16 Access to adoption information

Introduction

  1. 16.1 A number of the recommendations in this report reinforce the need for adopted people to know about the family into which they were born and ideally to have the opportunity to sustain relationships with their natural parents, grandparents, siblings and other relatives.
  2. 16.2 For many, and particularly those who were adopted before the current Adoption Act 1984 (Vic) came into effect, the only way to discover their own early history, original identity and family is by examining information contained in records that were created or compiled when they were adopted.
  3. 16.3 Before 1984, during the era of closed adoption, information was kept confidential. The Adoption Act introduced provisions that made information available.1 These continue to be important. In 2014–15, 616 requests for information were made.2 Most were by people adopted before 1984.3 The Commission has recommended that the importance of the access to information provisions be reflected in the objects of the Adoption Act.4
  4. 16.4 This chapter discusses the provisions contained in Part VI of the Adoption Act, which provide adopted people and their families with access to information about the adoption. The Commission was asked to make recommendations to modernise the Adoption Act and address any gaps in Part VI. It has identified measures to improve the access available, as well as the privacy protections; but, as discussed in Chapter 2, modernising the Adoption Act requires more than piecemeal amendments to the current provisions.
  5. 16.5 The structure and language of the Act need to be substantially revised and for this reason the Commission has recommended that it be replaced completely with new legislation.
  6. 16.6 Part VI needs significant revision. The provisions do not set out clearly what information may be made available on request, and under what conditions. The language used and concepts applied contain inconsistencies that appear arbitrary or accidental.
  7. 16.7 The need for a new scheme for providing access to adoption information is discussed in the next section. The following sections propose specific recommendations about the features of the scheme.

The need for a new access to information scheme

  1. 16.8 Part VI of the Adoption Act came into effect two years after the Freedom of Information Act 1982 (Vic) extended the community’s access to information in the possession of the Victorian Government.5 In general terms, Part VI regulates access to information held in records about adoptions that were negotiated or arranged by the Secretary, an approved agency or an organisation approved as a private adoption agency under the Adoption of Children Act 1964 (Vic).6
  2. 16.9 Access to these records is prohibited unless permitted by Part VI. Access under the Freedom of Information Act is available only to a person who has applied to adopt a child, to seek access to their application and any records generated in the course of assessing it.
  3. 16.10 Excluding regulation by the Freedom of Information Act in all other cases allowed for a separate access scheme to be established under the Adoption Act. Rather than relying on the generally applicable provisions of the Freedom of Information Act, Part VI of the Adoption Act establishes conditions of access that depend on whether the applicant is an adopted person, a natural or adoptive parent of an adopted person, or is related to the adopted person in another specified way. The conditions of access serve to mitigate the effect of access on the privacy of people other than the applicant who may be mentioned in the information.
  4. 16.11 Regulating access under the Adoption Act enabled a tailored approach to be taken in view of the sensitivity of the information and its significance to the applicant. However, the scheme established by Part VI does not contain features of the Freedom of Information Act that ensure transparency and accountability in responding to requests. These include, for example:
  • statutory time limits for processing requests7
  • rights for a person to correct or amend information that is inaccurate, incomplete, out-of-date or would give an misleading impression8
  • requirements for agencies to give written reasons for decisions to deny access9
  • procedures for internal review of decisions to deny access10
  • inexpensive procedures for external review of decisions by the Victorian Civil and Administrative Tribunal (VCAT).11
  1. 16.12 The Commission considers that there is no reason why a person applying for access to information under the Adoption Act should not have the same rights of review and correction as they would have if they made a request under the Freedom of Information Act. Similarly, there is no reason why the Department of Health and Human Services (DHHS) should be subject to different standards of accountability.
  2. 16.13 In addition, the Part VI access scheme does not incorporate the features of subsequent legislation that regulates the handling of personal information by government agencies and protects privacy:
  • The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) recognises the right of a person not to have their privacy arbitrarily interfered with.12
  • The Privacy and Data Protection Act 2014 (Vic), and its predecessor legislation the Information Privacy Act 2001 (Vic), requires government agencies to collect, store, use and disclose personal information in accordance with a set of Information Privacy Principles. ‘Personal information’ is information or an opinion about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.13
  • The Health Records Act 2001 (Vic) requires a person’s health information to be handled in accordance with a set of Health Privacy Principles. ‘Health information’ includes personal information or opinion about a person’s health, disability, use of health services, donation of body parts, organs or body substances, and genetic information.14
  1. 16.14 Where the Adoption Act is inconsistent with a provision in the Privacy and Data Protection Act or the Health Records Act, the Adoption Act prevails.15 Otherwise, the information to which Part VI provides access must be handled in accordance with the Information Privacy Principles and Health Privacy Principles.

New access to information scheme

  1. 16.15 In modernising the Adoption Act, all provisions concerning the collection, generation, storage, use and disclosure of personal information should expressly incorporate, where relevant and appropriate, the requirements or features of the Information Privacy Principles and Health Privacy Principles. For example, they should ensure that people about whom information is collected are aware of the collection, the purpose of collection, to whom information of that kind is usually disclosed, and their right to have access to the information and correct it if necessary. In addition, the structure and wording of provisions that set out when information may be disclosed, and the right of a person identified in the information to correct or amend it, could also be based on the approach taken in equivalent parts of the Information Privacy Principles and Health Privacy Principles.
  2. 16.16 The Commission considers that the changes necessary to modernise the structure, language and content of Part VI are so extensive that the current access scheme should be replaced with a new one. While DHHS should be responsible for designing the new scheme, and has long experience and significant responsibilities under the current scheme, it should consult with the Privacy and Data Protection Commissioner, the Health Services Commissioner and the Ombudsman to ensure that it incorporates contemporary standards of transparency, accountability and fairness in the management of personal information by Victorian government agencies.
  3. 16.17 The new access to information scheme should apply to information in the possession or under the control of the Secretary or an agency relating to an adoption that was negotiated or arranged at any time under current or corresponding previous legislation. The present scheme similarly applies to information about adoptions which were arranged before the current Adoption Act came into effect.

 

Recommendation

  1. 73 The access to information scheme set out in Part VI of the Adoption Act should be replaced with a new scheme, designed by the Secretary in consultation with the Privacy and Data Protection Commissioner, the Health Services Commissioner and the Ombudsman, that incorporates contemporary standards of transparency, accountability and fairness in the management of personal information by Victorian government agencies. 

Features of a new access to information scheme

  1. 16.18 Although the details of the new scheme will be identified during the design process, issues were raised in submissions and during consultations which need to be addressed.
  2. 16.19 Approximately 25 per cent of submissions addressed access to adoption information.16 The subject was also discussed in consultations with adopted people, natural parents, approved agencies, the DHHS adoption information service FIND (Family Information and Network Discovery), the Registry of Births, Deaths and Marriages (BDM) and VANISH.
  3. 16.20 The following issues were raised:
  • lack of clarity about what information people are entitled to17
  • difficulties and delays in obtaining information18
  • mandatory interviews19
  • access to information by adopted children and relatives20
  • access to information by friends and partners of adopted people21
  • access to family members’ birth certificates and marriage certificates22
  • protection of privacy23
  • review of decisions.24
  1. 16.21 The proposals outlined below, which have emerged from these consultations and from research by the Commission, should be taken into account when designing features of the new access scheme.

Consistency and coordination of access to information schemes

  1. 16.22 Adopted people, their adoptive parents, natural parents, natural relatives and adult children can seek access to information under the Adoption Act from FIND and three approved agencies.25
  2. 16.23 Each of these organisations operates as a ‘relevant authority’ for the purposes of the access to information provisions.26 The relevant authorities assess requests for access, locate the information, obtain it from BDM, courts or other organisations, and provide it to the applicant in accordance with the Adoption Act.
  3. 16.24 In addition, DHHS and every approved agency is required to operate an Adoption Information Service to receive applications for access, provide advice about the access scheme, arrange for counselling, and ‘facilitate the provision of information to a person [on] the Adoption Information Register’.27 The distinction in the Adoption Act between relevant authorities and adoption information services is confusing28 but, in practice, there is no material difference. FIND and the approved agencies which operate as relevant authorities carry out the functions of an adoption information service. The term ‘relevant authority’ is used in this chapter to refer to the body which deals with applications for access to information.
  4. 16.25 The relevant authorities operate independently. FIND functions according to a set of internal guidelines and the approved agencies operate according to their own procedures.
  5. 16.26 The relevant authorities do not have the same powers. The Secretary has information-collection powers (exercised by FIND) that are not available to the other relevant authorities. The Secretary may request the court and any agency, body or person to provide information to the Secretary.29 The other relevant authorities may ask the Registrar of BDM for certain information contained in the BDM Register, but otherwise cannot request information from other approved agencies, bodies or persons. They need FIND (exercising the power of the Secretary) to obtain records from the court for them.30 An approved agency told the Commission that this inability to obtain records direct from the court causes delays in responding to applications.31
  6. 16.27 The Commission was also told in submissions and during consultations that decisions made about access are inconsistent across relevant authorities.32 This is unsurprising. Inconsistencies in decision making and standards of service are inevitable where the Secretary does not have responsibility for the administration of the provisions by approved agencies.
  7. 16.28 The Commission considers that centralising access to information services within DHHS would improve consistency and also address the problems that arise from approved agencies’ lack of information-collection powers. It is not appropriate that approved agencies have the same powers as the Secretary. Powers to require another government agency to provide information should reside with a government body that is directly and permanently accountable for how the powers are exercised, rather than with a non-government agency. This also gives the government agencies supplying information a higher degree of certainty that the information will be handled and protected to a known and consistent standard.
  8. 16.29 Centralisation is also a practical solution. FIND already deals with approximately 90 per cent of applications.33 Although in a centralised system FIND would have the additional task of collecting records from approved agencies, it would be relieved of the task of collecting information from other agencies on behalf of approved agencies.

Recommendation

  1. 74 The new access to information scheme should provide for the Secretary to be solely responsible for the powers and functions that are currently shared among multiple ‘relevant agencies’.

 

Information covered by the scheme

  1. 16.30 Part VI regulates access to ‘information about an adopted person’ contained in:
  • a record of, or in the possession or control of, the Secretary or an agency relating to an adoption negotiated or arranged by the Secretary or an agency
  • a report provided to the court on behalf of the Secretary or a principal officer about a proposed adoption
  • an adopted person’s birth certificate.34
  1. 16.31 In designing a new access to information scheme, it would be useful to review the number and type of records being generated and consider whether there should be different rules for access to any of them, or even exemption from the scheme. For example, the Commission recommends that natural parents considering adoption receive options counselling from an independent counsellor.35 The success of this initiative may depend on the counsellor being able to assure the parents that no one else will have access to any notes of the counselling sessions.
  2. 16.32 ‘Information about an adopted person’ is defined as information about that person or their natural parents or relatives which the relevant authority considers is reasonably likely to be true and does not unreasonably disclose information relating to anyone’s personal affairs.36 There are two problems with this definition:
  • The definition does not refer to information about an adoptive parent, yet there are provisions in Part VI concerning access to information from which the adoptive parents may be identified.37
  • The definition anticipates decisions by a relevant authority about the content of the information and the reasonableness of disclosing it. Information which falls within the definition when one person requests it may not be within the definition if requested by someone else.
  1. 16.33 Schemes in other states and territories define information more clearly. Some specify the information that people may obtain. The Western Australian scheme expressly gives people access to court records38 and the adoptee’s birth registration.39 The New South Wales legislation lists the information and records which people are entitled to receive.40 For adopted people, this includes:
  • birth details (including the time of birth, and child’s weight and length at birth)
  • date on which the person was placed with the adoptive parents
  • copy of the adoption order
  • copy of the instrument of consent and any associated documents relating to the social and medical history of the adopted person provided by a natural parent
  • the reason for a natural parent’s adoption decision, as stated by them or recorded before the adoption was made
  • copies of reports of any medical examinations of the adopted person carried out before the adoption order was made
  • any document certifying particulars of the birth, marriage or death of a natural parent, non-adopted sibling or adopted brother or sister
  • any other document, report, photograph or recording relating to the adopted person that contains information about their origins.41

Recommendation

  1. 75 The definition of the information to which access may be granted under the new access to information scheme should provide a simple yet comprehensive description that does not pre-empt decisions about how to respond to a request for access to it.

 

Eligibility to request information

  1. 16.34 The primary means by which the Adoption Act controls access to information about an adopted person is by specifying who has a right to apply for access. Those who have this right are:
  • adopted people
  • adoptive parents
  • natural parents
  • natural relatives (a brother, sister, uncle, aunt and grandparent)
  • natural adult children of adopted people.
  1. 16.35 Compared with the existing provisions, the Assisted Reproductive Treatment Act 2008 (Vic) (ART Act) provides a clearer and simpler model for setting out eligibility to apply for information.42
  2. 16.36 Those who are eligible to apply for access to information under the Adoption Act may apply to a relevant authority. Other people may seek access to information by applying to the County Court. The application to the Court must include a report from the Secretary or an approved counsellor and the Court may grant access if satisfied there are special circumstances which make access desirable.43
  3. 16.37 Some people proposed that a non-biological child of an adopted person should have the same right to apply for access to information as that available to a natural child.44 While the Commission did not receive enough evidence to reach a concluded view, the proposal warrants consideration when the new scheme is being designed because:
  • the current provision does not take account of the various ways families are formed today. A ‘natural child’ is defined as a son or daughter of an adopted person ‘where the relationship is of the whole blood’.45 This would exclude some children born through assisted reproduction and surrogacy.
  • the current provision could create a situation where, within one family, a natural child could obtain information about their parent’s background through a relevant authority whereas another (non-biological) child would have to apply to the County Court and satisfy a ‘special circumstances’ test to be granted access.
  • the current provision is premised on biological connection being the basis on which access to information should be permitted.46 As an adoption worker observed, information about their parents’ background and their family may be important to the non-biological children of adopted people.47
  1. 16.38 An approved agency submitted that ‘an elderly or ill [natural] parent or adopted person’ should be able to authorise someone else, ‘such as a child, partner or sibling’, to exercise their rights on their behalf.48 While certain relatives would be able to apply for access to information using their own rights under the Adoption Act,49 they do not have the same access to identifying information as adopted people and natural parents.50 A partner or friend would have to apply to the County Court for access to the information.
  2. 16.39 The Commission considers that there should be a simpler way for an adopted person and other eligible people who are unable to make an application to obtain information. They should be able to sign a written authority for another person to be given access in defined circumstances.51 The situations where this can occur should be confined due to the sensitivity of the information, which concerns not just the person providing the authority. For example, it may be appropriate to limit the option to situations where an eligible person is physically unable to make the application themselves.

Recommendation

  1. 76 The new access to information scheme should enable people who are eligible to apply for information under the Adoption Act to authorise another person to apply on their behalf in specified circumstances.

 

Guidelines about information decisions

  1. 16.40 An authority’s response to a request for access to information under the Adoption Act requires assessments to be made of the relevance and sensitivity of the information and the effect on anyone whom it directly or indirectly identifies. Decision makers may reach different conclusions about, for example:
  • whether the information is reasonably likely to be true52
  • whether providing access will unreasonably disclose information about a person’s personal affairs53
  • whether information of a medical or psychiatric nature should be disclosed to a medical practitioner nominated by the applicant, in the interests of protecting the applicant’s physical or mental health or wellbeing54
  • whether the whereabouts of an adopted person or an adopted person’s natural parent or grandparent, brother, sister, uncle or aunt may directly or indirectly be ascertained from the information55
  • the weight given to the wishes expressed by an adopted person under 18.56
  1. 16.41 Comments were made in consultations about how these assessments can lead to inconsistent responses to a request for information. One person who applied for the records relating to her adoption on two separate occasions, years apart, received less information the second time.57
  2. 16.42 A representative of a relevant authority described the interpretation of the term ‘personal affairs’ as a subjective assessment. Decision makers might reach different conclusions about whether a disclosure would be unreasonable.58
  3. 16.43 The Commission considers that clear, publicly accessible guidelines are necessary to guide decisions and promote consistent decision making.59 Guidelines would help applicants as well as the agencies which respond to requests for access. At a minimum, they should provide guidance about any powers or discretions decision makers may have to exercise.60
  4. 16.44 Greater consistency would also be fostered by introducing avenues for internal review and external review by VCAT, discussed below.

Recommendation

  1. 77 The Adoption Act should require the Secretary to develop and publish guidelines on providing access to information under the new access to information scheme.

 

Privacy

Protection of information

  1. 16.45 Part VI includes measures to balance one person’s right to have access to information with another’s right to privacy. In many cases, those who have rights to apply for access and those whose information is protected by various means from unreasonable disclosure, are the same people. The complexity of some provisions increases the difficulty.
  2. 16.46 The Adoption Act protects privacy by:
  • defining ‘information about an adopted person’ in a way that requires the relevant authority to be satisfied that the information does not unreasonably disclose information relating to the ‘personal affairs of a natural parent, a relative or any other person’61
  • prescribing rights of access to different identifying information, depending on whether the applicant is the adopted person and, if not, the nature of the applicant’s relationship to the adopted person62
  • permitting in some cases the disclosure of identifying information only with the agreement or consent of the person concerned63
  • in other cases, allowing for the wishes of the person concerned to be considered when making a decision about disclosing information about them64
  • allowing people to register their wishes about disclosure of information about them and being contacted.65
  1. 16.47 At July 2016, 980 people on the adoption information register had registered a wish that they did not want their personal details disclosed to another person. This represents less than three per cent of the total number of people registered at that time (36,602). More than half of the people who registered this wish were natural parents. Nearly a quarter were people who had been adopted.66

Information about a person’s affairs or from which the person’s identity or whereabouts could be ascertained

  1. 16.48 Concerns were raised with the Commission about the Adoption Act’s requirements that relevant authorities ensure that information released:
  • does not unreasonably disclose the ‘personal affairs’ of a person, and
  • in specific cases, does not disclose information from which, indirectly or directly, the identity and/or whereabouts of a person may be ascertained.
  1. 16.49 The Adoption Act does not specify what ‘information about personal affairs’ includes and the question has not been judicially considered. A similar term is used in the Freedom of Information Act to protect personal information. It states that ‘information relating to the personal affairs of any person’ includes:
  • information ‘that identifies any person or discloses their address or location’
  • information ‘from which any person’s identity, address or location can reasonably be determined’.67
  1. 16.50 References in the Adoption Act to the personal affairs of a person may have been intended to have the same meaning. Alternatively, the definition in the Freedom of Information Act can be seen as another way of describing information from which, indirectly or directly, the identity and/or whereabouts of a person may be ascertained. Perhaps all three terms refer to the same kind of information.
  2. 16.51 Information about a person’s personal affairs has also been seen as capturing a wider amount of information, beyond details of the person’s identity and whereabouts, to include information about their life, activities, interests or other matters. For example, a relevant authority decided that it was unable to grant an adopted person access to information about the assessment of her adoptive parents because it concerned their ‘personal affairs’. The County Court later granted the person access to the information.68
  3. 16.52 In practice, relevant authorities remove (‘redact’) from the documents that applicants are given information which is considered to be about a person’s personal affairs, or from which a person’s identity could be ascertained.
  4. 16.53 VANISH, which runs a specialised, government-funded search service and has assisted many people affected by adoption over 25 years, called for these terms to be agreed and clearly defined in the Adoption Act.69
  5. 16.54 The new access to information provisions should provide clarity and certainty. The current provisions leave too much to interpretation. This creates uncertainty, which can cause disputes. There is scope for disagreement between applicants and agencies and between agencies. Lack of clarity can also lead to inconsistent decision making. Decision makers may interpret and apply the law differently, particularly when they have to make subjective assessments.70
  6. 16.55 The new access to information provisions should aim to increase consistency in decision making. As discussed above, this could be improved if all decision makers followed the same guidelines. A more significant step would be to replace the different terms relating to personal information with a single term. To protect the privacy of information to different degrees in different circumstances, it would be better to introduce rules that apply to the circumstances rather than relying on fine distinctions between how the information that is to be protected is described.
  7. 16.56 DHHS is required to comply with the Freedom of Information Act and information privacy legislation in other contexts, and has years of experience in interpreting and applying them. The Commission has considered whether there is value in using terms and definitions in this legislation in the new access to information scheme. There is a question whether the benefits of this would outweigh the cost, disruption to services and risk of inadvertently undermining existing access and privacy rights. This evaluation should be made as part of designing the new scheme.

Recommendation

  1. 78 The new access to information scheme should describe more clearly the information that may be released under the Adoption Act, and the circumstances in which it may be released.

 

Notification

  1. 16.57 A clear theme of information privacy legislation is that privacy is not the same as secrecy. The principles with which organisations must comply under privacy legislation require openness with the person concerned about the information they handle. Importantly, the person concerned should be made aware of what information the organisation holds, and the purposes for which it may be used and disclosed.
  2. 16.58 VANISH proposed that people should be notified when information about them is going to be released under the Adoption Act.71 Ordinarily, people are notified if a relevant authority needs their agreement or consent to disclose the information, or is acting as an intermediary for someone who is seeking contact with a family member. Consent may be given subject to conditions.
  3. 16.59 The Adoption Act provides for only one circumstance where a person must be notified about a disclosure for which their agreement or consent is not required: an adopted person must be notified if their adult child seeks information about the adopted person’s natural parent (the applicant’s grandparent).72 The adopted person’s natural parent need not be notified, and nor is their consent required. ARMS (Vic) submitted that:

Natural parents should be notified if the adult child of an adopted person is seeking to receive identifying information about them and it needs to be monitored very carefully.73

  1. 16.60 Introducing a more general obligation to notify would be consistent with a requirement placed on the Registrar of BDM by the ART Act, which provides that:

If the Registrar intends to disclose identifying information under this Division, the Registrar must make all reasonable efforts to give notice of the intended disclosure to the person to whom the information relates.74

  1. 16.61 It is likely that DHHS and approved agencies hold a great deal of personal information about people who are unaware that the records exist or what they contain. Where their consent or agreement is required, they are made aware of the request for access and the information that could be disclosed. Where the information may be disclosed without their consent, it would be fair and in accordance with good privacy practice to notify them of the disclosure and enable them to see what has been disclosed.
  2. 16.62 A further courtesy and privacy-sensitive step would be to give them time to correct the information or add their comments to the information if they consider it wrong or misleading, before it is given to the person who requested access to it. This would be consistent with the requirements of the Freedom of Information Act, the Information Privacy Principles and Health Privacy Principles.75 As recommended below, if the material may cause distress to the person, the Secretary should be required to advise them and offer counselling.

Recommendation

  1. 79 When providing access to information under the Adoption Act which does not require the consent of the person to whom the information relates, the Secretary should be required to:
  2. a. make all reasonable efforts to give notice of the intended disclosure to the person to whom the information relates and
  3. b. where practicable, give the person a reasonable opportunity before the information is disclosed to correct or add comments to any of the information that is inaccurate, incomplete, out of date or would give a misleading impression.

 

Power to disclose information to applicant

  1. 16.63 Part VI specifies when a relevant authority can disclose information to an applicant.
  2. 16.64 In some cases, the relevant authority cannot release identifying information about a person unless they have given written consent.76 In other situations, a person’s consent is not required. Adults who were adopted and their natural parents can obtain identifying information about each other without the consent of the other party.77
  3. 16.65 Other conditions may apply, depending on the type of application. In some cases, release of information is at a decision maker’s discretion.78
  4. 16.66 The particular issues raised in submissions and consultations are discussed below.

 

Access by adopted children

  1. 16.67 A relevant authority cannot disclose any information to an adopted child under 18 who applies for access, unless their adoptive parents agreed to the making of the application.79
  2. 16.68 VANISH and ARMS (Vic) submitted that adoptive parents’ agreement should not be required and children should be entitled to information in the ‘open adoption era’.80
  3. 16.69 The current provision is inconsistent with the right of donor-conceived children to apply to the Registrar of BDM and receive information about the donor under the ART Act.81 The Registrar must disclose identifying information to the child if:
  • their parent or guardian consented to the making of the application or
  • a counsellor provided counselling to the child and assessed the child as ‘sufficiently mature to understand the consequences of the disclosure’.82
  1. 16.70 These limitations do not apply to applications for non-identifying information: the Registrar must disclose non-identifying information to the child.83
  2. 16.71 The ART Act was enacted following a report by this Commission, which stated:

The commission believes that children who want to obtain information about donors, whether identifying or non-identifying, should be able to access that information without the need for the consent or assistance of their parents. Many children become particularly curious about donors and other issues concerning their identity in their early teenage years.

We recommend that a child be able to apply for information about a donor at any age, but that the release of the information should remain subject to an assessment by a counsellor that the child has sufficient maturity to understand the nature of the information and the possible consequences of making contact with the donor.84

  1. 16.72 The Commission’s conclusion was informed by advice from John Tobin, a law professor at the University of Melbourne, that making a child’s access to information conditional on their parents’ consent is:
  • ‘incompatible’ with the child’s right to ‘receive information identifying his or her biological parents’ under article 7 of the United Nations Convention on the Rights of the Child (CRC)
  • ‘an unnecessary obstacle for a child with sufficient maturity to secure the realisation of his or her right to obtain identifying information’.85
  1. 16.73 The situations of adopted and donor-conceived children are analogous.86 Adopted children should have the same right to apply for and receive information under the Adoption Act as donor-conceived children have under the ART Act. This would uphold children’s rights to equality under the Charter87 and their right to know their natural parents under article 7 of the CRC.88

 

 

Recommendation

  1. 80 The new access to information scheme should enable an adopted child under 18 years of age to receive, on application:
  2. a. non-identifying information about their natural parents without needing the agreement of their adoptive parents
  3. b. information disclosing the identity of their natural parents, either:
  4. i. with their adoptive parents’ agreement, or
  5. ii. after receiving counselling from a counsellor who assesses the child as sufficiently mature to understand the consequences of the disclosure.

 

Access by the parties to the adoption where the child is under 18

  1. 16.74 A further limitation on adopted children’s access to information is that a relevant authority cannot disclose information that may identify the natural parents to an adopted child, or to their adoptive parents, unless the authority obtains written consent from the natural parent.89
  2. 16.75 These provisions are relevant where the adopted child and adoptive parents do not have contact with the natural parents and do not know their full names. This still occurs under open adoption, as an adoptive mother told the Commission:

[An] anomaly in the system is that the birth parents and adoptive parents are only given each other’s first names and do not exchange addresses (although obviously over time that is likely to change if there is ongoing contact).

For example in our case we have two first names and a mobile number which no longer works. We have no way to have contact with our child’s birth parents even though he wants to see them and we would like to have regular contact. We have kept our details up to date with DHHS and write them a letter annually which gets placed on the file, but with a bit more information we could possibly continue contact.90

  1. 16.76 Adopted children and adoptive parents who apply to relevant authorities for access to information about the natural parents generally only receive non-identifying information. FIND responded to four applications from adopted children and 67 applications from adoptive parents between July 2009 and July 2013.91
  2. 16.77 The current scheme operates inconsistently with the child’s right to know the identity of their natural parents under article 7 of the CRC and does not meet their need for this information. As Patricia Harper submitted:

research has amply demonstrated the importance to a child—and particularly to the development of their sense of self identity—of having information about and contact with their parents, siblings, grandparents and extended family members.92

  1. 16.78 Access to this information is particularly important during adolescence.93 In 2014–15, three people aged 18–19 and seven people aged 20–24 applied for identifying information,94 demonstrating their need for the information as they entered adulthood.
  2. 16.79 A major theme of this report is that greater openness is needed in Victorian adoptions.95 The Commission considers that children who are adopted in future and those who have been adopted and are still under 18 need easier access to identifying information about their natural parents. This need outweighs the interests of natural parents who wish to continue to keep their identities private.
  3. 16.80 In Chapter 6, the Commission recommends that integrated birth certificates showing the names of both the adoptive parents and natural parents be introduced in Victoria.96 It further recommends that the certificates be available to adopted children on the terms proposed in Recommendation 80 above.97 This means that, if the recommendations are implemented, the natural parents’ identities will be disclosed to the child and the adoptive parents.98 Corresponding changes should be made to the access to information scheme.
  4. 16.81 The Commission sees no reason why, in future adoptions, the original birth certificate should not be provided to the adoptive family when the adoption order is made. As well as upholding children’s rights under article 7 of the CRC, this may encourage open adoption arrangements between the adoptive family and natural parents.
  5. 16.82 Children who have been adopted under the Adoption Act are not entitled to have access to their original birth certificate until they turn 18.99 This age restriction should be removed, consistently with Recommendation 80.
  6. 16.83 Adoptive parents should be able to obtain a copy of the original birth certificate, on their child’s behalf while the child is under 18, to enable them to support their child to understand their origins and identity.100 In 2010, adoptive parents in New South Wales were given access to their child’s original birth certificate to ‘enable adopted children to have an accurate picture of their identity from an early age’.101
  7. 16.84 Natural parents’ access to information about the identities of the adoptive parents and whereabouts of the adopted child is currently subject to the adoptive parents’ consent.102 A relevant authority must also consider the wishes of the child and may withhold any information to give effect to them.103
  8. 16.85 VANISH submitted that:

mothers and fathers (if living) should have access to information about their child, unless there are exceptional circumstances as to why this should not be the case (e.g. it is deemed unsafe to do so).104

  1. 16.86 The Commission considers that natural parents are entitled to know the names of the adopted child and adoptive parents. It is not appropriate that adoptive parents control the disclosure of this information. Their consent should not be required if a natural parent seeks information that identifies or may identify the adopted child or adoptive parents. In accordance with Recommendation 79 above relating to notification, the Secretary should make all reasonable efforts to notify the adoptive parents before the information is released to the natural parent.
  2. 16.87 In addition, consistently with the recommendations made in Chapter 3, the child should have the opportunity to express their views about the disclosure of the information. The Secretary should seek the child’s views before the information is disclosed and convey those views to the natural parent.
  3. 16.88 The Commission recognises that information about a person’s identity can enable a person to discover their whereabouts. The privacy protections in the new scheme should ensure that the Secretary has the power not to disclose information that identifies or may identify the adopted person or adoptive parents to a natural parent or anyone else where this may give rise to a risk to the safety or wellbeing of the adopted person or adoptive family.

Recommendations

  1. 81 The Adoption Act should provide that, after an adoption order is made, a copy of the child’s original birth certificate is issued to the adoptive parents.
  2. 82 The new access to information scheme should enable:
  3. a. adopted children to obtain the child’s original birth certificate and other information which identifies or may identify the natural parents without the natural parents’ consent
  4. b. adoptive parents to obtain the child’s original birth certificate (consistently with the BDM access policy) and other information which identifies or may identify the natural parents without the natural parents’ consent
  5. c. natural parents to obtain information which identifies or may identify the adopted child and adoptive parents without the adoptive parents’ consent. Before disclosing the information to the natural parent, the Secretary should seek the child’s views and communicate them to the natural parent.

 

Access by natural relatives

  1. 16.89 While the Adoption Act recognises that natural grandparents, siblings, uncles and aunts have needs for information about their adopted relative, it only permits identifying information to be disclosed to them in limited circumstances. A relevant authority cannot disclose information revealing the identity of the adoptive parents or whereabouts of the adopted child unless it has obtained written consent from the adoptive parents, considered the child’s wishes, and satisfied itself that circumstances exist which make the disclosure desirable. If the adopted person is an adult, the relevant authority must obtain their written consent and be satisfied that circumstances exist which make the disclosure desirable.105
  2. 16.90 These limitations mean that, in practice, natural relatives generally only receive non-identifying information about an adopted person. Comments were made that grandparents and other relatives should have greater access to information.106
  3. 16.91 The current provision does not appear to meet the needs of natural relatives. Approximately 3300 natural relatives are registered on Victoria’s adoption information register.107 Between July 2009 and July 2013, FIND received 680 applications for non-identifying information from natural relatives.108 It is likely that many applicants were seeking identifying information and perhaps contact with the adopted person. VANISH told the Commission:

There are many reasons why a natural relative might want information and/or to contact an adopted person or a natural parent. ‘Just wanting to know’ is the most common reason cited, but there are also more practical reasons—such as disclosing life threatening medical information, or the applicant … would like to find the adopted person (ie their sibling, grandchild or nephew/niece).109

  1. 16.92 As discussed in Chapter 4, siblings have a particular need for contact with and information about each other.
  2. 16.93 The Commission considers the current provision is unduly restrictive. Natural relatives’ access to identifying information about an adopted relative should be made easier, to reflect their needs for the information, especially those of grandparents and siblings, and also to enable adopted people to have contact with their family of origin.
  3. 16.94 The requirement that a relevant authority must be satisfied that the circumstances justify disclosure of identifying information to a natural relative is unnecessary and should be removed.
  4. 16.95 The Commission considered whether consent requirements should be retained. VANISH submitted that it is important that the consent of both the adopted person and natural parent be sought. It told the Commission about situations, ‘in both closed adoption and open adoption’, where an adopted person and natural parent have become ‘isolated and disconnected from each other’ because ‘well-meaning relatives’ have made contact with the adopted person against the natural parent’s wishes.110
  5. 16.96 Another view was that a grandparent should have access to information about the adopted person on the same terms as those which apply to an adopted person’s access to information about the grandparent.111 An adopted person who is 18 years old or over can receive identifying information about a natural relative without their consent.112
  6. 16.97 The Commission is not in a position to reach a conclusion, because it did not receive any evidence from adopted people on this question. It should be considered in the design of the new scheme. The Commission notes that the records of an adoption concern the adopted person and natural parent foremost. There is a question whether natural relatives should be entitled to all of this information, as opposed to information that simply identifies the adopted person. VANISH proposed that natural relatives should have differing levels of access to information, according to their connection to the adopted person. It proposed that the Adoption Act specify a ‘hierarchy of rights’, whereby the natural relatives most closely affected by the adoption—grandparents and siblings—have greater access to information than other relatives, such as uncles and aunts.113 A model like this may be appropriate. The degree of access and specific information that should be available to applicants under the new access to information scheme should be reviewed and decided in the design of the scheme.
  7. 16.98 The Commission considers that the conditions which currently apply to applications where a child is under 18 are appropriate. Currently, a relevant authority cannot release identifying information to a natural relative unless it has obtained written consent from the adoptive parents and considered any wishes expressed by the child. In this situation, the consent requirement appropriately respects the privacy of the adoptive family. As discussed above, the child should have the opportunity to express their views on the natural relative’s application for the information (regardless of the whether the adoptive parents give their consent to disclosure of the information). The Secretary should seek the child’s views before any information is disclosed and convey their views to the natural relative.

Recommendation

  1. 83 The new access to information scheme should provide natural relatives with easier access to information that discloses the identity of an adopted person who is 18 or older, including by removing the current requirement that a relevant authority must be satisfied that circumstances exist which make disclosure of the information desirable.

 

Access to medical information

  1. 16.99 One reason some adopted people seek information under the Adoption Act is to obtain information about their family medical history.
  2. 16.100 A relevant authority can provide medical information that is contained in the records relating to the adoption.114 Typically, information in the records includes information about the adopted person’s birth (such as weight, delivery and time) and about natural parents’ medical conditions.115 FIND informed the Commission that information about conditions or events which may have a genetic component, such as mental illness or miscarriages, is provided to adopted people.116
  3. 16.101 Unless an adopted person is in contact with their natural parents or natural relatives, they may not have any way of obtaining additional or up-to-date family medical history information. Generally, a person’s medical information cannot be disclosed to anyone else without their consent or authorisation.117
  4. 16.102 One person proposed that FIND might be able to help an adopted person obtain medical history information, particularly where a natural parent does not want to have contact with the adopted person.118 He suggested that FIND might contact the natural parent to ask for the information and pass it on to the adopted person. Similar mechanisms are available in other states.119
  5. 16.103 The approach taken in Queensland provides a useful model for facilitating access to information to adopted people, natural parents and natural relatives. In Queensland, the chief executive may:
  • contact a natural parent of an adopted person to obtain information about their medical history or a natural relative’s medical history
  • disclose to an adopted person information about the medical history of a natural parent or natural relative
  • disclose to a natural parent or natural relative information about the adopted person’s medical history that relates to a condition that may have been inherited from a natural relative.120
  1. 16.104 A person contacted is not required to give the information requested.121 The chief executive can only disclose identifying information if:
  • the Act permits the chief executive to give the identifying information and the person who provided the information has not asked the chief executive not to disclose the information, or
  • the chief executive is satisfied there is an unacceptable risk that a person’s health may be significantly adversely affected if the information is not given or there are other exceptional circumstances in which the disclosure is justified.122
  1. 16.105 At the request of a person who is an adopted person, natural parent or other relative of an adopted person, the chief executive may give the information to a medical practitioner nominated by the person instead of giving it directly to the person.123

Recommendation

  1. 84 The new access to information scheme should provide a means by which the Secretary may facilitate the exchange of non-identifying medical information between adopted people and their natural parents and natural relatives.

 

Access to information about unnamed fathers

  1. 16.106 A common problem in adoptions made before 1984 is that fathers were not identified and therefore not named on children’s birth certificates.124 Consequently, many adopted people, including some who consulted with the Commission, do not know their fathers’ names.125 This problem still occurs.126
  2. 16.107 Under the Adoption Act, an adopted person may apply to a relevant authority for access to information about their natural parents. A ‘natural parent’ is a person named as a parent in the birth registration entry relating to the adopted person.127 The Adoption Act specifies when a man not named in the birth registration entry is recognised as an adopted person’s father.128
  3. 16.108 If the adoption records contain information about a man who may be the adopted person’s father but does not meet the definition of ‘natural parent’, the relevant authority may not be able to disclose the information to the adopted person.
  4. 16.109 Recent amendments to the Queensland Adoption Act 2009 (Qld) enable an adopted person to receive information in the records about a man who may be the person’s father but does not meet the Act’s definition.129 The chief executive must give the person any information held by the chief executive about the man’s identity, with a notice stating that the identity of the person’s natural father is not confirmed. The chief executive may include reasons if appropriate.
  5. 16.110 The Commission considers a measure like this may help some adopted people to trace their fathers.

 

Recommendation

  1. 85 The new access to information scheme should enable the Secretary to give to an adopted person, on request, information contained in the records relating to the adoption concerning the identity of a man who may be the person’s natural father but does not meet the definition of ‘natural parent’ currently set out in section 82 of the Adoption Act. The Secretary should be required to give the person a notice stating that the identity of the person’s natural father is not confirmed and, if appropriate in the circumstances, the reasons why the information is not confirmed.

 

Counselling

  1. 16.111 Access to information under Part VI is generally available only if the applicant has attended an interview with an approved counsellor.130
  2. 16.112 In practice, the counsellor explains the rights of access under the Adoption Act and how people can be affected by learning information about an adoption.
  3. 16.113 Different views about the requirement to attend an interview were expressed in consultations and submissions. Although the provision applies to anyone who applies for access, the comments received concerned the effects of the requirement on an adopted person.
  4. 16.114 VANISH told the Commission:

… many adopted people report the application and release of information processes to be disempowering; they report feeling vulnerable and upset that they are not considered ‘fit’ or ‘responsible’ enough to receive their records without the mandatory interview.131

  1. 16.115 VANISH submitted that the interview should be optional.132 Another person submitted that adopted people ‘should not have to undergo a counselling interview’ but rather should be provided with their records without delay.133
  2. 16.116 Other views were more positive. An adopted person described how information can affect people and that there can be a need for continuing support:

Parties to the release of adoption information should be offered free, on-going counselling as this process can be very traumatic. The impact of the release of information may not be obvious for many years. Changes in circumstances for an adoptee (such as having your own children) can trigger on-going mental health problems related to their own unresolved adoption issues.134

  1. 16.117 Relevant authorities told the Commission that the interviews are valuable.135 Connections UnitingCare submitted that the interview is necessary ‘for the individual to gain an understanding [of] the social, historical and political context of records’.136
  2. 16.118 It is apparent that the key issue is not whether an interview may be useful, but that it is mandatory.
  3. 16.119 The Commission considers that the interview should be available to all applicants but it should not be mandatory. It is reasonable to expect that whether an applicant will understand the information and how well they will cope with learning the details it contains, will depend upon their individual circumstances and the type and content of the information.
  4. 16.120 An applicant who has not seen the information may not realise that they will need help in understanding and coming to terms with what the information reveals. The information and opinions expressed in the records, particularly those created when the adoption process was shrouded in secrecy, can be harsh, unfair, inaccurate and hurtful.137 Even merely factual material that is expressed accurately and without judgment can be distressing to learn if unexpected. For this reason, the Commission does not consider it would be prudent to remove the requirement without placing an obligation on the Secretary to alert the applicant where, given the content of the information, there is a risk to the applicant’s health and wellbeing upon being given access to it.138 This might include situations where the information indicates that:
  • an adopted person was conceived as a result of incest or a sexual assault of his or her natural mother
  • an adopted person has an hereditary condition seriously affecting the current, or which could seriously affect the future, physical or mental health of the adopted person or any descendant of the adopted person.139

Recommendation

  1. 86 The current requirement for an applicant for access to information to be interviewed by an approved counsellor in section 87 of the Adoption Act should be replaced with an obligation on the Secretary to:
  2. a. offer applicants counselling before providing them with access to information
  3. b. advise an applicant if the information could reasonably be expected to be distressing to the applicant.

 

Review of decisions

  1. 16.121 As discussed at the beginning of the chapter, the modernisation of the access to information scheme provides an opportunity to introduce features that can ensure that:
  • the scheme contains transparent information management processes
  • decision makers are accountable for how they respond to requests for access to adoption information.
  1. 16.122 These features should include the establishment of avenues for the internal and
    external review of decisions about those requests. No such avenues are provided by the Adoption Act.

Internal review

  1. 16.123 An internal review mechanism provides an inexpensive means for an applicant to have a decision reviewed. It can also be a quality assurance measure. It may identify the need to provide more training, guidance or resources or to take other action to improve the consistency of decisions made and the efficiency with which access requests are handled. An internal review would be a prerequisite to seeking external review.
  2. 16.124 There are many examples of internal review procedures in Victorian government administration. DHHS already has them in place for the review of its decisions under the Freedom of Information Act and other legislation. The Commission has not formed a view about the process that should apply to review of decisions about access to information under the Adoption Act, as it considers that this is a matter to be addressed in the design of the new access to information scheme.

External review

  1. 16.125 A person whose request for access to information is declined either because the necessary agreement or consent by a person to whom the information relates was not obtained, or because they are not entitled to obtain the information under the Act, may apply to the County Court for an order permitting access.140 In these cases, the Court may permit the information to be released if ‘it is in the best interests of the applicant that the information be given’ and ‘special circumstances exist which make it desirable’ to release the information.141
  2. 16.126 This procedure is not expressly a means for reviewing the relevant authority’s decision but does enable the applicant to challenge the result. The Commission is aware of only one application being made to the County Court, and it resulted in the applicant being granted access. This cannot be seen as a measure of the level of applicants’ satisfaction with information decisions. Going to court is a formal, intimidating and expensive experience.
  3. 16.127 A more accessible and less costly alternative should be available. In some states and territories, decisions about access to adoption information can be reviewed externally by administrative tribunals, after being reviewed internally by government decision makers.142
  4. 16.128 VCAT is the appropriate external review body in Victoria because it:
  • currently has power to review decisions about the assessment of people applying for approval to adopt143
  • has expertise in matters concerning release of information, through reviews of decisions under the Freedom of Information Act.144

Recommendation

  1. 87 Decisions of the Secretary under the new access to information scheme relating to the disclosure of information should be subject to internal review within the Department of Health and Human Services and external review by the Victorian Civil and Administrative Tribunal.

 

The adoption information register

  1. 16.129 The Adoption Act requires DHHS and each approved agency to keep an Adoption Information Register.145 People who are entitled to apply for information under the Adoption Act are able to ask for their name, contact details and preferences about exchanging information with anyone else on the register, either currently or in the future, to be recorded in it.
  2. 16.130 Name and address information on the register must not be disclosed without the person’s consent, unless disclosure is otherwise authorised by the Act.146 This means that if someone has a right to obtain the information without the consent of the person concerned, it will prevail over any wishes by that person that the information be kept confidential.
  3. 16.131 The Commission did not receive any information from the community about the effectiveness of the register.
  4. 16.132 In practice, the register does not operate as conveyed by the relevant provisions of the Adoption Act:
  • The information recorded on the register is more detailed and, if the person wishes, may also contain health and education details and information about the circumstances surrounding the adoption.147
  • Information about people applying for access to information is routinely entered into the register by FIND rather than only on application.148
  • The information is cross-matched and verified against electoral records (excluding silent electors), on an ad hoc basis at FIND’s request.149
  • Information is included about people who are not eligible to apply for information under the Adoption Act but who would like to provide information in case of future registration by an adopted person.150
  1. 16.133 Currently, the purpose of the register is not clear, particularly its relevance to the decisions being made about providing access to information. If the register were being established today, in accordance with the requirements of contemporary legislation regarding the management of personal information, the relevant statutory provisions would specify:
  • why it was established
  • what the information may be used and disclosed for
  • to whom the information is normally disclosed
  • how those on the register can correct or remove the information if they wish.
  1. 16.134 The Commission considers that the new access to information scheme should specify the purpose of the register and provide accurate and complete details of its operation. These details would include, for example:
  • the scope of information it may contain
  • who may apply to have their details recorded
  • the discretion (if any) of the Secretary to include additional information or expand the eligibility criteria for those who may apply to be on the register.
  1. 16.135 VANISH told the Commission that agencies should be required to convey the wishes a person registers about disclosure of information and receiving contact from the person who is seeking information.151 The Adoption Act does not require this but the Commission understands it ordinarily happens in practice.
  2. 16.136 The Commission considers that the Adoption Act should expressly require the Secretary to convey a person’s registered wishes. This would formalise existing practice, reflect what was intended when the legislation was introduced,152 provide clarity and give a person assurance that their wishes will be passed on to the other party, even though it may not prevent the release of information.

Recommendation

  1. 88 The provisions in the new access to information scheme concerning the Adoption Information Register should:
  2. a. specify the purpose of the register
  3. b. provide accurate and complete details of its operation
  4. c. require the Secretary to convey to a person who has requested access to information about a person whose details are on the register, the registered person’s wishes about the disclosure of information and being contacted.

 

Power to collect ‘current information’ from BDM

  1. 16.137 As well as facilitating access to information in adoption records, FIND helps people to locate and make contact with family members.153 It has facilitated contact between people in nearly 12,500 cases.154 This role is not required by or clearly reflected in the Adoption Act.
  2. 16.138 The Commission was told that access to ‘current information’ in the BDM register is often needed to find family members who have changed their name, for example after marrying.155 Comments were made that it is unclear whether BDM can provide this information to a relevant authority.156
  3. 16.139 As discussed above, the Secretary may request any agency, body or person to provide information to the Secretary, where the information to which an application relates is not contained in records in the possession or under the control of the Secretary.157 An agency, body or person must comply with a request from the Secretary ‘so far as [they are] able to do so’.158
  4. 16.140 The Adoption Act makes clear that the Secretary’s power to collect information includes the power to ask the Registrar of BDM for any information contained in the BDM Register about the natural parents or natural relatives, if requested by the adopted person.159
    It is silent about other types of application, but the Secretary’s broad information-collection power may include the power to ask the Registrar for any information in the BDM Register about the adopted person, if requested by a natural parent.
  5. 16.141 It is important that the Secretary’s power to collect information from the BDM Register and the Registrar’s obligations in response to a request from the Secretary are clearly defined, because the Registrar is subject to obligations under the Births, Deaths and Marriages Registration Act 1996 (Vic) (BDMR Act) and other legislation. When providing information from the BDM Register, the Registrar must ‘as far as practicable’ protect the person to whom the information relates from ‘unjustified intrusion on their privacy’.160
  6. 16.142 Access to other people’s birth and marriage certificates was a contentious issue in consultations. A relevant authority stated that the information is necessary for it to be able to perform the authority’s functions properly.161 VANISH told the Commission that natural parents cannot obtain the current information they need ‘to locate their son or daughter’.162 Independent Regional Mothers Combined submitted:

it must always be part of our law—that no person can obtain copies of another person’s birth and marriage certificates WITHOUT THE PERMISSION of the person’s name appearing on the certificate (this does not include original birth certificate of son/daughter as equality exists as both mother and son/daughter can obtain a copy of this certificate).163

  1. 16.143 Under the Registrar’s Access Policy,164 provided the Registrar is satisfied that the person has an adequate reason for wanting the access:165
  • a person may be given access to another person’s birth, change of name or marriage certificate with their written authority166
  • a person’s child may have access to their parent’s birth, marriage or death certificate in specified circumstances.167
  1. 16.144 The issue of access to people’s birth, marriage and change of name certificates highlights the tension between the benefits of providing personal information to people affected by adoption and the privacy principles reflected in the BDMR Act and Access Policy. The issue is complex and concerns the Registrar of BDM, the Secretary of DHHS and the Privacy and Data Protection Commissioner. This tension should be resolved in the design of the new access to information scheme in a way that balances privacy principles with the needs of people affected by adoption.168
  2. 16.145 Comments were also made to the Commission that adopted people should be able to obtain their original birth certificate direct from BDM, rather than through a relevant authority.169 It is appropriate that this proposal be considered in the design of the new scheme.

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