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Chisholm, Richard --- "Destined Children - Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy - Part One" [1985] AboriginalLawB 37; (1985) 1(14) Aboriginal Law Bulletin 6


Destined Children

Aboriginal Child Welfare in Australia:
Directions of Change in Law and Policy – Part One

by Richard Chisholm

Laws and policies about Aboriginal child welfare are linked inevitably with wider issues about justice for Aboriginal people. The destiny of Aboriginal children is a dominating issue for Aboriginal people, as it has been for those governments and other non-Aboriginal authorities that have sought to implement policies relating to Aboriginal affairs.

The issues range from the handling of interpersonal work in caring for Aboriginal children, to the planning and delivery of child welfare services, to the role of law, to the relationship between the states and the federal government, and to Aboriginal aspirations to self-government and claims to sovereignty. They also include ideas of justice for children and for racial and other groups that have been much debated by legal scholars in Australia and other countries, and increasingly in the international community. These issues are presently before the Australian Law Reform Commission, whose report on the Recognition of Aboriginal Customary Law is expected later this year. The Commission has already published a valuable Research Paper on the subject.[1]

This article attempts a brief overview, based on research which commenced in 1982. Many of the matters discussed are dealt with in more detail elsewhere.[2]

History of Aboriginal Child Welfare

The history of Aboriginal child welfare, like so much of post-contact history, has yet to be written. However, some material has been published, especially relating to New South Wales[3], and it is possible to sketch the main outlines.

First, Aboriginal people as a whole were in a sense treated like children: non-Aboriginal authorities such as the Aborigines Protection Board in New South Wales exercised vast power over Aboriginal people, based essentially on legal authority[4] and the control of resources, in such a way as to make many of the decisions that adults normally make for themselves. Thus many Aboriginal people lived on reserves or settlements under a considerable measure of control by the authorities managing the reserves. Since Aboriginal adults were deprived of a great deal of autonomy in their lives, it was not surprising to find that some legislation simply provided that the white authorities, not the Aboriginal parents, were the guardians of the children.

Second, at least in New South Wales there was a separate child welfare system for Aboriginal children, administered by the Aborigines Protection Board (later to become the Aborigines Welfare Board) between 1883 and 1969. This system involved separate administrations and separate institutional care for Aboriginal children. it contained the following features:

(i) The power of the Board over Aboriginal children was considerably greater than was the power of the mainstream child welfare authorities over non-Aboriginal children. In law, between 1915 and 1940 the Board could remove Aboriginal children into its control without the consent of the parents and without any court hearing. There was an appeal to a magistrate, but given the unequal distribution of power between black and white Australians, the lack of legal services for Aboriginal people, and the many impediments to Aboriginal people bringing legal proceedings, it is unlikely that this appeal had much effect. There seems no record of any such appeals[5], and the anecdotal evidence from Aboriginal people shows that many children were taken away in the most heart-breaking circumstances, and yet the parents never considered appealing; probably they were not even aware of their right to do so.

(ii) The Board's intervention was no doubt designed to serve the interests of the children as the Board saw them. But the Board's perception of the children's interests reflected its overall views of the nature and destiny of Aboriginal people. Those views are explicitly stated in the reports of the Board over the years. Briefly, the Board considered that Aborigines were a dying race. The appropriate policy for 'full-bloods', therefore, was to offer them protection for their remaining years. For children of 'lightercaste' the goal was to bring them up to fi tin with the ‘wider’ (i.e. non-Aboriginal) society. This policy of 'assimilation' as it later came to be known, entailed a scheme of education and socialisation away from their Aboriginal identity and towards a white identity. To some extent this may have reflected simple ignorance about the functioning of the Aboriginal community. Thus one child was taken from her community on the basis that she was an 'orphan' although in fact she was surrounded by members of the extended family who in the ordinary ways of Aboriginal people would naturally have looked after her. Sometimes, perhaps, what was involved was out and out racial prejudice. Thus although the official records usually give reasons for the children being removed, e.g. that the child was neglected, one record gives this as the reason for removal of a child: 'being aboriginal'.

The scheme of assimilation was implemented by institutionalising Aboriginal children, and by placing them with white families. There were some special institutions set aside for Aboriginal children in addition, Aboriginal children in some of the larger reserves, called 'stations', lived a somewhat institutionalised life, attending the internal school run by the managers (who were usually unqualified) and sleeping in dormitories. Placement with white families usually occurred when the children were in their early teens. Girls were placed out to do household work and boys, generally speaking, as farm workers. These placements were referred to as 'apprenticeships'. Yet the children rarely received any training in employable skills, and they were often treated cruelly and exploited. Their wages, small as they were, were paid to the Board rather than to the individuals, and many of the children were never reimbursed by the Board. Many girls were sent home when they became pregnant to one of the men of the household, and it seems that they had learned enough of the white way of life to make it difficult for them to fit in with their own people.

(iii) The system was also characterised by the fact that all the decision-making power was firmly in the hands of the white authorities. There appears to have been no attempt to build up the strength of Aboriginal communities or to encourage them to bring up their own children according to Aboriginal traditions. Thus the Aboriginal parents and communities had very little control over the destiny of their children. The evidence is full of stories of despairing Aboriginal parents losing their children. In one famous account[6] an Aboriginal woman recalls how she was taken from her mother, together with other children, as a result of a visit by the local police to the reserve. At one stage it appeared that the youngest child would be taken but at the last moment the police officer decided not to do so. The mother kissed the policeman's hand in gratitude at having one child left behind; an evocative image of the power relations between black and white Australian at the time. The author, Mrs Margaret Tucker, remarks that when a policeman appeared on the reserve, Aboriginal mothers would grab their young children and run away into the bush.

It is nevertheless misleading to see Aboriginal parents as being completely powerless and passive in the face of the Board's officers. The historian Heather Goodall has shown that though they had few weapons, Aboriginal people have a long tradition of resistance by individuals, families and communities to the incursions of the Board[7]. The tradition of resistance is carried on today by the work of the Aboriginal child care organisations, as we shall see shortly.

The legacy of this history constitutes a large barrier to advancement in Aboriginal child welfare. Aboriginal people have long memories, and the taking of their children has been experienced as one of the most bitter forms of white oppression. The work of the white authorities over the decade, has been destructive in a number of ways, for apart from the actual removal of the children, the intervention undermined the authority of Aboriginal parents and communities. Aboriginal people today often speak of the relations between the races as one of colonisation. The point seems to be valid in the child care area, for just as colonial administrations sometimes left the colonised peoples with little experience of administration, so the work of the Aboriginal 'protectors' in Australia left Aboriginal people with very little experience of managing child care services of a modern kind. Against the historical background, it is surprising that Aboriginal child care organisations have achieved as much as they have.

Recent Developments

(i) Aboriginal Initiatives and Other Pressures for Change

There has been considerable agitating,writing, and formulating of policy on Aboriginal child welfare since the late 1970s. There appear to be several reasons for this. Most important, perhaps, is the work of Aboriginal people themselves. In 1976, a conference on adoption was held, rather boastfully under the title of ‘The First Australian Conference on Adoption’[8]. The conference included a sub-committee on Aboriginal children, and out of this grew a movement towards Aboriginal child care and adoption agencies. It is interesting to read the record of that conference today, for what the Aboriginal representatives had to say was essentially what they are still saying today, and in many ways their demands continue, in terms appropriate to modern conditions, the struggle that they have been engaged in since the white invasion, to regain control of their children. In any case, that conference seems to have been the precipitating factor in the formation of Aboriginal child care agencies, first in Sydney and Melbourne, and later in other parts of Australia. The 1970s, in fact, saw the development of a series of Aboriginal controlled initiatives in the fields of legal services, health, housing and other areas.

The work of these agencies has not yet been documented. Generally speaking, they seek to leave Aboriginal children in the care and control of the Aboriginal community, responding to the children's needs through support within the community rather than removal from it. Specifically, they have engaged in counselling children and parents, finding Aboriginal foster parents for Aboriginal children, seeking to influence courts not to remove children, visiting and helping to trace the identity of Aboriginal children 'lost in the system[9], helping assess the suitability of non-Aboriginal foster parents, and to a limited extent engaging in the delivery of financial support and other preventive services. Their effectiveness depends on many factors: as well as their own talents, their acceptance within the Aboriginal community, and the extent to which government agencies support them through funding and co-operation.

Apart from Aboriginal initiatives, at least three other factors seem to have been important. First, the Labor Party, which currently holds office federally and in all but two of the states, has a commitment to the policy of self-determination for Aboriginal people, although the strength of the commitment, and the understanding of what is meant by 'self-determination' are problematical. Second, there has been some recent research evidence documenting what many have always known, that Aboriginal children are disproportionately represented in the child welfare system, just as Aboriginal adults are disproportionately represented in the criminal justice system[10]. Third, there has been a growing awareness of the experience of North America, where the Indian Child Welfare Act 1978 and the successes of some I ndian organisations in child welfare has provided encouragement and something of a model for Aboriginal people in Australia.

(ii) State Policies and Practices

It is obviousthat the roleof Aboriginal people in child care is greatly influenced by the approach of the state welfare department. The practice of these state departments in relation to Aboriginal children has altered considerably in recent years. There appears to be no published account of these changes, and there are undoubtedly differences between the states, and even between different areas within states. The following account is based on research in New South Wales, but it seems from brief visits to other states and from conversations with Aboriginal people from other states that developments in New South Wales have much in common with developments in other states.

Some of the main changes may be described as follows.

(a) Aboriginal staff in the State Department.

In the past, Aboriginal people were as noticably absent from departmental staff as Aboriginal children were present in the institutions and foster placements. in recent years, however, more Aboriginal people have been appointed to the departmental staff. in New South Wales, this took an interesting form. First, the federal Department of Aboriginal Affairs provided funds for the employment of 'Aboriginal caseworkers' working within the state welfare department. After some years, the state Department took over the burden of paying the salaries. The 'caseworkers' became 'community workers', though it is not known how far this change of name reflected a change in orientation. Today, these individuals are either district officers of the Department (the generic field staff) or training to be such. This reflects an advancement in terms of seniority, salary and perhaps job security. It also seems to reflect a change of emphasis away from a distinctive role in working with Aboriginal communities to a role of contributing in the ordinary way to the whole range of activities of the Department, although this is by no means certain. Much will depend on the superior officers, and where they are so minded, it seems likely that the Aboriginal staff will take the lead in dealing with Aboriginal children and families.

The role of these officers has been the subject of some discussion[11], and we will return to this question later.

There have also been, at least in New South Wales, some appointments at a higher level. Several Aboriginal people have been appointed as 'program officers' at a regional level and in Head Office. These officers have a role in formulating policy for the delivery of the department's services. These higher-level appointments are very recent and their impact cannot yet be assessed.

As well as adding individual Aboriginal people to the staff, New South Wales and other states have established specialist Aboriginal units within the Department. in New South Wales, the unit was established in 1978 but appears not to have played a significant role in the formulation of policy, as it was not consulted on major issues. Today, the unit's staff is all-Aboriginal (with one exception) and it may come to play a larger role in the future. As well as delivering services to Aboriginal people in an inner-city area (where some Aboriginal clients might be nervous about approaching an ordinary Departmental office) it does valuable work in collaborating with the Aboriginal Children's Service and other Aboriginal agencies.

(b) Consultation with Aboriginal People.

There seems to have been an increased willingness to consult with Aboriginal people in recent years. This phenomenon is almost impossible to quantify. Consultation may take many forms, and may or may not be with the most appropriate Aboriginal organisations and individuals. However, it is my consistent impression that the amount of consultation has been significantly increased, and that it has often influenced the outcome of decisions about Aboriginal children. For example, I attended a 'case conference' to which a large number of Aboriginal people were invited, and which had the result that four children were placed under the guardianship of the Aboriginal Children's Service, and remained in Aboriginal care within their community. Such a consultation, and such a result, would have been unheard of only a few years ago[12]. More recently, there has been a form of consultation between the state welfare authorities and the Aboriginal child care agencies. it must be added that the quantity and quality of consultation is variable, and often seems to be less than is demanded by Aboriginal child care organisations.

(c) Non-intervention

In child welfare generally, non-intervention is popular, reflecting a general disenchantment with institutional care, research that appears to show that 'nothing works and to some extent a political shift towards the right, favouring minimum government intervention into the family along with minimum intervention into the economy. It also fits neatly with the desire of governments of all political persuasions to limit public spending in what we are assured are difficult times. These factors apply as much to Aboriginal children as to others. in addition, however, a tendency not to intervene may reflect a wish to leave Aboriginal families and communities to look after their own children. Unfortunately 'leave' may be the operative term here, for many Aboriginal communities are so poor that they lack the resources to look after their children as they would like to do. It is a cruel reform for the authorities to cease intervening into the lives of children who really are in need, without providing the Aboriginal community with the resources necessary to give the children the care and attention they require.

(iii) A National Policy?

In 1980, the federal Department of Aboriginal Affairs published a set of guidelines for the placement of Aboriginal children[13]. These guidelines were advisory only, and were never formally accepted by the state welfare ministers, although they might have helped produce the kinds of changes in practice and policy noted above. In 1983 a report was published by a working party of the state welfare administrators on the same subject[14].

The Report was intended to embody 'a determination to recognise, respect and reflect Aboriginal culture, customs and opinions in legislation and practice', and 'to redress past practices through developing principles and policies for the fostering and adoption of Aboriginal children[15]. The main recommendations involved keeping Aboriginal children in their own families and communities where possible and consulting with apropriate Aboriginal people before making decisions about children. The report expressed no firm views about the role of law in this policy, though, predictably for a body of state welfare administrators, the idea of a federal law was firmly rejected.

The publication of the report is a significant achievement, for agreement between the states is notoriously hard to achieve especially on such politically sensitive issues as Aboriginal affairs. It may well play a part in pushing welfare departments to consult more with Aboriginal people and look for ways of leaving Aboriginal children in Aboriginal care. Nevertheless, the report has been rejected by the national body of Aboriginal child care agencies, SNAICC, on two main grounds. First, SNAICC resented being asked to agree to a package prepared by someone else. Aboriginal notions of consultation involve talking the issues through from the start. Second, the report failed to address a number of major issues of concern to Aboriginal people, and its rejection of federal legislation was unacceptable: SNAICC passed a resolution in 1984 calling for ‘national legislation pertaining to Aboriginal and islander children which is acceptable to all Aboriginal and islander communities’.

(iv) Legal Developments

State child welfare laws have been silent on the subject of Aboriginal children: the law applies (in theory) indifferently to children of all races. But some recent legislation breaks this silence. The Northern Territory Community Welfare Act 1983 includes provisions seeking to ensure that Aboriginal people are consulted and that children are placed in Aboriginal settings where possible[16]. The Adoption Act 1984 in Victoria includes a provision discouraging the adoption of Aboriginal children into non-Aboriginal families[1]. Some other recent legislation, while not specifically referring to Aboriginal children, is aimed at ensuring that the courts and welfare authorities are sensitive to children's cultural and ethnic background[1].

Continued next issue [1985] AboriginalLB 51; 1(15)pg7


[1] Law Reform Commission, Australia, Reference on Aboriginal Customary Law, Research Paper No.4, Aboriginal Customary Law: Child Custody, Fostering and Adoption, Sydney, 1982.

[2] The study will shortly be published by theSocial Welfare Research Centre at the University of New South Wales under the title Black Children: White Welfare? Other publications from the study include the following: R. Chisholm, 'The Legal Possibility of Federal Laws on Aboriginal Child Welfare' (1982) 6 Aboriginal Law Bulletin 6. R. Chisholm,'Black Children: White Welfare?', A paper delivered to the XIth International Congress of Anthropological and Ethnological Sciences, Vancouver, August 1983 and published in Australian Law Reform Commission, Symposium 4: Aboriginal Law and Tradition in Australian Adaptation-Problems of Conflict, Co-existence and Adaptation, Sydney, 1903. R. Chisholm and Brad Morse, 'Reform of Aboriginal Child Welfare Laws-A Discussion Paper', a paper circulated to Aboriginal Child Care Agencies in response to the Australian Law Reform Commission's Research Paper No.4, 1983.

R. Chisholm, 'Aboriginal Self-Determination and Child Welfare: A Case Conference' 1982 Aust. l. Social issues vol. 17, No. 4, 258-275. R. Chisholm, 'Aboriginal Children, Adoption and Permanency Planning: A Sceptical View' in R. Oxenberry, ed., Proceedings of the Third Australian Conference on Adoption, Dept. of Continuing Education, South Australia, 1982, 76-91.

[3] H. Goodall, ‘A History of Aboriginal Communities in New South Wales, 1909-1939’ Ph. D. thesis in Dept. of History,University of Sydney, 1982; P. Read, The Stolen Generations (Ministry of Aboriginal Affairs, Sydney, 1983).

[4] Aborigines Protection Act 1909 (NSW) and later amendments to 1969.

[5] Prof. Colin Tatz could not find any cases either: C. Tan, 'Aborigines and Civil Law' in Hanks and Keon-Cohen,op. cit. note,at 103; I. McCorquodale,'An Annotated Bibliography' in the same volume, 238.

[6] M. Tucker, if Everyone Cared, Use Smith, Sydney, 1977.

[7] H. Goodall, op. cit. note 10.

[8] C. Picton, ed., Proceedings of the First Australian Conference on Adoption, Sydney, 1976.

[9] See, e.g. D. McCotter, Children in Limbo. Department for Community Welfare, Western Australia, 1981.

[10] See, e.g. A. Ligertwood, 'Aborigines in the Criminal Courts' in Hanks and Keon-Cohen, op, cit. 6 at p. 191.

[11] C. Milne, Aboriginal Children in Substitute Care, Principal Report of the Aboriginal Children Research Project, Family and Children's Services Agency, Sydney, 1982; R. Chisholm ‘Aboriginal Self-Determination’ op. cit. note 9.

[12] R. Chisholm,'Aboriginal Self-Determination' op. cit. note 9.

[13] Department of Aboriginal Affairs (C'th) Aboriginal Adoption and Fostering-Policy Guidelines, January 1980, reproduced in Australian Law Reform Commission, Reference on Aboriginal Customary Law, Research Paper No.4. 'Aboriginal Customary Law: Child Custody, Fostering and Adoption Sydney,1982, p. 51.

[14] Aboriginal Fostering and Adoption: Reviewof State and Territory Principle and Practices; Report of Working Party of Standing Committee of Social Welfare Administrators, 1983.

[15] id., introduction.

[16] Community Welfare Act 1983 (NT) s69[]

17Adoption Act 1984 (Vic) 550.[]

18 Community Well are Act 1982(NSw) s81; Family and Community Development Bill 1984 (Qld) cl. 181,192


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