New South Wales Supreme Court CITATION : Re S & the Adoption Act 2000 (NSW) [2005] NSWSC 1346 JUDGMENT DATE : 19 December 2005 JUDGMENT OF : White J DECISION : See paragraph 39 of judgment. CATCHWORDS : ADOPTION - Application to adopt children from the Philippines - Philippines is a convention country for the purposes of The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption - Commonwealth regulations provide a regime for intercountry adoptions between convention countries - Where Commonwealth regulations inapplicable if State has enacted laws having same or comparable effect - Where application for adoption was made under Adoption Act (NSW) - Whether NSW legislation has the same or comparable effect to the Commonwealth regulations - Possible inconsistency between State and Commonwealth legislation gives rise to s 109 question - Direct that notices under s 78B of Judiciary Act be given. Adoption Act 2000 (NSW) Judiciary Act 1903 (Cth) Inter-country Adoption Act (Philippines) LEGISLATION CITED : Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 Immigration (Guardianship of Children) Act 1946 (Cth) Family Law Act 1975 (Cth) Corporations Act 2001 (Cth) Re K and the Adoption Act 2000 [2005] NSWSC 858 Re KN and the Adoption Act 2000 [2005] NSWSC 896 Re DYK & The Adoption Act 2000 [2005] NSWSC 1045 Narain v Purnell (1986) 9 FCR 479 State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 Chief Executive Officer of Customs v El Hajje (2005) 79 ALJR 1289 CASES CITED : Cheng v R (2000) 203 CLR 248 Re Judiciary and Navigation Acts (1921) 29 CLR 257 Belton v General Motors-Holden's Ltd (No. 1) (1984) 55 ALR 142 Renouf v Renouf (1987) 93 FLR 256; 12 Fam LR 43 Director of Public Prosecutions (VIC) v Loo (2002) 42 ACSR 459 Loo v DPP (VIC) [2005] VSCA 161 PARTIES : Re S & the Adoption Act 2000 (NSW) FILE NUMBER(S) : SC 80130/05 COUNSEL : LOWER COURT JURISDICTION : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WHITE J Monday, 19 December 2005 80130/05 Re S and the Adoption Act 2000 JUDGMENT 1 HIS HONOUR: This is an application by prospective adopting parents for the adoption of two children who were born in the Philippines. The children are brother and sister. The application is made under the Adoption Act 2000 (NSW). The applicants seek orders for the adoption of each child and approval of the children's names. Amongst other orders, they also seek orders dispensing with the consents of the children's natural parents and dispensing with the giving of notice of the application to the children's natural parents. 2 The present issue is whether notices should be given under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the States, the Australian Capital Territory and the Northern Territory that the cause involves a matter arising under s 109 of the Constitution or involving its interpretation. Adoption Procedures 3 The Philippines is a signatory to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. 4 On 9 May 2002, the applicants applied to the Department of Community Services to adopt a child from overseas, preferably the Philippines. They were approved as suitable adopting parents. The NSW Department of Community Services forwarded a confidential adoption assessment to the Intercountry Adoption Board in the Philippines, an agency approved by the Filipino Government to conduct Intercountry Adoptions. This was in accordance with the procedures provided for in the Convention. 5 On 5 June 2003, a Regional Trial Court of the Republic of the Philippines, determined a petition from the Filipino Department of Social Welfare and Development for the involuntary commitment of the children to the Department in order that it could give consent for their permanent placement. The Court found that the children, then aged 4 and 6, had been abandoned by their parents. The Court declared that the children were abandoned and neglected and dependent children. It committed them to the care and custody of the Filipino Department of Social Welfare and Development as their legal guardian, entitled to their legal custody and control, responsible for their support as provided by law, and, when proper, with authority to give consent to their placement, guardianship or adoption. The Court ordered that the rights of the biological parents were terminated and that thenceforth they should exercise no authority over the children. 6 On 8 September 2003, the Intercountry Adoption Board of the Philippines, apparently acting pursuant to the Philippine Intercountry Adoption Act and in accordance with articles 15 and 16 of the 1993 Hague Convention, authorised the NSW Department of Community Services to entrust the children with the applicants as prospective adoptive parents, provided that the requirements of articles 17 and 19 of the Convention were satisfied. 7 The Intercountry Adoption Board in the Philippines has consented to the children travelling to Australia for the purpose of adoption by the applicants. 8 The children were placed in the applicants' care on 24 November 2003 in the Philippines. They arrived in Australia on 30 November 2003. Since then, they have been in the care of the applicants and have resided in Sydney. The applicants habitually reside in New South Wales. 9 There is no reason to doubt that it would be in the best interests of the children to make the adoption orders. Unfortunately for the applicants, who are not legally represented, their application raises difficult questions concerning the inter-relationship between Commonwealth and State law in respect of applications for the adoption of children from countries which are a party to the Hague Convention on Intercountry Adoption. 10 Because the applicants are not legally represented I will explain in more detail than might otherwise be required, why the question of service of notices under s 78B of the Judiciary Act arises. Commonwealth Regulations 11 On 6 August 1998, the Commonwealth gazetted the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998. The Regulations were made under s 111C(1) of the Family Law Act 1975 (Cth), and were made in performance of Australia's obligations under the Convention and to obtain for Australia the advantages or benefits of the Convention. The Philippines is a Convention country within the meaning of those Regulations. Regulation 25 invests the Supreme Court of New South Wales with federal jurisdiction in matters arising in New South Wales to which a provision of Part 4 of the Regulations applies. This includes regulation 15, which deals with the adoption in Australia of a child from a Convention country. It provides: " - REG 15 Adoption in Australia of a child from a Convention country (1) This regulation applies in relation to an adoption that is to be granted in Australia, of a child who is habitually resident in a Convention country, by a person who is, or persons who are, habitually resident in Australia, if arrangements for the adoption are made in accordance with: (a) the Convention; and (b) the laws of the Commonwealth and the State of habitual residence of the person or persons proposing to adopt the child; and (c) the laws of the Convention country. (2) The person or persons proposing to adopt the child must apply to a court for an order that the child be adopted by the person or persons. (2A) The application must: (a) be in accordance with Form 3; and (b) include an affidavit in accordance with Form 2. (2B) At the same time as the application is made, the applicant, or applicants, must give a copy of the application to the State Central Authority for the State: (a) if the application is made by 1 applicant – where the applicant habitually resides; or (b) if the application is made by more than 1 applicant – where the applicants habitually reside. … (3) The court may make the order only if it is satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child; (b) the State Central Authority of the State in which the applicant or applicants habitually reside has agreed to the adoption of the child; and (c) the child is allowed to reside permanently in Australia. (4) However, the court must not make the order if the child is not in Australia. (5) For paragraph (3)(c), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth, or of a State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child from so residing." 12 However, this regulation does not necessarily apply to all States. Regulation 34 provides: " - REG 34 Application (1) A provision of these Regulations, except Regulations 5, 6, 7, 8, 9, 12 and 13, does not apply to a State in which there is in force a law (an intercountry adoption law) having the same effect as, or comparable effect to, that which the provision would, except for this regulation, have for the State. (2) Nothing in these Regulations affects: (a) the jurisdiction of a court of the Commonwealth or a state, or the power of an authority, under an intercountry adoption law to entertain proceedings, make an order or take any other action in relation to an intercountry adoption; or (b) any such order or action; or (c) the operation, within a State, or an intercountry adoption law of the State. " 13 Accordingly, if the provisions of the Adoption Act 2000 (NSW) have the same effect as, or comparable effect to, regulation 15, regulation 15 is inapplicable and the applicants should proceed under the New South Wales Act, as they have done. Chapter 5 of the Adoption Act 2000 (NSW) 14 The explanatory note to Chapter 5 of the Bill which became the Adoption Act 2000 (NSW) stated: " The Commonwealth Regulations preserve the application of provisions of State law that have effect, or comparable effect, to the Commonwealth. Part 2 (other than division 4) enacts such State provisions. Provision is … made for … adoptive parents in New South Wales to adopt a child from overseas (clause 107). " Section 103 of the Adoption Act provides that the object of Divisions 1 to 3 of Chapter 5 is to provide for the application of provisions of State law that have effect, or comparable effect, to certain provisions of Commonwealth law. 15 However, it seems to me to be arguable whether the Adoption Act 2000 (NSW) is a law having the same effect as, or comparable effect to, the Commonwealth regulation. Section 107 of the Adoption Act 2000 (NSW), which is in Division 2 of Chapter 5, deals with the adoption in New South Wales of a child from a Convention country by parents from New South Wales. It provides: " 107 Adoption in NSW of child from Convention country by parents from NSW (1) The Court may, on application by the Director-General or the principal officer of an accredited adoption service provider that may provide intercountry adoption services, make an order for the adoption of a child who is habitually resident in a Convention country by a prospective adoptive parent or parents who are habitually resident in the State. Note. Part 3 of Chapter 4 provides for assessment of the suitability, and selection, of persons to adopt by the Director-General or principal officer. (2) The Court may make the order only if satisfied that: (a) the Central Authority of the Convention country has agreed to the adoption of the child, and (b) the child is allowed to reside permanently in Australia. (3) The Court must not make the order if the child is not in Australia. (4) For the purposes of subsection (2) (b), a child is not allowed to reside permanently in Australia if the child is affected by a law of the Commonwealth or the State, or by an order of a Commonwealth or State court, the effect of which is to prevent the child so residing." 16 A significant difference between regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) and s 107 of the Adoption Act is that s 107 does not allow for prospective adopting parents to apply for an order under that section. Whereas regulation 15 requires that the person or persons proposing to adopt the child apply for an adoption order, and requires that the State Central Authority agree to the adoption, s 107 allows only the Director-General, or a principal officer of an accredited adoption service provider, to apply for an adoption order under that section. Effect for the Present Application of Differences Between the Commonwealth and State Provisions 17 If regulation 15 were applicable, and application was made under it, the applicants would need to establish the substantive requirements in sub-regulation 15(1), and the procedural requirements in sub-regulation 15(3). There would be a question as to what part of the State laws were picked up by the requirement in regulation 15(1)(b) that the arrangements for the adoption be made in accordance with the State laws. 18 If regulation 15 is inapplicable, as the Director-General has not applied for an adoption order under s 107 of the Adoption Act 2000 (NSW), in order to obtain adoption orders under the State Act, the applicants must apply, as they have, under Chapter 4 of that Act. The Adoption Act appears to contemplate that applications may be made under Chapter 4 in relation to non-citizen children of Convention countries. (See ss 31(1) and 90(1)(g)). 19 Under Chapter 4 of the State Act, the applicants must satisfy the Court of each of the matters in s 90 of that Act. In particular, subject to any questions which may arise from the order of the Philippines court terminating the parents' rights, the applicants need either to obtain the informed consent of the children's natural parents in the Philippines to the adoption orders, (which consents must be given in accordance with Divisions 1 and 2 of Part 5 of Chapter 4 of the Act), or orders dispensing with the requirement for such consents. (Sections 52, 54, and 90(1)(d)). The applicants can only apply for an order dispensing with the requirement for the parents' consent with the consent of the Director-General. (Section 68(d)). Unless those requirements are picked up by regulation 15(1)(b), there would be no need for the applicants to obtain the consents of the children's natural parents, or orders dispensing with their consents, if they could proceed, and did proceed, under the Commonwealth Regulations. 20 The Director-General, although consenting to the adoption orders sought, has not, at this stage, consented to the making of a "consent dispense order". Instead, the Director-General's delegate has taken the view that it may not be necessary that the court dispense with the consent of the children's parents, by reason of their being non-citizen children as defined in the Immigration (Guardianship of Children) Act 1946 (Cth). However, that is not correct. (Re K and the Adoption Act 2000 [2005] NSWSC 858; Re KN and the Adoption Act 2000 [2005] NSWSC 896; Re DYK & The Adoption Act 2000 [2005] NSWSC 1045). 21 I understand it is likely, that the Director-General will consent to the making of a consent dispense order. Assuming the application is properly brought under Chapter 4 of the State Act, the question which will then arise is whether the Court has power to make such an order under s 67 of the Act. Section 67 provides: "67 When can Court dispense with consent of person other than the child? (1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) the person cannot, after reasonable inquiry, be found or identified, or (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent or guardian of the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or guardian. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child." In order to make a consent dispense order, it is not sufficient that the order is in the best interests of the child. The requirements of subs 67(1) must also be satisfied. 22 I express no view on whether in the present case, a consent dispense order could be made under s 67 if the Director-General consents to the making of such an order. That is a matter on which I will invite submissions. However, it must be possible that in some applications for an adoption order of a child from a Convention country, the whereabouts of the child's natural parents are known, they are capable of giving or withholding their consent to the adoption, and, given the child's current and likely future placement with the prospective adoptive parents, (irrespective of whether an adoption order is made), there is not a serious cause for concern for the welfare of the children. It might be thought to be strange if, after the child was brought to Australia for the purposes of adoption in accordance with Convention procedures, an adoption order could not be made because, at that stage, the informed consent of the parents in the Convention country could not be obtained, or the Director-General did not consent to the making of a consent dispense order. 23 However these consequences would seem to follow if the State Act is an "intercountry adoption law" within the meaning of regulation 34, at least where, as in this case, the application for adoption is made by the prospective adoptive parents. It is arguable that such an effect of the NSW Act is not comparable to the effect of the Commonwealth Regulation, at least if "comparable" is not given its dictionary meaning of capable of comparison, but means similar or substantially similar. This is arguable. 24 The alternative view is that s 107 of the Adoption Act is of comparable effect to regulation 15, in that there is little difference between a case where the prospective adopting parents apply for an order under regulation 15, (if it were applicable), having obtained the Director-General's agreement to the adoption of the child, and a case where the Director-General applies for an order under s 107. It may be argued that differences affecting the present application only arise because the Director-General has not instituted proceedings under s 107, and that does not mean that the two schemes are not of comparable effect. 25 There is, in any event, a question as to the effect of the absence of any requirement in s 107 that arrangements for adoption have been made in compliance with the Convention and the laws of the Convention country. Consequences if the Adoption Act 2000 is not an Intercountry Adoption Law 26 If the Adoption Act 2000 is not a law having comparable effect to regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 for New South Wales, then the question arises whether regulation 15 is inconsistent with the Adoption Act 2000. Subregulation 34(2) provides that nothing in the Regulations affects the jurisdiction of a Court of a State under an intercountry adoption law to entertain proceedings or make an order in relation to an intercountry adoption. However, that subregulation is applicable only if the Adoption Act 2000 is an "intercountry adoption law", that is, a law having the same effect as, or comparable effect to, that which the Regulations would, except for regulation 34, have for the State. Prima facie, it does not preserve jurisdiction under the State Act if the State Act is not such a law. 27 As adverted to earlier, there is also a question as to which provisions of the State Act are picked up by regulation 15(1)(b). 28 The Director-General submitted that the Adoption Act 2000 (NSW) is a law which has comparable effect to the Commonwealth Regulation. It is unnecessary to address the arguments advanced in these reasons. They are substantial. The Director-General accepts that there are substantial arguments to the contrary. 29 There are three possibilities. One is that the explanatory note to Chapter 5 is correct, and Chapter 5 of the Adoption Act enacts State provisions having the same effect as, or comparable effect to, that which the Regulations would, except for regulation 34, have for the State. If so, the application is properly brought under the Adoption Act. The applicants will have to obtain the consents of the children's natural parents unless a consent dispense order can be made. If the Adoption Act is not of that character, the second possibility is that they can proceed either under regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) or under Chapter 4 of the Adoption Act. The Director-General submitted that if the Adoption Act is not an "intercountry adoption law" within the meaning of regulation 34, then there is a direct inconsistency between the provisions. If that is so, the third possibility is that the Court only has jurisdiction to make the adoption orders under regulation 15. Section 78B of the Judiciary Act 1903 (Cth) 30 The question of inconsistency between the State and Commonwealth laws involves the application of s 109 of the Constitution. It only arises for decision if the State Act is not a law having comparable effect to that which the Regulations would have, except for regulation 34. That is a question of construction of Regulation 34. Subsection 78B(1) of the Judiciary Act 1903 (Cth) provides: " 78B. Notice to Attorneys-General (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. " 31 Section 78B applies where there is a cause pending which "involves a matter" arising under the Constitution or involving its interpretation. If a constitutional point depends upon an erroneous construction of legislation, such that it is not a "live issue", s 78B does not apply. (Narain v Purnell (1986) 9 FCR 479 at 489). However, as McHugh JA pointed out in State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 at 565, a cause might "involve" a matter arising under the Constitution or involving its interpretation, even if the Court does not decide that the cause has a matter arising under the Constitution or involving its interpretation. It seems to me that there is a real possibility of the constitutional point of inconsistency between the Commonwealth Regulation and the State Act falling for decision. It is true that the constitutional point only arises if on the proper construction of regulation 34, the State Act does not have the same effect as or comparable effect to that which regulation 15 would have but for regulation 34. It was submitted for the Director-General that there was no need to give a s 78B notice unless and until that question of construction was decided. This, it was submitted, was consistent with the principle that a Court does not decide questions of constitutional significance unless it is necessary to do so. (Chief Executive Officer of Customs v El Hajje (2005) 79 ALJR 1289 at [28]; Cheng v R (2000) 203 CLR 248 at [58]). However, the possible inconsistency between the Commonwealth Regulation and the State Act is a "matter", in the sense of a subject matter for determination in a legal proceeding, (Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265), already involved in the cause. 32 In Belton v General Motors-Holden's Ltd (No. 1) (1984) 55 ALR 142, the High Court held that an appeal involved the application of s 109 of the Constitution, and therefore its meaning when properly understood, where the issue was whether a provision of an award made by the Australian Conciliation and Arbitration Commission was inconsistent with a State Act. The question of inconsistency was dependent on the interpretation of the award, and the consequences of inconsistency were undoubted. Nonetheless, it was held that the appeal involved the interpretation of s 109 of the Constitution. This decision was followed by Hodgson J (as his Honour then was) in Renouf v Renouf (1987) 93 FLR 256; 12 Fam LR 43, where the question was whether proceedings for removal of a caveat were proceedings arising out of a marital relationship within the definition of "matrimonial cause" in s 4 of the Family Law Act 1975 (Cth), in which event, the Supreme Court would not have had jurisdiction. In issue was the meaning of the definition. As his Honour said, there was no question about the application of s 109 of the Constitution in the event the proceeding did fall within the definition of "matrimonial cause" in the Family Law Act. Nonetheless, his Honour did not proceed beyond the granting of urgent relief of an interlocutory nature until s 78B notices were given. 33 It appears that s 78B notices were given in Director of Public Prosecutions (VIC) v Loo (2002) 42 ACSR 459 (on appeal Loo v DPP (VIC) [2005] VSCA 161 at [17]), where the question of inconsistency turned on the proper construction of ss 5E, 5F and 5G of the Corporations Act 2001 (Cth). 34 In my view, because there is a serious argument as to whether there is a direct inconsistency between the Regulation and the Adoption Act, even though the resolution of that question depends on the proper interpretation of the Commonwealth Regulation, a matter involving the interpretation of s 109 of the Constitution is involved in the cause. 35 It is therefore my duty not to proceed unless and until I am satisfied that notices have been given in accordance with s 78B to the Attorneys-General of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory. 36 The Director-General accepted that if notices under s 78B were required they would be given by the Director-General. I revoke my previous order directed to the applicants for the giving of s 78B notices, (which I stayed pending consideration of the Director-General's submissions). 37 If the matter falls to be determined in accordance with Chapter 4 of the State Act, consideration will need to be given by the Director-General as to whether or not he consents to the applicants' application for a consent dispense order. I would also be assisted by submissions as to whether the requirements for the making of a consent dispense order under s 67(1) have been satisfied. 38 I note that the applicants are considering bringing an alternative application under regulation 15. I understand that the Director-General is willing to apply pursuant to s 107 for an adoption order in favour of the applicants. It would be unfortunate if an adoption order could not be made because the Director-General did not apply for an order under s 107. If such applications are made, it will be necessary for the parties to address the sufficiency of the evidence to satisfy regulation 15(1) and 15(3)(b), and s 107(2)(b). 39 For these reasons, I make the following orders: 1. I revoke the orders made on 25 November, 2005. 2. I direct the Director-General of the Department of Community Services to give, notices under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory specifying that the cause involves a matter arising under the Constitution or involving its interpretation, namely: (a) whether the present application for the adoption of children from the Philippines, being a Convention country within the meaning of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) has been validly commenced under Chapter 4 of the Adoption Act 2000 (NSW) ; and (b) whether the Court has jurisdiction under regulation 15 of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) to entertain an application made under that Regulation for the adoption of the children the subject of the present application. 3. I direct the Director-General to notify my associate when such notices have been given; 4. I direct the Director-General to forward to the applicants and my Associate any responses received from any of the Attorneys-General to such notices within 7 days of receipt thereof. 40 I will give further directions for submissions once the attitude of the Attorneys-General is known, and any alternative applications and additional affidavits are filed. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.