Children’s Protection Act 1993 (SA)

Section 5: Provisions relating to dealing with Aboriginal or Torres Strait Islander children

(1) No decision or order may be made under this Act as to where or with whom an Aboriginal or Torres Strait Islander child will reside unless consultation has first been had with a recognised Aboriginal organisation, or a recognised Torres Strait Islander organisation, as the case may require.

(2) A person or court, in making any decision or order under this Act in relation to an Aboriginal or Torres Strait Islander child, must, in addition to complying with the requirements of section 4¹ , have regard -


(a) to the submissions made by or on behalf of a recognised Aboriginal or Torres Strait Islander organisation consulted in relation to the child; and

(b) where there has been no such consultation - to Aboriginal traditions and cultural values (including kinship rules) as generally expressed by the Aboriginal community, or to Torres Strait Islander traditions and cultural values (including kinship rules) as generally expressed by the Torres Strait Islander community, as the case may require; and

(c) to the general principle that an Aboriginal child should be kept within the Aboriginal community and a Torres Strait Islander child should be kept within the Torres Strait Islander community.


(3) For the purposes of this Act, a recognised Aboriginal or Torres Strait Islander organisation is an organisation that the Minister, after consulting with the Aboriginal community or a section of the Aboriginal community, or the Torres Strait Islander community or a section of the Torres Strait Islander community, as the case may require, declares by notice in the Gazette to be a recognised Aboriginal organisation, or a recognised Torres Strait Islander organisation, for the purposes of this Act.

(4) The Minister may, by notice in the Gazette, after consulting with the relevant community or a section of the relevant community, vary or revoke a declaration under subsection (3).

(5) All reasonable endeavours should be made when conducting consultations, negotiations, meetings or proceedings of any kind under this Act involving an Aboriginal person (whether a child or not) to do so in a manner and in a venue that is as sympathetic to Aboriginal traditions as is reasonably practicable.

(6) All reasonable endeavours should be made when conducting consultations, negotiations, meetings or proceedings of any kind under this Act involving a Torres Strait Islander person (whether a child or not) to do so in a manner and in a venue that is as sympathetic to Torres Strait Islander traditions as is reasonably practicable.

(7) The Minister will cause discussions to be held from time to time between the Department and the relevant community for the purposes of implementing subsections (5) and (6).

Section 6 Interpretation

“Aboriginal child” means a child -

(a) who is a descendant of the indigenous inhabitants of Australia; and

(b) who regards himself or herself as an Aboriginal or, if he or she is a young child, is regarded as an Aboriginal by at least one of his or her parents;

(a) who is a descendant of the indigenous inhabitants of the Torres Strait Islands; and

(b) who regards himself or herself as a Torres Strait Islander or, if he or she is a young child, is regarded as a Torres Strait Islander by at least one of his or her parents;

Adoption Act 1988 (SA)

Section 11 Adoption of Aboriginal Child

(1) The Court will not make an order for the adoption of an Aboriginal child unless satisfied that adoption is clearly preferable, in the interests of the child, to any alternative order that may be made under the laws of the State or the Commonwealth.²

(2) Subject to subsection (3), an order for the adoption of an Aboriginal child will not be made except in favour of a member of the child’s Aboriginal community who has the correct relationship with the child in accordance with Aboriginal customary law or, if there is no such person seeking to adopt the child, some other Aboriginal person.

(3) An order for the adoption of an Aboriginal child may be made in favour of a person who is not an Aboriginal person if the Court is satisfied -


(a) that there are special circumstances justifying the making of the order; and

(b) that the child’s cultural identity with the Aboriginal people will not be lost in consequence of the adoption.

... (3) If a man and woman are married according to Aboriginal tradition, they will be regarded as husband and wife for the purposes of this Act.

Adoption Regulations 1989 (SA)

Regulation 4 Counselling

(1) An officer authorized by the Director-General for the purposes of section 15(5)(c) or 16(2)(c) of the Act to counsel a person before that person consents to an adoption -
... (d) must, in the case of an adoption of an Aboriginal child, ensure that the person is aware of the availability of further specialiazed counselling from Aboriginal organizations and help the person to obtain such counselling if the person so wishes.

1. Children’s Protection Act 1993 (SA) s 4 sets out principles to be observed in dealing with children under the Act.

2. The words in italics were inserted by Adoption (Miscellaneous) Amendment Act 1996 (SA) which was passed on 12 December 1996 but has not been proclaimed at the time of writing. The words which have been replaced are: “to guardianship in the interests of the child”.