Aboriginal Law Bulletin
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by Richard Chisolm
The Community Welfare Act 1982 was passed by the NSW Parliament in April 1982. However, it will not come into force for some time. The new Act will replace the Child Welfare Act 1939. When the new Act comes into force, perhaps later this year, there will be a number of new bodies established to administer the child welfare system. It will be possible for the government to appoint Aboriginal people to these bodies. The purpose of this note is to explain what the new bodies will be and what they are supposed to do, and how Aboriginal people may apply to be members of them, if they so wish.
There are two kinds of involvement possible under the Act. First, it is possible to be involved in decisions relating to particular children and families. Second, it is possible to influence Department of Youth and Community Services (YACS) policy generally. I will deal with these two kinds of involvement separately.
Children being dealt with under the Community Welfare Act will be of two kinds : (1) children charged with offences and (2) children not charged with offences but 'in need of care'. The Act treats these two kinds of children differently.
The Act introduces a system of 'Children's Panels'. The function of these panels is to decide which children need not go to the Children's Court. If the police charge a child with an offence, the child cannot go to court unless the panel says so.
The Panels have this power over most offences that children commit. However, in some offences, they have no power: for example murder, traffic offences, and offences committed by children while committed to the control of the Minister. In the case of those offences, the child must go to court in the usual way if the police wish to proceed. But the panels have power over common offences like stealing, breaking and entering, unlawful use of a motor vehicle, and so on.
Under the new law, when a child is charged with an offence, the papers will be referred to a panel. The panel will consist of three people: a senior police officer, a YACS officer, and another person who is considered to have 'suitable qualifications or experience'. There will be a list of people eligible to serve on panels, and three people will be selected from the list -for each particular case. If there were Aboriginal people on the list of eligible people, one of them might be appointed to be the third member of the panel in the case of an Aboriginal child charged with an offence.
The decision of the panel is by majority. The Aboriginal person might therefore be outvoted. On the other hand, the Aboriginal person might be able to influence either the police officer or the YACS officer, or both, and therefore might be very useful. Also, by presenting an Aboriginal point of view, the Aboriginal representative might bring about a more understanding attitude towards Aboriginal children and their problems.
Persons who wish to be on panels should tell YACS. The local District Office will give the name and address to the Regional Director. It would be best also to write to the Regional Director. The letter need only say 'I would like to serve on Children's Panels in the case of Aboriginal children'.
Under the new Act, the Children's Court has power to make a 'community service order' as an alternative to sending a child to a training school. Such an order means that the child must carry out some form of work, for example, cleaning up an area, or gardening, or painting.
The court is much more likely to make these orders if members of the Aboriginal community can suggest some form of work, perhaps of a sort that would - benefit Aboriginal people, and arrange for it to be supervised. If suitable projects are devised (probably in consultation with the Aboriginal Legal Service) it might be possible to keep quite a large number of Aboriginal children out of training schools.
Such children were formerly called 'neglected' or uncontrolled. Children's Panels do not apply in these cases.
When these children come before the Children's Court, the court has to include an 'assessor'. This person may advise the court about the case but cannot take part in the decision.
There will be a list of people eligible to be assessors and Aboriginal people who want to be on this list should write to their Regional Director of YACS. One person from the list will be chosen to be an assessor on a particular case and if Aborigines are on the list, they may be chosen when Aboriginal children are before the court.
This is a new body which hears appeals relating to various decisions made by YACS. These include decisions about the licensing of child care services and fostering agencies, and decisions about state wards. Both of these may affect Aboriginal children because Aboriginal organisations may want to apply for licences, and decisions are, of course, made about Aboriginal state wards.
Members of the Tribunal are to be appointed from people who 'have knowledge of or experience in . . . child care' and people who 'have suitable qualifications or experience'. It would therefore be possible for Aboriginal people to be included in the list of members of the Tribunal. They might sit on the Tribunal in cases involving Aborigines (and perhaps in other cases). Again, Aboriginal people who wish to be members of the Tribunal should tell YACS. It is quite possible for the same person to be on the Tribunal and the Children's Panels.
The function of Children's Boards of Review is to review the situation of state wards, and advise the Minister what should be done. They can only advise; they have no power to make decisions.
Each Board of Review consists of two persons, a YACS officer and another person. It would be possible for Aboriginal people to be appointed to these bodies.
As well as the new bodies set up by the Community Welfare Act, it is possible in various ways to challenge decisions of the Department of Youth and Community Services which relate to particular children. Aboriginal people may also be able to take part in case conferences about children. It might be wise, therefore, to contact the Aboriginal Legal Service for advice about these matters whenever difficulties arise involving children and YACS.
This body has the task of advising the
Minister for Youth and Community Services 'on matters relating to community welfare or social development referred to it by the Minister' and making reports on 'such matters relating to community welfare or social development as it considers should be brought to the notice of the Minister'. It may also conduct inquiries, investigations and seminars with the approval of the Minister. The Council is to make written reports to the Minister each year.
The relevant qualifications are that members should be 'members of, or persons employed by, organisations concerned in community welfare or social development', officers of relevant government departments, or 'persons otherwise experienced in community welfare or social development'. Aboriginal people may wish to seek appointment to the Council. The Act suggests that nominations of persons to the Council may have to be in a particular form (Schedule 1, clause 10). People wishing to nominate should inquire from YACS about the correct procedure.
These are the NSW Advisory Council on the Handicapped (s.20) and the Community Services Training Council (s.23). Membership of the Training Council could be useful in relation to the appropriate training for YACS officers or other people in the welfare field who will be working with Aboriginal children. The same purpose might equally be served by making submissions to YACS about such matters.
The Minister may appoint persons to be 'visitors' in relation to particular training centres and other departmental facilities. People are eligible for appointment if they are either members of any advisory body set up by the Act (e.g. the Community Welfare Advisory Council) or are, in the Minister's opinion, 'expert in any branch of community welfare and have demonstrated concern for persons in need of community welfare services'. Visitors have a right to enter facilities at any reasonable time, talk privately with people in them, report to the Minister, and make application for a review by the Children's Board of Review (see above).
The appointment of Aboriginal people as visitors could help to reduce the isolation of Aboriginal children in the care of YACS.
This paper was written in connection with a study of Aboriginal children and child welfare law, for which I have been granted financial support from the Social Welfare Research Centre and the Faculty of Law, University of NSW. If anyone would like to comment on this paper or would like to know more about the study, I would be glad to hear from them. Letters may be addressed to me at the Faculty of Law, University of NSW, PO Box 1, Kensington, 2033.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1982/52.html