9. Discrimination and equal opportunity
9.1 The terms of reference asked the Commission to examine matters affecting applicants for adoption, including:
• eligibility requirements relating to applicants’ ‘relationship status’ and ‘living arrangements’
• whether legislative practice and procedural requirements for assessment are clearly articulated in the Adoption Act 1984 (Vic) and Adoption Regulations 2008 (Vic).
9.2 Applicants must satisfy various requirements to be able to adopt a child. Some are set out in the Adoption Act, some are contained in the Adoption Regulations, others exist in policy.
9.3 When the court is deciding whether to make an adoption order, it must be satisfied that:
• the applicants are eligible to adopt a child under the Adoption Act
• the applicants are suitable, according to criteria in the Adoption Regulations
• the Secretary or principal officer of an approved agency has considered the natural parents’ wishes about the adoptive parents’ religion, race and ethnic background and having contact with, and receiving information about, the child after the adoption.
9.4 Couples in specified relationships are eligible to adopt if they have been in their particular relationship (or a combination of the specified relationships) for at least two years. Couples in ‘domestic relationships’ must live together. A sole person is permitted to adopt a child in special circumstances. A step-parent or relative of a child must meet stringent requirements. Eligibility is examined in Chapter 10.
9.5 The Department of Health and Human Services (DHHS) and approved agencies assess applicants’ suitability and provide reports to the court. The suitability criteria include factors such as a person’s health, age, character, life experience and financial circumstances. The criteria and other aspects of assessment are examined in Chapter 11.
9.6 Applicants assessed as suitable are placed on a register of approved people. The Secretary or principal officer selects people from the register to adopt a child, taking into account wishes expressed by the child’s parents. The selection process is examined in Chapter 12.
9.7 This chapter discusses:
• the nature and limits of applicants’ entitlements under the Adoption Act
• applicants’ entitlements under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and Equal Opportunity Act 2010 (Vic)
• discrimination in the adoption process to protect children’s best interests.
Applicants’ entitlements under the Adoption Act
9.8 Two fundamental principles of adoption law and policy are:
• Adoption is a service for children in need of a family, not for adults wanting a child.
• No person has a right to adopt a child.
9.9 The Adoption Act gives certain people entitlement to:
• apply to DHHS or an approved agency for approval to adopt
• be assessed for approval according to the suitability criteria
• obtain approval if they are assessed as suitable (or to have an adverse decision reviewed)
• be placed on the register of approved people if they obtain approval, enabling them to be considered for selection to adopt a child
• remain on the register while they continue to be eligible and suitable applicants.
9.10 There is no guarantee that an applicant on the register will be selected to adopt a child. Whether an applicant is considered and chosen depends on the child’s needs, the parent or parents’ wishes and the applicants’ characteristics. The decision is often made with the involvement of the child’s parent or parents, who have the opportunity to select their preferred family.
Applicants’ entitlements under the Charter and Equal
9.11 The Charter protects and promotes human rights in Victoria. It sets out 20 human rights, including the right of every person to ‘equality before the law’. This includes ‘the right to equal and effective protection against discrimination’.
9.12 The Equal Opportunity Act supports the Charter right to equality. Its objectives include eliminating discrimination in Victoria ‘to the greatest possible extent’ and promoting and protecting the Charter right to equality. The Act prohibits discrimination based on particular attributes, including age, gender identity, disability, marital status, physical features, race, religious belief or activity and sexual orientation. Discrimination is prohibited in certain fields of activity, such as employment, education, accommodation and the provision of goods and services. ‘Services’ appears to include adoption services.
9.13 The Commission was asked to make recommendations to:
• ‘uphold principles set out in the [Charter]’
• ensure that the Adoption Act and Adoption Regulations operate harmoniously with other Victorian laws including the Charter and Equal Opportunity Act.
9.14 Adoption laws, policies and practices are inherently discriminatory, in the ordinary sense of the word. Only certain people are able to adopt a child, based on their relationship status. Their suitability to adopt is judged on their age, physical and mental health, financial circumstances and other personal characteristics. Selection decisions are based on these factors, as well the applicant’s religion, race and ethnic background. A child is often adopted by the family that the child’s parent or parents choose based on their own personal preferences. On its face, adoption laws, policies and practices conflict with the principle of non-discrimination contained in the Charter and Equal Opportunity Act.
9.15 However, not all discrimination is unlawful. It is unlawful to treat a person unfavourably based on their personal characteristics if this breaches the Equal Opportunity Act (or other anti-discrimination laws). Not all discriminatory conduct breaches these laws. Exceptions and exemptions permit discrimination in certain circumstances. A person is allowed to discriminate where this is authorised by another law or necessary to comply with another law. The provisions in the Adoption Act relating to the eligibility, assessment and selection of applicants appear to authorise or require discrimination.
9.16 Likewise, the law may impose reasonable limits on Charter rights. Sometimes discrimination is justified and necessary, for example to protect the best interests of children. All children have rights under the Charter ‘without discrimination, to such protection as is in [the child’s] best interests and is needed by [the child] by reason of being a child’.
Discrimination in the adoption process
9.17 The overriding principle in adoption law is that children’s best interests are the paramount consideration. In the terms of reference the Commission was required to give effect to this principle in its recommendations. The rights of each child to a safe, stable, family environment in which they maintain their connection with their original family may in some circumstances outweigh the right of people who want to adopt to equal consideration.
9.18 Victoria’s adoption laws, policies and practices are intended to protect the best interests of children by ensuring that they are adopted by the people who are best able to meet their needs. In Chapters 10 to 13, the Commission examines whether discriminatory requirements and practices remain appropriate and necessary to ensure that children’s best interests are protected.
9.19 Chapter 10 examines whether discrimination in the eligibility criteria should be removed, in light of contemporary understanding and law relating to family and the best interests of the child.
9.20 Chapter 11 discusses people’s concerns about discriminatory effects of suitability criteria, particularly criteria relating to health and age.
9.21 Chapter 12 considers whether children’s best interests justify discrimination in the process of selecting adoptive parents for a child.
9.22 Chapter 13 examines an exception in the Equal Opportunity Act which permits a religious body to discriminate against a person based on their marital status, sexual orientation or gender identity (and other attributes), where the action conforms with the body’s religious ‘doctrines, beliefs or principles’. This exception may allow faith-based approved agencies to refuse to provide adoption services to LGBTI applicants. Chapter 13 considers whether this is harmonious with the recent amendments to the Adoption Act which enable LGBTI people to adopt.
Adoption Act 1984 (Vic) ss 10A, 11, 12.
Ibid ss 13, 15(1)(a); Adoption Regulations 2008 (Vic) regs 35, 37.
Adoption Act 1984 (Vic) ss 15(1)(b)–(c).
Ibid s 11(1).
Ibid ss 4 (definition of ‘domestic relationship’), 11(1)(c).
Ibid s 11(3).
Ibid ss 11(5)–(7), 12.
Ibid ss 13, 15.
Adoption Regulations 2008 (Vic) reg 35.
Adoption Act 1984 (Vic) s 13A.
Ibid ss 15(1)(b)–(c).
Ibid s 32; Adoption Act 2000 (NSW) s 8(1)(b); Adoption Act 1994 (WA) s 3(1); New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 207–8; Adoption Legislative Review Committee, Parliament of Western Australia, Review of the Adoption Act 1994 (2007) 39; Adoption Legislative Review Committee, Family and Children’s Services, Western Australia, Final Report: A New Approach to Adoption (1991) 17, 149. See also Chapter 2 and Recommendation 2.
Adoption Act 2000 (NSW) s 8(1)(c). See also Chapter 2 and Recommendation 4.
Adoption Act 1984 (Vic) ss 13, 20A.
The Secretary or principal officer must not refuse, or defer the making of a decision on, an application unless the applicant is given written notification of the reasons and reasonable opportunity to be heard: Adoption Act 1984 (Vic) s 13(5).
Adoption Act 1984 (Vic) s 13A.
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 1(2).
Ibid s 8(3).
Ibid. ‘Discrimination’ has the same meaning as in the Equal Opportunity Act 2010 (Vic) s 6.
Equal Opportunity Act 2010 (Vic) ss 3(a)–(b).
Ibid s 6.
Ibid pt 4.
Eamonn Moran and Teresa Porritt, Adoption by Same-Sex Couples: Legislative Review (2015). See also the definition of ‘services’: Equal Opportunity Act 2010 (Vic) s 4. Whether the definition of services includes adoption services has not been judicially considered.
New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 206. The ordinary meaning of the word ‘discriminate’ is to ‘make a distinction’, or to ‘note or observe a difference’, or to ‘differentiate’, whether between options, persons or things: Macquarie Dictionary, 6th Edition 2013, Macquarie Dictionary Publishers, Sydney. All choice involves discrimination.
Adoption Act 1984 (Vic) s 15(1)(b).
Equal Opportunity Act 2010 (Vic) s 13, pt 5.
Ibid s 75.
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).
Explanatory Memorandum, Adoption Bill 2009 (Qld) 15; Adoption Legislative Review Committee, Parliament of Western Australia, Review of the Adoption Act 1994 (2007) 26, 48; Adoption Legislative Review Committee, Family and Children’s Services, Western Australia, Adoption Legislative Review: Adoption Act (1994), Final Report (1997) 45; Adoption Legislative Review Committee, Family and Children’s Services, Western Australia, Final Report: A New Approach to Adoption (1991) 15, 149.
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 17(2).
Adoption Act 1984 (Vic) s 9.
Equal Opportunity Act 2010 (Vic) s 82.