369. Aboriginal Participation in Aboriginal Child Custody Decisions. Aboriginal opinions expressed to the Commission and elsewhere have also been emphatic about the need to ensure Aboriginal participation in child custody decisions concerning Aboriginal children. This view was expressed. for example, by the New South Wales Aboriginal Children’s Research Project:
Where Aboriginal people have sought to regain control over their children through the development of groups like the Aboriginal Children’s Service, they have met with indifference and obstruction. Where there has been co-operation, there has been no guarantee it will continue. For this reason Aboriginal people want the right to look after their own children by Law … Without legal safeguards, the record of the past, and the attitudes of many welfare workers today, offer no guarantee that Aboriginal child care and the operation of the extended family will be respected.
The IYC National Committee of Non-governmental Organisations stressed the need for Aboriginal control, in terms of Aborigines action of the legal processes, particularly as they affect children:
To sustain authority within Aboriginal groups which directly influence the power of Aboriginal people to deal with their children and their children’s problems it is desirable that the legal process in all types of Aboriginal communities is Aboriginalised to the extent desired by communities.
Aboriginal participation in the child welfare processes has increased significantly in recent years, but it remains largely informal and without any statutory basis. Various means of ensuring that Aboriginal people can participate in decisions regarding the placement of Aboriginal children will be discussed below. But first the establishment and role of the Aboriginal Child Care Agencies, which are likely to remain central to the question of Aboriginal involvement, should be outlined.
370. Aboriginal Child Care Agencies. Moves to establish Aboriginal child care agencies began following the First Australian Conference on Adoption in 1976. Agencies were established in Victoria and New South Wales; since then agencies, of varying size and support, have been set up in all States and the Northern Territory. The Federal Department of Social Security funds some 13 child care agencies in capital cities and major centres such as Nambucca Heads, Mt Isa, Alice Springs, Townsville, Cairns and Launceston. Funds are made available under the Children’s Services Program. The level of estimated expenditure for 1985-86 is approximately $1.84 million. A national body, the Secretariat of National Aboriginal and Islander Child Care (SNAICC) has received some funding since September 1983. Obviously, finance is an important prerequisite to the effective operation of the services. At first, the child care agencies only became directly involved in particular child placements in emergencies. Their main role has been advisory and consultative in the areas both of fostering and adoption. This role is expressly recognised in the policies of Western Australia, South Australia and Victoria, and is said to be recognised in practice in Queensland, New South Wales and the Northern Territory. In fact there are considerable variations between the agencies in the extent to which they are involved, and consequently in their effectiveness.
371. Support at the Policy Level. The Department of Aboriginal Affairs Aboriginal Adoption and Fostering-Policy Guidelines recognise the very important role which such Agencies could play. They provide that:
Advice should be sought on a regular basis from appropriate Aboriginal bodies which might:
form a channel for the provision of advice to the relevant State authority on adoption and fostering procedures and individual placements where appropriate;
assist with the assessment and post placement follow-up of Aboriginal children who are adopted and fostered;
seek out Aboriginal parents wanting to adopt or foster and encourage them to apply; and
assist with the co-ordination of relevant child and family services.
Victorian Departmental policy requires that Child Care Agencies be consulted in all cases, while Western Australian and South Australian policies require consultation in all cases except in emergencies.
372. Some Non-Statutory Forms of Aboriginal Participation at Present. There is scope for greater involvement through Aboriginal participation in decision-making forums, even under legislation which contains no specific recognition of Aboriginal child care needs. For example, the Community Welfare Act 1982 (NSW) provides for a number of bodies through which there may well be further scope for Aboriginal involvement in both administration and policy formulation of arrangements for Aboriginal child care. These include Children’s Panels, the Community Welfare Appeals Tribunal, the Children’s Board of Review and the Community Welfare Advisory Council. Another form of participation is through case conferences held by the Department of Youth and Community Services in New South Wales. These conferences are held to settle care arrangements for children in the care of the Department and consist of departmental officers who have been working on the case, together with other persons involved. The other persons can include psychologists or school counsellors, natural parents and foster parents, and the children themselves: the decision as to who attends is made by the Department. There is clearly scope to include Aborigines at case conferences involving the placement of Aboriginal Children. In 1982 the NSW Steering Committee cal led for Aboriginal people to be nominated to all decision making bodies to be established under this Act. To what extent Aboriginal involvement in formulating and applying child-care policies will actually be developed through these means remains to be seen. Another less direct but nevertheless important form of participation in child care arrangements for Aboriginal children is provided through the Aboriginal liaison units established within a number of State and federal departments. The Aboriginal Liaison Unit in the Commonwealth Department of Social Security plays an important preventive role in the area of child care. By identifying families in need of financial support and arranging for social security benefits to be paid, the need for children to be placed in substitute care may be substantially reduced. It has been said that in recent years ‘the amount of consultation has been significantly increased, and that it has often influenced the outcome of decisions about Aboriginal children’.
373. Statutory Endorsement of a Consultative Role. However such methods of participation represent in most cases only scope for involvement rather than a right of involvement. The Commission believes that a right on the part of the relevant Aboriginal people to be consulted and involved in decisions involving Aboriginal children needs to be formally and explicitly acknowledged. It is a clear concomitant of the Aboriginal placement principle already recommended. The present law does guarantee the right of the mother, at least (and in some cases the father) to be involved in decisions involving a child, but in the case of Aboriginal children this right may not be effective, for a variety of reasons. Experience shows that some further guarantee of involvement and consultation in decisions concerning the child is necessary, whether this is with appropriate family members or an appropriate Aboriginal agency. At present this occurs only in Victoria and Northern Territory.
The Adoption Act 1984 (Vic). Provisions of this Act, not yet proclaimed, seek to ensure the involvement of the Victorian Aboriginal Child Care Agency by providing that where either parent of the child is an Aborigine, the court shall not make an adoption order unless it is satisfied that ‘the parent has received or has in writing expressed the wish not to receive, counselling from an Aboriginal agency’. The agency has a further role if section 50 applies and no member of an Aboriginal community is reasonably available as an adoptive parent: in that case any other adoptive parents have to be approved by the Aboriginal agency as suitable persons to adopt an Aboriginal child (s 50(2)(e)). Section 50 is structured in such a way as to comply with the priorities in consultation recommended by the Working Party of Social Welfare Administrators, as well as meeting legitimate claims to confidentiality of the persons most directly concerned.
The Community Welfare Act 1983 (NT). The priorities in consultation established by the Community Welfare Act 1983 (NT) s 69 have a similar effect: Aboriginal people or agencies other than the child’s family or kin have no right to be consulted or involved unless care arrangements involving the family or kin ‘cannot be arranged without endangering the welfare of the child’. However, in that case the Minister is required to consult with
(i) the child’s parents and other persons with a responsibility for the welfare of the child in accordance with Aboriginal customary law: and
(ii) such Aboriginal welfare organisations as are appropriate in the case of the particular child.
This could allow a placement decision to be challenged if the requirement of consultation had not been met. Legislation of this kind may not ensure that every Aboriginal child remains within the care of its own family or community, but it is capable of making a significant contribution to better informed and more sensitive decisions on what is in the best interests of an Aboriginal child. The Commission believes that provisions of this kind are not merely desirable but necessary.
374. A General Rule? Whether legislation embodying assurances of proper consultation should be federal is, of course, another question. It will be discussed in Chapter 38. However, the statutory endorsement of this basic principle meets with a number of difficulties, which need to be referred to here.
Federal problems. It is clear that the nature and extent of Aboriginal representation, and the selection of representatives will need to vary, depending on the circumstances of the case and the decision-making body involved. Even if it were constitution ally possible, it may not be practical for the Commonwealth to specify the extent or character of direct Aboriginal participation in State courts, tribunals or other forums. It is beyond federal power for the Commonwealth to interfere with the constitution of State courts or other State agencies. The most the Commonwealth Parliament could constitutionally do — short of establishing special Federal courts or agencies to the exclusion of the States in this field — would be to require consultation or agreement of specified Aboriginal persons or organisations before decisions are made.
Problems of local variation. Even apart from federal issues, however, problems of local variation, and the circumstances of particular families, present difficulties for any single rule. These difficulties were emphasised by the Working Party of the Council of Social Welfare Administrators:
The suggestion of mandatory consultation with a single Aboriginal Child Care Agency assumes a homogeneous Aboriginal population which is easily represented by a single organisation. This is by no means the case. There can be problems with involving outsiders, who have no right to be involved, in the business of a family, particularly if those outsiders fall within certain categories of proscribed relationship. To have their private business placed in the hands of such people can bring shame upon the family concerned. Even among urban Aboriginal people, it is common for certain families to refuse to deal with a particular Aboriginal organisation because of its composition (eg staffed or controlled by people from a particular family or locality). To fail to respect these issues would represent an affront to, rather than a compliance with, Aboriginal culture … It would be convenient if a single Agency could provide the panacea whereby the requirement to consult is easily absolved. However the whole issue of genuine consultation is far more complex than this and requires a more individualistic approach. While established Aboriginal child care agencies certainly have a highly valuable role to play in this area, it should not be seen as an exclusive one. In relation to an Aboriginal child, it is recommended that consultation should occur prior to care action being undertaken, before subsequent placement decisions are made and before changes are made to a child’s case plan.
(a) The purpose of such consultation is to ensure a significant Aboriginal influence on any decision made.
(b) Priority in consultation shall be (subject to an expressed desire of a parent for confidentiality):
the child’s extended family;
people who have a correct relationship with the child in accordance with local Aboriginal customs;
recognised Aboriginal agencies.
These difficulties are real, but in the Commission’s view not insurmountable. That this is so is demonstrated for example by the requirement of consultation contained in s 50 (not yet proclaimed) of the Adoption Act 1984 (Vic).
375. Devolution of Decision-Making Powers. But the question of Aboriginal involvement goes further than just a consultative role. The Working Party of the Standing Committee of Social Welfare Administrators noted that suggestions had been made about the devolution of functions to Aboriginal agencies and communities in all States and the Northern Territory. It concluded that:
This is a complex issue which requires further consideration within each state and by the Standing Committee of Social Welfare Administrators, especially in relation to the legal process of devolution and the ensuing statutory responsibilities of the appropriate agencies.
In South Australia a discussion paper has been prepared outlining a proposal for community management of Aboriginal welfare services. The Community Welfare Act 1983 (NT) s 70 enables a community government council constituted under the Local Government Act, or an association, incorporated under the Associations Incorporation Act, to undertake functions for the welfare of children, should the Minister so agree. Direct involvement of Aboriginal representatives in placement decisions is of great importance in developing a greater degree of Aboriginal self-management with respect to Aboriginal children. In this respect, the Ontario Family and Children’s Services Act 1985 is instructive. The Act aims to ensure Indian bands and native communities have greater involvement and control with respect to Indian children over and above a purely consultative role. Section 194(1) enables the band or native community to designate a body as an Indian or native child and family service authority. The Minister may then designate this authority as a society for the purposes of the Act, giving it wide powers to investigate allegations that a child may be in need of protection, to protect children, to provide guidance, counselling and other services, to supervise children assigned to its supervision under the Act, to place children for adoption and to assign children committed to its care under this Act. Children may be placed, for example, under the control of the society as society or Crown wards in which case the society is required to place the child consistently with the child placement principle. The proposals contained in s 191-196 and 15(2) of the Ontario Act go well beyond current practice in Australia in terms of decision-making by Aboriginal organizations. Obviously the proposals are formulated to take account of the existing Indian band structure, although the Act also extends to other Indian communities. There may well be difficulties in applying the Ontario proposals in terms, given the absence of local legal equivalents to band councils. Nonetheless, the proposals have much to commend them. More attention should be given by State and Territory Governments and authorities to developing these and other avenues for participation in decision-making, in accordance with the wishes of the relevant Aboriginal people and organisations. This should be accompanied by the resources and assistance necessary to make the programs effective. Whether there should be Aboriginal Courts to hear custody cases is another question.
376. Separate Aboriginal Forums. The model of the Indian Child Welfare Act 1978 (USA) might suggest the need for separate Aboriginal courts or forums for child custody issues, similar to the American Indian Courts which exercise preferential jurisdiction over the custody of Indian children. However, the Indian Child Welfare Act did not create special courts for custody cases, but gave power to existing Indian Courts. There are presently no equivalent Aboriginal courts and the Commission does not recommend the establishment of any general system of Aboriginal courts or similar bodies. If this recommendation is accepted, then Aboriginal custody disputes will not be able to be resolved by conferring jurisdiction on special Aboriginal courts or forums.
Aboriginal Children’s Research Project (NSW), Discussion Paper 3, Assimilation and Aboriginal Child Welfare — the NSW Community Welfare Bill 1981 (September 1981) 5-7 (emphasis in original).
IYC National Committee of NGO’s, Aboriginal Children and the Law (1979) 18.
Office of Child Care, Department of Social Security, Submission 406 (23 March 1984).
ibid. The Northern Territory Administration has also provided some interim funding for the Central Australian Child Care Agency.
See para 371. For the NT Act see also para 360.
See also WA Backlog Procedures Committee (1982) 26, and see para 364.
An outline of the role of these bodies and an assessment of the scope for Aboriginal involvement in decision making was provided by R Chisholm, ‘The NSW Community Welfare Act 1982: Opportunities for Aboriginal Involvement’ (1982) 5 ALB 13.
R Chisholm ‘Aboriginal Self-Determination and Child Welfare: A Case Conference’ (1982) 17 Aust J Soc Issues 258.
NSW Steering Committee, 10.
See also para 391.
R Chisholm, ‘Destined Children’ (1985) 14 ALB 6, 7-8.
id, 8-9. See further Chisholm, Black Children: White Welfare? (1985) 110-20, where the differences between consultation and decision-making powers are discussed.
See para 271-9.
See para 361.
See also Children (Guardianship and Custody) Act 1984 (Vic) s 12(5). See para 361.
And cf para 368.
For State courts, see Le Mesurier v Connor (1929) 42 CLR 481; for other State agencies, see In the Marriage of Harrison (1978) 18 ALR 689, Russell v Russell (1976) 9 ALR 103.
SWA Report, 43, Recommendation 15 (emphasis in original). See also WA Backlog Procedures Committee (1982) 21: ‘The need for consultation with the various Aboriginal groups should be emphasised, but the best means of carrying this out is yet to be determined’. For criticisms of the SWA Report see SNAICC, First Interim Report (1985) 15.
See para 361.
SWA Report, 35.
Department for Community Welfare Discussion Paper on Community Self Management of Aboriginal Welfare Services, and see Department for Community Welfare, (M Harris) Submission 439, (8 June 1984). For a less optimistic view see Department of Youth Community Services (NSW), ‘Possible Options for Aboriginal Community Involvement Regarding Care of Aboriginal Children’ in SNAICC, First Interim Report (1985) Appendix 1, 4.
See para 760, 763.
See para 357.
See para 357.
Incorporated councils on Aboriginal communities presently perform a range of local government functions, but it cannot be assumed that they are suitable bodies to exercise child welfare powers — though this may be so in particular cases. For the NT provision for delegation of powers to councils see para 360.
This has been an important issue in the USA (see para 356), and it is equally important in Australia, as various submissions pointed out: P Ditton, Submission 465 (1 January 1985); R Chisholm, Submission 494 (29 August 1985).
See para 355.
See para 812-817.
On the other hand the recommendations in Part VI do not rule out the establishment, possibly on an experimental basis, of courts or other local justice mechanisms in particular communities which desire the establishment of such a mechanism. A subsidiary aspect of such an experiment might be the conferral of certain powers with respect to child custody. See para 819.