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Monday, 1 September 2014
Page: 9241

Ms MacTIERNAN (Perth) (20:31): Labor is supporting this legislation but I think it would be fair to say that we do have some concerns about the direction of the legislation. Like the member for Durack, I know many Western Australians, wonderful people, who have adopted children from places like Ethiopia, Zambia, India and Korea. They have been fantastic and committed parents. In many instances it has not simply been a case of people being unable to have children. Many people who have entered into these arrangements have done so after visiting a Third World country, seeing the circumstances of these children, and feeling an enormous desire and moral obligation to assist them. They believe that adopting those children, giving them an opportunity to grow up and be educated and cared for in the secure environment of Australia, is the way to do it. I think we all totally understand the bona fides of the vast majority of people that want to engage in overseas adoption.

I think it is important that we look at the essence of what this legislation does. At the moment Australia is a signatory to the Hague convention on adoption. That convention sets in place a whole regulatory framework about the circumstances which lead to a child being available for adoption. As a result of the participation in the Hague convention, if an adoption process has been approved in that country, then under Australian law, the adopted child automatically has available to them Australian citizenship and can enter Australia as an Australian citizen.

In addition to the arrangements under the Hague convention, Australia has a number of bilateral arrangements with countries that are not signatories to the Hague convention. The argument that has been entrenched in this bill is: let us provide the same right to those children who have been approved in the countries on the other half of these bilateral arrangements. The existing situation is that, when a bilateral adoption arrangement has been agreed to by the country supplying the child, there needs to be an additional process. That procedure needs to go before an Australian court and will be subject to an Australian court order accepting that adoption. Then Australian citizenship and associated entitlements come with that.

The case that has been put before the government, which the government has agreed with, is that where we have those bilateral arrangements we should put aside that additional requirement and treat the children that are adopted under those bilateral arrangements in exactly the same way that we treat those children that are adopted under the Hague convention.

On the surface of it, this is not an unreasonable proposition. The question is: is there an exact equivalence between the regulatory regimes of those countries that are signatory to the Hague convention and those that are not signatories but with whom we have entered into those bilateral arrangements? I think it is important to understand that, when we entered into those bilateral arrangements, we were conscious that there would be this other process, this other step, that took place. As I understand it, the evidence—particularly evidence that has been given to the Senate in the last month in relation to this bill—would suggest that there is not an entire equivalence between the provisions in the countries that are the subject of bilateral arrangements and the standard of provisions within the Hague convention. So it is not necessarily the case that there is an equivalence. Indeed one of the countries that was the subject of a bilateral agreement was Ethiopia. Eventually, we had to shut down the adoption program in that country, because there were grave concerns about the way in which children were being procured for the program. The evidence before the Senate told us that the families of the children who had been referred for adoption did not understand the adoption process or the consequences of it and, once informed, the children were no longer available for adoption.

There have been many concerns raised—not about the bona fides of the Australian parents wanting to adopt—about the scams and the schemes that are developed for financial advantage in these receiving countries. It is certainly the case that they exist even in countries under the Hague convention. There were a number of examples cited from India, which is a signatory, where children have been made improperly available for adoption. The concern is, by retrospectively changing the legislation and giving the equivalence to bilateral arrangements as Hague convention arrangements, that we must insist that there be strong enough protections.

In the UNICEF evidence in the Senate inquiry, they referred to Hague convention countries having an Intercountry Adoption Technical Assistance Program and a permanent bureau in place which monitors the operation of the convention and the adoption. It is not simply a question of the standards being the same, but is there any enforcement mechanism in place that would assist people to recover children that may have been trafficked and improperly made available for adoption?

We know that there is some difference—and it is certainly very difficult for me to assess at this point just how significant that difference is—but, firstly, the provisions and the protection of the Hague convention are not exactly mirrored in those bilateral arrangements; and, secondly, there is no Intercountry Adoption Technical Assistance Program and a permanent bureau that monitors the operation of that convention that then gives parents trying trace their children some capacity, through some agency, to do that.

It is very important to understand that there is always the ability for these arrangements to be scammed, and we have to be absolutely clear that the interests of the child must be paramount. We have to be alive to the differences between the standards that may be there and the institutional enforcements that may be available under the Hague convention that are not necessarily available in those countries with whom we have these bilateral arrangements.

We should not be complacent about this. We have seen the amazing complexities—almost unimaginable complexities—that have emerged with the surrogacy arrangements that have been entered into in Thailand. The very great range of different stories and the availability of surrogacy arrangements in Thailand, legal or otherwise, are not clear. The availability of commercial surrogacy and the degree to which people see a commercial opportunity have created outcomes that very many people are uncomfortable with. I refer particularly to the case of the Japanese man who had 15 surrogate children, nine of whom were in utero at the time the story broke, and the very real concerns about traffic, abuse or perhaps something other than what appears on the face of it to be the provision of a loving family environment for those children.

I understand the overwhelmingly good intentions of people who want to adopt children. Who of us hasn't gone to India or other Third World countries and seen children begging that you would just like to pick up, put in your bag, take home and deeply want to help? In all of these measures we must be very, very alive to the real problems that emerge. We have seen stories of Aboriginal children, children from other countries, children from South America, and Argentina—indeed from Ireland—who have been improperly made available for adoption and the great tragedy not only for the mothers and families who have lost their children but, ultimately, for the receiving parents and most of all the children who have been the subject of these arrangements.

Whilst I understand the motives of this—and the Labor Party will be supporting this bill—I think it is an area in which we should move with great caution.