Review of the Adoption Act 1984: Consultation Paper

6. Aboriginal and Torres Strait Islander children and the best interests principle

Introduction

6.1 The previous chapter considered the best interests and rights of the child under the Adoption Act 1984 (Vic), including how the Act aims to ensure that the best interests

and rights of the child are the foremost consideration. It also sought community views

on how the Adoption Act might be amended to improve processes and decision making in adoption.

6.2 This chapter focuses on how the Adoption Act seeks to provide for the best interests of Aboriginal and Torres Strait Islander children through the incorporation of an Aboriginal and Torres Strait Islander Child Placement Principle. It also discusses the special ability for parents to add conditions on consent to an adoption of an Aboriginal child or Torres Strait Islander child, providing for specified people to have contact with the child after adoption.

6.3 Some people consider that special provisions are unnecessary and that the provisions for adoption should be the same for all children.^[1] This chapter explores the reasons for the special provisions for the adoption of Aboriginal and Torres Strait Islander children, as well as the opposing arguments for making adoption law in Victoria the same for all children.

6.4 The chapter poses questions to the community about whether the provisions in the Adoption Act provide appropriately for the best interests of Aboriginal and Torres Strait Islander children. In particular, the Commission will be seeking the views of Aboriginal

and Torres Strait Islander people and representative organisations.

Background

6.5 The rates of adoption for Aboriginal and Torres Strait Islander children are very low. In 2014–15, only one Aboriginal or Torres Strait Islander child had an adoption order finalised anywhere in Australia.^[2]

6.6 Although adoption is used very rarely in Victoria for Aboriginal and Torres Strait Islander children, this is a matter of policy and practice rather than a legislative requirement.

6.7 Although the Adoption Act provides additional requirements for the adoption of Aboriginal and Torres Strait Islander children, it does not prevent it or provide an explicit presumption against it. This stands in contrast to the approach taken in some other Australian jurisdictions, which is discussed below in [6.65]–[6.70].

6.8 In Victoria, adoption has not been the preferred option for children in the child protection system, irrespective of their cultural background. There has been a focus on family preservation and reunification where possible. The Commission understands that where neither family preservation nor family reunification are possible, there has been a policy preference for permanent care (legally finalised through a permanent care order) rather than adoption.

6.9 Recent amendments to the Children, Youth and Families Act 2005 (Vic) (CYF Act) raise the possibility that there may be an increased use of adoption for children from child protection. These amendments and the interaction between the CYF Act and the Adoption Act are discussed in Chapter 4.

6.10 At 30 June 2015, Victorian Aboriginal and Torres Strait Islander children were 12.9 times more likely to be in out-of-home care than non-Aboriginal or Torres Strait Islander children.^[3] Any general shift towards increased adoption for children from child protection would disproportionately affect Aboriginal and Torres Strait Islander children.

6.11 Statutory adoption is generally not viewed as a culturally appropriate option for Aboriginal and Torres Strait Islander children. A future shift in policy and practice in Victoria could result in increased adoption for Aboriginal and Torres Strait Islander children without any changes to the Adoption Act. The fact that there is no legislative impediment to the adoption of Aboriginal and Torres Strait Islander children, combined with the high rates of Aboriginal and Torres Strait Islander children in out-of-home care in Victoria, highlights the need to ensure that any provisions relating to the adoption of Aboriginal and Torres Strait Islander children are robust and appropriate.

Aboriginal and Torres Strait Islander Child Placement Principle

6.12 The Aboriginal and Torres Strait Islander Child Placement Principle exists in varying forms in laws across Australia. However, the way it is described, and the elements included, are not entirely consistent across the various laws.

6.13 Frequently, a single child placement principle that applies to both Aboriginal children and Torres Strait Islander children is used. At different times this is called the Indigenous Child Placement Principle^[4] or the Aboriginal Child Placement Principle.^[5]

6.14 In some cases, two separate principles are provided to accommodate the differences between Aboriginal and Torres Strait Islander concepts in relation to family and child care. In this situation they are distinguished as the Aboriginal Child Placement Principles and the Torres Strait Islander Child Placement Principles.^[6]

6.15 For clarity, the remaining discussion uses the term ‘child placement principle’, unless referring to a term used in a specific document or law. In that case the term used there

is also used here. This chapter also includes discussion and a question about whether there should be separate child placement principles for Aboriginal children and

Torres Strait Islander children.

6.16 In addition to the fact that the child placement principle is named differently in different pieces of legislation, its content is not entirely consistent. The next section traces the development of the concept and identifies key elements of the concept.

Development of the child placement principle

6.17 The development of an Aboriginal and Torres Strait Islander child placement principle

was driven by Aboriginal and Torres Strait Islander people and Aboriginal and Torres Strait Islander child care agencies in the 1970s and 1980s. These groups and individuals

wished to:

• address the growing and disproportionate number of Aboriginal and Torres Strait Islander children in out-of-home care or adopted by people who did not have

a cultural connection with them

• reduce rates of removal of Aboriginal and Torres Strait Islander children from their family and community

• preserve Aboriginal and Torres Strait Islander children’s connection to culture, family and community

• ensure that if a child is separated or removed from their family, the links with family, culture and community are actively maintained.^[7]

6.18 In 1984, the Council of Social Welfare Ministers endorsed a recommendation about the placement of Aboriginal children for adoption.^[8] This was supported by all states and territories. The recommendation was that:

in the adoptive placement of an Aboriginal child a preference be given, in the absence

of good cause to the contrary (and after considering the wishes of the consenting parent to confidentiality and anonymity) to a placement with: other members of the child’s Aboriginal community who have the correct relationship with the child in accordance with Aboriginal customary law; other approved Aboriginal couples.^[9]

6.19 It was not recommended that the child placement principle be enacted through Commonwealth legislation. Since that time, states and territories have taken varying approaches to the implementation of the child placement principle. In Victoria, a version of the Aboriginal and Torres Strait Islander child placement principle is included in both the Adoption Act and the CYF Act.^[10] The two versions are not identical.

Bringing Them Home

The Stolen Generations and the apologies

6.20 In 1997, the Human Rights and Equal Opportunity Commission published Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Bringing Them Home).^[11] It considered the past laws, practices and policies which had resulted in the separation of Aboriginal and Torres Strait Islander children from their families by compulsion, duress or undue influence, and the effects of those laws, practices and policies. It examined the then-current laws, practices and policies with respect to the placement and care of Aboriginal and Torres Strait Islander children, and advised on changes required, taking into account the principle of self-determination by Aboriginal and Torres Strait Islander peoples.

6.21 ‘Stolen Generations’ is the name commonly given to the generations of Aboriginal and Torres Strait Islander children removed from their families. Bringing Them Home indicated that it was not possible to state with any precision how many children had been forcibly removed but that it was possible to ‘conclude with confidence that between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970’.^[12]

6.22 On 17 September 1997 the Legislative Assembly of the Parliament of Victoria issued an apology to the Aboriginal people for the past policies leading to the removal of Aboriginal children from their families and communities.^[13] The debates on the motion included acknowledgment of the ongoing effects of the policy and practice, and commitments

‘to make sure that such events do not take place again’.^[14]

6.23 An apology was also issued in the Australian Parliament on 13 February 2008.^[15]

6.24 The policies and legislation which resulted in the Stolen Generations were seen by law and policy makers as being in the best interests of the child at that time.

While there was no officially defined ‘best interests principles’ at the time, it is clear from official records that placing ‘part-white’ Aboriginal children with non-Indigenous people and institutions was seen as providing these children ‘with a better chance in life’ and therefore acting in their benefit. Aboriginality was one of the criteria for child removal decisions.^[16]

6.25 This view is now discredited. The subsequent apologies recognised that these policies and actions were not in the best interests of the children involved. The majority of Victoria’s Aboriginal and Torres Strait Islander people have experienced the consequences of these practices, either personally or through their extended families.^[17] The ongoing impact of family disruption and child removal on contemporary Victorian Aboriginal and Torres Strait Islander families has been widely acknowledged.^[18]

Recommendation on child placement principle

6.26 As discussed above, the child placement principle existed prior to Bringing Them Home. Because the report is such a key document in considering how best to provide for Aboriginal and Torres Strait Islander children, many people think the child placement principle originates from the recommendations in Bringing Them Home. It is important

to consider what the report said about the child placement principle and the adoption

of Aboriginal and Torres Strait Islander children.

6.27 Bringing Them Home endorsed a version of the child placement principle, which it described as the Indigenous Child Placement Principle. It recommended that national standards legislation applicable to all Aboriginal and Torres Strait Islander children should provide that ‘when an Indigenous child must be removed from his or her family, including for the purpose of adoption, the placement of the child, whether temporary or permanent, is to be made in accordance with the Indigenous Child Placement Principle’.^[19]

6.28 The report recommended the following order of placement preference:

1. placement with a member of the child’s family (as defined by local custom and practice) in the correct relationship to the child in accordance with Aboriginal or

Torres Strait Islander law

2. placement with a member of the child’s community in a relationship of responsibility for the child according to local custom and practice

3. placement with another member of the child’s community

4. placement with another Indigenous carer.^[20]

6.29 Where placement is with a non-Aboriginal or Torres Strait Islander carer, the following principles were recommended: ‘family reunion is a primary objective; continuing contact with the child’s Indigenous family, community and culture must be ensured; and the carer must live in proximity to the child’s Indigenous family and community’.^[21]

6.30 The report also recommended that placements of an Aboriginal or Torres Strait Islander child should not be made:

except on the advice and with the recommendation of the appropriate accredited Indigenous organisation. Where the parents or the child disagree with the recommendation of the appropriate accredited Indigenous organisation, the court must determine the best interests of the child.^[22]

Recommendation that adoption be a last resort

6.31 Bringing Them Home considered that adoption should be a last resort for Aboriginal and Torres Strait Islander children and that culturally appropriate alternatives to adoption should be preferred.^[23] Its recommendation headed ‘Adoption a last resort’ was that:

an order for adoption of an Indigenous child is not to be made unless adoption is in the best interests of the child and that adoption of an Indigenous child be an open adoption unless the court or other decision maker is satisfied that an open adoption would not be in the best interests of the child. The terms of an open adoption order should remain reviewable at any time at the instance of any party.^[24]

Child placement principle in the Adoption Act

History

6.32 The Adoption Act, which predates Bringing Them Home, includes a version of the child placement principle.^[25]

6.33 This provision was introduced by the 1984 Act. The 1964 Act did not provide any specific reference to adoption of Aboriginal or Torres Strait Islander children.

6.34 The Second Reading Speech in the Legislative Assembly indicates that the provision in 1984 of separate requirements for the adoption of Aboriginal and Torres Strait Islander children, including the introduction of a child placement principle, represented a major policy shift:

the Adoption Bill, for the first time, makes separate legal provision for the adoption

of Aboriginal children. This measure has been sought by the Aboriginal community for many years. It is now accepted by all those experienced in adoption matters that the adoption of Aboriginal children is a particularly delicate and sensitive matter which cannot be handled through the same processes as other adoptions. The history of adoption of Aboriginal children by white families has resulted in many breakdowns

of adoption arrangements, often associated with the difficulties of adolescent Aborigines in establishing their identity.^[26]

6.35 During the debates in Parliament, some members criticised the separate provisions for the adoption of Aboriginal and Torres Strait Islander children because they thought them unnecessary.^[27]

6.36 The following reasons were given in support of the separate provisions:

• the history of the forced removal of Aboriginal children

• the lack of a counterpart to adoption in Aboriginal culture

• the lack of a fit between statutory adoption and Aboriginal concepts of child care

• potential identity issues if an Aboriginal child is adopted by non-Aboriginal parents, which were identified as leading to the breakdown of adoption arrangements.^[28]

6.37 The 1983 Adoption Legislation Review Committee report recommended that a child placement principle be included in a new Adoption Act, incorporating the following placement priority:

• extended family

• other members of the kinship network

• other Aboriginal families

• applicants approved to adopt by both the Aboriginal agency and the adoption agency.^[29]

6.38 The surrounding discussion in the Adoption Legislation Review Committee’s report suggests that ‘extended family’ was intended to refer to Aboriginal extended family.

6.39 It recommended that this placement priority should apply ‘unless the particular placement needs of the child require or the natural parents formally nominate a different priority’.^[30]

6.40 The Second Reading Speech in the Legislative Assembly indicates that the recommendations of the Adoption Legislation Review Committee on Aboriginal fostering and adoption had been considered.^[31] However, the Adoption Act did not include (Aboriginal or Torres Strait Islander) extended family as first placement preference, despite it being the first placement preference in the report. Instead, the first preference is that at least one of the proposed adoptive parents is a member of the Aboriginal or Torres Strait Islander community to which a parent who gave consent belongs.^[32]

6.41 The debates do not address this apparent inconsistency with the report and, as indicated above, subsequent versions of the child placement principle from various agencies have often referred to extended family or relatives as the first placement preference.^[33]

6.42 It is possible that in 1984 Parliament chose not to refer to extended family in the Adoption Act to ensure consistency with other parts of the Act, which introduced a presumption against relative adoption.^[34]

Counselling requirement

6.43 Section 50 of the Adoption Act provides special requirements for the adoption of Aboriginal children.^[35] The section states that it is ‘enacted in recognition of the principle of Aboriginal self-management and self-determination and that adoption is absent in customary Aboriginal child care arrangements’.^[36]

6.44 The section specifies counselling requirements and a child placement principle for Aboriginal and Torres Strait Islander children.

6.45 The court must be satisfied that the parent received counselling from an Aboriginal agency, or that the parent expressed a wish in writing not to receive counselling from

an Aboriginal agency in the following two circumstances.

• where consent is given to the adoption of a child by an Aboriginal or Torres Strait Islander parent who states in the consent document that they wish for the child

to be adopted within the Aboriginal or Torres Strait Islander community.^[37]

• where consent is given to the adoption of a child by a non-Aboriginal or non-Torres Strait Islander parent, if that parent states in the consent document that he or she believes that the other parent is an Aboriginal or Torres Strait Islander person and that they wish for the child to be adopted within the Aboriginal or Torres Strait Islander community.^[38]

6.46 The Commission understands there is currently no organisation declared under the Adoption Act as an Aboriginal agency. Therefore, no agency is currently permitted to perform the function of providing counselling as an Aboriginal agency for the purposes

of the Adoption Act.^[39]

Elements of the child placement principle

6.47 The Adoption Act details a placement hierarchy that applies in both the consent situations described above, where the parent has stated that they wish the child to be adopted within the relevant Aboriginal or Torres Strait Islander community.^[40] The placement hierarchy is:

1. The proposed adoptive parents are members, or at least one of them is a member, of the Aboriginal or Torres Strait Islander community to which a parent who gave consent belongs.

2. If a member of the Aboriginal or Torres Strait Islander community to which a parent who gave consent belongs is not reasonably available as an adoptive parent, then at least one of the proposed adoptive parents is a member of an Aboriginal or Torres Strait Islander community.

3. If a person from either of these two categories is not reasonably available as an adoptive parent, the proposed parents must be approved by an Aboriginal agency

as suitable to adopt an Aboriginal or Torres Strait Islander child.^[41]

6.48 The placement principle also applies in some cases where the court has dispensed with parental consent. It applies in this situation if the Secretary or principal officer of an approved agency believes on reasonable grounds that the child has been accepted by

an Aboriginal or Torres Strait Islander community as an Aboriginal or Torres Strait Islander person.^[42]

6.49 Except in the circumstance described above where the court has dispensed with consent, the placement principle does not apply unless one of the parents has expressed a wish that the child be adopted within the Aboriginal or Torres Strait Islander community.^[43]

6.50 In a number of other jurisdictions the child placement principle is not dependent on the wishes of the parent and applies because the child has been identified as an Aboriginal or Torres Strait Islander. For example, in New South Wales the Secretary or appropriate principal officer is required to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child. If the relevant person is satisfied that a child

is an Aboriginal child, the Aboriginal child placement principles are to be applied.^[44]

6.51 The child placement principle in the Adoption Act includes a number of key features identified as important in discussion of the child placement principle, including:

• a statement that the section is enacted in recognition of the principle of Aboriginal self-management and self-determination

• a placement preference which places non-Aboriginal or Torres Strait Islander people

as last preference

• a requirement to involve an Aboriginal agency in decision making, including in the provision of counselling and in approving non-Aboriginal people as suitable persons to adopt.^[45]

6.52 There is no consistent formulation of the child placement principle across Australia, or even in different legislation within one state or territory. While acknowledging this lack of consistency, there are two ways in which the child placement principle in the Adoption Act does not match the elements in some key statements of the child placement principle. First, it does not provide Aboriginal or Torres Strait Islander extended family as the first placement preference. Secondly, there is no requirement relating to proximity to the child’s family and Aboriginal and Torres Strait Islander community for an adoption by someone who is not an Aboriginal or Torres Strait Islander person.

The child placement principle in the CYF Act

6.53 The CYF Act includes a section headed ‘Aboriginal Child Placement Principle’.^[46] Its formulation of the child placement principle differs from that in the Adoption Act.

6.54 It requires that if it is in the best interests of an Aboriginal or Torres Strait Islander child

to be placed in out-of-home care, regard must be had to:^[47]

• the advice of the relevant Aboriginal agency

• the criteria provided in the section about placement preferences, which sets out the preferred order of placement^[48]

• additional principles for placement of an Aboriginal or Torres Strait Islander child.^[49]

6.55 The CFY Act provides that the preferred placement is ‘within the Aboriginal or Torres Strait Islander extended family or relatives and, where this is not possible, other extended family or relatives’.^[50] As outlined above, extended family or relatives is not one of the listed options in the placement preference provided in the Adoption Act. The CYF Act then provides a similar hierarchy to that in the Adoption Act.

6.56 Unlike the Adoption Act, the CYF Act includes a proximity consideration if an Aboriginal or Torres Strait Islander child is placed with a non-Aboriginal or Torres Strait Islander family. The last placement preference is ‘a non-Aboriginal family living in close proximity to the child’s natural family’.^[51] This requirement was recommended in Bringing Them Home.^[52]

6.57 The CYF placement criteria also require that ‘any non-Aboriginal placement must ensure the maintenance of the child’s culture and identity through contact with the child’s community’.^[53] This requirement is not reflected in the Adoption Act.

Criticisms of the child placement principle

6.58 Criticisms of the child placement principle are made from two opposing perspectives. The first type comes from people who strongly support the principle because they consider it improves outcomes for Aboriginal and Torres Strait Islander children. Their criticisms relate to a wish to enhance and improve the child placement principle.

6.59 The second type is by people who do not support a child placement principle. They consider that outcomes for Aboriginal and Torres Strait Islander children are worsened

by providing different criteria for them. They support ‘mainstreaming’ of decision making about Aboriginal and Torres Strait Islander children.

6.60 The main criticisms from those who support the child placement principle and wish to improve it are that it is not adhered to in practice; there are associated concerns about compliance, implementation and monitoring.^[54]

6.61 A related criticism is that it is mistakenly understood as being solely about a placement hierarchy:

The Child Placement Principle is not simply about where or with whom an Aboriginal or Torres Strait Islander child is placed […] The Child Placement Principle recognises the destructive and ongoing impact of policies and practices of assimilation and the separation and removal of Aboriginal and Torres Strait Islander people from their parents and communities. It recognises that Aboriginal and Torres Strait Islander people have the knowledge and experience to make the best decisions concerning their children and recognises the importance of each child staying connected to their family, community, culture and country. It promotes a partnership between government and Aboriginal and Torres Strait Islander communities in decision making about children’s welfare, in order to ensure that the connections are understood and maintained.^[55]

6.62 The Secretariat of National Aboriginal and Islander Child Care suggests that the underlying aims of the child placement principle are to:

• recognise and protect the rights of Aboriginal and Torres Strait Islander children, family members and communities

• increase the level of self-determination for Aboriginal and Torres Strait Islander people in child welfare matters

• reduce the disproportionate representation of Aboriginal and Torres Strait Islander children in the child protection system.^[56]

6.63 The criticism about the child placement principle being understood as only a placement hierarchy suggests that it will not be effective if attention is not paid to its underlying principles; rather, it becomes a formal exercise without promoting connection to culture. Criticism of the child placement principle on this basis does not suggest removing it. Instead, it suggests that it would be more effective if it was monitored and implemented more thoroughly and if more attention was paid to the purpose of the principle.

6.64 An opposing criticism of the child placement principle is from those who believe there should not be separate provisions for Aboriginal and Torres Strait Islander people. This view suggests that providing separate provisions for Aboriginal and Torres Strait Islander children creates a double standard. It is argued that this privileges cultural considerations over the safety of children and disadvantages Aboriginal and Torres Strait Islander children:

The continuation of separatist child protection policies means that some Indigenous children […] will end up being raised in circumstances that deny them the chance to access the full rights and opportunities of Australian citizenship enjoyed by other Indigenous and non-Indigenous children. The alternative approach is to mainstream the child protection […] arrangements for Indigenous children, in recognition that this does not mean loss of identity. This should include ending all forms of Aboriginal exceptionalism in child protection. Indigenous and non-Indigenous children should be treated the same, including the use on a non-discriminatory basis of open adoption

(or permanent guardianship) to provide Indigenous children who cannot live safely with their parents or kin with a safe and nurturing adoptive family.^[57]

Questions

17 Should there be a positive duty on the Secretary of DHHS to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal or Torres Strait Islander child? If yes, what type of inquiry might be reasonable?

18 Should there be separate rules and guidelines that apply only to the adoption of Aboriginal and Torres Strait Islander children? If yes, is the child placement principle in the Adoption Act (section 50) an appropriate mechanism? If not what changes should be made?

19 Should there be a requirement that in any adoption of an Aboriginal or Torres Strait Islander child the first preference is to place a child for adoption with Aboriginal or Torres Strait Islander extended family or relatives? If not, what should the order of preference be for placing Aboriginal and Torres Strait Islander children for adoption?

Requirement to consider other options ahead of adoption

6.65 The Adoption Act does not direct that other arrangements for care of children should be considered ahead of adoption for Aboriginal and Torres Strait Islander children. Rather,

it includes an acknowledgment that adoption is absent in customary Aboriginal child care arrangements.^[58] This does not go as far as was suggested in Bringing Them Home, which considered that adoption should be the last resort for Aboriginal and Torres Strait Islander children.^[59]

6.66 A number of other jurisdictions have incorporated a requirement that adoption be a last resort for Aboriginal and Torres Strait Islander children. The Western Australian legislation provides:

It is acknowledged that adoption is not part of Aboriginal or Torres Strait Island culture and that therefore the adoption of a child who is an Aboriginal person or a Torres Strait Islander should occur only in circumstances where there is no other appropriate alternative for that child.^[60]

6.67 As discussed in Chapter 4, the permanency objective requirements in the CYF Act, which came into effect on 1 March 2016, require that in case planning for children in the child protection system, adoption be considered as an option ahead of other options such as permanent care or long-term out-of-home care.^[61]

6.68 In New South Wales, the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides a hierarchy of permanent placement principles, which puts adoption ahead of orders placing the child under the parental responsibility of the minister. However, it provides an amended hierarchy for Aboriginal and Torres Strait Islander children, according to which adoption is the last preference.^[62]

6.69 This requirement is mirrored in the Adoption Act 2000 (NSW) which requires that an ‘Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child’.^[63]

6.70 This stands in counterpoint to the general position in New South Wales, where the government has indicated a policy of increasing adoption and has made a number

of legislative changes to facilitate the increased use of adoption for children who

are in out-of-home care.

6.71 The requirement to consider other options ahead of adoption is not replicated for

Torres Strait Islander children in the Adoption Act 2000 (NSW).

Question

20 Should the Adoption Act require that adoption be considered for Aboriginal and Torres Strait Islander children only where there is no other appropriate alternative?

Torres Strait Islander culture and adoption

6.72 Torres Strait Islanders are a separate people in origin, history and way of life. It would

be inaccurate to suggest that arrangements providing for the permanent transfer

of a child from one family to another do not exist in Torres Strait Islander culture.

6.73 The New South Wales Law Reform Commission’s 1997 research report on the Aboriginal Child Placement Principle noted the difficulties associated with applying an identical principle in relation to Torres Strait Islander and Aboriginal people. The report suggested that ‘differences in attitudes to adoption between the Aboriginal and Torres Strait Islander communities may warrant a separate Principle’.^[64]

6.74 Torres Strait Islanders have sought legal recognition for the practice often called Kupai Omasker (in preference to ‘customary’ or ‘traditional’ adoption) over many years.^[65] This practice involves the permanent transfer of a child from one family to another. This idea of permanent transfer suggests that the type of arrangement expressed by Kupai Omasker does not correspond to a fostering concept, which is a more temporary arrangement for the care of children.

6.75 The Adoption Act provides no acknowledgment of the different approaches to providing for child care between Aboriginal and Torres Strait Islander culture, and does not refer

to Kupai Omasker or Torres Strait Islander customary or traditional adoption.

6.76 The Adoption Act 2009 (Qld) acknowledges the practice without providing legal recognition of it. It provides a general principle that:

because adoption (as provided for in this Act) is not part of Aboriginal tradition or Island custom, adoption of an Aboriginal or Torres Strait Islander child should be considered as a way of meeting the child’s need for long-term stable care only if there is no better available option.^[66]

6.77 It mentions Kupai Omasker as a note to the general preference for alternatives to statutory adoption in relation to both Torres Strait Islander and Aboriginal children.

The note acknowledges that Torres Strait Islander custom ‘includes a customary child-rearing practice that is similar to adoption in so far as parental responsibility for a child

is permanently transferred to someone other than the child’s parents’.^[67]

6.78 The Adoption Act 2000 (NSW) treats the adoption of Aboriginal and Torres Strait Islander children distinctly in relation both to adoptions generally and to each other.^[68] In addition to providing two distinct child placement principles, one for Aboriginal children and one for Torres Strait Islander children, it provides that ‘an Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child’.^[69] This provision is not replicated in relation

to Torres Strait Islander children.

Question

21 Should there be different principles for the adoption of Aboriginal children

as compared to Torres Strait Islander children? For example, should there

be a separate child placement principle for Torres Strait Islander children

as compared to Aboriginal children, as is the case in New South Wales adoption law?

Conditional consent to adoption of Aboriginal and Torres Strait Islander children

6.79 There is a general ability in the Adoption Act to make an adoption order subject to conditions relating to contact (see Chapter 5).^[70] This only applies to adoption orders made with the consent of the parent or parents.^[71] It does not apply to situations where the court dispensed with consent. Conditions relating to contact may be made where the court is satisfied that:

• circumstances exist which make it desirable to do so^[72]

• after consent is given to the adoption, the parent(s) and the adoptive parent(s) have agreed that the adoption order should be made subject to certain conditions.^[73]

6.80 A condition may be made on the adoption order providing particular direct contact rights for specified people who may be the parents of the child or other relatives.^[74]

6.81 A condition may also be made requiring the adoptive parent or parents to provide information about the child at certain times in accordance with terms specified

in the adoption order.^[75]

6.82 In the adoption of an Aboriginal or Torres Strait Islander child there are additional abilities for a parent to give consent to an adoption subject to conditions about contact with the child. As noted above, the general provisions allow conditions about contact to be made by the court if there is agreement between the parent(s) and the adoptive parent(s) after consent has been given. These conditions may be available for all adoptions. In contrast, the Aboriginal and Torres Strait Islander conditional consent provisions are only available

in the adoption of an Aboriginal or Torres Strait Islander child.^[76]

6.83 A conditional consent of this nature can be given if an Aboriginal or Torres Strait Islander parent consents to the adoption of their child. It can also be given if a parent who is not an Aboriginal or Torres Strait Islander person, but believes that the other parent is, provides consent for the child to be adopted. In both cases, it also requires that the person has expressed a wish in the consent document that the child be adopted within the Aboriginal or Torres Strait Islander community.^[77]

6.84 If consent is given in the above situation, it may be given subject to conditions that the relevant parent, specified relatives of the child, and members of the Aboriginal community or Torres Strait Islander community to which the child belongs have rights to have contact with the child.^[78]

6.85 The range of people who can be given rights of contact with the child is much broader than the range of people who can be given contact rights under the general condition provisions which provide for contact with parents or ‘relatives’.^[79]

6.86 The contact rights are not unlimited and the legislation provides for an Aboriginal agency to support contact arrangements to help ensure that they are successful.^[80]

6.87 If no one suitable to adopt the child can be found, the parent must be informed in writing of the inability to find a suitable person. The parent must also be advised of the right to vary the conditions or revoke the consent within 28 days after the notice.^[81]

6.88 If no revocation of consent or variation of the conditions is made within the 28-day timeframe, the Secretary or principal officer of the relevant approved agency may apply

to the court for the revocation or alteration of the conditions relating to the consent.^[82] The court may make an order varying or revoking the conditions. The court must be satisfied that the Secretary or principal officer took reasonable steps to satisfy the conditions, and it must consider a report from an Aboriginal agency.^[83]

7. Eligibility, suitability, contemporary attitudes and the law

Question

22 Should parents of Aboriginal and Torres Strait Islander children retain the ability, that parents of other children do not have, to put conditions on their consent to the adoption of their children? If not, what options should there

be to protect the connection of Aboriginal and Torres Strait Islander children to country, kin, language and community?

1. See, eg, Jeremy Sammut, The Kinship Conundrum: The Impact of Aboriginal Self-Determination on Indigenous Child Protection (Centre

   for Independent Studies, 2014) 2, 15–28.

   ↑

2. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 46. The Commission acknowledges that there may have been Aboriginal or Torres Strait Islander children who were not identified so this number may be higher than reported.

   ↑

3. Australian Institute of Health and Welfare, Child Protection Australia 2014–15, Child Welfare Series Number 63 (2016) 54.

   ↑

4. See, eg, Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997) 587–8.

   ↑

5. See, eg, Children, Youth and Families Act 2005 (Vic) s 13.

   ↑

6. See, eg, Adoption Act 2000 (NSW) ss 35, 39.

   ↑

7. Secretariat of National Aboriginal and Islander Child Care (paper drafted by Claire Tilbury), Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements (2013) 3–4.

   ↑

8. See generally New South Wales Law Reform Commission (Jennifer Lock), The Aboriginal Child Placement Principle, Research Report 7 (1997) 55–63; Secretariat of National Aboriginal and Islander Child Care (paper drafted by Claire Tilbury), Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements (2013) 5.

   ↑

9. Working Party of the Standing Committee of Social Welfare Administrators, Aboriginal Fostering and Adoption: Review of State and Territory Principles, Policies and Practice (1983) 37. Secretariat of National Aboriginal and Islander Child Care (paper drafted by Claire Tilbury), Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements (2013) 5.

   ↑

10. Adoption Act 1984 (Vic) s 50; Children, Youth and Families Act 2005 (Vic) ss 12–14.

    ↑

11. Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997).

    ↑

12. Ibid 37.

    ↑

13. Victoria, Parliamentary Debates, Legislative Assembly, 17 September 1997, 107, 120 (moved by Jeff Kennett, Premier).

    ↑

14. See, eg, ibid 108 (Jeff Kennett, Premier).

    ↑

15. Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, 167 (moved by Kevin Rudd, Prime Minister).

    ↑

16. Victorian Aboriginal Child Care Agency, Aboriginal Cultural Competence Framework (Victorian Government Department of Human Services, 2008) 13.

    ↑

17. See, eg, ibid 14.

    ↑

18. See, eg, Philip Cummins, Dorothy Scott and Bill Scales, Report of the Protecting Victoria’s Vulnerable Children Inquiry (Department

    of Premier and Cabinet, 2012) 281; Victoria, Royal Commission into Family Violence, Report (2016) vol 5, 10, 48.

    ↑

19. Australian Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation
    of Aboriginal and Torres Strait Islander Children from their Families (1997) 582–3, 588 (Recommendations 44, 45a, 51a).

    ↑

20. Ibid 588 (Recommendation 51b).

    ↑

21. Ibid 589 (Recommendation 51d).

    ↑

22. Ibid (Recommendation 51e).

    ↑

23. Ibid 589.

    ↑

24. Ibid 590 (Recommendation 52). The report discusses adoption and acknowledges a broadly different approach to adoption between

    Torres Strait Islander and Aboriginal peoples. However, the recommendation does not distinguish between the two groups.

    ↑

25. Adoption Act 1984 (Vic) s 50.

    ↑

26. Victoria, Parliamentary Debates, Legislative Assembly, 2 May 1984, 4248–49 (Pauline Toner, Minister for Community Welfare Services). The content of the Second Reading Speech relates to the Adoption Bill as originally introduced to the Legislative Assembly on 18 April 1984. This was subsequently withdrawn and the Adoption Bill (No 2) was introduced on 11 September 1984. However, clause 50 of the Bill was not amended.

    ↑

27. See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 12 September 1984, 364 (Barry Steggall).

    ↑

28. See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 12 September 1984, 381–4 (Ken Coghill); Victoria, Parliamentary Debates, Legislative Assembly, 2 May 1984, 4248–49 (Pauline Toner, Minister for Community Welfare Services)

    ↑

29. Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee, (1983) 71. See Chapter 2 for a description of the work of the Adoption Legislation Review Committee. The report underpinned the changes made in the Adoption Act 1984 (Vic).

    ↑

30. Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee, (1983) 71.

    ↑

31. Victoria, Parliamentary Debates, Legislative Assembly, 2 May 1984, 4249 (Pauline Toner, Minister for Community Welfare Services). See footnote 26 for a description of the history of the passage of the Adoption Act 1984 (Vic).

    ↑

32. Adoption Act 1984 (Vic) s 50(2).

    ↑

33. See, eg, Secretariat of National Aboriginal and Islander Child Care (paper drafted by Claire Tilbury), Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements (2013) 8. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31 (1986) vol 1, 255–256 recommended that ‘preference should be given, in the absence of good cause to the contrary, to placements with (1) a parent, (2) a member of the child’s extended family, (3) other members of the child’s community (and in particular, persons with responsibilities for the child under the customary laws of that community)’. But see New South Wales Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) 344–346 (Recommendation 73).

    ↑

34. The Children (Guardianship and Custody) Bill 1984 was introduced at the same time as the Adoption Bill 1984 (Vic). It provided an alternative to adoption for relatives and step-parents, providing for guardianship and custody orders.

    ↑

35. There are also notification requirements where an order is made for the adoption of a child to whom section 50 applies. They require that the Registrar of Births, Deaths and Marriages notify the Secretary and the relevant Aboriginal agency (if any) within 28 days of the child reaching the age of 12 years. The Secretary is required to take reasonable steps to ensure that notice is given to the effect that the adopted child may be entitled to certain rights and privileges that exist for the benefit of the child. This notice is to be given to the adopted child and the adoptive parent or other carer if the adoptive parents cannot be found. See Adoption Act 1984 (Vic) ss 70(2), 114.

    ↑

36. Ibid s 50(1).

    ↑

37. Ibid s 50(2)(a)(i).

    ↑

38. Ibid s 50(2)(a)(ii).

    ↑

39. Sections 50(3)–(4) of the Act provide for an organisation to be declared as an Aboriginal agency for the purposes of section 50 by Order

    of the Governor in Council published in the Government Gazette.

    ↑

40. Adoption Act 1984 (Vic) ss 50(2)(c)–(e).

    ↑

41. This requirement is in addition to approval by or on behalf of the Secretary or the principal officer of an approved agency. Sections 50(3)–(4) of the Adoption Act 1984 (Vic) provide for an organisation to be declared as an Aboriginal agency for the purposes of section 50 by Order of the Governor in Council published in the Government Gazette. As observed in the section headed ‘Counselling requirement’, the Commission understands there is currently no organisation declared as an Aboriginal agency and, therefore, no agency is currently permitted to approve a proposed adoptive parent under section 50(2)(e) of the Act.

    ↑

42. Ibid s 50(2)(b).

    ↑

43. Ibid s 50(2).

    ↑

44. Adoption Act 2000 (NSW) s 34. See also Adoption Act 1994 (WA) s 52(1)(ab); Adoption Act 2009 (Qld) s 163: Adoption Act 1988 (SA) s 11; Adoption of Children Act (NT) s 11.

    ↑

45. See Australian Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997) 468; Secretariat of National Aboriginal and Islander Child Care (paper drafted by Claire Tilbury), Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements (2013) 6–7. But see Jeremy Sammut, The Kinship Conundrum: The Impact of Aboriginal Self-Determination on Indigenous Child Protection (Centre for Independent Studies, 2014) 28, who argues that the goal of self-determination is discredited and outdated and that there should not be separate provisions for Aboriginal and Torres Strait Islander children.

    ↑

46. Children, Youth and Families Act 2005 (Vic) s 13. Section 3(1) of the Act defines ‘Aboriginal person’ to include both Aboriginal and Torres Strait Islander people.

    ↑

47. Ibid s 13(1).

    ↑

48. Ibid s 13(1)(b).The criteria are provided by section 13(2).

    ↑

49. Ibid s 13(1)(c). The additional principles are provided by section 14.

    ↑

50. Ibid s 13(2)(a).

    ↑

51. Ibid s 13(2)(b)(iii).

    ↑

52. Australian Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation
    of Aboriginal and Torres Strait Islander Children from their Families (1997) 589 (Recommendation 51d).

    ↑

53. Children, Youth and Families Act 2005 (Vic) s 13(2)(c). Section 14(5) also provides similarly.

    ↑

54. See, eg, Andrew Jackomos, ‘Family Matters Gathering’ (Speech delivered at the Family Matters Gathering, Old Parliament House, Canberra, 10 January 2016); Fiona Arney et al, ‘Enhancing the Implementation of the Aboriginal and Torres Strait Islander Child Placement Principle: Policy and Practice Considerations’ (Paper No 34, Australian Institute of Family Studies, August 2015) 5-6 <https://aifs.gov.au/cfca/publications/enhancing-implementation-aboriginal-and-torres-strait-islander-child>.

    ↑

55. Secretariat of National Aboriginal and Islander Child Care (paper drafted by Claire Tilbury), Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements (2013) 3.

    ↑

56. Ibid 6–7.

    ↑

57. Jeremy Sammut, The Kinship Conundrum: The Impact of Aboriginal Self-Determination on Indigenous Child Protection (Centre for Independent Studies, 2014) 28. See also, Jeremy Sammut, The Madness of Australian Child Protection: Why Adoption Will Rescue Australia’s Underclass Children (Connor Court Publishing, 2015) in which Sammut makes a broader argument for increasing the use of adoption in child protection circumstances. The use of adoption for Aboriginal and Torres Strait Islander children is discussed at 173–210, 230–39.

    ↑

58. Adoption Act 1984 (Vic) s 50(1).

    ↑

59. Australian Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation
    of Aboriginal and Torres Strait Islander Children from their Families (1997) 589–90 (Recommendation 52).

    ↑

60. Adoption Act 1994 (WA) s 3(2). See also Adoption Act 1988 (SA) s 11(1); Adoption Act 2009 (Qld) s 7; Adoption Act 2000 (NSW) s 36; Adoption of Children Act (NT) s 11.

    ↑

61. Children, Youth and Families Act 2005 (Vic) s 167.

    ↑

62. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 10A.

    ↑

63. Adoption Act 2000 (NSW) s 36.

    ↑

64. New South Wales Law Reform Commission (Jennifer Lock), The Aboriginal Child Placement Principle, Research Report 7 (1997) 234–35.

    ↑

65. See generally Paul Ban et al, ‘Torres Strait Islander Family Life’ (1993) 35 Family Matters 16; Simon Lara and Irma Lara & Tom Marley and Elizabeth Sharp [2003] FamCA 1393 (19 December 2003); Beck v Whitby [2012] FamCA 129 (2 March 2012); Kirsten McKillop, ‘Torres Strait Islander Customary Adoption: Providing Legal Recognition for Alternative Paradigms of Family in Australia’ in Ceridwen Spark and Denise Cuthbert (eds), Other People’s Children (Australian Scholarly Publishing, 2009) 129.

    ↑

66. Adoption Act 2009 (Qld) s 7(1)(a).

    ↑

67. Ibid s 7(1)(a).

    ↑

68. Adoption Act 2000 (NSW) ss 33–39.

    ↑

69. Ibid s 36.

    ↑

70. Adoption Act 1984 (Vic) s 59A.

    ↑

71. Ibid s 59A(b). Section 15(1)(c) of the Act requires the court to be satisfied that the Secretary or principal officer has given consideration to any wishes expressed by the parent of the child after consent was given or dispensed with about access to or information about the child and any arrangements agreed between the parent and the proposed adoptive parents of the child for access to the child or for the giving of information about the child. However, the court’s ability under section 59A to make this part of the adoption order only applies where consent has been given. There is no equivalent ability where consent was dispensed with.

    ↑

72. Ibid s 59A(a).

    ↑

73. Ibid s 59A(b).

    ↑

74. Ibid s 59A(c).

    ↑

75. Ibid s 59A(d).

    ↑

76. Ibid s 37(1). These conditions can be placed on the adoption order: s 59.

    ↑

77. Ibid ss 37(1), 50(2).

    ↑

78. Ibid s 37(1). Rights of access are in accordance with prescribed terms set out in the Adoption Regulations 2008 (Vic) reg 30.

    ↑

79. Adoption Act 1984 (Vic) s 59A. See also section 4 which provides that ‘relative, in relation to a child means a grandparent, brother, sister, uncle or aunt of the child, whether the relationship is of the whole blood or half-blood or by affinity, and notwithstanding that the relationship depends upon the adoption of any person’.

    ↑

80. Ibid s 37(1); Adoption Regulations 2008 (Vic) reg 30. Sections 50(3)–(4) of the Adoption Act provide for an organisation to be declared as an Aboriginal agency for the purposes of section 50 by Order of the Governor-in-Council published in the Government Gazette. As observed in the section headed ‘Counselling requirement’, the Commission understands there is currently no organisation declared as an Aboriginal agency and so no agency is currently permitted to support contact arrangements under s 37(1) of the Act.

    ↑

81. Adoption Act 1984 (Vic) s 37(2).

    ↑

82. Ibid s 37(3).

    ↑

83. Ibid s 37(4).

    ↑