Adoption Act 2000

The Act directly affects a wide cast of participants.

Children are the central subjects. Any child under 18 on the date the application is filed may be adopted (s 24(1)(a)). A child 18 or older may be adopted if they have been cared for by the applicants as a child prior to 18 or were a ward or under ministerial parental responsibility (s 24(1)(b) and (2)). The child's wishes must be given due weight according to developmental capacity (s 8(1)(d); s 9). A child aged 12 or more who is capable must generally consent after counselling (s 55(1)), although the Court may dispense in exceptional circumstances (s 69).

Birth parents (including presumptive fathers under s 133A) must usually consent (s 52). They receive mandatory written information and counselling (ss 57, 59, 63). They may express wishes about the preferred background of adoptive parents (s 45B) and participate in adoption plans (s 46(2A)). They retain entitlements to amended and integrated birth certificates and prescribed information once the child is 18 (s 133E), subject to safety overrides (s 136A). Birth fathers not initially notified must be given an opportunity to consent (s 56).

Adoptive parents (including step-parents, relatives and authorised carers) are assessed for suitability (ss 45, 45F). They must be resident or domiciled in NSW, of good repute and fit and proper (ss 27(1), 28(1)). Age and relationship duration requirements apply unless the Court dispenses (ss 27(2), 28(3)-(4)). They receive background information about the child and must participate in developing adoption plans where required (ss 32, 35(5), 39(4)). Once the order is made they assume sole parental responsibility (s 95(1)).

Aboriginal and Torres Strait Islander communities are given participatory rights. Consultation with approved persons or nominated experts and with relevant community organisations is mandatory before placement (ss 33, 37). The Aboriginal child placement principles (s 35) and Torres Strait Islander child placement principles (s 39) create a statutory hierarchy favouring placement within the child's community or with culturally competent non-Indigenous carers. An adoption plan must address cultural identity where placement is with a non-Indigenous carer (ss 35(5), 39(4)).

The Secretary (formerly Director-General) is the default provider of adoption services (s 10(1)) and holds parental responsibility for children awaiting adoption in most cases (s 75). The Secretary assesses suitability, selects adoptive parents, consents to adoptions where parental responsibility lies with the Minister, provides post-adoption services and maintains registers (ss 10(2), 42-45, 130, 148, 157). The Secretary may delegate functions (s 206) but retains non-delegable duties such as decisions under s 136A.

Accredited adoption service providers and their principal officers perform delegated functions. Accreditation is governed by the Children's Guardian Act 2019 (s 11(1)(b)). Principal officers must approve expressions of interest, applications and assessments (ss 42, 43, 45D). They are subject to statutory duties of independence and good faith when receiving information about applicants (s 45AA, 45GA).

The Supreme Court exercises exclusive jurisdiction (s 22). It makes adoption orders (s 23), dispenses with consent (ss 67, 69), registers adoption plans (s 50), conducts preliminary hearings (s 80), makes interim orders (s 84), discharges orders in exceptional cases (s 93) and determines applications for declarations of validity of foreign adoptions (s 117). The Court must be satisfied on the matters listed in s 90 before making an order.

Non-adopted siblings, relatives, and persons with a "close personal relationship" with a deceased adopted person or birth parent have secondary information rights (ss 133G, 137).

The Registrar of Births, Deaths and Marriages receives records of orders (s 130) and issues integrated birth certificates that record both birth and adoptive details (ss 133C(1)(a1), 133D(1)(a1), 133E(1)(a1)).

Commonwealth authorities are indirectly affected through the Hague Convention and bilateral arrangements (Chapter 5, Schedule 1).

Duties

• Decision-makers (Secretary, principal officers, Court) must apply the objects (s 7) and principles (s 8) "as far as practicable or appropriate" (s 8(1)). Undue delay is expressly recognised as prejudicial to the child's welfare (s 8(1)(e1)).

• The Secretary must provide adoption services (s 10(1)), assess suitability (s 10(2)(a)), make placement decisions (s 10(2)(b)), transfer care responsibility (s 10(2)(c)), and provide post-adoption financial assistance and services (s 10(2)(f)-(g)).

• Counsellors must certify that a person understands the effect of signing an instrument of consent (s 61(3)) and explain legal effects and emotional consequences (s 63(2)).

• Witnesses to consent must certify that the person appears mentally, emotionally and physically fit (s 62(2)) and must be independent of the counsellor (s 62(1)).

• Prospective adoptive parents must notify changes of household composition (ss 45AB, 45GB) and may be required to provide background information to birth parents (ss 45A, 45G).

• Information sources must comply with guidelines when supplying prescribed information (s 142) and must not supply information subject to conditions without compliance (s 136A(6)).

Rights

• The child has a right to participate in significant decisions (s 9), to have wishes given due weight (s 8(1)(d)), to counselling before consent (s 55(1)(a)), and to access origin information (s 133C; s 30 of Schedule 1).

• Birth parents have rights to mandatory information and counselling before consent (s 59), to express wishes about adoptive parents (s 45B), to participate in adoption plans (s 46(2A)), and to receive amended and integrated birth certificates and prescribed information once the child is 18 (s 133E).

• Adopted persons enjoy statutory rights to original birth certificates, integrated birth certificates, adopted person's birth records and prescribed information (s 133C), subject to age and consent safeguards if under 18.

• Adoptive parents have rights to assessment and selection processes that are transparent (Part 3 of Chapter 4) and to background information about the child.

• Aboriginal and Torres Strait Islander communities have consultation rights (ss 33, 37) and the benefit of placement principles that prioritise cultural continuity.

• All parties may seek internal review of reviewable decisions (s 192) and administrative review by the Civil and Administrative Tribunal (s 193; Community Services (Complaints, Reviews and Monitoring) Act 1993 s 28).

• Parties may apply for registration, review or revocation of adoption plans (ss 50-51).

The Act creates a suite of criminal offences, most carrying a maximum of 25 penalty units or 12 months imprisonment (or both). Key examples:

• Unauthorised provision of adoption services (s 11(2))—10 penalty units or 12 months.
• Improper payments or rewards for adoption (s 177(1))—25 penalty units or 12 months.
• Prohibited adoption advertising (s 178)—25 penalty units or 12 months.
• Making false statements for adoption or information purposes (s 181)—25 penalty units or 12 months.
• Impersonation of parties or officials (s 182)—25 penalty units or 12 months.
• Presenting forged consent or adoption compliance certificate (s 183)—25 penalty units or 12 months.
• Undue influence on consent (s 184)—25 penalty units or 12 months.
• Improper witnessing of consent (s 185)—25 penalty units or 12 months.
• Unauthorised disclosure of information (s 186)—25 penalty units or 12 months.
• Breach of contact veto by contacting or harassing (s 188)—25 penalty units or 12 months.

Enforcement is by summary prosecution in the Local Court (s 204), which may be commenced up to 12 months after the offence or 6 months after evidence first came to an authorised officer's attention (s 204(2)). The Court may exclude persons not directly interested (s 205).

Civil enforcement includes Court orders for discharge of adoption orders where consent was obtained by fraud, duress or other improper means or for exceptional reason (s 93(4)), provided it is not contrary to the child's best interests (s 93(5)). The Secretary may apply for search warrants to locate children who have left or been removed from care (s 79B). Breaches of conditions on authorities to supply information (s 136A(6)) or publication contrary to s 180 attract criminal liability.

The Act contains no civil damages regime; instead it relies on administrative review (ss 192-193), injunctions via the Supreme Court's inherent jurisdiction, and the Secretary's power to decline or condition information supply on safety grounds (s 136A).

The Act is not a code. It expressly cross-references and defers to several statutes.

• Children and Young Persons (Care and Protection) Act 1998—parental responsibility (ss 75, 78, 79), care orders as alternatives to adoption (notes to ss 29, 30, 36), authorised carers (Part 3A of Chapter 4), guardianship (s 67(3)), and information sharing (s 133AB).

• Children's Guardian Act 2019—accreditation of adoption service providers (s 11(1)(b)), working with children checks (s 45(2)).

• Interpretation Act 1987—definitions of "couple", "de facto partner", "spouse" (notes to ss 23, 27, 28).

• Births, Deaths and Marriages Registration Act 1995—integrated birth certificates (ss 133C-133E), registration of adoption records (ss 130, 130A).

• State Records Act 1998—overridden to the extent necessary to permit information release under Chapter 8 (s 143A).

• Anti-Discrimination Act 1977—does not prevent giving effect to birth parents' wishes on background where consistent with the child's best interests (s 45B(2)).

• Family Law Act 1975 (Cth)—parenting orders as alternatives to adoption (notes to ss 29, 30, 36, 90(3)).

• Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Schedule 1) and Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth)—directly incorporated for intercountry adoptions (Chapter 5, ss 106-112).

• Immigration (Guardianship of Children) Act 1946 (Cth)—Secretary exercises delegated guardianship functions for non-citizen children (s 77 note).

• Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002—do not prevent disclosure under research arrangements authorised by s 175A, provided de-identification and confidentiality safeguards are met.

The Act prevails over inconsistent private international law rules (s 23(4)) but recognises interstate and overseas adoptions under prescribed conditions (ss 102, 108, 113, 116).

Since 2000 the Act has been amended on more than twenty occasions. Three clusters are particularly significant.

2008 amendments (Adoption Amendment Act 2008) introduced integrated birth certificates, expanded information rights for non-adopted siblings (new s 133G), created a statutory discretion to withhold or condition information on safety grounds (new s 136A), and clarified publication rules (new ss 180, 180A). These changes responded to recommendations of the 2006 review by the Legislative Council Standing Committee on Social Issues, which found that the 1990 information regime was overly restrictive and that cultural identity needed stronger protection.

2014-2015 amendments (Child Protection Legislation Amendment Act 2014 and 2015) inserted Part 3A for authorised carers, added background information obligations (ss 45G, 45H), introduced ss 45AA-45GB on provision of information about household residents and working-with-children clearances, and aligned accreditation with the Children's Guardian Act 2019. The changes reflected the growing use of foster-to-adopt pathways and the need to strengthen child protection screening after high-profile failures.

2018-2023 amendments refined consent dispensation grounds (s 67(1)(d) added in 2018), updated references to the Children's Guardian Act 2019, and in 2023 amended s 29 to align relative adoption criteria with contemporary care order language. The Stronger Communities Legislation Amendment (Children) Act 2021 inserted s 124AA to streamline guardian ad litem appointments via the Guardian Ad Litem Panel.

These changes were driven by three policy imperatives: (1) increasing openness and information rights while protecting safety; (2) integrating adoption with the out-of-home care system to reduce the number of children in long-term foster care; and (3) ensuring cultural safety for Aboriginal and Torres Strait Islander children in line with the Aboriginal and Torres Strait Islander Child Placement Principles.

Reported case law is relatively sparse but reveals recurring themes.

In Re Adoption of NG [2014] NSWSC 327 the Supreme Court refused to dispense with a birth father's consent where the mother had concealed the pregnancy; the Court emphasised that s 67(1)(c) requires "serious cause for concern for the welfare of the child" and that the father's lack of knowledge did not automatically satisfy that test. The decision illustrates the tension between expeditious placement and natural justice.

Director-General, Department of Community Services v Adoptive Parents [2005] NSWCA 385 upheld the validity of an adoption order made after a preliminary hearing under the predecessor legislation, confirming that the statutory placement principles are mandatory but not absolute.

Controversy has surrounded the information regime. Early litigation under the 1990 Act (e.g. Re Adoption Information Act 1990 (1993) 31 NSWLR 305) established that contact vetoes are not absolute bars to information release, only to contact. The 2008 amendments were partly a legislative response to judicial criticism that the veto system was overly blunt.

The intersection with child protection has generated debate. In Re M [2014] NSWSC 554 the Court considered whether a carer who had cared for a child for two years could adopt despite opposition from the birth mother; the Court applied the "clearly preferable" test in s 90(3) and ultimately made the order, illustrating the high threshold once a stable relationship exists.

Academic and community criticism has focused on the continuing over-representation of Aboriginal children in the adoption and out-of-home care systems. The Act's placement principles have been described as "necessary but insufficient" without corresponding investment in Aboriginal-controlled adoption services. The 2021 amendments to guardian ad litem procedures (new s 124AA) were a direct response to delays caused by panel shortages.

No High Court challenge to the constitutional validity of the intercountry provisions has succeeded, the Commonwealth's ratification of the Hague Convention providing a clear head of power.

Most practitioners miss three subtle but operationally critical points.

First, the "clearly preferable" test in s 90(3) is not a best-interests balancing exercise; it requires the Court to be affirmatively satisfied that adoption is clearly preferable to any other legal option (care order, parenting order, guardianship). In borderline cases this can be decisive. Many applications fail at this final hurdle even though the child would benefit from adoption.

Second, the interaction between s 136A and the Privacy and Personal Information Protection Act 1998 is not straightforward. Although s 143A purports to override State records legislation, a s 136A decision to withhold information on safety grounds can itself be the subject of a privacy complaint. The Secretary's guidelines (required by s 136A(5)) are not publicly available, creating practical uncertainty for information sources.

Third, the 30-day revocation period for adult consents (s 73(2)) runs from the date the instrument is signed, not the date it is witnessed or received by the Secretary. A consent signed on 1 January but not received until 20 January still becomes irrevocable on 31 January. Many agencies inadvertently treat the receipt date as the trigger, exposing them to later revocation claims.

Another trap is the interplay between s 54(2) (child's sole consent where cared for for two years) and s 55 (counselling and certification for children 12-17). A 17-year-old who has been in long-term care may appear to qualify for sole consent under s 54(2), yet s 55 still requires counselling and certification unless the Court dispenses. Failure to obtain the certificate renders the consent ineffective (s 58(2)(a)).

Finally, the definition of "non-citizen child" in s 31 and the intercountry parental responsibility rule in s 31(2) are often misunderstood. A child brought to Australia by a person who has lived overseas for 12 months does not automatically qualify; the person must have been given parental responsibility under the law of that country. Missing this can invalidate the entire application.

Compliance begins with a structured intake and assessment process.

Organisations should maintain a documented decision-making template that explicitly addresses each of the s 8(2) best-interests factors and records the weight given to the child's wishes (s 9). For Aboriginal or Torres Strait Islander children the template must demonstrate compliance with the consultation (ss 33, 37) and placement hierarchy (ss 35, 39) requirements; failure to do so will almost certainly lead to refusal of an adoption order (s 90(1)(e)-(f)).

Consent processes require strict adherence to the statutory sequence: mandatory written information, counselling by a qualified counsellor, independent witnessing, and certification on the instrument itself (ss 59-63). The 30-day and 14-day waiting periods are not directory; breach renders consent ineffective (s 58(1)).

Adoption plans should be developed early and, where possible, registered under s 50 before the final hearing. Registered plans are enforceable as part of the order (s 50(4)) and can be varied only by the Court on a best-interests test (s 51(4)).

Information release under Chapter 8 must be preceded by a check of the Advance Notice Register and Contact Veto Register. Where a veto exists, the applicant must sign an undertaking not to contact (s 164(1)). Any decision to withhold or condition information under s 136A must be documented against the Secretary's guidelines and, where possible, supported by evidence that release would endanger safety, welfare or well-being.

For intercountry adoptions, Central Authority approvals under Articles 15-17 of the Hague Convention must be obtained in the prescribed sequence before the child travels (ss 106-112). The Secretary's report under s 40 for outgoing adoptions must address identity, adaptability, background, medical history and special needs.

Organisations should implement household notification protocols under ss 45AB and 45GB and ensure all adult household members hold working-with-children clearances (s 45(2)). Background information provided to birth parents (ss 45A, 45G) must be de-identified.

Finally, all decisions should be recorded in a form that would withstand internal review (s 192) or Tribunal scrutiny (s 193). The statement of reasons required on request (s 190) must address findings of fact, applicable law and reasoning. A failure to produce an adequate statement is itself reviewable.

By embedding the s 8 principles in every document, maintaining meticulous consent and information registers, and treating cultural safety as a non-negotiable compliance obligation, agencies and practitioners can minimise legal risk and, more importantly, maximise the chance that each adoption truly serves the child's long-term welfare.