Lawlink NSW: 2. Aboriginal and Torres Strait Islander Children and the Child Welfare System in NSW

2.1 This Chapter covers four broad areas. First a history of Aboriginal child welfare policies in NSW and the impact of these policies on Aboriginal children is given. Secondly there is an overview of the present child welfare system in NSW. Thirdly, Aboriginal and Torres Strait Islander approaches to child-rearing are described. The fourth section deals with the over-representation of Aboriginal and Torres Strait Islander children in the child welfare system in NSW.

2.2 It is impossible to examine any policies of Aboriginal child welfare without acknowledging the manner in which the British colony was established in NSW. The entire eastern coast of the Australian continent was claimed for Britain by Lieutenant James Cook in 1770. The first convict settlement was established at Port Jackson in 1788. British occupation of the continent commenced with the founding of this settlement. The land needed for the colony was obtained by the dispossession of Aboriginal peoples. Dispossession was justified in British law by the assumption that Australia was terra nullius, meaning vacant and unoccupied land.¹ Under this doctrine, Aboriginal land tenure did not legally exist. This dispossession was met with determined Aboriginal resistance from the beginning. Massacres and foreign diseases took a devastating toll on Aboriginal adults and children.²

2.3 Aboriginal policy was not a priority for either British or colonial authorities. There were no treaties between the Crown and the Aboriginal peoples of Australia as Aboriginal policy was considered to be a local issue. It has been claimed that this early lack of official attention placed Aboriginal people on the margins of Australian society.³

2.4 There are some records of individuals in the colony attempting to “civilise” and “Europeanise” Aboriginal children by imposing on them Christian values and a European lifestyle.⁴ An early governor of NSW, Governor Macquarie (1810-1821) experimented with “civilising” the Aboriginal people. A Native Institution was established in Parramatta in 1814 to educate children away from the influence of their families.⁵ Aboriginal parents were encouraged to leave their children at the institution by the provision of rations and tools. At the same time any encampments of Aboriginal people were kept separate from the settlers. These early attempts to protect and “civilise” Aboriginal people were not considered “successful”. Despite the institutionalised learning, the Aboriginal children did not adopt European values and lifestyle and did not give up their Aboriginal beliefs and lifestyles. It has been suggested that this may also be characterised as Aboriginal resistance to the threatened loss of their culture.⁶

2.5 During the nineteenth century, there was some recognition of the damage done to Aboriginal people by the British occupation. A House of Commons Select Committee in 1836 recommended the appointment of “Protectors of Aborigines”. It seems that the envisaged role of such Protectors, in keeping with a philosophy of “protection”, was to “educate their [Aboriginal people’s] offspring, and thereby, if possible, to wean them from the habitudes of savage life”.⁷

2.6 The first Protector of Aborigines in NSW, the Hon George Thornton MLC,⁸ was appointed in 1881. The Protector’s authority was extensive and discretionary and covered all Aboriginal people within the area. The Protector could act as the legal guardian of all Aboriginal children, which included the power to separate them from their parents and consent to their adoption.⁹ The Inspector-General of Police and police officers assisted the Protector in carrying out his work.¹⁰ The Executive replaced the role of Protector in 1883 with the Aborigines Protection Board.

2.7 The Aborigines Protection Board (“the Protection Board”) was established in 1883¹¹ with no clear guidelines and no legislative base, and it administered a separate system of Aboriginal child welfare until 1940.¹² The policies of the late 19th century saw “full blooded” Aboriginal children removed from their families and communities by the Protection Board. These early policies were based on a belief that the Aboriginal population would die out,¹³ and were intended to “smooth the pillow of a dying race” of full-blooded Aboriginal people.¹⁴ On the other hand, “half-caste” Aboriginal children were removed from their “vicious surroundings”¹⁵ and the Protection Board attempted to assimilate them into the dominant society. These policies were justified in terms of “protecting” Aborigines from their own “weaknesses”.¹⁶ The emphasis in the policies on removal and separation was intended, literally, to “breed out” the Aboriginal population:

2.8 The Protection Board removed Aboriginal children to training homes, such as the Kinchela Boys’ Home and the Cootamundra Aboriginal Girls’ Home, with the intention of placing them in the service of non-Aboriginal families. Life in the homes ranged from merely sterile and cold, to harsh and cruel.¹⁸ At these homes Aboriginal girls were trained as domestic servants, and Aboriginal boys were trained to be rural workers.¹⁹ The majority of children who were “apprenticed out” received little or no payment.²⁰ There are many disturbing reports of the physical and sexual abuse of Aboriginal children both in the homes and at the hands of their white bosses.²¹

2.9 It was not until 1909 that the Protection Board was granted official power by the Aborigines Protection Act 1909 (NSW). Previously the Protection Board had relied on unofficial power and the exercise of coercion and inducement to remove children.²² The legislation meant that children could be removed without their parents’ consent if they were found by a magistrate to be “neglected”. The Protection Board protested that their powers under this Act were inadequate. In 1915 the Act was amended to give the Protection Board the power to remove any Aboriginal child without parental consent and without a court order if the Protection Board considered it to be in the interest of the child’s moral or physical welfare.²³ In practice this meant that it “was up to the parents to show that the child had a right to be with them, not the other way round”.²⁴

2.10 A further amendment to the Aborigines Protection Act in 1918 extended the definition of “Aborigines” in the Act to include “half-caste” Aboriginal people as well as “full-blooded” Aboriginal people.²⁵ As a result, any Aboriginal child could be “apprenticed to any master”²⁶ or removed to a training home or institution by the Board.²⁷ On notices committing Aboriginal children to the care of the Protection Board, under “Reason for Board taking control of the child” some managers wrote simply “for being Aboriginal”.²⁸

2.11 The policy of “assimilation” was officially adopted in NSW in 1937,²⁹ following a conference of State and Federal ministers. Its essence was the concept of “one Australian society”.³⁰ Effectively, “assimilation” involved Aboriginal people renouncing their own distinct cultures, languages and customs and adopting the dominant Australian culture, language and customs.

2.12 Although the word “assimilation” only became common in the 1930s, the philosophy of assimilation had pervaded the work of the Protection Board since 1883.³² In 1940 the Protection Board became the Aborigines Welfare Board (“the Welfare Board”). In some ways, little changed with the change of name.³³ The Welfare Board continued to administer Aboriginal child welfare as a separate system from general child welfare, despite the policy of assimilation.³⁴

2.13 The Aborigines Protection Act 1909 (NSW) was amended in 1940 to incorporate many of the provisions of the Child Welfare Act 1939 (NSW) which governed the general child welfare system.³⁵ These provisions meant that the Welfare Board could no longer remove Aboriginal children on its own initiative, but instead required Aboriginal children to be brought before the Children’s Court in accordance with the procedures outlined below.³⁶

2.14 The Act allowed for the removal of children if they were “neglected” or “uncontrollable” and referred to “improper” or “incompetent” parenting and applied to Aboriginal and non-Aboriginal children alike. The policies were couched in terms of the welfare of the child, but were implemented by non-Aboriginal welfare workers who applied non-Aboriginal definitions of “neglect” and “welfare”. These definitions often ignored different Aboriginal values in the rearing of their children, such as the greater role of the extended family.³⁷ In addition, the relative disadvantage and poverty of many Aboriginal people provided justification for non-Aboriginal welfare officers to remove Aboriginal children on the grounds of “neglect”.

2.15 The policy of assimilation coupled with the poverty of many Aboriginal families proved to be a double bind. Aboriginal people were supposed to assimilate into the dominant Australian society despite the prejudice and racism which confronted them. In turn, this “failure” to assimilate and the impoverished circumstances of many Aboriginal people provided the grounds for the removal of Aboriginal children. The system of removing Aboriginal children for apprenticeship and training continued to the same extent as under the Aborigines Protection Act 1909 (NSW).³⁸

2.16 By the 1950s foster care had become the preferred option for caring for Aboriginal children.³⁹ The Welfare Board first advertised for non-Aboriginal foster parents for Aboriginal children in 1957, as the homes for Aboriginal children were impossibly overcrowded and costly to run. Fostering Aboriginal children with non-Aboriginal foster parents was intended to assimilate these children further into the dominant Australian society by teaching them to behave and think like “white people”. There was enormous pressure on Aboriginal children to make them want to behave like Europeans.⁴⁰ Adoption of Aboriginal children at an early age was also used as a way of reducing the numbers of children in the overcrowded institutions.⁴¹

2.17 Aboriginal protest against the Welfare Board and its policy of assimilation gained momentum. The Welfare Board was dissolved in 1969 and children under its control were transferred to the Department of Child Welfare. Some homes continued to have predominantly Aboriginal populations.⁴² The Aborigines Protection Act 1909 (NSW) was also repealed in 1969.

2.18 An assimilationist approach continued to dominate the NSW child welfare system beyond the abolition of the Welfare Board in 1969. The ongoing application of the Child Welfare Act 1939 (NSW) meant that Aboriginal children continued to be removed from their families and made State wards or placed in foster homes.⁴³ Non-Aboriginal social workers and departmental officers still had the power to define what constituted “neglect” and “moral danger” for Aboriginal children.

2.19 The First Aboriginal Child Survival Seminar, held in Melbourne in 1979, arose out of Aboriginal people’s concern at the continued removal of Aboriginal children. At the Seminar Aboriginal people declared that the standards imposed by non-Aboriginal workers were considered inappropriate for their children. It was argued that terms such as “neglect” and “being in need of care and protection” had a far more detrimental effect when applied to Aboriginal families than when applied to other Australian families.⁴⁴ Examples were cited of “neglect” applying to Aboriginal children left in the care of their extended family, and instances where non-Aboriginal officers refused to place an Aboriginal child with an Aboriginal family citing “overcrowding” as the reason.⁴⁵

2.20 The legacy of assimilation policies is seen as underlying the continuing removal of Aboriginal children from their communities.⁴⁶ D’Souza has found that a disproportionate number of Aboriginal children come into the care of the state on the ground of “neglect”.⁴⁷ Non-Aboriginal workers continuing to apply non-Aboriginal standards and inappropriate definitions of “neglect” to Aboriginal families could be seen as part of this legacy of assimilation.⁴⁸

2.21 It is estimated that from 1883 to 1969, nearly 6 000 Aboriginal children were removed from their families in NSW.⁴⁹ Perhaps one in six or seven Aboriginal children has been taken from his or her family during this century in NSW, compared with about one in 300 for non-Aboriginal children.⁵⁰ In the Royal Commission into Aboriginal Deaths in Custody,⁵¹ Commissioner J H Wootten asserted that the assimilation policies of the Aboriginal Welfare Board amounted to genocide as defined by the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.⁵²

2.22 The legacy of this period is the many social problems which affect Aboriginal society today - and undoubtedly touches almost every Aboriginal person.⁵³ It is claimed that today at least one-third of all people removed as children have still not been returned to their families and communities.⁵⁴ There are likely to be many thousands who will never return to their Aboriginal community and who do not identify as Aboriginal.⁵⁵

2.23 The ramifications have been enormous for those who were the victims of these policies. The grief of separation and loss has been devastating for parents whose children were taken away, and for the children who were taken from them. As these children grew up, many experienced alienation and confusion about their cultural identity - a crisis compounded by being faced with prejudice and discrimination.⁵⁶

2.24 The Aboriginal Legal Service of Western Australia identified some common experiences of Aboriginal children removed from their families and placed in children’s homes, missions and foster families in WA.⁵⁷ Their stories universally reflect a feeling that a part of themselves has been forever removed and lost to them.⁵⁸ Many people who had been removed were bewildered as to the reasons for removal; felt deprived of their childhood and a loving and caring environment having been in foster care or in the missions and institutions; felt hopeless at the thought of dying without ever resolving the pain of separation from their families; had trouble forming intimate or trusting relationships and experienced difficulty in imparting Aboriginal culture to their own children.⁵⁹ There is no reason to doubt the universality of the feelings expressed.

2.25 There is a growing body of research which indicates the link between the destruction of Aboriginal families and the high incidence of alcoholism, suicide, and mental illness in the Aboriginal population.⁶⁰ One Aboriginal women, Carol Kendall,⁶¹ relays the impact of separation:

2.26 Many Aboriginal children removed from their parents did not get the chance to learn parenting skills. They in turn find it difficult to be effective parents, often leading to the removal of their own children by the “welfare”.⁶³ Thus the destructive cycle continues.

2.27 There also appears to be an over-representation in the adult criminal justice system of Aboriginal people who were removed from their families.⁶⁴ The Royal Commission into Aboriginal Deaths in Custody found that of the 99 Aboriginal people who had died in prison over the period between January 1980 and May 1989, 43 had experienced childhood separation from their families through intervention by state authorities, missions or other institutions.⁶⁵

2.28 There is also a path to the juvenile justice system which is well-trodden by Aboriginal children who have been placed with non-Aboriginal families and in welfare institutions. In 1979 the magnitude of the problem in Victoria was described:

2.29 The loss of children from Aboriginal communities in past generations represents the loss of spiritual, cultural, economic and social resources from those communities.⁶⁷ The removal of Aboriginal children to work “in the service of the whites” has been described as representing an immeasurable drain of talent from Aboriginal communities.⁶⁸

2.30 The poverty experienced by many Aboriginal children today is linked with this loss. An Aboriginal perspective of poverty is described as being broader than material poverty, to include also loss of cultural continuity and identity.⁶⁹

2.31 Some Aboriginal women have described the removal of children as a form of abuse. While not denying the significance of, and harm caused by, other forms of abuse:

This highlights the strong cultural differences that can exist in approaches to child welfare. The non-Aboriginal welfare system interprets “poverty” and “abuse” as reasons for removing Aboriginal children, whereas some Aboriginal people regard the removal of their children as “poverty” and “abuse”.

2.32 While it is not the intention of this Report to document exhaustively the effects and impacts of these policies, it is impossible to examine the impact of current child welfare policies on Aboriginal children without understanding the context of this past. Two significant themes in Aboriginal child welfare, observed in the preparation of this Report, are the scepticism with which government welfare bodies are viewed by Aboriginal people and the determination of Aboriginal organisations in their efforts to regain control of their children’s future. Both this scepticism and determination are understandable after appreciating these past policies and their impacts on Aboriginal people.

2.33 Child welfare is the responsibility of the State and Territory Governments in Australia and the power rests with the relevant individual Minister in each State and Territory. Australia has been criticised on an international level for the fragmentation of its child welfare system by having different legislation in every State and Territory.⁷¹ In some ways this may be an inevitable consequence of federation and having the State and Territory Governments responsible for child welfare. In an attempt to achieve some uniformity, the State and Territory Social Welfare Ministers meet annually.

2.34 The Australian Government ratified the UN Convention on the Rights of the Child on 17 December 1990, thereby declaring on an international level a commitment to ensuring that the rights of all children are respected.⁷²

In addition, the welfare of children is subject to the policy of the department administering these Acts, the Department of Community Services (“DOCS”). Key terms relating to child welfare are explained in the following section in order to assist an understanding of how these Acts apply to Aboriginal children.

2.36 Under s 10 of the Children (Care and Protection) Act 1987 (NSW) a child will be declared to be “in need of care” if:

2.37 Proceedings relating to the care of children are heard in the Children’s Court (“the Court”). Any orders made, or action taken by the Court should be “in the best interests of the child”. An application to the Court is usually made by DOCS, although parents can also make an application. DOCS is obliged to ensure that there are no alternative resources available that can effectively be used for the benefit of the child before bringing a care application before the Court.⁷³ In determining a care application, one of the considerations for the Court is the importance of preserving the particular cultural environment of the child.⁷⁴

2.38 If the Court finds the child to be in need of care, under section 72 of the Children (Care and Protection) Act 1987 (NSW) it can:

2.39 The Court cannot place any child with a foster family, or make the child a ward without first obtaining an assessment report, which must include advice on any issues of cultural conflict if the Court thinks it is relevant.⁷⁶

2.40 A child or young person can be made a ward of the state by an order of the Court.⁷⁷ Wardship orders should not be made by the Court unless no lesser order, and no other solution to the problem is appropriate.⁷⁸ Wardship involves the transfer of the guardianship and custody of the child exclusively to the Minister for Community Services.⁷⁹ The Minister is responsible for the care, accommodation and maintenance of the child.⁸⁰ The Minister may place a child who is a ward in a foster home or a residential institution.

2.41 This is not a term contained in legislation, but is used to describe the placement of a child in a group home, in foster care or in residential care. It does not include adoption, or placement in a correctional or educational institution, nor does it include informal child care arrangements common in Aboriginal communities.⁸¹

2.42 Substitute care services in NSW are provided by both government and non-government agencies. NSW Government policy as at March 1996 was that “substitute care services will continue to be provided by a range of non-government service providers and by the Department of Community Services”⁸² while aiming to “develop placement options in the non-government sector where this is feasible”.⁸³ With regard to Aboriginal children in substitute care, the policy identified “the need to review the consultation processes and resources for Aboriginal services”.⁸⁴

2.43 This term is not contained in legislation. It is a form of substitute care involving the formal placement of a child with another family outside his or her natural family. Foster care effectively transfers the care and control of the child but not guardianship. Placement of a child in foster care can arise:

2.44 Foster care placement can also occur informally, meaning it is outside the ambit of the Act, when a parent places the child with a relative or friend. Such informal fostering arrangements are used widely among Aboriginal people. Customary practices of child care include the care of children within the extended family and within the child’s community. However, these practices are more than simply an Aboriginal version of fostering.⁸⁶ Often these informal arrangements lack legal status, and it is sometimes difficult for carers to obtain appropriate government financial assistance.⁸⁷

2.45 Guardianship is a general responsibility to oversee the child’s well-being,⁸⁸ and includes the responsibility for the long-term welfare of the child. It does not necessarily involve responsibility for the custody of the child.

2.46 Custody is the day to day care and control of the child. Having custody of a child enables the carer to make day to day decisions about the child’s lifestyle.⁸⁹

2.47 A Temporary Care Arrangement (“TCA”) is an arrangement made by the Director-General of DOCS or his or her delegate for children who are, in the opinion of the Director-General or his or her delegate,⁹⁰ “in need of care”. The TCA transfers custody of the child to the Director-General. The TCA may last for a period of up to three months, but there is provision to renew the arrangement for an additional three months.⁹¹ The arrangement may only be made if the parents consent or if the parents cannot reasonably be located.⁹² The purpose of the TCA is to give parents an opportunity to work on problems relating to the care of the children, without the formal intervention of the Court.

2.48 Adoption under the Adoption of Children Act 1965 (NSW) is a legal process by which a person becomes a child of the adopting parents and ceases to be a child of the birth parents. All the legal consequences of parenthood are transferred from the birth parents to the adoptive parents. The adopted child obtains a new birth certificate showing the adopting parents as parents. The adopting parents acquire rights to guardianship and custody of the child. The birth parents cease to have any legal obligations towards the child and lose their rights to guardianship and custody. The general practice is that the adoptive couple are selected by either DOCS or a private adoption agency and they are unknown to the birth mother. There is, however, a growing trend to openness in adoption where the birth parent assists in the selection of the adoptive parents and contact between the child and the birth parent is possible or even encouraged.⁹³ Adoption applications are determined by the Supreme Court of New South Wales.

2.49 Child welfare policies are typically based on Western notions of the family - a nuclear family model. Aboriginal child rearing practices do not fit into this model, and place more emphasis on the extended family and kinship networks. Aboriginal child care has been described as fundamentally inconsistent with the modes of substitute care operating in the dominant society.⁹⁴

2.50 The diversity of culture and attitudes among Aboriginal people in the time before 1788 means that it is impossible to give a definitive statement of “Aboriginal child care”. Certainly, since that time, traditional ways of child care have been undermined by various factors, including the impact of colonisation and loss of land, influences of the dominant Australian culture and the policies of removal of children. Nonetheless, there is a continuing importance placed on family kinship ties and patterns of sharing⁹⁵ and the kinship system generally remains intact. The kinship system has been described as one of the key strengths of Aboriginal communities.⁹⁶ Kinship is:

2.51 The child has kinship ties with his or her extended family such as aunts, uncles and cousins, as well as with his or her immediate family of mother, father, brothers and sisters. The effect of the kinship system in Aboriginal child care practice means that Aboriginal children are brought up as a part of an extended family and community rather than merely individuals. Often grandparents and aunts and uncles will play a prominent role in the “growing up” of a child in the community. The care of children in Aboriginal communities has been described as “intermittent flowing care”⁹⁸ where children have different kinship relationships with various members of their extended family and care of the children often moves within the extended family, or outside it.⁹⁹

2.52 While it may seem that the practice in Aboriginal families of children moving to live with various relatives is like non-Aboriginal fostering, the similarity is only superficial. The comparison ignores the importance of Aboriginal children belonging to a family network and a community.¹⁰¹

2.53 Adoption, in particular, is an alien concept to many Aboriginal people. Unlike the Torres Strait Islander community, there is no traditional practice akin to Western adoption in Aboriginal communities. Adoption according to legislation in Australia, in which all ties with the natural family are severed, conflicts with Aboriginal ways of child rearing:

2.54 Adoption has the potential to cut Aboriginal children off from their roots, from their relatives, family, places, customs and history. This potential exists even if the child is adopted by an Aboriginal family, as this family could come from a different area and have different kinship networks from those of the child. The severing of ties between the child and its natural parents is not acceptable to many Aboriginal people.

2.55 The issue of whether adoption should ever be an option for Aboriginal children is a contentious issue and there is no clear view in the Aboriginal community on this. Some Aboriginal people have stated that adoption as it now exists is inappropriate for Aboriginal children. However, there is also the view that Aboriginal children and Aboriginal birth parents should not be denied the option of adoption, which is available to the wider community. In many circumstances other arrangements, such as giving a member of the extended family the custody and guardianship of the child, may be more appropriate for Aboriginal children than adoption. The Commission recommends in its Report on the Adoption of Children Act 1965 (NSW) that the Act should include an Aboriginal Child Placement Principle.¹⁰³

2.56 Torres Strait Islanders number approximately 33,000 people, with the majority living on the mainland of Australia, particularly in Queensland. In New South Wales there are approximately 5,000 Torres Strait Islanders.¹⁰⁴ It is estimated that the number of Torres Strait Islander children in NSW would be quite small. The incidence of Torres Strait Islander children relinquished for adoption in NSW is rare.¹⁰⁵

2.57 Torres Strait Islanders have a different experience of colonisation from that of Aboriginal people. Torres Strait Islanders have not experienced to the same extent the negative impacts suffered by Aboriginal people as a result of dislocation from their traditional lands and policies of protection and assimilation. Contact with Europeans, initially with explorers, then after 1871 with the London Missionary Society, was generally less traumatic for Torres Strait Islanders.¹⁰⁶ Generally, Torres Strait Islanders have not been dislocated from their lands and their culture and traditions have remained intact. Their history has not been without exploitation and racism. For example, Torres Strait Islanders were used in the early days as a source of cheap labour.¹⁰⁷

2.58 Torres Strait Islanders are a separate and distinct people with their own practices of child-rearing and adoption, which also give rise to different issues in relation to Australian child welfare laws. However, the importance of maintaining Torres Strait Islander children within their communities is also of crucial significance to Torres Strait Islander people. Torres Strait Islanders also regard it as important that they be recognised as separate from Aboriginal people. It is a matter of concern to Torres Strait Islanders that they are not accorded a separate definition from that of “Aboriginal person” in most pieces of child welfare legislation in Australia.¹⁰⁸

2.59 Customary adoption is a practice which is common to many Torres Strait Islander families.¹⁰⁹ Adoption provides stability to Torres Strait Islander society by developing bonds between families and therefore serves a useful and powerful function.¹¹⁰ It is a form of adoption in which the child is given to member of the extended family or a close friend. Customary adoption is akin to Western adoption practice, in that it involves a permanent transfer of parental rights and there is a reluctance to tell the child that he or she has been adopted. However, customary adoption differs from Australian adoption law in that adoption is almost always within the extended family and the adoptive parents are never strangers to the biological parents.¹¹¹ Adoptive parents may be single or married and may already have children of their own. Even though there is a permanent transfer of rights between the parents in customary adoption, there is also a sense of reciprocity and obligation attached to the adoption. The adopting parent is in a position of indebtedness to the birth parents.¹¹²

2.60 Adoptions within the Torres Strait Islander community are usually arranged in accordance with customary law rather than through a government or private adoption agency. Even in NSW, Torres Strait Islander people arrange adoptions within their own community. If there is no appropriate parent available locally, then the birth parent would probably travel to Queensland or the Torres Strait Islands depending on where their extended family resides.¹¹³

2.61 Torres Strait Islander customary practice also includes a form of short-term temporary care in which a child is placed with a relative for a period of time. The child knows his or her biological parents and continues to refer to them by the same names. This practice is distinguished from traditional adoption although an arrangement can begin as a temporary one and then become a permanent customary adoption.¹¹⁴ Any agreement made is usually verbal. Although this is similar to the Western notion of fostering by relatives, fostering is not a term which is generally used.¹¹⁵

2.62 Torres Strait Islander customary adoption is not recognised by the legal system on mainland Australia. The lack of legal recognition gives rise to problems concerning:¹¹⁶

2.63 A solution for these problems sought by Torres Strait Islander people is legislative recognition of Torres Strait Islander customary adoption. Such legislation may be a more appropriate means of solving the problems referred to above, rather than using existing adoption legislation which does not deal with intestacy or custody, only birth certificates.¹¹⁸ The Chief Justice of the Family Court, Justice Nicholson, has urged the Federal Attorney-General to amend the Family Law Act 1975 (Cth) to take account of the laws and customs of the indigenous people of Australia.¹¹⁹

2.64 Recognition of Torres Strait Islander customary adoption is an important issue, but is beyond the scope of this Report. However, the need for a Torres Strait Islander Child Placement Principle is discussed in Chapter 8 and also in NSWLRC Report 81.¹²⁰

OVER-REPRESENTATION OF ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN IN THE NSW CHILD WELFARE SYSTEM

2.65 The actual numbers of Aboriginal and Torres Strait Islander children adopted each year in Australia are now quite small. In 1994-1995 there were only 12 Aboriginal or Torres Strait Islander children adopted in Australia, and seven of these children were adopted by Aboriginal or Torres Strait Islander people.¹²¹ However, the number of Aboriginal and Torres Strait Islander children adopted in NSW is still proportionately higher than the number of children adopted in general in NSW. Over the period 1990/91 - 1994/95 Aboriginal children represented 5.4% of all Australian-born children adopted in NSW.¹²² Aboriginal and Torres Strait Islander children represented 2.1% of the child population in NSW at the 1991 Census.¹²³

2.66 A study by the Aboriginal Children’s Research Project of Aboriginal children in substitute care in NSW in 1980 found an alarming over-representation of Aboriginal children:

2.67 It appears that the over-representation of Aboriginal children in the child welfare system was also reflected on a nation-wide level. A survey of 399 non-government agencies throughout Australia in 1989 found that the proportion of Aboriginal and Torres Strait Islander children in substitute care was four times that of the general child population.¹²⁶

2.68 It seems that the gross over-representation of Aboriginal children in the child welfare system continues in NSW. A study carried out in 1993¹²⁷ found that in NSW 17.7% of the children in substitute care were Aboriginal or Torres Strait Islander, however Aboriginal and Torres Strait Islander children made up only 2.1% of the child population in NSW in 1991.¹²⁸ In October 1996, Aboriginal and Torres Strait Islander children accounted for almost 21% of children in care.¹²⁹ Thus the level of representation of Aboriginal children in the substitute care system is around ten times the representation of Aboriginal children in the general population.

2.69 Aboriginal and Torres Strait Islander children also tend to remain in care longer than other children. At June 1995, 50% of all Aboriginal and Torres Strait Islander children in care had been in care in NSW for two or more years. The comparable figure for other children was just over 37%.¹³⁰

2.70 It also appears that this over-representation of Aboriginal and Torres Strait Islander children is widespread throughout Australia. A study in 1992 showed that, with the exception of Victoria, all States and Territories had a significant over-representation of Aboriginal and Torres Strait Islander children in care.¹³¹

2.71 DOCS statistics for the six year period 1989/90 - 1994/95 are reported in Table 1. It shows the number of Aboriginal and Torres Strait Islander children who have been notified to DOCS by District Officers, people who have an obligation to notify instances of abuse¹³² and other members of the public who suspect abuse or neglect of the child. It also shows the number of Aboriginal and Torres Strait Islander children in substitute care.

Table 1: Aboriginal and Torres Strait Islander Children notified to DOCS and in substitute care in NSW 1989/90 - 1994/95

	1989-1990	1990-1991	1991-1992	1992-1993	1993-1994	1994-1995
Number of ATSI* children notified to DOCS	955	1,377	1,483	1,715	2,184	n/a
ATSI children as percentage of all children notified to DOCS	6.6	8.1	7.7	7.9	8.6	n/a
Number of ATSI children in substitute care**	n/a	885	908	992	1,150	1,271
ATSI children as percentage of children in substitute care	n/a	20.4	20.7	20.7	20.8	20.8

Source: NSW-Department of Community Services Letter (27 June 1995); and NSW-Department of Community Services Letter (20 March 1996).

** Being the number of children in substitute care at as 30 June of that year, ie; 30 June 1991 for the period 1990/1991

2.72 The proportion of Aboriginal and Torres Strait Islander children in care is more than double the proportion of Aboriginal and Torres Strait Islander children who are notified to DOCS in the first place. This would seem to indicate that Aboriginal and Torres Strait Islander children who are notified to DOCS are more likely than non-Aboriginal children to end up in substitute care. The reasons for this are unclear and require further investigation.

Reasons for over-representation of Aboriginal and Torres Strait Islander children

2.73 While the focus of this Report is on the placement of Aboriginal and Torres Strait Islander children once they have come into the child welfare system, the way in which these children are drawn into the system is relevant to a consideration of the Principle. It is beyond the scope of this Report to analyse in great detail the factors which bring Aboriginal and Torres Strait Islander children into care. However, the conclusions of a key study in this area are presented by way of explanation.

2.74 The Aboriginal Children’s Research Project Report attributed the high numbers of Aboriginal children in substitute care to the following factors:

2.76 Another key recommendation of the Aboriginal Children’s Research Project was that the Principle be adopted in the terms outlined below. This is quite different to the form of the Principle which is now widely adopted¹³⁶ in that it does not provide for the placement of Aboriginal children with non-Aboriginal people:

2.77 Another theory explaining the over-representation of Aboriginal and Torres Strait Islander children in substitute care is linked to the definition of “neglect”. Disproportionate numbers of Aboriginal and Torres Strait Islander children are in care because of neglect.¹³⁸ This could be attributable to an inappropriate definition of neglect being applied to Aboriginal and Torres Strait Islander children. A recent study examined the disproportionate number of Aboriginal and Torres Strait Islander coming into care for abuse and neglect, and analysed the distribution of the cases by type of abuse and neglect. Cases involving neglect constituted 42% of all substantiated cases of abuse and neglect for Aboriginal and Torres Strait Islander children in Australia in 1990-1991.¹³⁹ For all Australian children the number of cases involving neglect constituted around 25%. These figures indicate that for all the substantiated cases of child abuse and neglect involving Aboriginal children, disproportionately more cases were categorised as neglect. In comparison, for all Australian children there were equal numbers of cases of classified as neglect, sexual abuse, emotional abuse and physical abuse.

2.78 Clearly there is an urgent need to address the root causes of this over-representation of Aboriginal and Torres Strait Islander children in the child welfare system, and to find ways of minimising these numbers.

Table of contents

1. Cooper v Stuart (1889) 14 App Cas 286 at 291. See also W Blackstone Commentaries of the Laws of England (9th edition, Strahan, Cadell and Prince, London, 1783) Book 1 at 107-109. The doctrine has been rejected by the High Court in Mabo v State of Queensland (1992) 107 ALR 1 at 21-22 per Brennan J, at 82-83 per Deane and Gaudron JJ.

2. H Reynolds The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (Penguin, Ringwood, Victoria, 1990).

3. A Armitage Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (UBC Press, Canada, 1995) at 14.

4. NSW - Department of Community Services Learning from the Past: Aboriginal Perspectives on the Effects and Implications of Welfare Policies and Practices on Aboriginal Families in NSW (Prepared by Gungil Jindibah Centre at Southern Cross University, 10 October 1994) at 10 (the “Learning from the Past Report”).

5. The school was closed in 1823 because it was too expensive. The remaining students were sent to the Blacktown Native Institution. This was closed in 1829. This has been described as the end of government responsibility for Aboriginal education: N Parbury Survival: A History of Aboriginal Life in New South Wales (Ministry of Aboriginal Affairs, NSW, 1986) at 49.

6. R Chisholm Black Children: White Welfare? Aboriginal Child Welfare Law and Policy in New South Wales (Social Welfare Research Centre, University of NSW, Reports and Proceedings No 52, April 1985) at 12-13.

7. This role was advocated by John Dunmore Lang in his submission to the Select Committee: Report from the Select Committee on Aborigines (British Settlements) (Irish University Press Series of British Parliamentary Papers, Volume 1, Anthropology Aborigines, 1836) at 683.

8. Thornton had previously been a councillor of the Aborigines Protection Association in 1880: H Radi, P Spearritt and E Hinton Biographical Register of the New South Wales Parliament 1901-1970 (Australian National University Press, Canberra, 1979) at 273.

10. Aborigines (Report of Protector) (1882) NSW Legislative Assembly Votes and Proceedings, 1882, Vol 4 at 1526.

11. Edmund Fosbery, the Inspector-General of Police, was among the six appointed to the first Board for the Protection of Aborigines in June 1883, as was the former Protector, George Thornton: NSW Government Gazette No 238 (5 June 1883) at 3087.

13. An extract from The Telegraph (WA) in 1937 reflects the thinking of the time:

“Mr Neville [Commissioner for Native Affairs for Western Australia] holds the view that within one hundred years the pure black will be extinct. But the half-caste problem was increasing every year. Therefore their idea was to keep the pure blacks segregated, and to absorb the half-castes into the white population ... The pure-blooded aboriginal was not a quick breeder. On the other hand the half-caste was. In Western Australia there were half-caste families of 20 and upwards. That showed the magnitude of the problem. In order to secure this complete segregation of the children of pure blacks, and preventing them ever getting a taste of camp life, the children were left with their mothers until they were but two years old. After that they were taken from their mother and reared in accordance with white ideals.”: The Telegraph (Brisbane, 5 May 1937) at 19

“To allow these children [Aboriginal children, “half-castes”, etc] 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”: Report of Board for the Protection of Aborigines for Year 1911 (NSW Parliamentary Papers, 1912, Vol 1 at 718) at 2. See also NSW - Parliamentary Debates (Hansard) Legislative Council, 24 November 1914 at 1354.

16. Queensland - Parliamentary Debates (Hansard) Legislative Council, 8 December 1897 at 1909.

18. P Read The Stolen Generations: The Removal of Aboriginal Children in New South Wales 1883 to 1969 (NSW Ministry of Aboriginal Affairs, Occasional Paper No 1, 1982) at 10-14.

20. C Kendall “History, Present and Future: Issues Affecting Aboriginal Adults who were Removed as Children from their Families under the NSW Aborigines Protection Act 1883-1969” in Has Adoption a Future? Proceedings of the Fifth Australian Adoption Conference (Post Adoption Resource Centre, Sydney, 1995) 153 at 154.

22. For example the removal of rations for Aboriginal parents who did not send their children to school: Learning from the Past Report at 14. Another example is Aboriginal parents in the Murrumbidgee area being offered free rail passes if they left the area and left any female children behind in the girls’ dormitory at Warangesda Aboriginal Station established in 1893: Read at 5. See also NSW Parliamentary Debates (Hansard) Legislative Council, 24 November 1914 at 1354.

27. Aborigines Protection Act 1909 (NSW) s 11A, inserted by Aborigines Protection Amending Act 1915 (NSW) s 3.

29. NSW - Aboriginal Children’s Research Project Aboriginal Children in Substitute Care (Principal Report - Part 1, July 1982) at 28 (“Aboriginal Children’s Research Project Principal Report”).

31. Second Report from the Select Committee of the Legislative Assembly Upon Aborigines (NSW Parliamentary Papers 1980-81, No 164) at 5.

38. M Wilkie “The Survival of the Aboriginal Family in NSW 1788-1981: A Review of Government Policies and Administration” (NSW - Aboriginal Children’s Research Project, Discussion Paper 4, April 1982) at 38.

39. Report of the Aborigines Welfare Board for the year ended 30th June, 1953 (NSW Parliamentary Papers, 1953-1954, Vol 1 at 17) at 22.

44. “The reasons why children are removed from Aboriginal families was still a major cause for distrust of the welfare services by Aboriginal people all over Australia. Such vague reasons as “neglect” - “being in need of care and protection” - and “being exposed to moral danger”, when applied to Aboriginal families have a totally different effect than when these same criteria are applied to other Australian families. The crisis of Aboriginal child welfare will continue until the standards for defining “neglect” and “moral danger” are revised.” [emphasis in original]: B Jackson (ed) The First Aboriginal Child Survival Seminar (If Everyone Cared): A Report Arising from an International Seminar on Aboriginal Family Life and the Welfare of Aboriginal Children (Melbourne, 23-25 April 1979) at section 5, page 1.

47. N D’Souza “Aboriginal Child Welfare: Framework for a National Policy” (1993) 35 Family Matters 40 at 41, see para 2.77.

51. J H Wootten Report of the Inquiry into the Death of Malcolm Charles Smith (Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra, 1989) at 76-77.

52. Adopted on 9 December 1948: (1951) ATS 2. Article II defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group such as: ... (e) forcibly transferring children of the group to another group”.

53. It is claimed that there is not an Aboriginal person in NSW who is not related to, or does not know, a member of this “stolen generation”: Read at 18.

54. S Gilbert “The Effects of Colonisation on Aboriginal Families: Issues and Strategies for Child Welfare Policies” in J Mason (ed) Child Welfare Policy: Critical Australian Perspectives (Hale and Iremonger, Sydney, 1993) 37 at 44.

55. This is because their identity was lost when their parents and grandparents were taken away. “We can hardly guess at the number of men and women who deny their own birth-right as Aboriginal citizens of Australia”: Read at 18.

56. Secretariat of National Aboriginal and Islander Child Care “Child Abuse and Neglect from an Aboriginal Perspective: Paper to Sixth International Congress on Child Abuse and Neglect” (1987) 3(2) Black Voices 25 at 29.

57. Aboriginal Legal Service of Western Australia Telling our Story: A Report by the Aboriginal Legal Service of Western Australia (Inc) on the Removal of Aboriginal Children from their Families in Western Australia (Aboriginal Legal Service of Western Australia (Inc), WA, 1995) (“Telling our Story Report”) documents the stories of over 600 Aboriginal people who had been removed in childhood from their families in WA.

60. In 1987 the Victorian Aboriginal Medical Service found that 65% of clients undergoing psychiatric treatment had been separated from a parent in childhood, while 47% had been separated from both, and 27% had been institutionalised as children: P Swan 200 Years of Unfinished Business (Aboriginal Medical Service, Redfern) cited in Learning from the Past Report at 53. See also Telling our Story Report at 42-48; E Johnston Royal Commission into Aboriginal Deaths in Custody - National Report: Overview and Recommendations (AGPS, Canberra, 1991).

61. Carol Kendall is an officer of Link-Up (NSW), an Aboriginal organisation established in 1980 to assist removed or separated Aboriginal people find their way home to their Aboriginal family and culture.

62. C Kendall “History, Present and Future: Issues Affecting Aboriginal Adults who were Removed as Children from their Families under the NSW Aborigines Protection Act 1883-1969” in Has Adoption a Future? Proceedings of the Fifth Australian Adoption Conference (Post Adoption Resource Centre, Sydney, 1995) 153 at 156.

64. The Victorian Aboriginal Legal Service estimated in the 1970s that 90% of the clients they were representing in criminal matters had been in placement - whether fostered, institutionalised or adopted. In NSW, the comparable figure was 90-95%, with most placements having been in non-Aboriginal families: E Sommerlad (ed) “Homes for Blacks: Aboriginal Community and Adoption” in C Picton (ed) Proceedings of First Australian Conference on Adoption (15-20 February, 1976, University of NSW, Sydney) 159 at 161-162.

65. E Johnston Royal Commission into Aboriginal Deaths in Custody - National Report: Overview and Recommendations (AGPS, Canberra, 1991) at 5.

66. A Palamara “Issues in Aboriginal Child Welfare - Public Policy and Practice” - paper presented at The First Aboriginal Child Survival Seminar “If Everyone Cared” (1979) in Jackson (ed) The First Aboriginal Child Survival Seminar (If Everyone Cared): A Report Arising from an International Seminar on Aboriginal Family Life and the Welfare of Aboriginal Children (Melbourne, 23-25 April 1979) Appendix.

67. C Choo Aboriginal Child Poverty (Child Poverty Policy Review No 2, Brotherhood of St Laurence, Melbourne, 1990).

70. J Harrison Report to the Child Protection Policy and Planning Unit South Australia on the Child Protection Project from the Ngaanyatjarra, Pitjantjatjara, Yankunytjatjara Women’s Council (South Australia, May 1991) at 11.

71. Vitit Muntarbhorn, Special Rapporteur on the Sale of Children Rights of the Child. Sale of Children. (United Nations Economic and Social Council, Commission on Human Rights, 9 February 1993) E/CN.4/1993/67/Add.1.

75. If the child has been brought up in a particular culture or is part of a cultural group, unless he or she says otherwise, the Children’s Court must take into account whether it is practical to place the child with a member of that cultural group: Children (Care and Protection) Act 1987 (NSW) s 73(3).

82. Substitute Care Implementation Unit Strategic Directions for Substitute Care Program (Department of Community Services, NSW, March 1996) at 7.

85. Private fostering arrangements are prohibited: Children (Care and Protection) Act 1987 (NSW) s 40-44.

87. S Tregeagle and L Voigt “Substitute Care and the Law: Improving the Welfare of Young People who Cannot Live with their Parents” in P Swain (ed) In the Shadow of the Law: The Legal Context of Social Work Practice (Federation Press, Sydney, 1995) 178 at 188.

89. Talbot v Minister for Community Services at 496; Faulkner v Rugendyke (1995) 19 Fam LR 507.

93. See generally NSW Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, 1994) (“NSWLRC DP 34”); NSW Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Report 81, 1997) (“NSWLRC Report 81”).

94. A Mongta “Aboriginal Family Life and Child Rearing” in NSW - Aboriginal Children’s Research Project Aboriginal Children in Substitute Care (Principal Report, Part 1, July 1982)56 at 57.

95. Aboriginal Child Care Agency History and First Twelve Months of ACCA’s Operation (Victorian Aboriginal Child Care Agency, Fitzroy, 1978) at 4.

96. G Atkinson “Aboriginal Adoption: A Re-Evaluation” in R Snow (ed) Understanding Adoption: A Practical Guide (Fontana Books, Sydney, 1983) 156 at 164.

97. Y Walker “Aboriginal Concepts of the Family” (1993) 18 Children Australia 26 at 26.

98. This is a phrase used by an observer of indigenous family systems in Canada: B Wharf Toward First Nation Control of Child Welfare: A Review of Emerging Developments in British Colombia (University of Victoria, Canada, 1989) at 54.

99. N D’Souza “Aboriginal Child Welfare: Framework for a National Policy” (1993) 35 Family Matters 40 at 43. D’Souza has used the phrase “intermittent flowing care” to describe a system of child care in many Aboriginal communities.

102. Aboriginal Children’s Service Submission to NSWLRC DP 34 (12 July 1993) at 2 and 6: NSWLRC DP 34 at 192-193.

104. In the 1991 Census the population was recorded at 4 886. It is believed that a census taken in 1995 would put the number at something higher than this. 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 may now feel confident to declare their racial background in a government census.

105. There has been one known placement of a Torres Strait Islander child in NSW in the period 1989 - 1994: NSW Department of Community Services Submission to NSWLRC Report 81 (5 September 1994).

106. P Ban The Application of the Queensland Adoption Act 1964-1988 to the Traditional Adoption Practice of Torres Strait Islanders (Unpublished paper, 1988) at 103.

108. D Wilkinson “Aboriginal Child Placement Principle: Customary Law Recognition and Further Legislative Reform” (1994) 3(71) Aboriginal Law Bulletin 13 at 14. See also paras 8.37-8.38.

110. P Ban “The Quest for Legal Recognition of Torres Strait Islander Customary Adoption Practice” (1993) in 2(60) Aboriginal Law Bulletin 4 at 4.

111. P Ban The Tree of Life: Report to the Queensland Government on Legal Recognition of Torres Strait Islander Customary Adoption (prepared for the Iina Torres Strait Islander Corporation, 1990) at 10-11.

113. NSWLRC Report 81 at para 9.62. This was supported also by discussions with Torres Strait Islander people in the course of preparing this Report.

115. This type of guardianship arrangement has been referred to as “growing up” a child: Ban (1988) at 34.

116. These problems are discussed more fully in NSWLRC Report 81 at paras 9.79-9.80 and in Ban (1990).

117. This has become more of a problem as other cultures have had an influence on Torres Strait Islander customary practice. Ban (1988) has noted that the sense of obligation has diminished due to intermarriage of Torres Strait Islanders with other cultures, such as Papua New Guinea, the South Sea Islands, Aboriginal and Anglo-Australian.

119. A Nicholson “Indigenous Customary Law and Family Law”, address to the Indigenous Customary Law Forum (18 October 1995, Canberra).

121. G Angus and L Golley Adoptions Australia 1994-95 (Australian Institute of Health and Welfare, Child Welfare Series No 14, AGPS, Canberra, 1996) at 15.

123. Australian Bureau of Statistics 1991 Census of Population and Housing: Aboriginal Community Profile (Catalogue No 2722.0, AGPS, Canberra, 1993) and Australian Bureau of Statistics June 1987 to June 1992, Estimated Resident Population by Sex and Age, States and Territories of Australia (Catalogue No 3201.0, AGPS, Canberra, 1993).

124. It should be noted that this figure includes 105 Aboriginal children who were in Department of Youth and Community Services correctional institutions.

125. Aboriginal Children’s Research Project Principal Report at v [emphasis in original].

126. B Szwarc Changing Particular Care: A National Survey of Children in Non-Government Substitute Care in Australia (National Children’s Bureau of Australia, Australia, 1992) cited in P Boss, S Edwards and S Pitman Profile of Young Australians: Facts, Figures and Issues (Churchill Livingstone, Melbourne, 1995) at 46.

127. H Bath “Out-Of-Home Care in Australia: A State by State Comparison” (1994) 19(4) Children Australia 4 at 7.

128. Australian Bureau of Statistics 1991 Census of Population and Housing: Aboriginal Community Profile (Catalogue No 2722.0, AGPS, Canberra, 1993) and Australian Bureau of Statistics June 1987 to June 1992, Estimated Resident Population by Sex and Age, States and Territories of Australia (Catalogue No 3201.0, AGPS, Canberra, 1993).

129. NSW - Department of Community Services Review of the Children (Care and Protection) Act 1987: Law and Policy in Child Protection (Discussion Paper 1, Legislation Review Unit, October 1996) at 134.

130. NSW - Department of Community Services Review of the Children (Care and Protection) Act 1987: Law and Policy in Child Protection (Discussion Paper 1, Legislation Review Unit, October 1996) at 134.

131. In WA the proportion of children in care who were Aboriginal and Torres Strait Islander was 40%, Queensland was 28% and SA was 24%: S Shaver and M Paxman Homelessness, Wardship and Commonwealth Relations (Social Policy Research Centre, University of NSW, No 101, 1992) cited in P Boss, S Edwards and S Pitman Profile of Young Australians: Facts, Figures and Issues (Churchill Livingstone, Melbourne, 1995) at 46. The proportion of the child population who are Aboriginal for these States is: 4.3% in WA; 2.0% in Queensland and 2.0% in SA: based on Australian Bureau of Statistics 1991 Census of the Population and Housing, Aboriginal Community Profile (ABS Catalogue No 2722.0, AGPS, Canberra) cited in H Bath “Out-Of-Home Care in Australia: A State by State Comparison” (1994) 19(4) Children Australia 4 at 7.

133. Notions such as “abuse” and “neglect” can have different cultural interpretations. Cultural differences in the interpretation of “abuse” is one factor which could explain the disproportionate number of Torres Strait Islander children in care. What Torres Strait Islanders would define as discipline has been defined as abuse by non-Torres Strait Islander welfare workers in some instances: J Larkin “Torres Strait Totems” The Good Weekend Magazine (20 May 1995) 38 at 43. See also N D’Souza “Aboriginal Child Welfare: Framework for a National Policy” (1993) 35 Family Matters 40 at 41.

138. A recent study in WA found that Aboriginal children constituted 60% of all neglect cases, while Aboriginal people constitute only 3% of WA’s population: D Thorpe Evaluating Child Protection (Open University Press, Great Britain, 1994) at 161.

139. 42% of cases involved neglect, 14% of cases involved sexual abuse, 20% of cases involved emotional abuse and 24% of cases involved physical abuse: N D’Souza (1993) at 41; based on figures from G Angus and K Wilkinson Child Abuse and Neglect Australia, 1990-1991 (Australian Institute of Health and Welfare, Child Welfare Series No 2, 1993).