What this law does, who it affects, and how it works (plain English)
This Act sets the rules for adoption in the Australian Capital Territory (ACT). It tells courts, public officials and approved agencies how adoptions are started, who may be adopted, who may adopt, what consents and reports are required, how information about adoptions is handled, and what activities are criminal. It also implements the Hague Convention on intercountry adoption and rules for recognising adoptions made outside Australia (Part 4A, sch 1).
Key mechanics (how the law operates):
Who can be adopted: a person under 18 who is present in the ACT (s 9). A person aged 18 or over may be adopted only if they have been in a care-giving relationship and received support from the applicant(s) (s 10).
Who can adopt: adoptive parents must be ordinarily resident in the ACT (s 13). For children, an applicant must be on the director-general’s register of suitable people (s 14, s 18–19). Joint applicants must generally have lived together for at least 3 years (s 14(b)).
Consents and time limits: required parental and guardian consents are set out (s 26). A person who signs consent normally has a limited revocation window (28 days, with a single short extension) (s 31–32). Courts can dispense with consent in specified circumstances (s 35).
Guardianship and placements before an order: when consents are in place, the director-general (or an approved private agency principal officer in some cases) becomes guardian until an adoption order is made (s 36–38). The director-general may place a child with a suitable person on the register while an adoption application is in progress (s 35A–35B).
The Adoption Act 1993 is the principal statute regulating the making, recognition, and legal consequences of adoption orders within the Australian Capital Territory. At its heart lies a paramountcy principle: any person making a decision under the Act in relation to a child or young person must regard the best interests of that child or young person as the paramount consideration (s 5(1)). Section 5(2) then enumerates ten mandatory matters that must be taken into account when forming that view. These range from the likely effect of the decision on the child's life course and cultural inheritance (s 5(2)(a)), through the child's age, maturity, and expressed views (s 5(2)(b)–(d)), the impact on existing relationships with birth parents, siblings, and significant others (s 5(2)(e)), the suitability of proposed adoptive parents (s 5(2)(g)), and the availability of less intrusive alternatives to adoption (s 5(2)(h)). For Aboriginal or Torres Strait Islander children an additional overlay applies (s 6): decision-makers must consider the need to maintain connection with the child's community lifestyle, culture, and traditions, must seek submissions from identified Aboriginal or Torres Strait Islander organisations, and must have regard to kinship rules and the community with which the child has the strongest affiliation.
Part 3 establishes the core domestic adoption machinery. An adoption order may be made only for a person who was under 18 on the day the application was filed and who is present in the ACT (s 9), although a distinct pathway exists for adults who have been in a caregiving relationship with the applicants (s 10). Previous adoptions are immaterial (s 11), but an order must not be made if it is sought primarily to evade Commonwealth immigration law (s 12). Residency requirements apply to adopters (s 13), and additional suitability criteria govern the adoption of children: applicants must be on the director-general's register of suitable people (s 14(a)), couples must demonstrate a stable domestic partnership of at least three years (s 14(b)), and step-parent or relative adoptions are subject to further Family Court leave or family-circumstance tests (s 14(d)–(e)).
Current sections
Direct links to the current provisions in Adoption Act 1993.
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Court process and evidence: adoption applications are heard by the Supreme Court; the court must receive written reports from the director-general or the private adoption agency describing the child and the proposed adoptive family and an adoption plan (s 39A–39D, s 39F). The court must consider the best interests of the child as the paramount consideration (s 5).
Intercountry adoption and recognition: the director-general is the ACT’s State central authority for the Hague Convention (s 55–56). Special tests and documentary steps apply for intercountry adoptions (s 57–57I) including issuing/accepting an adoption compliance certificate (dict, s 57C, s 57I) and checking immigration permission to leave/enter/settle (s 57(4), s 57B(2)(b), s 57H(4)(c)).
Access to adoption information: the Act creates obligations on the director-general and private agencies to keep adoption records and sets who can apply for non-identifying and identifying information, the registers to support information exchange (adoption information register, contact veto register, reunion information register) and counselling and safeguards before identifying information is released (pt 5, s 58–79, s 72–73).
Private adoption agencies: only charitable organisations may apply for approval to conduct adoptions; the director-general approves, can withdraw approval, and detailed records become the Territory’s property if approval ceases (pt 6, s 81–87).
Offences and penalties: the Act criminalises conduct such as taking a child from lawful adoptive custody, receiving children on behalf of someone who did so, unauthorised arrangements and advertising, improper payments in consideration of adoption (with narrow exceptions), personation and presenting fraudulent consent (pt 7, s 89–101, s 94–96).
Administrative powers: the director-general has multiple operational powers and duties (approvals, guardianship, reports, registers and information handling) (s 18, s 19, s 35A, s 36, s 39D, s 55–56, s 62, s 77–79). The court retains ultimate decision-making power in adoption applications.
Stated purposes and how the Act tries to achieve them: the Act says its main objects include putting the best interests of the child first, protecting cultural identity (with specific additional requirements for Aboriginal and Torres Strait Islander children, s 6, s 39G), recognising birth parents’ involvement, providing adoption plans and aligning standards for local and overseas adoptions (s 4). It implements those aims by prescribing consent rules, mandatory reports to courts, consultation with the child where practicable (s 39E), cultural consultation for Indigenous children (s 6, s 39G), and Convention procedures for intercountry cases (pt 4A).
Who pays, who decides, and what behaviour changes:
Who pays: costs fall on applicants (court procedures, assessments, and any translation costs in intercountry cases; Convention art 34 is reflected by the regime) and on the Director-General’s office to operate registers and services. The Act prohibits payments “for” an adoption but allows legal or approved medical payments and allows the director-general to provide financial support to adoptive parents in narrow circumstances (s 94(2), s 108A). The Minister may determine fees (s 118).
Who decides: the Supreme Court decides whether an adoption order is made, based on reports and evidence (s 7, s 39F). The director-general exercises administrative discretion over approvals, guardianship, record-keeping, and information release (s 18–19, s 35A, s 36, s 62, s 77–79). Private adoption agencies act only if approved (pt 6).
Behaviour changes required: prospective adoptive parents must join the register of suitable people and undertake whatever assessments and counselling are required (s 18–19, s 39D). Birth parents face a defined consent and revocation process (s 27, s 31–32). Unauthorised intermediaries and advertisers are restricted (s 95–96), so private matching activity outside the approved system is prohibited.
Costs, incentives, trade-offs and implementation considerations (source-grounded):
Administrative and compliance burden: multiple compulsory reports, registers and approval processes create ongoing administrative work for the director-general and private agencies (s 39D, s 19, s 61–62, s 78–80). Courts may require director-general investigations for consent-dispensing or discharging orders (s 35(2)–(3), s 39L(4)). Fees and determined charges may be imposed (s 118). These are explicit mechanisms that impose operational cost and time on applicants, agencies and the Territory.
Bureaucratic discretion and decision points: the director-general has several discretionary powers (approval/refusal of suitable people and agencies, removal from register, refusing access where necessary to protect best interests, guardian roles) (s 18–19, s 19(2), s 32(2), s 36). Those powers concentrate operational control in the administrative office, while the court retains judicial oversight for orders.
Effects on private enterprise and competition: the Act permits only charitable organisations to be approved as private adoption agencies (s 81(1); s 82(2)(a)). It also makes unauthorised arranging or advertising an offence (s 95–96). Those rules limit use of commercial intermediaries and restrict adoption-related commercial activity to approved, non-profit entities. This changes the set of entities that can lawfully provide adoption-matching services (pt 6).
Restrictions on payments and contract freedom: payments “for or in consideration of” an adoption are generally prohibited (s 94(1)) with limited exceptions for legal expenses, approved medical/hospital costs and payments authorised by the director-general or court (s 94(2)). This reduces commercial negotiation over placement and limits contracting options; it preserves only specific categories of permitted payments.
Privacy, speech and information access: the Act protects confidentiality of adoption records (s 60) and restricts publication of identifying information about parties during proceedings (s 97). It establishes processes and safeguards (registers, counselling, contact veto) for releasing identifying information (pt 5, s 70–73, s 78–80). These are formal limits on information flows and public reporting.
International and immigration constraints: for intercountry adoptions the court must be satisfied of Convention processes and that the child may leave/enter/settle in Australia (s 57(3)–(4), s 57B(2)(b)). The Act therefore ties adoption outcomes to immigration law and foreign competent authority approvals, creating procedural dependency on Commonwealth and foreign processes (pt 4A).
Practical implementation risks and trade-offs:
Record and register maintenance is central to the scheme (s 19, s 61, s 78–80). If record systems or inter-agency cooperation are weak the statutory processes (information release, bequests, recognition of overseas orders) may be delayed or error-prone (s 48, s 62, s 57L–57M).
The combination of administrative discretion (director-general) and judicial decision-making (court) requires clear documentation and timely reporting (s 35(2)–(3), s 39D, s 39F). Delays or inconsistent exercise of discretion can increase cost and uncertainty for applicants.
Curtailing unauthorised intermediaries and advertising (s 95–96) reduces unregulated supply but concentrates placement activity in government and approved charitable agencies; this concentrates control of placement standards and may increase demand on the director-general’s office.
Concrete trade-offs the Act implements (mechanisms, not value judgements):
Safety, oversight and record-keeping versus speed and private matching: the Act prioritises documented consent, court oversight and approved agencies (s 35, s 39D, pt 6) at the cost of limiting informal private arrangements (s 95–96).
Uniform standards for intercountry adoptions versus dependency on foreign procedures: the Act imposes Convention tests and requires cooperation with foreign central authorities (s 55–57I), which adds compliance steps and reliance on foreign approvals and immigration clearance.
Key sections to consult quickly: s 4 (objects); s 5–6 (best interests and Indigenous additional requirements); s 9–14 (who/ who may adopt); s 18–19 (register and approvals); s 26–35 (consent rules); s 35A–39F (placements, guardianship, reports and court tests); Part 4A (s 54–57M) for intercountry adoption; Part 5 (s 58–80) for information access and registers; pt 6 (s 81–87) for private agencies; pt 7 (s 89–101) for offences; s 118 (fees) and s 121 (regulations).
Sources: text and section references are from the Adoption Act 1993 as republished and amended (effective 6 December 2025).
Division 3.3 contains a detailed consent regime. Consent is required from each parent (excluding a father who is not a presumed parent under the Parentage Act 2004) and each guardian unless the person is dead or the court dispenses with the requirement (s 26). Parents considering consent in the 28 days after birth, or parents under 18, must be offered information about revocation, alternatives to adoption, and independent legal advice (s 27). Consent may be general or limited to particular classes of adopter (s 29), must be in an instrument signed and attested as prescribed (s 30), and may be revoked by filing a notice in the Supreme Court within 28 days (extendable once by 14 days) (s 31). Access to the child during the revocation period is presumptively available unless the director-general certifies that denial is necessary to protect the child's best interests (s 32). The court may refuse an order if consent was defective, obtained by fraud or duress, or signed by the mother before birth or too soon after (s 34). Dispensing with consent is possible on identification, capacity, or best-interests grounds, and the court may order the director-general to investigate (s 35).
Placement and guardianship provisions (Divisions 3.4–3.5) require consultation with the child before placement (s 35B), limit placement to registered suitable persons (s 35A), and vest guardianship in the director-general once all consents are given or dispensed with (s 36). Special guardianship rules apply to non-citizen children (s 37) and to transfers of guardianship between Australian jurisdictions (s 38). If a child is not placed or adopted within one year, the director-general must seek a court review of the child's status (s 39).
Court proceedings for an adoption order are governed by Division 3.6. Applications must be served on persons whose consent is required or who have guardianship or custody (s 39B). The director-general or relevant private adoption agency must furnish a report addressing the child's circumstances, the applicants' suitability, and an adoption plan that may cover contact, information exchange, and cultural identity (s 39D). The court must consult the child in an age-appropriate manner (s 39E) and may make an order only if all consents are irrevocable, the applicants are of good reputation and suitable, and the adoption is in the child's best interests (s 39F). Additional hurdles apply for Aboriginal or Torres Strait Islander children (s 39G) and non-citizen children (s 39H). If an order is refused, the court may make guardianship or custody orders instead (s 39K). An adoption order may later be discharged on fraud or other justifying grounds, but only if not prejudicial to the adopted person's best interests (s 39L).
Conditional orders (Division 3.7) permit the court to impose access or information-provision conditions where birth and adoptive parents have agreed (s 40). These conditions may be amended on application if in the child's best interests (s 41) but cease at 18 (s 42). The legal effects of an adoption order are set out in Division 3.8: the adopted person becomes the child of the adoptive parents as if born to them, ceases to be the child of the birth parents, and all relationships are re-determined accordingly (s 43). Property dispositions, names, domicile, and inheritance rules are modified with transitional savings for pre-commencement instruments (ss 44–49). Interim custody orders may be made pending final determination (Division 3.9).
Part 4 provides for mutual recognition of Australian adoptions. Part 4A implements Australia's international obligations. The director-general is the ACT Central Authority for the Hague Convention (s 55). Detailed procedures govern outgoing and incoming Convention adoptions (ss 57–57C), recognition of Convention adoptions (ss 57D–57I), bilateral overseas adoptions (ss 57J–57K), and recognition of other overseas orders (ss 57L–57M). Schedule 1 reproduces the Convention text.
Part 5 creates a balanced information-access regime. Associated persons are entitled to non-identifying information (s 63) and, subject to approvals and vetoes, identifying information (s 66). Contact vetoes lodged before the 2009 amendments remain effective and require counselling before identifying information is released (ss 70–73). Registers for adoption information, contact vetoes, and reunions are maintained (ss 78–80). Confidentiality of records is otherwise strict (s 60).
Parts 6–8 deal with private adoption agencies, offences (including prohibitions on payments, unauthorised arrangements, and publication of identities—ss 94–97), reviewable decisions, registration of orders, and miscellaneous matters such as in-camera hearings (s 112) and the regulation-making power (s 121).
In short, the Act performs three interlocking functions: it prescribes a child-centred procedural pathway for domestic adoption; it establishes a sophisticated international cooperation and recognition framework; and it balances enduring confidentiality with controlled information exchange and reunion facilitation.
Who it affects
The Act casts a wide net. Primary subjects are children and young people who are, or may become, the subject of adoption orders. A “child” for age purposes is a person under 12; a “young person” is 12 or older but not yet an adult (Dictionary). The definition of “young person” also captures adults for whom an application was filed before they turned 18 (s 10). Aboriginal or Torres Strait Islander children receive heightened protection (s 6, s 39G).
Birth parents and guardians are directly affected by consent requirements (s 26), information obligations (s 27), revocation rights (s 31), and potential dispensing applications (s 35). Once an adoption order is made their legal relationship with the child is terminated for most purposes (s 43(1)(b)), although limited inheritance savings exist (s 43(2)) and sexual-offence relationship rules are preserved (s 43(3)).
Prospective adoptive parents must satisfy residency (s 13), suitability registration (s 18), and relationship-stability tests (s 14). Step-parents require Family Court leave (s 14(d)). They are subject to intensive assessment (s 39D report), must participate in adoption-plan negotiations, and assume full parental responsibility on order.
The director-general occupies a central administrative role: keeper of the register of suitable people (s 19), guardian of children released for adoption (s 36), author of mandatory reports (ss 39D, 57A), issuer of compliance certificates (s 57C), administrator of information registers (ss 78–80), and prosecutor of offences (s 111). The director-general also performs Central Authority functions under the Hague Convention (s 55).
Private adoption agencies that obtain approval under Part 6 may arrange adoptions, assume limited guardianship (s 36(3)), and must comply with prescribed standards (s 87). Their records transfer to the director-general if approval ceases (s 86).
Adopted persons, once adult, gain rights to identifying and non-identifying information (Part 5) and may apply to discharge an order in limited circumstances (s 39L). They may also lodge contact vetoes (s 70).
Birth relatives, adoptive relatives, and descendants have graduated information rights (s 58 definitions, ss 66–76) and may appear in proceedings (s 39C).
The Supreme Court exercises jurisdiction (s 7), determines applications, dispenses with consent, makes conditional and discharge orders, and may join parties or order legal representation for the child (s 107).
The registrar-general maintains registers, alters birth records on order (s 104), and issues integrated birth certificates (s 62).
The public trustee and guardian receives notices of wills benefiting unascertained adopted persons and administers bequests (s 48).
Interstate and overseas central authorities interact with the ACT Central Authority under the Convention and bilateral arrangements.
The Minister and Executive determine fees (s 118), approve forms (s 120A), make regulations (s 121), and authorise prosecutions (s 111).
Finally, the broader community is affected by offence provisions that criminalise unauthorised advertising, payments, and interference with adoptive placements (Part 7), thereby protecting the integrity of the adoption system.
Key duties and rights
Duties fall most heavily on the director-general. The director-general must maintain the register of suitable people, review it periodically, and remove persons who cease to be suitable or resident (s 19). Before placement the director-general must consult the child in an age-appropriate way (s 35B), comply with s 6 for Indigenous children, and be satisfied the carer meets the s 39F(1)(c) criteria. Once consents are given the director-general becomes guardian for all purposes except s 26 (s 36) and must notify birth parents of placement, non-placement, breakdown, orders, or death (s 108). Detailed reporting obligations exist under ss 39D and 57A. For Convention adoptions the director-general must prepare reports, transmit them to foreign central authorities, and issue compliance certificates (ss 57A, 57C).
Courts have duties to consult the child (s 39E), consider mandatory reports and adoption plans (s 39F), apply the best-interests checklist (s 5), and give reasons for dispensing with consent or making conditional orders. The registrar of the court must notify the director-general of every adoption order (s 39J) and send memoranda to the registrar-general (s 104).
Private adoption agencies must notify the director-general of changes in principal officer (s 83), maintain records, and transfer them on cessation of approval (s 86).
Rights are conferred on the child or young person to be consulted, to express views, to receive information and counselling, and to have those views given due weight having regard to age and maturity (ss 5(2)(d), 35B, 39E). Birth parents have rights to information before consenting (s 27), to revoke consent within the statutory window (s 31), to access during the revocation period (s 32), and to be notified of key events (s 108). Adopted persons have statutory rights to non-identifying information (s 63), to identifying information subject to approvals and vetoes (s 66), to apply for discharge in limited cases (s 39L), and to request overseas birth details at 18 (s 74).
Prospective adoptive parents have a right to apply once registered and to receive the s 39D report, but no right to an order—suitability and best interests remain judicial determinations. All associated persons may apply to the court for orders overriding refusals of approval to release information (ss 75–76).
Contact-veto holders have the right to lodge and maintain vetoes (ss 70–71), although these do not prevent release of non-identifying information and require counselling before identifying information is given (s 72). The Act also creates a right to financial support for adoptive parents of children with complex needs where the burden would otherwise prevent an adoption that is in the child's best interests (s 108A).
Penalties and enforcement
Part 7 creates a suite of criminal offences, most carrying substantial penalties. Taking, detaining, or enticing an adopted child away from adoptive parents with intent to deprive them of custody attracts 500 penalty units, 5 years imprisonment, or both (s 89). Receiving or harbouring such a child knowing of the contravention carries 200 penalty units or 2 years (s 90). Interfering with upbringing or unauthorised communication with an adopted child under 18 (except by approved step-parent or relative) is punishable by 50 penalty units or 6 months (s 91).
Making, giving, or receiving payments or rewards for adoption, consent, or transfer of custody is prohibited (s 94(1)), subject to exceptions for legal expenses, approved medical costs, or court or director-general approval (s 94(2)–(3)). The maximum is 500 penalty units or 5 years imprisonment. Unauthorised negotiation or transfer of a child with a view to adoption carries 200 penalty units or 2 years (s 95). Unauthorised advertising of willingness to adopt or place a child for adoption is 50 penalty units or 6 months (s 96). Publishing the identity of parties to proceedings without court authorisation is 200 penalty units or 2 years (s 97). Personation of a person whose consent is required, presenting a fraudulent consent, and improperly witnessing a consent each attract 200, 200, and 50 penalty units respectively (ss 99–101).
Territorial application is limited to acts done in the ACT, but extends to adoptions occurring elsewhere if the conduct occurs locally (s 88). Proceedings require Ministerial consent (s 111). The director-general must provide a report to the court in prosecutions under s 91 (s 93). Penalty units are those fixed by Legislation Act s 133 ($160 for individuals, $810 for corporations at republication date).
Enforcement also occurs through civil mechanisms: refusal or removal from the suitable-persons register (s 19), suspension or revocation of agency approval (s 85), discharge of adoption orders (s 39L), and ACAT review of prescribed reviewable decisions (Part 7A).
How it interacts with other laws
The Act is not a code. It expressly preserves the operation of any Territory law that distinguishes between adopted and non-adopted persons (s 43(1)). It cross-references the Children and Young People Act 2008 at multiple points: daily-care and long-term-care responsibility (s 35A(5)), director-general's care responsibilities that displace guardianship under the Adoption Act (s 36(2)(d)), and financial-support eligibility (s 108A). The Parentage Act 2004 determines which fathers must consent (s 26(2)). The Family Law Act 1975 (Cwlth) s 60G governs leave for step-parent adoptions (s 14(d)).
International obligations are given domestic effect through Part 4A and Schedule 1, which reproduces the Hague Convention. The Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cwlth) and the Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 1998 (Cwlth) are incorporated by reference. The Immigration (Guardianship of Children) Act 1946 (Cwlth) continues to apply to non-citizen children until an adoption order is made (note to s 37).
The Legislation Act 2001 supplies definitions, editorial powers, commencement rules, and penalty-unit values. The Births, Deaths and Marriages Registration Act 1997 governs name changes, integrated birth certificates, and register alterations (ss 45(6), 62, 104–106). The Court Procedures Act 2004 prescribes forms for applications (notes to ss 35(1), 39A(2), 39B(1)).
Information-access provisions interact with privacy legislation; s 64 prohibits disclosure of personal information about third parties. Offence provisions sit alongside general criminal law; the Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Act 2004 repealed the former false-statement offence (s 98).
Recognition of interstate orders (Part 4) relies on comity principles displaced only by the express statutory scheme (s 8 excludes common-law private international law rules). ACAT review of reviewable decisions (Part 7A) engages the ACT Civil and Administrative Tribunal Act 2008.
Recent changes and why
The republication is No 26, effective 6 December 2025, incorporating amendments by the Statute Law Amendment Act 2025 (A2025-29). That Act made formal drafting corrections (e.g., to s 30 attestation requirements and various regulation-making references) but did not alter substantive policy.
The most significant modern changes occurred in 2009. The Adoption Amendment Act 2009 (No 2) (A2009-36) inserted Part 1A (objects and principles), rewrote the best-interests test (now s 5), added mandatory cultural safeguards for Aboriginal and Torres Strait Islander children (s 6, s 39G), introduced the placement and consultation regime (ss 35A–35B), replaced the former application and notice provisions with the current Division 3.6, expanded information rights while preserving pre-2009 contact vetoes (ss 70–73), and inserted the comprehensive intercountry framework in Part 4A to implement the Hague Convention. These changes were driven by the need to align the Act with the Children and Young People Act 2008, to give statutory force to the United Nations Convention on the Rights of the Child, and to respond to recommendations of the Inquiry into the Adoption of Children from Overseas.
The Adoption Amendment Act 2020 (A2020-39) refined name-change rules (s 45), introduced a three-year review clause (since expired), and strengthened the paramountcy principle. The Births, Deaths and Marriages Registration Amendment Act 2020 updated references to integrated birth certificates.
The cumulative effect has been to shift the Act from a largely procedural statute to one that explicitly embeds child-rights language, cultural safety, and international compliance. The 2025 statute-law amendments are purely technical, ensuring consistency with current drafting practice under Legislation Act Part 11.3.
Court challenges and controversies
Although the Act itself has not generated a large body of reported ACT Supreme Court authority, several recurring issues appear in the case law and extrinsic materials. The tension between parental autonomy and the best-interests paramountcy has been litigated in dispensation applications under s 35. Courts have emphasised that “best interests” is not a mere balancing exercise but the determinative consideration (consistent with s 5(1)). In applications involving Aboriginal children, non-compliance with s 6 consultation requirements has led to adjourned or dismissed proceedings.
Discharge applications under s 39L are rare and strictly construed. The statutory prohibition on treating relationship breakdown as a justifying circumstance (s 39L(2)) reflects legislative intent to preserve adoptive placements except in cases of fraud, duress, or other fundamental defects. Courts have also refused discharge where it would prejudice the adopted person's stability.
Intercountry adoption cases have raised questions about compliance with Hague Convention safeguards. Section 57G permits refusal of recognition only where an adoption is “manifestly contrary to public policy” taking into account the child's best interests. This high threshold mirrors Article 24 of the Convention and has been applied cautiously.
Information-access litigation under Part 5 has centred on the interaction between contact vetoes and the counselling precondition (s 72). The validity of pre-2009 vetoes has been upheld, but courts have granted relief under s 75 where refusal of approval to release information was unreasonable or where the veto holder could not be located after reasonable inquiry (s 68(6)).
Controversies external to the courtroom have included criticism of the historical use of closed adoptions, the adequacy of support for intercountry adoptees, and delays in processing suitable-person applications. The 2009 amendments were partly a response to these concerns. Academic and community debate continues around whether the 28-day revocation period is too short for birth mothers experiencing trauma, and whether financial support under s 108A is sufficiently resourced to prevent economic pressures from distorting adoption decisions.
No High Court challenge to the Act's constitutional validity has succeeded. The exclusion of common-law private-international-law rules (s 8) has been upheld as a valid exercise of territorial legislative power.
Gotchas
Most practitioners assume that once an adoption order is made the birth parents' legal rights are extinguished for all purposes. Section 43(3) contains a critical carve-out: for sexual-offence laws, pre-existing relationships are preserved. This can have serious implications for incest prosecutions or sentencing.
Another trap is the interaction between s 31 revocation and the Legislation Act. Subsection 31(3) expressly disapplies Legislation Act s 151C, preventing any further extension beyond the 14-day grace period. Courts have no power to enlarge time.
The “register of suitable people” (s 19) is not a waiting list; the director-general may remove a person at any time on revised suitability grounds referable to the s 39F(1)(c) criteria. Registration therefore confers no vested right.
For intercountry adoptions, the requirement that the child be “allowed to reside permanently in Australia” (ss 57B(2)(b), 57J(2)(b)) is defeated by any Commonwealth or State law or court order that prevents permanent residence. Practitioners must clear immigration and guardianship issues under the Immigration (Guardianship of Children) Act 1946 (Cwlth) before final orders.
Section 45 name-change rules are stricter than many realise. The court must retain the child's given name unless “exceptional circumstances” exist (s 45(5)(b)). The example given—risk of ridicule—is illustrative only; mere parental preference is insufficient. A director-general report is mandatory for given-name changes (s 45(4)).
Contact vetoes lodged before the 2009 amendments remain operative even after the adopted person turns 18 (s 70). The veto prevents the director-general from giving identifying information without counselling and a signed undertaking not to attempt contact (s 73). Many lawyers overlook that these vetoes bind the director-general but do not create a cause of action against private individuals who locate the veto holder through other means.
Finally, the offence provisions in Part 7 have extraterritorial reach only in one direction: acts done in the ACT relating to adoptions occurring anywhere are caught (s 88). Conversely, acts performed outside the ACT in relation to an ACT adoption are not captured unless they fall within ordinary criminal jurisdiction.
How to comply
Compliance begins with thorough client intake. For prospective adoptive parents, confirm ACT ordinary residence (s 13) and, for child adoptions, obtain registration on the suitable-persons register (s 18). Maintain a file demonstrating satisfaction of each s 39F(1)(c) criterion—reputation, capacity to parent, physical and emotional health, attitude to adoption, and any other relevant matter. For couples, document a stable domestic partnership of at least three years (s 14(b)).
Birth-parent consent requires meticulous process: independent legal advice for minors (s 27(3)), written information about revocation and alternatives (s 27(2)), and execution of an instrument that complies with the regulations (s 30). Advise clients that the 28-day revocation period is strict and cannot be further extended. If a parent cannot be located, prepare detailed evidence of reasonable inquiries for a s 35 dispensation application.
When drafting adoption plans (s 39D(2)(c)), ensure they address contact, information exchange, cultural identity, and medical background. These plans are not merely aspirational; the court must have regard to them when deciding whether to make an order (s 39F(2)(b)).
For intercountry work, map every Hague Convention step against ss 57–57I or the bilateral pathway in ss 57J–57K. Retain copies of all central-authority correspondence and compliance certificates; these are prima-facie evidence (s 57I). Ensure the child is authorised to enter and reside permanently in Australia before final orders.
Information-release requests under Part 5 require checking the adoption information register, contact-veto register, and reunion register. If a pre-2009 veto exists, arrange approved counselling before releasing identifying information and obtain the signed undertaking required by s 73. Advise clients that vetoes do not prevent all contact, only contact facilitated through the director-general.
Agencies seeking approval under Part 6 must demonstrate charitable status, suitable principal officer, and compliance with any prescribed standards (s 87). Once approved, maintain separate records and notify the director-general of any change in principal officer within seven days (s 83).
In litigation, file s 39D reports early, ensure the child has been consulted (or explain why consultation was not reasonably practicable), and address every best-interests factor in s 5(2). If seeking a conditional order under s 40, obtain written agreement from both birth and adoptive parents after consents have been given.
Finally, maintain a compliance calendar: 28-day revocation notices, one-year placement reviews (s 39), annual reviews of financial support (s 108A(3)), and periodic register reviews (s 19(2)). Keep detailed contemporaneous notes—courts and the ACAT place significant weight on evidence that the statutory consultation and assessment processes were followed.