In Australia, each State and Territory is responsible for its own adoption legislation. Western Australia was the first state in Australia to enact adoption legislation, commencing with the introduction of the Adoption of Children Act 1896.
Today, the legislative frameworks governing adoption practice in Western Australia are:
The Adoption Act 1994 (the Act), Adoption Regulations 1995 and the Adoption Rules 1995 are based upon the central principle of the United Nations Convention on the Rights of the Child – that the best interest of the child are paramount. The Act also gives effect to the Hague Convention on the Protection of Children and Cooperation in respect to Inter-Country Adoption.
Key Amendments to the Adoption Act 1994
Open adoption
The Adoption Amendment Act 2003 strengthened the principle of open adoption. Open adoption is an adoption that is not secretive and involves the active participation of the adopted person, birth parents and adoptive parents, as well as other important family members and relatives. The paramount consideration of open adoption is the best interests of the child.
Information vetoes
An information veto was a statement of a person’s objection to identifying information about an adoption being released to another party to the same adoption. Amendments to the Adoption Act 1994 in 2003 resulted in no new information vetoes being placed from 1 June 2003, and the effect of any registered information vetoes ceased after January 2005. Amendments to repeal information vetoes have significantly contributed to improving access to adoption records and information.
Contact vetoes
A contact veto is a statement of a person’s objection to being contacted by one or more parties to the same adoption. Amendments to the Adoption Act in 2003 resulted in no new contact vetoes being registered since 1 June 2003.
The Adoption Amendment Act 2012 removed the offence relating to the breach of a contact veto. This amendment was made in the spirit of decriminalising contact between parties involved in an adoption. However, a person obtaining identifying information where a contact veto has been in place is still required to sign an undertaking not to contact that person while the veto remains in effect.
It remains an offence for a Contact and Mediation Licensee to make contact, on behalf of a party to an adoption, with a person who lodged a contact veto where Communities has informed the licensee that a contact veto is in place (s.108).
In August 2024 Report 66 - Broken Bonds, Fractured Lives: report on the inquiry into past forced adoption in Western Australia recommended converting existing contact vetoes into statements of objection to contact. This recommendation required further consideration by government.
The First Annual Implementation Progress Report of the Government Response to Report 66 – Broken Bonds, Fractured Lives outlines the further consideration by the Government regarding proposed changes to contact vetoes.
The Government has finalised its position and supports the conversion of existing contact vetoes into statements of objection to contact. Following legislative amendments to the Adoption Act 1994 to enable these changes, Adoption Services will contact people impacted by contact vetoes to provide them with information regarding the legislative amendments and referrals to specialised counselling and support services to support them through the transition.
Access to records
The Adoption Amendment Act 2012 included amendments allowing for birth siblings who are over 18 years old to have access to identifying information, provided the adopted person was also over 18 years old. Prior to this amendment birth siblings were only able to access non-identifying information.
Adoption of Children Act 1896
The Adoption of Children Act 1896 came into operation on 23 September 1896 and formalised adoptions in Western Australia by introducing Adoption Orders issued by the Supreme Court. The Adoption of Children Act 1896 set out details in relation to an adoption order, the legal effect of an adoption order, permissible parties to an adoption, consent to an adoption by the birth parent(s), inheritance rights and the court proceedings to be followed in making an arrangement for an adoption.
Amendments to the Adoption of Children Act 1896 proceeded for almost a century, before the Adoption of Children Act 1896 was repealed by the Adoption Act 1994.
2018 Statutory Review of the Adoption Act 1994
In 2018, a Statutory Review (the Review) of the Adoption Act 1994 (the Act) was conducted by the Department of Communities as required under section 146 of the Act.
The Review was undertaken with the support of a reference group that included Aboriginal people and other government and non-government members with relevant knowledge of law, psychology and issues relating to children and young people. A total of 39 public submissions were received, including from professional organisations and individuals with lived experience.
The report of the Review was tabled in Parliament on 21 November 2018 and can be accessed online.
The Review made 31 recommendations to strengthen the adoption process and to make the best interests and wellbeing of children the paramount consideration in all adoptions. The five non-statutory recommendations have been implemented, with further work required to implement the 26 legislative recommendations that require amendments to the Act.
The Review’s legislative recommendations will be considered together with the legislative recommendations supported by Government in its response to Report 66 - Broken Bonds, Fractured Lives: report on the inquiry into past forced adoption in Western Australia.
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