Lawlink NSW: 7. The Principle in Practice

7.1 This Chapter deals with the effectiveness of the Principle in practice across Australia, and the difficulties in assessing its effectiveness; and then considers problems in applying the Principle to the placement of Aboriginal children. One problem identified is the lack of consultation with Aboriginal organisations and the arguments for such consultation are examined. The discussion regarding problems draws largely on the experiences of Aboriginal people and workers in NSW and so relates to the Principle in NSW. Comments from Aboriginal people and workers in other States and Territories suggest that many of these problems are common to the application of the Principle generally.

7.2 Measuring the effectiveness of the Principle is difficult. The test of effectiveness applied in this Report is the number of Aboriginal children placed in the care of non-Aboriginal people. However, this is not necessarily a definitive indication that the Principle is being applied. The Territory Health Services (NT) suggests that it is not so much the placement outcome but the fact that there has been appropriate Aboriginal involvement in the decision that indicates whether or not the Principle has been effectively applied:

7.3 Information from the relevant departments as to whether the correct procedures have been complied with in the placement of Aboriginal children and whether the necessary Aboriginal people have been involved in the placement decision is not readily available. It has been difficult in some instances, even to get accurate statistics outlining where Aboriginal children are placed, let alone how that placement decision was made.² Several departments were not able to provide adequate explanation for the placement of Aboriginal children with non-Aboriginal people. Such information would need to be routinely recorded in order for a department to demonstrate compliance with the Principle. In the absence of such records, the most readily available indication of the effectiveness of the Principle has to be the proportion of Aboriginal children placed with non-Aboriginal people.

7.4 The following statistics do not show conclusively the effectiveness of the Principle, however they do provide a reliable indication for the following reasons:

7.5 As all States and Territories apply the Principle either as a matter of policy or as a legislative provision, the proportion of Aboriginal children placed with non-Aboriginal people should be relatively low. With regards to foster placement of Aboriginal children, SA, Tasmania and Victoria were unable to state reliably how many Aboriginal children were placed with non-Aboriginal people. In NSW, ACT, NT, Queensland and WA, the proportion of Aboriginal children placed with non-Aboriginal people ranged from 17% to 100%.

7.6 With regards to adoptive placement, over the period 1990/91 - 1994/95, 61 Aboriginal children were adopted throughout Australia and 40 (66%) of these children were placed with non-Aboriginal people.³

7.7 The rough picture which these statistics paint indicates that Aboriginal children are still being placed, disproportionately, with non-Aboriginal people. This seems to indicate that the Principle is not as effective in placing Aboriginal children with Aboriginal people as it could be. This may be due to broader problems which prevent the Principle from operating effectively. These problems are dealt with later in this Chapter.

7.8 Given that the Principle does not appear to be as effective as expected, it is useful to determine whether the Principle is more effective as a legislative provision or as part of departmental policy.

7.9 There have been very few adoptions of Aboriginal or Torres Strait Islander children in the last five years in jurisdictions which have included the Principle in adoption legislation. Interestingly, proportionately more Aboriginal and Torres Strait Islander children are adopted by non-Aboriginal and non-Torres Strait Islander people in the States and Territories which have included the Principle in legislation (50%) than in those which have not (31.6%). However, it is hard to draw any firm conclusion from these statistics, given that only four Aboriginal and Torres Strait Islander children were adopted in those States and Territories which have the Principle in legislation.⁴

7.10 There is, however, a difference between the actual numbers of Aboriginal and Torres Strait Islander children adopted over the last five years in jurisdictions which have included the Principle in adoption legislation (four children) and those which have not (57 children).

7.12 It should be noted that, in the NT, the three Aboriginal children were adopted before the introduction of the Principle in legislation in the NT in 1994. Thus only one Aboriginal child has been adopted in Australia despite the Principle existing in legislation in the last five years.

7.13 By comparison, States which have the Principle in administrative policy reported considerably more adoptions of Aboriginal and Torres Strait Islander children over the last five years. A total of 57 Aboriginal children were adopted in these States over the last five years:

7.14 One explanation for this difference in numbers of Aboriginal children adopted could be that WA, Queensland and NSW have much larger Aboriginal and Torres Strait Islander populations than the other States and Territories. However, even after taking account of population differences, there seems to be proportionately more Aboriginal and Torres Strait Islander children being adopted in these three States.

State/Territory	*Number of ATSI children adopted 1990/1991 - 1994/1995**	Total number of ATSI children 0 - 19 years**	Number of ATSI children adopted per 10 000 ATSI children
States and Territories with the Principle legislation
ACT	0	956	0
VIC	0	9 225	0
SA	1	8 923	1.1
NT	3	22 180	1.4
States and Territories with the Principle in Policy
TAS	0	5 154	0
WA	7	23 777	2.9
QLD	15	39 770	3.8
NSW	35	39 541	8.9

7.16 The effectiveness of the Principle with regard to the fostering of Aboriginal children is difficult to gauge. Only NSW, WA, Queensland, ACT and the NT were able to state with any accuracy the numbers of Aboriginal children placed with Aboriginal families. The differing ways of recording this information⁸ and the different time periods reported make it impossible to make comparisons across the jurisdictions. The following information presents what was provided. It is difficult to draw any firm conclusions from it.

7.17 Of the jurisdictions where the Principle is contained in legislation for the fostering of Aboriginal children:

7.18 Of the jurisdictions where the Principle is contained in departmental policy regarding the foster placement of Aboriginal children:

7.19 Given the limitations of a quantitative evaluation of the Principle, it is also necessary to investigate how the Principle operates in practice and make a qualitative assessment. The following evaluation draws on the experience of both Aboriginal and non-Aboriginal people with experience of the operation of the Principle, either as workers in DOCS, workers in Aboriginal organisations or members of the Aboriginal community. Factors identified as working against effective implementation of the Principle include:

7.20 Some of the solutions to these problems may lie in legislative changes. However, many problems in the application of the Principle stem from the social and economic disadvantage which faces many Aboriginal people. Meaningful solutions also lie in addressing this disadvantage through providing adequate financial support and resources. It is also clearly impossible to legislate for every circumstance where human relationships are concerned. Culturally appropriate solutions to problems arising from applying the Principle to specific situations may come from involving Aboriginal organisations in the process and discussing issues with the family and extended family. The issue of consultation with Aboriginal organisations is dealt with at the end of this Chapter.

7.21 If a child is not identified as Aboriginal then the Principle is not even brought into operation. Identification usually depends on the parent indicating the cultural background of the child when dealing with the NSW Department of Community Services (“DOCS”) or the non-government organisations (“NGOs”). Inadequate investigation into the child’s cultural background means the Aboriginal origins of the child will remain unknown, the child will be placed without regard to this important factor and will not appear in any statistics regarding the placement of Aboriginal children.

7.22 The problem appears to be not uncommon in NSW. Both a non-Aboriginal NGOs and DOCS in NSW have reported cases in which the Aboriginal heritage of a child is not discovered until late in the adoption process or after the child has been placed.¹¹ Identification of children is also recognised as an important issue by Aboriginal workers within DOCS.

7.23 There is a clear obligation on DOCS to make all reasonable enquiries necessary to determine the cultural heritage of any child. Privacy issues may, in some instances, limit the extent to which DOCS can enquire about the child’s Aboriginality, especially in adoption where the birth mother may want to keep the matter confidential. The involvement of Aboriginal workers, either from the department or Aboriginal organisations, who are mindful of issues of confidentiality, may overcome the reluctance of families to reveal the child’s cultural heritage.

7.24 Problems in identifying Aboriginal children will exist regardless of the definition used to describe “Aboriginal child”. The Commission recommends in the Review of the Adoption of Children Act 1965 (NSW) that a clear obligation be expressed in legislation that any adoption agency or government department must establish to the best of its ability the cultural heritage of a child.¹² The involvement of Aboriginal workers in the department, or close liaison with Aboriginal organisations may assist DOCS in fulfilling this obligation.

7.25 Difficulties inherent in the definition of “Aboriginal child” may prevent the effective operation of the Principle.

7.26 Currently the “self-identification” definition outlined in Chapter 5 is used widely in relation to the Principle.¹³ Problems arise when this definition is applied to children¹⁴ for the following reasons:

7.27 In SA¹⁵ and Queensland¹⁶ the difficulty of identifying a baby or young child as Aboriginal is overcome by requiring that at least one parent identifies the child as such. Legislation in the ACT overcomes this difficulty by defining an “Aboriginal child” as a child who has at least one parent who is Aboriginal.¹⁷ However, these options do not overcome situations where birth parents, either Aboriginal or non-Aboriginal, do not declare the child’s or their own Aboriginal identity either intentionally or because they do not know.

7.28 This definition¹⁸ has been considered by Drummond J in Gibbs v Capewell¹⁹ to involve more than merely a question of descent. If the degree of descent is small, then Aboriginality would depend on a person’s self-identification and community recognition.²⁰ This is effectively a mixture of the two definitions of “descent” and “self-identification”. Such a definition may therefore be inappropriate for Aboriginal children for the same reasons as a “self-identification” definition is inappropriate.

7.29 The Commission recommends in Report 81 that where it is found that a child is of Aboriginal descent, then the child should be identified as such and the Principle should apply accordingly.²¹ This approach is broader than the “self-identification” definition and more children would fall within its terms.

7.30 Advantage of a “descent” definition. Applying a “descent” definition to the Principle does not mean that all children of Aboriginal descent will be placed automatically with Aboriginal families. However, it does mean that the issue of the child’s Aboriginal heritage will be explored where previously it may have been overlooked. This is important so that the child is not denied at least the chance of discovering and developing an Aboriginal identity.²²

7.31 There is also a persuasive argument that socially, a person with Aboriginal blood will be regarded as Aboriginal both by the Aboriginal community and the non-Aboriginal community alike.²³ A definition based on descent also avoids the inappropriate, older definitions based on “degrees of Aboriginality”.

7.32 Disadvantage of a “descent” definition. A consequence of applying a “descent” definition is that the Principle may apply to children of Aboriginal descent who have not had any previous experience with Aboriginal culture, and young people of Aboriginal descent who are old enough to form their own cultural identity and do not identify as Aboriginal. These children may have grown up with prejudices against Aboriginal people and the Principle should be applied with sensitivity to their situation.²⁴ In such cases a placement with a non-Aboriginal family which has the capacity to encourage the child to develop a healthy and positive cultural identity may be appropriate.²⁵

7.33 The Principle places the onus on the relevant child welfare department to find Aboriginal placements for Aboriginal children. However, there are difficulties in finding a sufficient number of Aboriginal people available and able to foster or adopt.

7.34 A review of services provided by DOCS for Aboriginal clients in NSW in 1994 (“the Heilpern Report “) identified the lack of placements available for Aboriginal children as, in some ways, an inevitable result of the poverty and disadvantage which afflict many Aboriginal communities. Dimensions of poverty and disadvantage identified include the fact that Aboriginal adults die younger and many are in jail or are affected by drugs or alcohol, or are suffering from mental illness or poor health.²⁶

7.35 Many Aboriginal families are already caring for children other than their own. Many Aboriginal families are already struggling to survive on limited finances and do not have the resources to support more children.²⁷ Those Aboriginal people who are “surviving” despite these hardships tend also to be committed to work or over-committed in other areas. Therefore there is a lack of available and able Aboriginal foster parents. Another relevant explanation is that since nearly every Aboriginal family in NSW has been affected in some way by the previous practices of child welfare²⁸ it is no wonder that there is often a lack of appropriate placements.²⁹ In some cases insufficient investigation by DOCS into possible placements within the extended family perhaps occurs because of the attitude of workers involved or the limited resources of the department.

7.36 In this sense, the Principle was described as a “two-edged sword” in the Heilpern Report.³⁰ The Report identified the dilemma for a departmental worker: whether to place an Aboriginal child in a non-Aboriginal family, or leave the child in a possibly abusive situation, or place the child in the extended family where there are also concerns about the welfare of the child. It has been reported that confusion about the application of the Principle has led to some Aboriginal children being left in unacceptable, unsafe situations.³¹ However, under the Principle it is clear that if remaining with the extended family would be detrimental to the child, then an alternative placement should be made.

7.37 Another dilemma identified by DOCS is that between placing an Aboriginal child in a non-Aboriginal family and placing the child in an Aboriginal family in a district far from home.³² The Usher Report in 1992 suggested that one of the less desirable aspects of the Principle, mainly in smaller rural communities where there were no “appropriate” Aboriginal carers in the area, was that children were sometimes moved far away from their communities, school and friends in order to be placed with an Aboriginal family.³³ Alternatively, this may be acceptable for some Aboriginal people and in fact informal placements within the Aboriginal community may involve children moving long distances to remain within their kinship group because of a desire for Aboriginal children to maintain their kinship links.³⁴

7.38 It has been suggested that children with disabilities represent a higher proportion of Aboriginal children placed for adoption and fostering compared with non-Aboriginal children.³⁵ In the Northern Territory a significant proportion (41%) of the 66 Aboriginal children in care at 1 May 1995 were children with a disability,³⁶ while only 12% of non-Aboriginal children in care had a disability. Aboriginal children represented 79% of all children in care with disabilities. Significantly more Aboriginal children without disabilities were placed with Aboriginal carers (64%) than Aboriginal children with disabilities (37%). The situation could be attributed to high levels of meningitis and foetal alcohol syndrome in Aboriginal communities, and the lack of support services for children with disabilities in rural and remote communities.³⁷ Although no clear evidence is available, it is quite likely that a similar situation exists, though perhaps to a lesser extent, in other States and Territories.

7.39 The resources required for the care of children with special needs may prove to be beyond the means of many Aboriginal families. Territory Health Services (NT) has advised that children with disabilities in care often have high support needs which prevent family members from being able to care for them.³⁸ It acknowledges that the lack of appropriate services in rural and remote Aboriginal communities should not be the basis for children entering care and has begun to develop alternative options for Aboriginal children with disabilities in the substitute care system in the NT.³⁹

7.40 Problems in finding suitable Aboriginal carers for Aboriginal children, especially those with special needs, cannot necessarily be resolved by legislation. Solutions also need to be sought by addressing the underlying social issues, and may include the following approaches.

7.41 Involving Aboriginal organisations. Possible placements for Aboriginal children need to be sought out by people who have the respect of the community. Aboriginal organisations may be well placed to find appropriate carers in the Aboriginal community. Involvement of Aboriginal organisations throughout the process of finding a placement for an Aboriginal child may be necessary to ensure that all options are indeed exhausted before an Aboriginal child is placed with non-Aboriginal people.⁴⁰

7.42 Selection criteria for foster carers. The lack of Aboriginal foster parents was also linked to departmental workers trying to recruit, assess and train Aboriginal foster parents by reference to a mainstream model, and which was not necessarily appropriate for Aboriginal people.⁴¹ Changing eligibility criteria which exclude Aboriginal and Torres Strait Islander people has been suggested.⁴² Having Aboriginal workers assess and recruit Aboriginal foster parents may mean that the selection criteria are applied in a more culturally sensitive manner. DOCS also plans for the Aboriginal Children’s Service to provide training for Aboriginal foster parents in NSW.

7.43 Resources for Aboriginal foster parents. Sufficient resources in the community to meet the placement needs of Aboriginal children do not exist simply because there is a Principle. Carers need adequate resources to enable them to care for their children. The structural disadvantage which prevents many willing Aboriginal and Torres Strait Islander people from being foster carers can be overcome with adequate financial and emotional support to enable them to perform this role effectively. Many Aboriginal children who are in need of foster care have behavioural problems. It is also argued that Aboriginal foster carers must be provided with appropriate training to enable them to cope with such children.⁴³

7.44 A Non-Parental Allowance is often available to extended family members to assist them financially in looking after children in their care. It is criticised as insufficient to help effectively with the care of children generally and this would also apply to many Aboriginal foster carers. Some Aboriginal foster carers go without any financial assistance, perhaps because they are unaware of the availability of financial assistance or because they fail to meet the eligibility requirements.

7.45 Community development. One definition of community development is “the development and utilisation of a set of ongoing structures which allow the community to meet its own needs”.⁴⁴ In the absence of sufficient community resources some form of community development may be necessary to support the operation of the Principle, and may be a more appropriate response than carrying out casework with individuals within a community.⁴⁵

7.46 Community development would be directed at alleviating the problems contributing to the abuse and neglect of Aboriginal children, and also encouraging and equipping Aboriginal people to foster Aboriginal children. It would ultimately aim to alleviate the need for Aboriginal children to be placed outside their families. The form of community development would depend on the needs and direction of the individual community. DOCS may need to facilitate community development by encouraging and supporting communities in the development of their own services.

7.47 It can be difficult to apply the Principle when the parents of Aboriginal children, or indeed Aboriginal young people themselves, request a placement with non-Aboriginal carers. The reasons for such requests are complex, but could be a legacy of past policies of removal and assimilation.

7.48 A similar dilemma is created in cases where the child has a non-Aboriginal parent and extended family, whose rights as alternative carers are equal to those of the child’s Aboriginal family. Placement with the extended family, whether Aboriginal or non-Aboriginal, is consistent with the Principle.

7.49 It is not uncommon for a birth parent, either Aboriginal or non-Aboriginal, to request the adoption of their Aboriginal child by non-Aboriginal people. While it is important for the birth parents’ wishes to be heard, it may not necessarily be in the child’s best interests to be adopted by non-Aboriginal people. Parents’ reluctance to have their child adopted by an Aboriginal person may well be resolved after they have spoken with Aboriginal people. In a number of States provision for pre-consent counselling with Aboriginal people is an important element of the Principle in relation to adoption.⁴⁶

7.50 When a birth parent opposes the adoption of the child by Aboriginal people, an open adoption⁴⁷ is potentially made difficult. The child’s need for a continuing relationship with a birth parent who is supportive of the adoptive placement must be balanced with the child’s need to develop an Aboriginal identity. This issue is discussed more fully in NSWLRC Report 81.⁴⁸ There, the Commission recommends that the birth parent(s) should be entitled to express a wish regarding the placement of the child and such a request should be given consideration by the Court. Ultimately, though, the child’s best interests must prevail. The Commission also recommends that a consultation between a birth parent and an approved Aboriginal agency be arranged prior to taking consent to the adoption of an Aboriginal child.⁴⁹

7.51 Another situation in which the application of the Principle is difficult is where an Aboriginal young person consents to his or her own adoption by non-Aboriginal foster parents. In such a case respect for the young person’s wishes and need for stability may outweigh the value of the young person being adopted by Aboriginal people. However, it is important for the young person to have contact with Aboriginal people to discuss the issues surrounding his or her Aboriginality.

7.52 Similar circumstances occur in fostering when an Aboriginal parent may choose to place the child, either formally or informally, with a non-Aboriginal person.⁵⁰ DOCS referred to scenarios where an Aboriginal child is placed with the non-Aboriginal parent who opposes the child’s continuing contact with the child’s Aboriginal family or Aboriginal community;⁵¹ or where an Aboriginal young person, old enough to contribute to the placement decision, has requested that he or she not be placed with an Aboriginal family.⁵² Such a dilemma is more acute in fostering than in adoption, which involves the severing of the child’s ties with his or her birth parent. With adoption it is likely that a child will be placed against the wishes of the birth parent if it is in the best interests of the child. In fostering however, there is generally the ultimate goal of returning the child to his or her parents. This means that reconciling the birth parent to the foster placement of the child is important for harmonious and continuing contact between the child and his or her birth parents, and eventual successful reunion.

Consultation with Aboriginal and Torres Strait Islander communities and organisations

7.53 It is implicit in the Principle that an Aboriginal child’s extended family be consulted in order to determine whether placement within the extended family is possible. Implicit also is consultation with the child’s Aboriginal community to determine whether a suitable placement exists. Such consultation is crucial to the effective operation of the Principle. It appears that the present level of consultation is inadequate, although apparently characteristic of service provision across many areas of policy and programs in Aboriginal child welfare.⁵³

7.54 Determining appropriate placements for Aboriginal children could also be enhanced by the involvement of Aboriginal organisations. An “Aboriginal organisation” in this section is a non-government organisation which provides, among other services, foster care and support services for Aboriginal children and is controlled and run by Aboriginal people.⁵⁴ Lack of consultation with Aboriginal organisations has been commonly identified by Aboriginal organisations in NSW in the preparation of this Report as a factor which affects the effective implementation of the Principle.

7.55 Some legislative versions of the Principle omit any reference to consultation with Aboriginal people.⁵⁵ A common form of the Principle only requires consultation with Aboriginal organisations as a last resort.⁵⁶ A few legislative versions make consultation with Aboriginal organisations an integral part of the Principle.

7.56 The Children’s Protection Act 1993 (SA) s 5 requires consultation with a recognised Aboriginal organisation or a recognised Torres Strait Islander organisation before a decision can be made.⁵⁷ The Adoption of Children Act 1994 (NT) s 11 requires consultation with the child’s parents, with other people who are involved with the child under Aboriginal customary law and with appropriate Aboriginal welfare organisations before an Aboriginal child is adopted,⁵⁸ giving the Court discretion to decide the “appropriate” organisation for consultation. The Children and Young Persons Act 1989 (Vic) s 119 has a very clear and simple direction that “decision-making should involve relevant members of the Aboriginal community to which the child belongs”,⁵⁹ which could include both the Aboriginal organisations representing the community as well as Aboriginal people who have an interest in the welfare of a particular child.

7.57 While Adoption Act 1984 (Vic) s 50 does not explicitly require consultation with Aboriginal organisations, it does require that the birth parent be offered the opportunity of counselling with an “Aboriginal agency” and gives the Aboriginal agency the right of veto over the placement of an Aboriginal child with a non-Aboriginal person.⁶⁰ Most policy statements incorporating the Principle refer to the need for consultation with Aboriginal workers within the relevant department,⁶¹ or Aboriginal organisations⁶² regarding Aboriginal children. Merely having the requirement in policy does not necessarily mean that it is adhered to in practice.⁶³

7.58 Under s 87 of the Children (Care and Protection) Act 1987 (NSW) the obligation to consult with the Aboriginal community only arises after all of the other options for placing an Aboriginal child have been exhausted. The onus is on DOCS to explore the options of placing a child with a member of the child’s extended family, a member of the child’s Aboriginal community or with an Aboriginal family residing in the vicinity of the child’s home,⁶⁴ and only then with an Aboriginal organisation. In practice this has meant that consultation with the Aboriginal organisation has been last minute and has allowed insufficient time to explore all the options, with the result that the child has been placed with a non-Aboriginal family.

7.59 Aboriginal organisations in NSW hold the view that s 87 fails to give adequate recognition to their role in dealing with Aboriginal children.⁶⁵ They maintain that often they are only consulted regarding cases that are “too hard for the Department to handle”,⁶⁶ rather than having a real say in the placement of all Aboriginal children.

7.60 The level of consultation between DOCS and the relevant Aboriginal organisations appears to vary across NSW. In some country areas the relationship between DOCS and the Aboriginal organisation is quite close and they would consult in most instances, due largely to the good working relationships and rapport between individual workers. Problems with consultation seem to be most evident in Sydney.

7.61 There are differing views in the Aboriginal community about whether Aboriginal people’s needs are best met by Aboriginal people working within existing government departments, such as DOCS, or by independent Aboriginal community organisations. This tension is ongoing and is apparent in many areas of Aboriginal concern.

7.62 The following arguments are raised by Aboriginal organisations and other observers to justify their involvement in cases involving Aboriginal children.

7.63 In some cases consultation with the extended family alone may not be sufficient to ensure the best interests of the child are met.⁶⁷ It is imperative that Aboriginal people with experience and expertise in the area of Aboriginal child welfare are also consulted regarding the welfare of an Aboriginal child. Aboriginal organisations have such experience and expertise and should be involved in cases of Aboriginal children. Aboriginal organisations have been operating across Australia for over 20 years and this history has been outlined in Chapter 2. Aboriginal organisations are seen as functioning very effectively in working with Aboriginal children.⁶⁸ Their strength is identified as their understanding of Aboriginal ways of caring for children and the complex matters of kinship and social structure. Their knowledge of the local community can be highly particular, with workers in the organisation knowing members of a child’s family, or what is going on in the child’s local community. This knowledge is seen to be of the greatest value in determining a placement for a child.⁶⁹

7.64 Aboriginal organisations are also regarded as being better able to locate suitable Aboriginal people to foster children, largely because their selection criteria are likely to be more appropriate for Aboriginal people.⁷⁰ Aboriginal organisations may also have a better chance of finding appropriate placements within the community than a worker from DOCS, given the history of Aboriginal child welfare⁷¹ and the scepticism with which DOCS is viewed by some Aboriginal people.⁷² It is crucial, however, that these Aboriginal organisations also have the respect of the relevant Aboriginal community.⁷³

7.65 The placement of an Aboriginal child under the Principle often leaves much to the discretion of the departmental officer. For example, s 87 of the Children (Care and Protection) Act 1987 (NSW) involves the exercise of a degree of discretion by the DOCS officer working with the child as to whether a placement for an Aboriginal child is “practicable” and whether an “Aboriginal welfare organisation” is “appropriate” for consultation. Many Aboriginal people argue that too much discretionary power rests with DOCS and this hampers the implementation of the Principle.⁷⁴ Lack of consultation could result in a lack of accountability for the department in the exercise of discretion. A requirement that the departmental officer consult with an Aboriginal organisation throughout the placement process would serve as an accountability mechanism in the placement of Aboriginal children. For example, in Victoria the Adoption of Children Act 1984 (Vic) requires the joint approval of the department or an adoption agency and a suitable Aboriginal agency before placement with non-Aboriginal adoptive parents can be made.⁷⁵ Under s 5 of the Children’s Protection Act 1993 (SA) there is a mandatory requirement that the decision-maker have regard to any submissions from a recognised Aboriginal or Torres Strait Islander organisation.⁷⁶

7.66 A number of sources suggested that in order to be effective, Aboriginal organisations need to have the support of and be representative of their Aboriginal community. Concern has been expressed that Aboriginal organisations be accountable and follow clear policies and guidelines.⁷⁷ Aboriginal people have identified difficulties with consultation and decision-making in communities which are divided into a few main groups.⁷⁸ One Aboriginal organisation may not be able to represent each group effectively. As well, workers in the organisation may have difficulties in dealing with families from other groups. The Department for Family and Community Services (SA)⁷⁹ expressed concern that not every “clan group” in the Aboriginal community in SA would be effectively represented by “recognised” Aboriginal organisations for this reason.

7.67 While such issues impact on the effectiveness of Aboriginal organisations, they should not detract from the fundamental importance of having Aboriginal people and communities involved in the welfare of Aboriginal children. Inevitably, the increased control of Aboriginal organisations over services for Aboriginal children will have some difficulties. The Learning from the Past Report noted that more than two centuries of “white solutions” have been of little benefit to Aboriginal people and that Aboriginal people are best able to find appropriate solutions to these problems.⁸⁰ It is unlikely that effective representation of Aboriginal people could be achieved through existing non-Aboriginal organisations or government departments.

7.68 Such solutions may lie in allowing decisions to be made by the extended family or clan group, or empowering Aboriginal communities to make decisions in relation to their children. This may involve the emergence of numerous localised Aboriginal organisations representative of the Aboriginal community, with the role of empowering communities to make decisions regarding Aboriginal children.⁸¹ Alternatively, it could involve introducing review mechanisms which make existing Aboriginal organisations more accountable to the communities they represent. It may not be possible for the one Aboriginal organisation to represent all Aboriginal people in a State or Territory.

7.69 The following factors have been identified as impacting on the effectiveness of Aboriginal organisations:

7.70 The effectiveness of Aboriginal organisations will be undermined unless there are sufficient resources to enable them to provide the necessary services, such as training for Aboriginal carers and support for Aboriginal children in foster placement. Aboriginal organisations have developed almost in spite of, rather than because of, the level of support provided by the government. Given their limited resources it is an achievement that many of them have even existed over the last 20 years. The child welfare system in Australia has been likened to a dual system involving

7.71 One observation is that Aboriginal workers have case loads 10 - 20 times greater than their colleagues in other welfare fields.⁸⁸ Aboriginal organisations in NSW have reported that, despite their staff and services being over-stretched, they often feel an expectation from DOCS that they will deal with referrals of Aboriginal children regardless.

7.72 The funding of the different Aboriginal organisations is drawn from a variety of sources - both Commonwealth and State Governments. Funding from some sources must be applied for quarterly, and can therefore be tenuous and unreliable. This has implications for the service delivery of these organisations, in that the continuity of some services cannot be guaranteed, and long-term planning is contingent on funding. There appears to be a need for better funding of Aboriginal organisations to ensure that they can provide, monitor and improve their services for Aboriginal children.

Table of contents

1. NT - Territory Health Services Northern Territory Government Interim Submission to the Human Rights and Equal Opportunity Commission’s Inquiry into the Stolen Generation (NT, May 1996) at 56 (the “NT Interim Submission”).

4. This could also be due to factors which hamper the effective implementation of the Principle, which are discussed in the next section.

5. Note however, that the Principle was not included in legislation in the ACT until 1993.

6. Note however, that the Principle was not included in legislation in the NT until 1994.

7. DOCS noted that 14 adoptions of Aboriginal children in 1990/91 is exceptional. They have been unable to account for this number, beyond suggesting incorrect recording in that year: NSW - Department of Community Services Letter (4 October 1996).

8. For example, some departments refer to children in “out-of-home care” which may differ from what is termed “foster placement”. See para 1.11.

9. Territory Health Services (NT) reported also that the number of Aboriginal children requiring special needs placements is a contributing factor in this relatively high proportion of Aboriginal children placed with non-Aboriginal people: see paras 5.24-5.26 and 7.38-7.39.

10. Family Services (ACT) suggested that the relatively small Aboriginal population in the ACT could be a contributing factor: see para 5.15.

12. NSW Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Report 81, 1997): Recommendation 71 (“NSWLRC Report 81”).

14. These problems are discussed further in NSWLRC Report 81 at paras 9.17-9.21.

18. This definition is used in the Adoption of Children Act 1994 (NT) s 3(1); Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 4(1) and Family Law Act 1975 (Cth) s 68F(4).

20. Such an interpretation could been seen as re-introducing concepts of “degrees of Aboriginality” which the “self-identification” definition sought to avoid.

22. NSW - Aboriginal Children’s Research Project Identifying Aboriginal Children in Non-Aboriginal Substitute Care (Discussion Paper 5, July 1982) at 21.

23. It has been argued that Aboriginal people who have one quarter Aboriginal ancestry will not receive half as much discrimination as those with half Aboriginal ancestry: Chisholm (1983) at 60.

24. R Chisholm “Aboriginal Children and the Placement Principle” (1988) 2(31) Aboriginal Law Bulletin 4 at 6.

26. S Heilpern, H Heilpern, S Bolt and A Clancy Evaluation of Departmental Services for Child Protection: Aboriginal Clients (Report prepared for the NSW Department of Community Services, June 1994) at 106 (“the Heilpern Report”).

27. Although this would not necessarily mean that these families are unwilling to care for more children, as many families would have the view that “there’s always room for one more”.

29. P O’Shane “Assimilation or Acculturation: Problems of Aboriginal Families” (1993) 14 Australian and New Zealand Journal of Family Therapy 196 at 197.

31. NSW - Child Protection Council Child Protection and Aboriginal Communities: Inter-departmental Working Party Report (unpublished, 1996) at 66: cited in 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.

33. 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) at 97-98 (“the Usher Report”).

36. NT - Territory Health Services Substitute Care Census (1 May 1995) cited in NT - Territory Health Services Northern Territory Government Interim Submission to the Human Rights and Equal Opportunity Commission’s Inquiry into the Stolen Generation (Darwin, May 1996) at 54-57 (“NT Interim Submission”).

40. See the discussion regarding consultation with Aboriginal organisations in paras 7.61-7.69.

42. R Chisholm “Destined Children: Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy” (1985) 15 Aboriginal Law Bulletin 7 at 8.

44. J McArdle “Community Development - Tools of the Trade” (1989) No 16 Community Quarterly at 2 cited in 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) at 84 (“the Learning from the Past Report”).

45. The Heilpern Report identified a dilemma for Aboriginal District Officers in being restricted to the “standard model of casework” in their communities, and instead suggested that they be encouraged and permitted to carry out community development along with casework: Heilpern Report at 73. The Learning from the Past Report also claimed that the most effective Aboriginal District Officers were those who stepped outside the traditional role of the departmental District Officer and concentrated instead on developmental work in collaboration with local communities: Learning from the Past Report at 92.

47. That is an adoption where there is some form of ongoing contact between the child and his or her birth parents, varying in frequency and type of contact. See NSW Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (Report 81, 1997) at paras 7.4-7.7 (“NSWLRC 81”).

51. 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 132.

53. G Brewer and P Swain Where Rights are Wronged: A Critique of Australia’s Compliance with the United Nations Convention on the Rights of the Child. A Report of the National Children’s Bureau of Australia for the Children’s Rights Coalition (Llenlees Press, Melbourne, 1993) at 4. This is an independent report prepared by a coalition of child-oriented and other organisations to the United Nations Committee on the Rights of the Child regarding Australia’s compliance with UNCROC.

54. This includes organisations such as the Aboriginal and Islander Child Care Agencies across Australia (AICCAs), which are often known as Aboriginal Children’s Services in NSW (ACS): see para 3.49.

55. Adoption Act 1993 (ACT) s 21 (see Appendix C); Adoption Act 1988 (SA) s 11 (see Appendix F).

56. Children (Care and Protection) Act 1987 (NSW) s 87 (see para 4.4); Community Welfare Act 1983 (NT) s 69 (see Appendix D).

61. Draft Policy (NSW) states that an Aboriginal worker must be involved in any case where an Aboriginal child is proposed to be surrendered for adoption. The Draft Policy also talks of developing Aboriginal Community Groups in each region to “provide community contact and support for Aboriginal workers involved in adoption” (see Appendix B). Departmental Policy (Tas) states that the Family Support Worker in the Aboriginal Centre, Family Support and Care Program must be contacted prior to the placement of an Aboriginal child (see Appendix G).

62. Substitute Care Policy (WA) requires consultation with the child’s parents, other people with responsibility for the child under Aboriginal customary law, and appropriate Aboriginal organisations (see Appendix I). Policy Statement (Qld) provides for consultation with family members and, if appropriate, the child. Consultation with other family members and Aboriginal organisations is considered after determining the parents’ views on these issues (see Appendix E). Victoria’s Standards in Adoption specify that there must be ongoing consultation with an Aboriginal agency during all stages in the adoption of an Aboriginal child, and the Protocol between the Department and the Victorian Aboriginal Child Care Agency states that VACCA must be involved in the placement of every Aboriginal child (see Appendix H).

63. See paras 8.32-8.35. In NSW an Aboriginal worker would not necessarily be involved in the foster placement of every Aboriginal child.

65. This view was apparent in discussions with Aboriginal Children’s Service organisations throughout NSW in the preparation of this Report.

67. For example, members of the extended family may suffer from alcoholism and be unable to provide adequate direction about the future welfare of the child.

68. 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 116.

70. E Sommerlad (ed) “Homes for Blacks: Aboriginal Community and Adoption” in C Picton (ed) Proceedings of First Australian Conference on Adoption (Sydney, 15-20 February 1976) 159 at 163-164.

72. The perception of a DOCS worker as being from “the welfare”, may intimidate some Aboriginal people who would not feel able to express their views adequately.

78. Conflict between factions of an Aboriginal community was identified as having an impact on AICCA service delivery: G Atkinson Report on the Joint National Review of Aboriginal and Islander Child Care Agencies [AICCAs] (Report to the Ministers for Aged, Family and Health Services and Aboriginal Affairs, January 1991) at 107.

80. 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) at 83.

81. 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 107. One disadvantage of this, in the short-term at least, may be that it spreads the existing expertise of Aboriginal workers quite thinly.

82. R Chisholm “Destined Children: Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy” (1985) 14 Aboriginal Law Bulletin 6 at 7.

87. N D’Souza “Aboriginal Child Welfare: Framework for a National Policy” (1993) 35 Family Matters 40 at 44.

88. M Gunn “Assimilation Policy Comes Back to Haunt Families” in K Healey (ed) Children in Care - Issues for the Nineties Vol 14 (Spinney Press, Australia, 1993) at 26.