POINTS FOR FURTHER DISCUSSION
Aboriginal children
1. Should Aboriginal children ever be placed for adoption?
2. If they are to be placed, should there be an Aboriginal placement principle incorporated in legislation?
3. If so, in what form? What preferences should be made for placement and who should have the ultimate power of placement?
4. Who is an Aboriginal child? Should the definition of Aboriginality be simplified for children so that an Aboriginal child is defined as a child of Aboriginal descent?
5. The Victorian Adoption of Children Act 1984 states that provisions 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”. Should New South Wales legislation make a similar acknowledgment?
6. Is it symbolically or practically important for legislation to state that Aboriginal law does not recognise adoption and that the adoption of an Aboriginal child involves the imposition of non-Aboriginal child care principles on Aboriginal children?
7. Should relinquishing parents be able to prevent the placement of their child with an Aboriginal family or do the interests of Aboriginal people as a group demand that this not be the case?
8. Should there be a blanket prohibition on the adoption of Aboriginal children into non-Aboriginal families or should there be provision made for adoption by non-Aboriginal families if no Aboriginal family is available or if it is in the best interests of the child?
9. Should there be a prohibition on the adoption of Aboriginal children by any family on the grounds that adoption is incompatible with customary law?
Torres Strait Islander children
10. To what extent does New South Wales adoption law affect Torres Strait Islander children?
11. Should provision be made for traditional Torres Strait Islander adoption to be recognised by New South Wales law?
12. Alternatively, should Torres Strait Islander children be afforded the same protection as Aboriginal children by the enactment of a Torres Strait Islander placement principle?
INTRODUCTION
8.1 Aboriginal customary law and racial and ethnic heritage are considered separately even though there are significant ways in which they overlap. Chapter 8 will deal with adoption and the Aboriginal and Torres Strait Islander communities while Chapter 9 will cover ethnic and racial heritage generally. This has been done because although any discussion of the adoption of Aboriginal and Torres Strait Islander children will raise issues of racial heritage, the Commission considers it appropriate to distinguish the adoption of indigenous (ie Aboriginal and Torres Strait Islander) children from the adoption of children who are not indigenous. There are two main reasons for doing this. First, Aborigines and Torres Strait Islanders are not part of the large group of multicultural people who have migrated to Australia since 1788 and they should not be treated as such.
8.2 Second, adoption law has a special history of impacting in a unique and damaging way on the Aboriginal and Torres Strait Islander people. For this reason there are particular factors that need to be considered in a discussion of adoption of Aboriginal and Torres Strait Islander children.
8.3 Although the Commission’s terms of reference only refer to “Aboriginal customary law and racial and ethnic heritage”, this chapter will include discussion of Torres Strait Islander children.1
BACKGROUND
8.4 Aboriginal communities have been, and continue to be adversely affected by adoption. From 1883 until 1969, under the Aborigines Protection Board and later the Aborigines Welfare Board, it was government policy in New South Wales and other States, to forcibly remove Aboriginal children from their families.2 Children were placed in homes and trained as domestic servants or station hands. In later years, some children, particularly those who were ‘light enough to pass as white’, were fostered or adopted by non-Aboriginal families.
8.5 The Convention on the Prevention and Punishment of the Crime of Genocide 1948 defines “forcibly transferring children of [one] group to another group” with “the intent to destroy, in whole or in part, a...racial...group” as genocide.3 Australian government policies of that time would clearly fall within the terms of the Convention.4 The removal of children was part of the wider policy of assimilation which attempted to socialise Aboriginal people into non-Aboriginal culture and habits so that they would not maintain their own culture. In the case of children this process has been described as “break[ing] the sequence of indigenous socialisation so as to capture the adherence of the young, and to cast scorn on the sacred life and the ceremonies which remain as the only hold on continuity with the past”.5
8.6 The policy of assimilation is clearly illustrated in this statement from the Aborigines Protection Board, dated 1914.
Several...were handed over to the State Children’s Relief Department as neglected children. These will not be allowed to return to their former associations, but will be merged into the white population.
To allow these children to remain on the Reserves to grow up in comparative idleness, and in the midst of more or less vicious surroundings, would be to say the least an injustice to the children themselves, and a positive menace to the State.6
8.7 The policy of removal of children continues to be the source of much suffering in Aboriginal communities. The experiences children had in homes were rarely, if ever, positive. The children were invariably treated as inferior and denied access to their families, communities and heritage. Children who were fostered or adopted often suffered the same fate, despite the well-meaning intentions of some adoptive and foster families. One commentator states that:
Every one of the five thousand children removed from their parents had, and have, their own private and bitter memories of separation and later problems of adjustment. From the point of view of the Aboriginal race as a whole, we can hardly guess at the cost of wasted talent of those who spent a decade in the service of the whites. We can hardly guess at the number of men and women who deny their own birth-right as Aboriginal citizens of Australia. The comparisons must tell the story. Perhaps one in six or seven Aboriginal children have been taken from their families during this century, while the figure for white children is about one in three hundred. To put it another way, there is not an Aboriginal person in New South Wales who does not know, or is not related to, one or more of his/her countrymen who were institutionalised by the whites.7
8.8 The policy of removal and its effect must be remembered when considering the question of Aboriginal children and adoption today. As a result of the removal of children, Aboriginal people have a justifiable suspicion of, and resistance to, non-Aboriginal welfare authorities deciding the fate of their children. Adoption potentially represents a means by which Aboriginal children are removed from the care of their communities and placed with non-Aboriginal families. Children may lose contact with their heritage and even be denied the knowledge of their Aboriginality, as has been the case in the past. In this sense, adoption can be seen as a threatening and potentially damaging option from the point of view of Aboriginal people.
ADOPTION AND ABORIGINAL LAW
8.9 Adoption, as it is currently defined, is an unknown institution in Aboriginal customary law. The separation of children from natural families and the absolute transfer of parental rights are incompatible with the basic tenets of Aboriginal society.
8.10 In its submission to the Commission, the Aboriginal Children’s Service stated that:
More than any other form of substitute care, adoption is perhaps most alien to Aboriginal thinking because, in its present form, it can totally and permanently separate an Aboriginal child from his family and potentially all Aboriginal people...
Adoption legislation...is simply inadequate to deal with the special needs of Aboriginal children. Aboriginal children are not regarded in Aboriginal society as in the same way, property of the parents as they are in Anglo-Australian society. Often parents are not married, at least in any form recognised by Australian law. Further, the matter of secrecy is not nearly as appropriate as it is, or at least has been, in the case of children adopted within the Anglo-Australian community. Finally, the kinship networks available within the Aboriginal communities are such that adoption may be a form less useful in relation to at least some Aboriginal children than it is in the case of the nuclear family structures of Anglo-Australian society.8
8.11 Adoption is a culturally specific way of caring for children that has its roots in non-Aboriginal concepts of family. Aboriginal families do not necessarily function on the same premises as non-Aboriginal families; they have unique features which must be considered when determining appropriate ways to care for Aboriginal children.
A dominant feature characteristic of most [Aboriginal] families is the sense of kinship. This is the feeling of family togetherness, the ability to rely on each other, and the creation of spiritual bonding which helps to form strong family relationships. Kinship also includes the creation of inter-dependence and support between the members of a family...Spiritual bonding is the bonding which goes beyond a blood relationship. This is a bond which passes on a bit of the Dreamtime, thus passing on ‘Aboriginality’.9
8.12 It is possible for adoption legislation to acknowledge this difference between Aboriginal and non-Aboriginal families and to recognise that adoption is not part of Aboriginal law. The Victorian Adoption of Children Act 1984 states that provisions 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”.10
- Should New South Wales legislation make a similar acknowledgment?
- Is it symbolically or practically important for legislation to state that Aboriginal law does not recognise adoption and that the adoption of an Aboriginal child involves the imposition of non-Aboriginal child care principles on Aboriginal children?
ABORIGINAL PLACEMENT PRINCIPLE
8.13 The Australian Law Reform Commission, in its report The Recognition of Aboriginal Customary Laws, stated that:
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 the future of Aboriginal children.11
8.14 The Adoption of Children Act 1965 (NSW) currently has no specific provision for the placement of Aboriginal children. The Department of Community Services has a draft policy on the placement of Aboriginal children that stipulates that Aboriginal children are to be placed with Aboriginal families unless no Aboriginal family is available.
8.15 The Adoption of Children Act 1965 could deal expressly with the placement of Aboriginal children by including some form of the Aboriginal Child Placement Principle in its sections. The Aboriginal Child Placement Principle, developed in the late 1970s, includes two components:
First, there is a guideline for the placement of children (in descending order of preference) with members of their own or immediate family; or with members of their community; or with other Aboriginal people. Only if none of these placements can be made should they be placed in the care of non-Aboriginal people. Second, there should be Aboriginal participation in the decision-making process. Opinions differ about what this second component should involve. Aboriginal claims to self-determination or sovereignty suggest that Aboriginal people should have authority to determine placement, while more conservative opinion would merely seek to ensure that Aboriginal views are taken into account when the decision is made.12
8.16 This principle has found varied expression in legislation and policy throughout Australia. The following illustrate the differences in State and Commonwealth perceptions of the principle.
Former Department of Aboriginal Affairs Child Care Placement Principle
8.17 The former Commonwealth Department of Aboriginal Affairs drafted a Child Care Placement Principle which continues to be used by the Aboriginal and Torres Strait Islander Commission. It states that:
When a child is to be placed outside his/her natural family, then the order for priority of placement should be:
- a member of the child’s extended family;
- other members of the child’s Aboriginal Community who have the correct relationship with the child in accordance with Aboriginal customary law, and
- other Aboriginal families in close proximity.13
Children (Care and Protection) Act 1987 (NSW)
8.18 The New South Wales Children (Care and Protection) Act 1987, in its provision for children in need of care, stipulates that:
87. An Aboriginal child shall not be placed in the custody or care of another person under this Part unless:
(a) the child is placed in the care of a member of the child’s extended family, as recognised by the Aboriginal community to which the child belongs;
(b) if it is not practicable for the child to be placed in accordance with paragraph (a) or it would be detrimental to the welfare of the child to be so placed - the child is placed in the care of a member of the Aboriginal community to which the child belongs;
(c) if it is not practicable for the child to be placed in accordance with paragraph (a) or (b) or it would be detrimental to the welfare of the child to be so placed - the child is placed in the care of a member of some other Aboriginal family residing in the vicinity of the child’s usual place of residence; or
(d) if it is not practicable for the child to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the welfare of the child to be so placed - the child is placed in the care of a suitable person approved by the Director-General after consultation with:
Adoption of Children Act 1964 (Qld)
8.19 In Queensland the Adoption of Children Act 1964, s 18A provides a general guideline for the placement of children with an “indigenous or ethnic background”.
In making arrangements with a view to the adoption of a child in respect of whom a general consent has been given or dispensed with and, in particular, in determining which prospective adopter or prospective adopters he will approve in the case of such a child the Director shall have regard to the indigenous or ethnic background and cultural background of the child and shall approve a prospective adopter who, or prospective adopters one of whom, has a similar indigenous or ethnic background and cultural background, unless -
(a) it appears to the Director that such a prospective adopter or prospective adopters is not or are not available and cannot reasonably be expected to become available promptly; or
(b) in the Director’s opinion, the welfare and interests of the child would not be best served by so doing.
Adoption of Children Act 1984 (Vic)
8.20 The Adoption of Children Act 1984 (Vic), s 50 provides that:
(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.
8.21 These provisions illustrate the great variety of legislative and policy statements incorporating the Aboriginal Child Placement Principle. Each provides for a different process by which the decision to place a child is reached. Each gives a different party the ultimate power to make the placement. The Children (Care and Protection) Act 1987 (NSW) designates the child’s extended family as the first placement choice and gives the Director-General the ultimate power to place a child, only requiring that he or she must “consult” with the child’s extended family or an appropriate Aboriginal organisation. The Queensland legislation does not require the child to be placed with his or her family or community at all and the Director of the relevant government department does not need to consult with Aboriginal organisations; he or she simply must consider the child’s indigenous or ethnic background when making a placement. The Victorian Act allows the relinquishing parent power to determine if the child is to be placed in an Aboriginal community or if consent has been dispensed with, the child may be placed with non-Aboriginal adoptive parents on the joint approval of the Director General/principal officer of an adoption agency and a suitable Aboriginal agency.
8.22 All of these legislative schemes allow for the possibility of placing a child in a non-Aboriginal family and none of them gives the ultimate power of placement to the Aboriginal community.
A legislative alternative - Aboriginal placement power
8.23 The Aboriginal Children’s Service recommended a system that would put the power of placement in its hands.
...no adoption of an Aboriginal child shall take place unless approved by the New South Wales Aboriginal Children’s Service Ltd. If approval is given for the placement of an Aboriginal child, then the following conditions will apply;
1. Provision is to be made for information and/or access by recognised members of that child’s kinship network and/or continuance of the legal relationship with the natural parents.
2. Placement of that child can be given to any person, irrespective of marital status or relationship, who is approved by the New South Wales Aboriginal Children’s Service and that regular and on-going contact be maintained by the New South Wales Aboriginal Children’s Service.
3. That formal recognition of a child’s Aboriginality be established in conjunction with a representative body of the Aboriginal Community and a register be maintained and distributed throughout the Aboriginal Organisations in the respective areas.
4. That all persons on this register be notified of their Aboriginal ancestry throughout their lives and informed of the consequent rights which flow to them.
5. That the placement principles be incorporated in legislation, giving the New South Wales Aboriginal Children’s Service the determining role of placements and that this priority be:
a) extended family
b) other members of the kinship network
c) other Aboriginal families.
6. That the New South Wales Aboriginal Children’s Service be involved in all placement arrangements in adoption.15
8.24 Such a legislative scheme would involve a significant change in current adoption practice in relation to Aboriginal children. It would be compatible with the principles of Aboriginal self-determination and self-management.16 The scheme would involve the transfer of placement power in relation to Aboriginal children from the Department of Community Services to the Aboriginal Children Service. It would result in a completely separate adoption service for Aboriginal children.
Questions to consider
8.25 In enacting an Aboriginal child placement principle several questions need to be addressed.
- What preferences should be listed for the placement of Aboriginal children relinquished for adoption? The child’s immediate family, extended family, kinship network, the child’s own community or a nearby community or whoever would have been required to care for the child according to traditional law?
- Who should have the ultimate power to decide where to place a child? The Director-General of the Department of Community Services, an Aboriginal organisation such as the New South Wales Aboriginal Children’s Service, the relinquishing parent, the child’s extended family and kinship network or a combination of any of these?
- Should relinquishing parents be able to prevent the placement of their child with an Aboriginal family or do the interests of Aboriginal people as a group demand that this not be the case?
- Should there be a blanket prohibition on the adoption of Aboriginal children into non-Aboriginal families or should there be provision made for adoption by non-Aboriginal families if no Aboriginal family is available or if it is in the best interests of the child?
- Should there be a prohibition on the adoption of Aboriginal children by any family on the grounds that adoption is incompatible with customary law?
WHO IS AN ABORIGINAL CHILD?
8.26 Non-Aboriginal definitions of Aboriginality have been the source of much resentment in the Aboriginal community over the years, with each State having its own definition of Aboriginality prior to 1967.17 In the early 1970s the Federal government generated a definition that most Aboriginal people accept today. This defines an Aborigine as a person of Aboriginal descent, who identifies as an Aborigine and who is accepted as such by the community in which he or she lives.18 In the Issues Paper, the Commission noted that this definition has been embodied in New South Wales legislation such as the Aboriginal Land Rights Act 1983.19
8.27 The definition presents particular problems for Aboriginal children. First and most obviously, a baby relinquished for adoption cannot ‘identify as an Aborigine’ and if his or her community is not aware that he or she has been born, it cannot accept him or her as an Aborigine. Birth parents may declare their child’s Aboriginality, but this does not always happen. Aboriginal and non-Aboriginal birth mothers may not declare their child’s Aboriginality intentionally, or because they do not know their child is Aboriginal. They may not know because they are unaware of the father’s Aboriginality or because they are unaware of their own Aboriginality. Many people removed or relinquished from their families in the past were never informed of their Aboriginality and may not discover it until they access information under adoption information legislation. Some may never discover their Aboriginality at all.
8.28 Older children who are wards of the State and are subsequently adopted may also be unaware of their Aboriginality. Alternatively, the children may know they are Aboriginal but it has never been marked on their files by the Department of Community Services. The Aboriginal Children’s Project discovered in 1982 that 40.7% of Aboriginal children in institutional care were not identified as Aboriginal on Department files.20 The Project noted that “one factor behind the degree of under-identification is that departmental staff involved with state wards are...inclined to see the children in an assimilationist perspective”.21 That is, there was still a tendency to draw children away from their Aboriginal community when workers assumed they were acting in the best interests of the child.
8.29 The problem of identifying Aboriginal children needs to be addressed in adoption legislation. There is little point in providing for an Aboriginal child placement principle if children are going to be denied the benefit of it by not being recognised as Aboriginal. Perhaps the accepted definition of Aboriginality needs to be modified for children so that it simply states that an Aboriginal child is a child of Aboriginal descent.22 This would avoid the difficulty of children not being able to actively identify as Aboriginal because they are too young or have not been informed of their racial identity.
FINDING ABORIGINAL ADOPTIVE PARENTS
8.30 Under the current system the Department of Community Services actively seeks Aboriginal adoptive parents for Aboriginal children. In the Department’s view, the provision of the Adoption of Children Act allowing people married by Aboriginal tradition to adopt has been helpful in approving Aboriginal couples as adoptive parents.23
8.31 In most cases it seems that Aboriginal children are placed with Aboriginal families. However, the Department has difficulty finding Aboriginal families for special needs children with particular disabilities and these children are sometimes placed with non-Aboriginal families.
8.32 The Commission would appreciate submissions on the question of whether more needs to be done to recruit Aboriginal adoptive parents. In particular, is it sufficient to recruit adoptive parents from any Aboriginal community or should the Department be seeking adoptive parents from the child’s extended family and/or kinship network?
ADOPTION AND TORRES STRAIT ISLANDER LAW
8.33 Unlike Aboriginal law, Torres Strait Islander law recognises adoption in a form that is not totally dissimilar to New South Wales adoption law. Adoption in Torres Strait Islander communities involves the permanent transfer of parental rights to adoptive parents and there is a reluctance to tell children of their adoptive status.24 In contrast to Australian adoption law however, adoptive parents are never strangers to the biological parents, but members of the extended family or close friends. Adoptive parents may be single or married, and may already have children of their own. Adoption provides stability to Islander society by developing bonds between families.25
8.34 Torres Strait Islanders have been involved in formal discussions with the Queensland State Government since 1990 with the aim of having Islander adoptions recognised by Queensland adoption legislation.
Islanders perceive that in white society ‘adoption’ provides adopters with legal security to raise a child as though that child were born to the adoptive family. They consider that their concept of permanence in traditional adoption also means that the adopted child becomes fully a member of the adoptive family; therefore they consider white adoption legislation is the most appropriate avenue by which to apply for recognition of their traditional practice.26
8.35 The Queensland government has been reluctant to recognise Islander adoptions within existing legislative framework because workers in the Department of Family Services believe that Islanders would be disadvantaged by applying closed Queensland adoption legislation to open Islander adoption practice.
8.36 The Commission is interested to explore these issues in relation to New South Wales. In particular, the Commission would welcome information on the extent to which New South Wales adoption law affects Torres Strait Islander children. If it is found that Torres Strait Islander children are being adopted under New South Wales law, the Commission will need to consider the same issue that is being addressed in Queensland; in particular should New South Wales law recognise Torres Strait Islander adoption practice? If so, should legislation treat Islander adoption in the same way as it treats all other adoption or should legislation be enacted to accurately reflect existing adoption practice in the Torres Strait Islands? Alternatively, should Torres Strait Islander children be afforded the same protection as Aboriginal children with a placement principle that requires any Torres Strait Islander child surrendered for adoption to be placed with a Torres Strait Islander family?
INTERNATIONAL LAW
8.37 The Convention on the Rights of the Child grants specific rights to indigenous children and must be respected by adoption legislation.
8.38 Article 30 stipulates that:
In those States in which...persons of indigenous origin exist, a child...who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her culture, to profess and practice his or her own religion, or to use his or her own language.
8.39 Put another way, Aboriginal and Torres Strait Islander children have a right to enjoy their culture with members of the Aboriginal and Torres Strait Islander communities. Adoption legislation must not effectively deny children this right by placing them where they will have no opportunity to exercise their right.
8.40 Article 5 requires State Parties to respect:
the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom...to provide...appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.
8.41 This recognises the right of Aboriginal and Torres Strait Islander families and communities to play a part in the process whereby a child benefits from the rights granted to him or her by the Convention. This includes the right to enjoy one’s culture in article 30 above. It would also include the right to “alternative care” that the State must provide for the child according to article 20, if the child is permanently or temporarily deprived of his or her family.27 In other words, Aboriginal and Torres Strait Islander families and communities have the right to provide direction and guidance when children are benefiting from their right to alternative care.
8.42 Interestingly, article 20(3) of the Convention, cited by the Commission in the Issues Paper,28 makes no reference to indigenous children. The article requires “due regard [to] be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” when making an adoption, foster or institutional placement. The Convention makes explicit reference to indigenous children elsewhere29 so it would seem surprising that they were inadvertently omitted from this section. It could be argued that they were intentionally omitted on the grounds that continuity of indigenous background is not simply desirable, it is essential. Perhaps the article is implying that indigenous children should never be placed outside their communities.
8.43 Such a contention is born out by operative paragraph 6 of the Draft Declaration on the Rights of Indigenous People. This states that:
8.44 This article expressly states that indigenous children should not be removed from their families and communities under any pretext, presumably including adoption. While this article is not legally binding in relation to Australia, it should be recalled when considering alternative care options for Aboriginal and Torres Strait Islander children. When the Convention is finalised, Australia, as a country with an indigenous population, is likely to sign and ratify the Convention.
Conclusion
8.45 The placement of Aboriginal children for adoption is a difficult and contentious issue. The damaging impact that welfare laws have had on Aboriginal children and their communities in the past leads Aboriginal people to justifiably question the wisdom of adoption legislation.
8.46 Despite these concerns, Aboriginal children are still placed for adoption. As a result, the following four main questions need to be addressed.
- Should Aboriginal children ever be placed for adoption?
- If they are to be placed, should there be an Aboriginal placement principle incorporated in legislation?
- If so, in what form? What preferences should be made for placement and who should have the ultimate power of placement?
- Who is an Aboriginal child? Should the definition of Aboriginality be simplified for children so that an Aboriginal child is defined as a child of Aboriginal descent?
8.47 In answering these questions it should be remembered that a significant proportion of Aboriginal children that the Department currently places are children with special needs, who may have physical and mental disabilities of varying severity.
8.48 The adoption of Torres Strait Islander children raises different questions, namely:
- To what extent does New South Wales adoption law affect Torres Strait Islander children?
- Should provision be made for traditional Torres Strait Islander adoption to be recognised by New South Wales law?
- Alternatively, should Torres Strait Islander children be afforded the same protection as Aboriginal children by the enactment of a Torres Strait Islander placement principle?
8.49 The Commission would appreciate responses to these issues, especially from members of the Aboriginal and Torres Strait Islander community.
FOOTNOTES
1. This is on the advice of the Aboriginal and Torres Strait Islander Commission (ATSIC) who recommended the Commission include Torres Strait Islander Children in its deliberations, given the number of Torres Strait Islanders in New South Wales: Aboriginal and Torres Strait Islander Commission Submission (6 October 1993) at 9.
2. C Edwards and P Read The Lost Children (Doubleday, Sydney, 1992); B Cummings Take This Child... (Aborigines Studies Press, Canberra, 1990); R Chisholm “Aboriginal Children: Political Pawns or Paramount Consideration” in J Jarred Child Welfare: Current Issues and Future Directions (No 34, Social Welfare Reports and Proceedings, 1983) at 43; R Chisholm Black Children: White Welfare (Social Welfare Research Centre Proceedings, no 52, 1985) at 10-32.
3. Article II(e).
4. Unfortunately, it would be impossible to argue Australia was actually in breach of the Convention prior to 1961 as the Convention did not come into force until that year.
5. C D Rowley The Remote Aborigines (Penguin, Harmondsworth, 1972) at 115.
6. Aborigines Protection Board Report, 1914 cited in R Chisholm “Aboriginal Children: Political Pawns or Paramount Consideration” at 49.
7. P Read The Stolen Generations: The Removal of Aboriginal Children in New South Wales 1883 to 1969 (New South Wales Ministry of Aboriginal Affairs, Occasional Paper (no 1)).
8. Aboriginal Children’s Service Submission (12 July 1993) at 2, 6.
9. Y Walker “Aboriginal Concepts of the Family” (1993) 18(1) Children Australia 26 at 26.
10. Section 50(1).
11. Australia. Law Reform Commission The Recognition of Aboriginal Customary Laws (Report 31, vol 1, 1986) at para 366.
12. R Chisholm “Aboriginal Children and the Placement Principle” (1988) 31(2) Aboriginal Law Bulletin 4 at 4.
13. Aboriginal and Torres Strait Islander Commission Submission (6 October 1993) at 7.
14. See R Chisholm “Aboriginal Children and the Placement Principle” (1988) 31(2) Aboriginal Law Bulletin 4 for a discussion of s 87.
15. Aboriginal Children’s Service Submission (12 July, 1993).
16. There may be resistance to such a scheme on the grounds that it does not give sufficient weight to the birth mother’s view in the placement of her child. For example, a birth mother may not want her child placed in the child’s extended family or kinship network or even with an Aboriginal family. She may wish to relinquish her child and maintain her privacy without members of her community becoming aware of her decision. Serious legal disputes between birth mothers and Indian tribes have arisen in the United States where the Indian Child Welfare Act 1978 (USA) has been used to try and prevent placements with non-Indian adoptive parents of the birth mother’s choice: D DeBenedictis “Custody Controversy” (1990) 76 American Bar Association Journal 22.
17. R Sykes Black Majority (Hudson Hawthorn, Melbourne, 1989) at 10; Aboriginal Children’s Research Project Identifying Aboriginal children in non-Aboriginal substitute care (Discussion Paper 5, 1982) at 6-7.
18. Sykes at 25.
19. New South Wales. Law Reform Commission, (Issues Paper 9, May 1993) at para 9.3.
20. Aboriginal Children’s Research Project Identifying Aboriginal children in non-Aboriginal substitute care at 29.
21. Aboriginal Children’s Research Project at 30.
22. This definition was used in the report Black Children: White Welfare on the grounds that it “seemed to be the definition adopted, or taken for granted, by all Aboriginal people with whom [the author] spoke” at 6.
23. Section 19(1a)(c).
24. P Ban “The Quest for Legal Recognition of Torres Strait Islander Customary Adoption Practice” (1993) 60(2) Aboriginal Law Bulletin 4 at 4.
25. P Ban at 4.
26. P Ban at 4.
27. “1. A child temporarily or permanently deprived of his or her family environment...shall be entitled to special protection and assistance provided by the State.
2. State Parties shall in accordance with their national laws ensure alternative care for such a child”: art 20.
28. New South Wales. Law Reform Commission, (Issues Paper 9, May 1993) at para 9.7.
29. Article 29(d), 30.
