You are using a version of the website built for webcrawlers and people whose devices cannot use javascript.
Some functionality will not be available.
Warning: This page is an archive.
General administrative information and links are not current and should not be used.
Contents (2000 - 75)
Adoption Act 2000 No 75
Current version for 27 June 2017 to date (accessed 23 November 2017 at 20:10)
Chapter 4 Part 5 Division 2
Division 2 When is consent effective?
57   Definitions
In this Act:
counsellor means a person of a class or description, and having the qualifications and functions, prescribed by the regulations.
informed consent means consent given after a person has been given the mandatory written information.
mandatory written information, in relation to the adoption of a child, means written information on the following:
(a)  the alternatives to the adoption,
(b)  financial and other support services available whether or not the child is relinquished for adoption,
(c)  possible emotional effects, both short and long term, of relinquishing the child for adoption,
(d)  the legal process of adoption (including the consents required and effect and way of revoking consent, the selection procedure, the role of adoption plans, the role of the Court and review and appeals procedure) and the legal consequences of each stage in the process,
(e)  the duties and responsibilities of the Secretary and principal officer in relation to the placement of the child,
(f)  the rights and responsibilities of other parties to the adoption, including access to information about, or contact with, the other parties to the adoption,
(g)  any other matter prescribed by the regulations.
58   When is consent ineffective?
(cf AC Act ss 29, 30, 31, AC Reg cll 21 (a) and (d), 22, 23, Sch 1 Forms 1, 4)
(1)  Consent to a child’s adoption is not effective unless it is:
(a)  informed consent, and
(b)  given in accordance with this Act.
(2)  Consent given by a person (other than a child under 18 years of age) is not effective if it appears to the Court that:
(a)  it was not given in accordance with this Act, or
(b)  it was obtained by fraud, duress or other improper means, or
(c)  the instrument of consent has been altered in a material particular without authority, or
(d)  the person giving or purporting to give the consent was not, at the time the instrument of consent was signed, in a fit condition to give the consent.
(3)  Consent is not effective if it is revoked during the time allowed by section 73.
(4)  Consent given by a birth parent who is less than 18 years of age is not effective if it appears to the Court that the birth parent did not have the benefit of independent legal advice concerning the adoption before the instrument of consent was signed by the birth parent.
(5)  Consent to a child’s adoption given in another State under the law of the other State is an effective consent for the purposes of this Act.
Note.
 Chapter 5 provides for the recognition of certain adoptions if an adoption compliance certificate has been issued by the appropriate authority of a country outside Australia. Such a certificate will only be issued if the appropriate consents have been given to the adoption. See eg Article 4 of the Convention (which is set out in Schedule 1).
59   Mandatory written information
(1)  The Secretary or appropriate principal officer must ensure that a person whose consent to an adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption.
(2)  In the case of the adoption of a child by a step parent or relative of the child:
(a)  the applicant (and not the Secretary or appropriate principal officer) must ensure that a person whose consent to the adoption is needed before an adoption order can be made is given the mandatory written information before the person consents or refuses consent to the adoption, and
(b)  the requirement to give that information is satisfied if the information given is information in a form approved by the Secretary for the purposes of compliance with this subsection.
(3)  In the case of an adoption of a child who is under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998, this section does not require the mandatory written information to be given to the Minister or a delegate of the Minister who can consent to the adoption.
60   When is consent to be given?
Consent to the adoption of a child cannot be given unless it is given:
(a)  at least 30 days after the child is born, and
(b)  at least 14 days after the person giving the consent is given a copy of the instrument of consent and the mandatory written information (if required).
61   Form of consent
(1)  Consent is to be given by an instrument (an instrument of consent) that is in a form that contains the information prescribed by the regulations.
(2)  A separate instrument of consent must be signed by the child and by each other person whose consent is required by this Act.
(3)  Before the instrument is signed, a counsellor must sign a statement on it certifying that:
(a)  the child or other person giving the consent has been counselled by the counsellor, and
(b)  that the counsellor is of the opinion that the child or other person understands the effect of signing the instrument.
62   Consent must be witnessed by person independent of counsellor
(1)  The signing of the instrument of consent must be witnessed, in accordance with the regulations, by a person other than the counsellor and who is independent of the counsellor.
(2)  Before witnessing the signing of the instrument of consent by a child or other person, the witness is to sign a statement on it certifying that he or she is not aware of any mental, emotional or physical unfitness of that person to give consent.
(3)  The witness must be a person of a class or description prescribed by the regulations.
63   Child or other person consenting must be counselled
(1)  A child or other person giving consent must be counselled in accordance with this section within the period prescribed by the regulations before he or she signs the instrument of consent to an adoption.
(2)  A person is counselled in accordance with this section if a counsellor:
(a)  accurately explains to the person, in a way that the counsellor thinks will be understood by the person:
(i)  the legal effect of signing the instrument of consent and the procedure for revoking consent, and
(ii)  the effect of the mandatory written information, and
(b)  counsels the person on the emotional effects of the adoption and alternatives to adoption (including, in the case of birth parents, the feasibility of keeping the child).
(3)  This section does not require the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or any delegate of the Minister to be counselled before giving consent to the adoption of a child who is under the parental responsibility of the Minister.
64   Consent to adoption of Aboriginal child
(1)  Before a person gives consent to the adoption of an Aboriginal child:
(a)  he or she is to be given adoption counselling by a person approved in accordance with section 195, or
(b)  if he or she is offered, but refuses, adoption counselling by such a person he or she must:
(i)  be provided by the Secretary or appropriate principal officer with written information on Aboriginal customs and culture and any other matters the Secretary or principal officer considers would have been raised by the person, and
(ii)  sign an acknowledgement that he or she has read (or, if he or she cannot read, had read to) and understood the information.
(2)  A person who refuses adoption counselling cannot consent to the adoption until at least 7 days after being given the information referred to in subsection (1) (b).
(3)  In this section:
adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Aboriginal customs and culture.
65   Consent to adoption of Torres Strait Islander child
(1)  Before a person gives consent to the adoption of a Torres Strait Islander child:
(a)  he or she must receive adoption counselling from a person approved in accordance with section 196, or
(b)  if he or she has been offered, but has refused, adoption counselling by such a person he or she must:
(i)  be provided by the Secretary or appropriate principal officer with written information on Torres Strait Islander customs and culture and on any other matters that the Secretary or principal officer considers would have been raised by the person, and
(ii)  sign an acknowledgement that he or she has read (or, if he or she cannot read, had read to) and understood the information.
(2)  A person who refuses adoption counselling cannot consent to the adoption until at least 7 days after being given the information referred to in subsection (1) (b).
(3)  In this section:
adoption counselling means consultation that includes consideration of the possibility of a child being cared for in accordance with Torres Strait Islander customs and culture.