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This is a Bill, not an Act. For current law, see the Acts databases.


ADOPTION AMENDMENT BILL 2011

                     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

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                                       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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