Chisholm, Richard --- "Destined Children - Aboriginal Child Welfare in Australia: Directions of Change in Law and Policy - Part Two" [1985] AboriginalLawB 51; (1985) 1(15) Aboriginal Law Bulletin 7

The Aboriginal rejection of the welfare administrators' report is initially surprising, for the report urges many of the reforms that Aboriginal people have been calling for over the years. But the report either avoids or gives unpalatable answers to several of the main problems from the Aboriginal point of view.

The hostility expressed in the report towards the proposal for national legislation has already been mentioned. Aboriginal people do not identify greatly with state boundaries, and are conscious of the difficulty of achieving lasting consensus between the states. They feel that the whole point of the 1967 referendum was to bring Aboriginal affairs under the control of the national parliament, and on such fundamental matters as land rights and child welfare, in which so much depends on what wider policy is adopted about Aboriginal people, it seems appropriate that the legislation should be at a national level. This is particularly so since what Australia does for and to its indigenous people is increasingly a matter of comment in the international community.

Again, the report does not address such sensitive maters as the work of Aboriginal staff appointed to the state welfare departments. What exactly is the point of these appointments? Is it merelyan aspect of equal employment opportunity for underprivileged groups, or does it have to do with the delivery of services to Aboriginal people? If the latter, then there appears to be a fundamental difference between the approach of the welfare administrators and that of SNAICC. From an Aboriginal point of view, Aboriginal responsibility means community responsibility. The appointment of individuals, especially to low positions in the state department, isolates those individuals from their communities and places them under the control of their superiors in the department. While it might be nice for Aboriginal children to see some black faces when they come into contact with the department, the appointments are hardly a move in the direction of participation of the kind that makes sense in Aboriginal terms. And there is a negative side to these appointments, for the people involved might otherwise have played a part in Aboriginal-controlled child care organisations. Appointment of Aboriginal staff, when seen as an alternative to greater financial support for Aboriginal organisations, is not a move in the direction of giving Aboriginal people greater responsibility for their children: it can be seen as precisely the opposite.

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This last comment leads us into the heart of the matter. In Australia, attention has tended to be pre-occupied with concrete issues such as health, housing, and the like: the appalling conditions in which many Aboriginal people live have focused attention on urgent and localised needs, at the expense of the development of a coherent overview of Aboriginal policy. Nevertheless, there does seem to have been a decisive shift; in a word, a shift from policies of assimilation to policies of self-determination.[1] The policy of assimilation is now seen as discredited by the Australian Labor Party, and is deeply resented by many Aboriginal people, who point out that it entails the destruction of Aboriginal people as a viable entity. Indeed Aboriginal people often refer to it as 'cultural genocide'. The policy was very clearly stated by Mr Hugh Morgan, a businessman and a representative of what has been called the'new right'[2] in the following terms[3]:

This passage is important for what it leaves unsaid, namely that the decision is not up to Aboriginal people themselves. The essence of self-determination is that the destinyof Aboriginal people, including their relationship with other Australians, should be determined by them. Of course, there will never be unanimity on such issues in any community. But Aboriginal people have consistently argued that the policy of assimilation has been tried and has been a spectacular failure, as the dreary litany of figures of infant mortality, alcoholism and the like demonstrate. They say, as I understood it, that the unjust taking of their land together with the other circumstances of the white invasion of Australia gives them a moral and arguably a legal right to decide for themselves what their destiny is to be. So far as I can see, the choice they seem to be making is that those Aboriginal people who wish to assimilate should be free to do so, but those who wish to consolidate theirAboriginal culture and laws and pass them on to their children should also be free to do so. And that opportunity requires that some part of the land be restored to them, and that they also receive some form of compensation that will enable them to become economically self-reliant.

Is this course the wisest for them? Will they really be able to work out an authentic Aboriginal life in today's world? Will it be possible for them to become economically self-reliant, or to work out a satisfactory economic relationship with the rest of Australia? Are the dangers of such a course - the possible 'white backlash', possible economic exploitation, denial of public services available to other Australians - too extreme? Frankly, I don't know. But I believe that these terrible choices must be made by Aboriginal people, not by whites. We have been making choices for them for nearly two hundred years, and all the evidence is that we were wrong, wrong, wrong. The task facing white Australians is, I believe, to help Aboriginal people work out their own destiny. The big task, perhaps, is how to determine the quantities: how much land should be returned? What level of compensation is appropriate? In answering these enormously difficult questions, Australians should learn from the North American experience and from views expressed in international forums, as so many of us struggle to come to terms with the task of ensuring justice for indigenous peoples after decades of oppression.

In the meantime, what should be done about Aboriginal child welfare? I n my opinion, what Aboriginal representatives are actually asking in this area is modest and feasible. As is recognised in the welfare administrators' report, they want to keep Aboriginal children in Aboriginal care and control so far as possible. And they want to be actively involved in the care of their children, not just the passive victims of a white child welfare system applied to black children. How could we move in these directions?

One step would be to implement what has become known as 'the Aboriginal child placement principle'. Essentially, this means that in determining the placement of Aboriginal children the decision-making body should prefer Aboriginal placements unless the child's needs require otherwise. Such a principle could be embodied in law, as it has been in the Northern Territory. This would bean important formal and public recognition of thevalue to children of their Aboriginal inheritance.

And yet, if enacted in the form of a ruling binding on courts when making placement decisions about Aboriginal children, such a legal principle would probably have very little practical effect. Courts, in determining custody or contested adoption cases, have to choose between the claims of two (usually) parties wanting to have the care of the child, and must make the decision on the basis that the child's welfare is the 'paramount consideration' a phrase that has been interpreted to mean, in effect, the only consideration[4]. Thus in these cases the placement principle would operate not as a firm rule but only as an indication of what is likely to be in the children's interests: the courts would still have to make whatever order they considered, in the light of all the facts, to be best for the child. The most that such a guideline could do, I think, would be to tip the scales in favour of Aboriginal claimants in a borderline case.[5]

In child welfare cases, the court's task is to determine whether the authorities should be able to intervene in the child's life (this is the point of a finding that the child is 'neglected' or'in need of care'); if the answer is yes, the court is likely either to place the child under the guardianship of the welfare department or make a order placing the child with foster parents or other people previously selected by the welfare departments. In practice, the really important decision in child welfare is the selection, from the possible range of, say, foster parents, of a suitable family. So the placement principle should apply at this point: the welfare department should go out looking for Aboriginal placements that will be appropriate for the particular child.

The law can support the search for such placements by putting an onus on the welfare department to justify any non-Aboriginal placement by explaining to the court what steps have been taken to find an Aboriginal placement. But the law stops there. For such placements actually to be found, other things are required. Those who seek the placements must be trusted by the Aboriginal community involved: this may require Aboriginal staff in the department, or it may require that the search be carried out by (or with the support of) Aboriginal community organisations. It may also require modifying any culturally loaded eligibility criteria, such as that the foster parents must be legally married or must be able to provide each child with a separate room. Another problem must be faced: many Aboriginal families, including some which would make excellent foster placements, are too poor, or are too poorly housed, to take in another child. Successful placements will therfore involve some additional support of Aboriginal foster parents.

To give effect to the Aboriginal child placement principle, therefore, law reform is a useful tool, but it is by no means sufficient: necessary measures will include at least a style of service delivery (ideally through Aboriginal agencies) that is appropriate for Aboriginal communities, and whatever support is needed to enable Aboriginal families to takeover the care of another child.

The Aboriginal child placement principle focuses on the initial placement. What about the continuing management of children in care? What of Aboriginal children who have spent some years in non-Aboriginal care - what steps should be taken to re-introduce them to their Aboriginal background? Should such steps be taken even if a child opposes them,wishing at that time to identifywith the non-Aboriginal foster parents? I have encountered, especially among Aboriginal child care workers, great sensitivity on these difficult questions. My own view is that in general these children probably need to be brought into touch with Aboriginal people and culture, but the timing and manner of doing this requires sensitive judgments about the needs of the particular child. Above all, these children need a system that will give them the benefit of collaborative work between the Aboriginal and non-Aboriginal people involved with each child.

Another iniportant limitation on the Aboriginal child placement principle as generally understood is that it does not apply to the juvenile justice system. There is not space hereto explore the problems raised, but they are very serious. Statistics are hard to come by, but it is my strong impression that the numbers of children removed from theirfamilies and communities today by the juvenile justice system greatly exceed those removed under child welfare and adoption laws. indeed, it should be said that the numbers of Aboriginal children removed under the latter system do seem to have fallen in recent years, as one would expect from the recently emerging policies.

Finally, let me say something about the second strand of recent reforms, namely the involvement of Aboriginal people in the child welfare process. This kind of involvement could take a variety of forms. In general, my impression is that the welfare authorities are most willing to encourage Aboriginal people to participate in ways that do not involve a major shift of power and responsibility. Aboriginal people, on the other hand, seek methods of involvement which do involve such a shift. At the risk of oversimplification, the kind of involvement favoured bytheAboriginal people on one hand and the welfare authorities on the other may be set out in table form as follows:

Welfare Authorities	Aboriginal People
Consultation	Decision-making
Involvement at field level	Involvement in policy formulation and other levels of departmental work
Based on departmental goodwill	Guaranteed by law
By Aboriginal individuals approved by the welfare department	By Aboriginal people elected by communities
By Aboriginal individuals	By Aboriginal community organisations
Based on state laws	Based on federal laws

Broadly speaking, one can see in these alternatives the struggle between a notion of Aboriginal self-determination and a notion of a pluralistic community: and between the devolution of power to Aboriginal people and merely a more tolerant and sensitive welfare administration.

The fascinating thing about the social welfare administrators' report is that it seems to give Aboriginal peoplewhat theywant. It does not. It is undoubtedly a great improvement both on the distant past of the Aborigines Protection Board and the more recent monoculturalist assumptions of the 1950s and 1960s. But it falls a long way short of the aspirations of Aboriginal people to real responsibility over their children, aspirations which are reflected in terms such as 'self-determination' and 'sovereignty', in participation in international forums concerned with human rights, and in a growing interest in the struggles of the indigenous peoples of North America.

It also falls short of the tentative but well-argued recommendations of the Australian Law Reform Commission, favouring legislation implementing the Aboriginal Placement Principle. The indications are that the Law Reform Commission's Report will mark a coming of age in Australian thinking-well, non-Aboriginal thinking-about Aboriginal people, a change from a problem-based approach to a rights-based approach. For Aboriginal people, perhaps, it will be just another step in the patient and quite astonishingly law-abiding struggle for their rights. In that struggle, the destinyof Aboriginal children is in someways the central issue.

[1] See e.g. Second Report of the New South Wales Legislative Assembly Upon Aborigines, Sydney, 1981.

[4] e.g. family Law Act 1975 (C'th), s.63; Marriage of Schenk (1981) Family Law Cases 91-023 (Full Court of Family Court of Australia).

Aboriginal Law Bulletin