REASONS FOR JUDGMENT
LINDGREN J:
7 I have had the benefit of reading in draft the reasons for judgment of Besanko J. His Honour has set out the background facts relating to Isabelle (I will use his Honour's abbreviated forms of reference) and the relevant legislation. Notwithstanding this, I find it useful to trace, with my own observations, the legislative genesis of the provisions in question.
8 A "double orphan's pension" was introduced when Part VIA was inserted into the Social Services Act 1947 (Cth) (the 1947 Act) by s 19 of the Social Services Act (No 4) 1973 (No 103 of 1973) (the 1973 amending Act).
9 Adoption was then and is now governed by State and Territory law. The Court was told that the Adoption of Children Act 1966-1967 (NSW)was typical of the State and Territory Acts in force in 1973. Section 39(2) of that Act provided that the adoption of a person in a country outside the Commonwealth and the Territories of the Commonwealth was to have the same effect as an adoption of the person made in the State, provided the following four conditions were satisfied:
(a) the adoption was effective according to the law of that country;
(b) at the time at which the legal steps that resulted in the adoption were commenced, the adopter, or each of the adopters, was resident or domiciled in that country;
(c) in consequence of the adoption, the adopter or adopters had, or would (if the adopted person had been a young child) have had, immediately following the adoption, according to the law of that country, a right superior to that of any natural parent of the adopted person in respect of the custody of the adopted person; and
(d) under the law of that country the adopter or adopters were, by the adoption, placed generally in relation to the adopted person in the position of a parent or parents.
Of importance for present purposes is condition (b). The Waldrons were never resident or domiciled in Ethiopia. Accordingly their adoption of Isabelle would not have been recognised for the purposes of Australian State and Territory laws relating to adoption.
10 It will be noted that s 39(2) did not distinguish between one foreign country and another. Section 39(3) of the Adoption of Children Act 1966-1967 (NSW)did, however, empower the Governor to declare that all or any adoptions under the law of a particular country outside the Commonwealth and its Territories, specified in the proclamation, should be conclusively presumed to comply with conditions (c) and (d) of s 39(2), but the power did not extend to condition (a) or condition (b).
11 The first section in the new Pt VIA of the 1947 Act was s 105A. Section 105A contained two definitions: "child" and "double orphan". The definition of "child" is not of present relevance. The expression "double orphan" was defined to mean:
(a) a child (other than an adopted child) both of whose parents are dead; or
(b) an adopted child both of whose adoptive parents are dead or, if there was only one adoptive parent, whose adoptive parent is dead.
The definitions assume that a child other than an adoptive child must have had "parents", and that an adopted child must have had "adoptive parents" or one "adoptive parent". To be a "double orphan", the child (not being an adopted child) must not have a natural parent surviving, and an adopted child must not have an adoptive parent surviving. There was no definition of "parent", "adopted child" or "adoptive parent".
12 In the Second Reading Speech for the Bill for the 1973 amending Act, Mr Hayden, the Minister for Social Security, explained (Australia, House of Representatives, Debates, (11 September 1973) Vol HR85 pp 756-757) the reason for introducing the double orphan's pension in these terms:
Double orphan's pension removes an area of human neglect that should not have been allowed to continue. It is incredible and inexcusable that this anomaly should have been tolerated for so long by past governments. Imagine the grave social distress and severe disadvantage that has been caused to thousands of unfortunate and innocent children over the years because of these injustices. Let me give one illustration of the intolerable nature of this injustice. Children of a widow receiving a widow's pension would attract a mother's allowance and additional pension for children. If the mother were to die, all pension entitlement from the Australian Government, until this Government accepted its responsibilities with this legislation, ended. Previous governments washed their hands of all responsibility. I am pleased that this important reform has been achieved as one of our earliest actions.
The new pension will not be paid in respect of an adopted child if both adoptive parents are still alive. However, a benefit will be payable to the guardian of a child if both adoptive parents are deceased or if one is deceased and the whereabouts of the other parent are unknown. There will be no means test. However, double orphan's pension will not be paid if the child attracts a war orphan's pension payable under the Repatriation Act.
The conditions of payment, generally, will be broadly along the lines of those applying to child endowment. Payment will be made in respect of orphans who are under 16 years of age or who are full-time students aged 16 to 21. My Department will make payment by the same method and at the same time as child endowment. In most cases the new pension will supplement child endowment.
13 The general purport of the Minister's speech is that the double orphan's pension was intended to be payable where other benefits that had previously been payable in respect of a child ceased to be payable because the child ceased to have a parent or adoptive parent, even though, of course, the child was being cared for by someone and so the call for government support continued unaffected. But no benefits ceased to be payable by the Australian Government in respect of Isabelle when she became a double orphan in Ethiopia because she was an Ethiopian child of Ethiopian parents living in Ethiopia. Thus, the Second Reading Speech shows that Isabelle's circumstances were not in contemplation as calling for the double orphan's pension because she had not been a child, biological or adopted, of Australian citizens. It was not the point for double orphan's pension purposes that Australian citizens became her carers, whether under an Ethiopian adoption or not.
14 By the Social Services Act (No 3) 1975 (Cth) (No 110 of 1975) s 105A was amended by the addition at the end of s 105A(1) of two definitions, the relevant one being a definition of "parent" to include an "adoptive parent". The expression "adoptive parent", however, remained undefined.
15 Section 26 of the Social Services Amendment Act 1979 (Cth) (No 121 of 1979) (the 1979 amending Act) inserted the following definition of "adopted child" in s 105A:
"adopted child" means a child adopted under the law of any place (whether in or out of Australia) relating to the adoption of children, and "adoptive parent" has a corresponding meaning.
16 The plain meaning of this definition is that a person placed as Isabelle was, was to be treated for the purposes of Pt V1A (Double Orphan's Pension) of the 1947 Act, not as an orphan but as an adopted child, from the moment he or she was adopted under the law of any place (including Ethiopia) relating to the adoption of children.
17 I have reached the conclusion that the definition should not be read down as subject to an implied qualification by reference to recognition of the foreign adoption in Australian law.
18 In other legislation the Commonwealth Parliament has expressly defined "adopted child" by reference to such a qualification. I refer, first, to the definition in s 23 of the Marriage Act 1961 (Cth) (No 12 of 1961) as it was enacted in 1961. That section occurred in Pt III of that Act which was concerned with the application of the prohibited degrees of consanguinity and affinity. Section 23 was concerned with the application of the prohibited degrees in respect of relationships by adoption, and within that section, subs (1) provided:
(1) In this section, "adopted child" means -
(a) a person adopted under a law of a State or of any Territory of the Commonwealth; or
(b) a person adopted under the law of any other place, if the adoption of the person would be recognized as valid under the law of the Australian Capital Territory.
and "adopted" has a corresponding meaning.
(Emphasis added.)
This definition shows that the drafter was well capable of expressing a qualification of the kind supported by the primary Judge and by the respondent on appeal.
19 By the Marriage Amendment Act 1976 (Cth) (No 209 of 1976) Pt III was repealed and replaced, and the definition of "adopted" in the new s 23(6) of the Marriage Act 1961 (Cth) was:
"adopted", in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
This legislative change, made only some three years prior to the 1979 amending Act, abandoned the requirement of recognition of validity. The omission makes plain that the expression "the law of any place (whether in or out of Australia) relating to the adoption of children" is to be understood free of any implied qualification of the kind in contemplation.
20 Some three years after the 1979 amending Act was passed, s 4 of the Domicile Act 1982 (Cth) also defined "adopted" as including a requirement of recognition under State or Territory law. Again, this demonstrates that when Parliament wished a qualification to operate, it was disposed to say so expressly.
21 In his Second Reading Speech on the Bill for the 1979 amending Act, Mr Garland, Minister for Special Trade Representations, stated in relation to the double orphan's pension (Australia, House of Representatives, Debates, (11 October 1979) Vol HR116 pp 1970-1971):
Mr Deputy Speaker, in order to qualify for a double orphan's pension a person must be caring for a child, other than a child he has adopted, both of whose parents are no longer living, or one of whose parents is deceased and the other is not able, because of specified circumstances, to support the child. Honourable members will be aware that some people have travelled overseas to adopt children under the laws of other countries or to bring children to Australia with a view to adoption under Australian law. Overseas adoptions may not be recognised under Australian law. While there is no barrier to payment of a double orphan's pension where a child, Australian born or otherwise, is awaiting adoption in Australia, it has never been the intention to pay the double orphan's pension for any adopted child, including those adopted under the laws of another country. The proposed amendment in this bill will ensure there is no doubt about this.
This passage is not as clear as one might have wished. There is a danger of reading into it meaning by reference to the problem to be solved to which the Minister did not direct his mind. The passage is concerned with overseas orphans who were available to be adopted by Australian citizens. I think that Mr and Mrs Waldron are within the first broad category identified by the Minister of those who had adopted an overseas orphan under the law of another country, even though they did not travel overseas to do so.
22 The dichotomy assumed is between people who adopt orphans under the laws of other countries and persons who bring orphans to Australia with a view to adopting them under Australian law. The problem, as the present case shows, is that the two categories are not necessarily mutually exclusive. The Waldrons fall within both.
23 The sentence "Overseas adoptions may not be recognised under Australian law" could be merely explanatory of the latter part of the preceding sentence, that is to say, it could merely explain why some people do not adopt under the laws of other countries and prefer to bring overseas orphans to Australia for adoption here. If, on the other hand, the sentence is read simply with the following sentence commencing "While there is no barrier ..." the two seem to be related, the Minister would be saying that where an overseas adoption, even one that has in fact occurred, is not recognised under Australian law and the child is awaiting adoption in Australia, there is no barrier to payment of the double orphan's pension. So understood, his statement would encompass Isabelle's circumstances.
24 However, the Minister's statement "It has never been the intention to pay the double orphan's pension for any adopted child" is problematical for this latter view. A possible reading is that the intention is to make clear that precisely cases of the present kind (overseas orphans who have been adopted under foreign law where the adoption is not recognised under Australian law) are excluded from the double orphan's pension provisions. On this view, the intention would not mark a change from the position outlined in the Second Reading Speech that had been made on the Bill for the 1973 amending Act (see [7] above) in the sense that responsibility was not being accepted for overseas double orphans as such.
25 Because of its uncertainty, I do not find the present Second Reading Speech to be particularly illuminating.
26 Section 14 of the Social Services Amendment Act 1981 (Cth) (No 159 of 1981) omitted from s 105A(1) the definition of "parent" as including an adoptive parent that had been inserted in 1975, and substituted for it the following definition:
"parent" means -
(a) in relation to a child (other than an adopted child) - a natural parent of the child; or
(b) in relation to an adopted child - an adoptive parent, or the adoptive parent, of the child.
I do not think that this definition signified a change of any significance: as noted earlier, in common parlance, for every adopted child there must be one or two adoptive parents.
27 By the Social Services Legislation Amendment Act 1982 (Act No 37 of 1982) s 5, the title of the 1947 Act was changed from "Social Services Act" to "Social Security Act".
28 In 1984 the Social Security and Repatriation Legislation Amendment Act 1984 (Cth) (No 78 of 1984), by s 33, omitted from s 105A the definition of "adopted child" that had been inserted in 1979, and inserted (by s 5) the following substituted definition into s 6, the general definition section of the 1947 Act:
"adopted child" means a child adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
It will be noted that the new definition omits from the definition that had been inserted in 1979, the concluding words "and 'adoptive parent' has a corresponding meaning". I do not think that this signifies a change of present significance.
29 In the Second Reading Speech for the Social Security and Repatriation Legislation Amendment Bill 1984, the Minister for Science and Technology, Mr Jones, described these amendments as being "of a law revision kind, updating and simplifying the legislation and removing minor anomalies and deficiencies" (Australia, House of Representatives, Debates, (10 May 1984) Vol HR137, p 2255). The Explanatory Memorandum stated simply that the omission from s 105A flowed from "the consolidation of the term in the Principal Act", and from the new definition inserted into s 6. It stated only that it was the same as the existing definitions concerning the supporting parent's benefit and the double orphan's pension which it was to replace. The Explanatory Memorandum made no reference to the dropping of the words "and 'adoptive parent' has a corresponding meaning". The omission is probably explained by the presence of para (b) of the definition of "parent" that had been inserted in 1981, only some three years earlier, noted above. It would have been duplicative of para (b) to have retained the words "and 'adoptive parent' has a corresponding meaning". In any event, in general parlance an adoption inevitably signifies the presence of an adopted child and at least one adoptive parent.
30 Australia ratified the Hague Convention on the Protection of Children and Cooperation in respect of Inter-country Adoption (the Hague Convention) with effect from 1 December 1988. In implementation of the Hague Convention, State and Territory adoption laws provided for automatic recognition of adoptions effected pursuant to the laws of Convention countries. Thus, by way of illustration, in 1996 a new subsection (a1) was inserted into s 21 of the Adoption Act 1988 (SA) as follows:
Subject to any law of the Commonwealth, an adoption order made under the law of a Convention country will be recognised under the law of the State as having the same effect as an adoption order under the law of the State.
Subsection (1) of s 21 of the South Australian Act was a provision generally similar to s 39(2) of the New South Wales Act set out at [3] above. Thus, from December 1988 there came to be a dual régime in the Australian States and Territories for the recognition of overseas adoptions: the former régime continued to apply to non-Convention countries, whereas there was "automatic recognition" in the case of Convention countries. Ethiopia was not a Convention country.
31 The Social Security Act 1991 (Cth) (the 1991 Act) came into operation on 1 July 1991. Section 999 provides for the qualification of a person for a double orphan's pension in respect of a young person who is a "double orphan" (s 999(1)(c)). The definition of the expression "young person" is not presently relevant.
32 Section 993(1) states that a young person is a double orphan if:
(a) the young person is not a refugee child; and
(b) each parent of the young person is dead.
The definition of the expression "refugee child" (s 993) is also not presently relevant. Section 5(1) of the 1991 Act defines "parent" to mean (so far as relevant):
(i) in relation to a young person, other than an adopted child - a natural parent of the young person; or
(ii) in relation to an adopted child - an adoptive parent of the young person.
Finally, s 5(1) defines "adopted child" to mean:
a young person adopted under the law of any place, whether in Australia or not, relating to the adoption of children.
33 Accordingly, the legislative developments since the amending Act of 1984 have not altered the position.
34 In my view, Isabelle was not a double orphan within the definition of "double orphan" in s 993(1) of the 1991 Act.
35 My reasons for holding this view are, in summary, as follows:
(1) that the plain meaning of the expression "a child adopted under the law of any place, whether in Australia or not, relating to the adoption of children" in the definition of "adopted child" in s 5(1) of the 1991 Act signifies that Isabelle became an adopted child of Mr and Mrs Waldron at the time when they adopted her under the law of Ethiopia (see [10] above);
(2) if the Parliament had wished to qualify that expression by reference to a recognition of the foreign adoption under State and Territory laws relating to adoption, the Parliament would have done so expressly, as it demonstrated itself disposed to do in other legislation namely, s 23(1) of the Marriage Act 1961 (Cth) (as it was in 1961) and s 4 of the Domicile Act 1982 (Cth) (see [12]-[14] above);
(3) the policy underlying the introduction of the double orphan's pension by the 1973 amending Act did not encompass a person such as Isabelle because there was no acknowledgment of a responsibility of the Australian Government to provide a social security benefit to such a person's last surviving parent or adoptive parent prior to the death of that person (see [6]-[7] above).