Adoption Amendment (Adoption by
Same-Sex Couples) Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1—Preliminary
Clause 1
sets out the purpose of the Bill, which is to amend—

the Adoption Act 1984 to enable the adoption of
children by same-sex couples; and

the Equal Opportunity Act 2010 to remove the
exception to the prohibition to discriminate in relation to
religious bodies providing adoption services.
Clause 2
provides for the Bill to come into operation on a day or days to
be proclaimed, or otherwise 1 September 2016.
Clause 3
provides that in the Bill, the Adoption Act 1984 is called the
Principal Act.
Part 2—Amendments to the Adoption Act 1984
Clause 4
581139
updates existing relationship categories in the Adoption
Act 1984 that are permitted to adopt to ensure that couples
who are in a same-sex, or gender non-specific, relationship
are captured within the relevant relationship categories.
These relationship categories reflect those in the Relationships
Act 2008.
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BILL LA INTRODUCTION 6/10/2015
Subclause (1) inserts in section 4(1) of the Principal Act—

the new definition of domestic partner. A domestic
partner may be either a person who is in a registered
domestic relationship with another person or a person
with whom the person is in a domestic relationship.
This term is to replace "de facto spouse" throughout the
Principal Act;

the new definition of domestic relationship.
A domestic relationship is a relationship between
2 persons who are living together as a couple on a
genuine domestic basis (irrespective of sex or gender)
and who are neither married to each other nor in a
registered domestic relationship with each other;

the new definition of registered domestic relationship.
A registered domestic relationship is a domestic
relationship which has been registered under Part 2.2 of
the Relationships Act 2008.
Subclause (2) repeals in section 4(1) of the Principal Act—

the definition of de facto relationship; and

the definition of de facto spouse.
Subclause (3) substitutes existing section 4(5) of the Principal
Act. This substituted clause is required due to the insertion of the
new term "domestic partner", which means a person who is part
of a couple in a domestic relationship or a registered domestic
relationship.
Clause 4(3) clarifies that in circumstances where a person is
currently living in a domestic relationship, but was previously
in a relationship with another person (being a registered
domestic relationship which has not been revoked) a reference
in the Act (except in section 55) to the domestic partner of the
first-mentioned person refers to the person with whom that
person is currently in a domestic relationship.
The previous section 4(5) of the Principal Act made a similar
distinction in relation to the term "spouse" in relation to a person
in a de facto relationship who was still married. This distinction
is no longer required as the amendments made by the Bill
distinguish between these relationships with the terms "spouse"
and "domestic partner".
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Subclause (4) replaces the words "man or woman" with "person".
This is consistent with the amendments made to section 11(1) of
the Principal Act by clause 7(1). It is also consistent with the aim
to use gender-neutral language so as to not preclude those in
same-sex or gender-non-specific relationships from adopting
children.
Clause 5
replaces the term "de facto spouse" with "domestic partner" in
section 10 of the Principal Act. This section sets out who may be
adopted. Amended section 10(1)(b) allows the Court to make an
order for the adoption of a person who has been brought up by an
applicant for adoption and the applicant's spouse or domestic
partner.
Clause 6
amends section 10A of the Principal Act which sets out who can
apply for an adoption order. The amendment—

substitutes the words "a man and a woman" with
"2 persons"; and

substitutes the words "the man and woman" with
"persons";

substitutes the words "his or her spouse or de facto
spouse" with "the person's spouse or domestic partner".
This is to enable those in same-sex or gender non-specific
relationships to make applications for an adoption order under
sections 11 and 12 of the Principal Act.
Clause 7
makes various amendments to section 11 of the Principal Act
which enable an adoption order to be made in favour of those in
same-sex and gender non-specific relationships.
Subclause (1) substitutes the words "a man and a woman" with
"2 persons" in section 11(1) of the Act.
Subclause (2) inserts a new section 11(1)(ba).
Section 11(1)(ba) adds a new category of relationship
(a "registered domestic relationship") to the list of persons in
whose favour an adoption order made be made. Under this
section, an adoption order may only be made in favour of
2 persons in a registered domestic relationship if that
domestic relationship has been registered for at least 2 years.
New paragraph (ba) is consistent with section 11(1)(a) which
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allows an adoption order to be made in favour of 2 persons who
have been married to each other for at least 2 years.
Subclause (3), consistent with clause 4, substitutes "de facto
relationship" with "domestic relationship" in section 11(1)(c).
This allows an adoption order to be made in favour of 2 persons
who have been living in an unregistered domestic relationship for
at least 2 years.
Subclause (4) substitutes existing section 11(1A) of the
Principal Act with a subsection that is consistent with the
relationship categories introduced by clause 4 of this Bill.
New section 11(1A) provides that the Court must not make an
adoption order in relation to 2 persons in a domestic relationship
unless satisfied that, at the time the order is made, neither person
is married to another person nor in a registered domestic
relationship with another person.
Subclause (5) similarly to subclause (4), substitutes existing
section 11(4) of the Principal Act, which relates to adoption
orders made in favour of one person, with a subsection that is
consistent with the relationship categories introduced by clause 4
of this Bill.
Subclauses (6) and (7), consistent with clause 4(1) of this Bill,
replace the term "de facto spouse" with domestic partner in
section 11(5) and (6) of the Principal Act. As amended,
section 11(5) and (6) provides for applications by the spouse or
domestic partner of a parent of a child to apply to adopt that
child.
Similar to clauses 7(4) and 7(5) of this Bill, subclause (8)
substitutes the existing section 11(6)(d) with a paragraph that is
consistent with the relationship categories introduced by clause 4.
As such, it provides that, if an application to adopt is made by the
domestic partner of a parent of a child, the Court must not make
the order for the adoption solely by that domestic partner unless
satisfied that the partner is neither married nor in a registered
domestic relationship with someone other than the parent of the
child at the time the order is made.
Consistent with clause 4(1) of this Bill, subclause (9), substitutes
the term "de facto spouse" with "domestic partner".
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Clause 8
makes amendments to section 12 of the Principal Act to enable
an adoption order to be made in favour of those in same-sex and
gender non-specific relationships to adopt a child who is a
relative.
Consistent with clause 4(1) of this Bill, subclause (1) substitutes
the term "whose spouse or de facto spouse" with "whose spouse
or domestic partner".
Similar to clause 7(8) of this Bill, subclause (2) substitutes the
existing section 12(d) and (e) of the Principal Act with new
paragraphs that are consistent with the relationship categories
introduced by clause 4 of this Bill.
Clause 9
amends section 20A of the Principal Act to reflect the
relationship categories introduced by clause 4 of this Bill.
The amendment—

substitutes the words "a man and a woman" with
"2 persons"; and

substitutes the words "the man and woman" with
"persons";

substitutes the words "his or her spouse or de facto
spouse" with "that person's spouse or domestic partner".

substitutes the words "his or her spouse or de facto
spouse" with "the person's spouse or domestic partner".
This is to provide that persons who make arrangements or enter
into negotiations on behalf of the Secretary to the Department of
Health and Human Services or an approved agency for an
adoption, will not make an assessment of the suitability of the
applicant unless the requirements set out in relation applicant's
relationship status as set out at sections 20(A)(a) and (b) are met.
Clause 10 consistent with clause 4(1), substitutes the term "de facto spouse"
with "domestic partner" in section 39(2) of the Principal Act.
This section provides that a consent to an adoption given by a
parent applies generally and is not specific to a particular
applicant.
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Clause 11 consistent with clause 4(1), substitutes the term "de facto spouse"
with "domestic partner" in section 46(3)(a).
This is to provide that section 46(1) of the Principal Act
(which sets out the circumstances under which either the
Secretary to the Department of Health and Human Services or
the principal officer of an approved agency is the guardian of a
child awaiting adoption) will not apply to a child the adoption of
whom by a domestic partner of the child's parent is being
negotiated or arranged.
Clause 12 omits the term "in lawful wedlock" from section 53(1)(a)(ii).
As amended, section 53(1)(a) will provide that the adopted child
of the adoptive parent or adoptive parents will be treated in law
as if the child had been born to the adoptive parent or adoptive
parents.
Clause 13 amends section 55 of the Principal Act, which sets out the
process for dealing with a bequest by will to an unascertained
adopted person.
Subclause (1) inserts the term "domestic partner" to
section 55(1)(a) of the Act, consistent with the relationship
categories inserted by clause 4(1) of this Bill.
This is to provide that section 55 will apply to the child of a
person described as domestic partner in a will.
Subclause (2) inserts a new section 55(10) into the Principal Act.
Section 55(10) defines, for the purposes of section 55, de facto
relationship and de facto spouse.
The definitions of de facto relationship and de facto spouse
remain relevant for section 55, despite subclause 4(2) repealing
the definitions for the general purposes of the Principal Act.
The definitions are required in section 55 so as to not prevent the
application of the section to a child who is not named in the will
but who is described as the child of a "de facto spouse" of the
testator or of a "de facto relationship" of the testator.
Clause 14 consistent with clause 4(1), amends section 92(1) and (3) of the
Principal Act to substitute the term "de facto spouse" with
"domestic partner". Section 92 deals with access to birth
certificates of adopted persons.
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Clause 15 consistent with clause 4(1), substitutes the term "de facto
spouse" with "domestic partner" in section 122(2) of the Act.
The amendments allow a domestic partner of a parent of a child
to make arrangements in relation to the child that would
otherwise be prohibited.
Clause 16 inserts a new section 133 into the Principal Act to provide
transitional arrangements relating to the operation of section 7 of
the Adoption Amendment (Adoption by Same-Sex Couples)
Act 2015.
This new section provides that an application for an adoption
order that is made before section 7 of the Adoption Amendment
(Adoption by Same-Sex Couples) Act 2015 commences, but is
not determined by the Court before that day is to be determined
in accordance with the Principal Act as in force immediately
before that day.
Part 3—Amendment to the Equal Opportunity Act 2010
Clause 17 inserts a new subsection (3) into section 82 of the Equal
Opportunity Act 2010.
Section 82 of the Equal Opportunity Act 2010 provides
exceptions to the prohibitions of discrimination in Part 4 of that
Act for religious bodies.
In particular, section 82(2) provides that the prohibitions of
discrimination in Part 4 do not apply to anything done on the
basis of a person's religious belief or activity, sex, sexual
orientation, lawful sexual activity, marital status, parental status
or gender identity by a religious body that—

conforms with the doctrines, beliefs or principles of the
religion; or

is reasonably necessary to avoid injury to the religious
sensitivities of adherents of the religion.
New subsection (3) provides that, despite the exception for
religious bodies in section 82(2), the prohibitions of
discrimination in Part 4 of the Equal Opportunity Act 2010
do apply to the actions of a religious body that is an approved
agency within the meaning of the Adoption Act 1984 in relation
to its exercise of any power, or performance of any function or
duty under that Act, for or with respect to adoption.
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This applies to services provided by such bodies and agencies
under the Adoption Act 1984 to a range of people, including—
children to be adopted; applicants for assessment as adoptive
parents; potential adoptive parents; adoptive parents; natural
parents; adopted persons; and relatives of adoptive parents,
adopted persons and natural parents.
Part 4—Repeal of amending Act
Clause 18 provides for the automatic repeal of the amending Act on
1 September 2017. The repeal of the Bill does not affect the
operation of the amendments made by it (see section 15(1) on the
Interpretation of Legislation Act 1984).
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