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. 1 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". 2 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 3 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". 4 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. 5 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. 6 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. 7 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). 8