Lawlink NSW: 4. The Principle in New South Wales

4.1 The Aboriginal Child Placement Principle (“the Principle”) is contained in s 87 of the Children (Care and Protection) Act 1987 (NSW) which governs the fostering of Aboriginal and Torres Strait Islander children. The Principle is not contained in the Adoption of Children Act 1965 (NSW), and is implemented with respect to adoption only by way of a draft policy document.¹

4.2 The Department of Community Services (“DOCS”), as a matter of policy, applies two different definitions of “Aborigine” in relation to fostering and adoption of Aboriginal children. A definition of “self-identification” is applied to Aboriginal children in relation to fostering,² whereas a definition of “descent” is applied to Aboriginal children in relation to adoption.³ Torres Strait Islander people are not defined in the Children (Care and Protection) Act 1987 (NSW), Adoption of Children Act 1965 (NSW) or the Draft Policy in NSW. The issue of the definition of an Aboriginal child is discussed in paragraphs 7.25-7.32.

4.3 Another relevant piece of legislation is the Community Welfare Act 1987 (NSW), s 4(1)(d) of which sets out the objects of community welfare legislation, which includes the Children (Care and Protection) Act 1987 (NSW) and the Adoption of Children Act 1965 (NSW).⁴ The objectives are:

4.4 The Principle, contained in s 87 of the Children (Care and Protection) Act 1987 (NSW), applies only to the placement into the care or custody of another person of Aboriginal children who are “in need of care”⁵. It does not apply to the voluntary placement of children into care, or to short term placements.⁶ It states:

4.5 Purpose. In the District Court of NSW Justice Graham, in the Department of Community Services v Johnson,⁷ considered that the purpose of s 87 was to remedy two problems which arose in the past with the placement of Aboriginal children:⁸

4.6 The welfare and interests of children. The case also tried to reconcile the provisions of s 87 with the “paramountcy principle” in s 55(a) of the Act, which states that “the welfare and interests of children are to be given paramount consideration”. His Honour considered that the Principle was not an absolute rule that Aboriginal children should be placed in accordance with the descending order of preference. Instead, consideration must also be given to the “detriment” and “practicability” of any placement.⁹ This approach incorporates the “welfare of the child” principle into the Principle by reference to the word “detriment”.

4.7 “Detriment”. His Honour interpreted “detriment to the welfare of the child” as the product of balancing the advantages and disadvantages of any particular proposed placement. Any detriment must not be a merely trivial or insignificant detriment, or be a detriment which merely or substantially conflicts with the purposes of s 87. The purpose and intent of s 87, being to place Aboriginal children back into Aboriginal communities, may result in placements which are “less than the ideal in the way of material benefits” and may “to some extent create circumstances of possible danger for such children”.¹⁰ His Honour believed that this detriment is in some ways inherent in the underlying purpose of s 87. However, he believed that it should be given far less weight than other forms of detriment.¹¹

4.8 Another interpretation which gives more force to the Principle would treat s 87 as a legislative presumption that placement with Aboriginal people is in the best interests of an Aboriginal child. This approach adopts a stronger interpretation of the word “detriment” which requires actual detriment to be shown before the Principle is displaced.¹²

4.9 DOCS has suggested that having to show “detriment” may not necessarily be the most appropriate way to approach a placement question and restricts the Court to making decisions where the emphasis is not based primarily on the best interests of the child. DOCS’s Review of the Children (Care and Protection) Act 1987 suggests that one way of overcoming this is for the Court to weigh up placement with the extended family, members of the child’s Aboriginal community and other Aboriginal people in terms of what is in the child’s best interests, and to apply the stricter test of “detriment” only when the child is likely to be placed outside the Aboriginal community.¹³

4.10 Community to which the child belongs. DOCS v Johnson also brought to light the circularity of s 87(a). In identifying the “community to which the child belongs”, the child’s extended family needs to be considered, which in turn needs to be recognised by the community. His Honour, however, took a broad approach to s 87(a), saying that it recognised that within Aboriginal communities what is understood by a child’s extended family may not necessarily accord with a strict genealogical approach to extended family and may include people other than direct blood relations.¹⁴ In this case it was accepted on the evidence that there was an Aboriginal community to which the children belonged.¹⁵ It may not necessarily be desirable or possible to define “Aboriginal community” for the purposes of legislation. Defining the child’s extended family as that “recognised by the Aboriginal community to which the child belongs” may be advantageous in that it refers specifically to Aboriginal rather than white Australian notions of extended family. However, there may be differences among Aboriginal communities on the meaning of extended family.¹⁶

4.11 Placement with extended family. Logically, the placement of an Aboriginal child with “members of the child’s extended family” under s 87(a) includes members of the child’s non-Aboriginal family.¹⁷ This is consistent with the Principle.

4.12 Placement with a member of the child’s Aboriginal community. DOCS workers interpret the requirement for placement in the “Aboriginal community to which the child belongs” in s 87(b) to include placement in Aboriginal group homes. In some circumstances, an Aboriginal group home may be a more appropriate placement option for an Aboriginal child than placement with a non-Aboriginal family.

4.13 Some other Aboriginal family residing in the vicinity. It has been argued that s 87(c) unnecessarily restricts the members of an Aboriginal family who can care for a child, in that they must “[reside] in the vicinity of the child’s usual place of residence”. This wording of the Principle could suggest that it is more important for an Aboriginal child to remain in the same place and continue contact with his or her family than be in the care of any Aboriginal person.¹⁸ Clearly an Aboriginal family “in the vicinity” would be preferable so that the child can maintain links with his or her community and family. However, if such an option is not practicable, Aboriginal families outside the vicinity of the child’s community should be included in the list of options for an Aboriginal child.¹⁹

4.14 The numbers of Aboriginal and Torres Strait Islander children placed in substitute care in NSW in recent years appear in Table 2. Aboriginal and Torres Strait Islander children are placed into substitute care²⁰ in NSW in a number of ways:

Table 2: Aboriginal and Torres Strait Islander Children in Substitute Care in NSW: 1990/91 - 1994/95

	1990/91	1991/92	1992/93	1993/94	1994/95
ATSI children placed by NGOs
ATSI care*	191	195	242	296	304
non-ATSI care**	66	57	37	44	60
*Total*	257	252	279	340	364
ATSI children placed by DOCS
ATSI care*	471	503	555	653	750
non-ASTI care**	157	153	158	157	157
*Total*	628	656	713	810	907
Total number of ATSI children	885	908	992	1150	1271
Percentage of ATSI children in non-ATSI care	25.2	23.1	19.7	17.5	17.1

4.16 In NSW, DOCS reported that as at March 1995, they had 347 Aboriginal and Torres Strait Islander couples registered to foster children.²¹ This number appears inadequate compared with the 907 Aboriginal and Torres Strait Islander children placed by DOCS over 1994-95. However, DOCS reports that many Aboriginal children are placed informally with their extended families or under kinship arrangements rather than through formal fostering arrangements. Of the 1 271 Aboriginal and Torres Strait Islander children in care at June 1995, 65% lived away from their families because they were in need of care, while the remaining 35% were placed in kinship care.²²

4.17 DOCS funds a number of NGOs specifically to provide alternative care services to Aboriginal children.²³ These services include both foster care services and group homes and all are run by Aboriginal NGOs, except Marella which is run by Care Force.²⁴ At the present time there is no specific Torres Strait Islander non-government organisation involved in the fostering of Torres Strait Islander children in NSW. DOCS also refers Aboriginal and Torres Strait Islander children to other mainstream NGOs. The main non-Aboriginal NGOs dealt with in this Report are Barnardos Australia, Centacare and Care Force. These NGOs may also provide a voluntary fostering service when Aboriginal parents approach the agency directly. DOCS policy is that responsibility for providing substitute care services will be increasingly transferred to NGOs where possible, although DOCS will continue to provide substitute care services for children and young people with high support needs.²⁵

4.19 The Children (Care and Protection) Act 1987 (NSW) provides for the granting of a fostering authority to private fostering agencies.²⁶ This process was in transition following the implementation of the Usher Report.²⁷ Until recently these Aboriginal organisations did not have an official licence to operate as a fostering agency, but were informally recognised, or “deemed to be licensed” as fostering agencies by DOCS.²⁸ This placed these organisations in a tenuous position regarding their legal status under the Act as fostering agencies. In some instances, magistrates in the Children’s Court, in the absence of a fostering licence, have refused to recognise the relevant Aboriginal organisation when making a care order for a child. This situation appears to have been resolved by new Regulations under the Act, which came into force on 1 September 1996. Aboriginal organisations which are funded by DOCS are now not required to have a licence to operate as a fostering agency.²⁹ The Aboriginal Children’s Service (Redfern), which does not receive full funding from DOCS, is currently undergoing the application process for a fostering licence.

4.20 Barnardos Australia (“Barnardos”) has a policy of generally not accepting Aboriginal children in its substitute care program.³¹ As Barnardos does not have any Aboriginal workers, they would consult with Gullama Aboriginal Services Centre in DOCS before recruiting any Aboriginal or Torres Strait Islander families for fostering. Barnardos has had little involvement with the Aboriginal Children’s Service or any other of the Aboriginal NGOs.

4.21 Barnardos reported that only two Aboriginal children had been fostered through their Permanent Family Care Program in the five year period 1991-1995.³² Both of these children were placed with an Aboriginal foster father and non-Aboriginal foster mother. Recently, the Aboriginal origins of several children who had previously been placed with non-Aboriginal carers through the Permanent Family Care Program have been identified.

4.22 Barnardos also runs a Temporary Family Care (“TFC”) Program through its Auburn, Waverley, Penrith and Illawarra offices. Aboriginal and Torres Strait Islander children represented:

4.23 Although exact numbers are unknown, due to different standards of record keeping for the various TFC programs, it seems there were at least 50 Aboriginal and Torres Strait Islander children placed through the TFC programs over the last five years. It appears that the majority of these children were placed in non-Aboriginal families. There are generally no Aboriginal carers in the pool of available carers in the TFC program as a result of the Barnardos’ policy of not accepting Aboriginal or Torres Strait Islander referrals. Any Aboriginal couples willing to foster children would be referred to an Aboriginal organisation unless they wanted to foster specifically through Barnardos.³⁷

4.24 In a number of instances, the Aboriginality of a child placed through both the Permanent and Temporary Family Care Programs was only discovered after the placement of the child. This could occur either because DOCS or the non-government agencies failed to make the necessary investigations into a child’s cultural background; or Aboriginal or Torres Strait Islander parents were reluctant to identify as such when they approached the agency directly.

4.25 Care Force, operating under the auspices of the Anglican Home Mission Society, runs an Aboriginal foster program and an Aboriginal group home. It receives referrals from DOCS and from the community. In the absence of a separate policy regarding the placement of Aboriginal children, Care Force is guided by DOCS policy regarding Aboriginal children and s 87 of the Children (Care and Protection) Act 1987 (NSW).

4.26 Care Force attempts to employ Aboriginal workers in Marella, the group home. It previously had an Aboriginal community management committee, but this has now dissolved. Presently, Marella houses four Aboriginal children, and also receives other Aboriginal children for respite care and temporary care.

4.27 Care Force has provided figures for the number of Aboriginal children they placed into alternative care in the period 1993-1995. This information appears in Table 3.

	1993	1994	1995	Total
Aboriginal Group Home (Marella)	8**	13	26	47
Aboriginal Foster Care	2**	1	1	4
non-Aboriginal Foster Care	0**	8	2	10
Total	10	22	29	61
Percentage of children in non-Aboriginal care	0%	36%	7%	16%

4.28 Centacare is part of Catholic Community Services. Centacare’s substitute care policy states that Aboriginal and Torres Strait Islander children will usually be referred to an “Aboriginal children’s service”, and that Centacare will only place a child with the support of an Aboriginal agency, and after ensuring that the Principle has been observed.³⁸

4.30 As of June 1996, Centacare did not have any Aboriginal or Torres Strait Islander workers in its fostering programs. Centacare reports that consultation with Aboriginal family members and an Aboriginal agency will always occur if the placement of an Aboriginal child is being considered.⁴⁰

4.31 Centacare reported that the proportion of Aboriginal children placed through their programs is very low. There have been eight Aboriginal children placed through Centacare’s programs over the five year period March 1991 - March 1996:

4.32 The 1987 legislation has been described as a considerable improvement on previous policy. The credence given to the Principle is significant because it is enshrined in legislation, rather than contained in departmental policy:

4.33 However, there is still a significant proportion of Aboriginal children in substitute care in NSW in the care of non-Aboriginal people. In 1994-1995, 16.5% of the Aboriginal children placed into substitute care by NGOs were placed into non-Aboriginal care. In the same year, 17.3% of the Aboriginal children placed by DOCS were placed into non-Aboriginal care. Such figures could be the result of lack of consultation with the Aboriginal organisations by DOCS and the non-Aboriginal NGOs. It is difficult to see how such a situation can still exist in light of the mandatory requirement that Aboriginal organisations and the child’s extended family be consulted before Aboriginal children are placed into non-Aboriginal care.⁴³

4.34 In discussions with workers in Aboriginal organisations and workers within DOCS regarding section 87, a number of concerns have been raised which will be discussed in greater detail in Chapter 7:

4.35 There is no reference to the Principle in the Adoption of Children Act 1965 (NSW), although there are other provisions in the Act which are relevant to Aboriginal children. The Principle is contained instead in a draft departmental policy document, the Draft Policy Statement on the Placement of Aboriginal Children for Adoption.⁴⁴ DOCS is also guided by the National Minimum Principles in Adoption, developed by the Standing Committee of Social Welfare Administrators, which state that, in adoption, “the child should preferably be placed in a culturally/ethnically appropriate placement”.⁴⁵

4.36 The Adoption of Children Regulation 1995 (NSW) requires that all reasonable efforts be made to place the child with a person who belongs to an ethnic group requested by the relinquishing parent.⁴⁶ The placement of an Aboriginal child under this provision would not necessarily be with an Aboriginal person unless a relinquishing parent had specifically requested it.⁴⁷

4.37 In 1987, the Act was amended to incorporate a provision allowing for adoption by traditionally married Aboriginal couples by adding a reference to de facto couples seeking to adopt. After the amendment, an Aboriginal couple recognised by their community as being married according to the traditions of their Aboriginal community or Aboriginal group can adopt an Aboriginal child as a de facto couple.⁴⁸ This provision uses the same definition of “Aborigine” as the Children (Care and Protection) Act 1987 (NSW).⁴⁹ The amendment was intended to overcome the situation where an Aboriginal child may be denied placement in an otherwise suitable home, because there is no “legal” marriage.⁵⁰ DOCS is of the view that the provision has been helpful in approving more Aboriginal couples as adoptive parents.⁵¹

4.38 While the effect of this provision seems to be positive, the provision itself could be insulting to Aboriginal people.⁵² That is, the Adoption of Children Act 1965 (NSW) treats customary marriage merely as a de facto relationship, and not a marriage as far as the law is concerned.⁵³ In other jurisdictions, an Aboriginal customary marriage is recognised as a marriage for the purposes of adoption.⁵⁴

4.39 In addition, the NSW provision limits traditionally married Aboriginal people to the adoption of only Aboriginal children. This may not be important in practical terms, but sends a “statement by the NSW Parliament that tribally married Aborigines are acceptable to adopt black children, but not white”.⁵⁵ The amendment does not deal with consent to adoption, and does not require the consent of the father of a child born within a tribal marriage.⁵⁶ Thus, on this argument, the legislation still fails to recognise marriage under Aboriginal customary law. This has been characterised as an attempt at a progressive reform which is an embarrassment and an insult to Aboriginal people.⁵⁷

4.40 DOCS recognises the Principle in the departmental Draft Policy Statement: Placement of Aboriginal Children for Adoption (“the Draft Policy”).⁵⁸ The Draft Policy acknowledges in the preamble that adoption is alien to Aboriginal culture, and that in the past great suffering has been caused to Aboriginal people by the inappropriate use of adoption. Nevertheless, it states that modern adoption practice will continue to provide a positive option for some Aboriginal children.

4.41 The Draft Policy stipulates that “Aboriginal children surrendered for adoption must be placed with Aboriginal families”. It also requires that an Aboriginal worker, experienced in adoption policy and practice, must be involved in any decision about the future of an Aboriginal child, while ensuring the confidentiality of the parent and child outside the meeting. There is also an emphasis on wider recruitment of Aboriginal adoptive parents, including single Aboriginal people and Aboriginal couples married according to the customs of their community. Placement of an Aboriginal child contrary to the Draft Policy requires the written approval of the Director-General of DOCS. Guidelines for the implementation of the Draft Policy emphasise the importance of involving an Aboriginal person in the counselling of a parent prior to surrendering the child for adoption.

4.42 Current practice in relation to the placement of Aboriginal children by DOCS is for an Aboriginal worker to be involved at all stages of the placement process. DOCS also reports that the Draft Policy has, generally, enabled appropriate decisions to be made for Aboriginal children relinquished for adoption.⁵⁹

Adoption of Aboriginal and Torres Strait Islander children in New South Wales

4.43 Statistics of the number of Aboriginal and Torres Strait Islander Children adopted in NSW in the past five years have been collected by the Australian Institute of Health and Welfare⁶⁰ and appear in Table 4. These statistics include all children adopted in NSW, whether through DOCS or through a NGO. DOCS organises the adoption of the majority of Aboriginal and Torres Strait Islander children in NSW. The relevant NGOs which organise the adoption of children in NSW, Barnardos Australia, Care Force Anglican Adoption Agency, and Centacare Adoption Services, have reported on the Aboriginal and Torres Strait Islander children who were adopted through them over the past five years, and the policies they apply in such a situation. Each agency is required to notify DOCS of every adoption.⁶¹

4.44 There have been a number of Aboriginal children adopted in NSW in the past five years.⁶² Just over half of these children have been adopted by Aboriginal people.

Table 4: Adoption of Aboriginal and Torres Strait Islander children in NSW 1990/91 - 1994/95

	1990/91	1991/92*	1992/93*	1993/94	1994/95	Total
Adoption by ATSI people	5	4	1	3	5	18
Adoption by non-ATSI people	9	1	1	3	2	16
Total number of Aboriginal children adopted	14*	6**	2	6	7	35**
Total number of Australian - born children adopted**	158	151	110	98	127	644
Aboriginal children as a proportion of all Australian - born children adopted	8.8%	4.0%	1.8%	6.1%	5.5%	5.4%

Source: Australian Institute of Health and Welfare Adoptions Australia series 1990/91-1994/95

4.45 DOCS was able to provide an account of only four of the 16 Aboriginal and Torres Strait Islander children who were adopted by non-Aboriginal and non-Torres Strait Islander people.⁶³ Four Aboriginal wards were placed with non-Aboriginal families under the discretionary approval of the Director-General, following consultation with Aboriginal workers. Of these four children, two children’s Aboriginality was only traced later in the adoption process, and the other two young people, aged 16 and 18 years, despite involvement in the Aboriginal community chose not to identify themselves as Aboriginal and consented to their own adoptions.⁶⁴ During this period, an adolescent Aboriginal boy with special needs was also available for adoption, however no suitable adoptive parents could be found for him. Unfortunately the lack of a complete account gives little insight into factors which prevent the adoption of Aboriginal children by Aboriginal people.

4.46 Barnardos Australia has placed one Aboriginal child for adoption in the last five years who was placed with a family of Aboriginal and non-Aboriginal descent. Barnardos’ approach is that they would not generally place Aboriginal children for adoption, but would instead refer them to other Aboriginal services.⁶⁵ In cases where the birth mother wanted to place the child through Barnardos, they would consult with Gullama Aboriginal Services Centre within DOCS. Barnardos does not have any Aboriginal or Torres Strait Islander workers.

4.47 Care Force estimates that only three Aboriginal children were adopted through the agency in the last five years, and that all of these children were adopted by Aboriginal people.⁶⁶ It is Care Force Anglican Adoption Agency policy⁶⁷ to place Aboriginal children with Aboriginal families.⁶⁸ There is an exception to this where the child has a “trace of” Aboriginality and is not Aboriginal in appearance. If the birth parent of such a child does not identify as Aboriginal, nor wish for the child to be adopted by Aboriginal people, then the birth parents wishes are respected. If the child is of Aboriginal appearance, then the Principle is applied regardless of the birth parent’s wishes. Suitable families are found by consulting with the Aboriginal workers at the agency’s Aboriginal group home, Marella,⁶⁹ or with an Aboriginal worker in DOCS.

4.48 There has been one Aboriginal child placed through Centacare, in an Aboriginal family, for adoption in the five year period July 1991 - July 1996. Centacare Adoption Services stated that the agency’s adoption policy reflects the Principle and that the agency would explore options with an Aboriginal birth parent and liaise with relevant Aboriginal welfare organisations.⁷⁰ Centacare does not have any Aboriginal or Torres Strait Islander workers on staff, and does not have any prospective Aboriginal adoptive parents. Should an adoption be sought for an Aboriginal or Torres Strait Islander child, Centacare would attempt to recruit Aboriginal or Torres Strait Islander adoptive parents.⁷¹

4.49 Despite the Principle being implemented in the Draft Policy it seems that nearly half the Aboriginal children adopted in NSW over the past five years have been adopted by non-Aboriginal people. Of the 35 Aboriginal children adopted over the past five years in NSW, 16 (45.7%) were adopted by non-Aboriginal people. DOCS maintains that this figure of 35 adoptions is inflated due to possibly incorrect recording of the number of adoptions in 1990/91.⁷² Even disregarding the nine children adopted by non-Aboriginal people in this year, there have been 9 Aboriginal children adopted by non-Aboriginal people and one more child where the Aboriginality of the adoptive parents was not recorded in the following years. DOCS can provide explanations for, at most, four of these children. This suggests that, at the very least, there is room for improvement in DOCS’s recording of its compliance with the Draft Policy.

4.50 Another important factor to note is that the agencies involved may not necessarily know of a child’s Aboriginality if the birth mother does not identify as being Aboriginal, or if a non-Aboriginal birth mother does not identify the father as being Aboriginal. Therefore, the number of Aboriginal children adopted into non-Aboriginal families may well be much higher than recorded.

4.51 Factors which may prevent the effective implementation of the Principle are discussed in Chapter 7. The effectiveness of the Principle in NSW may well be limited by the fact that it is not contained in legislation and instead is found in a draft policy document. This issue also is discussed in Chapter 7.

Table of contents

1. Draft Policy Statement: Placement of Aboriginal Children for Adoption (the “Draft Policy”) (see Appendix B).

2. 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", which in s 4 defines an Aboriginal as a “person who: (a) is a member of the Aboriginal race of Australia; (b) identifies as an Aboriginal; and (c) is accepted by the Aboriginal community as an Aboriginal”.

3. NSW - Department of Community Services Draft Policy Statement: Placement of Aboriginal Children for Adoption (8 May 1987) defines an Aboriginal child as “a child at least one of whose parents is Aboriginal as defined by the Aborigines Act of 1969”. An Aboriginal is “a person who is a descendant of an aboriginal native of Australia”: Aborigines Act 1969 (NSW) s 2(1). Note that this Act was repealed by the Aboriginal Land Rights Act 1983 (NSW) on 10 June 1983.

4. Both Acts are administered by the Minister for Community Services: Community Welfare Act 1987 (NSW) s 3(1).

6. For example Aboriginal children who are dealt with informally through the Child Protection Program of DOCS, or children under temporary care arrangements: 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 131 (“DOCS Review Discussion Paper 1”).

7. District Court, NSW, Graham DCJ, 28 October 1992, DCC7/1992-11/1992, unreported.

12. R Chisholm “Aboriginal Children and the Placement Principle” (1988) 2(31) Aboriginal Law Bulletin 4 at 5. See also paras 6.27-6.31.

13. 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 133.

17. This view has been expressed in the preparation of this Report by both Aboriginal workers within DOCS and Aboriginal workers in Aboriginal Child Care Agencies.

19. This was apparent from discussions with Aboriginal people in the preparation of this Report.

21. NSW - Department of Community Services Letter (27 June 1995). This does not mean that these couples were actually fostering Aboriginal and Torres Strait Islander children, but that they had been approved by the Department to do so.

22. 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.

23. Some of these services are totally funded by DOCS, others receive some of their funding from the Commonwealth Government: see paras 3.51-3.55.

25. NSW - Substitute Care Implementation Unit Strategic Directions for Substitute Care Program (Department of Community Services, NSW, March 1996) at 7 and 9. See also para 2.42.

27. NSW - Ministerial Review Committee Review of Substitute Care Services in NSW: A Report to the Minister for Health and Community Services, the Hon John P Hannaford, MLC from the Committee Established to Review Substitute Care Services (Sydney, January 1992) (“the Usher Report”).

28. This appears to be the situation on the advice of DOCS workers and the Aboriginal workers given in the preparation of this Report.

35. There had been a total of 26 Aboriginal and Torres Strait Islander children fostered through Barnardos Illawarra Centre from January 1991 - December 1995: Barnardos Illawarra Centre Letter (22 March 1996).

41. This represents approximately 0.6% of all children placed through the long-term and Temporary Family Care programs over the past five years: Centacare Children’s Services Letter (5 June 1996).

42. 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, 10 October 1994) (“the Learning from the Past Report”) at 54.

43. Chapter 7 discusses the factors which may prevent the operation of the Principle.

45. Australia - Council of Social Welfare Ministers National Minimum Principles on Adoption (June 1993): Principle 12. These principles are soon to be replaced by the National Principles in Adoption (June 1995) which were approved in draft form by the Standing Committee of Social Welfare Administrators in September 1995, however Principle 12 remains unchanged in the new National Principles.

46. Adoption of Children Regulation 1995 (NSW) cl 33(1) provides: “The Director General or the principal officer of the private adoption agency is to make all reasonable efforts to place the child with an approved person: (a) who is of the ethnic group expressed by a parent or guardian of the child in Form 6 ... as being the ethnic group from which the parent or guardian wishes a person adopting the child to be drawn.”

47. This would not occur if, for example, a non-Aboriginal mother was relinquishing an Aboriginal child and requested that the child be placed in a non-Aboriginal family, and the consent of the Aboriginal father was not required.

49. That is, the definition in the Aboriginal Land Rights Act 1983 (NSW) (see note 2 in this Chapter).

50. NSW Parliamentary Debates (Hansard) Legislative Assembly, 16 September 1987 at 13 669.

51. NSW Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, 1994) at 201.

52. R Chisholm “Aboriginal Children and the Placement Principle” (1988) 2(31) Aboriginal Law Bulletin 4 at 7.

53. It also requires both the man and the woman in the customary marriage to be Aboriginal: Adoption Act 1965 (NSW) s 19(1A)(c)(i). This would exclude customarily married couples in which one party is Torres Strait Islander or non-Aboriginal.

54. Adoption Act 1984 (Vic) s 11(1) (see Appendix H); Adoption of Children Act 1994 (NT) s 13(1) (see Appendix D); Adoption Act 1994 (WA) s 4(2)(c) (see Appendix I).

56. Unless the tribal relationship could constitute a de facto relationship for the purposes of s 26(3)(b)(iii) “... lived together after the child’s birth as husband and wife on a bona fide domestic basis in a household of which the child formed a part”.

59. NSW - Department of Community Services Submission from the New South Wales Department of Community Services to NSWLRC DP 34 (5 September 1994) at 38.

60. This information is drawn from: K Wilkinson and G Angus Adoptions Australia 1990-91 (Australian Institute of Health and Welfare, Child Welfare Series No 1, 1993); G Angus and K Wilkinson Adoptions Australia 1991-92 (Australian Institute of Health and Welfare, Child Welfare Series No 4, 1994); P Zabar and G Angus Adoptions Australia 1992-93 (Australian Institute of Health and Welfare, Child Welfare Series No 7, 1994); P Zabar and G Angus Adoptions Australia 1993-94 (Australian Institute of Health and Welfare, Child Welfare Series No 11, 1995); G Angus and L Golley Adoptions Australia 1994-95 (Australian Institute of Health and Welfare, Child Welfare Series No 14, 1996), and further information provided by the Australian Institute of Health and Welfare.

62. Aboriginal children and Torres Strait Islander children are not separated in the demographic statistics. However, in the five year period 1990-1994, DOCS reported that they were aware of one baby with a Torres Strait Islander background placed for adoption in NSW: NSW - Department of Community Services Submission to NSWLRC Report 81 (5 September 1994) at 38.

64. NSW - Department of Community Services Submission to NSWLRC Report 81 (5 September 1994) at 38; and data provided for the purposes of this Report by the NSW - Department of Community Services Letter (5 August 1996).