The Prospects for Reform in Australia

359. State and Territory Initiatives. In considering the prospects for reform it is important to have regard to recent developments in some Australian States and Territories towards ensuring greater legal protection for Aboriginal children, and reducing the undesirable impacts of official intervention in those cases where it may be necessary. In 1983 the Northern Territory took the initiative in legislating for an Aboriginal child placement principle to apply in the placement of children found in need of care. Legislative and administrative changes in a number of the States also need to be considered.

360. Community Welfare Act 1983 (NT). This Act, which came into force in April 1984, includes an Aboriginal child placement principle which may be said to be inspired by aspects of the Indian Child Welfare Act 1978 (USA). Section 69 provides:

Where a child in need of care is an Aboriginal, the Minister shall ensure that —

(a) every effort is made to arrange appropriate custody within the child’s extended family;

(b) where such custody cannot be arranged to his satisfaction, every effort is made to arrange appropriate custody of the child by Aboriginal people who have the correct relationship with the child in accordance with Aboriginal customary law; and

(c) where the custody referred to in paragraph (a) or (b) cannot be arranged without endangering the welfare of the child after consultation with-

(i) the child’s parents and other persons with responsibility for the welfare of the child in accordance with Aboriginal customary law; and

(ii) such Aboriginal welfare organizations as are appropriate in the case of the particular child,

a placement that is consistent with the best interests and the welfare of the child shall be arranged taking into consideration-

(iii) preference for custody of the child by Aboriginal persons who are suitable in the opinion of the Minister;

(iv) placement of the child in geographical proximity to the family or other relatives of the child who have an interest in; and responsibility for, the welfare of the child; and

(v) undertakings by the persons having the custody of the child to encourage and facilitate the maintenance of contact between the child and its own kin and with its own culture.

The Act establishes a Family Matters Court (consisting of a magistrate). In the original discussion draft of the legislation circulated for comment[124] the placement principle set out in what is now s 69 was in terms applicable only to decisions of the Minister, not to those of the court. Section 43 of the Act now requires that the court consider the criteria contained in s 69 when an application that an Aboriginal child be found in need of care is made by the Minister. Section 43(e) provides that in such proceedings the court shall consider:

where the child is an Aboriginal — the person or persons to whom, in its opinion, custody of the child should be given should the child be found to be in need of care, having regard to the criteria imposed on the Minister by section 69.

The court is required to consider the importance of maintaining and promoting the relationship of the child with its parents, guardians and its extended family where appropriate,[125] thus enabling recognition to be given to the role of the extended family within Aboriginal communities. Section 43 also provides that any assessment of an Aboriginal child as in need of care should be determined in the light of the standards of the community in question:

(2) Subject to sub-sections (1) and (3), the Court shall only declare a child to be in need of care where it is satisfied that an order declaring the child to be in need of care would ensure that the standard of care of the child as a result of that order would be significantly higher than the standard presently maintained in respect of the child.

(3) For the purpose of sub-section (2), the Court shall, in assessing the standard of care of the child, consider the social and cultural standards of the community in which the parents, guardians or persons having the custody of the child (and, where appropriate, the extended family of the child) reside or with which they maintain social and cultural ties.

Section 69 in conjunction with s 43 thus specifies ways in which a placement decision can be challenged by Aboriginal people affected, on the grounds that it fails to take account of legitimate concerns relating to Aboriginal children.[126]

361. Adoption Act 1984 (Vic). Similar potential exists under the Adoption Act 1984 (Vic). Section50 (not yet proclaimed) provides that:

(1) The provisions of this section are enacted in recognition of the principle of Aboriginal self-management and self-determination and that adoption is absent in customary Aboriginal child care arrangements.

(2) Where-

(a) consent is given to the adoption of a child by a parent-

(i) who is an Aborigine; or

(ii) who is not an Aborigine but, in the instrument of consent, states the belief that the other parent is an Aborigine —

and who, in the instrument of consent, expresses the wish that the child be adopted within the Aboriginal community; or

(b) the Court has dispensed with the consent of the parents and the Director-General or principal officer of an approved agency believes on reasonable grounds that the child has been accepted by an Aboriginal community as an Aborigine and so informs the Court-

the Court shall not make an order for the adoption of the child unless the Court is satisfied as to the matters referred to in section 15 and, where a parent has given consent, is satisfied that the parent has received, or has in writing expressed the wish not to receive, counselling from an Aboriginal agency and-

(c) that the proposed adoptive parents are members, or at least one of the proposed adoptive parents is a member, of the Aboriginal community to which a parent who gave consent belongs;

(d) that a person of a class referred to in paragraph (c) is not reasonably available as an adoptive parent and that the proposed adoptive parents, or at least one of the proposed adoptive parents, is a member of an Aboriginal community; or

(e) that a person of a class referred to in paragraph (c) or (d) is not reasonably available as an adoptive parent and that the proposed adoptive parents are persons approved by or on behalf of the Director-General or the principal officer of an approved agency and by an Aboriginal agency as suitable persons to adopt an Aboriginal child.

(3) In this section, ‘Aboriginal agency’ means an organization declared by order of the Governor in Council … to be an Aboriginal agency in accordance with sub-section (4).[127]

Section 50 has to be read in conjunction with s 15, specifying the general criteria for the making of an adoption order. Section15 requires the Court to be satisfied, among other things that:

(b) the Director-General … has given consideration to any wishes expressed by a parent of the child in relation to the religion, race or ethnic background of the proposed adoptive parent or adoptive parents of the child; …

(d) the welfare and interests of the child will be promoted by the adoption.[128]

A number of comments may be made on the provisions of the Adoption Act 1984 (especially s 50) applying specifically to Aboriginal children:

  • Limitation to cases where parents consent. Section 50 is limited by the requirement, that (except where parental consent has been dispensed with) the parent’s written wishes that the child be adopted within the Aboriginal community must be given. The Act seeks to ensure that a parent is aware of the right to make such a request by a requirement as to counselling by an Aboriginal agency, which applies unless the parent has expressed the wish not to receive such counselling.

  • Condition of access by Aboriginal community members may be imposed. Section 37 (not yet proclaimed) enables parents to specify that consent to adoption is subject to a right of access to the child by parents, relatives and, in the case of Aboriginal children, to the Aboriginal community to which the child belongs:

In the case of a consent in which the wish is expressed under section 50 that the child be adopted within the Aboriginal community — a condition [may be imposed] that members of the Aboriginal community to which the child belongs have a right of access in accordance with the prescribed terms to the child.

  • Strict application of placement principle where s 50 applies. Where s 50 does apply, the effect of the priorities set out in s 50(2)(c)-(e) is strict. If no member of the consenting parent’s Aboriginal community or (if no such person is reasonably available) of another Aboriginal community is reasonably available, then the proposed adoptive parents must be persons approved by the ordinary adoption authorities and by an Aboriginal agency as suitable persons to adopt an Aboriginal child.[129] In such cases the Aboriginal agency has, in theory at least, power to prevent adoption of the child by persons it regards as unsuitable to adopt an Aboriginal child. The regime imposed by s 50(2)(c)-(e) is thus a relatively strict one, adding emphasis to the basic prerequisite that the consenting parent request its application.

  • Notification of Aboriginality. Sections 70(2) and 114 of the Act together establish machinery by which Aboriginal children to whom s 50 applies (and the adoptive parents of such children) are to be given notice, when the child reaches 12 years of age, `to the effect that the adopted child may be entitled to certain rights and benefits that exist for the benefit of the child’.[130]

  • Relation to other provisions for guardianship and child welfare. As s 50(1) of the Act expressly recognises, ‘adoption is absent in customary Aboriginal child care arrangements’. The Children (Guardianship and Custody) Act 1984 (Vic), introduced together with the Adoption Act, makes new provision for forms of long term guardianship or custody by members of the child’s family or ‘relatives’, not involving adoption in the ordinary sense. As the Minister pointed out in introducing that Act:

Guardianship and custody orders are particularly suitable for Aboriginal families, since they are more consistent with Aboriginal cultural values than adoption.[131]

Although the Act does not in terms establish a placement principle along the lines of s 50 of the Adoption Act 1984 (Vic), it does establish two rules which will assist in ensuring that decisions as to guardianship and custody are made consistently with that principle. First, s 12(12) of the Act defines a ‘spouse’, in relation to a parent or relative, to include a person who is traditionally married under Aboriginal customary laws.[132] The effect will be to recognise a broader range of ‘relatives’ (as defined in s 3) eligible to apply for guardianship or custody under the Act. Secondly s 12(5) provides that the Court shall not make an order for guardianship or custody under the Act in respect of an Aboriginal child ‘unless the Court has received a report from an Aboriginal agency’, a term which has the same meaning as it does in the Adoption Act 1984 (Vic).[133] Since it is not proposed that the Aboriginal placement principle should establish a statutory preference in favour of Aboriginal as against non-Aboriginal relatives[134] and since the Act is concerned only with long-term guardianship of ‘relatives’ as broadly defined (s 12(2), (12)) the Act seems fully consistent with the placement principle in the Adoption Act 1984 (Vic). The Children (Guardianship and Custody) Act 1984 provides a suitable alternative form of placement for Aboriginal children, and it will be reinforced by the restraints imposed by s 50 of the Adoption Act 1984 where adoption outside the extended family is proposed as an alternative.

362. Family and Community Development Bill 1984 (Qld). Provisions of this Bill, tabled in Parliament on 26 April 1984 as a discussion draft, seek to ensure that a child’s Aboriginality is taken into account by the court in hearing applications for child protection orders. Clause 181(vii) provides that, in proceedings for the protection of children in need of protection, the court shall take account of the need `to foster and assist the indigenous, ethnic and cultural identity of a child, his parents and other members of his family’. Similarly cl 196(2) provides that where a child is under the guardianship or custody of the Director it shall be the duty of the Director, among other matters, to:

(c) give preference to placing the child-

(i) in geographic proximity to his family;

(ii) with persons who share the child’s indigenous, ethnic or cultural background, unless, in the opinion of the Director, it is not reasonably practicable to do so or it is not in the welfare and interests of the child to do so.[135]

These provisions do not go as far as either the Victorian or Northern Territory provisions, nor as far as the Queensland Department of Children’s Services own draft policy guidelines.[136] They do not provide that any assessment of an Aboriginal child as in need of protection should take account of the relevant standards found in that child’s community. They make no provision for Aboriginal involvement and leave decision making to the Director of Children’s Services.[137] Nevertheless they do represent a step forward, especially if they are to be implemented in the light of the Department’s draft guidelines. Apparently new regulations are proposed under the Adoption of Children Act Amendment Act 1983 (Qld) that will take account of Aboriginal child care principles.[138]

363. Community Welfare Act 1982 (NSW). This Act, only some provisions of which have been proclaimed, spells out the implications of the ‘paramount consideration’ of the welfare of the child in cross-cultural situations. Section 81(4) provides:

Where the court is of the opinion that a child the subject of a [care] application … has been brought up substantially in accordance with the culture of a particular ethnic group or is regarded as belonging to a particular ethnic group, the court shall not, unless the child has expressed a wish to the contrary, make an order [for wardship or institutional care] … unless it has taken into account the desirability and feasibility of making an order … placing the child in the custody of a person belonging to that ethnic group.

In performing its duty under s 81(4) the Court must have regard to a report prepared by a competent person ‘dealing with the conflict of cultural factors’ involved.[139] No doubt it was intended to include Aborigines as one ‘ethnic group’ covered by s 81(4), although the term ‘ethnic’ does not necessarily include indigenous groups such as Aborigines, and the Act itself distinguishes, in s 5, between ‘Aborigines, as defined in section 2(1) of the Aborigines Act, 1969’ and ‘members of an ethnic group’.[140] It may be that a placement principle, similar to that recommended for Aboriginal children, should be enacted for children of immigrant communities with distinctive cultures of their own, though this is, of course, outside the Commission’s Terms of Reference.[141] But one could not justify a placement principle for ethnic children to the exclusion of Aboriginal children. For this reason at least, s 81(4) may well be construed more broadly. But it would be desirable for the matter to be put beyond doubt by an amendment to the Act.

364. Other States and Territories. In South Australia the Adoption of Children Regulations, reg 17(2) provides that:

The Director General may also waive one or more of the criteria where it is desirable that a child should be adopted by applicants of the same racial origin and approved prospective adopters of that racial origin who meet all the criteria are not available.

The criteria referred to are those established by the Regulations pursuant to s 72(1a) of the Adoption of Children Act 1966 (SA). There is no power to waive statutory criteria for adoption (such as recognised marriage). Nor are there specific provisions in the adoption or child welfare legislation of South Australia,[142] Western Australia, Tasmania or the Australian Capital Territory which address Aboriginal child welfare issues in any of the specific ways outlined in the previous paragraphs.[143]

[124]Community Welfare Bill 1983 (NT), tabled in the Legislative Assembly, 24 March 1983. The Commission expresses its appreciation to the NT authorities for the opportunity to comment in detail on aspects of the legislation.

[125]s 43(1)(c).

[126]See also s 4(3)(b) (definition of ‘maltreatment’ by reason of severe psychological or social malfunctioning to be ‘measured by the commonly accepted standards of the community to which [the child] belongs’), 68 (requiring the Minister to ‘provide support and assistance to Aboriginal communities and organisations as he thinks fit in order to develop their efforts in respect of the welfare of Aboriginal families and children, including the promotion of the training and employment of Aboriginal welfare workers’), 70 (providing for an agreement with a community government council or incorporated association for it to undertake functions under this Act in relation to the welfare of children’), s 77(e) (providing for the licensee of a licensed children’s home to record as far as reasonably ascertainable ‘the race or ethnic origin’ of any child received into the home).

[127]s 50 provides for the criteria for Aboriginal agencies and related matters. In particular it provides that for an organization to be ‘declared’ under s 50(3) the Director-General must be satisfied that it is ‘managed by Aborigines, that its activities are carried on for the benefit of Aborigines and that it has experience in child and family welfare matters’. s 50 has not yet been proclaimed.

[128]For the Act’s recognition of traditional Aboriginal marriage for the purpose of qualification for adoption see para 281.

[129]It is proposed to proclaim the Victorian Aboriginal Child Care Agency as an Aboriginal agency under s 50. Similar agencies which may be established in country areas may also be proclaimed: Director-General, Victorian Department of Community Welfare Services, Submission 416 (9 May 1984).

[130]s 114(2). Neither s 37 or s 114(2) have yet been proclaimed.

[131]Victoria, Parl Debs (Legislative Assembly) (2 May 1984) 4245 (Hon P Toner MLA).

[132]See para 277.

[133]These provisions were added to the Bill in response to criticism that in its earlier version it did not conform to the Aboriginal child welfare provisions in the Adoption Bill. See eg P MacKenzie, Submission 409 (14 August 1984) 2.

[134]See para 367.


[136]See para 352.

[137]See para 373.

[138]SWA Report, 15.

[139]s 81(3).

[140]s 5(1)(c)(iv), (vii). s 5(1)(c)(vi) defines all Aborigines as ‘persons disadvantaged’ and in need of assistance. There is no definition of ‘ethnic group’ in the Act. It would be open to a Court, in the light of s 5, to hold that Aborigines are not an ‘ethnic group’ and are therefore excluded from the rather limited protection of s 81(4).

[141]For the distinction between recognition of Aboriginal customary laws and of immigrant traditions see para 163. It should be said that there is no evidence of the disproportionate impact of the child welfare system on immigrant families such as has long existed, and continues to exist, in the case of Aborigines. See para 345.

[142]However the SA Department of Community Welfare has adopted a proposal for Community Self-Management of Aboriginal Welfare Services: Department for Community Welfare, (M Harris) Submission 439 (8 June 1984). A discussion paper circulated to Aboriginal communities stated that: The aim of community self management is to provide local people with direct control over their own welfare services to families and individuals so that they meet the needs of the local community, are related to Aboriginal culture and the natural caring within communities is extended. (id, 3).

[143]The Community Welfare Act 1972 (SA) s 10(4) provides that:

In recognition of the fact that this State has a multi-cultural community, the Minister and the Department shall, in administering this Act take into consideration the different customs, attitudes and religious beliefs of the ethnic groups within the community.

cf para 363 on the meaning of ‘ethnic group’ in this context.