INTRODUCTION
9.1 Chapter 8 examined the relevance of a child’s cultural background in adoption placements. Aboriginal children and Torres Strait Islander children are, on the surface, simply children with two particular, different, cultural backgrounds. Therefore, in looking at the best interests of Aboriginal and Torres Strait Islander children in need of permanent care, the initial reaction is to deal with the issues within the broader context of Chapter 8. However, although all the issues relating to the value of cultural continuity are equally applicable to Aboriginal and Torres Strait Islander children, there are significant reasons for considering separately the placement of such children. These reasons are as follows:
- First, Aborigines and Torres Strait Islanders are indigenous persons; they are not part of any group migrating to Australia from Europe and Asia since 1788 and should not be treated as such.
- Secondly, adoption, as it is currently defined, is an unknown institution in Aboriginal customary law. Torres Strait Islander law, on the other hand, recognises a form of customary adoption. The ramifications of this are discussed more fully under the headings “Adoption and Aboriginal customary law” and “Adoption and Torres Strait Islander customary law”.
- Thirdly, and to some most importantly, adoption law has a history of impacting in a unique and damaging way on the Aboriginal and Torres Strait Islander people. The Australian welfare system’s past treatment of Aboriginal and Torres Strait Islander children and their families has left a bitter legacy which needs to be understood and borne in mind in order to deal constructively with issues of Aboriginal child welfare. This background to current issues of adoption law reform is elaborated below.
ABORIGINAL CHILDREN
Background
9.2 Aboriginal families have been, and continue to be, adversely affected by child welfare policies in Australia. From 1883 until 1969, initially under the Aborigines’ Protection Board and later under the Aborigines’ Welfare Board, it was government policy in New South Wales and other States, to remove forcibly Aboriginal children from their families.1 It is estimated that 6,000 - 10,000 children were removed from their families up to 1969 and that more were taken in the 1970s.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. Formal recognition of, and enquiry into, this treatment of Aboriginal communities is finally transpiring in the present National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families.3
9.3 The chairperson of the Ngunnawal Land Council in Canberra, Mrs Matilda House, told the Inquiry that the practice of separating mixed-blood children from their families was a way of:
socially engineering a class of people who were not one thing or another but who could be trained like monkeys [to be domestics and labourers].4
9.4 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.5 Various Australian governments’ policies of that time would clearly fall within the terms of the Convention.6 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.7
9.5 The policy of assimilation is illustrated by the following statement from the Report of the Aborigines Protection Board for 1911:
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. The only solution of the problem, therefore, is to deal effectively with the children; and, while not unduly interfering with the relationship between parent and child, to see that they are properly trained to spheres of future usefulness, and once away from the Reserves not to allow them to return - except, perhaps, in the case of those who have parents, on an occasional visit.8
9.6 This policy is reflected further in the Second Reading Speech in the Legislative Council on the Aborigines Protection Amending Bill (which effectively placed the Aborigines Protection Board in loco parentis to Aboriginal children):
Although there has been a diminution, so far as the full bloods are concerned, and probably an increase in the half-castes and three-quarter-castes, yet it is a lamentable state of affairs that we should practically have a camp - which, to all intents and purposes, appears to be white - of children who are brought up in laziness and vicious surroundings, when they ought practically to be merged in the general population of the state.9
9.7 The policy of removal of children continues to be a source of much suffering in Aboriginal communities. It seems that the experiences children had in homes were rarely, if ever, positive. The children were 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:
[e]very 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.10
9.8 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 customary law
9.9 The Commission has been advised consistently that adoption, as it is currently defined, is an unknown institution in Aboriginal customary law. The separation of children from birth families and the absolute transfer of parental rights are incompatible with the basic tenets of Aboriginal culture.
9.10 In its submission to the Commission, the Aboriginal Children’s Service stated that:
[m]ore 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.11
9.11 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’.12
9.12 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 Adoption Act 1984 (Vic) 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.13
9.13 The Commission recommends that a similar acknowledgement be made in the New South Wales legislation. This is both symbolically and practically important: symbolically, because of past policies; and practically, because those administering adoption law should be certain of the parameters in relation to the adoption of Aboriginal children.
9.14 Bearing in mind the troubled background to child welfare law in New South Wales, and acknowledging that adoption is an unknown institution in Aboriginal customary law, the adoption of Aboriginal children nonetheless must be considered. While the numbers are small,14 some birth parents do request that their Aboriginal children be placed for adoption. There is no clear view within the Aboriginal community about whether or not there should be prohibition of adoption of Aboriginal children and the Commission’s view is that it may not be in an Aboriginal child’s best interests to preclude adoption altogether. Nor is it right to deny the parent of an Aboriginal child an option available to all other parents. Therefore, the Adoption Act needs to provide for the appropriate treatment of Aboriginal children in need of permanent care in a way which preserves the child’s cultural heritage and identity and serves the child’s best interests.
Who is an Aboriginal child?
9.15 The initial issue which arises is the identification of Aboriginal children. The proper identification of Aboriginal children in need of care will ensure that those children for whom it matters are having their needs met in a way appropriate to the Aboriginal culture. For this reason, Adoption legislation needs to define who is an Aboriginal child. However, it should be noted at the outset that non-Aboriginal definitions of Aboriginality have for many years been a source of resentment within the Aboriginal community.
9.16 Prior to 1967, each State had its own definition of Aboriginality.15 In the early 1970s the Federal Government formulated a definition that found acceptance among most Aboriginal people. 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.16
9.17 This definition has been embodied in New South Wales legislation such as the Aboriginal Land Rights Act 1983 (NSW). The Children (Care and Protection) Act 1987 (NSW) adopts the Aboriginal Land Rights Act definition.17
9.18 The issue is whether adoption legislation should follow this definition or depart from it. This definition has its difficulties in identifying Aboriginal children.
Identification as an Aborigine
9.19 First of all, a baby or very young child is not yet able to identify as an Aborigine. The Working Party of the Standing Committee of Social Welfare Administrators recommended that in such a case identification by either parent is to be substituted for self-identity.18 This does not overcome the situations where a birth parent, either Aboriginal or non-Aboriginal, does not declare his or her child’s Aboriginality either intentionally or because he or she does not know the child is Aboriginal.
9.20 An older child who may be capable of identifying as an Aborigine may yet not do so. Older children who are wards of the State and who are subsequently adopted may be unaware of their Aboriginality. If the child has been in non-Aboriginal foster care, and removed from the Aboriginal culture for a long period, the child is unlikely to assert an Aboriginal identity. In some instances, received negative messages may discourage the child from identifying as an Aborigine. As well, children are still forming their identities and may be influenced by the question itself as to their identification as an Aborigine.
Acceptance by community
9.21 Where a birth parent is considering relinquishing his or her child for adoption, it would not be uncommon, in those circumstances, for the birth parent’s community to be unaware, and not made aware by the birth parent, of the child’s birth. This may be because the birth parent has lost contact with his or her community or has deliberately concealed the fact of the birth from the community. Privacy issues may arise which prevent others, such as DOCS or a private adoption agency, making the Aboriginal community so aware. Obviously, if the relevant Aboriginal community is unaware of the child’s birth there can be no acceptance of the child as an Aborigine by that community.
9.22 In that case, a definition of Aboriginality which relies in part on acceptance by the relevant Aboriginal community can operate against the best interests of a child. The child may be of Aboriginal descent and may be identified as Aboriginal by the consenting parent. But if the consenting parent does not, for personal reasons, want to seek the community’s acceptance of the child, one of the essential components of the three-pronged definition is not satisfied. The child is not then defined as an Aborigine.
Other legislative definitions
9.23 The Family Law Act 1975 (Cth) has been amended to include a definition of “Aboriginal peoples” as “the peoples of the Aboriginal race of Australia”.19 The Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)20 and the Adoption of Children Act 1994 (NT)21 also define “Aboriginal” as “a person who is a member of the Aboriginal race of Australia”. Prima-facie, reference to “race” only would seem to mean that an “Aboriginal” is a person of Aboriginal descent. However, this simple interpretation was not accepted in Gibbs v Capewell.22
9.24 In that case, Drummond J considered the meaning of the term “Aboriginal person” for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). His Honour held that in order for someone to be described as an “Aboriginal person” within the meaning of that term in the Act, some degree of Aboriginal descent was essential, although by itself a small degree of such descent was not sufficient. Where a person had only a small degree of Aboriginal descent but genuinely identified him or herself as an Aboriginal person and was recognised as such by an Aboriginal community, his Honour held that such a person was an Aboriginal person as a matter of ordinary speech and for the purposes of the Act. However, his Honour further held that where a person had only a small degree of Aboriginal descent, genuine self-identification as an Aborigine alone or communal recognition as such by itself may suffice, according to the circumstances. His Honour stressed that, in his opinion, “Parliament had done nothing more than give this expression the same meaning it has in ordinary speech”.23
9.25 To clarify, definitions resting on “race” comprise descent as the essential factor but further involve an examination of the degree of descent. If the degree of descent is whole or substantial nothing more is required. If the degree of descent is small, cultural considerations determine whether or not the person is Aboriginal. In contrast, definitions resting on “descent” do not depend on degrees of descent and determine Aboriginality wholly in relation to physical factors. Cultural considerations are not relevant.
9.26 Would a definition which rests on “descent” be too far out of step with the legislative direction taken in three significant pieces of legislation, each of which defines Aboriginality in terms of “race”? It would not for the following reasons:
- By relying on factors of “race” in defining Aboriginality, Parliament has already demonstrated that they are prepared to diverge from a three-pronged definition, that is, a definition requiring descent, self-identification and community acceptance. A definition which depends on the single criteria of descent is by no means extreme.
- Gibbs v Capewell considered the meaning of “Aboriginal person” in the context of legislation affecting adults. Had the subject matter been legislation affecting the welfare of children, the outcome may have been different.
- The points made above in relation to the difficulties of requiring self-identification and community acceptance in the context of the adoption of children continue to be relevant here.
- Given the constraints on babies and children identifying themselves as Aboriginal, it could be argued that the meaning which the expression “Aboriginal child “ has “in ordinary speech” is a “child of Aboriginal descent”.
9.27 The undesirability, from an Aboriginal viewpoint, of analysing degrees of descent for the purposes of defining who is an Aboriginal person is discussed below.
Support for a “descent” definition
9.28 It may be considered by some (non-Aborigines) a difficult question as to whether the offspring of one Aboriginal parent and one non-Aboriginal parent is an Aborigine or non-Aborigine. People who have difficulty with this question may consider that the solution is to have a definition which includes criteria of self-identification and community acceptance. However, a widely held Aboriginal opinion on this issue is clear and is explained by Sommerlad as follows:
The nature of Aboriginal identity is misunderstood by most whites. They fail to understand why a child of mixed parentage should identify as an Aboriginal rather than a white. Social workers are reluctant to place an Aboriginal child who is indistinguishable by his physical appearance with an Aboriginal family since they consider this situation will create identity problems for the child. The major point that whites fail to grasp is that in a racist society an individual is either white or black. One cannot be part black, part white. An Aboriginal child will soon learn from white classmates that he is not one of them, that he is different, and that he belongs to the black community. Even if he looks white. The position taken by Aborigines on this issue is therefore that any child of Aboriginal parentage, no matter what his physical appearance or his degree of Aboriginality is an Aborigine.24
9.29 The Aboriginal Children’s Service is one significant Aboriginal body which has expressed the firm view to the Commission in consultation that an Aborigine is, quite simply, a person of Aboriginal descent.
Difficulties with a “descent” definition
9.30 Justice Cohen of the NSW Supreme Court has commented that there is a risk that a definition of Aboriginality which depends on descent alone could in some circumstances work to the detriment of the child. The example he gave was where foster parents of a child of five or six years of age, whom they had fostered since she was four months old, applied to adopt her. At the time of the application it was then found that the man identified as the birth father was Aboriginal, that is, who identified himself as such. The mother was not Aboriginal. Whilst it subsequently transpired that this man was not the birth father, if he had been, the child would have been Aboriginal. Justice Cohen’s concern was that the adoption by the (non-Aboriginal) foster parents could not then have proceeded, even though, in Justice Cohen’s view, it was clearly in the child’s best interests.25 The Commission acknowledges this concern but makes two points in regard to it.
9.31 First, if the child was Aboriginal by reason of descent from an Aboriginal father, it would not necessarily mean that the adoption could not have proceeded. If the birth parents consented to the adoption, an Aboriginal Placement Principle would come into effect, as discussed below, making placement within the Aboriginal community or with Aboriginal parents priorities. However, as also discussed below, notwithstanding the child’s Aboriginality, it would be open to the court to conclude that it was in the child’s best interests to leave the child in her present home. This could occur if the foster parents were able to demonstrate a capacity to assist the child to develop a healthy and positive cultural identity. The governing principle is that the child’s best interests are paramount.
9.32 Providing the birth parents give their consent to the adoption, a “case conference” is conducted by DOCS, with the participation of an Aboriginal adoption worker, in response to every request by foster parents to adopt their Aboriginal foster child. A decision on the matter then goes to a Divisional Manager for approval and then to the Director-General for final DOCS approval (before obtaining court approval). A possible outcome of this case conference is a decision that it is in the child’s best interests to remain as a foster child in his or her current home but not to be adopted. Alternatively, DOCS may reach a decision that it is in the child’s best interests to be adopted by his or her non-Aboriginal carers rather than to be placed in an Aboriginal home.
9.33 Secondly, if identification by the birth mother was substituted for the child’s self-identification as an Aborigine (the child being too young to properly consider this aspect) the child apparently would not have been identified by the mother as Aboriginal. This may not necessarily have been in the child’s best interests. As the child grew towards adolescence and began asking inevitable questions about her social history, discovery of an Aboriginal father at that point may have been disorienting. It is arguably far better to have acknowledged the child’s Aboriginal background as soon as it was known and then to have fostered links with that cultural heritage. It is not in a child’s best interests to ignore aspects of the child’s identity. These issues are discussed in Chapter 8.
Conclusion
9.34 Defining an Aboriginal child as one of Aboriginal descent eliminates the problems discussed above. Furthermore, it accords with the views of many Aboriginal people, as outlined by Sommerlad, and with the views expressed by a number of Aboriginal organisations. In light of the past treatment of Aboriginal families, and in the interests of reconciliation, it is justified to respect those views. It is appropriate in the context of adoption to define an Aboriginal child as one of Aboriginal descent.
Identifying Aboriginal children
9.35 Difficulties in identifying (as distinct from defining) an Aboriginal child whose Aboriginality is either unknown or undeclared by the birth parent will exist regardless of whether the definition of Aboriginality is a broad one of descent or a more restricted one of descent coupled with identification and acceptance.
9.36 When faced with the task of identifying a child as Aboriginal, DOCS is restricted in the enquiries it can make because of the privacy issues involved in an adoption. DOCS takes a pragmatic approach, obtaining a social history of the family and interviewing the birth parent or parents in relation to their cultural backgrounds. Whilst it is not practicable to do more than this, the Commission recommends that this practice be expressed in legislation so that a clear obligation is placed upon DOCS or a private adoption agency to establish to the best of its ability whether or not the child is an Aboriginal child.
Aboriginal Child Placement Principle
Should legislation include an Aboriginal Child Placement Principle?
9.37 The Adoption Act currently has no specific provision for the placement of Aboriginal children.26 DOCS 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.27 The issue to be considered is whether legislation should direct the approach to take in relation to the adoption of Aboriginal children or remain silent on the subject, or whether there is a more appropriate and practicable alternative.
9.38 Submissions by Aboriginal people to the Commission have suggested that the ideal is for there to be separate legislation providing for the exclusive jurisdiction of Aboriginal law for child welfare proceedings, along the lines of the Indian Child Welfare Act 1978 (USA). It is beyond the terms of this reference to consider such legislation. Nonetheless, the Commission wishes to draw attention to the existence of the Indian Child Welfare Act 1978 (USA) and to focus on the possibility of similar legislation for Australia. The Final Report of the New South Wales Aboriginal Children’s Research Project called for specific legislation:
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.28
9.39 Failing exclusive jurisdiction over Aboriginal children, the Commission has been advised that the Aboriginal community would like to see legal recognition of Aboriginal customary law placements. However, it is inappropriate to give this recognition within the legislation. Adoption legislation is built upon a foundation of legal transfer of parental rights and the consequences which flow from this, including alteration of birth certificates. In contrast to this, placement of a child in accordance with Aboriginal customary law does not involve any legal transfer of parental rights. Such a notion has no place within Aboriginal concepts of family and child care. The Adoption Act assumes a non-Aboriginal concept of family, being the nuclear family.
In Aboriginal society, on the other hand, the role of the extended family, based on the often complex system of kinship relationships and obligations, is of fundamental importance in bringing up children.29
9.40 Until such time as there is either exclusive jurisdiction or legal recognition of Aboriginal customary placements, Aboriginal communities wish to see the inclusion of a placement principle within adoption legislation which affords the child’s community the opportunity to adopt that child. This may seem at odds with the fact that adoption is not part of Aboriginal culture, but so long as adoption does exist as a care option for Aboriginal children, the safeguards of a placement principle operate in the child’s best interests.
9.41 The Commission respects this wish and supports the view expressed by the Australian Law Reform Commission, in its report The Recognition of Aboriginal Customary Laws:
[L]egislation 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.30
9.42 For the reasons given in the beginning of this chapter, it is inappropriate simply to apply the Cultural Heritage Placement Principle, outlined in Chapter 8, to the placement of Aboriginal children.
What form should an Aboriginal Child Placement Principle take?
9.43 An Aboriginal Child Placement Principle, developed in the late 1970s, has found varied expression in legislation and policy throughout Australia. In New South Wales it is incorporated into the Children (Care and Protection) Act 1987 (NSW).31 DP 34 and Research Report 7 (“RR 7”)32 set out the various embodiments of the principle and outline the ways in which they differ. Basically the principle 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.33
9.44 A placement principle whose order of priority commences with placement of the child with members of the extended family and which then looks to the kinship network, may be inappropriate within an adoption Act. This order of preference for care of an Aboriginal child occurs in Aboriginal customary law and is appropriate to the fostering of a child. The Commission was concerned that, given that adoption as defined by the Adoption Act is not part of Aboriginal culture, it was misguided to legislate for an order of preference for the adoption of a child which starts with adoption by a child’s extended family. The reality is that the extended family will foster the child, or care for the child in accordance with customary law, but is unlikely to adopt the child in accordance with non-Aboriginal law.
9.45 However, following further consultations, it has become apparent that while the Aboriginal community endorses this approach philosophically, there is concern to secure safeguards for placement of Aboriginal children in the community. Customary law is dynamic and Aboriginal communities are willing and able to accommodate new situations as they arise.
9.46 Accordingly, the first preference for placement of an Aboriginal child should be with adoptive parents belonging to the community, or one of the communities, to which the birth parent or birth parents belong.34 Reference to “birth parent” rather than to the “consenting parent” allows for the situation where only one of the birth parents is Aboriginal. Also, reference to “communities” allows for the situation where the birth parents, although both Aboriginal, do not belong to the same community.
9.47 The advantage of this option as a first preference is that it is a broad one encompassing immediate family, extended family and kinship networks. The birth parent’s community is his or her tribe and is geographically rooted. In this sense, a person’s community is considered to be “home” and is therefore the option most likely to return a child to be adopted to his or her roots. Also, the community is an entity which interacts in a social way, providing a nurturing environment closest to the child’s birth family but broad enough to maximise the chances of finding adoptive parents for the child.
9.48 If it is not practicable or not in the child’s best interests to place the child in accordance with the first option, the second preference for placement of the child should then be with adoptive parents of another community.
9.49 If it is not practicable or not in the child’s best interests to place the child in accordance with either the first option or the second option, then the Court should have the discretion to make an order placing the child with non-Aboriginal applicants. This will, of course, enable the Court to deal best with situations such as that encountered by Justice Cohen. In that case, the Court should be satisfied that the applicants have the capacity to assist the child to develop a healthy and positive cultural identity and are willing to learn about, and teach the child about, his or her Aboriginal heritage and foster links with that heritage in the child’s upbringing.
9.50 In any circumstances where DOCS or the agency may be experiencing difficulty, or have concerns about, placing the child in accordance with any of the options, a preliminary hearing may be necessary. The Court could make a determination on the practicability of a placement or whether it would serve the child’s best interests. Any interested party concerned, for example, to see the child placed either with a particular Aboriginal community, or in a non-Aboriginal placement would have the right to seek a preliminary hearing.
RECOMMENDATION 73
If, on reasonable inquiry, DOCS or the agency is satisfied that a child is Aboriginal, DOCS or the agency should apply the following Aboriginal Child Placement Principle in placing the child:
The first preference for placement of an Aboriginal child should be with an applicant or applicants belonging to the community, or one of the communities, to which the birth parent, or birth parents, of the child belongs.
If it is not practicable or not in the best interests of the child to place him or her in accordance with the first preference, then the child should be placed with an applicant or applicants of another Aboriginal community.
If it is not practicable or not in the best interests of the child to place him or her in accordance with the first or second preferences, then the child should be placed with a non-Aboriginal applicant or applicants. The Court must be satisfied that the applicant or applicants have the capacity to assist the child to develop a healthy and positive cultural identity and are willing to learn about, and teach the child about, his or her Aboriginal heritage and foster links with that heritage in the child’s upbringing.
9.51 Should birth parents be able to request that their Aboriginal child not be placed in an Aboriginal family? As for the placement of a child from any cultural background, birth parents should be entitled to express their wishes in this regard, but any such request should be a matter for consideration by the court. Ultimately the child’s best interests must prevail.
Aboriginal involvement in the adoption process
Involvement before consent to the adoption is given
9.52 There are sections of the Aboriginal community who feel that if there is any hope of breaking the cycle of displacement, loss of culture and identity crises experienced by Aborigines, adoption should not be an option for child care at all for Aboriginal children. The Commission is unable at this stage to recommend prohibiting adoption of Aboriginal children altogether under the legislation. However, the most effective way of reconciling the need for adoption for some children with the need to respect Aboriginal policy and culture is to provide for a consultation process, giving the Aboriginal community the opportunity of discussing with a birth parent options other than adoption.
9.53 This approach was endorsed by the Advisory Committee in 1984 when reviewing adoption policy and practice in New South Wales. The Committee stated:
Although it remains the right of the surrendering mother to make the choice of adoption, this should only be arranged when she has had the fullest opportunity for consultation with Aboriginal workers and assistance in considering proper alternatives.35
9.54 The Adoption Act 1984 (Vic) includes a provision whereby no order for adoption of an Aboriginal child will be made unless the birth parent:
has received, or has in writing expressed the wish not to receive, counselling from an Aboriginal agency ...36
The Adoption Act 1988 (SA) contains a similar provision.37 It is significant that in these two States, which make counselling with an Aboriginal agency a legislative requirement prior to taking consent, there has only been one reported adoption of an Aboriginal child in South Australia and none in Victoria during the last five years.
9.55 Within a framework of counselling and consultation by an Aboriginal agency, a placement principle can work as a very valuable adjunct in exploring the possibility of keeping an Aboriginal child within his or her own community. This is to be seen as the aim of the legislation in relation to Aboriginal children. Accordingly, the Commission makes the following recommendation.
RECOMMENDATION 75
Where DOCS or a private adoption agency has determined that a child to be placed for adoption is Aboriginal, prior to taking consent to the adoption a consultation should be arranged between the birth parent(s) and an approved Aboriginal agency for the purpose of exploring the possibility of arranging care for the child in accordance with Aboriginal customary law.
RECOMMENDATION 76
If a birth parent refuses to consult face to face with the Aboriginal agency, the birth parent should be provided, at least seven days before the taking of a consent, with an information kit prepared by the Aboriginal agency and setting out the matters that would have been canvassed by it in a consultation. When signing the consent form, the birth parent must sign an acknowledgement that he or she has read and understood the matters contained in the information kit.
Involvement after consent to the adoption is given
9.56 Two difficult questions arise in relation to Aboriginal involvement in the adoption placement process. Where should the power of placement of an Aboriginal child lie? If it is to remain ultimately with non-Aboriginal agencies or government departments, to what extent should the Aboriginal community be involved in the decision-making process?
9.57 Principles of Aboriginal self-determination or sovereignty suggest that Aboriginal people should have authority to determine placement of Aboriginal children. The Aboriginal Children’s Service recommended that no adoption of an Aboriginal child should take place without its approval and that it be involved in all placement arrangements in adoption.38
9.58 In the absence of a Commonwealth Aboriginal Child Welfare Act, responsibility for the placement of an Aboriginal child in New South Wales must remain with DOCS. However, it is essential that Aboriginal people be properly consulted and fully involved in the adoption.39 Involvement should of course include the actual placement decision. Again, however, the Director-General of DOCS needs to retain the ultimate decision-making power (subject to approval by the court). Once a consent to adoption is taken, the Director-General becomes the guardian for that child. It is therefore proper that the approval for placement of the child rests with him or her.
9.59 The current practice in relation to placement of Aboriginal children by DOCS is for a DOCS Aboriginal worker to be involved at all stages of the placement process. The Australian Law Reform Commission concluded in its report The Recognition of Aboriginal Customary Laws that:
[T]he right of relevant Aboriginal people and organisations to be consulted in decisions involving Aboriginal children should be explicitly endorsed in legislation.40
RECOMMENDATION 77
The legislation should require the involvement of both an Aboriginal adoption worker employed by DOCS, or the private adoption agency, and an Aboriginal agency at all times in the placement process following taking consent for the adoption of the child.
Finding Aboriginal adoptive parents
9.60 Under the current system, DOCS actively seeks Aboriginal adoptive parents for Aboriginal children. In DOCS’s view, the provision contained in the Adoption Act allowing people married by Aboriginal tradition to adopt41 has been helpful in approving Aboriginal couples as adoptive parents. This is dealt with in Chapter 6 and in RR 7.
9.61 Despite DOCS’s policy to place Aboriginal children in Aboriginal homes, in the last five years only 18 of 35 Aboriginal children placed for adoption were placed with Aboriginal families.42 DOCS has particular difficulty finding Aboriginal families for children with special needs. The inclusion in adoption legislation of a placement principle, which involves counselling and consultation, will ensure that everything possible is done to find a suitable home for Aboriginal children with Aboriginal families.
TORRES STRAIT ISLANDER CHILDREN
Introduction
9.62 Torres Strait Islanders number approximately 33,000, with the majority of Torres Strait Islanders living on the mainland of Australia, particularly Queensland. In New South Wales there are approximately 5,000 Torres Strait Islanders.43 There are no statistics available breaking down this number into children and adults but clearly the number of Torres Strait Islander children in New South Wales would be small. More particularly, the incidence of Torres Strait Islander children being relinquished for adoption is rare.44
9.63 It is unlikely that a Torres Strait Islander would approach an adoption agency to arrange care for his or her child. Normally, an adoption would be arranged in accordance with customary law. This would be arranged either in New South Wales or, if there was no appropriate adoptive parent available locally, then the birth parent would travel to Queensland or the Torres Strait Islands, depending on where the extended family resided. Nonetheless, it is conceivable that legal adoption may be sought and this possibility should be addressed in the legislation.
9.64 There are good reasons for affording separate treatment to adoption in the Aboriginal culture and adoption in the Torres Strait Islander culture as Torres Strait Islanders “are a distinctive people from Aborigines, with a distinctive history and culture”.45 Two distinctions in particular can be made. First, the historical context in which to consider adoption and Torres Strait Islander culture differs from that of Aboriginal culture. Torres Strait Islanders have not experienced to the same extent the negative impact which Aborigines suffered as a result of dislocation from their traditional lands and the attempted extermination of their culture and themselves as a race of people. The Torres Strait Islanders’ experience with European contact was largely a happy one, or at least less traumatic, initially with explorers and later with the London Missionary Society in 1871. Torres Strait Islanders have always remained on their homelands and their culture and traditions have continued relatively intact.46
9.65 The second distinction to make between a treatment of the two cultures is the way in which customary adoption laws differ.
Adoption and Torres Strait Islander customary law
9.66 Unlike Aboriginal law, Torres Strait Islander law recognises adoption in a form that is in some respects similar to New South Wales adoption law. Adoption in Torres Strait Islander communities involves the permanent transfer of parental rights to adoptive parents. Further, there is a reluctance to tell children of their adoptive status.47 In contrast to Australian adoption law, however, adoption is almost always within the same blood lines, with members of the extended family or otherwise with close friends. Consequently, adoptive parents are never strangers to the biological parents. Adoptive parents may be single or married, and may already have children of their own. Torres Strait Islander adoption also differs from Australian adoption in that, while there is a permanent transfer of parental rights, the adoption is characterised by notions of reciprocity and obligation.
9.67 Adoption provides stability to Torres Strait Islander society by developing bonds between families. It is therefore seen as having a useful, even powerful, function and occurs frequently in Torres Strait Islander society.48 It also “bears a much deeper spiritual meaning than non Torres Strait Islanders would normally attach to adoption”.49
Who is a Torres Strait Islander child?
9.68 As with Aboriginal children, Torres Strait Islanders are united in the view that a Torres Strait Islander child is one of Torres Strait Islander descent.
9.69 The reasons set out in paragraphs 9.15-9.34 for recommending that an Aboriginal child be defined as one of Aboriginal descent are equally applicable to Torres Strait Islander children. It is also significant that recent amendments to the Family Law Act 1975 (Cth) have defined “Torres Strait Islanders” as meaning “the descendants of the indigenous inhabitants of the Torres Strait Islands”.50
9.70 Similar difficulties as those that arise in identifying Aboriginal children may arise in identifying Torres Strait Islander children. Similarly, DOCS or the agency should be obliged to establish to the best of their abilities whether or not a child is a Torres Strait Islander.
Torres Strait Islander Child Placement Principle
Should legislation include a Torres Strait Islander Child Placement Principle?
9.71 In relation to Torres Strait Islander children, to date only South Australia has legislated for a placement principle in equivalent terms to the Aboriginal Child Placement Principle.51 The question that arises in relation to the adoption of Torres Strait Island children is whether the legislation ought to contain a placement principle or whether it would be sufficient simply to apply the Cultural Heritage Placement Principle outlined in Chapter 8.
9.72 Torres Strait Islanders are fiercely proud and protective of their culture. It is believed that the means to preservation of the culture is through the strength of the family. At least in part, it is for this reason that Torres Strait Islanders do not arrange customary adoptions outside the culture and do not want to see Torres Strait Islander children legally adopted outside the culture. It is therefore equally appropriate and justifiable that there be in place a Torres Strait Islander Child Placement Principle parallel to that of the Aboriginal Child Placement Principle. This also accords with the wishes of the Torres Strait Islander community.52
What form should a Torres Strait Islander Child Placement Principle take?
9.73 The Commission recommended in paragraph 9.46 that the first preference for placement of an Aboriginal child should be to place the child with the community, or one of the communities, to which the birth parent or birth parents belong. In relation to Torres Strait Islander children, the Commission recommends taking a slightly different approach for the reasons which follow.
9.74 Customary adoption is arranged, almost always, with the extended family. It is most important to Torres Strait Islanders that where possible an adoption be within bloodlines. The birth parent’s community is a broader entity including extended family and other members not related by bloodlines. Therefore, if a legal adoption is being arranged, efforts should first be made to place the child within the extended family. There is also a strong possibility that the extended family will agree to adopt the child legally rather than lose the child to a family outside the bloodline. Therefore the Commission makes the following recommendation.
RECOMMENDATION 82
If, on reasonable inquiry, DOCS or the agency is satisfied that a child is a Torres Strait Islander, DOCS or the agency should apply the following Torres Strait Islander Child Placement Principle:
- The first preference for placement of a Torres Strait Islander child should be with the child’s extended family.
- If it is not practicable or not in the best interests of the child to place him or her in accordance with the first preference, then the child should be placed with an applicant or applicants belonging to the community, or one of the communities, to which the birth parent or birth parents belong.
- If it is not practicable or not in the best interests of the child to place him or her in accordance with the first or second preferences, then the child should be placed with an applicant or applicants of another Torres Strait Islander community.
- If it is not practicable or not in the best interests of the child to place him or her in accordance with the first, second or third preferences, then the child should be placed with a non-Torres Strait Islander applicant applicants. The Court must be satisfied that the applicant or applicants have the capacity to assist the child to develop a healthy and positive cultural identity and are willing to learn about, and teach the child about, his or her Torres Strait Islander heritage and foster links with that heritage in the child’s upbringing.
9.75 As discussed in paragraph 9.50 in relation to the placement of an Aboriginal child, a preliminary hearing may be necessary to consider the appropriate application of the Torres Strait Islander Child Placement Principle.
9.76 The Commission recognises that difficult questions may arise when a decision has to be made regarding the placement of a child who is the offspring of parents from two different cultures. This may be particularly difficult where the child is the offspring of one Aboriginal parent and one Torres Strait Islander parent. In these circumstances the facts of the particular case must be examined and the responsibility for the decision must rest with the Court.
9.77 As with birth parents of an Aboriginal child, birth parents of a Torres Strait Islander child should be able to request that their child not be placed in a Torres Strait Islander family. However, any such request should be a matter for consideration by the Court. Again, the child’s best interests must prevail.
Torres Strait Islander involvement in the adoption process
Involvement before consent to the adoption is given
9.78 The Commission recommends that the Torres Strait Islander community be given the opportunity to discuss with a birth parent the option of adoption as weighed against other options for care of the child, in the same way as is recommended for the Aboriginal community.
RECOMMENDATION 84
Where DOCS or an agency has determined that a child to be placed for adoption is a Torres Strait Islander, prior to taking consent to the adoption, a consultation should be arranged between the birth parents and an approved Torres Strait Islander agency for the purpose of exploring the possibility of arranging care for the child in accordance with Torres Strait Islander customary law.
RECOMMENDATION 85
If a birth parent refuses to consult face to face with the Torres Strait Islander agency, the birth parent should be provided, at least seven days before the taking of a consent, with an information kit prepared by the Torres Strait Islander agency and setting out the matters that would have been canvassed by it in a consultation. When signing the consent form, the birth parent must sign an acknowledgement that he or she has read and understood the matters contained in the information kit.
Involvement after consent to the adoption is given
9.79 As is the case with the placement of Aboriginal children, a Torres Strait Islander agency should be involved in the adoption process. This is especially important as there is no Torres Strait Islander adoption worker employed by DOCS or the private adoption agencies. The involvement of a Torres Strait Islander agency would be essential in identifying the extended family and providing contacts to find the best placement for the child.
Legal recognition of customary adoption
9.80 Torres Strait Islanders have been involved in formal discussions with the Queensland State Government since 1990 with the aim of having Torres Strait Islander adoptions recognised by Queensland adoption legislation.
9.81 There are four main reasons for wanting legal recognition of customary adoption.
- First, it would overcome the problem of birth certificates not reflecting the customarily adopted status of a child. These problems emerge when enrolling children for schools, and so forth, and as adults, when applying for passports, drivers’ licences and marriage certificates. Also, given the traditional secrecy of customary adoption, adopted children have suffered confusion and distress on obtaining their birth certificates and finding out their “real name” and the names of their “real parents”.53
- Secondly, it would avoid disputes over estates where the adoptive parent has died intestate. Torres Strait Islanders rarely make wills. Where the deceased parent has biological as well as adopted children, disputes can arise between the siblings over their entitlement to share in their parent’s estate. Legal recognition of a customary adoption would clarify the adopted child’s legal right to the estate.
- Thirdly, it would help to clarify the position in the case of custody disputes where adopted children were being reclaimed by their birth parents. This is a greater problem in the Torres Strait Islander community than elsewhere in Australia.54
- Fourthly, as customary adoption is a practice which “contributes significantly” to Torres Strait Islanders’ “sense of identity as a people and a clear sense of their connections to each other and their homeland islands”, it is feared that “an erosion of their identity will happen unless their traditional practices are given legal recognition”.55
9.82 The Chief Justice of the Family Court, Justice Nicholson, visited Torres Strait to consult with the community on, among other things, recognition of customary adoption. His Honour “was concerned, as were the Torres Strait Islanders themselves, about traditional Torres Strait adoption fitting into a law not really based on concepts of that sort”.56
9.83 Similarly, the Queensland Government has been reluctant to recognise Torres Strait Islander adoptions within adoption legislation because of the belief that Torres Strait Islanders would be disadvantaged by applying closed Queensland adoption legislation to open Torres Strait Islander adoption practice. In a meeting arranged by the Queensland Government, an amendment to the Adoption of Children Act 1964 (Qld) was mooted to include a separate section for Torres Strait Islanders. This section would give customary adoption the same legal effect in terms of new birth certificates and inheritance rights for adoptees as “Western” adoption but the applicable definitions and purposes would be different. Ultimately it was felt that the proper solution was likely to be a separate piece of legislation covering customary adoption.57
9.84 However, Justice Nicholson went on to say:
[o]ne of the things that I have been urging on the Federal Attorney-General is that the Family Law Act should be amended, especially to require the court to take into account the custody of children, law and custom of the indigenous people of Australia, including these islands.58
Justice Nicholson has specifically called on the Federal and State Governments to clarify the legal position of traditional adoption in order to avoid continuing confusion and uncertainty.
9.85 The Family Law Act 1975 (Cth) has recently been amended to deal expressly with Torres Strait Islander children, but not so as to give actual legal recognition to customary adoptions. Section 68F(2)(f) requires the Court to consider the child’s background, including any need to maintain a connection with the lifestyle, culture and traditions of Torres Strait Islanders in determining what is in the child’s best interests.
9.86 The Commission appreciates that:
[t]he failure to recognise [customary Torres Strait Islander adoption] has given rise to considerable difficulties over issues such as inheritance, who appears on birth certificates and sometimes gives rise to subsequent custody proceedings...59
However, the Commission is concerned that it may not be doing Torres Strait Islanders a service to recognise customary adoption within adoption legislation. Legal recognition of customary adoption would be to address the problems outlined above. But adoption legislation does not deal with intestacy or custody, only with birth certificates. Other than recording the customary adoption details on the child’s birth certificate, none of the other provisions of the Act would be intended to apply. The rationale, then, for using existing adoption legislation as the place to recognise customary adoption is simply because the subject matter is the same. Looked at in this way it does not seem an appropriate use of the Act and may even confuse the situation by giving rise to arguments that other provisions should apply. This is neither desired by Torres Strait Islanders nor is it necessarily desirable. Furthermore, Justice Nicholson emphasised that:
[t]he problem should be seen as a national one and not one for the individual States and Territories, unless they are able to develop some co-operative basis for an approach to such problems.60
9.87 For the above reasons, the Commission does not recommend that the legislation give recognition to customary Torres Strait Islander adoption.
INTERNATIONAL LAW
9.88 RR 7 discusses at length Australia’s international obligations in relation to child welfare. The significant international instruments which are relevant to the adoption of Aborigines and Torres Strait Islanders are referred to below.
9.89 The United Nations Convention on the Rights of the Child (“UNCROC”) grants specific rights to indigenous children and must be respected by adoption legislation. The Preamble to UNCROC takes due account of:
the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.
Decisions with regard to the welfare of Aboriginal and Torres Strait Islander children ought to be made with reference to Aboriginal and Torres Strait Islander traditions and cultural values.
9.90 Article 30 of UNCROC stipulates that:
[i]n 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.
That is, 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. Putting into effect placement principles will comply with Australia’s international obligations.
9.91 Article 20 of UNCROC provides that signatories to UNCROC are obliged to ensure alternative care, including the option of adoption, for a child:
temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment...
Article 20(3) provides:
When considering solutions [for the care of a child], due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.
The value for a child of finding an adoption placement which will give him or her cultural continuity is discussed in Chapter 8.
9.92 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.
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 UNCROC. This includes the right to enjoy one’s culture provided by Article 30 and the right to “alternative care” provided by Article 2. 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. Again, both the application of placement principles and the involvement of Aboriginal and Torres Strait Islander agencies would satisfy Articles 5, 20 and 30.
9.93 The Draft Declaration on the Rights of Indigenous People (“the Draft Declaration”) is currently being examined by the Commission on Human Rights in the United Nations.61 When it is finalised,62 the Draft Declaration will not be binding in international law but it will have moral force in Australia. Article 6 states:
9.94 This article expressly provides that indigenous children should not be removed from their families and communities under any pretext, presumably including adoption. Australia will be morally bound to take into account this article when considering alternative care options for Aboriginal and Torres Strait Islander children. It requires every possible effort to be made to place indigenous children within their own culture, unless it is clearly in the child’s best interests not to do so.
FOOTNOTES
1. C Edwards and P Read The Lost Children (Doubleday, Sydney, 1989); B Cummings Take This Child ...(Aborigines Studies Press, Canberra, 1990); R Chisholm “Aboriginal Children: Political Pawns or Paramount Consideration” in J Jarrah (ed) Child Welfare: Current Issues and Future Directions (Social Welfare Research Centre Reports and Proceedings, No 34, July 1983) at 43; R Chisholm Black Children: White Welfare (Social Welfare Research Centre Reports and Proceedings, No. 52, April 1985) at 10-32.
2. New South Wales - Department of Community Services Learning from the Past: Aboriginal Perspectives on the Effects and Implications of Welfare Policies and Practices on Aboriginal Families in New South Wales (Report prepared by Gunjil Jindibah Centre, Southern Cross University, October 1994).
3. Human Rights and Equal Opportunity Commission National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Terms of Reference, August 1995).
4. J Brough “Canberra Built in ‘Mother’s Womb’” Sydney Morning Herald (18 July 1996) at 2.
5. Convention on the Prevention and Punishment of the Crime of Genocide Article II(e).
6. It would be impossible to argue that Australia was actually in breach of the Convention prior to 1961 as the Convention did not come into force until that year.
7. C D Rowley The Remote Aborigines (Penguin, Australia, 1972) at 115.
8. Report of Board for the Protection of Aborigines for Year 1911 at 2 (New South Wales Parliamentary Papers, 1912, Vol 1 at 718).
9. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 24 November 1914 at 1354.
10. 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, 1982).
11. Aboriginal Children’s Service Submission (12 July 1993) at 2 and 6.
12. Y Walker “Aboriginal Concepts of the Family” (1993) 18 Children Australia 26 at 26.
13. Adoption Act 1984 (Vic) s 50(1).
14. Seven Aboriginal and Torres Strait Islander children were placed for adoption in New South Wales in 1994-1995. Reliable separate statistics for the two cultural groups are not available. Of these seven, two were adopted by Aboriginal parents: Australian Institute of Health and Welfare Child Welfare Series: Adoptions Australia 1994-95 No 14 (AGPS, Canberra) at 24.
15. R Sykes Black Majority (Hudson Publishing, Melbourne, 1989) at 10; 1996 Aboriginal Children’s Research Project Identifying Aboriginal Children in Non-Aboriginal Substitute Care (Discussion Paper 5, July 1982) at 6-7.
16. Sykes at 25.
17. Children (Care and Protection) Act 1987 (NSW) s 3(1): “‘Aboriginal’ has the same meaning as it has in the Aboriginal Land Rights Act 1983".
18. Australian Working Party of the Standing Committee of Social Welfare Administrators Aboriginal Fostering and Adoption: Review of State and Territory Principles, Policies and Practices (October 1983).
19. Family Law Act 1975 (Cth) s 68F(4).
20. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth ) s 4(1).
21. Adoption of Children Act 1994 (NT) s 3(1).
22. (1995) 128 ALR 577.
23. Gibbs v Capewell (1995) 128 ALR 577 at 580.
24. E Sommerlad “Homes for Blacks: Aboriginal Community and Adoption” in C Picton (ed) Proceedings of First Australian Conference on Adoption (The Committee of the First Australian Conference on Adoption, Sydney, 1976) 159 at 164.
25. Justice B J K Cohen Submission (29 July 1994) at 9.
26. Adoption Regulation 1995 (NSW) cl 34 makes provision for the Director-General or principal officer of a private adoption agency to make all reasonable efforts to place the child, if practicable, in accordance with the birth parents’ or guardian’s expressed wishes as to the ethnicity of the adoptive parents.
27. New South Wales - Department of Community Services Placement of Aboriginal Children for Adoption (Draft Policy Statement, 8 May 1987). See New South Wales Law Reform Commission The Aboriginal Child Placement Principle (Research Report 7, 1997) Appendix B.
28. Aboriginal Children’s Research Project (NSW) Draft Principal Report (March 1982) at 161 cited in Australian Law Reform Commission The Recognition of Aboriginal Customary Laws (Report 31, 1986) at para 365.
29. Australian Law Reform Commission Aboriginal Customary Law: Child Custody, Fostering and Adoption (Research Paper 4, 1982) at 1.
30. ALRC Report 31 at para 366.
31. Children (Care and Protection) Act 1987 (NSW) s 87.
32. NSWLRC RR 7 Chapters 4 and 5.
33. R Chisholm “Aboriginal Children and the Placement Principle” (1988) 31 Aboriginal Law Bulletin 4 at 4.
34. This is provided for by s 50(2)(c) of the Adoption Act 1984 (Vic).
35. New South Wales - Parliamentary Advisory Committee Review of Adoption Policy and Practice in New South Wales (Report, December 1984) at 89.
36. Adoption Act 1984 (Vic) s 50(2)(b).
37. Adoption Regulations 1989 (SA) reg 4.
38. Aboriginal Children’s Service Submission (12 July 1993).
39. This principle was endorsed by the Australian Working Party of the Standing Committee of Social Welfare Administrators Aboriginal Fostering and Adoption: Review of State and Territory Principles, Policies and Practices at 42. It was also endorsed by the New South Wales - Department of Community Services A Review of Substitute Care Service for Aboriginal People in New South Wales: Report Prepared by the Aboriginal Review Committee (September 1995) at 5.
40. ALRC Report 31 at para 75.
41. Adoption of Children Act 1965 (NSW) s 19(1a)(c).
42. RR 7, in Chapter 7, analyses factors affecting the application of the Aboriginal Child Placement Principle in fostering placements.
43. In the 1991, census the population was recorded at 4,886. The Aboriginal and Torres Strait Islander Commission believes that a census taken today would put the number at something higher than this. ATSIC believes that the reason for this is that, in 1991, many Torres Strait Islanders were wary of the census and unsure of what use would be made of it. With gradual changes in attitudes towards indigenous peoples, Torres Strait Islanders would possibly now feel confident to declare their racial background in a government census.
44. There has been one placement in New South Wales in the last 5 years.
45. A Nicholson “Indigenous Customary Law and Family Law” address given to the Indigenous Customary Law Forum (Canberra, 18 October 1995) at 16.
46. P Ban Report to Queensland Government on Legal Recognition of Torres Strait Islander Customary Adoption (Lina TSI Corporation, Queensland, 1990) at 8.
47. P Ban “The Quest for Legal Recognition of Torres Strait Islander Customary Adoption Practice” (1993) 60 Aboriginal Law Bulletin 4 at 4.
48. Ban (1993) at 4.
49. Nicholson “Indigenous Customary Law and Family Law” at 16.
50. Family Law Act 1975 (Cth) s 68F(4).
51. Children’s Protection Act 1993 (SA) s 5 and 6. In the Adoption of Children Act 1964 (Qld) s 18A provides a general guideline for the placement of children with an “indigenous or ethnic background”. The Director “shall have regard to the indigenous ... background ... and shall approve a prospective adopter who ... has a similar indigenous ... background”. The Queensland Department of Family Services has a policy of placing Torres Strait Islander children with Torres Strait Islanders.
52. This was conveyed to the Commission in consultations with the Aboriginal and Torres Strait Islander Commission, Mrs M Toomey of the Department of Family Services, Queensland, Mrs E Gaffney and Mr F Tapim.
53. Ban (1990) at 17.
54. Ban (1990) at 18.
55. P Ban “Developments in the Legal Recognition of Torres Strait Islander Customary Adoption” (1996) 78 Aboriginal Law Bulletin 14 at 15.
56. J Larkin “Torres Strait Totems” Sydney Morning Herald Good Weekend (20 May 1995) 38 at 41.
57. Ban (1996) at 15.
58. Larkin “Torres Strait Totems” at 41.
59. Nicholson “Indigenous Customary Law and Family Law” at 17.
60. Nicholson at 17.
61. United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-sixth session (20 April 1994).
62. The projected date for finalising the Declaration is 2004.
