Children and Young Persons Act 1989 (Vic)

Section 119 Principles of case planning

(1) Decisions made by the Director-General as part of the case planning process must, as far as possible, be made according to the following principles:

...

(m) In the case of an Aboriginal child -


(i) decision-making should involve relevant members of the Aboriginal community to which the child belongs; and

(ii) in recognition of the principle of Aboriginal self-management and self-determination, arrange-ments concerning the child, and his or her care, supervision, custody or guardianship, or access to the child, must be made in accordance with the principles listed in sub-section (2).

(a) Persons involved in the arrangements mentioned in sub-section (1)(m)(ii) must be, or at least one of them must be, a member of the Aboriginal community to which the child belongs; or

(b) If a person or persons of the class mentioned in paragraph (a) is or are not reasonably available for that purpose, the persons involved in those arrangements must be members of, or at least one of them must be a member of, an Aboriginal community; or

(c) If a person or persons of the classes mentioned in paragraphs (a) and (b) is or are not reasonably available for that purpose, the persons involved in those arrangements must be persons approved by the Director-General and by an Aboriginal agency as suitable persons for that purpose.

Section 3(1) Definitions

“Aborigine” means a person who-

(a) is descended from an Aborigine or Torres Strait Islander; and

(b) identifies as an Aborigine or Torres Strait Islander; and

(c) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community;

Section 6 Aboriginal Agency

(1) The Governor in Council may, by Order published in the Government Gazette, declare an organisation to be an Aboriginal agency.

(2) An organisation may only be declared to be an Aboriginal agency if the Director-General is satisfied -

(a) that the organisation is managed by Aborigines; and

(b) that its activities are carried on for the benefit of Aborigines; and

(c) that it has experience in child and family welfare matters.

Protocol between Health and Community Services - Protective Services and the Victorian Aboriginal Child Care Agency (VACCA) 1994-95

7. Placement of an Aboriginal Child:

7.1 Consistent with the Aboriginal Child Placement Principle ... and the Children and Young Persons Act s 119(m), if an Aboriginal child requires placement away from their immediate family, VACCA must be consulted about the most appropriate placement. No Aboriginal child is to be placed without VACCA’s involvement in decision-making. VACCA’s experience in and knowledge of Aboriginal placement issues must be recognised by CSV¹ in decision-making.

9. Involvement of Regional/Local Aboriginal Organisations:

9.1 The involvement of regional/local Aboriginal Organisations in case plan decision-making will be negotiated by those Aboriginal organisations and VACCA, using the CSV/VACCA protocol as a basis for negotiation ...

9.3 Regional/Local Aboriginal organisations may be involved when:

i) the child and/or family chooses for the local community to be involved in decision-making. This decision does not reduce the need to consult with VACCA.

ii) the local community are involved in assessment implementation or monitoring within the context of the case plan.

iii) VACCA contracts for the local organisation to undertake VACCA’s role in decision-making.

Adoption Act 1984 (Vic)

Section 50 - Adoption of an Aboriginal child

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

(2) Where -

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

(i) who is an Aborigine; or

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

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


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

the Court shall not make an order for the adoption of the child unless the Court is satisfied as to the matters referred to in section 15² 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.

(4) An organisation shall not be declared under sub-section (3) to be an Aboriginal agency unless the Director-General is satisfied that the organisation is managed by Aborigines, that its activities are carried on for the benefit of Aborigines and that it has experience in child and family welfare matters and the declaration includes a statement to that effect.

(5) The Governor in Council may, by Order published in the Government Gazette, revoke or vary an order made under sub-section (3).

Section 37 - Consent subject to conditions

(1) A consent by a parent to the adoption of a child in which the wish is expressed under section 50 that the child be adopted within the Aboriginal community may be made subject to a condition that that parent, and such relatives of the child as are specified in the consent and members of the Aboriginal community to which the child belongs have a right of access in accordance with the prescribed terms to the child.

(4) The Court may make such order as it thinks fit on an application under sub-section (3)³ where it is satisfied that the Director-General or the principal officer has taken such steps as are reasonable in the circumstances to satisfy the conditions to which the consent was subject and has received and considered a report from an Aboriginal agency within the meaning of section 50.

Section 59 - Certain adoption orders subject to condition

Where the consent of a parent to the adoption of an Aboriginal child was given subject to a condition in accordance with section 37, the adoption order may, subject to and in accordance with consents given to the adoption, be made subject to a condition that a parent or the parents, relatives of the child and members of the Aboriginal community to which the child belongs have such rights to have access to the child as specified in the order.

Section 59A Adoption order subject to certain conditions

Where the Court is satisfied -

(a) that circumstances exist which make it desirable so to do, whether by reason of the age of the child or otherwise; and

(b) that the parent or parents and the adoptive parent or adoptive parents have, after consent to the adoption was given, agreed that the adoption order should be made subject to certain conditions -

the adoption order may be made subject to either or both of the following conditions:

(c) A condition that a parent or both parents or such other relatives of the child as are specified in the order or both the parent or parents and relatives so specified have such right to have access to the child as is specified in the order;

(d) A condition that the adoptive parent or adoptive parents of the child provide information about the child to the Director-General or principal officer of an approved agency to be given to the parent or parents at such periods and in accordance with such terms as are specified in the order.

Section 4(1) - Definitions

“Aborigine” means a person who -

(a) is descended from an Aborigine or Torres Strait Islander;

(b) identifies as an Aborigine or Torres Strait Islander; and

(c) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community;

(1) An adoption order may be made in favour of a man and a woman -

...

(b) whose relationship is recognized as a traditional marriage by an Aboriginal community or an Aboriginal group to which they belong and has been so recognized for not less than two years

- before the date on which the order is made.

Section 114 - Registrar to give notices concerning Aboriginal children

(1) Where a memorandum was sent to the Registrar under section 70(2)⁴ in relation to the adoption of a child, the Registrar shall, on or within the period of 28 days after the adopted child attains the age of twelve years, give notice in writing -

(a) to the Aboriginal agency (if any) named in the memorandum or, where it has ceased to exist, to such other agency (if any) as is prescribed for the purposes of this section; and

(b) to the Director-General -

stating that the adopted child has attained the age of twelve years.

(a) to the adopted child; and

(b) to the adoptive parents of the adopted child or, where they cannot be found, to some other person in whose care the child is for the time being -

to the effect that the adopted child may be entitled to certain rights and privileges that exist for the benefit of the child.

Department of Health and Community Services - Standards in Adoption (1986)

5.2.3 - Procedural Principles

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(viii) The Permanent Care Agency must maintain ongoing consultation with the Aboriginal agency during all stages in the placement of an Aboriginal child.

Conditional Consent

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12. An Aboriginal agency must be consulted before the placement of a specific child with an approved couple, whether Aboriginal or not, is made.

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14. An Aboriginal agency has right of veto over the placement of non-Aboriginal applicants to adopt an Aboriginal child...

General Consent

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3. Where a relinquishing parent(s) has signed a conditional consent, these provisions of Section 59A relating to access and information exchange are also available to them, as long as any new conditions do not duplicate, or are inconsistent with, previous conditions.

...

10. Unless the relinquishing parent nominates otherwise, the placement priority for an Aboriginal child is to be placed with:

(1) an Aboriginal family belonging to the same community as the relinquishing parent;

(2) an Aboriginal family from a different community; or

(3) a non-Aboriginal family.

11. An Aboriginal agency must be consulted before the placement of a specific child with an approved couple, whether Aboriginal or not, is made.

1. CSV meaning the Department of Community Services Victoria which is now the Department for Human Services.

2. Adoption Act 1984 (Vic) s 15 is a general provision regarding the requirements which are to be satisfied before the Court can make an adoption order. One such requirement is that the wishes of the birth parents regarding the religion, race or ethnic background of the proposed adoptive parents be considered.

3. An application under sub-section (3) is an application to the Court to revoke or alter the conditions to which a consent is subject.

4. Section 70(2) requires that the Court, when making an order for an Aboriginal child under section 50, send a memorandum to the Registrar giving the name of an Aboriginal agency and stating that section 114 applies.