Questions of Principle and Implementation

365. The Need for Specific Protection. The history of disproportionate intervention in Aboriginal families, and the evidence of continuing problems, strongly support the case for specific protection for Aboriginal children and their families. This need has already been widely accepted in Australia, as evidenced by the adoption of policy guidelines at federal level and in most States and Territories[144] and by the recent legislative initiatives already described, in particular those in the Community Welfare Act 1983 (NT) and in the Adoption Act 1984 (Vic). It is supported also by analogous developments in North America, where the impact of the child welfare systems on Indian families has been very similar to the Australian experience. The need has also been recognised by other Australian inquiries into the question. The Final Report of the NSW Aboriginal Children’s Research Project recommended legislative protection:

A Commonwealth Aboriginal Child Welfare Act may be the only way to protect all Aboriginal children against undue welfare intervention. With the success of the Indian Child Welfare Act 1978 (USA) in safeguarding Indian children, this option deserves urgent investigation by the Commonwealth government in conjunction with Aboriginal communities.[145]

The Working Party of the Standing Committee of Social Welfare Administrator’s reported that it was

disturbed by the varying discrepancies it found between policy and practice throughout Australia — discrepancies that could not be blamed on inadequate resources alone.[146]

and found that:

While the working party felt that legislation at either State or Commonwealth level would not, on its own, be a panacea, it would at least afford an acceptable measure of protection.[147]

Legislation providing for an Aboriginal Placement Principle would be consistent with the stated Policy Objectives of the International Year of the Child 1979, National Committee of Non-Government Organisations. That Committee called on bodies (including the Commission) to develop mechanisms which would ensure that in cases involving the placement of Aboriginal children:

… priority be given to placement with the Aboriginal extended family or foster family, with an Aboriginal Family Group home or hostel …[148]

Support for a placement principle embodied in federal legislation was expressed by the national organization of Aboriginal and Islander Child Care Organizations (SNAICC) in 1984,[149] although it was pointed out that further consultation with local Aboriginal groups and organizations was required both on the principles of such legislation and its implementation.[150]

366. The Commission’s Conclusion. In the Commission’s view, legislation should deal expressly with the placement of Aboriginal children. It is not sufficient to rely on the sensitivity of particular welfare officers, authorities or magistrates in ensuring that appropriate principles are applied — and that concealed ethnocentric judgments are not applied — in deciding on the future of Aboriginal children. Legislation providing a statutory basis for an Aboriginal child placement principle would help to ensure that those involved in making decisions on Aboriginal child placements make every effort to ensure that, wherever possible, Aboriginal children are placed within the care of their own families and communities.[151] It would provide a basis on which decisions made in clear defiance of such a principle might be challenged, especially where alternative care arrangements consistent with the principle are available. This would make the implementation of the principle more secure than it will be if it continues to depend only on benevolent or enlightened exercises of a general discretion. Such legislation should define more specifically the factors to be considered in determining what is in the best interests of an Aboriginal child, the most important principle being that, wherever possible, Aboriginal children should be placed within their own family or community, and in a way consistent with the child care traditions of that family and community. It should require that, in cases of adoptive and foster placements of Aboriginal children, preference should be given, in the absence of good cause to the contrary, to placements with (1) a parent, (2) a member of the child’s extended family; (3) other members of the child’s community (and in particular, persons with responsibilities for the child under the customary laws of that community)’. In the specific case of fostering, where such a placement is not possible, preference should be given to institutions for children approved by members of the local Aboriginal community having special responsibility for the child or by an Aboriginal child care organisation working in the area, and which have programs suitable to meet the child’s needs. The legislation should provide that in making these decisions account should be taken of the standards of child care and child welfare of the Aboriginal community to which the child belongs. In each Australian jurisdiction legislative protection along these lines should be enacted.

367. The Scope of Protection. In addition to questions of implementation, of financial and other support for Aboriginal agencies, and of the scope of their involvement in the delivery of child care services,[152] certain basic questions arise as to the scope of any child care principles.

  • Defining ‘Aboriginal child’. The definition of Aboriginality for general purposes was discussed in Chapter 7.[153] The accepted definition, based on the combination of descent, identification and self-identification, is capable of presenting problems in the case of some children. As Chisholm has pointed out ‘especially with younger children, the question of identification is what has to be determined’.[154] Apparently this has not been a problem in practice with existing legislative provisions and administrative guidelines, which do not adopt special or narrow definitions of ‘Aboriginal child’.[155] Although the operation of the placement principle may be affected, and in some cases attenuated, by uncertainties about whether a particular child is Aboriginal or by the fact that a child does not belong to or identify with an Aboriginal community, it is undesirable to treat such factual questions at the threshold or the jurisdictional level, whatever their substantive relevance may be. The placement principles are, so far as their content is concerned, sufficiently flexible to deal with definitional uncertainties. Accordingly it should be sufficient to define an ‘Aboriginal child’ as a child of Aboriginal descent for the purposes of the placement principles.[156]

  • Application of the Principle to Disputes between Parents. With such a definition, disputes can arise between parents (or indeed between relatives, eg grandparents) where one party is not Aboriginal. The question is whether the placement principle should apply in such circumstances, so as to give a preference to the Aboriginal parent or relative. The point was usefully discussed by Chief Judge Evatt (dissenting), in Goudge. After pointing out that the Commission’s tentative proposal in Research Paper 4 would not apply to custody disputes between parents, she said:

While such a principle has obvious relevance when deciding whether to place a child from one culture in a family of another culture, it cannot readily apply to children of a mixed racial marriage who have been brought up in contact with two differing cultural heritages. Nevertheless, it is another indication that cultural factors are to be given weight in deciding the welfare of children. Many cases arising under the Family Law Act involve children who have real connections with two different cultural, racial or religious backgrounds. The principle that emerges from such cases is that while neither culture is to be preferred over the other, both may be of importance to the child. As a result, the implications of any order for the continuing connection of the child with each culture need to be considered.[157]

Clearly, the child’s Aboriginality, and the circumstances in which the child has been brought up, are relevant factors in such cases. Indeed, in all recent Australian cases, in both the Family Court and Supreme Courts, they have been expressly treated as relevant.[158] But it is one thing to treat them as relevant and another to create by legislation a preference for a parent of one race or cultural background as against another. Neither the Indian Child Welfare Act 1978 nor any equivalent legislation or ad ministrative guidelines so far enacted or adopted in North America or Australia have this effect — although such provisions do have the indirect but desirable effect of drawing attention to the conflicting cultural factors which are usually involved. In the Commission’s view no more specific provision is justified.[159] This recommendation makes it unnecessary to consider whether such a preference could be justified consistently with standards of equal protection or racial non-discrimination.[160]

  • Application to Juvenile Offenders. So far the discussion in this Chapter has concerned questions of child welfare in the ordinary sense (adoption, custody, guardianship or protection). However courts also have to make decisions affecting the long term future of children and young persons convicted of offences, and these decisions may affect guardianship and custody, for example by transferring guardianship to the State or to officials. It has been reliably estimated that ‘the numbers of children removed from their families and communities today by the juvenile justice system greatly exceed those removed under child welfare and adoption laws’.[161] Existing formulations of a placement principle, in Australia and (with one partial exception) North America, do not apply to sentencing decisions affecting juvenile offenders, even where those sentencing decisions affect custody or guardianship. The exception is the provision in the Indian Child Welfare Act 1978 (USA)[162] which applies the Act to ‘status’ offences involving children (ie, to offences which are criminal only because of the defendant’s age). This is to avoid what are really placement decisions being made under the guise of sentences for crimes, a problem that is particularly acute with offences such as ‘being an uncontrolled child’. The tendency in more recent years has been to insist on a stricter distinction between juvenile criminal proceedings and civil care or custody proceedings,[163] and many of the old ‘status’ offences have been repealed.[164] The potential still exists, given the range of additional sentencing powers of children’s courts, for decisions to be made affecting custody or guardianship in ‘genuine’ criminal proceedings. However a first priority should be to establish the placement principle in the areas of its primary applications, that is, the areas of civil custody, guardianship and adoption, etc. There are other ways in which information about cultural and other factors can be provided to courts sentencing Aboriginal juvenile offenders: some of these are referred to in Chapter 21 of this Report.[165] The matter should be kept under review, and consideration should be given to an extension of the placement principle to at least some categories of Aboriginal juvenile offenders if it appears that the juvenile justice system is being used as a way of avoiding the application of that principle.

368. Questions of Implementation. Given that legislation embodying an Aboriginal placement principle, along the lines suggested, is desirable, the question is whether the legislation should be federal legislation. The need for legislative guidelines at the federal level has been supported by the Family Law Council of Australia:

(ii) Council supports the view that the Commonwealth exercise its ‘aboriginal’ power to deal with the custody of all ‘aboriginal’ children whether of tribally married parents or not;

(iii) Council draws the attention of the Commission to the question whether, if this were done, it would be necessary to include in the legislation appropriate criteria or principles to assist in the determination of such proceedings, although the Council expresses no view about any such criteria at this stage.[166]

There would be advantages in the enactment of such a principle by the Commonwealth Parliament. The principle would apply throughout Australia, as a uniform standard of public policy. It would be likely to be better known within Aboriginal communities and organisations, and the chances of effective implementation would to that extent be increased. The Commonwealth already has some financial involvement in Aboriginal child care programs;[167] legislation could be seen as an appropriate accompaniment to this involvement. It is unlikely that similar uniformity or involvement would be achieved by action at State or Territory level. It is no doubt for such reasons that calls have been made, by the Aboriginal Child Care Agencies and other bodies, for federal legislation in this field.[168] On the other hand there are difficulties in the way of federal legislation in this field. Federal legislation would undoubtedly be regarded as an intrusion into a field child welfare — so far occupied by the States to the exclusion of the Commonwealth. It can also be argued that circumstances and child care programs vary so much around Australia that uniform legislation would not work.[169] The Social Welfare Administrators’ Working Party, in reviewing the Commission’s tentative proposal for federal legislation, made the following assessment:

The working party reviewed the proposal of the Australian Law Reform Commission for federal legislation of an Aboriginal placement principle, and considered the alternatives at State and Territory level. For legislation for an Aboriginal placement principle to be effective the following requirements were considered important:

— it should be integrated into the overall scheme of legislation governing the State or Territory;

— it should be responsive to the particular needs of the cultural requirements of the local Aboriginal population; and

— it should be able to be easily amended to cater for problems arising in the implementation phase.

The working party considered none of these requirements can be met by national legislation … It is recommended that each State, in consultation with appropriate Aboriginal communities and organisations, consider legislative provisions to enact the Aboriginal placement principle in State law and that following these consultations, consideration be given whether federal legislation is needed.[170]

The considerations referred to by the Working Party are very real ones. Provided that compliance with the underlying principles (which, it should be noted, the Working Party Report fully accepted) is secured by State or Territory legislation, they might be decisive against federal legislation. On the other hand Aboriginal opinions expressed to the Commission have been virtually unanimous in support of federal action, and as pointed out already, State law at present does not provide the secure protection the Working Party’s Report itself recognised was necessary. The matter will be discussed further in Chapter 38, in the context of the implementation of the Commission’s recommendations generally.

[144]See para 352.

[145]Aboriginal Children’s Research Project (NSW) Draft Principal Report (March 1982) 161.

[146]SWA Report, 33.

[147]id, 39.

[148]International Year of the Child National Committee of Non-Governmental Organisations, Aboriginal Children and the law (1979) 18. cf also WA Backlog Procedures Committee (1982) 15-16.

[149]Chisholm, Black Children, White Welfare? (1985) 110-11.

[150]However, SNAICC rejected the recommendations in the SWA Report, because of lack of consultation with and participation by Aboriginal groups, and especially the child care agencies, in formulating the Report, and also because of the Reports outright rejection of federal legislation in this field: SNAICC, First Interim Report (1985) 7.

[151]cf Chisholm, Black Children: White Welfare? (1985) 115-17.

[152]See para 368-373.

[153]See para 88-95.

[154]Chisholm, Black Children: White Welfare? (1985) 6.

[155]The exclusion of Torres Strait Islander children from guidelines or a placement principle would not be justified, but their inclusion in the Commission’s recommendation might be thought to present difficulties. See para 96 for discussion and see further Chapter 39 for the Commission’s conclusions on the application of its recommendations to Torres Strait Islanders in appropriate cases.

[156]cf Chisholm Black Children: White Welfare? (1985) 5-6.

[157](1984) 54 ALR 513, 526.

[158]See para 351.

[159]As R Chisholm, Submission 494 (29 August, 14 September 1985) pointed out, the position might very well be different if the courts tended to make ethnocentric judgements favouring non-Aboriginal parents or relatives, or in other ways to overlook the identity crises which many Aboriginal children brought up in non-Aboriginal families experience.

[160]For the consistency of the ICWA with these standards see para 137, 356. See generally para 158-165.

[161]Chisholm, ‘Destined Children’ (1985) 15 ALB 7, 8. See also para 396.

[162]ICWA 4(1). See para 353.

[163]See ALRC 18, Child Welfare, AGPS, Canberra, 1981, ch 5-8 for full discussion.

[164]cf id, para 118.

[165]See para 493, 514, 537.

[166]Submission 393 (28 November 1983) 3.

[167]See para 370.

[168]In addition to the views already cited, see Third Australian Conference on Adoption (1982) recommendation 1(1): ‘the Federal Parliament should enact an Aboriginal and Torres Strait Islander Child Care Act, in exercise of the power granted by s 51 of the Commonwealth Constitution’.

[169]The Director-General of the SA Department for Community Welfare commented that local consultation and decision-making ‘is seen as infinitely preferable to a centralised organisation as local groups are more likely to be aware of local issues and kinship networks and are more sensitive to these needs’. Submission 365 (17 December 1982) 2.

[170]SWA Report, Recommendations 38, 39.