344. The Need to Recognise Aboriginal Family Arrangements. In Aboriginal societies, the role of the extended family, based on kinship relationships and obligations, is of fundamental importance in bringing up children.[2]A child growing up in an Aboriginal community is surrounded by relatives who have responsibilities towards that child and play a meaningful role in child-rearing. If, for any reason, the biological parents are unable to take care of the child, other arrangements will be made for care within the extended family.[3]

In these cases we have the situation where children are being reared by persons, other than the actual parents, with the all round approval of the concerned parties. Children continue to know their actual parentage and to be aware of the consequences which flow from this relationship. These are consequences which would not follow for a white child adopted under Australian law.[4]

During the Commission’s Public Hearings, a recurrent message was the failure of non-Aboriginal Australians, and of welfare services in particular, to recognise the differences between Aboriginal and non-Aboriginal conceptions of child care. For example, the Commission was told of the case of an Aboriginal teenage girl being fostered by a non-Aboriginal family:

… There was obviously great conflict between the value system of the white family and the girl’s own value system. She was being torn between the two. Had she been fostered with some of her extended family or their friends … she probably would have been much happier, although their physical conditions might not have been exactly according to the requirements of the foster home.[5]

The Commission was also told of the importance of Aboriginal children being brought up in Aboriginal families.

… Aboriginal children are brought up in extended family networks. Learning behaviours, the discipline, the parenting styles are significantly different from the majority of non-Aboriginal Australians. I think in terms of protecting Aboriginal children and protecting Aboriginal communities from the intervention of child welfare that does not recognise them, it is important that Aboriginal child care values are recognised in law … if you consider the treatment of Aboriginal children who have been brought up in non-Aboriginal care, I think a number of these basic principles of human rights are being breached and have been breached.[6]

The Royal Commission on Human Relationships acknowledged the problems caused by the practice of removing children from Aboriginal mothers to be brought up in non-Aboriginal homes.[7] The Commission pointed to the practice of ‘matching’ children for adoption to the adoptive parents as much as possible in physical appearance and socio-economic status, so as to simulate what might have been the child’s natural family and social environment. The Commission went on to argue that there did not seem to be any reason to depart from this in the case of Aboriginal parents and children.[8] The concept of ‘matching’ is not now widely accepted in adoption theory, but the notion that Aboriginality should be regarded as relevant to the placement of Aboriginal children remains. Yet in NSW only three of 21 Aboriginal children placed for adoption between 1980 and 1983 were adopted by Aboriginal families.[9] These figures have been ascribed to the lack of Aboriginal families approved to adopt.[10]

345. The Impact of Intervention. Placement of Aboriginal children outside their family or community[11] is in many cases visible evidence of the failure to recognise Aboriginal child-care arrangements. The removal of children (especially ‘half-caste’ children) from Aboriginal families was indeed a deliberate government policy earlier this century. The 1921 Report of the New South Wales Aborigines Protection Board stated that the ‘continuation of this policy of dissociating the children from camp life must eventually solve the Aboriginal problem’.[12] During the period 1883 to 1969, in New South Wales alone, it has been estimated that over 5,500 Aboriginal children were removed from their parents.[13] This represents approximately one in six Aboriginal children being taken from their parents during this period compared to the figure for non-Aboriginal children of about one in two hundred.[14] While there are no longer deliberate policies of removing Aboriginal children from the parents, there is evidence that substantial problems still exist. To some extent, these are a function of the poverty and alienation of many Aboriginal families. But even when individual child care arrangements break down and outside intervention or assistance is clearly necessary this can take a variety of forms, more or less intrusive. In such circumstances questions of recognition of and support for traditional child-care arrangements become very relevant.

346. The Present Situation. Australia-wide statistics on the number of Aboriginal children in non-Aboriginal custody are difficult to obtain.[15] However, some information on the numbers of Aboriginal children involved in custody or other care arrangements in particular States and Territories is available.

  • In New South Wales, as at November 1985, 12% of the children in substitute care (excluding adoption) were Aborigines (362 of 3 000 children), although Aborigines make up less than 1% of the total population of New South Wales.[16] This represents almost 5% of all Aboriginal children in substitute care, compared to 0.4% of all non-Aboriginal children.[17]

  • In South Australia, as at August 1983, 224 Aboriginal children were under State care and control.[18] The Department of Community Welfare estimates that Aborigines represent 15-16% of all children under State care and control. Aborigines make up 0.9% of the total population of South Australia.[19]

  • In Western Australia, over 54% of the children (937 of 1710) in foster care placements are classified as Aboriginal and over 58% of the children (821 of 1411) in residential child care establishments were similarly classified. Aborigines represent 2.3% of the total population in that State.[20]

  • In the Northern Territory, as at 31 August 1983, 70% of the children (92 of 132) in care and protection were classified as Aboriginal or Torres Strait Islander.[21] However it appears that the position has substantially changed as a result of changes in policy within the relevant Department, resulting in a substantial drop of Aboriginal children in care and also of total numbers of children in care.

The proportion of Aboriginal children in State corrective institutions relative to all children in such institutions is even more alarming.[22] The number of Aboriginal adults in prison is also disproportionately high.[23] It is not possible to establish a definite link between the very high rates of Aboriginal juveniles in corrective institutions and of Aborigines in prisons, and those persons having been placed in substitute care as children. But that there is a link between them has often been asserted. The New South Wales Aboriginal Legal Service has estimated that of the 525 Aborigines listed as being State wards in institutions in June 1969, 50% have since been in corrective institutions.[24] In Victoria, analysis of clients seeking assistance from the Aboriginal Legal Service for criminal charges has shown that 90% of this group have been in placement — whether fostered, institutionalised or adopted. In New South Wales, the comparable figure is 90-95%, with most placements having been in non-Aboriginal families.[25]

347. The Need for Reform. Intervention in Aboriginal families on this scale suggests that Australian child welfare law and practice has been failing to recognise Aboriginal patterns and traditions of child care[26] — a suggestion borne out by the apparently high failure rate of placements following such intervention. The difficulty of categorising Aboriginal child care arrangements in terms of the categories of Australian child welfare law (in particular, adoption) is no reason not to recognise such arrangements,[27] though it may well influence the form recognition should take. The need to recognise Aboriginal child care arrangements was affirmed in a number of submissions. The IYC National Committee of Non-governmental Organisations commented that:

The Australian Law Reform Commission should appreciate the importance to Aborigines of the problems of children, and should make strong efforts to ensure that the range of questions of concern to the IYC Committee … are fully examined through the Australian Law Reform Aboriginal Customary Law Reference and any other mechanisms at the disposal of the Australian Law Reform Commission.[28]

Similarly the Aboriginal Children’s Research Project in New South Wales stated:

If the motivation for law reform is to bring law into line with changing social patterns, rather than just attempting to achieve legal consistency between laws operating in different cultural settings. then law reform to protect Aboriginal children must recognise not only relevant aspects of Aboriginal customary law, but also contemporary Aboriginal culture and lifestyles in Australia today.[29]

In response to such submissions, and to perceived needs, the Commission’s research staff produced a Research Paper.[30] At that time there was no legislation directed at the problem of Aboriginal child care,[31] little Aboriginal involvement with decisions involving Aboriginal children in State care,[32] and no account was being taken of ‘customary adoption’.[33] Since 1982, advances have been made in some States and in the Northern Territory, both in terms of legislation and administrative changes. The issues have been considered both by individual States and Territories and by the Standing Committee of Social Welfare Administrators. To a considerable extent initiatives adopted by some States and the Northern Territory and the Standing Committee of Social Welfare Administrators accord with the recommendations expressed in this Report. These recommendations raise in acute form the question whether implementation of proposals in this report should be a matter for the Commonwealth or for the States, and a number of submissions on these issues were directed at this issue of implementation rather than at the more basic question of what ought to be done.[34] However, consistently with the position adopted throughout this Report, attention will focus at this stage on what should be done. Questions of implementation. and of federal/State constraints in particular, will be dealt with in Part VIII of the Report.

348. Issues for Consideration. Broadly there are three ways in which the problems identified in this Chapter might be addressed, thus enabling better informed and more secure decisions about Aboriginal child custody. These are:

  • the adoption of principles (whether or not by legislation) directed at those responsible for decisions concerning Aboriginal children;

  • Aboriginal involvement in decisions concerning such children; and

  • special jurisdiction with respect to the placement of such children.

In addition two related questions are:

  • whether it is desirable to have a specific form of recognition of customary adoption; and

  • whether existing provisions for social security payments to persons having the care and custody of Aboriginal children are adequate.

These issues will be considered in turn.

[2] See para 230-1.

[3]B Sansom & P Baines, ‘Aboriginal Child Placement in the Urban Context’ in Commission on Folk Law and Legal Pluralism, Papers of the Symposium on Folk Law and Legal Pluralism, XIth International Congress of Anthropological and Ethnological Sciences, Vancouver, Canada, August 19-23, 1983, Ottawa, 1983, vol 2, 1083; E Sommerlad ‘Homes for Blacks: Aboriginal Community and Adoption’, in C Picton (ed) Proceedings of the First Australian Conference on Adoption, Committee of the First Australian Conference on Adoption, Clayton, 1976, 160, and see para 230-1.

[4]D Bell & P Ditton, Law: The Old and the New. Aboriginal Women in Central Australia Speak Out, 2nd edn, Aboriginal History, Canberra, 1984, 97.

[5]J Andrews, Transcript of Public Hearings Cairns (5 May 1981) 2183-2183(a).

[6]CJ Milne, Transcript Sydney (15 May 1981) 2663. cf also LWA O’Brien, Transcript Adelaide (17 March 1981) 50. S Carey, Transcript Launceston (21 May 1981) 2798; W Morgan-Payler, Transcript Melbourne (20 May 1981) 2757-8; P Coe, Transcript Sydney (15 May 1981) 2626-7.

[7]Australia, Royal Commission on Human Relationships, Final Report, Canberra, AGPS, 1977, vol 4, 125.

[8]id, 127.

[9]Working Party of the Standing Committee of Social Welfare Administrators, Aboriginal Fostering and Adoption. Review of State and Territory Principles, Policies and Practices, Sydney, October 1983, Table 9 (hereafter referred to as SWA Report). See also the survey (based on children who became wards in 1981-2 in NSW) in R Chisholm, Black Children: White Welfare? Aboriginal Child Welfare Law and Policy in New South Wales, Social Welfare Research Centre Reports & Proceedings No 52, Kensington, 1985, 56-67.

[10]SWA Report, 37.

[11]The term ‘placement’ is used here to include arrangements for fostering, pre-adoptive, adoptive and institutional placements of children as well as decisions with respect to guardianship and custody. It excludes criminal custodial sentences with respect to children and juveniles. Problems of sentencing of Aboriginal juvenile offenders are referred to in ch 21. See further para 367.

[12]Cited in P Read, ‘The Stolen Generations: The Removal of Aboriginal Children in NSW, 1883 to 1969’, Discussion Paper for the Aboriginal Children’s Research Project, NSW, Family and Children’s Services Agency, 1. See also Chisholm, Black Children: White Welfare? (1985) 10-32; CH Berndt and RM Berndt ‘Aborigines’ in FJ Hunt (ed) Socialisation in Australia, Australia International Press and Publications, Melbourne, 1978, 119; J Austin, ‘The Destruction of Aboriginal Families’ Nunga News (July 1976) 2-3.

[13]Read, 8.

[14]Read, 19.

[15]Information on an Australia-wide basis about the custody of Aboriginal children is not yet available. Much has been done in New South Wales in obtaining up-to-date information through the work of the Aboriginal Children’s Research Project. WELSTAT, Department of Social Security, has recently collected statistics on Aboriginal and Torres Strait fostering placements from particular States. For further statistics see SWA Report (1983) Tables 1-10. cf id, recommendations 2, 3 for further development of WELSTAT statistics and of effective data bases at the State level.

[16]SWA Report (1983) Table 3a.

[17]cf Aboriginal Children’s Research Project (NSW), Draft Principal Report (March 1982) 74, 75. See also the Project’s Discussion Paper No 3, Assimilation and Aboriginal Child Welfare — the NSW Community Welfare Bill Sydney, 1982, 8 which points to the high rates of breakdown of foster care and adoption placements when Aboriginal children are placed with non-Aboriginal families. The Aboriginal Children’s Research Project was State funded and commenced operation early in 1980. The Project ceased operation in 1983.

[18]SWA Report, Table 5.

[19]Information provided by SA Department of Community Welfare, 3 May 1984. However the Department’s present policy, as the Director-General stressed, is as far as possible to place Aboriginal children with Aboriginal families: ‘since the Department adopted (in 1978) the policy of attaching significant importance to cultural factors in the placement of Aboriginal children, most children have been placed with Aboriginal families. It is estimated that currently 80% of Aboriginal children in alternative care are with Aboriginal families … With regard to the adoption of Aboriginal children the Department has a policy of placing these children with Aboriginal. adoptive parents. Only a few Aboriginal children have been available for adoption in recent years and all have been placed in Aboriginal families.’ Dept of Community Welfare (SA) (IS Cox) Submission 365 (17 December 1982) 2.

[20]Information provided by WA Department of Community Welfare, May 1984. Of 1350 children in long-term but non-permanent care in Western Australia in 1982 (‘backlog’ children) 61% were Aboriginal: Western Australia Department of Community Welfare, Backlog Procedures Committees, Report: A System of Review and Planning for Children in Limbo, September 1982, 2, Appendix F.

[21]SWA Report (1983) Table 8. Earlier estimates were that 90% of all Aboriginal children in placement (whether for adoption or in foster care) were with white families. Aborigines constitute 24.5% of the population of the Northern Territory.

[22]Aboriginal Children’s Research Project (NSW) Draft Principal Report, 1982, 81.

[23]See para 394.

[24]A Jamrozik, Empowerment and Welfare: The Issues of Power Relationships in Services for Aborigines, NSW Ministry for Aboriginal Affairs, Occasional Paper No 2, Sydney, (1982), 9.

[25]Sommerlad (1976) 161.

[26]See para 230-2, 383-6.

[27]cf para 386.

[28]Submission 141 (4 0ctober 1979) 11.

[29]Submission 282 (15 May 1981) 7.

[30]ALRC, ACL Research Paper 4, JR Crawford & FM Howarth, Aboriginal Customary Law: Child Custody, Fostering and Adoption ALRC, Sydney, 1982. See also ALRC DP 18, 12-14 for a summary.

[31]ACL RP4, 14.

[32]id, 39.

[33]id, 44.

[34]The SWA Report, and especially its rejection of federal legislation, was in turn rejected by the national organization of Aboriginal and Islander Child Care Organisations in March 1984: see Chisholm, Black Children: White Welfare? (1985) 110-11, and see further para 352 n 54. See also Third Australian Conference on Adoption, Recommendations and Statements, Changing Families, Adelaide, May 1982.