Aboriginal Law Bulletin
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by D. Wilkinson
As the Year of the Family draws to a close, the Commonwealth and the States, yet again, have failed to respond to one of the most profound family concerns of Aboriginal and Torres Strait Islander peoples. The issue was addressed in full eight years ago by the Australian Law Reform Commission (ALRC) Report No31 ("Customary Law Reference") when it recommended Australia-wide statutory recognition of the child placement and adoptive practices of the indigenous peoples of this nation.
The following Principle was accepted by all States at the Social Welfare
Minister's Conference in 1986:
When a child is to be placed outside his/her natural family, the Family Support Worker in the Aboriginal Centre, Family Support and Care Program must be contacted prior to placement.
The order for priority of placement should be:
• A member of the child's extended family;
• Other members of the child's Aboriginal community who have the correct relationship with the child in accordance with Aboriginal Customary Law;
• Other Aboriginal families living in close proximity.
This order of priority of placement is to be followed in absence of good cause to the contrary, at all times.
In 1984, the Council of Social Welfare Ministers adopted an earlier version of the principle, and the ALRC in its Customary Law Reference,[1] recommended adoption of the above improved version. The Royal Commission Into Aboriginal Deaths In Custody (RCIADIC) Recommendation 54 endorsed the 1986 version and stated:
that in States or Territories which have not already so provided there should be legislative recognition of:
(a) The Aboriginal Child Placement Principle; and
(b) The essential role of Aboriginal Child Care Agencies.
Although all States and Territories undertook to observe the principle and to accord recognition to appropriate Aboriginal customary law only 5 States and Territories have enacted part (a) of the RCIADIC Recommendation, either as in the 1986 version or as a modified version which expressly acknowledges the role of Aboriginal customary law in Aboriginal child adoptions and placements.[2] Two States only - Victoria and South Australia - have complied with part (b), and given statutory recognition to the role of Aboriginal Child Care Agencies. South Australia recently nominated IINA[3] as the recognised Torres Strait Islander adoption agency.
In those States and Territories which have incorporated the ACPP into amended child placement and child adoption acts, the principle would presumably have enforceable legal effect. In the other jurisdictions it would be little more than a guideline. If the courts refer to the principle and uphold it in disputed cases, this would subject the relevant State administering bodies to the discipline of their own Supreme Courts. The ACPP would then, in time, through decided cases, assume the status of a procedural right at common law. Procedural rights in common law jurisdictions have proved more effective in preserving basic human rights than have Bills of Rights in civil law jurisdictions.
A current problem in States which have not given legislative recognition in line with Recommendation 54 is who, apart from a relative, has the standing, status or resources to contest inappropriate placements. An Aboriginal Child Care Agency, legislatively recognised, would have the ability to run such appeals and thereby help to avoid repetition of past placement injustices. It is therefore imperative that all States and Territories enact the Recommendation into legislation in relation to:
Pressure could be brought to bear on the States and Territories to do the above because of their public undertakings to implement the RCIADIC recommendations.
The modern concept of adoption in Australian law requires a person to take, through a legal process, the child of another person as their own, and so to gain all the legal rights and duties of a natural parent.[4] It involves the total extinction of one set of legal rights, between a child and its birth parents, and the substitution of another set of legal rights, between the child and adoptive parents. Adoption is a fairly recent statutory invention and does not derive from common law.
Powers with respect to adoption were not expressly given to the Commonwealth in its original grant of constitutional powers[5] and so adoption is deemed to be, almost exclusively, a State matter. The only qualification is that it could be subject to the “races power”[6] and the “external affairs power”[7] should the need arise.
The head of Constitutional power in relation to children of dissolved marriages refers to 'custody and guardianship of children'. Both terms are well defined concepts at common law. They do not encompass 'child placement', which is held to be an issue of 'child welfare'. 'Child welfare', in the legal rather than the social services sense, again is primarily a state and not a Commonwealth power.[8]
Although Commonwealth powers concerning the 'custody and guardianship' of children formerly applied only to children of marriages contracted according to the Marriage Act 1961 (Cth), most States and Territories except Western Australia, by a special grant of powers, conferred power on the Commonwealth, between 1976 and 1987, to legislate with respect to the children of de facto unions.[9] Children of Aboriginal customary law marriages are deemed to be children of de facto unions.
The full extent of this power is uncertain, but current understanding is that it does not include power to make laws with respect to 'child welfare. Consequently, it is currently understood that the Commonwealth cannot enact laws with respect to 'child placements' in a child welfare context under its heads of power relating to marriage and to children of dissolved marriages. As none of the placement of adoption laws of the States or Territories fall below the minimum standard for adoption and placement set out in the International Convention on the Rights of the Child,[10] it is doubtful whether the Commonwealth could use its external affairs power to enact legislation to override state legislation.[11]
Ineffective implementation of the ACPP is currently a chief concern among some Aboriginal and Torres Strait Islander communities. SNAICC (Secretariat for National Aboriginal and Islander Child Care) is agitating for the Commonwealth to enact legislation along the lines of the Indian Child Act 1968 (USA). Such an option at this stage might create State resistance to and apprehension at the Commonwealth's intervention into their fundamental powers.[12] It could be broached if ultimately it become necessary for all States to enact Model Codes in line . with the Commonwealth, as has happened with corporations law, and as may soon happen with criminal law. Tentative steps were made towards thinking about the ultimate desirability of a uniform Model child care and welfare legislative code at the recent Sixth National Family Law Conference in Adelaide in October 1994. A paper from the Attorney-General also addressed the issue, recommending referral of all State power relating to de facto marriages to the Commonwealth, and acknowledging, "we are more aware of the particular needs of Aboriginal, Torres Strait Islander and indeed South Sea Islander families".
A better option at this stage, at least to create a platform for future change, would be to pressure all States and Territories to comply fully with Recommendation 54 of the RCIADIC. This could be done through the agency of the Standing Committee of AttorneysGeneral (SCAG), or the Council of Social Welfare Ministers.
A better term might be 'adoptive practice', as the process, as a simple illustration shows, does not sit squarely within the statutory concept of 'adoption':
Torres Strait Islander peoples also distinguish between 'blood-line' adoptions and 'adoption' of persons outside the clan. There is also a practice of non-permanent placement. (See (1994) 66 Aboriginal Law Bulletin 8.)
Recognition of the ACPP should include recognition of aspects of Torres Strait Islander rules relating to customary child care practices, at least as far as 'placements' are concerned. None of the adoptive practices as presently stated appear to violate basic human rights, or procedural or common law norms. It appears desirable for Torres Strait Islander adoptive practices to be schematised simply, and for the principles to receive statutory endorsement,[13] as they constitute a non-controversial set of rules which are fairly easily understood. The Chief Justice of the Family Court recommended this approach.[14]
The need for legal certainty, if the rules are to have legally enforceable effect as Torres Strait Islander peoples seem to want, would require their code to be set out in a fixed form. The fact that the practices also bring about changes in legal rights and duties reinforces the requirement for certainty.
Five States and Territories, in their adoption or placement legislation, define 'Aboriginal' to include both Aboriginal and Torres Strait Islander peoples, using the Tasmanian Dams formula.[15] The Northern Territory simply defines 'Aboriginal' as 'a member of the Aboriginal race of Australia'.[16] It is a matter of concern to Torres Strait Islander peoples that they are not accorded a separate place in the definition section of those acts. Although it would make no difference in law to do so, the issue could be raised at SCAG, or with the Office of Indigenous Affairs, perhaps as part of the Reconciliation agenda.
Torres Strait Islander peoples, by resolution on 21 October 1994 at their Fourth National Seminar/Workshop, intend, through IINA Torres Strait Islander Corporation, to progress independently the issue of statutory recognition for Torres Strait Islander customary adoptive practices.[17]
The pathway to achieving judicial application of the ACPP and Torres Strait Islander adoptive practices, through courageous statutory interpretation and elucidation of the common law alone, will be arduous. Perhaps Australian judges may one day follow their Canadian brethren and assert that custom has always been recognised by the common law. They may then also echo the words of Tindal CJ in 1837, that tortuous elucidation on legal points of evidence of customary law "from time immemorial"[18] is no longer necessary. All that should be required for judicial application is evidence extending "as far back as living memory goes, of a continuous peaceable and uninterrupted user of the custom".[19]
The Commonwealth and the States, in the spirit of Reconciliation, have the ability to shorten this journey, by honouring their public commitment to implement the RCIADIC recommendations. All that is required is the political will to legislate affirmatively on such matters.
Although many issues relating to child placement and adoption fall within State jurisdictions, the Commonwealth could, in the spirit of Reconciliation, at least as far as the jurisdiction of its Family Courts are concerned give some reassurance to Aboriginal and Torres Strait Islander peoples by amending the Family Law Act 1975 (Cth), perhaps as an adjunct to the new Family Law reform bill. These amendments should recognise the ACPP and the application of its customary law content, as well as recognise the ramification of Torres Strait Islander adoptive practices and their consequences in appropriate cases.
The Commonwealth should pressure the States and Territories to honour their public commitment to the findings of the RCIADIC, including the enactments required by Recommendation 54.
[1] ALRC Customary Law Reference, Vol 1, para 349 et seq. The 1991 Atkinson Report on the joint National Review of Aboriginal and Islander Child Care Agencies also recommended a coordinated Australia-wide strategy to implement the ACPP, as did the 1990 Brotherhood of St Lawrence Report Aboriginal Child Poverty, which severely criticised all governments for failing to do so.
[2] See Child (Care and Protection) Act 1987 (NSW), s4(1)(a); Adoption Act 1984 (Vic), s50(2)(c); Adoption Act 1988 (SA), sll(2), and Child Protection Act 1993 (SA), s5; Adoption of Children Act 1994 (NT), s11; and Adoption Act 1993 (ACT), s21. WA withdrew ACPP from its new Adoption Bill. In the forthcoming review of its Children's Services Act 1965, Qld intends to include reference to the ACPP.
[3] IINA is not an acronym, but a Torres Strait Islander word importing the meaning, "we are here".
[4] Bishop, J.M., Australians Legal Words and Phrases, Blackstone Press, 1990, p7.
[5] In Re LSH. ex parte RTF (1991) PLC 91:843, an injunction by the Family Court to prevent an adoption under State jurisdiction was held by the High Court to be beyond the powers conferred on the Family Court, that is, beyond the Constitutional heads of marriages powers, placita (xxi) and (xxii).
[6] Constitution s51 (xxvi).
[8] Child welfare and placement is traditionally a State's power. It is part of the inherent jurisdiction of the courts. The States, with the exception of such powers as they gave to the Commonwealth at Federation, have the same virtually unlimited powers in relation to their citizens as the English Parliament. Those powers' were confirmed conclusively in the Australia Act 1986 (Cth).
[9]NSW, Vic, Tas and, later, Qld in 1991. But see contra view in Secretary, Department of Health and Community Services v J WB & SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 at 258: "... more contemporary descriptions of the parens patriae jurisdiction over infants ... accept that in theory there is no limitation" on the Family Court's inherent 'welfare' jurisdiction relating to children of a marriage.
[10] Articles 20 and 21.
[11] A basic principle in construing Constitutional powers is that legislation based on them must be 'reasonable and appropriate' (McCulloch v Maryland [1819] USSC 5; (1819) 4 Wheat 316 at 421, that is, a Constitutional power cannot be used to enact laws which exceed the limits set by the grant of that power.
[12] Even if the Commonwealth were to use its 'races power'.
[13] In State and Territory legislation, and possibly in the Commonwealth's Family Law Act, if the Commonwealth is prepared to use its 'races power' to enact amendments relating to family law issues determined in its own courts.
[14] Nicholson CJ, address to the Fourth National Torres Strait Islanders Conference, Sydney University, 16-21 October 1994.
[15] The definition, used in most legislation as standard, and found in the High Court case Commonwealth of Australia and Anor v State of Tasmania (1083) [1983] HCA 21; 46 ALR 625 at 817 ('the Tasman Dams case'), is: "By Aboriginal Australian, I mean ... a person of Aboriginal descent, albeit mixed, who identified himself as such and who is recognised by the Aboriginal community as an Aborigine." (Deane J.)
[16] Adoption of Children Act 1994 (NT), s4.
[17] Report to Queensland Government of Legal Recognition of Torres Strait Islander Customary Adoption, by Paul Ban, was presented to the Qld Government earlier this year. Reform is still awaited.
[18] Bastard v Smith (1837 ), 2 M and Rob 129 at 136; [1837] EngR 942; 174 ER 238.
[19] Ibid.
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