By Brian Hillman

The following extracted paragraphs are from the International family law section published in the March 2012 issue of the Family Law Review.*

OVERSEAS ADOPTION

The impact of immigration issues on adoption is twofold because of Australia’s federal system.

The immigration into Australia of an adopted child, or the acquisition of permanent residence in Australia by an adopted child, depends on the requirements of Australia’s migration policy, as controlled under the Migration Act 1958 (Cth), the Migration Regulations 1994 (Cth) and the application of policy by the Department of Immigration and Citizenship.

In principle, the Department of Immigration and Citizenship will allow the immigration into Australia of an adopted child, or the acquisition of Australian permanent residence by an adopted child, on the basis that the adoption is recognised by the laws of the State in which the adopted parents are resident (Migration Regulations, r 1.04). Generally, the combination of federal and State laws require the adoption to have been effected in accordance with the laws of the country in which the adoption was carried out, and to have been an approved adoption under applicable State laws.

OVERSEAS SURROGACY

Issues of surrogacy generally come under the operation of State laws. South Australia differs from other Australian jurisdictions in so far as it limits surrogacy to opposite sex couples, banning single and same-sex parents (Family Relationship Act 1975 (SA), s 10HA). Various States in Australia have established different regimes for surrogacy. However, there is one common thread, which is that where a surrogate mother is paid for carrying the child (other than reasonable expenses), such an operation is illegal (Surrogacy Act 2010 (NSW), s 8; Surrogacy Act 2010 (Qld), s 56; Assisted Reproductive Treatment Act 2008 (Vic), s 44(3); Family Relationships Act 1975 (SA), s 10HA; Surrogacy Act 2008 (WA), s 8; Parentage  Act 2004 (ACT) s 41).

While the surrogacy is within the laws of the applicable State, and of course within the laws of the jurisdiction where the surrogacy takes place, previously the child was brought into Australia under the immigration law applicable to adoption. However, since under the surrogacy legislation the sperm donor is shown on the birth certificate of the child as the father, adoption complying with migration requirements appears unnecessary.

CHILDREN BORN IN AUSTRALIA

Since 1986, the fact of being born in Australia does not confer the right to residence and/or nationality on a child (Australian Citizenship Act 2007 (Cth), s 12). The Migration Act and Migration Regulations require that a child born in Australia to parents who are not permanent residents or Australian citizens, must reside in Australia for the first 10 years of his/her life and only then (if still in Australia) may make an application for Australian citizenship.

It is important to note that the conferral of Australian nationality on the child does not grant any particular resident benefits to the parents of that child outside of established visas.

CHILD BORN OUT OF AUSTRALIA, ONE OR BOTH PARENTS BEING AUSTRALIAN CITIZENS

A child born outside of Australia does not automatically acquire Australian nationality. That child needs to be registered with Australian authorities by the Australian citizen parent in order to acquire Australian nationality (Australian Citizenship Act, s 16).

* To read the full International family law section, see (2012) 2 Fam L Rev 114.