1.1 The Aboriginal Child Placement Principle (“the Principle”) essentially outlines a preference for the placement of Aboriginal children with Aboriginal people when they are placed outside their families. The order of preference is generally that an Aboriginal child be placed:
- within the child’s extended family; or, if this is not possible,
- within the child’s Aboriginal community; and, failing that,
- with other Aboriginal people.
1.2 This Report examines the Principle and its effectiveness in placing Aboriginal children with Aboriginal people for fostering and adoption. Factors which prevent the effective operation of the Principle are also examined.
1.3 It is not the intention of this Report to make specific recommendations. Rather it seeks to represent the views which have been expressed in the preparation of this Report and emphasise the importance of the involvement of Aboriginal people in the operation of the Principle.
1.4 It is argued that the notion of having Aboriginal people responsible for services for Aboriginal children is important also in the juvenile justice system.1 Aboriginal youth comprise around 25% of those held in NSW detention centres, although Aboriginal youth account for only around 1.9% of the general youth population.2 This Report does not deal with the placement of Aboriginal children through the juvenile justice system.
BACKGROUND TO THE REPORT
1.5 The need for an inquiry into the Principle was identified in the course of the NSW Law Reform Commission’s work on adoption legislation for the review of the Adoption of Children Act 1965 (NSW)3 (“NSWLRC Report 81”). The Adoption of Children Act 1965 (NSW) does not currently refer to the Principle. The Commission decided to review the effectiveness of the Principle in other pieces of legislation in Australia. This project was made possible by funding provided by the NSW Government during the International Year of the Family 1994.
METHODOLOGY
1.6 The focus of this Report is on the operation of the Principle in NSW. To gain a better understanding of the operation of the Principle generally, information and statistics were collected from the departments responsible for child welfare in each State and Territory. Much of the information collected relates to Aboriginal children. However, the Principle as it relates specifically to Torres Strait Islander children is also discussed.4
Legislation and policy
1.7 Child welfare and adoption legislation of each State and Territory of Australia which contains a form of the Principle was studied. All expressions of the Principle set out in departmental policy documents were also examined. These legislative and policy provisions relevant to each State and Territory are contained in Appendices B - I. The main non-government organisations dealing with child welfare in NSW, namely Barnardos Australia, Centacare and Care Force, were also approached. Their policies relating to the adoption and fostering of Aboriginal children are contained in Appendix A.
1.8 The policy documents and statements are current as at June 1996. The legislative provisions are current as at December 1996.
Statistics regarding Aboriginal and Torres Strait Islander children
1.9 The relevant government department in every State and Territory was contacted requesting data relating to the placement of Aboriginal and Torres Strait Islander children into adoptive and foster placements over the last five years. The most conclusive result apparent from this exercise is that there is a widespread failure to record data concerning Aboriginal and Torres Strait Islander child welfare in the relevant government departments throughout Australia.
1.10 While all the States and Territories supplied information regarding the adoption of Aboriginal and Torres Strait Islander children, the response was less comprehensive regarding fostering. Tasmania, South Australia and Victoria were unable to report how many of the Aboriginal and Torres Strait Islander children in substitute care were placed with Aboriginal and Torres Strait Islander people. This makes it difficult to draw any firm conclusions about the implementation of the Principle with respect to fostering of Aboriginal children in Australia.
1.11 As has been noted by other researchers, it is difficult to obtain reliable national data on the number of Aboriginal children who are in substitute care.5 The problems of data collection regarding child welfare in Australia are compounded by different legislation in each State and Territory, the different methods used by government departments in collecting and reporting the numbers of children in care and the involvement of an extensive and varied non-government sector.6 It is therefore not surprising that even official government statistics can be misleading.7 This has made statistical analysis of the effectiveness of the Principle difficult. As a result much of the analysis of the Principle in this Report is descriptive.
1.12 The lack of data also raises questions about the accountability of these departments in relation to their implementation of the Principle. One researcher has drawn parallels between the failure to keep accurate records and the “assimilation” policies of the past,8 when it was maintained that keeping separate statistics for Aboriginal and Torres Strait Islander children amounted to “discrimination”:
The failure to keep accurate records on the exact number of Aboriginal children adopted throughout Australia can be seen as a reflection of the assimilation policies of the 1950s and 1960s. These policies assumed that the “Aboriginal problem” would be solved if Aborigines adopted the values and ways of the allegedly “superior white society”.9
1.13 Some statistics regarding the placement of Aboriginal and Torres Strait Islander children were also obtained from certain non-Aboriginal non-government organisations involved in the fostering and adoption of children in NSW, namely Barnardos Australia, Centacare and Care Force.10 These statistics suffer similar deficiencies to those of the government departments due to differing standards in record-keeping in the different organisations.
Consultation with Aboriginal people
1.14 Consultation with Aboriginal and Torres Strait Islander people is integral to an examination of the operation of the Principle. The Principle was discussed with workers in each Aboriginal and Islander Child Care Agency in NSW, namely:
- Aboriginal Children’s Service (Redfern)
- Aboriginal Children’s Service (Wagga Wagga)
- Aboriginal Children’s Service (St Marys)
- Aboriginal Children’s Service (Cowra)
- Hunter Aboriginal Children’s Service
- Koolyangarra Fostering Agency
- Great Lakes - Manning Aboriginal Children’s Service
- Nunya Aboriginal Fostering Agency
- Coffs Harbour Aboriginal Family Care Centre
1.15 Valuable ongoing input into this Report came from Aboriginal Children’s Services (Redfern) and from the Secretariat of National Aboriginal and Islander Child Care (SNAICC) representing Aboriginal and Islander Child Care Agencies throughout Australia. Issues arising from the Principle were discussed with Aboriginal workers in the NSW Department of Community Services in meetings with the Department’s Aboriginal Reference Group.11
1.16 Due to limited resources, preparation of this Report has not included consultation at a “grass-roots” level with Aboriginal communities about the Principle. Views of people in Aboriginal communities have been represented by the Aboriginal organisations mentioned above. However, “grass-roots” consultation with Aboriginal communities is important in the ongoing development and application of the Principle.
SYNOPSIS OF THE REPORT
1.17 Chapter 2 provides a historical account of child welfare policies in NSW and their impact on Aboriginal children. It also contains a brief overview of the current child welfare system in NSW, and its impact on Aboriginal and Torres Strait Islander children.
1.18 Chapter 3 gives an account of the evolution of the Principle from the 1970s to its operation today, referring to the issue of Federal or State Government responsibility and the involvement of Aboriginal organisations in the evolution of the Principle. This Chapter also contains a section on the principles applied in custody disputes involving parents and at times, other relatives, of Aboriginal children.
1.19 Chapter 4 documents the Principle in legislation and administrative policy in NSW concerning the fostering and adoption of Aboriginal and Torres Strait Islander children. There is also an account, with statistical information, of how the Principle is followed in practice, as well as a description of the role of non-government organisations in the placement of Aboriginal and Torres Strait Islander children in NSW.
1.20 Chapter 5 documents the Principle in legislation and administrative policy in each State and Territory in Australia other than NSW. Statistics provided by the relevant government department which indicate the level of implementation of the Principle are included.
1.21 Chapter 6 sets out Australia’s obligations regarding Aboriginal and Torres Strait Islander children under international instruments such as the UN Convention on the Rights of the Child. It also discusses principles in international law, such as the “best interests of the child” and “self-determination” in relation to the Principle.
1.22 Chapter 7 looks at the Principle in practice and whether it is operating effectively. Factors which prevent the Principle from being effectively implemented are identified.
1.23 Chapter 8 identifies factors to be considered in the formulation of the Principle, such as consultation with Aboriginal people. Important components of the Principle as it relates to adoption and fostering are suggested. The issue of whether the Principle should be implemented as legislation or policy is discussed. Broader considerations, such as resourcing, which affect the operation of the Principle in practice are referred to. The Chapter also deals with the application of the Principle to Torres Strait Islander children.
1.24 Appendix A contains the policy of the non-government organisations relating to Aboriginal children. Expressions of the Principle found in legislation or in the policy documents of government departments are found in the Appendices B - I. Statistics on the number of Aboriginal and Torres Strait Islander children adopted in Australia from 1990/91 - 1994/95 are contained in Appendix J. Articles in international treaties and declarations which are relevant to Aboriginal and Torres Strait Islander child welfare are found in Appendix K.
APPLICATION OF THE PRINCIPLE TO TORRES STRAIT ISLANDER CHILDREN
1.25 Currently, the Principle is known in both legislation and policy as the “Aboriginal Child Placement Principle”. While there is only express reference to Torres Strait Islanders in one version of the Principle,12 in practice the Principle is also generally applied to Torres Strait Islanders. Although Torres Strait Islanders may benefit from the implied application of the Principle, the failure to refer specifically to Torres Strait Islanders is regarded by many Torres Strait Islanders as a failure to give express recognition of the importance of the Principle to the Torres Strait Islander community.13
1.26 With this in mind, the usual formula is the “Aboriginal Child Placement Principle” and this formula is used in the discussion in Chapters 3, 4, 5, 6 and 7. Due to the information provided to this Report, the discussion in these Chapters refers mainly to Aboriginal children and Aboriginal communities. However, much of the discussion is also of relevance to the placement of Torres Strait Islander children because of common issues arising in relation to Aboriginal and Torres Strait Islander communities.
1.27 Recognising, however, that Aboriginal and Torres Strait Islander communities are generally separate and distinct, Chapter 2 contains a section which describes Torres Strait Islander customary child care arrangements. Specific issues which arise when the Principle is applied to Torres Strait Islander children are discussed in a separate section in Chapter 8.
FOOTNOTES
1. G Luke and C Cunneen Aboriginal Over-Representation and Discretionary Decisions in the NSW Juvenile Justice System (Juvenile Justice Council of NSW, January 1995) at vii.
2. Luke and Cunneen at iii.
3. NSW Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Issues Paper 9, 1993); NSW Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Discussion Paper 34, 1994); NSW Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Report 81, 1997).
4. See paras 8.37-8.44.
5. H Bath “Out-of-Home Care in Australia: A State by State Comparison” (1994) 19(4) Children Australia 4 at 4; G Angus and L Golley Children under Care and Protection Orders Australia 1993-94 (Australian Institute of Health and Welfare, Child Welfare Series No 12, AGPS, Canberra, 1995) at 2.
6. S Bocher and J Ward “Changing Patterns of Residential Care: A Report on the 1988 CIRI Survey of Children in Residential Care” (1991) 38 International Journal of Disability, Development and Education 151 at 152.
7. The Standing Committee of Social Welfare Administrators confirms that in some States the number of children in substitute care may be understated, and in other States they may be overstated: Standing Committee of Social Welfare Administrators, WELSTAT: Children Under Care and Protection Orders, National Data Collection, 1989-1990 (1992).
8. Described in Chapter 2.
9. G Atkinson “Aboriginal Adoption: A Re-Evaluation” in R Snow (ed) Understanding Adoption: A Practical Guide (Fontana Books, Sydney, 1983) 156 at 156.
10. See paras 4.20-4.31 and 4.46-4.48.
11. Aboriginal staff of the Department of Community Services throughout NSW elect representatives to the Aboriginal Reference Group. The Group’s role is to provide advice to the department on key issues relating to and impacting on Aboriginal people. Staff at the Department’s Gullama Aboriginal Services Centre also commented on the operation of the Principle.
12. Children’s Protection Act 1993 (SA).
13. Apparent from discussions with Torres Strait Islander people in the preparation of this Report.
