Chisholm, Richard --- "Aboriginal Child Welfare and the Possibility of Federal Laws" [1982] AboriginalLawB 64; (1982) 1(6) Aboriginal Law Bulletin 6

• Aboriginal Child Welfare And The Possibility Of Federal Laws
• The Northern Territory And The Act
• The States
• Section 51(26) Of The Constitution
• Questions About Who Is An Aboriginal
• ‘Specials Laws’
• Conclusion
• Aboriginal Courts?
• References

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Aboriginal Child Welfare and the Possibility of Federal Laws

by Richard Chisholm

At the Third Australian Conference on Adoption in Adelaide in May 1982, 1 was asked by representatives of the Aboriginal Child Care Agencies to prepare an opinion on the possibilities of federal legislation relating to Aboriginal children. I was asked in particular whether it would be possible for the Commonwealth Parliament to pass legislation similar to the Indian Child Welfare Act 1978 of the USA.

In my opinion the answer is yes. It would be possible for the federal parliament to pass legislation about the welfare of Aboriginal children, and this legislation would be law throughout Australia, no matter what was provided in the laws of the states.

In this paper I have not considered whether federal legislation on child welfare is desirable. Nor have I considered how far it might be liable to be frustrated in practice if opposed by state governments. I have considered only the legal question whether, in general, it is within the power of the federal parliament to pass legislation dealing with the welfare of Aboriginal children, along the lines of the Indian Child Welfare Act 1978.

In preparing this paper I have considered not only the standard publications on constitutional law, but also some unpublished legal opinions on s.51(26) of the Constitution which Dr James Crawford of the Australian Law Reform Commission kindly made available to me. Because this paper is written for a general audience, I have not cited these opinions or other publications. But in general what I have said represents the current of opinion among those who have written on the subject. I am grateful to several friends and colleagues for comments on a draft of this paper.

The Northern Territory and the ACT

For the Northern Territory (and the Australian Capital Territory) there is no problem. The Constitution gives the federal parliament a general power to make whatever laws it likes for the territories: section 122. The federal parliament could therefore pass legislation for the territories about child welfare generally, or Aboriginal children in particular. This legislation could be similar to the Indian Child Welfare Act 1978 of the USA.

It would not be possible for such laws to be altered by any laws made by the Northern Territory. The Constitution makes it clear that any law of the federal parliament would prevail. If the federal law said one thing and a law of the Legislative Assembly of the Northern Territory said another, the courts would follow the federal law.

The States

The position is different in the States. The Australian Constitution does not give the federal parliament a general power to make any laws it likes in the states. Instead, it gives the federal parliament power to make laws on particular matters which are listed in the Constitution. If the federal parliament passes legislation, it only becomes law if it is about one of the matters on the list.

If the federal legislation is on one of the matters mentioned in the Constitution, then it becomes the law, no matter what legislation might have been passed by the states. This is because section 109 of the Constitution says that when a federal law says one thing and a state law says something different, the federal law prevails. Everybody has to obey the federal law, and even the state courts have to follow the federal law rather than any state laws on that topic. So, if the welfare of Aboriginal children is within one of the topics in the Constitution, then a federal law such as the Indian Child Welfare Act would be binding on, everyone throughout Australia, no matter what was said in the child welfare laws of the various states.

Sometimes the federal parliament possess legislation which some people think is outside the matters mentioned in the Constitution. When this happens they may take a case to the High Court of Australia and ask the High Court to decide whether the law is or is not on one of the matters. The decisions of the High Court in cases like these show the kinds of laws that are within the powers of the federal government.

There are several matters listed in the Constitution which would enable the Commonwealth to make laws which affected Aboriginal children in one way or another. However, only one of these would be wide enough to enable the federal parliament to pass legislation similar to the Indian Child Welfare Act 1978. This is section 51(26). I think that this section would be wide enough to enable such a law to be made. Because it is a very important section for Aboriginal people, I will discuss it in some detail.

Section 51(26) of the Constitution

This section states: 'The Parliament shall, subject to this Constitution have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(26) the people of any race for whom it is deemed necessary to make special laws'.

This provision is the result of changes made to the Constitution in 1967, after a referendum. At the same time another section (s.127) was removed from the Constitution. That section had excluded `aboriginal natives' from being counted in any census.

Section 51(26) is a very broad power. It seems to mean that the federal parliament can make any' laws it likes about Aborigines. The question is whether the High Court would say that the power is more limited than it seems. I will consider the kinds of limitation that could be relevant to federal child welfare legislation for Aborigines. There are some other limits of the power which do not need to be discussed because they are not important to laws on child welfare.

Section 5 1(26) refers to `The people of any race'. Clearly Aborigines are included in this phrase. Before it was amended in 1967, the section used these words: `The people of any race, other than the aboriginal race in any state'. The amendment got rid of the words in italics, with the obvious intention of making it possible for the federal parliament to pass laws about Aboriginal people. And in a recent decision of the High Court, Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 39 ALR 417, the judges made it clear that section, 51(26) applies to Aboriginal people. (It would equally apply to Torres Strait Islanders).

It could be argued that the words mean that laws could be made relating to all Aboriginal people, but not relating to particular groups of Aboriginal people. But the High Court would not be likely to take this narrow view. It would be possible, I think, for laws to be made under s.51(26) about Aboriginal children as distinct from adults, or about Aboriginal people living in one place rather than another place.

Questions about who is an Aboriginal

Difficult questions can arise about whether a person is an Aboriginal. In the past, various laws have used definitions which distinguish between people on the basis of the proportion of Aboriginal blood that they have. These definitions have often been unfair and resented by Aboriginal people. More recently, a definition has been used which seems generally satisfactory. This is that a person is an Aboriginal if he or she has some Aboriginal blood, and regards himself or herself as an Aboriginal, and is accepted as such by the Aboriginal community.

The extent of the power of the federal parliament however, depends on the meaning of the phrase `the people of any race' in section 51(26). We do not know how the High Court will define it. But I think that a person with no Aboriginal blood is clearly not included. It is quite possible that the High Court would say that a person will come within section 51(26) as long as he or she has some Aboriginal blood. That is, the federal parliament would have power to make laws under s.51(26) for all people who are descended from Aboriginal people. It is possible that the High Court would define Aborigines in some other way, but I think it is unlikely.

If this is right, then there is power under s.51(26) for the federal parliament to make laws about people who have some Aboriginal blood. It is quite possible, however, for the federal parliament to pass a law which is limited to only some people with Aboriginal blood. For example, the federal parliament might think it best to pass a law dealing with children with some Aboriginal blood, only if they are regarded as Aborigines by the Aboriginal community. The federal parliament might prefer to avoid defining Aborigines at all, and simply pass a law dealing with `children of the Aboriginal race'. If there is to be a law passed similar to the Indian Child Welfare Act, the federal parliament will have to decide which children it should apply to. But I don't think there is any major difficulty with the power of the federal parliament: under s.51(26) it can, in my view, pass laws relating to anyone with some Aboriginal blood.

‘Specials laws’

Section 51(26) goes on to say: 'for whom it is deemed necessary to make special laws'. Obviously, if a law is passed on Aboriginal child welfare, the federal parliament must have thought it necessary, so the word `necessary' presents no problems. It is for the parliament, and not for the High Court, to say what is considered ‘necessary’.

What does `special' mean? It could simply mean that . the laws applied specially to Aborigines as distinct from others. If so, any law about the people of a particular race would be 'special', and there would be no problem.

The word `special' could mean, however, that the law relates to some distinctive characteristic of Aboriginal people. In the Koowarta case, Mr Justice Stephen said that `special' means, that the law must be passed because of the `special needs' of the' race in question, or because of the `special threat or problem which they present'. If this is right, it would not be possible for the federal parliament to' make a law, for example, that the ordinary motor traffic laws of the states should not apply to Aborigines. Such a law would be invalid. Even if this is the meaning of the word, there seems little problem with a federal child welfare law for Aborigines, since it would obviously be passed in recognition of the `special needs' of Aboriginal people. It* follows that there is nothing in the words `for whom it is deemed necessary to make special laws' that would stop the federal parliament passing a law relating to the welfare of Aboriginal children.

Conclusion

In my opinion, therefore, it is within the power of the federal parliament to pass laws relating to the welfare of Aboriginal children. Such a law would prevail over any inconsistent state laws.

In particular, it would be possible for the federal parliament to pass legislation which included a statement of principles which would bind state authorities and courts in administering the state child welfare laws. Thus a federal Act could say that the state children's courts should place Aboriginal children with their own people: only if this was impossible could an Aboriginal child be. made a state ward or placed with non-Aborigines. Again, the federal Act could state that before making orders relating to Aboriginal children, the children's courts would have to receive evidence or reports from Aboriginal organisations. And it would probably be possible for the law to give Aboriginal people the right to see the records of the state child welfare departments relating to Aboriginal children. Such a rule might make it easier to place children with Aboriginal families, and it might help people trace their relatives.

Here are some provisions from the Indian Child Welfare Act 1978, by way of example. Similar provisions could be made in federal legislation in Australia:

s.101(c): In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.

s.105(a): In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.

Aboriginal Courts?

The Indian Child Welfare Act 1978 of the USA includes provisions dealing with the jurisdiction of Indian tribes, over child welfare matters. The question whether s.51(26) would enable federal parliament to set up Aboriginal courts to deal with child welfare matters is a complicated issue. I have not dealt with it in this paper because so far as I know Aboriginal organisations have not recommended that Aboriginal, courts or tribunals should be set up under federal legislation to deal with child welfare matters. I would be willing to consider that question if I am asked.

The reasons why Aboriginal child care agencies are interested to explore the possibility of federal legislation are complex. People wishing to understand the issues might find the following references useful.

References

Australian Law Reform Commission, Reference on Aboriginal Customary Law, Research Paper No. 4: Aboriginal Customary Law: Child Custody, Fostering and Adoption (1982) (Box 3708, G.P.O., Sydney, 2001).

NSW Select Committee of the Legislative Assembly upon Aborigines, Second Report (Sydney, 1981).

Chris Milne, Aboriginal Children in Substitute Care (Principal Report, Part One, of the Aboriginal Childrens Research Project, 1982: Family and Children's Services Agency, P.O. Box K 385, Haymarket N.S.W. 2000).

Peter Read, The Stolen Generations (1980; published in 1982 by the N.S.W. Ministry of Aboriginal Affairs, Sydney).

Richard Chisholm, `Aboriginal Self-Determination and Child Welfare: A Case Conference' - (forthcoming in the Australian Journal of Social Issues).

This paper is written for Aboriginal Child Care Agencies throughout Australia. It forms part of a study of the child welfare system and Aboriginal children, funded by the Social Welfare Research Centre, and the Faculty of Law at the University of New South Wales.