24 June 2010

Adopting a modern day interpretation

A timely and significant judgment issue today by a full bench of the High Court on the legal question of who can adopt:

Re AMM and KJO

Until now, the term "spouse" in section 3 of the Adoption Act 1955 has been taken to mean only men and women who are married.  This excluded opposite sex civil and de facto couples, as well as gay couples wanting to adopt as couples.  Oddly, though gays (and unmarried straights) could adopt as individuals.

But in an appeal from a decision involving an opposite sex de facto couple in the Family Court, the High Court has ruled that the term "spouse" nowadays must be taken to include "a man and a woman who are unmarried but in a stable and committed relationship".

The result is driven by the anti-discrimination provisions in the Bill of Rights Act. The difficult issue was whether the legislative history demonstrated an inconsistent interpretation that prevented the term spouse being given a rights-consistent meaning.  The two judges together ruled it did not.

The Court was careful to note that its ruling did not deal with the question of whether the term spouse should be taken to include same-sex couples:

What it is not about is whether “spouses” can be interpreted to cover any other type of relationship such as a same sex couple. A favourable decision for these appellants might open the door for people in other forms of relationship to apply. That possible consequence is a factor the Court must take into account. But, in the end, if the decision in this case were to open that door, what the answer will be for those other couples will have to await another day.

It will be no surprise that I think it's manifestly wrong to continue to prevent gay couples from adopting.  Whether or not the courts will be prepared to make this further extension in a case involving same-sex couples, time will tell.

Regardless, the issue needs to be sorted, if not by the courts, then by legislative amendment.  There are numerous reports and calls for it to be sorted.  And it should be expedited too.

PS Congratulations to my colleague Claudia Geiringer, who acted as counsel for the couple.  I have no doubt that the success is in part due to her thorough and compelling Bill of Rights arguments.

3 comments:

Steve said...
This comment has been removed by the author.
Steve said...

Well done Claudia, a worthy cause and excellent outcome.

The inconsistencies this outcome throws up however, seen for example in para 39 with relation to civil unioned couples, provide further reason for this Act to be reviewed root and branch. Think for example of the long term couple who, after 10 years together, enter into a civil union, an act which surely illustrates commitment and stability - are they suddenly excluded from applying for adoption? This is a ridiculous distinction.

Or is it something that should be left to the courts for gradual attempts at expansion? I think I favour full review and an opportunity to address these issues as a nation. Further fragmentation will come if we leave this to the courts.

JustinH said...

Loving that 'stronger interpretive principle'.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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