Editors --- "The Aboriginal Child Placement Principle - Digest" [1998] AUIndigLawRpr 13; (1998) 3(2) Australian Indigenous Law Reporter 280

The Aboriginal Child Placement Principle

March, 1997

This New South Wales Law Reform Commission Report, while focussing on the Aboriginal Child Placement Principle in NSW, evaluates the implementation of the principle in each State and Territory in Australia. The Report provides a description of the legislative or policy basis for the principle in adoption and child welfare systems in each jurisdiction. It also provides historical background to the development of the principle, international human rights principles in relation to the principle, and policy and practical factors which have undermined its effective implementation. The synopsis of contents, the Aboriginal Child Placement Principle in the Children (Care and Protection) Act 1987 (NSW), the policy guideline which applies to adoptions in NSW, and an overview of the legislative or policy status of the principle in other Australian jurisdictions are reproduced here.

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Synopsis of the Report

1.17 Chapter 2 provides an 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 are 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 1990/91Ð 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.

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Substitute Care in New South Wales

Children (Care and Protection) Act 1987 (NSW)

Section 87

4.4 The Principle, contained in s. 87 of the Children (Care and Protection) Act 1987 (NSW), applies only to the placement into the care or custody of another person of Aboriginal children who are 'in need of care'. It does not apply to the voluntary placement of children into care, or to short term placements. [1] It states:

An Aboriginal child shall not be placed in the custody or care of another person under this Part unless:

(a) the child is placed in the care of a member of the child's extended family, as recognized by the Aboriginal community to which the child belongs;

(b) if it is not practicable for the child to be placed in accordance with para. (a) or it would be detrimental to the welfare of the child to be so placed - the child is placed in the care of a member of the Aboriginal community to which the child belongs;

(c) if it is not practicable for the child to be placed in accordance with paras. (a) or (b) or it would be detrimental to the welfare of the child to be so placed - the child is placed in the care of a member of some other Aboriginal family residing in the vicinity of the child's usual place of residence; or

(d) if it is not practicable for the child to be placed in accordance with paras. (a), (b) or (c) or it would be detrimental to the welfare of the child to be so placed - the child is placed in the care of a suitable person approved by the Director-General after consultation with:

(i) members of the child's extended family, as recognized by the Aboriginal community to which the child belongs; and

(ii) such Aboriginal welfare organizations as are appropriate in relation to the child.

Interpretation of Section 87

4.5 Purpose. In the District Court of NSW, Justice Graham, in the Department of Community Services v Johnson, [2] considered that the purpose of s. 87 was to remedy two problems which arose in the past with the placement of Aboriginal children: [3]

• past policies of removal of Aboriginal children from their Aboriginal environment in order to bring them up with (and as) white people; and
• the placement of Aboriginal children in Aboriginal foster homes or institutions which were removed both geographically and spiritually from their own communities, without regard to the particular traditions and cultures of the child.

4.6 The welfare and interests of children. The case also tried to reconcile the provisions of s. 87 with the 'paramountcy principle' in s. 55(a) of the Act, which states that 'the welfare and interests of children are to be given paramount consideration'. His Honour considered that the Principle was not an absolute rule that Aboriginal children should be placed in accordance with the descending order of preference. Instead, consideration must also be given to the 'detriment' and 'practicability' of any placement. [4] This approach incorporates the 'welfare of the child' principle into the Principle by reference to the word 'detriment'.

4.7 'Detriment'. His Honour interpreted 'detriment to the welfare of the child' as the product of balancing the advantages and disadvantages of any particular proposed placement. Any detriment must not be a merely trivial or insignificant detriment, or be a detriment which merely or substantially conflicts with the purposes of s. 87. The purpose and intent of s. 87, being to place Aboriginal children back into Aboriginal communities, may result in placements which are 'less than the ideal in the way of material benefits' and may 'to some extent create circumstances of possible danger for such children'. [5] His Honour believed that this detriment is in some ways inherent in the underlying purpose of s. 87. However, he believed that it should be given far less weight than other forms of detriment. [6]

4.8 Another interpretation which gives more force to the Principle would treat s. 87 as a legislative presumption that placement with Aboriginal people is in the best interests of an Aboriginal child. This approach adopts a stronger interpretation of the word 'detriment' which requires actual detriment to be shown before the Principle is displaced. [7]

4.9 DOCS has suggested that having to show 'detriment' may not necessarily be the most appropriate way to approach placement questions and restricts the Court to making decisions where the emphasis is not based primarily on the best interests of the child. DOCS's Review of the Children (Care and Protection) Act 1987 suggests that one way of overcoming this is for the Court to weigh up placement with the extended family, members of the child's Aboriginal community and other Aboriginal people in terms of what is in the child's best interests, and to apply the strict test of 'detriment' only when the child is likely to be placed outside the Aboriginal community. [8]

4.10 Community to which the child belongs. DOCS v Johnson also brought to light the circularity of s. 87(a). In identifying the 'community to which the child belongs', the child's extended family needs to be considered, which in turn needs to be recognised by the community. His Honour, however, took a broad approach to s. 87(a), saying that it recognised that within Aboriginal communities what is understood by a child's extended family may not necessarily accord with a strict genealogical approach to extended family and may include people other than direct blood relations. [9] In this case it was accepted on the evidence that there was an Aboriginal community to which the children belonged. [10] It may not necessarily be desirable or possible to define 'Aboriginal community' for the purposes of legislation. Defining the child's extended family as that 'recognised by the Aboriginal community to which the child belongs' may be advantageous in that it refers specifically to Aboriginal rather than white Australian notions of extended family. However, there may be differences among Aboriginal communities on the meaning of extended family. [11]

4.11 Placement with extended family. Logically, the placement of an Aboriginal child with 'members of the child's extended family' under s. 87(a) includes members of the child's non-Aboriginal family. [12] This is consistent with the Principle.

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

4.13 Some other Aboriginal family residing in the vicinity. It has been argued that s. 87(c) unnecessarily restricts the members of an Aboriginal family who can care for a child, in that they must '[reside] in the vicinity of the child's usual place of residence'. This wording of the Principle could suggest that it is more important for an Aboriginal child to remain in the same place and continue contact with his or her family than be in the care of any Aboriginal person. Clearly an Aboriginal family 'in the vicinity' would be preferable so that the child can maintain links with his or her community and family. However, if such an option is not practicable, Aboriginal families outside the vicinity of the child's community should be included in the list of options for an Aboriginal child. [13]

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Adoption in New South Wales

4.35 There is no reference to the Principle in the Adoption of Children Act 1965 (NSW), although there are other provisions in the Act which are relevant to Aboriginal children. The Principle is contained instead in a draft departmental policy document, the Draft Policy Statement on the Placement of Aboriginal Children for Adoption. DOCS is also guided by the National Minimum Principles in Adoption, developed by the Standing Committee of Social Welfare Administrators, which state that, in adoption, 'the child should preferably be placed in a culturally/ethnically appropriate placement'. [14]

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Legislation policy and practice across Australia

Introduction

5.1 The responsibility for legislating for children's welfare lies with each State and Territory Government in Australia. This Chapter discusses the Principle in each State and Territory in Australia. ...

5.2 The form of the Principle, in both legislation and administrative policy, varies widely throughout Australia. Each expression provides for a different process by which the decision to place a child is reached. Each gives a different person the ultimate power to make the placement and none gives the ultimate power of placement to an Aboriginal and Torres Strait Islander community. All of the provisions allow for the possibility of placing Aboriginal or Torres Strait Islander children in a non-Aboriginal or non-Torres Strait Islander family.

Level of implication

5.3 The Working Party of State Social Welfare Administration recommended in 1984 that each State and Territory enact the Principle in legislation. [15] To date, Queensland, Western Australia and Tasmania have not included the Principle in legislation concerning either the adoption or fostering of children, although each State maintains the Principle is followed in practice. Table 5 sets out where the Principle is found in each State and Territory in Australia. It is clear from this Table that the Principle appears in eight of the 16 pieces of legislation in Australia which deal specifically with the fostering and adoption of children.

Definition of Aboriginal child

5.4 Various definitions of 'Aboriginal child' are used in the legislation and administrative policy which deals with the fostering and adoption of children. The definition used is crucial in that it formally determines which children come within the ambit of the Principle.

5.5 This section deals with the definition of 'Aboriginal child' as opposed to 'Torres Strait Islander child'. South Australia is the only jurisdiction which has a separate definition for 'Torres Strait Islander child' in the legislation or policy relating to the adoption and fostering of children. [16] In other pieces of legislation and policy, Torres Strait Islander children are defined as 'Aboriginal children', [17] or not defined at all.

5.6 Table 6 shows where the definition of 'Aboriginal child' is to be found, if anywhere, in the relevant pieces of legislation and policy relating to the Principle which were set out in Table 5. [18] Few expressions of policy contain a definition of 'Aboriginal child'. Not all legislation which incorporates the Principle, has a definition.

5.7 Definitions of 'Aboriginal child' used in the various pieces of legislation or policy listed above can be characterised as one of the following approaches:

• 'self-identification';
• 'descent'; or
• 'member of the Aboriginal race of Australia'.

Problems which arise out of each approach and their impact on the operation of the Principle are discussed in Chapter 7.

'Self-identification'

5.8 The most common approach to the definition of 'Aboriginal child' in legislation or policy containing the Principle is one of 'self-identification'. [19] In this formulation, an Aboriginal person is defined as:

• a person of Aboriginal descent;
• who identifies as an Aborigine; and
• who is accepted as such in the community in which he or she lives.

5.9 This definition was formulated in the early 1970s and was more acceptable to Aboriginal people than previous definitions of 'Aborigine' which had often been drafted to suit non-Aboriginal purposes and were expressed in terms of 'caste' or degree of Aboriginal blood. [20] This definition is acceptable to many Aboriginal people who object to non-Aboriginal definitions of an 'Aboriginal person'.

'Descent'

5.10 The Draft Policy on the Adoption of Aboriginal Children (NSW) uses a 'descent' definition of 'Aboriginal', being 'a person who is a descendant of an aboriginal native of Australia'. [21] This defines as Aboriginal a person who has any Aboriginal blood, regardless of degree.

'A member of the Aboriginal race of Australia'

5.11 The definition of 'Aboriginal' contained in the Adoption of Children Act 1994 (NT) is 'a person who is a member of the Aboriginal race of Australia'. [22] This definition is also used in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) [23] and the Family Law Act 1975 (Cth). [24]

[1] For example Aboriginal children who are dealt with informally through the Child Protection Program of DOCS, or children under temporary care arrangements: NSW - Department of Community Services Review of the Children (Care and Protection) Act 1987: Law and

Policy in Child Protection (Discussion Paper 1, Legislation Review Unit, October 1996) at 131 ('DOCS Review Discussion Paper 1').

[2] District Court, NSW, Graham DCJ, 28 October 1992, DCC7/1992-11/1992, unreported.

[3] DOCS v Johnson at 10-11.

[4] DOCS v Johnson at 12.

[5] DOCS v Johnson at 25-6.

[6] DOCS v Johnson at 27.

[7] R Chisholm 'Aboriginal Children and the Placement Principle' (1988) 2(31) Aboriginal Law Bulletin 4 at 5.

[8] NSW - Department of Community Services Review of the Children (Care and Protection) Act 1987: Law and Policy in Child Protection (Discussion Paper 1, Legislation Review Unit, October 1996) at 133.

[9] DOCS v Johnson at 15.

[10] DOCS v Johnson at 16.

[11] Chisholm (1988) at 5.

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

[13] This was apparent from discussions with Aboriginal people in the preparation of this Report.

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

[15] Australia - Working Party of the Standing Committee of Social Welfare Administrators Aboriginal Fostering and Adoption: Review of State and Territory Principles, Policies and Practices (October 1983) Recommendation 10 at 7.

[16] Children's Protection Act 1993 (SA) s. 6(1).

[17] Adoption Act 1993 (ACT) s. 4(l); Children and Young Persons Act 1989 (Vic) s. 3(l); Adoption Act 1984 (Vic) s. 4(l) and Substitute Care Policy in Relation to Aboriginal Child Placement (WA).

[18] Those jurisdictions which do not have the Principle in the relevant legislation also do not have a definition of 'Aboriginal child' in the legislation: Child Protection Act 1974 (Tas); Child Welfare Act 1960 (Tas); Adoption Act 1988 (Tas); Children's Services Act 1986 (ACT); Adoption Act 1994 (WA); Child Welfare Act 1947 (WA); Adoption of Children Act 1964 (Qld); Children's Services Act 1965 (Qld).

[19] Children (Care and Protection) Act 1987 (NSW) s. 3(l); Children and Young Persons Act 1989 (Vic) s. 3(l); Adoption Act 1984 (Vic) s. 4(l); Adoption Act 1993 (ACT) s. 4(l); Children's Protection Act 1993 (SA) s. 6(l) (note: this definition requires self identification, or identification by at least one parent in the case of a young child, but does not require acceptance by the community); Substitute Care Policy in Relation to Aboriginal Child Placement (WA) and Policy Statement in Relation to Aboriginal and Torres Strait Islander Fostering and Adoption (Qld) (note: this provision also requires parental identification in the case of a baby or young child).

[20] Which gave rise to terms such as 'quadroon' and 'octoroon' people who were defined as either Aboriginal or non-Aboriginal depending on the purpose of the legislation: NSW - Aboriginal Children's Research Project Identifying Aboriginal Children in Non-Aboriginal Substitute Care (Discussion Paper 5, July 1982) at 6-7.

[21] Aborigines Act 1969 (NSW) s. 2(l). Note that this Act was repealed by the Aboriginal Land Rights Act 1983 on 10 June 1983.

[22] Adoption of Children Act 1994 (NT) s. 3(l).

[23] Section 4(l) 'Aboriginal person' means a person of the Aboriginal race of Australia.

[24] Section 68F (4) 'Aboriginal peoples' means the peoples of the Aboriginal race of Australia.