 (b) in any other case, within 7 days of the request. 22 23 10. Section 16A replaced 24 Delete section 16A and insert: 25 26 16A. Matters relevant to the adoption process for 27 Aboriginal or Torres Strait Islander child 28 The CEO must consult with -- 29 (a) an officer of the department who is an 30 Aboriginal person or a Torres Strait Islander; or page 5 Adoption Amendment Bill 2011 s. 11 1 (b) an Aboriginal person or a Torres Strait Islander 2 who, in the opinion of the CEO, has relevant 3 knowledge of the child, the child's family or 4 the child's community; or 5 (c) an Aboriginal or Torres Strait Islander agency 6 that, in the opinion of the CEO, has relevant 7 knowledge of the child, the child's family or 8 the child's community, 9 regarding the prospective adoption of a child who is an 10 Aboriginal person or a Torres Strait Islander. 11 12 11. Section 20 amended 13 After section 20(a)(i) insert: 14 15 (iia) relative; or 16 17 12. Section 24 amended 18 In section 24(2): 19 (a) in paragraph (c) delete "step-parent" and insert: 20 21 step-parent, relative 22 23 (b) after each of paragraphs (a) to (e) and (e)(i) insert: 24 25 or 26 27 13. Section 26G amended 28 In section 26G(2) delete the passage that begins with "consent" 29 and ends with "development." and insert: 30 31 consent of a person with parental responsibility for the child. page 6 Adoption Amendment Bill 2011 s. 14 1 14. Section 26H amended 2 In section 26H(1) delete the passage that begins with "consent" 3 and ends with "development." and insert: 4 5 consent of a person with parental responsibility for the child. 6 7 15. Section 27 amended 8 (1) In section 27(1) delete "child's guardian or guardians" and 9 insert: 10 11 persons with parental responsibility for the child 12 13 (2) Delete section 27(2) and (3) and insert: 14 15 (2) Where the child's step-parent who is married to, or in a 16 de facto relationship with, the birth parent who has 17 parental responsibility for the child has been specified 18 in the forms of consent as the prospective adoptive 19 parent, both the birth parent and the step-parent are to 20 have parental responsibility for the child. 21 (3) Where a relative or a carer of the child has been 22 specified in the forms of consent as the prospective 23 adoptive parent, that person is to have parental 24 responsibility for the child. 25 26 (3) Delete section 27(4). 27 (4) In section 27(5) delete "be the guardian." and insert: 28 29 have parental responsibility for the child. 30 page 7 Adoption Amendment Bill 2011 s. 16 1 (5) Delete section 27(6) and insert: 2 3 (6) Subsections (2), (3) and (5) do not apply where -- 4 (a) the child is the subject of a protection order 5 (time-limited) or protection order (until 18) 6 under the Children and Community Services 7 Act 2004; or 8 (b) a person has parental responsibility for the child 9 by operation of the law of another State or a 10 Territory corresponding to the provisions of the 11 Children and Community Services Act 2004 12 Part 4, 13 in which case the person with parental responsibility 14 for the child has parental responsibility for the 15 purposes of this Division. 16 17 Note: The heading to amended section 27 is to read: 18 Parental responsibility for children awaiting adoption where all 19 consents accounted for 20 16. Section 28 amended 21 In section 28(1): 22 (a) delete "if the child --" and insert: 23 24 if -- 25 26 (b) in paragraph (a) before "has" insert: 27 28 the child 29 page 8 Adoption Amendment Bill 2011 s. 17 1 (c) in paragraph (b) delete "is in the care and control of a 2 birth parent who" and insert: 3 4 a birth parent of the child 5 6 Note: The heading to amended section 28 is to read: 7 Parental responsibility for children awaiting adoption where not 8 all consents finalised 9 17. Section 29 replaced 10 Delete section 29 and insert: 11 12 29. Cessation of parental responsibility for children 13 awaiting adoption 14 (1) Parental responsibility for a child under this Division 15 ceases -- 16 (a) if a consent to the child's adoption is revoked, 17 in which case a person who had parental 18 responsibility for the child immediately before 19 the commencement of parental responsibility 20 for the child under this Division is to have 21 parental responsibility for the child again; or 22 (b) if a court makes further provision in respect of 23 parental responsibility for the child; or 24 (c) where the CEO has parental responsibility for 25 the child -- 26 (i) if notice is given under section 30(1); or 27 (ii) if the parental responsibility is 28 renounced under section 33(1); 29 or 30 (d) when an adoption order is made in relation to 31 the child. page 9 Adoption Amendment Bill 2011 s. 18 1 (2) Parental responsibility under this Division is not 2 affected by any provision of, and cannot be changed 3 by, any will, deed or agreement. 4 5 18. Section 30 replaced 6 Delete section 30 and insert: 7 8 30. If not possible or desirable to place child for 9 adoption 10 (1) If the CEO has parental responsibility for a child under 11 this Division and is of the opinion that it is not possible 12 or desirable to place the child with a view to the child's 13 adoption, the CEO is to cause notice of that opinion to 14 be given to each person who the CEO believes is a 15 birth parent of the child or who had parental 16 responsibility for the child before the commencement 17 of the CEO's parental responsibility under this 18 Division. 19 (2) If the CEO gives a notice under subsection (1) -- 20 (a) a person who had parental responsibility for the 21 child before the commencement of the CEO's 22 parental responsibility under this Division has 23 parental responsibility for the child; and 24 (b) any consents to the child's adoption cease to 25 have effect. 26 page 10 Adoption Amendment Bill 2011 s. 19 1 19. Section 32 replaced 2 Delete section 32 and insert: 3 4 32. Responsibilities in relation to children awaiting 5 adoption 6 Within 12 months of a person commencing to have 7 parental responsibility for a child under this Division, 8 or such further time as the court allows, the person is 9 to -- 10 (a) arrange for an application for an adoption order 11 in relation to the child to be filed in the Court; 12 or 13 (b) apply to the Court for an order to make further 14 provision about parental responsibility for the 15 child. 16 17 20. Section 33 amended 18 (1) In section 33(1): 19 (a) delete "is the guardian of " and insert: 20 21 has parental responsibility for 22 23 (b) in paragraph (b) delete "guardianship of " and insert: 24 25 parental responsibility for 26 27 (c) delete "guardianship." and insert: 28 29 parental responsibility. 30 page 11 Adoption Amendment Bill 2011 s. 20 1 (2) In section 33(2): 2 (a) delete "guardianship" and insert: 3 4 parental responsibility 5 6 (b) in paragraph (c) delete "become the child's guardian" 7 and insert: 8 9 have parental responsibility for the child 10 11 (c) in paragraph (c) delete "guardianship." and insert: 12 13 parental responsibility. 14 15 (d) after paragraph (a) insert: 16 17 and 18 19 (3) In section 33(3): 20 (a) delete "be the guardian" and insert: 21 22 have parental responsibility 23 24 (b) delete "guardianship" and insert: 25 26 parental responsibility 27 28 (4) In section 33(5) delete "the guardianship of " and insert: 29 30 parental responsibility for 31 32 Note: The heading to amended section 33 is to read: 33 Renunciation and transfer of parental responsibility by the CEO page 12 Adoption Amendment Bill 2011 s. 21 1 21. Section 34 amended 2 (1) In section 34(1): 3 (a) delete "the child is under the guardianship of a 4 corresponding officer," and insert: 5 6 a corresponding officer has parental responsibility for 7 the child, 8 9 (b) in paragraph (b) delete "guardianship of " and insert: 10 11 parental responsibility for 12 13 (2) In section 34(2): 14 (a) delete "guardianship" and insert: 15 16 parental responsibility 17 18 (b) in paragraph (d) delete "guardianship," and insert: 19 20 parental responsibility, 21 22 (c) in paragraph (d) delete "be the child's guardian." and 23 insert: 24 25 have parental responsibility for the child. 26 27 (d) after paragraphs (a) and (b) insert: 28 29 and 30 page 13 Adoption Amendment Bill 2011 s. 22 1 (3) Delete section 34(3) and insert: 2 3 (3) The CEO has parental responsibility for the child under 4 this Division when the corresponding officer signs an 5 instrument renouncing parental responsibility for the 6 child. 7 8 Note: The heading to amended section 34 is to read: 9 Transfer of parental responsibility to the CEO 10 22. Section 35 replaced 11 Delete section 35 and insert: 12 13 35. Offence 14 A person must not remove a child from the State 15 without the written consent of each person who has 16 parental responsibility for the child under this Division. 17 Penalty: a fine of $10 000 and imprisonment for 18 12 months. 19 20 23. Section 36 amended 21 (1) In section 36(1): 22 (a) delete "child's guardian" and insert: 23 24 person with parental responsibility for the child 25 26 (b) delete "the child's guardianship." and insert: 27 28 parental responsibility for the child. 29 page 14 Adoption Amendment Bill 2011 s. 24 1 (2) In section 36(2): 2 (a) in paragraph (a) delete "guardianship" and insert: 3 4 parental responsibility 5 6 (b) delete paragraph (b) and insert: 7 8 (b) make an order changing the person who has 9 parental responsibility for the child for the 10 purposes of Division 4; or 11 12 (c) after paragraph (a) insert: 13 14 or 15 16 Note: The heading to amended section 36 is to read: 17 Orders as to parental responsibility under Division 4 18 24. Section 37 amended 19 Delete section 37(1) and (2) and insert: 20 21 (1) The CEO is to provide persons contemplating adoptive 22 parenthood with -- 23 (a) oral and written information about adoption; 24 and 25 (b) counselling in relation to adoption. 26 (2) Subsection (1)(b) does not apply to a step-parent, 27 relative or carer of a child who is thinking of adopting 28 the child, but if requested, the CEO is to provide such a 29 person with counselling in relation to adoption. 30 page 15 Adoption Amendment Bill 2011 s. 25 1 25. Section 38 amended 2 In section 38(4) delete "step-parent" and insert: 3 4 step-parent, relative 5 6 26. Section 39 amended 7 (1) In section 39(1): 8 (a) delete "cannot" and insert: 9 10 may only 11 12 (b) delete "unless" and insert: 13 14 if 15 16 (c) delete paragraph (d) and insert: 17 18 (d) has not been convicted of a Class 1 offence 19 committed after he or she attained 18 years of 20 age; and 21 (ea) if married to another person -- 22 (i) applies as a joint applicant with that 23 person; or 24 (ii) has been separated from that person for 25 at least 12 months and does not intend 26 to resume cohabitation with that person; 27 and 28 (eb) is, or in the previous 12 months has been, in a 29 de facto relationship with another person, 30 applies as a joint applicant with that person; 31 and 32 page 16 Adoption Amendment Bill 2011 s. 27 1 (d) after each of paragraphs (a) to (c) insert: 2 3 and 4 5 (2) After section 39(1) insert: 6 7 (2A) Despite subsection (1), a person who applied jointly 8 with another person under section 38(1) may, in 9 accordance with the regulations, continue the 10 application in his or her own name if the joint 11 applicants commence living separately and apart. 12 13 (3) In section 39(2): 14 (a) delete "cannot" and insert: 15 16 may only 17 18 (b) delete "unless" and insert: 19 20 if 21 22 27. Section 40 amended 23 (1) In section 40(2): 24 (a) delete paragraph (e) and insert: 25 26 (e) has not been convicted of a Class 1 or Class 2 27 offence; and 28 (fa) does not have a pending charge in respect of a 29 Class 1 or Class 2 offence; and 30 page 17 Adoption Amendment Bill 2011 s. 28 1 (b) after each of paragraphs (a) to (da) insert: 2 3 and 4 5 (2) After section 40(2) insert: 6 7 (3) Despite subsection (2), an applicant who has -- 8 (a) previously been assessed under the Act as 9 suitable to adopt a child; and 10 (b) subsequently adopted a child, 11 is not required to provide evidence in respect of the 12 matters referred to in subsection (2)(b), (c), (d), (da) 13 or (f) unless requested to do so by the person appointed 14 to prepare the assessment report under subsection (1). 15 16 28. Section 41A inserted 17 After section 40 insert: 18 19 41A. CEO may conduct checks 20 (1) The CEO may conduct any check (including a criminal 21 record check) that the CEO considers appropriate as to 22 whether an applicant under section 38(1) is suitable to 23 be an adoptive parent. 24 (2) The CEO may provide information obtained as a result 25 of a check referred to in subsection (1) to -- 26 (a) a person appointed under section 40(1) to 27 prepare an assessment report on the applicant; 28 or 29 (b) the adoption applications committee. 30 page 18 Adoption Amendment Bill 2011 s. 29 1 29. Section 42 amended 2 Delete section 42(2) and (3). 3 30. Section 43 amended 4 In section 43: 5 (a) in paragraph (b)(ii) delete "report," and insert: 6 7 report. 8 9 (b) delete "if requested by the applicant.". 10 31. Section 45 amended 11 In section 45 delete "step-parent" and insert: 12 13 step-parent, relative 14 15 32. Section 46 amended 16 In section 46(2): 17 (a) in paragraph (b) delete "child; or" and insert: 18 19 child; 20 21 (b) in paragraph (c) delete "child," and insert: 22 23 child; 24 25 (c) after paragraph (c) insert: 26 27 (d) a process for reviewing the adoption plan, 28 page 19 Adoption Amendment Bill 2011 s. 33 1 33. Section 47 replaced 2 Delete section 47 and insert: 3 4 47. Duty of CEO as to adoption plans 5 The CEO is to provide assistance and mediation to -- 6 (a) persons in the process of negotiating an 7 adoption plan under section 46(1) or (3)(b) 8 or 55; and 9 (b) persons in the process of negotiating the 10 variation of an adoption plan referred to in 11 paragraph (a); and 12 (c) persons seeking to review an adoption plan 13 referred to in paragraph (a). 14 15 34. Section 49 amended 16 In section 49: 17 (a) in paragraph (e) delete "is the child's guardian" and 18 insert: 19 20 has parental responsibility for the child 21 22 (b) in paragraph (e) delete "30." and insert: 23 24 30(1). 25 page 20 Adoption Amendment Bill 2011 s. 35 1 35. Section 50 amended 2 In section 50(4) delete "step-parent" and insert: 3 4 step-parent, relative 5 6 36. Section 52 amended 7 (1) Before section 52(1) insert: 8 9 (1A) In this section -- 10 place, in relation to a child who is habitually resident in 11 a Convention country or an overseas jurisdiction, 12 means to make an offer of the child to a prospective 13 adoptive parent following the receipt of advice from 14 the competent authority of the Convention country or 15 the adoption authority of the overseas jurisdiction that 16 the placement of the child with the prospective 17 adoptive parent with a view to adoption has been 18 approved. 19 20 (2) In section 52(1): 21 (a) in paragraph (a)(vb) delete "arrangements; and" and 22 insert: 23 24 arrangements; 25 26 (b) delete paragraph (a)(vi); 27 (c) delete paragraph (c). page 21 Adoption Amendment Bill 2011 s. 37 1 (3) In section 52(3): 2 (a) in paragraph (a) delete "have not adopted a child before; 3 or" and insert: 4 5 do not have parental responsibility for another child; or 6 7 (b) delete paragraph (b); 8 (c) in paragraph (c) delete "have adopted a child before; or" 9 and insert: 10 11 have parental responsibility for another child; or 12 13 (d) delete paragraph (d); 14 (e) in paragraph (e) delete "has not adopted a child before 15 (whether as a joint or sole adoptive parent); or" and 16 insert: 17 18 does not have parental responsibility for 19 another child; or 20 21 (f) in paragraph (f) delete "adopted a child before (whether 22 as a joint or sole adoptive parent)." and insert: 23 24 parental responsibility for another child. 25 26 37. Part 3 Division 8 heading amended 27 In the heading to Part 3 Division 8 delete "step-parents" and 28 insert: 29 30 step-parents, relatives 31 page 22 Adoption Amendment Bill 2011 s. 38 1 38. Sections 55A to 55C inserted 2 At the beginning of Part 3 Division 8 insert: 3 4 55A. CEO approval of relative or carer placement 5 (1) A relative or a carer of a child may apply to the CEO 6 for the approval of the placement of the child with the 7 person with a view to the person adopting the child. 8 (2) An application under subsection (1) may be made by 9 one person, or by 2 persons jointly. 10 (3) An application under subsection (1) is be in a form that 11 is approved by the CEO. 12 (4) On an application under subsection (1) the CEO may 13 approve the placement of the child if the CEO is 14 satisfied that each applicant -- 15 (a) is an Australian citizen or a permanent resident; 16 and 17 (b) is 18 or more years of age; and 18 (c) is of good repute; and 19 (d) is able to provide care for the child in a way 20 that -- 21 (i) ensures the safety and well being of the 22 child; and 23 (ii) recognises the wishes and views of the 24 child in a manner that is consistent with 25 the age and understanding of the child. 26 (5) If the child is the subject of a protection order (time 27 limited) or protection order (until 18) under the 28 Children and Community Services Act 2004 the CEO 29 must not approve the placement of the child under this 30 section unless the CEO is satisfied that the child's 31 adoption would be preferable to the making of a page 23 Adoption Amendment Bill 2011 s. 39 1 protection order (special guardianship) under the 2 Children and Community Services Act 2004 in respect 3 of the child. 4 55B. CEO may conduct checks 5 The CEO may conduct any check (including a criminal 6 record check) that the CEO considers appropriate as to 7 whether an applicant under section 55A(1) is suitable 8 to be an adoptive parent of the child. 9 55C. When application for relative or carer adoption can 10 be made 11 An application for an order for a child to be adopted by 12 a relative or a carer is not to be filed unless -- 13 (a) the child has been in the care of the person 14 making the application for a period of at least 15 2 years immediately preceding the day on 16 which the application is made; and 17 (b) the placement of the child with the relative or 18 the carer has been approved under section 55A. 19 20 39. Section 55 amended 21 In section 55(1) delete "step-parent" and insert: 22 23 step-parent, relative 24 25 Note: The heading to amended section 55 is to read: 26 Adoption plans in adoptions by step-parents, relatives or carers page 24 Adoption Amendment Bill 2011 s. 40 1 40. Section 59 amended 2 (1) Before section 59(1) insert: 3 4 (1A) In this section -- 5 close relative, in relation to a birth parent, means each 6 of the following people -- 7 (a) a birth parent or an adoptive parent of the birth 8 parent; 9 (b) a sibling of the birth parent -- 10 (i) whether of the whole or half blood; or 11 (ii) whether the relationship is established 12 by this Act or another written law. 13 14 (2) Delete section 59(2) and insert: 15 16 (2) Written notice of the intention to file an application for 17 an adoption order in relation to the child -- 18 (a) is to be given to as many close relatives of the 19 birth parents who have attained the age of 20 18 years as is practicable; or 21 (b) if no close relative of a birth parent can 22 reasonably be located, is to be given to an aunt 23 or uncle of the birth parent who has attained the 24 age of 18 years and is reasonably available at 25 the relevant time. 26 (3) For the purposes of subsection (2) notice is given to a 27 person if the notice is delivered personally or by 28 registered post to that person's last known address. 29 (4) The CEO may provide assistance to a person who is 30 required to give notice of the intention to file an 31 application for an adoption order under this section. page 25 Adoption Amendment Bill 2011 s. 41 1 41. Section 66 amended 2 (1) In section 66(2) after "adopted by" insert: 3 4 a relative or 5 6 (2) Delete section 66(3). 7 42. Section 67 amended 8 (1) In section 67(1): 9 (a) after paragraph (a) insert: 10 11 (ba) is a relative of the child; or 12 13 (b) after paragraph (a) insert: 14 15 or 16 17 (2) In section 67(2): 18 (a) delete "(1)(b) and (c)" and insert: 19 20 (1)(ba), (b) and (c) and relatives 21 22 (b) delete "first-mentioned persons" and insert: 23 24 first-mentioned persons, relatives 25 26 (3) In section 67(5): 27 (a) delete "(1)(b) and (c)" and insert: 28 29 (1)(ba), (b) and (c) or the relatives 30 page 26 Adoption Amendment Bill 2011 s. 43 1 (b) delete "those persons" and insert: 2 3 those persons, relatives 4 5 43. Section 68 amended 6 (1) In section 68(1): 7 (a) after paragraph (d) insert: 8 9 (ea) if a relative or carer of a child wishes to adopt 10 the child, the application is in accordance with 11 section 55C; and 12 13 (b) delete paragraph (fa) and insert: 14 15 (fa) if a step-parent, relative or carer of a child 16 wishes to adopt the child, the child's adoption 17 by the person is preferable to any of the 18 following orders being made under the Family 19 Law Act 1975 (Commonwealth) or the Family 20 Court Act 1997 as is relevant to the case -- 21 (i) a parenting order in respect of the child; 22 (ii) an order in respect of the appointment 23 or removal of a guardian of the child; 24 and 25 (fb) if a relative of a child wishes to adopt the child, 26 there are good reasons to redefine relationships 27 within the child's family in the way that the 28 order would do; and 29 (fc) if a relative or carer of a child wishes to adopt 30 the child and the child is the subject of a 31 protection order (time limited) or protection 32 order (until 18) under the Children and 33 Community Services Act 2004, the child's page 27 Adoption Amendment Bill 2011 s. 44 1 adoption would be preferable to the making of 2 a protection order (special guardianship) under 3 the Children and Community Services Act 2004 4 in respect of the child; and 5 6 (c) after each of paragraphs (a) to (f) and (g)(i) and (ii) 7 insert: 8 9 and 10 11 (2) In section 68(2): 12 (a) in paragraph (b) before "carer" insert: 13 14 relative or a 15 16 (b) after paragraphs (a) and (b) insert: 17 18 and 19 20 44. Section 69 amended 21 In section 69(1): 22 (a) after paragraph (b) insert: 23 24 (ca) if a prospective adoptive parent is a relative of 25 the prospective adoptee, there are good reasons 26 to redefine the relationships within the 27 prospective adoptee's family in the way that the 28 order would do; and 29 page 28 Adoption Amendment Bill 2011 s. 45 1 (b) after paragraph (a) insert: 2 3 and 4 5 45. Section 74 amended 6 In section 74(2): 7 (a) delete paragraph (aa) and insert: 8 9 (aa) the principle that the adoptee's first name 10 before the making of an adoption order should 11 be included in the name by which the adoptee is 12 to be known; and 13 14 (b) delete paragraph (b) and insert: 15 16 (b) any views expressed by the adoptee and any 17 factors (such as the adoptee's maturity or level 18 of understanding) that the court thinks are 19 relevant to the weight it should give to the 20 adoptee's views; and 21 (ca) the adoptee's relationships with his or her birth 22 parents or any other person and the extent to 23 which those relationships should be recognised 24 in the name by which the adoptee is to be 25 known; and 26 (cb) the adoptee's cultural background and the 27 principle that the name by which the adoptee is 28 to be known should recognise that background; 29 and 30 page 29 Adoption Amendment Bill 2011 s. 46 1 (c) after paragraph (a) insert: 2 3 and 4 5 46. Section 76 amended 6 In section 76(3) delete "step-parent" and insert: 7 8 step-parent, relative 9 10 47. Section 77 amended 11 In section 77(5): 12 (a) delete paragraph (c) and insert: 13 14 (c) any matter affecting parental responsibility for 15 the adoptee; or 16 17 (b) after paragraphs (a) and (b) insert: 18 19 or 20 21 48. Section 81 amended 22 In section 81(2) after "party to the plan" insert: 23 24 or a sibling of an adoptee 25 page 30 Adoption Amendment Bill 2011 s. 49 1 49. Section 82 amended 2 Delete section 82(4) and insert: 3 4 (4) The CEO's power to authorise the access to 5 information under this section is subject to -- 6 (a) section 79(3); and 7 (b) an order of the Court under section 83(2); and 8 (c) section 103. 9 10 50. Section 84 amended 11 In section 84(1): 12 (a) in paragraph (c) delete "adoptee; and" and insert: 13 14 adoptee; 15 16 (b) after paragraph (c) insert: 17 18 (da) a sibling of the adoptee, if both the sibling and 19 the adoptee are 18 or more years of age; 20 21 51. Section 85 amended 22 In section 85(1): 23 (a) in paragraph (b) delete "adoptee; and" and insert: 24 25 adoptee; 26 27 (b) in paragraph (c) delete "adoptee." and insert: 28 29 adoptee; 30 page 31 Adoption Amendment Bill 2011 s. 52 1 (c) after paragraph (c) insert: 2 3 (d) a sibling of the adoptee, if both the sibling and 4 the adoptee are 18 or more years of age. 5 6 52. Section 90 amended 7 (1) In section 90(1): 8 (a) in paragraph (b) delete "adoptee; or" and insert: 9 10 adoptee, 11 12 (b) delete paragraph (c); 13 (c) after paragraph (a) insert: 14 15 or 16 17 (2) In section 90(4): 18 (a) in paragraph (b) delete "adoptee; or" and insert: 19 20 adoptee, 21 22 (b) delete paragraph (c); 23 (c) after paragraph (a) insert: 24 25 or 26 page 32 Adoption Amendment Bill 2011 s. 53 1 53. Section 100 amended 2 In section 100(1): 3 (a) delete paragraph (d) and insert: 4 5 (d) subject to subsection (3), where the statement 6 of wishes was lodged on behalf of an adoptee 7 who was less than 18 years of age at the time of 8 the lodgment by a person with parental 9 responsibility for the adoptee, until the adoptee 10 attains 19 years of age, 11 12 (b) after paragraphs (a) and (b) insert: 13 14 or 15 16 54. Section 104 deleted 17 Delete section 104. 18 55. Section 105 amended 19 At the end of section 105(1) insert: 20 21 Penalty: a fine of $10 000 and imprisonment for 22 12 months. 23 24 56. Section 110 amended 25 (1) In section 110(1) after paragraph (a) insert: 26 27 (ba) the adoption applications committee; or 28 29 (2) Delete section 110(2). page 33 Adoption Amendment Bill 2011 s. 57 1 57. Section 112 amended 2 (1) In section 112(1): 3 (a) in paragraph (b) delete "reviewed." and insert: 4 5 reviewed; or 6 7 (b) after paragraph (b) insert: 8 9 (c) if the decision being reviewed is a decision of 10 the adoption applications committee, refer the 11 decision back to the adoption applications 12 committee for further consideration. 13 14 (2) Delete section 112(2) and insert: 15 16 (2) The CEO must give the applicant written notice of the 17 decision under subsection (1), the reasons for the 18 decision and the person's right of review under 19 section 113. 20 21 58. Part 5 Division 2 replaced 22 Delete Part 5 Division 2 and insert: 23 24 Division 2 -- Review by State Administrative Tribunal 25 113. Review by State Administrative Tribunal 26 (1) Except as provided in subsection (4), a person who is 27 aggrieved by a decision of the CEO under 28 section 112(1)(a) or (b) may apply to the State 29 Administrative Tribunal for a review of the CEO's 30 decision. page 34 Adoption Amendment Bill 2011 s. 59 1 (2) The application must be made within 28 days after the 2 day on which the CEO gives the applicant notice in 3 accordance with section 112(2). 4 (3) A decision that is the subject of an application under 5 subsection (1) continues to have effect pending the 6 outcome of the review, unless the State Administrative 7 Tribunal orders otherwise. 8 (4) This section does not apply if the decision that was 9 reviewed by the CEO under Division 1 was a decision 10 to place a child with a view to the child's adoption and 11 the child has already been placed in accordance with 12 that decision. 13 14 59. Part 5 Divisions 3 and 4 deleted 15 Delete Part 5 Divisions 3 and 4. 16 60. Section 120 amended 17 (1) In section 120(1) insert in alphabetical order: 18 19 relative, in relation to a person, means each of the 20 following people -- 21 (a) the person's -- 22 (i) spouse or de facto partner; 23 (ii) parent or other ancestor; 24 (iii) child or other descendant; 25 (iv) step-parent or step-child; 26 (v) sibling; 27 (vi) uncle or aunt, 28 whether the relationship is of the whole or half 29 blood, established by, or traced through, 30 marriage, a written law or a natural 31 relationship; page 35 Adoption Amendment Bill 2011 s. 61 1 (b) in the case of an Aboriginal person, a person 2 regarded under the customary law or tradition 3 of the person's community as the equivalent of 4 a person mentioned in paragraph (a); 5 (c) in the case of a Torres Strait Islander, a person 6 regarded under the customary law or tradition 7 of the Torres Strait Islands as the equivalent of 8 a person mentioned in paragraph (a). 9 10 (2) In section 120(1) in the definition of publish delete "public." 11 and insert: 12 13 public; 14 15 61. Section 122 amended 16 In section 122(1) in the Penalty delete "$25 000 and 2 years' 17 imprisonment." and insert: 18 19 a fine of $25 000 and imprisonment for 2 years. 20 21 62. Section 124 amended 22 In section 124(3): 23 (a) in paragraph (b) delete "the person's guardian; or" and 24 insert: 25 26 a person with parental responsibility for the 27 adoptee or the prospective adoptee; or 28 29 (b) after paragraph (a) insert: 30 31 or 32 page 36 Adoption Amendment Bill 2011 s. 63 1 63. Sections 127A and 127B inserted 2 After section 126 insert: 3 4 127A. False information 5 A person must not give information orally or in writing 6 in, or in relation to, an application, report or other 7 document prepared for the purposes of this Act that the 8 person knows to be false or misleading in a material 9 respect. 10 Penalty: a fine of $6 000. 11 127B. Notification of changes in circumstances 12 (1) In this section -- 13 register means the register referred to in section 44. 14 (2) A person who is a party to a proposed adoption must 15 notify the CEO within 28 days of becoming aware 16 of -- 17 (a) information that may be relevant to the 18 identification of a person who may be required 19 to give effective consent to the adoption; or 20 (b) circumstances that may affect whether a 21 consent to the adoption is effective. 22 Penalty: a fine of $10 000 and imprisonment for 23 12 months. 24 (3) A person whose name is on the register must notify the 25 CEO within 28 days of becoming aware of any change 26 in the person's circumstances that may affect his or her 27 suitability for adoptive parenthood in accordance with 28 the criteria referred to in section 40(2). 29 Penalty: a fine of $10 000 and imprisonment for 30 12 months. 31 page 37 Adoption Amendment Bill 2011 s. 64 1 64. Section 133 amended 2 (1) In section 133(1): 3 (a) after "court" (first occurrence) insert: 4 5 or tribunal 6 7 (b) delete "court." and insert: 8 9 court or tribunal. 10 11 (2) In section 133(2) after "court" insert: 12 13 or tribunal 14 15 65. Section 138 amended 16 In section 138(1): 17 (a) delete paragraph (b)(i) and insert: 18 19 (i) when the adoption order was made the 20 adoptive parent -- 21 (I) was domiciled in a country 22 other than Australia; or 23 (II) had been resident for the 24 preceding 12 months in a 25 country or countries other than 26 Australia; 27 or 28 29 (b) after paragraphs (a) and (b) insert: 30 31 and 32 page 38 Adoption Amendment Bill 2011 s. 66 1 66. Section 138A amended 2 In section 138A(1): 3 (a) in paragraph (d) delete "the adoption." and insert: 4 5 the adoption; and 6 7 (b) after paragraph (d) insert: 8 9 (e) the child is permitted -- 10 (i) to enter Australia; and 11 (ii) to reside permanently in Australia. 12 13 67. Section 145 replaced 14 Delete section 145 and insert: 15 16 145. Adoption Amendment Act 2011 -- transitional 17 provisions 18 (1) In this section -- 19 commencement day means the day on which the 20 Adoption Amendment Act 2011 section 59 comes into 21 operation. 22 (2) Part 5 as in force immediately before commencement 23 day applies to -- 24 (a) an appeal to the Family Court made under 25 section 114 before commencement day that has 26 not been finalised; or 27 (b) an appeal to the Court of Appeal made under 28 section 118 before commencement day that has 29 not been finalised. 30 page 39 Adoption Amendment Bill 2011 s. 68 1 68. Section 146 amended 2 (1) Before section 146(1) insert: 3 4 (1A) In this section -- 5 commencement day means the day on which the 6 Adoption Amendment Act 2011 section 68 comes into 7 operation. 8 9 (2) In section 146(1) and (3) delete "3 years" and insert: 10 11 5 years 12 13 (3) Delete section 146(4). 14 69. Various references to "guardian" and "guardianship" 15 amended 16 Amend the provisions listed in the Table as set out in the Table. 17 Table Provision Delete Insert s. 17(1)(c)(i) of the child's person with parental guardians; and responsibility for the child; and s. 18(3) is a guardian of has parental responsibility for s. 18(7)(a) a parent or guardian a person with of parental responsibility for page 40 Adoption Amendment Bill 2011 s. 70 Provision Delete Insert s. 18(7)(b)(ii) his or her parent or the person with guardian, parental responsibility for him or her, Pt. 3 Div. 4 heading Guardianship of Parental responsibility for s. 31 is the guardian of has parental responsibility for Pt. 3 Div. 5 heading guardianship of parental responsibility for 1 70. Various penalties amended 2 In the provisions listed in the Table in the Penalty delete 3 "$10 000 and 12 months' imprisonment." and insert: 4 5 a fine of $10 000 and imprisonment for 12 months. 6 7 Table s. 11 s. 93(2) s. 94(3) and (4) s. 105(2) s. 123(1) s. 124(1) s. 125 s. 126 s. 127(1) page 41 Adoption Amendment Bill 2011 s. 71 1 71. Schedule 3 amended 2 (1) Delete Schedule 3 clauses 4, 5, 6 and 7. 3 (2) In Schedule 3 clause 9(1) in paragraphs (a)(ii) and (b)(ii) of the 4 paragraphs to be substituted delete "an adoptive parent or guardian 5 of " and insert: 6 7 a person with parental responsibility for 8 9 (3) In Schedule 3 clause 9(4) in paragraph (a)(ii) of the paragraphs 10 to be substituted delete "an adoptive parent or guardian of " and 11 insert: 12 13 a person with parental responsibility for 14 15 (4) In Schedule 3 clause 9(5) in paragraph (b)(ii) of the paragraph 16 to be substituted delete "an adoptive parent or guardian of " and 17 insert: 18 19 a person with parental responsibility for 20 21 (5) In Schedule 3 clause 9(6) in paragraph (a)(ii) of the paragraph to 22 be substituted delete "an adoptive parent or guardian of " and 23 insert: 24 25 a person with parental responsibility for 26 27 (6) In Schedule 3 clause 11 delete "the adoptee's parent or guardian." 28 and insert: 29 30 a person with parental responsibility for the adoptee. 31 page 42 Adoption Amendment Bill 2011 s. 71 1 (7) In Schedule 3 clause 13(2)(a) delete "an adoptive parent or 2 guardian of " and insert: 3 4 a person with parental responsibility for 5
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