Recognition of Aboriginal adoption practices and perspectives 1788-present
This subject examines the extent to which Australian adoption laws and policies have recognised Aboriginal customary practices and perspectives.
Adoption is often considered ‘alien’ to Aboriginal values and philosophies because the traditional worldview places responsibility for childrearing on the community as a whole (). This is in contrast to contemporary and often non-Aboriginal standpoints, where the responsibility of a child is placed primarily with their biological parents.
When it was first enacted, the Adoption Act 1965 (NSW) () did not mention Aboriginal people or recognise Aboriginal childcare practices. In parliamentary debate, it was stated that the provisions were ‘designed to afford greater protection for the adopted child’ ().
In contrast, the Bringing them Home Report (1997) summarises an Aboriginal viewpoint of adoption: ‘Adoption is alien to our way of life. It is a legal status which has the effect of artificially and suddenly severing all that is part of a child with itself. To us this is something that cannot happen even though it has been done’ ().
Notwithstanding this Aboriginal perspective, it was not uncommon in the 20th century for an Aboriginal child to be taken from their mothers without their consent and adopted into a non-Aboriginal family (see SUB0232).
In 1976, during the first Australian Adoption conference, Aboriginal activist Molly Dyer raised a number of problems associated with adopting and fostering Aboriginal children to non-Aboriginal families, including that ‘[p]lacements would commonly break down and this was increasingly correlated with the child or young person becoming involved in crime, substance abuse, and incarceration’ ().
In 1977, the Royal Commission on Human Relationships recommended that adoption authorities make greater efforts to employ Aboriginal people to assist in the adoption of Aboriginal children ().
The Commission also recommended that Aboriginal children be adopted by Aboriginal families, as this would be the best way to keep the child connected to their culture.
In 1986, the Australian Law Reform Commission (ALRC) reported on Aboriginal customary law and found there was inadequate consideration of Aboriginal customs in Australian legislation, including adoption. The ALRC stated that the ‘placement of Aboriginal children outside their family or community is in many cases visible evidence of the failure to recognise Aboriginal child-care arrangements’ and that child welfare law and practices had been ‘failing to recognise Aboriginal patterns and traditions of child care’ ().
In 1997, the ALRC recommended that a Cultural Heritage Placement Principle ‘apply to every placement for adoption so that an Aboriginal child be placed with people of the same cultural heritage, of a similar cultural heritage or a different cultural heritage but with capacity to assist the child with a healthy and positive cultural identity’ ().
This view was noted by the NSW government in its submission to the Human Rights and Equal Opportunity Commission in 1998 ():
Adoption, as it is currently defined, is an unknown institution in Aboriginal customary law. The separation of children from natural families and the absolute transfer of parental rights are incompatible with the basic tenets of Aboriginal society.
The preference to not subject Aboriginal children to adoption has been given some acknowledgement in contemporary laws. Notably, the Adoption Act 2000 (NSW) () implemented a child placement principle for Aboriginal children so that Aboriginal people are given the opportunity to participate as much as possible in decisions relating to the adoption of Aboriginal children.
In 2017, for example, of the 17,664 Aboriginal children in out-of-home care, 4 children were adopted (). However some still argue that the law still does not recognise customary kinship practices ().
Aboriginal adoption numbers may nevertheless increase in the 21st century, due to the 2018 changes to the Adoption Act 2000 (NSW) (see SUB0235). The changes simplify the adoption process, meaning that more Aboriginal children could be adopted into another family.
The changes were strongly opposed by Labor and the Greens, as well as Absec, the peak body for Aboriginal children and families in NSW. This opposition reflects the fact that adoption represents a ‘final matter’ for the child, and essentially strips away safeguards to allow an Aboriginal child to connect with their ‘wider family and culture’ () and concerns about the risk of ‘another Stolen Generation’, since parents do not need to give consent to adoption ().
The law and policy in this subject is accurate as of 1 June 2023.