8.1 This Chapter uses the analysis in the preceding Chapters to identify key areas of concern in formulating the Principle. The key areas identified include:

• important components of the Principle generally, and specific elements which relate to the adoption of Aboriginal children;
• the status given to the Principle - whether it is implemented as a legislative or policy provision;
• other factors affecting the operation of the Principle; and
• the application of the Principle to Torres Strait Islander children.

GUIDING TENETS

8.2 The analysis of important components of the Principle in this Chapter is based on the following factors:

• The importance of keeping Aboriginal children in their extended family and community and generally, the importance of placing Aboriginal children with Aboriginal people.
• Views of Aboriginal people concerned with issues of Aboriginal child welfare expressed in the preparation of this Report,¹ specifically their desire for Aboriginal people to have meaningful participation in decisions made regarding Aboriginal children.
• The need to move away from previous policies in child welfare such as “protection” and “assimilation”, and recognise the devastating impact of these past policies on Aboriginal people and Aboriginal communities.
• Over-representation of Aboriginal children in the child welfare system in Australia.
• Differences between Aboriginal cultural values and child care practice and the prevailing child welfare system, based on Western notions of the nuclear family.
• The concept of “best interests of the child” expanding to take account of Aboriginal cultural values, both in international law and in family law in Australia.
• Principles of self-determination supporting the increased involvement and control of Aboriginal people over issues which affect them, such as child welfare.
• Recognition of the role that Aboriginal Child Care Agencies have played, and will continue to play in the area of Aboriginal child care, and the lack of consultation with Aboriginal organisations.
• Views of various government departments responsible for child welfare, including the views of Aboriginal workers in the Department of Community Services (NSW).

Consultation with Aboriginal people in formulating the Principle

8.3 It is imperative that Aboriginal and Torres Strait Islander people be involved in the formulation of the Principle. This is consistent with Aboriginal self-determination. It is appropriate in recognition of the failure of previous policies devised for Aboriginal people rather than with Aboriginal people. With this in mind, the following components are put forward as suggestions, based on a consideration of the factors outlined above.

GENERAL ELEMENTS OF THE PRINCIPLE

8.4 It is not possible to say definitively that a specific form of the Principle in one jurisdiction has worked better than forms in other jurisdictions. However, it is possible to identify some elements from the various formulations of the Principle across Australia which reflect important features of the Principle and what it is intended to achieve. Many of these elements are common to both the fostering and adoption of Aboriginal children. Elements which relate specifically to the adoption of Aboriginal children are dealt with separately.

Definition of “Aboriginal child”

8.5 The definition of “Aboriginal child” is important as it determines the children to which the Principle applies. A “descent” definition, such as “a child of Aboriginal descent”, is a broad definition which would include all Aboriginal children under the Principle. This would ensure that issues regarding a child’s Aboriginality are considered regardless of the child’s “degree” of Aboriginal blood. Such a definition does not have the inherent problems of a “self-identification” definition which may preclude Aboriginal children from the operation of the Principle,² but nevertheless, does not overcome the problems with identification of Aboriginal children.³

An introductory statement about the objectives of the Principle

8.6 One objective of the Principle is to preserve and enhance an Aboriginal child’s sense of Aboriginal identity⁴ by ensuring that where possible he or she remains with Aboriginal people. Another objective of the Principle is to give recognition to the principle of Aboriginal self-management and self-determination⁵ and to move away from previous policies of assimilation.

A preference for the placement of Aboriginal children with Aboriginal people

8.7 A statement which sets out the general principle that Aboriginal children should be placed with Aboriginal people establishes the purpose of the Principle.⁶ A more specific objective of the Principle is to maintain Aboriginal children within their own family and community.⁷ This is linked with the desire and efforts of Aboriginal people and communities to preserve the integrity of their culture and kinship arrangements by placing Aboriginal children within families, kinship groups and Aboriginal communities,⁸ and recognises the importance of the Aboriginal extended family in child rearing.⁹

A clear requirement that Aboriginal people and the Aboriginal child be consulted

8.8 An Aboriginal child who is of an appropriate age, as with any other child, should be given the opportunity to have a say in his or her placement.¹⁰ It is integral to the Principle that the child’s extended family, the child’s Aboriginal community and Aboriginal organisations be consulted.¹¹ It is also important that consultation with Aboriginal people is meaningful and amounts to real involvement in the decision-making process.¹² Some forms of the Principle refer to the involvement of Aboriginal workers in the relevant department.¹³ This may be unnecessarily restrictive and prevent Aboriginal people in non-government organisations with expertise and experience in the area of child welfare from being involved¹⁴ to ensure that the most appropriate placement is made.¹⁵

Recognition of the role of Aboriginal organisations

8.9 Aboriginal organisations and other observers consider the involvement of Aboriginal organisations in placement decisions is an important aspect of the Principle. It is not a feature of all expressions of the Principle, and where it is, recognition of their role is achieved in different ways.¹⁶ This recognition gives these organisations the right to make a submission regarding the placement of an Aboriginal child,¹⁷ or the power of veto over the placement of a child with non-Aboriginal people.¹⁸ A requirement that no Aboriginal child be placed unless an Aboriginal organisation has been consulted is also a mechanism for recognising their role.¹⁹ The role of Aboriginal organisations could extend to responsibility for placing Aboriginal children, subject to the department’s ultimate responsibility for the welfare of all children.

8.10 The process by which an Aboriginal organisation becomes “recognised” for the purposes of the Principle is also important. There is a danger that, in order to achieve recognition, Aboriginal organisations will be required to be more like a government department and less like a community organisation. Consultation with Aboriginal people and organisations may be necessary to develop a process which ensures that the organisation has the support of the community and that the role set out for the organisation and the terms used are appropriate. An example of an inappropriate term used in legislation is found in s 87 of the Children (Care and Protection) Act 1987 (NSW). Some Aboriginal groups find the reference to them as “Aboriginal welfare organisations” offensive. In the light of past treatment of Aboriginal people, “welfare” is understandably a “dirty word” and Aboriginal organisations are unwilling to identify themselves as “welfare” in order to be consulted.

8.11 There may be difficulties when the child’s parents do not wish for an Aboriginal organisation to become involved. The Policy Statement (Qld) acknowledges that the views of the child’s parents about the involvement of Aboriginal organisations must be considered in order to balance the parents’ needs for confidentiality against the child’s best interests. This would be a matter of balancing the parents’ rights and needs for confidentiality and privacy, and the importance of the involvement of Aboriginal organisations. Ultimately the guiding principle would be what is in the best interests of the child.

A list of placement preferences for Aboriginal children

8.12 From discussions with Aboriginal people, Aboriginal departmental workers and workers in Aboriginal organisations in the preparation of this Report, there seems to be general support for a list of placement preferences for Aboriginal children. A favoured order of preference for either the adoptive or foster placement of an Aboriginal child is:

• a member of the child’s extended family;
• other members of the child’s Aboriginal community;²⁰ or
• other members of the wider Aboriginal community.

Some expressions of the Principle place a limitation on the last option of “living in close proximity” to the child.²¹ This has been criticised as placing an unnecessary limitation of geographic proximity on the Aboriginal families who could adopt or foster Aboriginal children.²²

8.13 While consultation with Aboriginal people should ensure that all these options are considered, it may still be desirable to include such a list of preferences in the Principle. A list sends a clear message to decision-makers that all such options should be exhausted before a child is placed with non-Aboriginal people and may also operate as a safeguard if consultation with Aboriginal people does not occur. It also accords with customary child care practice.

Application of preferences to adoption

8.14 Application of these placement preferences to adoption of Aboriginal children may be difficult in that adoption is not acceptable to many Aboriginal people.²³ If the child’s Aboriginal extended family is unable to care for the child in some other way, including fostering, it is unlikely that they would agree to adopt the child. A form of the Principle which may overcome this issue is one where:

• the first preference for placing an Aboriginal child is within the Aboriginal community to which the child, or one of the child’s parents, belongs (a broad option encompassing both the extended family and kinship networks); and
• the second preference is for placement with a person who is a member of the Aboriginal community (this, too, is a broad option encompassing all Aboriginal people, therefore maximising the chances of the Aboriginal child being adopted by an Aboriginal person).²⁴

Placement with non-Aboriginal people

8.15 In certain situations, placement with Aboriginal people may not reasonably be possible and it may be necessary to consider the placement of an Aboriginal child with non-Aboriginal people. This is of particular concern with respect to adoption, due to the finality of the adoption order. Further requirements may need to be introduced as safeguards, for example:

• that the Court be satisfied that there are special circumstances and the child’s Aboriginal cultural identity will not be lost as a result of the adoption before finalising the adoption order;²⁵ and
• that the non-Aboriginal adoptive parents are approved of by an Aboriginal agency as suitable to adopt an Aboriginal child.²⁶

Factors to be considered in placing an Aboriginal child

8.16 As an alternative to setting out placement preferences, the Principle could simply emphasise the importance of consultation with Aboriginal people and set out the factors to be considered in making a placement.²⁷ For example:

• the preference for placing the child with suitable Aboriginal people; ²⁸
• placing the child geographically close to the immediate family or relatives who have an interest in the welfare of the child;²⁹
• whether the Aboriginal child’s cultural identity will be lost as a result of the placement;³⁰
• the desirability of the child being able to maintain contact with his or her family and Aboriginal culture,³¹ including any undertakings of the prospective carers to encourage this;³² and
• the consideration that cultural consistency and family linkage are more important than material standards in the placement of an Aboriginal child.³³

8.17 The advantage of simply listing factors to be considered would be to increase flexibility in the application of the Principle, and mean that all relevant factors are considered, rather than having one factor, such as geographic proximity, place a limitation on the Aboriginal people eligible to foster or adopt a child.³⁴ On the other hand, the placement preferences are approved of widely by Aboriginal people, and to remove them from the Principle may remove an important safeguard. A list of preferences may also place an onus on the relevant department to demonstrate to the Court that the preferences have been exhausted before the Court finalises an adoption order for an Aboriginal child.

Provision for the transfer of responsibility to Aboriginal communities and Aboriginal people

8.18 If an objective of the Principle is to reflect the principles of Aboriginal self-determination, the Principle should involve more than consultation with Aboriginal people. The Substitute Care Policy (WA) states that one object of the policy is to facilitate the transfer of appropriate functions to Aboriginal communities and organisations in relation to the welfare of children.

An obligation for the government to support the efforts of Aboriginal organisations

8.19 The transfer of functions to Aboriginal communities and organisations is meaningless without the provision of adequate resources to enable them to perform such functions. A statement that the government is obliged to provide the necessary support and assistance to Aboriginal communities and organisations in respect of the welfare of Aboriginal children may go some way to ensuring adequate resources to undertake the responsibilities they are given.³⁵

THE PRINCIPLE AND ADOPTION

8.20 Some important components of the Principle relate specifically to the adoption of Aboriginal children.

Adoption is not part of customary Aboriginal child care

8.21 It should be recognised that adoption is not part of customary Aboriginal child care arrangements.³⁶ This is an important consideration in the application of the Principle to the adoption of Aboriginal children.

Other forms of alternative care are to be used in preference to adoption

8.22 In addition, there is a provision in the Principle in a number of States and Territories that adoption should only be considered an option for Aboriginal children after every effort has been made to arrange other appropriate forms of custody. This alternative custody could be a foster care arrangement with members of the child’s extended family or with Aboriginal people who have the correct relationship with the child in accordance with Aboriginal law.³⁷

8.23 Mechanisms to ensure compliance with such a provision have been suggested. One involves departmental workers following a clear protocol in the placement of an Aboriginal child, and demonstrating compliance with the protocol before an adoption order can be made.³⁸ Alternatively, it was suggested that there be a review panel of Aboriginal workers to review the adoptions of any Aboriginal children to ensure that correct procedures have been followed,³⁹ or to assess a proposed adoptive placement.

Counselling by Aboriginal people

8.24 Another means of ensuring that adoption is used only as a last resort for Aboriginal children is the inclusion of a provision that the birth parent of an Aboriginal child discuss options with Aboriginal people.⁴⁰ It is significant that in the two States that make counselling with Aboriginal people prior to consent a legislative requirement, SA reported one, and Victoria reported no adoptions of Aboriginal children in the last five years.

8.25 Counselling by trained Aboriginal counsellors allows for an informed exploration of the child’s needs relating to his or her Aboriginality; a consideration of alternatives to adoption and for a non-Aboriginal birth parent to be given an opportunity to question an Aboriginal person about ideas of child rearing and to challenge existing stereotypes.⁴¹ It has been suggested that this opportunity also be given to Aboriginal children who are old enough to consent to their own adoption.⁴²

8.26 If Aboriginal birth parents wish to keep the adoption of their child concealed from their Aboriginal community, they may be wary of the involvement of an Aboriginal organisation in the adoption process. Such concerns are legitimate and procedures should be in place to ensure privacy for birth parents. However, these concerns should not result in the exclusion of Aboriginal people from the adoption process. The best interests of the child should be the determinant.

8.27 It is imperative that the Aboriginal people who provide this counselling are trained and experienced in issues relating to adoption. These trained Aboriginal workers may come either from the relevant department or from Aboriginal organisations.⁴³

Consultation with the Aboriginal child and Aboriginal people

8.28 Counselling by Aboriginal people for birth parents is one aspect of consultation. However, as with the foster placement of Aboriginal children, it is preferable that the decision-making process involve consultation with the extended family, the child’s Aboriginal community and Aboriginal organisations.⁴⁴ This is of particular importance for adoption as consultation would be necessary in order to exhaust completely the possibility of an alternative custody arrangement. Obviously, issues of confidentiality surrounding adoption may mean that such consultation is not appropriate in all circumstances, but again, the child’s best interests must be considered paramount.

Recognising traditional Aboriginal marriage

8.29 A provision which recognises traditional Aboriginal marriage as a marriage for the purposes of adoption⁴⁵ may make a difference to the numbers of Aboriginal couples who are eligible to adopt children.

Selection criteria for Aboriginal adoptive parents

8.30 Flexibility in applying eligibility criteria to Aboriginal couples who want to adopt may also increase the number of Aboriginal couples eligible to adopt children.⁴⁶ Such flexibility could also be encouraged by the involvement of Aboriginal workers, departmental or non-departmental, in the assessment, selection and training of prospective Aboriginal adoptive couples.⁴⁷ The NSWLRC Report 81 recommends a broader range of eligibility criteria which may also make it easier for Aboriginal couples to gain approval to adopt.⁴⁸

Preserving Aboriginal identity

8.31 If, after considering all other options, an Aboriginal child is adopted by non-Aboriginal people, it is important that the Principle contain mechanisms which ensure that the Aboriginal child does not lose a chance to develop his or her Aboriginal identity. One mechanism may be including a preference for placement with non-Aboriginal people who recognise the importance of the child maintaining contact with his or her Aboriginal family and culture.⁴⁹ Another mechanism for providing this guarantee may be to place an obligation on the department to provide information to the child about his or her background when he or she reaches a certain age.⁵⁰

LEGISLATION OR POLICY?

Arguments for the inclusion of the Principle in legislation

8.32 The Principle is more secure when it is in legislation as it requires an Act of Parliament to amend rather than simply a departmental direction. A legislative provision is a clear statement by the Parliament that the Principle is important and should be followed. The Principle expressed as departmental policy or practice has been described as little more than a guideline,⁵¹ whereas expressing the Principle in legislation may lend it more weight and mean that it is taken more seriously by decision-makers.⁵² An expression of the Principle in legislation may mean that people outside the department are more aware of its existence and make the department more accountable for implementing the Principle.

8.33 The Australian Law Reform Commission⁵³ has identified inherent deficiencies in leaving the implementation of the Principle to the discretion of decision-makers:

It is not sufficient to rely on the sensitivity of particular welfare officers, authorities or magistrates in ensuring that appropriate principles are applied - and that concealed ethno-centric judgments are not applied - in deciding on the future of Aboriginal children. Legislation providing a statutory basis for an Aboriginal child placement principle would help to ensure that those involved in making decisions on Aboriginal child placements make every effort to ensure that, wherever possible, Aboriginal children are placed within the care of their own families and communities.⁵⁴

8.34 These factors suggest that it is preferable for the Principle to be contained in legislation rather than departmental policy. It also appears from the evidence of recent years that the Principle has been more effective in relation to adoption of Aboriginal children when contained in legislation rather than policy. The effectiveness of the Principle is less clear in relation to fostering.⁵⁵

• Adoption. Over the five year period 1990/91 - 1994/95, a total of four Aboriginal and Torres Strait Islander children were adopted in States and Territories where the Principle is included in adoption legislation (ACT, SA, NT and Victoria). Furthermore, three of these children were adopted in the NT prior to the Principle being enacted. Effectively only one Aboriginal or Torres Strait Islander child has been adopted under legislation which includes the Principle. By comparison, 57 Aboriginal and Torres Strait Islander children were adopted in those States and Territories which follow the Principle in policy (WA, Qld, SA and NSW).⁵⁶
• Fostering. It is difficult to draw firm conclusions on the effectiveness of the Principle in legislation compared with policy since some States and Territories were unable to supply information, and different data collection methods prevent valid analysis of data.

8.35 However, it is also clear that having the Principle embodied in legislation does not necessarily mean that it will be effectively applied. This point has been made in relation to the achievements of the Aboriginal and Islander Child Care Agencies:

There are no adequate legislative safeguards. The only insurance we have against abuses in the future is our own vigilance.⁵⁷

OTHER FACTORS AFFECTING THE OPERATION OF THE PRINCIPLE

8.36 Factors were identified in Chapter 7 which hamper the application of the Principle. These factors involve broader social and economic problems which cannot be cured by legislation. The following factors, by no means an exhaustive list, could contribute to the more effective operation of the Principle:

• Placing an onus on government departments to keep adequate records of Aboriginal children showing how placement decisions were made, who was consulted and where the child was placed. Such records would make the department more accountable in terms of compliance with the Principle and enable the effectiveness of the Principle to be assessed.
• Placing an onus on both government departments and non-government organisations to make all reasonable inquiries to establish a child’s Aboriginal background.
• Provision of adequate financial and material assistance to Aboriginal families to ensure that Aboriginal children are only placed outside their family when it is not possible for them to remain with their families.
• Provision of adequate resources for Aboriginal children with disabilities and other special needs to ensure that, wherever possible, they can remain in their communities.
• Provision of adequate resources and support for Aboriginal foster parents.
• Provision of adequate funding for Aboriginal organisations to enable them to recruit and train Aboriginal carers and provide support services for Aboriginal children and families.
• Provision of resources to assist the development of Aboriginal community structures to enable consultation with the community and the development of alternative child care programs for Aboriginal children within that community.

APPLICATION OF THE PRINCIPLE TO TORRES STRAIT ISLANDER CHILDREN

Current application in legislation and policy

8.37 Currently, the Principle is known in both legislation and policy as the “Aboriginal Child Placement Principle”, although the Principle has generally been accepted as also applying to Torres Strait Islanders. There is currently only one piece of legislation in Australia which contains a form of the Principle specifically for Torres Strait Islander children. The Children’s Protection Act 1993 (SA) acknowledges the distinct identities of Aboriginal and Torres Strait Islander people by defining “Aboriginal child” and “Torres Strait Islander child” separately.⁵⁸ It requires that recognised Torres Strait Islander organisations be consulted with regard to Torres Strait Islander children, and that decision-makers have regard to the general principle that Torres Strait Islander children be kept within the Torres Strait Islander community.⁵⁹

8.38 Legislation in the ACT and Victoria,⁶⁰ includes Torres Strait Islander children in the Principle by defining them as “Aboriginal children”. Such a definition is offensive to Torres Strait Islander people and ignores their wishes to be recognised as a distinct and separate people. In other States and Territories, whether in legislation or policy, the Principle refers exclusively to “Aboriginal children”.⁶¹ The status of Torres Strait Islander children under such provisions is unclear. These shortcomings are related more to the expression than the substance of the Principle. Even so, this fails to give express recognition to the importance of the Principle to the Torres Strait Islander community.

8.39 The failure of many States and Territories to mention Torres Strait Islander children in their child welfare and adoption legislation could well be due to the small numbers of Torres Strait Islanders in Australia, outside of Queensland. However, Torres Strait Islander people do live in every State and Territory in Australia, and the fact that in some places their population is quite small is not a convincing argument for failing to recognise their needs.

8.40 Outside Queensland, the largest population of Torres Strait Islander people is in NSW.⁶² In NSW this is further justification to include a form of the Principle specifically relating to Torres Strait Islander children in the Adoption of Children Act 1965 (NSW) and the Children (Care and Protection) Act 1987 (NSW).

Definition of “Torres Strait Islander child”

8.41 For the reasons discussed in relation to the definition of “Aboriginal child”⁶³ the Commission recommends in the Review of the Adoption of Children Act 1965 (NSW) that a Torres Strait Islander child be defined as a child of Torres Strait Islander descent.⁶⁴ As with Aboriginal children sensitivity in the application of a “descent” definition is called for.

A Torres Strait Islander Principle

8.42 It is appropriate that a form of the Principle apply specifically to Torres Strait Islander children as a separate Torres Strait Islander Placement Principle or by the Principle being known as the Aboriginal and Torres Strait Islander Placement Principle.⁶⁵ Consultation with Torres Strait Islander people and organisations in the preparation of this Report indicated that the placement preferences applied to Aboriginal children are also applicable to Torres Strait Islander children.⁶⁶ However, differences in attitudes to adoption between the Aboriginal and Torres Strait Islander communities may warrant a separate Principle.

8.43 Torres Strait Islander people are proud and protective of their culture - which they believe is preserved through the strength of the family. Unlike in Aboriginal communities, customary adoption is practised and is often within the family bloodline, to preserve family heritage and customs.⁶⁷ Customary adoptions are not arranged outside their own culture for this reason, and are not desired. Furthermore, keeping children within the family is even more important than placement with non-related Torres Strait Islanders in the same community.⁶⁸ It would be important that all possibilities of placing a Torres Strait Islander child within the family be exhausted (including interstate extended family) before the child is placed outside the extended family.

8.44 Principles, such as self-determination and consultation, explained previously in relation to the Aboriginal Child Placement Principle,⁶⁹ are also important to Torres Strait Islander people, and as such any Principle should be developed in consultation with Torres Strait Islander people.

1. See Acknowledgement and paras 1.14-1.16.

2. See discussion at para 7.26.

3. See discussion at paras 7.21-7.24.

4. See, for example, Children’s Protection Act 1993 (SA) s 4(2): “Serious consideration must, however, be given to the desirability of - ... (e) preserving and enhancing the child’s sense of racial, ethnic, religious or cultural identity, and making decisions and orders that are consistent with racial or ethnic traditions or religious or cultural values.”

5. See Children and Young Person’s Act 1989 (Vic) s 119(1)(m)(ii); and Adoption Act 1984 (Vic) s 50(1).

6. See Children’s Protection Act 1993 (SA) s 5(2)(c); Community Welfare Act 1983 (NT) s 69(c)(iii); Draft Policy (NSW); Adoption Act 1993 (ACT) s 21(2)(b)(i); and Adoption of Children Act 1994 (NT) s 11(2)(a). Note that while the Adoption of Children Act 1964 (Qld) does not contain the Principle, s 18A of the Act states a preference for adoption by couples of the same indigenous background as the child.

7. See Substitute Care Policy (WA); Policy Statement (Qld) Procedure 1.

8. Adoption of Children Act 1994 (NT) Sch 1 cl (2)(ii).

9. See Substitute Care Policy (WA).

10. See Policy Statement (Qld) Procedure 3.

11. For example, the Substitute Care Policy (WA) aims to “ensure that consultation occurs with extended family, significant others and, where appropriate, Aboriginal organisations”.

12. Children and Young Person’s Act 1989 (Vic) s 119(1)(m)(i) refers to relevant members of the Aboriginal community being involved in decision-making, rather than referring to consultation.

13. Draft Policy (NSW).

14. See Adoption of Children Act 1994 (NT) s 11(1); Sch 1 cl 3; Policy Statement (Qld) Procedure 3 provides for consultation with relevant agencies after considering the parents’ requirements for confidentiality. The Adoption Act 1984 (Vic) s 50(2)(e) gives an Aboriginal agency the power of veto over non-Aboriginal adoptive placements of Aboriginal children.

15. See discussion in paras 7.62-7.65.

16. For example, giving Aboriginal organisations legal recognition by way of notice in the Government Gazette: Children’s Protection Act 1993 (SA) s 5(3)-(7); Children and Young Person’s Act 1989 (Vic) s 6; Adoption Act 1984 (Vic) s 50(2)(e).

17. Children’s Protection Act 1993 (SA) s 5(2)(a).

18. Children and Young Persons Act 1989 (Vic) s 119(2)(c); Adoption Act 1984 (Vic) s 50(2)(e).

19. See Children’s Protection Act 1993 (SA) s 5(1); Departmental Policy (Tas); Protocol between Health and Community Services - Protective Services and the Victorian Aboriginal Child Care Agency (1994-95) (Vic).

20. The Departmental Policy (Tas); Community Welfare Act 1983 (NT) s 69(b) and Policy Statement (Qld) Procedure 1(a)(ii) have a further qualification, referring to members of the child’s Aboriginal community: “who have the correct relationship with the child in accordance with Aboriginal customary law”. However, this qualification seems unnecessary if members of the child’s own Aboriginal community participate in the decision-making, as they would be well aware of the correct relationships.

21. Children (Care and Protection) Act 1987 (NSW) s 87; the Departmental Policy (Tas) and the Policy Statement (Qld). These expressions of the Principle seem to be based on the Principle accepted by the Social Welfare Ministers in 1986: see para 3.26 and Appendix G.

22. R Chisholm “Aboriginal Children and the Placement Principle” (1988) 2(31) Aboriginal Law Bulletin 4 at 5-6. See also para 8.17.

23. See discussion in paras 2.53-2.55.

24. Adoption Act 1988 (SA) s 11(2); Adoption Act 1984 (Vic) s 50(2).

25. Adoption Act 1988 (SA) s 11(3).

26. Adoption Act 1984 (Vic) s 50(2)(e).

27. Draft Policy (NSW); Adoption Act 1993 (ACT) s 21(2).

28. Adoption of Children Act 1994 (NT) s 11(2)(a); Adoption Act 1993 (ACT) s 21(2)(b)(i).

29. Adoption of Children Act 1994 (NT) s 11(2)(b).

30. Adoption Act 1988 (SA) s 11(3)(b).

31. Adoption Act 1993 (ACT) s 21(2)(b)(ii); Policy Statement (Qld) Procedure 1(b).

32. Community Welfare Act 1983 (NT) s 69(c)(v); Adoption of Children Act 1994 (NT) s 11(2)(c).

33. Substitute Care Policy (WA).

34. See para 8.12.

35. See Community Welfare Act 1983 (NT) s 68; Substitute Care Policy (WA); and Departmental Policy (Tas).

36. This recognition is contained in the preamble to the Draft Policy (NSW); Adoption of Children Act 1994 (NT) Schedule 1 cl 2(i); and Adoption Act 1984 (Vic) s 50(1).

37. Adoption Act 1993 (ACT) s 21(2)(a); Adoption Act 1988 (SA) s 11(1); Adoption of Children Act 1994 (NT) s 11(1).

38. Aboriginal Reference Group Submission (23 May 1996).

39. Aboriginal Reference Group Submission (23 May 1996).

40. See Adoption Act 1984 (Vic) s 50(2)(b); Adoption Regulations 1989 (SA) Reg 4; Draft Policy (NSW); Departmental Policy (Qld) Procedure 9(a).

41. Draft Policy (NSW): “Guidelines for Implementation of Aboriginal Policy”. See also Policy Statement (Qld) Procedure 9.

42. Aboriginal Reference Group Submission (23 May 1996).

43. Adoption Act 1984 (Vic) s 50(2)(b) provides for counselling from an Aboriginal agency.

44. See Adoption of Children Act 1994 (NT) s 11(1), Sch 1 cl 3; Policy Statement (Qld) Procedure 3.

45. Adoption Act 1984 (Vic) s 11; Adoption Act 1994 (WA) s 4(2)(c); Adoption Act 1988 (SA) s 4(3); Adoption of Children Act 1994 (NT) s 13(1)(b). Note: the Adoption of Children Act 1965 (NSW) s 19(1A)(c) allows traditionally married Aboriginal couples to adopt as de facto couples rather than as married couples. See paras 4.37-4.39.

46. Policy Statement (Qld) Procedure 9(c).

47. Draft Policy (NSW).

48. NSWLRC Report 81, Chapter 6.

49. Or alternatively allowing certain Aboriginal family or community members to have access to the child: Adoption Act 1984 (Vic) s 37(1); see also paras 5.70-5.71.

50. For example, 12 years of age: Adoption Act 1984 (Vic) s 114. The Draft Policy (NSW) contains a general statement that all adopted Aboriginal children should have access to information regarding their family background and cultural heritage.

51. D Wilkinson “Aboriginal Child Placement Principle: Customary Law Recognition and Further Legislative Reform” (1994) 3(71) Aboriginal Law Bulletin 13 at 13.

52. Concern has been expressed that the Principle is not widely known in the Department in Queensland despite being contained in policy and the need for legislation containing the Principle has been identified: I O’Connor The Impact of Queensland’s Family and Child Welfare and Juvenile Justice Legislation, Policy and Practice on Aboriginal and Torres Strait Islander Families and Children (prepared for the Royal Commission into Aboriginal Deaths in Custody, Queensland, November 1990) at 38-39: see paras 5.35-5.36. Chisholm also expressed concerns in the early 1980s that while the Principle was recognised as policy by senior level officers in the Department of Youth and Community Services (now Department of Community Services), it was unclear how fully the principle was understood and accepted at the field officer level: R Chisholm “Aboriginal Children: Political Pawns or Paramount Consideration?” in J Jarrah (ed) Child Welfare: Current Issues and Future Directions (Social Welfare Research Centre, University of NSW, Seminar, 6 July 1983) 43 at 55.

53. See paras 3.29-3.30.

54. Australian Law Reform Commission The Recognition of Aboriginal Customary Laws (Report 31, 1986) at para 365.

55. See paras 7.16-7.18.

56. See paras 7.9-7.15.

57. B Butler “Adopting an Indigenous Approach” (1989) 13 Adoption and Fostering 27 at 31.

58. Children’s Protection Act 1993 (SA) s 6(1).

59. Children’s Protection Act 1993 (SA) s 5(1) and 5(2)(c).

60. Adoption Act 1993 (ACT) s 4(1); Adoption Act 1984 (Vic) s 4(1); Children and Young Persons Act 1989 (Vic) s 3(1).

61. Children (Care and Protection) Act 1987 (NSW) s 87; Adoption Act 1988 (SA) s 11; Adoption of Children Act 1994 (NT) s 11 and 3(1); Community Welfare Act 1983 (NT) s 69; Draft Policy (NSW); Departmental Policy (Tas).

62. According to the Australian Bureau of Statistics 1991 Census figures, there were 4 886 Torres Strait Islanders in NSW and 14 650 in Queensland.

63. See paras 7.25-7.32.

64. NSWLRC Report 81: Recommendation 79.

65. Or broadly as the Indigenous Child Placement Principle.

66. Being placement with the extended family, with members of the child’s community and then with Torres Strait Islanders generally.

67. 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, Queensland, 1990) at 20. See also paras 2.59-2.61.

68. Comment by Mr Francis Tapim of Magani Malu Kes, a Torres Strait Islander organisation in Townsville.

69. See paras 6.37-6.50.