Hackett (a pseudonym) v Secretary, Department of Communities and Justice

[2020] NSWCA 83

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83
Hearing dates:	6 April 2020; 9, 22 April (written submissions)
Decision date:	06 May 2020
Before:	Basten JA at [138]; Leeming JA at [1]; McCallum JA at [176].
Decision:	1. Grant leave to appeal confined to proposed ground 1A. 2. Direct the appellant to file a notice of appeal which conforms with proposed ground 2 of the draft notice of appeal, and otherwise dispense with the requirements as to service. 3. Direct the Secretary to apply to the Equity Division within 28 days of today to review orders 3 and 4 made on 16 July 2019 and the adoption plans the subject of those orders. 4. Otherwise dismiss the appeal.
Catchwords:	ADOPTION – “Aboriginal child” - whether necessary to identify ancestor who was a member of Aboriginal race, identified as Aboriginal and was recognised by Aboriginal community - consideration of text, context and purpose of s 4 of Adoption Act 2000 (NSW) - sufficient to show child was descended from people who lived in Australia before British colonisation - Fischer v Thompson (Anonymised) [2019] NSWSC 773 disapproved  APPEAL - leave - procedural fairness - applicant alleged submissions supplied after hearing not considered by primary judge - significance of failure to apply to primary judge and delay - whether proper outcome could be reached without a rehearing - leave refused
Legislation Cited:	Aboriginal Land Rights Act 1983 (NSW), s 4 Aboriginal Land Rights Amendment Act 2001 (NSW), Sch 2, cll 2.1, 2.2 Aborigines Act 1969 (NSW), s 2 Aborigines Protection Act 1909 (NSW), s 3 Aborigines Protection (Amendment) Act 1918 (NSW), s 2 Aborigines Protection (Amendment) Act 1936 (NSW), s 2 Adoption Act 2000 (NSW), ss 4, 8, 32, 34, 35, 46, 52, 54, 90, 92, 101, 118, 126 Children and Young Persons (Care and Protection) Act 1998 (NSW), s 5 Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW) Children (Care and Protection) Act 1987 (NSW), ss 3, 87 Constitution, s 51(xix) Evidence Act 1995 (NSW) Indian Child Welfare Act 25 USC, §§1902, 1915(a) Interpretation Act 1987 (NSW), s 7 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 56.13 Vagrancy Act 1902 (NSW)
Cases Cited:	Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 DFaCS and Boyd [2013] NSWChC 9 Donnell v Dovey (2010) 237 FLR 53; [2010] FamCAFC 15 Ealing London Borough Council v Race Relations Board [1972] AC 342 Fischer v Thompson (Anonymised) [2019] NSWSC 773 Gail and Grace [2013] NSWChC 4 Gibbs v Capewell (1995) 54 FCR 503 Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Shaw v Wolf (1998) 83 FCR 113; (1999) 163 ALR 205 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1; [1983] HCA 21 Twist v Council of the Municipality of Randwick (1976) 136 CLR 106 Williams v Central Bank of Nigeria [2014] AC 1189; [2014] UKSC 10
Texts Cited:	Australian Law Reform Commission, Essentially Yours, Protection of Human Genetic Information, Report 96 Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report 31, AGPS, Canberra Bailey, D and L Norbury, Bennion on Statutory Interpretation (7th ed, 2018, LexisNexis Butterworths) de Plevitz and Croft, “Aboriginality under the Microscope: The Biological Descent Test in Australian Law” (2003) 3(1) QUTLJJ 104 Ganter, R, “Turning Aboriginal – Historical Bents” in 7 borderlands e-journal, Vol 7, No 2, 2008 Human Rights and Equal Opportunity Commission, Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997) Legislation Review Unit, Department of Community Services, Review of the Children (Care and Protection) Act 1987 (December 1997) Legislative Assembly, Parliamentary Debates (Hansard), 21 June 2000, p 7384 New South Wales Law Reform Commission, Adoption Act 1965: Review of the Adoption of Children Act 1965 (NSW) (1997) New South Wales Law Reform Commission, The Aboriginal Child Placement Principle (March 1997) Royal Commission into Aboriginal Deaths in Custody, National Report (1991), Commonwealth of Australia, Canberra Social Policy Group, Commonwealth Parliamentary Library, Defining Aboriginality in Australia (February 2003) Whittaker A, “White Law, Blak Arbiters, Grey Legal Subjects: Deep Colonisation’s Role and Impact Defining Aboriginality at Law” (2017) 20 Aust Indigenous L Rev 4
Category:	Principal judgment
Parties:	Hackett (a pseudonym) (Applicant) Secretary, Department Communities and Justice (Respondent)
Representation:	Counsel: P Herzfeld (Applicant) M England, T Epstein (Respondent)   Solicitors: Legal Aid NSW (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	2019/332364
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2019] NSWSC 908 Date of Decision: 16 July 2019 Before: Stevenson J File Number(s): A136/2019

HEADNOTE

[This headnote is not to be read as part of the decision]

The respondent commenced proceedings in 2018 seeking an order for the adoption of a teenaged child. That order was made in July 2019. The adoptive mother had cared for the child for most of her life. The applicant, who was the child’s biological father, opposed the adoption order.

The Adoption Act 2000 (NSW) requires the Supreme Court to apply certain “Aboriginal child placement principles” in making an adoption order if the child the subject of the order is an “Aboriginal child”. The Adoption Act defines “Aboriginal child” as meaning “a child descended from an Aboriginal” and as including a child determined by the Court to be an Aboriginal if the Court is satisfied that the child “is of Aboriginal descent”. At the hearing, it was common ground that the child was an “Aboriginal child” for the purposes of the Adoption Act. However, it was also common knowledge that on the day after the hearing, another decision would be delivered which might alter the parties’ understanding of who is an “Aboriginal child” for the purposes of the Adoption Act. The effect of that decision was that a child would only be an “Aboriginal child” if it was possible to identify an ancestor who met the definition of “Aboriginal” under the Act by satisfying the three-limb test of being a member of the Aboriginal race of Australia, identifying as an Aboriginal, and being accepted by the Aboriginal community as an Aboriginal.

The parties and the primary judge proceeded on the basis that this interpretation of “Aboriginal child” was correct, and the primary judge invited the parties to provide further written submissions on whether, applying this interpretation, the child was an “Aboriginal child”. The respondent provided submissions contending that the child was not an “Aboriginal child”. The applicant provided submissions slightly late, and after the primary judge had notified the parties that judgment was due to be delivered. The primary judge did not refer to the applicant’s submissions in his decision. In the result, the primary judge was not satisfied on the evidence that the child was an “Aboriginal child”.

The applicant sought leave to appeal to the Court of Appeal and the application was heard concurrently with the argument on the appeal.

The issues in the application were:

i) Whether the child was an “Aboriginal child” for the purposes of the Adoption Act.

ii) Whether the applicant had been denied procedural fairness.

The Court held, granting leave to appeal in part:

As to issue (i), per Leeming JA (Basten JA agreeing in part at [145], McCallum JA agreeing at [176]):

1. The child was an “Aboriginal child” for the purposes of the Adoption Act in circumstances where evidence established that she was descended from the people who lived in Australia before British colonisation: at [89]-[90]. This conclusion followed from analysis of extrinsic materials prior to the Adoption Act’s enactment, which pointed to a broad purpose of including a descent-based extension to the definition in order that more children would answer the description, from the additional, extending language of the definition’s second limb in the text of s 4 of the Act, and from the pre-existing law at the time of the Adoption Act’s enactment, which defined “Aboriginal child” by reference to descent and from which the Adoption Act was not intended to depart: at [79], [83]-[88].

2. The second limb of the definition of “Aboriginal child” in s 4 of the Adoption Act empowers the Court to determine that a child who qualifies as being “of Aboriginal descent” is an “Aboriginal child”, even if the child does not satisfy the three-limb test and even if no ancestor of the child satisfies the three-limb test: at [57], [60], [86]. The Court has discretion whether or not to exercise that power; accordingly, children of Aboriginal descent, however remote, are not automatically “Aboriginal children” by reason of s 4(2) of the Adoption Act: at [82].

Fischer v Thompson (Anonymised) [2019] NSWSC 773 disapproved. Gibbs v Capewell (1995) 54 FCR 503 referred to.

As to issue (i), per Basten JA (McCallum JA agreeing at [176]):

3. The reference in s 4 of the Adoption Act to a child of “Aboriginal descent” is not the same as a child “descended from an Aboriginal”. Unlike the latter, the former expression does not require that the forebear be an “Aboriginal person” as defined by the three-limb test: at [153]-[154]. The structure of s 4 of the Adoption Act suggests that a degree of flexibility was intended to be built into s 4(2), and in making a determination under that subsection, the Court is empowered to consider a broad range of material, including matter which would not be admissible under the Evidence Act 1995 (NSW): at [173]-[174].

4. The evidence before the primary judge bearing upon the child’s Aboriginality could not properly have been assessed without reference to the kind of circumstances in which, in the past, it was commonplace to deny Aboriginality: at [165]. The objective evidence of Belinda’s Aboriginal ancestry should have been sufficient to conclude that Belinda was an Aboriginal child: at [167].

As to issue (ii), per Basten JA (McCallum JA agreeing at [176]):

5. The applicant should have explained why the opportunity to put in further submissions was not availed of in time, and could have sought to vary the primary judge’s orders when the apparent procedural unfairness was identified. However, it could be inferred that the applicant’s late submissions were the product of an expectation that the parties’ common ground at the hearing would be maintained, and it was not clear whether, and if so when, the applicant understood that his submissions had been disregarded: at [140]-[143]. Although a party should not lightly be precluded from agitating a complaint of procedural unfairness, in the present proceeding the proper outcome could be obtained without the need for a further hearing: at [144].

As to issue (ii), per Leeming JA:

6. The applicant had not shown that this was a case where he should be granted leave to appeal complaining that he had been treated unfairly in circumstances where he had the chance to ask for his submissions to be taken into account before the primary judge, where there had not been full disclosure of the circumstances in which the alleged denial of procedural fairness occurred, and where there had already been substantial delay: at [28], [128]-[133].

Judgment

1. LEEMING JA: The most important person in this appeal is a young teenaged girl. Because she was assumed into care when she was about six months old, I may not name her or anything that identifies her. “Belinda” is not her real name, but it seems better than calling her “the child” or by a letter. She is a real person who has been the subject of litigation for much of her life, including these proceedings for the past two years. Belinda may attempt to read these reasons, now or in the future. They explain why I have concluded that the adoption order made on 16 July 2019 and the order changing her name should remain in place.

2. Belinda’s biological father has argued that those orders should be set aside, but I have not accepted most of his arguments. The arguments and the law are technical and lengthy, and are not readily comprehensible by someone who is not a lawyer. However, if there is one thing I would wish Belinda to understand in addition to the outcome of the appeal, it is that her biological father should not be criticised for making the arguments he has made. He was entitled as a matter of law to do so, he made it plain that he accepted that the adoptive mother had “done a good job in raising [his daughter]”, and did not seek any order that would result in her ceasing to reside with her. I do not doubt the conclusion reached by the judge who made the adoption order last year, which was that the father was trying to re-establish a relationship with his daughter.

Overview

3. Belinda’s adoptive mother is the woman who has cared for her continuously, as a daughter, since she was around seven months old. She has not seen her biological mother or her biological father for more than seven years. It is not necessary to describe the circumstances which led to Belinda being assumed into care. Her adoption was proposed by the Secretary, supported by the adoptive mother and by Belinda herself after she turned 12. It was opposed by Belinda’s biological father, who also cannot be named (“Hackett” was the next on a list of some 5,000 pseudonyms prepared years ago in my chambers).

4. Certain exceptions aside, a child who is less than 12 years old cannot be adopted without the biological father’s consent. The consent of the biological father is not required if a child is 12 or more years of age and of sufficient maturity to understand the effect of giving consent, so long as the child has been cared for by the proposed adoptive parent for at least two years. However, in such a case, which was Belinda’s position, the biological father is entitled to be joined as a party and to be heard: see Adoption Act 2000 (NSW), ss 52(a), 54(1)(c) and (2) and 118.

5. Belinda’s biological father relied on s 90(3) of the Adoption Act which provides:

“The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.”

6. Instead of an adoption order, Belinda’s biological father contended for an order giving parental responsibility for Belinda to the adoptive mother, as authorised by s 92 of the Adoption Act, because it had not been shown that an adoption order was clearly preferable in Belinda’s best interests.

7. The primary judge was sensitive to what was driving the dispute, the differences between the two orders which were being argued, and the test of “clearly preferable in the best interests of the child” to be applied. After reproducing some unchallenged and upsetting evidence as to the circumstances in which contact between father and daughter came to an end, his Honour said the following:

“I accept that [the father] is sincerely trying to re-establish a relationship with [Belinda]. He is having supervised contact with [Belinda’s] younger sister, ... But [Belinda] is adamant, at the moment, that she does not wish to see [the father]. With some encouragement from [the adoptive mother], that may change over time. Hopefully [the father] can find within himself the patience and perseverance to persist with his efforts to establish contact, even if there is no positive response from [Belinda] to those efforts in the short term. Time will tell.

What I think is clear is that the making of an adoption order now will not, itself, affect [the father’s] prospects of resuming contact with [Belinda] at some point in the future.

On the other hand, there are many factors pointing, quite decisively in my opinion, to the conclusion that it is clearly preferable that, rather than an order allocating parental responsibility to [the adoptive mother] under s 92, an order be made for adoption.

[The adoptive mother’s] evidence emphasised the security that an adoption order would bring to [Belinda’s] life.

To adopt the words of Brereton J in Adoption of NG (No 2) [2014] NSWSC 680 at [77] to [78] (with adjustments to reflect the circumstances here), in addition to providing certainty and permanence for [Belinda], an adoption order will have the result that:

(a) [Belinda] will be raised in a legally recognised family, rather than remaining a State ward for the duration of her childhood. She will no longer be in ‘out of home care’, but ‘in home care’. The need for departmental intervention in her care and departmental approval for significant decisions will be removed as will the stigma potentially associated with being a State ward;

(b) [Belinda’s] legal status will be brought into conformity with reality. Psychologically and residentially, she is a member of [her adoptive mother’s] family. An adoption order would bring the legal position into line with this. Her membership of the family that she regards as her own would be perfected, providing her with a sense of security and permanent belonging in that family. [Belinda] will be a member of that family, not only during her childhood but for life; and

(c) [Belinda’s] legal name will correspond with that of the family which she lives and identifies. She will be enabled to choose for herself whom she tells of this status, without it being self-evident from her name.”

8. When an adoption order is made, an “adoption plan” may (and in some cases must) also be made. The primary judge ordered that the adoption plans which were in evidence before him be registered. I shall return to this later in this judgment.

9. The Adoption Act does not treat all children alike. The different treatment of children by the Adoption Act is what underlies the entirety of the appeal to this Court.

The significance of being an “Aboriginal child”

10. For most purposes of the Act, a “child” is anyone who is less than 18 years of age; in this respect it contrasts with the Children and Young Persons (Care and Protection) Act 1998 (NSW), which bears many similarities with the relevant parts of the Adoption Act.

11. For the purposes of the Adoption Act, either a child is, or is not, an “Aboriginal child” or a “Torres Strait Islander child”. Similarly, for the purposes of the Children and Young Persons (Care and Protection) Act, a child or young person is, or is not, an “Aboriginal child or young person” or a “Torres Strait Islander child or young person”.

12. In the case of a child who is an “Aboriginal child”, in addition to having regard to the best interests of the child, the Adoption Act requires the Supreme Court to apply the “Aboriginal child placement principles”. (Likewise, in the case of a “Torres Strait Islander child”, the Court is required to apply the “Torres Strait Islander child placement principles”. There is nothing to suggest that the latter have any application to these proceedings, and I shall say nothing more of them.)

13. Broadly speaking, the effect of the Aboriginal child placement principles is for first preference to be given for the placement of an Aboriginal child with parents from an Aboriginal community to which one or both of the child’s birth parents belong, or if that is not practicable or not in the child’s best interests, for the child to be placed with adoptive parents from another Aboriginal community. If that is not practicable or not in the child’s best interests, and the child is to be placed with non-Aboriginal prospective adoptive parents, then s 35(3) applies:

“(3) Placement of child with person who is not Aboriginal An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent:

(a) has the capacity to assist the child to develop a healthy and positive cultural identity, and

(b) has knowledge of or is willing to learn about, and teach the child about, the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and

(c) has the capacity to help the child if the child encounters racism or discrimination in the wider community,

and that the Aboriginal child placement principles have been properly applied.”

14. Special provision is made in s 35(4) for children with one Aboriginal parent and one non-Aboriginal parent. In that case, the child “may be placed with the person with whom the best interests of the child will be served having regard to the objects of this Act”. Although not developed when the appeal was heard, and arguably outside the grant of leave, the Secretary submitted in supplementary written submissions that s 35(4) operated “as a carveout to the general order for placement specified in s 35(2)”, and was applicable on the basis that there was “no dispute in the present case that, if the child is an Aboriginal child, she has one Aboriginal and one non-Aboriginal parent” (written submissions filed 22 April 2020, para 23). Neither proposition strikes me as self-evidently correct. It is not necessary for me to engage with s 35(4), and to do so would not merely be to venture outside the issues argued in this Court, but it would also be to disregard the way the hearing was conducted before the primary judge. There, the Secretary expressly assumed the burden of establishing that s 35(3) was satisfied (“[i]t is submitted that s 35(2)(c) and (3) apply and that the proposed adoptive parent (a) has the capacity to assist [Belinda] to develop a healthy and positive cultural identity ...”) and further, so far as I can see, no reliance was placed on s 35(4). Further, in oral submissions on appeal, the Secretary positively submitted that the Aboriginal child placement principles were satisfied (transcript 6 April 2020, p 56).

15. Other provisions in the Adoption Act regulate the adoption of children who are Aboriginal children, and children who are not. The detail is not important just now. What matters is that the provisions differ.

16. That said, the differences in the way the Adoption Act treats the adoption of an “Aboriginal child” and the adoption of a child who is not an “Aboriginal child” should not be overstated. The primary consideration in every case is the best interests of the child, and where that clashes with the Aboriginal child placement principles, the best interests of the child have priority. There is overlap between s 35(3), which applies to Aboriginal children, and the provisions which apply to children who are not Aboriginal children. Thus s 32(1), which applies to “placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption”, requires the Supreme Court to have regard to the culture, any disability, language and religion of the child, and “the principle that the child’s given name, identity, language and cultural and religious ties should, as far as possible, be preserved”. Section 32(2) requires account to be taken of

“whether a prospective adoptive parent of a different cultural heritage to that of the child has demonstrated the following—

(a) the capacity to assist the child to develop a healthy and positive cultural identity,

(b) knowledge of or a willingness to learn about, and teach the child about, the child’s cultural heritage,

(c) a willingness to foster links with that heritage in the child’s upbringing,

(d) the capacity to help the child if the child encounters racism or discrimination in school or the wider community.”

17. The similarities between s 35(3) and s 32(2) are obvious. It does not matter whether a child is or is not an Aboriginal child – in either case the Supreme Court is required to consider the cultural heritage of the prospective adoptive parent and whether he or she will assist in the preservation of the cultural heritage of the child.

18. But nonetheless where the Aboriginal child placement principles apply, those principles give a measure of primacy to the preservation of Aboriginal cultural heritage, in particular by requiring the adoptive parent to be from an Aboriginal community if that is possible. They are a law which responds to the loss of cultural heritage which occurred when many children were taken into households and other environments which did not share that heritage. As I shall explain below, in the case of “Aboriginal children” this mostly occurred by placing children in care, rather than adoption, and in fact the Aboriginal child placement principles were first developed and formulated in connection with placement in care rather than adoption.

Three important points

19. Three matters should be clarified immediately. First, Belinda’s adoptive mother is not Aboriginal. However, as will be seen below, it was common ground at the hearing that Belinda was an Aboriginal child. Thus evidence was led as to the support the adoptive mother would give to Belinda’s Aboriginal heritage, in order to satisfy the requirements of s 35(3).

20. Secondly, if Belinda is an Aboriginal child, it is by reason of her biological mother, not her biological father. Belinda’s biological father is not Aboriginal. That does not of course prevent Belinda’s biological father from arguing that the orders should be set aside because they disregarded that Belinda was an Aboriginal child.

21. Thirdly, there was and is no suggestion that the Aboriginal child placement principles would lead to Belinda being adopted by parents belonging to any Aboriginal community. That is probably obvious, given where Belinda has lived for all save the first 7 months of her life, but it is decisive on the view I take for the outcome of this appeal.

The tests for determining who is an Aboriginal child

22. Unfortunately, the legal test for who is or is not an “Aboriginal child” was uncertain during the hearing of this matter. In part that is a consequence of the drafting, which is far from clear. In part it is a consequence of the happenstance that the hearing was conducted with the knowledge that another decision would be delivered the following day which might, and in fact did, alter the parties’ understanding of the test. In Fischer v Thompson (Anonymised) [2019] NSWSC 773, it was said that in order for a child to be an “Aboriginal child”, it was necessary to identify an ancestor of the child who was “a member of the Aboriginal race of Australia, and identified as an Aboriginal person, and was accepted by the Aboriginal community as an Aboriginal person.” However, one consequence of the common position at the hearing that Belinda was an “Aboriginal child” was that evidence had been adduced directed to establishing compliance with s 35(3). I shall return to this below.

23. Following delivery of Fischer v Thompson, the parties were content to proceed on the basis that the test identified in that case was correct, even though it was different from what they had previously agreed. The primary judge gave the parties an opportunity to be heard further about the evidence and the new test that he was proposing to apply. The Secretary submitted that under the new test, Belinda had not been shown to be an “Aboriginal child”. The judge accepted that submission, and decided that he was not satisfied by the evidence that Belinda had an ancestor who satisfied that test, and therefore he did not have to apply the Aboriginal child placement principles. The judge made it clear that he was not finding that Belinda was not an Aboriginal child, but that on the evidence before the Court, he was not satisfied that she was. There was no complaint, until the afternoon of the hearing in this Court, that the primary judge had applied the wrong test.

24. The primary judge made two orders formally confirming the paternity of Belinda’s biological father (he had not been named on the birth certificate). Those orders are not challenged. The judge made four other orders. They were orders (a) adopting Belinda as the daughter of the woman in whose household she has lived for almost all of her life, (b) giving Belinda that woman’s surname, and (c) two orders giving effect to two adoption plans concerning what would happen in the future until Belinda turns 18. Belinda’s biological father seeks leave to appeal from those four orders. His appeal was heard concurrently with the application for leave. None of the counsel who appeared in this Court had appeared at first instance.

The appeal and my conclusions

25. The first proposed ground of appeal was a denial of procedural fairness, principally on the basis of the judge’s failure to consider written submissions supplied on the Monday afternoon before judgment was handed down the following Tuesday, rather than by the previous Friday afternoon. The second proposed ground challenges the approach to “Aboriginal child” in Fischer v Thompson. This ground was first raised at the conclusion of Belinda’s biological father’s submissions in this Court, responding to questions raised by members of this Court concerning the reasoning in Fischer v Thompson. The respondent did not oppose the ground being raised, and advised in supplementary written submissions that “[t]he Respondent does not take a position” on whether the construction of s 4(2) in Fischer v Thompson was right or wrong. The respondent went on to identify “a basis upon which the Court could accept that the construction proffered in Fischer v Thompson as to s 4(2) is correct”.

26. Belinda’s biological father asks this Court to determine the second point first, for the good reason that that was a question of law of general importance, warranting a grant of leave. I think he is right about that. The respondent made no submission to the contrary, consistent with his not taking a position on the correct construction. I also think that the decision handed down the day after the hearing of Belinda’s case was wrong insofar as it applied a narrower test of “Aboriginal child”. On the correct test, I think that Belinda is an “Aboriginal child” for the purposes of the Adoption Act, and the parties had been right insofar as that was their common position at the hearing before the primary judge.

27. So far I agree with Belinda’s biological father’s submissions. However, I do not think that he has shown that the judge was wrong to have made an adoption order, or an order giving Belinda a new surname. There are some problems with the adoption plans. Belinda’s adoption plans are important, but the problems can be fixed and that should occur soon.

28. I also do not think that Belinda’s biological father has shown that this is a case where he should be granted leave to bring an appeal complaining that he was treated unfairly. That is partly because of the way his claim has been presented in this Court, and partly because he had the chance, many months ago, to go back to the Supreme Court judge and ask for his submissions to be taken into account. It is also partly because the main point Belinda’s biological father wanted to make was to apply to put on further evidence establishing that Belinda was an “Aboriginal child”, and there is no reason now for that to occur, because Belinda is in fact an “Aboriginal child” for the purposes of the Adoption Act.

29. I explain below why I have reached those conclusions.

The test for “Aboriginal child”

30. Section 4(1) of the Adoption Act contains definitions of “Aboriginal” and “Aboriginal child”:

“Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983.

Aboriginal child means a child descended from an Aboriginal and includes a child who is the subject of a determination under subsection (2).

31. Subsection 4(2) provides:

“Despite the definition of Aboriginal in subsection (1), the Court may determine that a child is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent.”

32. The definition of “Aboriginal person in the Aboriginal Land Rights Act 1983 (NSW) is:

“Aboriginal person means a person who—

(a) is a member of the Aboriginal race of Australia, and

(b) identifies as an Aboriginal person, and

(c) is accepted by the Aboriginal community as an Aboriginal person.”

That was referred to in the submissions as the “three-limb” test. “Aboriginal race” and “Aboriginal community” are not defined. “Race” is an imprecise and much-criticised term, as has long been noted: see for example Ealing London Borough Council v Race Relations Board [1972] AC 342 at 362, cited by Brennan J in The Tasmanian Dam case (1983) 158 CLR 1 at 243; [1983] HCA 21.

33. The main difficulties of construction which arise in this appeal may be summarised by the following:

1. How is the definition of “Aboriginal person” in the Aboriginal Land Rights Act applied when it is incorporated by reference as the definition of “Aboriginal” in the Adoption Act?

2. What significance, if any, flows from the references to “descended from an Aboriginal” and “Aboriginal descent” in s 4(1) and (2), bearing in mind the definition of Aboriginal picks up a definition which is based on membership of the “Aboriginal race of Australia”?

3. What extra work, if any, is to be given to the words “and includes a child who is the subject of a determination under subsection (2)” in s 4(1) and the whole of s 4(2), over and above what is achieved by “Aboriginal child” meaning “a child descended from an Aboriginal”?

34. In Fischer v Thompson, it was held that under those provisions it is necessary to show that a child has an ancestor who satisfies the three-limb test of race, identification and acceptance in the Aboriginal Land Rights Act. Sackar J’s conclusion was expressed as follows:

“[207] It is clear that by reason of s 4(1) and s 4(2), descent is sufficient, for a child to be an Aboriginal child for the purposes of the Act. Further support for this position can be taken [from] the New South Wales Law Reform Commission Report No 81, which was used as a basis to reform the adoptions in NSW. It is clear that there was concern that a three limbed test would be far too onerous for children to meet, for example, it is clear that very young children cannot reasonably be said to ‘identify’ with any particular cultural background.

[208] I am satisfied that as I have said whilst descent is sufficient under s 4(1) and s 4(2) to making a finding that a particular child is an Aboriginal child for the purposes of the Act, the child must still be descended from an Aboriginal, meaning an Aboriginal as defined, which brings into stark relief the tripartite requirement.

...

[210] There was significant discussion as to the true meaning of s 4(2). As I have noted above, it appears to me from reading the whole of s 4, that descent is sufficient under ss 4(1) and 4(2). The Secretary emphasised as I understand it the term ‘may’ and stated that this allowed discretion on the part of the Court to make a determination of Aboriginality, if I understood the argument correctly. There was some concern, that the Court should maintain this discretion, because of the significant obligations placed on the Secretary and the likely large number of children potentially captured by this definition. I do not agree with this proposition. What s 4(2) does, is to permit the Court to determine a child is Aboriginal on the basis of descent alone, but as I have said, the child must still be a descendant of an Aboriginal who meets the test. It is not a question of discretion, it simply gives the Court jurisdiction where relevant, to determine a child is Aboriginal, not having satisfied the definition of Aboriginal as otherwise defined.”

35. While the construction of “the Court may determine” in s 4(2) as conferring a power is correct, I respectfully think that the more limited test is incorrect. I have four main reasons for this.

1. The first is textual: the construction gives no work to the second limb of the definition of “Aboriginal child” or to s 4(2).

2. The second is contextual. It pays no regard to the extensive work which was done in the three years between the Law Reform Commission Report to which his Honour referred, and the enactment of the Adoption Act. That work discloses the source of the words which the construction above leaves with no work to do.

3. The third is purposive. The purpose of the additional words in s 4(1), and of s 4(2), was to expand the class of children who would be “Aboriginal children”. A construction which promotes that purpose should be preferred.

4. The fourth turns on the pre-existing law. When s 4(2) is considered carefully, it may be seen to have a distinct role, preserving a descent-based limb of the definition, which had been applied to the adoption of Aboriginal children for many years prior to 2000.

36. I should say immediately that it appears that Sackar J was not assisted by submissions from any of the parties on many of the matters I have relied upon.

Statutory text

37. The starting point is the enacted text. This is more complicated than it may at first seem. It is helpful at the outset to expose that complexity.

38. First, the definition of “Aboriginal child” refers to “descended from an Aboriginal” and s 4(2) refers to the child being “of Aboriginal descent”. The words “descended” and “descent” would seem to have nothing to do with identification or acceptance. That recalls the biological aspect of the first limb of the three-limb test which is expressed in terms of race. Yet a different term has been used, and very often when a statute uses a different term, there is a different legal meaning.

39. Secondly, the term “Aboriginal” which is picked up by the definition of “Aboriginal child” is itself defined, but by reference to a different defined term, namely, “Aboriginal person”, in a different statute.

40. Thirdly, the word “Aboriginal” is used in different ways in the Adoption Act. The word is a defined term, and the definition presupposes that it is a noun.

41. However, the word “Aboriginal” in the Aboriginal Land Rights Act is an adjective. That appears not just in the definition of “Aboriginal person” in s 4 reproduced above, and in the terms it contains (“Aboriginal race” and “Aboriginal community”), but also in other definitions in that section such as “Aboriginal owners”, “adult Aboriginal person” and indeed in the title of the Act.

42. This distinction between noun and adjective has been recognised by the Legislature. The definition of “Aboriginal” in the Adoption Act has altered. When originally enacted in 2000, s 4(1) provided:

“Aboriginal has the same meaning as in the Aboriginal Land Rights Act 1983.”

43. The additional words “Aboriginal person has” were added by the Aboriginal Land Rights Amendment Act 2001 (NSW), Schedule 2, cl 2.1, so as to produce the current definition:

“Aboriginal has the same meaning as Aboriginal person has in the Aboriginal Land Rights Act 1983.”

44. That recognised the distinction, perhaps originally overlooked, between the use of “Aboriginal” as an adjective in the 1983 Act and as a noun in the Adoption Act. The same change was made to the identical definition of “Aboriginal” in s 5 of the Children and Young Persons (Care and Protection) Act 1998: see cl 2.2 of the same Schedule. It suggests that the Legislature was sensitive to the differences between noun and adjective – between “an Aboriginal” and “an Aboriginal person”. This is why “Aboriginal child” is defined to mean a child descended from an Aboriginal and includes a child whom the Court determines is an Aboriginal.

45. Exceptionally, s 8(1)(f) requires regard to be had to the Aboriginal child placement principles “if the child is Aboriginal”. Mr Herzfeld submitted that this was an oversight, and that it should have read “if the child is an Aboriginal child”. The respondent did not disagree. I think he is right. My conclusion is strengthened by s 90(1), which closely corresponds with s 8(1), and in particular s 90(1)(e), which asks “if the child is an Aboriginal child”.

44. Section 8(1) of the Adoption Act relevantly provides:

(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles—

(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,

...

(f) if the child is Aboriginal—the Aboriginal child placement principles are to be applied ...”

47. Section 90(1), which governs the making of an adoption order, relevantly provides:

“(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied—

(a) that the best interests of the child will be promoted by the adoption, and

...

(e) if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied ...”

48. The textual and structural similarities between these two subsections are obvious.

49. It is necessary to give meaning to the definition of “Aboriginal” in the Adoption Act, which refers to the definition of a different term in another Act. Ordinarily, in cases where there is a “referential definition” (the term used by Francis Bennion – see now D Bailey and L Norbury, Bennion on Statutory Interpretation (7th ed, 2018, LexisNexis Butterworths), p 477), one simply applies the legal meaning in the earlier statute to the use of that term in the later statute: Williams v Central Bank of Nigeria [2014] AC 1189; [2014] UKSC 10 at [50]. But bearing in mind that the defined term is “Aboriginal” but the definition which is used is of “Aboriginal person”, the Adoption Act is to be approached as if it contained the following definition (which is that taken from the Aboriginal Land Rights Act but replacing references to “Aboriginal person” by “Aboriginal”):

“Aboriginal means a person who—

(a) is a member of the Aboriginal race of Australia, and

(b) identifies as an Aboriginal, and

(c) is accepted by the Aboriginal community as an Aboriginal.”

50. The discussion of nouns and adjectives above may seem very artificial. But it is necessary, in my view, in order to understand the definition of “Aboriginal child”, and the nuances in the parties’ submissions.

51. The first difficulty is that the defined term “Aboriginal child” itself uses the word “Aboriginal” as an adjective. That is capable of giving rise to a question as to the relationship with the different definition of “Aboriginal” which immediately precedes it. That is potentially significant, because one explanation for the problematic s 4(2) is that it is enacted merely for an abundance of caution, to ward off a submission that an Aboriginal child had to satisfy the three-limb test from the Aboriginal Land Rights Act.

52. Most importantly, the definition of “Aboriginal child” in s 4(1) contains two limbs. It takes the form of a “means and includes” definition, of which form the High Court has said that:

“As a general proposition, the adoption of the definitional structure ‘means and includes’ indicates an exhaustive explanation of the content of the term which is the subject of the definition, and conveys the idea both of enlargement and exclusion. In doing so, the definition also may make it plain that otherwise doubtful cases do fall within its scope”: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145; [2008] HCA 45 at [32] (citations omitted).

53. I think one thing is clear. There is no requirement in order for a child to be an Aboriginal child for the child to have a specified proportion of genetic inheritance. If for example seven great grandparents of a child were Europeans or Chinese, and the eighth was an Aboriginal as that term is defined, then the child is an “Aboriginal child” as that term is defined. It is also clear that that will be so even if none of the child’s parents or grandparents identified as, or was recognised as, Aboriginal.

54. The respondent submitted, as part of his basis for accepting the construction in Fischer v Thompson that this result tended against Belinda’s biological father’s construction. It was said:

“The consequence of the Applicant’s proposed construction of s 4(2) would be that the Aboriginal child placement principles in s 35 would apply to the adoption of any child where one distant ancestor was identified as an Aboriginal person, despite subsequent generations not self-identifying, not being accepted by the Aboriginal community as an Aboriginal person, or both.”

55. I disagree. The Secretary’s submission is directed to s 4(2) and the inclusive limb of the definition of “Aboriginal child”. But the first limb of that definition, namely, “means a child descended from an Aboriginal”, has the consequence that a child who for generations has no ancestors who identify as Aboriginal or have been accepted by any Aboriginal community is nonetheless an “Aboriginal child”. I do not see how the child in the example I have given above, with a single Aboriginal great grandparent, is not “a child descended from an Aboriginal”. If this be a consequence which (as the Secretary’s submissions imply) this Court should strain to avoid, then it is not a consequence of s 4(2). It is a consequence of the straightforward language of the first limb of the definition of “Aboriginal child”.

56. However, another thing is much less clear. Although anyone who is “a child descended from an Aboriginal” is undoubtedly an “Aboriginal child” because he or she falls within the first limb of the definition, the definition also contains a second, inclusive, limb. Subsection 4(2) empowers the Court to determine that a child “is an Aboriginal for the purposes of this Act if the Court is satisfied that the child is of Aboriginal descent”. What does s 4(2) achieve? What is the legal meaning of “Aboriginal descent”?

57. Those questions are quite hard to answer, in part because of the word “Aboriginal”. It is used three times in the same sentence in s 4(2), in very different ways.

1. The first is in the opening words “Despite the definition of Aboriginal in subsection (1)”. That requires the Court to disregard the definition of that term, where it is defined as a noun.

2. The second confers power on the Court to “determine that a child is an Aboriginal”. The indefinite article “an” makes it clear that the word “Aboriginal” is once again used as a noun. It is clear that this is a power to determine that a child who is outside the three-limb definition is nonetheless an “Aboriginal child”.

3. The third asks whether the Court is satisfied that “the child is of Aboriginal descent”. There, “Aboriginal” is used as an adjective.

58. There is a further complicating factor. Where a term has been defined, and a different cognate term is used elsewhere in the Act, there is a presumption that the cognate term bears a corresponding meaning: Interpretation Act 1987 (NSW), s 7. Ordinarily, if the noun “Aboriginal” is defined, one might expect “Aboriginal descent” to bear a corresponding meaning. However, the rule in s 7 will be displaced where the statute evinces a contrary intent, and the words “Despite the definition of Aboriginal in subsection (1)” are a very clear manifestation of contrary intent.

Summary of what emerges from the text

59. Viewed in isolation, there is some attraction to the conclusion reached in Fischer v Thompson, that “of Aboriginal descent” means nothing more than that the child has an ancestor who is an “Aboriginal” as defined, and thus the ancestor was himself or herself of Aboriginal descent, identified as an Aboriginal and was recognised as such. But that would mean that the second limb of the definition of “Aboriginal child” and the whole of subsection (2) have almost no work to do at all, because such a child is a child descended from an Aboriginal, and therefore within the definition automatically, without any determination by a court. It also disregards the displacement of the definition of “Aboriginal” in s 4(2) by that subsection’s opening words.

60. Even so, one possibility is that the second limb and s 4(2) are merely for the avoidance of doubt, and confirm that children who are too young themselves to identify as Aboriginal are nonetheless “Aboriginal children”. One could no doubt also consider cases where, say, a 16-year-old child positively identified as not Aboriginal, despite his or her descent. This approach to construction wards off a submission based on the defined term “Aboriginal child”, where “Aboriginal” is used as an adjective, that imputes to the term the need to satisfy the definition of “Aboriginal” in the Aboriginal Land Rights Act, so as to disqualify a child who is too young to identify as Aboriginal, or who positively rejects such identification. Such children are unquestionably “Aboriginal children”. This approach was favoured by the Secretary (“The opening words to subsection (2) ... merely indicate that the child themselves [sic] need not meet the tripartite definition of Aboriginality”).

61. Another approach leads to the conclusion that “Aboriginal descent” has a broader legal meaning, different from “descended from an Aboriginal”. There is reason to think that in the phrase “the child is of Aboriginal descent”, the word “Aboriginal” does not bear its defined meaning. That is because the opening words of the subsection require the definition to be disregarded, and also because the word is used as an adjective, while the defined term insists that it is a noun. Mr Herzfeld said that the use of the word “descent” meant that:

“In the context of the opening words of s 4(2), the obvious different meaning is that the child’s descent is permitted to be traced from someone who does not meet the three-limb test. Rather, it may be traced from someone who meets only the first limb, ie they are a ‘member of the Aboriginal race of Australia’.”

Legislative history and extrinsic materials

62. Very commonly, litigants resort to legislative history and the extrinsic materials in order to support a construction of a statute favourable to them, and very commonly the legislative history is not especially informative. This litigation is an exception to the rule. The legislative history is illuminating, although it is also quite complex.

63. The definition of “Aboriginal child” has not altered since the Adoption Act was enacted. However, over the previous century there has been a rich history of legislative and policy material which ultimately sheds real light on the question of construction posed by this ground. I have obtained very considerable assistance from a publication of a report prepared by J Lock for the New South Wales Law Reform Commission in 1997, The Aboriginal Child Placement Principle (NSWLRC Research Report 7). This research report is especially helpful because it captures the position just before the enactment of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and the Adoption Act 2000 (NSW).

64. I have also found helpful a report prepared by Dr John Gardiner-Garden in the Social Policy Group within the Commonwealth Parliamentary Library, Defining Aboriginality in Australia (Current Issues Brief no. 10 2002-03). It post-dates the Adoption Act, but only by a couple of years, and speaks to the circumstances in the 1990s.

Early twentieth century definitions

65. In order to understand what was being effected by the definition in the Adoption Act 2000, it is necessary to have regard to the very different definitions which had been used in earlier legislation. Prior to the 1970s, legislation was addressed in terms of “natives” and bloodlines. The Vagrancy Act 1902 (NSW) defined “Aboriginal” to mean “an aboriginal native of New South Wales”. That definition was repealed in 1909 by the Aborigines Protection Act 1909 (NSW), s 3, which provided that “Aborigine” meant “any full-blooded aboriginal native of Australia, and any person apparently having an admixture of aboriginal blood who applies for or is in receipt of rations or aid from the board or is residing on a reserve”. This in turn was replaced in 1918 by a new definition: “‘Aborigine’ means any full-blooded or half-caste aboriginal who is a native of New South Wales”: Aborigines Protection (Amendment) Act 1918 (NSW), s 2. A minor change was made in 1936 to extend the definition to “any full-blooded or half-caste aboriginal who is a native of Australia and who is temporarily or permanently resident in New South Wales”: Aborigines Protection (Amendment) Act 1936 (NSW), s 2. Finally, and, most significantly for present purposes, because it applied to adoptions immediately prior to 2000, in 1969, s 2(1) of the Aborigines Act 1969 (NSW) provided that “‘Aboriginal’ means a person who is a descendant of an aboriginal native of Australia; and ‘Aborigines’ has a corresponding meaning”.

66. These definitions are awkward at best, and many would regard the language as offensive. They have long been criticised. So too has the term “race” which is found in the Constitution, as well as in the Aboriginal Land Rights Act. The position in the 1970s was summarised by Dr Gardiner-Garden:

“Throughout the 1970s a lot of legislation defined an ‘Aboriginal’ as ‘a person who is a member of the Aboriginal race of Australia.’ Though possibly an improvement on ‘blood-quotum’ definitions, the utility of this ‘Aboriginal race’ definition can still be questioned, not least of all on the grounds that there is no such thing as an Aboriginal race. Most scientists long ago stopped using the word ‘race’. Darwin wanted to replace typological thinking with the concept of populations and in the Descent of Man (1874) devoted several chapters to refuting the notion that races were separate species. For the modern anthropologist a ‘human tree’ can do no more than show the frequency (not exclusiveness) of genetic traits in sample populations and more meaningful divisions of humankind are suggested by region, culture, religion and kinship.”

67. In the 1980s, definitions based on race tended to be replaced by the three-limbed definition in the Aboriginal Land Rights Act or definitions similar to it. Dr Gardiner-Garden’s report contains the following passage:

“The 1990s and Problems for the Three-part Definition.

The three-part definition was soon facing bigger problems tha[n] that posed by competition from either the blood-quotum definitions or the tautological race definition. In the 1990s the three-part definition continued to be used administratively and continued to be used by the courts to give meaning to the legislative expression ‘person of the Aboriginal race’ e.g. Justice Brennan’s 1992 Mabo (No 2) judgement:

Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

It was soon apparent, however, that the three-part definition was itself open to different interpretation. When it came to the test, which of the three criteria was the most important? Which criteria, if satisfied, could carry an identification in the event that meeting the others proved problematic?

In the course of the 1990s there were cases when people identifying strongly as Aboriginal would claim that the sources were simply not available to prove their Aboriginal descent but that this should not mean their Aboriginality could not be recognised. On the other hand there were people who argued that Aboriginality should only be recognised with evidence of descent.”

First 1997 report: NSWLRC 81

68. One influence upon the Adoption Act 2000 was the 1997 Law Reform Commission report reviewing the Adoption Act 1965: Review of the Adoption of Children Act 1965 (NSW) (NSWLRC 81). That report was summarised extensively in Fischer v Thompson. Relevantly for present purposes, Sackar J reproduced the following paragraphs dealing with the definition of Aboriginal Children at [65]-[68]:

“Section 9 of the Report specifically dealt with Aboriginal and Torres Strait Islander children. The Report considered in particular the definition of an Aboriginal child. It was recognised that there were particular problems in using the definition of Aboriginal from the Aboriginal Land Rights Act for children for numerous reasons:

Identification as an Aborigine

9.19 First of all, a baby or very young child is not yet able to identify as an Aborigine. The Working Party of the Standing Committee of Social Welfare Administrators recommended that in such a case identification by either parent is to be substituted for self-identity[.] This does not overcome the situations where a birth parent, either Aboriginal or non-Aboriginal, does not declare his or her child’s Aboriginality either intentionally or because he or she does not know the child is Aboriginal.

9.20 An older child who may be capable of identifying as an Aborigine may yet not do so. Older children who are wards of the State and who are subsequently adopted may be unaware of their Aboriginality. If the child has been in non-Aboriginal foster care, and removed from the Aboriginal culture for a long period, the child is unlikely to assert an Aboriginal identity. In some instances, received negative messages may discourage the child from identifying as an Aborigine. As well, children are still forming their identities and may be influenced by the question itself as to their identification as an Aborigine.

Acceptance by community

9.21 Where a birth parent is considering relinquishing his or her child for adoption, it would not be uncommon, in those circumstances, for the birth parent’s community to be unaware, and not made aware by the birth parent, of the child’s birth. This may be because the birth parent has lost contact with his or her community or has deliberately concealed the fact of the birth from the community. Privacy issues may arise which prevent others, such as DOCS or a private adoption agency, making the Aboriginal community so aware. Obviously, if the relevant Aboriginal community is unaware of the child’s birth there can be no acceptance of the child as an Aborigine by that community.

9.22 In that case, a definition of Aboriginality which relies in part on acceptance by the relevant Aboriginal community can operate against the best interests of a child. The child may be of Aboriginal descent and may be identified as Aboriginal by the consenting parent. But if the consenting parent does not, for personal reasons, want to seek the community’s acceptance of the child, one of the essential components of the three-pronged definition is not satisfied. The child is not then defined as an Aborigine.

The Report then considered whether a definition based on ‘race’ may be appropriate for Aboriginal children. The Commission referred to the case of Gibbs v Capewell (1995) 54 FCR 503; (1995) 128 ALR 577 where Drummond J found (at 584):

Although an opportunistic claim by a person to identification as an Aboriginal would not, I think, be regarded by ordinary Australians as sufficient to attract to that person the status of ‘Aboriginal’ even if he could prove he possessed a small quantum of Aboriginal genes, in my opinion a person of limited Aboriginal heritage who nevertheless genuinely identified himself or herself a[s] Aboriginal would be likely to be described by ordinary Australians as an Aboriginal, even without Aboriginal communal recognition as such ...

In my opinion, in order for someone to be described as an ‘Aboriginal person’ within the meaning of that term in the Act, some degree of Aboriginal descent is essential, although by itself a small degree of descent of such descent is not sufficient. A substantial degree of Aboriginal descent may, by itself, be enough to require a person to be regarded as an ‘Aboriginal person’.

The Report then followed:

9.25 Definitions resting on ‘race’ comprise descent as the essential factor but further involve an examination of the degree of descent. If the degree of descent is whole or substantial nothing more is required. If the degree of descent is small, cultural considerations determine whether or not the person is Aboriginal. In contrast, definitions resting on ‘descent’ do not depend on degrees of descent and determine Aboriginality wholly in relation to physical factors. Cultural considerations are not relevant.

9.26 Would a definition which rests on ‘descent’ be too far out of step with the legislative direction taken in three significant pieces of legislation, each of which defines Aboriginality in terms of “race”? It would not for the following reasons:

By relying on factors of ‘race’ in defining Aboriginality, Parliament has already demonstrated that they are prepared to diverge from a three-pronged definition, that is, a definition requiring descent, self-identification and community acceptance. A definition which depends on the single criteria of descent is by no means extreme.

Gibbs v Capewell considered the meaning of ‘Aboriginal person’ in the context of legislation affecting adults. Had the subject matter been legislation affecting the welfare of children, the outcome may have been different.

The points made above in relation to the difficulties of requiring self-identification and community acceptance in the context of the adoption of children continue to be relevant here.

Given the constraints on babies and children identifying themselves as Aboriginal, it could be argued that the meaning which the expression ‘Aboriginal child’ has ‘in ordinary speech’ is a ‘child of Aboriginal descent’.

9.27 The undesirability, from an Aboriginal viewpoint, of analysing degrees of descent for the purposes of defining who is an Aboriginal person is discussed below.

Support for a ‘descent’ definition

9.28 It may be considered by some (non-Aborigines) a difficult question as to whether the offspring of one Aboriginal parent and one non-Aboriginal parent is an Aborigine or non-Aborigine. People who have difficulty with this question may consider that the solution is to have a definition which includes criteria of self-identification and community acceptance. However, a widely held Aboriginal opinion on this issue is clear and is explained by Sommerlad as follows:

The nature of Aboriginal identity is misunderstood by most whites. They fail to understand why a child of mixed parentage should identify as an Aboriginal rather than a white. Social workers are reluctant to place an Aboriginal child who is indistinguishable by his physical appearance with an Aboriginal family since they consider this situation will create identity problems for the child. The major point that whites fail to grasp is that in a racist society an individual is either white or black. One cannot be part black, part white. An Aboriginal child will soon learn from white classmates that he is not one of them, that he is different, and that he belongs to the black community. Even if he looks white. The position taken by Aborigines on this issue is therefore that any child of Aboriginal parentage, no matter what his physical appearance or his degree of Aboriginality is an Aborigine.

9.29 The Aboriginal Children’s Service is one significant Aboriginal body which has expressed the firm view to the Commission in consultation that an Aborigine is, quite simply, a person of Aboriginal descent.

The Report concluded:

9.34 Defining an Aboriginal child as one of Aboriginal descent eliminates the problems discussed above. Furthermore, it accords with the views of many Aboriginal people, as outlined by Sommerlad, and with the views expressed by a number of Aboriginal organisations. In light of the past treatment of Aboriginal families, and in the interests of reconciliation, it is justified to respect those views. It is appropriate in the context of adoption to define an Aboriginal child as one of Aboriginal descent.

Recommendation 70

The legislation should define an Aboriginal child as one of Aboriginal descent.”

69. The draft bill attached to that report contained the following:

“Aboriginal means a person who:

(a) is a member of the Aboriginal race of Australia; and

(b) identifies as an Aboriginal, and

(c) is accepted by the Aboriginal community as an Aboriginal.

...

Aboriginal child means a child who is descended from an Aboriginal.”

70. It will be seen that that proposed definition corresponds to the legal meaning upheld in Fischer v Thompson. However, as will be seen below, that report is not the source of the definition enacted as s 4 of the Adoption Act 2000 (NSW).

Second 1997 report – NSWLRC Research Report 7 (Lock)

71. In March 1997, the New South Wales Law Reform Commission published the research report prepared by Ms Lock on Aboriginal child placement principles. Ms Lock traced the concept to the Indian Child Welfare Act 25 USC §§1902, 1915(a), a statute which commenced in 1978, and said that the principles were first proposed in Australia at a conference of the Council of Social Welfare Ministers in 1979 (see pp 58-59). They were first recognised in legislation in New South Wales in 1987 as s 87 of the Children (Care and Protection) Act 1987 (NSW).

72. In 1997, adoption and fostering of Aboriginal children were governed by different definitions. Fostering was far more common than adoption. Where a child was to be placed in foster-care, the definition in s 3(1) of the Children (Care and Protection) Act 1987, applied, and that in turn picked up the three-limbed definition in the Aboriginal Land Rights Act. There were a handful of children recorded as Aboriginal children adopted at the time. Page 112 of Dr Lock’s report records that in the five preceding years for which data were available, there had been 35 adoptions of Aboriginal children, compared with 644 adoptions of Australian-born children in total in the same period (it is of course quite possible that the statistics understate the true number of Aboriginal children). Section 4.2 of the report states:

“The Department of Community Services (‘DOCS’) as a matter of policy, applies two different definitions of ‘Aborigine’ in relation to fostering and adoption of Aboriginal children. A definition of ‘self-identification’ is applied to Aboriginal children in relation to fostering, whereas a definition of ‘descent’ is applied to Aboriginal children in relation to adoption.”

73. The paper provides a footnote:

“NSW – Department of Community Services Draft Policy Statement: Placement of Aboriginal Children for Adoption (8 May 1987) defines an Aboriginal child as ‘a child at least one of whose parents is Aboriginal as defined by the Aborigines Act of 1969’. An Aboriginal is ‘a person who is a descendant of an aboriginal native of Australia”: Aborigines Act 1969 (NSW) s 2(1). Note that this Act was repealed by the Aboriginal Land Rights Act 1983 (NSW) on 10 June 1983.”

74. The Draft Policy Statement is reproduced as Appendix B of the report and the definition is at p 246. Although titled “draft”, it appears to have been the then-current formulation of policy concerning the adoption of Aboriginal children. It is treated as such in other formal reports on the topic. One example may be seen in para 9.37 of NSWLRC 81. Another may be seen in chapter 22 of the April 1997 report of the Human Rights and Equal Opportunity Commission, Bringing them Home, which refers to the document and states that:

the “practical problems [in other jurisdictions] are not entirely overcome by the alternative approach taken in NSW and the NT. There, self-identification and identification by the relinquishing parent are not aspects of the definition of Aboriginality. Instead a child is Indigenous if descended from an Indigenous person.”

75. Nor is it especially surprising that much greater and earlier attention was addressed to the provisions governing the placement of Aboriginal children in care, as opposed to the provisions governing the adoption of Aboriginal children, which applied to a very small number of children.

76. The Lock report identifies in chapter 7 as the first problem in applying the principle in New South Wales the problem of identifying Aboriginal children. Paragraphs 7.21-7.32 warrant reproduction in their entirety; the references to “the Principle” are to the Aboriginal child placement principle.

Identifying Aboriginal children

7.21 If a child is not identified as Aboriginal then the Principle is not even brought into operation. Identification usually depends on the parent indicating the cultural background of the child when dealing with the NSW Department of Community Services (‘DOCS’) or the non-government organisations ‘NGOs’). Inadequate investigation into the child's cultural background means the Aboriginal origins of the child will remain unknown, the child will be placed without regard to this important factor and will not appear in any statistics regarding the placement of Aboriginal children.

7.22 The problem appears to be not uncommon in NSW. Both non-Aboriginal NGOs and DOCS in NSW have reported cases in which the Aboriginal heritage of a child is not discovered until late in the adoption process or after the child has been placed. Identification of children is also recognised as an important issue by Aboriginal workers within DOCS.

7.23 There is a clear obligation on DOCS to make all reasonable enquiries necessary to determine the cultural heritage of any child. Privacy issues may, in some instances, limit the extent to which DOCS can enquire about the child’s Aboriginality, especially in adoption where the birth mother may want to keep the matter confidential. The involvement of Aboriginal workers, either from the department or Aboriginal organisations, who are mindful of issues of confidentiality, may overcome the reluctance of families to reveal the child’s cultural heritage.

24. Problems in identifying Aboriginal children will exist regardless of the definition used to describe ‘Aboriginal child’. The Commission recommends in the Review of the Adoption of Children Act 1965 (NSW) that a clear obligation be expressed in legislation that any adoption agency or government department must establish to the best of its ability the cultural heritage of a child. The involvement of Aboriginal workers in the department, or close liaison with Aboriginal organisations may assist DOCS in fulfilling this obligation.

Definitions of ‘Aboriginal child’

7.25 Difficulties inherent in the definition of ‘Aboriginal child’ may prevent the effective operation of the Principle.

‘Self-identification’

7.26 Currently the ‘self-identification’ definition outlined in Chapter 5 is used widely in relation to the Principle. Problems arise when this definition is applied to children for the following reasons:

A baby or very young child is not yet able to identify as an Aborigine.

An older child who may be capable of identifying as an Aborigine may not do so if he or she has been removed from Aboriginal culture for a long period, for example, in non-Aboriginal foster care.

Privacy issues surrounding the adoption of Aboriginal children may mean that the relevant Aboriginal community is unaware of the birth of the child, and therefore unable to accept the child as an Aborigine.

7.27 In SA and Queensland the difficulty of identifying a baby or young child as Aboriginal is overcome by requiring that at least one parent identifies the child as such. Legislation in the ACT overcomes this difficulty by defining an ‘Aboriginal child’ as a child who has at least one parent who is Aboriginal. However, these options do not overcome situations where birth parents, either Aboriginal or non-Aboriginal, do not declare the child’s or their own Aboriginal identity either intentionally or because they do not know.

‘A member of the Aboriginal race of Australia’

7.28 This definition has been considered by Drummond J in Gibbs v Capewell to involve more than merely a question of descent. If the degree of descent is small, then Aboriginality would depend on a person’s self-identification and community recognition. This is effectively a mixture of the two definitions of ‘descent’ and ‘self-identification’. Such a definition may therefore be inappropriate for Aboriginal children for the same reasons as a ‘self-identification’ definition is inappropriate.

‘Descent’

7.29 The Commission recommends in Report 81 that where it is found that a child is of Aboriginal descent, then the child should be identified as such and the Principle should apply accordingly.

This approach is broader than the ‘self-identification’ definition and more children would fall within its terms.

7.30 Advantage of a ‘descent’ definition. Applying a ‘descent’ definition to the Principle does not mean that all children of Aboriginal descent will be placed automatically with Aboriginal families. However, it does mean that the issue of the child’s Aboriginal heritage will be explored where previously it may have been overlooked. This is important so that the child is not denied at least the chance of discovering and developing an Aboriginal identity.

7.31 There is also a persuasive argument that socially, a person with Aboriginal blood will be regarded as Aboriginal both by the Aboriginal community and the non-Aboriginal community alike. A definition based on descent also avoids the inappropriate, older definitions based on ‘degrees of Aboriginality’.

7.32 Disadvantage of a ‘descent’ definition. A consequence of applying a ‘descent’ definition is that the Principle may apply to children of Aboriginal descent who have not had any previous experience with Aboriginal culture, and young people of Aboriginal descent who are old enough to form their own cultural identity and do not identify as Aboriginal. These children may have grown up with prejudices against Aboriginal people and the Principle should be applied with sensitivity to their situation. In such cases a placement with a non-Aboriginal family which has the capacity to encourage the child to develop a healthy and positive cultural identity may be appropriate.” (footnotes omitted)

Third 1997 report – Legislation Review Unit (Parkinson)

77. There was a third report in 1997. The Legislation Review Unit of the Department of Community Services published the Review of the Children (Care and Protection) Act 1987. This was prepared by Professor Parkinson. As previously noted, s 87 of the Children (Care and Protection) Act 1987 contained a predecessor of the Aboriginal child placement principles, and accordingly contained a definition of “Aboriginal”, in s 3(1), which provided that it had “the same meaning as it has in the Aboriginal Land Rights Act 1983”. The review addressed the issues arising as follows at p 125:

“Recommendation 6.2

The current definition of Aboriginal in the Children (Care and Protection) Act 1987 should be retained. However, the Children’s Court should also have a discretion to make a finding that a child is Aboriginal where the Court is satisfied that a child is of Aboriginal descent, even if the current definition is not satisfied.

Comment: Section 3(1) of the Children (Care and Protection) Act 1987 states that ‘Aboriginal’ has the same meaning as it has in the Aboriginal Land Rights Act 1983 (NSW). The Aboriginal Land Rights Act 1983 (NSW) defines Aboriginal as a person who:

(a) is a member of the Aboriginal race of Australia

(b) identifies as Aboriginal

(c) is accepted by the Aboriginal community as an Aboriginal.

Consultations and submissions revealed the following problems with this definition:

• Children and young people may be too young to self identify as required by the current definition of Aboriginal.

• The impact of past discrimination and policies means that some Aboriginal people do not openly identify as Aboriginal and may not be known to their Aboriginal community. These people are unable to meet the requirement to identify or be accepted by the community.

Despite these difficulties, the Aboriginal Land Rights Act definition has wide acceptance throughout NSW and should be retained. The problems with the definition could be addressed by providing a discretion for the Children’s Court, so that where there is sufficient evidence to satisfy the Court that a child is of Aboriginal descent, the Court could proceed on the basis that the child is Aboriginal. The discretion may also be exercised by the Court to determine that a child or young person is not an Aboriginal child or young person within the meaning of this Act.”

78. Professor Parkinson’s report did not include draft legislation. However, it seems fairly clear that the new Children and Young Persons (Care and Protection) Act 1998 reflected part of that recommendation. It contained the following definitions:

“5 Meaning of ‘Aboriginal’ and ‘Aboriginal and Torres Strait Islander’

(1) In this Act:

Aboriginal has the same meaning as in the Aboriginal Land Rights Act 1983 and includes a child or young person who is the subject of a determination under subsection (2).

Aboriginal and Torres Strait Islander means people indigenous to Australia and the Torres Strait Islands.

(2) Despite the definition of Aboriginal in the Aboriginal Land Rights Act 1983, the Children’s Court may determine that a child or young person is an Aboriginal for the purposes of this Act if the Children’s Court is satisfied that the child or young person is of Aboriginal descent.”

79. Thus it may be seen that:

1. The source of what has become s 4(2), which qualifies the definition “despite the definition of Aboriginal”, is s 5(2) of the Children and Young Persons (Care and Protection) Act 1998, itself reflecting a concern from the review by the Legislation Review Unit;

2. The suggestion that the discretionary power be available to determine that a child was not an Aboriginal child or young person was not adopted;

3. Evidently the purpose of the additional words which were enacted was to expand the class of children who were “Aboriginal children”.

80. In 2000, as part of the same package of legislation introduced by the same Minister, the Adoption Act 2000 and the Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW) were introduced. Both contained identical definitions of “Aboriginal” and “Aboriginal child”, save that in the latter, the definition was of “Aboriginal child or young person”.

81. There is nothing so far as I am aware in the legislative history which reveals why the Law Reform Commission proposal was superseded by the definitions emerging from the Legislative Review Unit.

82. A final point should be made on s 4(2). The Secretary made submissions under the heading “Is s 4(2) discretionary or empowering?”, favouring a construction whereby a child who was of Aboriginal descent within the meaning of s 4(2) was not automatically an “Aboriginal child”, but was so only if the Court so determined. This aspect of the provision is not complex. The section authorises the Court to make a determination, if it is satisfied that the child is of Aboriginal descent. The second, inclusive limb of the definition only applies if such a determination is made. There is no obligation to make such a determination, and such a determination will only be made if the Court reaches the specified state of satisfaction. I referred to the provision as a “discretionary power” above because that is an accurate statement of the provision: the Court is empowered to make a determination in certain circumstances, which will have consequences for the status of the child, but also has a discretion whether or not to exercise that power. Contrary to the question framed by the Secretary’s written submissions, the distinction whether the provision is discretionary or empowering is unhelpful. It is both. However, children of Aboriginal descent, however remote, are not automatically “Aboriginal children” by reason of s 4(2).

Conclusions on the second ground

83. There is an important question of construction of the definition of “Aboriginal child”. It was not raised before the primary judge, but it is a pure question of law, which is capable and appropriate of determination on appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35. For the reasons which follow, I have concluded that the definition of “Aboriginal child” in Fischer is too narrow, and that there should be a grant of leave to appeal.

84. First, the reasoning in Fischer does not refer to the Lock report, the review of the Legislation Review Unit under Parkinson, and the enactment of the Children and Young Persons (Care and Protection) Act 1998. All these point to a broad inclusive purpose, of including a descent-based extension to the definition, in order that more children would answer the description of “Aboriginal children”. The latter two reports are the source of the problematic second limb of the definition in s 4(1) and of s 4(2).

139. The next issue concerns the failure of the father to seek to vary the orders when the apparent unfairness was identified. As the content of the adoption plan depended upon a finding that Belinda was of Aboriginal descent, it might have been open to the father to seek to have the orders varied on the basis of a different factual finding. It is true that the Uniform Civil Procedure Rules 2005 (NSW) provide that an application to vary a judgment or order can be made within 14 days of the orders being entered: r 36.16. However, it appears that the relevant adoption plan has never been entered, as contemplated by the judge’s orders. It is not even clear that its content has been settled. This aspect of the case should have been sorted out in the Equity Division, as must now occur. But the Secretary, who was the moving party in the Court below and is the authority responsible for dealing with adoption applications, took no steps to regularise the record.

140. The question of reopening therefore turns on whether that was the appropriate course to deal with the failure of the judge to advert to the father’s submissions. It is not clear whether the father understood that the submissions had been disregarded or had been rejected, and, if so, when the relevant understanding arose, if it did. Unless the failure to seek reopening can be seen to involve acquiescence in the course taken by the trial judge, it is not a factor of great weight in considering whether leave should be granted for an appeal.

141. There is no doubt that the delay in resolving this matter caused by the appeal is most unfortunate. Adoption proceedings should always be determined as expeditiously as possible, in the interests of the child and the proposed adoptive parent or parents, as well as other involved parties. Nevertheless, a party should not lightly be precluded from agitating a complaint of procedural unfairness, if there is a reasonably arguable case that that has occurred. As it happens, the proper outcome can be obtained in the present proceeding without the need for a further hearing. On that basis leave to appeal may properly be refused with respect to ground 1.

Ground 1A: “Aboriginal descent”

145. I agree with Leeming JA as to the scope and operation of s 4(1) and (2) of the Adoption Act 2000 (NSW). I would add the following observations.

146. When not applying the statutory language, reference will be made to Indigenous persons, [4] rather than using “Aboriginals” as a noun. It is surprising that only 20 years ago legislation used this identifier. It is associated with colonial era legislation, often used to control members of the Indigenous population or encourage them to assimilate into the European settler community, and is viewed by many people as deeply offensive. A brief history of such usage was recounted by French J in Attorney-General of the Commonwealth v Queensland (Wouters). [5] French J also referred to the Macquarie Dictionary definition of “aborigine” (apparently then current) in the following terms:

“1. one of a race of tribal peoples, the earliest inhabitants of Australia.

2. a descendant of these people, sometimes of mixed blood.

3. the primitive inhabitants of a country; the people living in a country at the earliest period.”

The Macquarie Dictionary definition has since changed to omit the reference to “a race”, and to omit the reference to “primitive inhabitants”. The Dictionary now includes a note which reads in part:

“Usage: The nouns Aborigine(s) and Aboriginal(s) are considered by some to carry negative, even derogatory connotations.”

4.    This phrase is not universally accepted but does reflect the language of United Nations Declaration on the Rights of Indigenous Peoples.

5. (1990) 25 FCR 125 at 145-147.

147. In 1991 the Royal Commission into Aboriginal Deaths in Custody noted a report by John McCorquodale stating that Australian governments had used, since European settlement, no less than 67 classifications, descriptions or definitions to determine who is an Aboriginal person. [6] The currently used tripartite description is an attempt to recognise that there are social and cultural determinants of indigeneity which are not reflected in the concept of “descent”. Nevertheless, “descent” remains an element of the tripartite definition. There is an irony in the use in s 4(2) of the sole test of “Aboriginal descent”, as an expansion of the tripartite definition.

     6.    Royal Commission into Aboriginal Deaths in Custody, National Report (1991), Commonwealth of Australia, Canberra [11.12.5].

148. The concept of “descent” is usually taken to mean “biological descent” in the sense found in a family tree. That meaning may be unduly restrictive. [7] The Australian Law Reform Commission stated in Essentially Yours: The Protection of Human Genetic Information in Australia: [8]

“36.34 The Inquiry was told in some consultations that the three-part definition works well enough in most circumstances. However, a number of concerns were expressed about the test. In some cases, the courts have interpreted ‘descent’ in terms of biological descent when interpreting the meaning of an Aboriginal person. This tends to undermine the role of social descent within Aboriginal communities whose traditional laws and customs might provide for adoption or other social forms of inclusion into a family or community. The emphasis on biological descent has led to some anxiety that genetic testing might increasingly be used (or even required) as a means of proving a person’s kinship relationship with another Aboriginal person.

36.35 Several submissions emphasised the difference between Western and Aboriginal definitions of kinship. The Aboriginal and Torres Strait Islander Social Justice Commissioner commented that:

‘While Aboriginal people may generally be direct descendants of the original inhabitants of a particular part of Australia, indigenous customary law does not rely on linear proof of descent in the Judeo-Christian genealogical form of “Seth begat Enosh begat Kenan” in order to prove membership of the group. … A person may have been adopted into a kinship group where there is no direct or suitable offspring to carry out ceremonial obligations. … Genetic science should have no part to play in determining whether or not a person should be eligible for benefits. If the element of descent is to remain in Australian law as a test of Aboriginality, it should be interpreted in accordance with Indigenous cultural protocols.’”

7.    L de Plevitz and L Croft, “Aboriginality under the Microscope: The Biological Descent Test in Australian Law” (2003) 3(1) QUTLJJ 104, 111.

8.    ALRC Report 96, 30 May 2003, Ch 36 Kinship and Identity.

149. There may also be an underlying assumption that a genetic classification based on racial groupings may be possible. However, as further explained by the Australian Law Reform Commission, that concept has been debunked: [9]

“Genetics and ‘race’

36.41   One of the most interesting outcomes of the Human Genome Project and other current scientific research is that there is no meaningful genetic or biological basis for the concept of ‘race’. [10] As discussed in Chapter 3, any two human beings are 99.9% identical genetically. Within the remaining small band of variation, scientists estimate that there is an average genetic variation of 5% between what are called ‘racial groups’ — which means that 95% of human genetic variation occurs within ‘racial groups’.

36.42   It is now well-accepted among medical scientists, anthropologists and other students of humanity that ‘race’ and ‘ethnicity’ are social, cultural and political constructs, rather than matters of scientific ‘fact’.”

9.    Ibid.

10.    See J Graves, The Emperor’s New Clothes: Biological Theories of Race at the Millennium (2001) Rutgers University Press, New Brunswick. See also A Caplan, ‘Handle With Care: Race, Class and Genetics’ in Timothy Murphy and Marc Lappe (ed), Justice and the Human Genome Project (1994) University of California Press, 30.

150. In 1986, well prior to the enactment of the Adoption Act, the Australian Law Reform Commission stated, in its report on The Recognition of Aboriginal Customary Laws:[11]

“Experience under Commonwealth and State legislation suggests that it is not necessary to spell out a detailed definition of who is an Aborigine, and that there are distinct advantages in leaving the application of the definition to be worked out, so far as is necessary, on a case by case basis.”

That course may allow a court to construe similar terms in different statutes, depending on the particular purpose. A similar point was accepted by French J in Wouters:[12]

“In different contexts the class of persons covered by the word “aboriginal” may expand or contract according to the purpose of the statute or instrument under consideration.”

11. Report 31, AGPS, Canberra at [95].

12. 25 FCR at 146.

151. Indeed, the idea, reflected in innumerable government forms that the question “are you Aboriginal” can be answered by ticking a yes/no box is, for many purposes, misconceived. The question does not lend itself to a binary answer. It requires a declaration of ethnic identity which may have far- reaching and variable consequences. Professor Regina Ganter reported that an ethnographic study of persons in south-east Queensland revealed “the intensely personal nature of such identity choices, and the conflicts they may raise with family, because to finally embrace one’s aboriginality immediately implicates one’s parents and siblings.” She referred to some persons as “half-steps”, being those “who see themselves as ‘being of Aboriginal descent’ without being ‘Aboriginal’, a position that harbours intensely personal uncertainties, because it is not sanctioned by any socially valid categories.” [13]

     13.    R Ganter, “Turning Aboriginal – Historical Bents” in 7 borderlands e-journal, Vol 7, No 2, 2008 at at p 2.

152. Some of these issues were noted by the New South Wales Law Reform Commission in its Report 81, Review of the Adoption of Children Act 1965 (NSW). The Report quoted from a paper written by E Sommerlad in 1976 for the First Australian Conference on Adoption: [14]

“The nature of Aboriginal identity is misunderstood by most whites. They fail to understand why a child of mixed parentage should identify as an Aboriginal rather than a white. Social workers are reluctant to place an Aboriginal child who is indistinguishable by his physical appearance with an Aboriginal family since they consider this situation will create identity problems for the child. The major point that whites fail to grasp is that in a racist society an individual is either white or black. One cannot be part black, part white. An Aboriginal child will soon learn from white classmates that he is not one of them, that he is different, and that he belongs to the black community. Even if he looks white. The position taken by Aborigines on this issue is therefore that any child of Aboriginal parentage, no matter what his physical appearance or his degree of Aboriginality is an Aborigine. [15] ”

14.    Report 81 at par 9.28.

15.    E Sommerlad “Homes for Blacks: Aboriginal Community and Adoption” in C Picton (ed) Proceedings of First Australian Conference on Adoption (The Committee of the First Australian Conference on Adoption, Sydney, 1976) 159 at 164.

153. For the reasons articulated in the legislative history discussed by Leeming JA, while the tripartite definition of “Aboriginal person” is apt and useful in some contexts, it is not apt in others, or is not sufficient by itself. [16] The fact that it has been accorded constitutional status for the purposes of limiting the scope of the power to deport aliens under s 51(xix) of the Constitution [17] does not mean that it should have universal application under State law.

     16.    The history is helpfully recounted in A Whittaker, “White Law, Blak Arbiters, Grey Legal Subjects: Deep Colonisation’s Role and Impact Defining Aboriginality at Law” (2017) 20 Aust Indigenous L Rev 4.

     17. Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3.

154. Nor does it have universal application. As Leeming JA explains, the reference to a child of “Aboriginal descent” is not the same as a child “descended from an Aboriginal”. Unlike the latter, the former expression does not require that the forebear be an “Aboriginal person” as defined by the tripartite test.

155. Before turning to the evidence in this case, it is necessary to note the evidential problems created by the concept of descent. To take the example given at [53] above, if one great grandparent is Aboriginal, he or she must satisfy the tripartite test. That is likely to be more problematic with each preceding generation; especially is that so if the relative relied on as Indigenous has died.

156. For generations, Australians with Indigenous connections tended to deny the connections. [18] If appearances suggested indigeneity, it was not infrequently explained by reference to other causes. It may well be that the evidence in this case that Belinda’s maternal grandfather said his mother was Maori, and her husband Chinese,[19] was an example of such conduct. Widespread racist attitudes in the European settler community promoted, even necessitated, such an approach. But if a person did not “identify” as Indigenous, the likelihood of recognition by the relevant Indigenous community was reduced. As many Indigenous people have suggested, the third limb of the test should have referred to how people were identified by the non-indigenous community; for example, being ostracised at school, refused service in a bar, or refused a lease of residential premises.

     18.    See Sheldon v Weir (No 3) [2010] Fam CA 1138, discussed in A Whittaker, fn 16 above, pp 28-34.

     19. See [119] above.

157. Noting the history of abuse, discrimination and humiliation, Merkel J stated in Shaw v Wolf:[20]

“In these circumstances Aboriginal identification often became a matter, at best, of personal or family, rather than public, record. Given the history of the dispossession and disadvantage of the Aboriginal people of Australia, a concealed but nevertheless passed on family oral ‘history’ of descent may in some instances be the only evidence available to establish Aboriginal descent. Accordingly oral histories and evidence as to the process leading to self-identification may, in a particular case, be sufficient evidence not only of descent but also of Aboriginal identity.”

20. (1998) 83 FCR 113 at 122.

158. Merkel J recorded evidence of one party, Ms Rosalie Medcraft, who gave evidence that both her grandparents in her father’s family were Aboriginal. [21] She stated:

“Through research many years ago we discovered our background but each time we tried to talk about our aboriginality our father became quite angry and distressed so we let the matter drop. To respect his feelings my brothers and sisters and myself did not reveal our aboriginality until our father’s death in 1986.”

She also stated that “her father had always explained, when asked, that her grandmother ‘came from New Zealand’.” In other words, he falsely explained his ancestry as Maori.

21. The evidence is set out only in the Report in (1999) 163 ALR 205, relevantly at 247-248.

159. In Bringing Them Home, the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, there is a passage from the evidence of child and adolescent psychiatrist, Dr Brent Waters: [22]

“The people that I’ve talked to who were placed in white families … things seem to have gone quite well until they got into the teenage years. Then they started to become more aware of the fact that they were different. Some of these were quite light kids, but nevertheless that they were different. And it was the impact of what peers were doing and saying which seemed to be most distressing to them. And sometimes their families didn’t deal with that very well. They were dismissive. ‘Look, the best thing to do is just forget you were ever Aboriginal’ or ‘Tell them that you came from Southern Europe’. To pass off what was obviously a difference in skin colour.”

22.    Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Commonwealth of Australia, 1997) p 158.

160. Evidential issues loomed large in the present case. So much was acknowledged by the submissions for the Secretary in reply in identifying the nature of the power conferred on a court by s 4(2) of the Adoption Act, namely: [23]

“In light of these authorities, the question of whether the court hearing adoption proceedings should determine that a child is an “aboriginal child” for the purposes of the Adoption Act is a complex question of fact. The court may therefore consider that it is a question that should be considered in light of all of the evidence regarding the family’s descent, self-identification and community acceptance. While descent alone may be sufficient for the purpose of a determination under s 4(2), it also may not be in the circumstances. It is open to this Court to construe s 4(2) as discretionary such that a child’s Aboriginality is a matter that the primary judge, in his or her discretion, should determine no all of the evidence in the proceedings. Whilst that may be accepted, it raises an important question as to how that evidence is to be assessed.”

23.    Secretary’s further submissions filed 22 April 2020, par 19.

161. It may be doubted that the appropriate degree of flexibility was adopted by the primary judge. Having identified the evidence on the question of indigeneity,[24] the judge referred to the power conferred by s 126 of the Adoption Act permitting the Court to act “on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence.” He continued:

     24. Judgment at [79].

“[82]   However, Practice Note SC EQ 13, which applies to proceedings under the Adoption Act, states at [33]:

‘Although under the Adoption Act s 126 the Court has a discretion to act on any statement, document, information, or matter that may, in its opinion, assist it whether or not it would be admissible in evidence, this should be regarded as exceptional and ordinarily the court expects evidence to be given in a form and manner which is admissible in proceedings generally. However, the court will receive copies of learned texts and articles from peer-reviewed journals in relevant fields such as sociology and psychology without further proof.’ [Emphasis added in judgment below.]

[83]   In any event, this scant and conflicting evidence does not enable me to come to any conclusion as to whether B is of Aboriginal descent. Evidently AC believes that she is of Aboriginal descent, but her paternal grandfather has evidently made inquiries which suggest the ancestry is of Maori rather than Aboriginal, origins. There is no evidence before me as to who prepared the genogram or what documents were relied on to create it. Nor is there evidence as to what matters the Pius X Aboriginal Corporation had regard to when issuing its confirmation of B’s Aboriginality.

[84]   That is not to say that I have reached a conclusion that B is not of Aboriginal descent.”

Three aspects of this reasoning are troubling.

162. First, if the practice note were to be understood as diminishing the weight which should be given to material of the kind relied upon in the present case in identifying questions of Aboriginal descent, it would tend to frustrate the application of the Aboriginal child placement principles and the intention underlying s 4(2) of the Act. Such an approach might reveal legal error.

163. Secondly, the description of the evidence as “scant and conflicting” is an inadequate assessment of the material summarised. That material contained 11 items. Of these, seven tended to support a finding of Aboriginality, one was neutral (referring to a request from the Department or a certificate of Aboriginality), and three were negative. Of the negative items, one was a “care plan” lodged under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care and Protection Act”) with the Children’s Court in which the Department recorded that the child was not Aboriginal, but, as the judge noted, there was no evidence as to the basis on which the conclusion was reached. A second was a reported statement of Belinda’s maternal grandmother that “there is no Aboriginal heritage in the family”; and the third a statement by her husband, Belinda’s maternal grandfather, that his grandmother was “Maori, rather than Aboriginal”.

162. The primary judge appears to have taken each of these negative statements at face value; at least there was no assessment of their provenance. However, a report of a community Elder with respect to Belinda’s great grandmother, noted that “the family did not like to be recognised as Aboriginal in those days”.

163. This evidence could not properly have been assessed without reference to the kind of circumstances in which, in the past, it was commonplace to deny Aboriginality and to explain physical features by reference to foreign ancestry, including Maori. [25]

     25.    De Plevitz and Croft, at fn 7 above, p 106.

164. Thirdly, the judge was dismissive of a “Confirmation of Aboriginality” certificate issued by “an organisation called “Pius X Aboriginal Corporation”, and a genogram or family tree “prepared by an organisation called Link-up (NSW)”.

165. In short, the evidence before the judge was that Belinda’s mother identified as Aboriginal, there was clear evidence that her maternal great grandmother was Aboriginal, and there was evidence of acceptance by two Aboriginal corporations whose identity and relevance should not have been called into question without a basis. Further, Belinda’s adoptive mother clearly accepted that Belinda was of Aboriginal descent and had taken steps to help her have contact with her Aboriginal culture. She stated that Belinda “now knows where to find her mob on the indigenous map of all the countries”. In the case of Belinda’s mother, there was objective evidence of Aboriginal ancestry (arguably strong, though that need not be determinative) which was combined with self-identification as Aboriginal and acceptance by community organisations that she, and hence her child, were Aboriginal. That should have been sufficient on any basis to conclude that Belinda was an Aboriginal child.

166. The courts can only work with the materials placed before them. In most cases, the courts will be dependent on material supplied by the Secretary.

167. There is no doubt as to the purposes of the Aboriginal placement principles which are now contained in the Care and Protection Act and in the Adoption Act. In the course of the debate on the Adoption Bill, the Parliamentary Secretary stated: [26]

“[The placement principles] are necessary to provide against any repeat of the shameful history over many years of New South Wales Aboriginal children being taken from their families and their culture. The New South Wales Government is making every effort to redress the wrongs of the past and is committed to putting policies and practices in place to ensure that nothing of the kind can happen again.”

26.    Legislative Assembly, Parliamentary Debates (Hansard), 21 June 2000, p 7384.

170. Despite those words, there has been criticism of the assistance provided by the Secretary in particular cases. For example, the President of the Children’s Court, Judge Johnstone, stated in Gail and Grace:[27]

“I wish to place on record that this Court is increasingly frustrated by the lack of cultural knowledge and awareness displayed by some caseworkers and practitioners in their presentation of matters before it. The time has come for a more enlightened approach and a heightened attention to the necessary detail required, which may require specific training and education by the agencies and organisations involved.”

These statements related to the Secretary’s application of the Aboriginal placement principles in matters arising under the Care and Protection Act. The President repeated his comments in the case of DFaCS and Boyd. [28] Further, an independent inquiry into the application of the Aboriginal child placement principles in the case of out-of home-care (OOHC) under the Care and Protection Act, chaired by Professor Megan Davis, published a report in November 2019. The report was critical of the application (or failure to apply) the Aboriginal child placement principles (ACPP): [29]

“Despite the fact the ACPP has been enshrined in legislation, and its elements recognised by all states and territories, there are widespread concerns about the way in which the ACPP is interpreted and applied throughout Australia. For instance, in 2012 the United Nations Committee on the Rights of the Child noted that poor implementation of the ACPP in Australia was compromising the rights of Aboriginal children in OOHC. [30]

The extant literature (comprising government and non-government reports, academic publications and stakeholder submissions) has identified several implementation issues. First, there are widespread concerns about the collection and use of data regarding compliance with the principle (discussed further below). Second, there are concerns about widespread noncompliance with the principle, [31] including concerns that the principle is ignored in practice or applied in a narrow or tokenistic manner. [32] Third, there are concerns about the fact that there are no penalties for non-compliance with the principle, [33] and finally, it has been noted that there are differences in the way the principle is interpreted and applied. [34]

Concerns about compliance with the ACPP have existed for at least 20 years in NSW. The Wood Report, released in 2008, raised a number of issues about the implementation of the ACPP, including that the ACPP provisions were only being considered at the final stages of a matter as opposed to prior to any court attendance. [35] The Wood Report found that there was inconsistent compliance with the ACPP both at a regional and individual caseworker level. [36] Again in 2017, the Legislative Council General Purpose Standing Committee No 2 noted that stakeholders to its inquiry on child protection had raised concerns that the principle was not being complied with, and that statistics collected relating to compliance with the principle did not adequately reveal if all aspects of the principle, including the requirement for consultation with Aboriginal organisations, were being complied with. [37] Also in 2017, Aboriginal stakeholders in NSW expressed frustration about the fact that the ACPP is not adhered to in practice. [38] ”

27. [2013] NSWChC 4 at [95].

28. [2013] NSWChC 9 at [35].

29.    Family is Culture, (NSW Govt, Sydney 2019), p 252.

30.    United Nations Committee on the Rights of the Child, Committee on the Rights of the Child, (Sixtieth session 29th May–15th June 2012).

31.    Senate Community Affairs References Committee, Out of Home Care (Report, 2015) 8.60.

32.    Legislative Council General Purpose Standing Committee No 3, Reparations for the Stolen Generations: Unfinished business (2016) [10.55]; Senate Community Affairs References Committee, Out of Home Care (Report, 2015).

33.    Legislative Council General Purpose Standing Committee No 3, Reparations for the Stolen Generations: Unfinished business (2016) [10.54]–[10.57], [10.60].

34.    Senate Community Affairs References Committee, Out of Home Care (Report, 2015) 8.56.

35.    James Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (November 2008), [11.150].

36.    James Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (November 2008), [11.149].

37.    Legislative Council General Purpose Standing Committee No 2, Child Protection (2017) [7.37]–[7.42].

38.    AbSec, ‘What You Told Us—Aboriginal case management policy consultations’, Aboriginal Child, Family and Community Care State Secretariat (Web Page, August 2017) < >

171. These concerns have direct relevance in the case of adoptions. It is a requirement of s 35(1) of the Adoption Act that, “Aboriginal people should be given the opportunity to participate with as much self-determination as possible in decisions relating to the placement for adoption of Aboriginal children”. Where a child is to be placed with a non-Aboriginal adoptive parent, s 35(3) requires that the Court be satisfied the proposed parent:

“(a)    has the capacity to assist the child to develop a healthy and positive cultural identity, and

(b)    has knowledge of or is willing to learn about, and teach the child about, the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and

(c)    has the capacity to help the child if the child encounters racism or discrimination in the wider community,

and that the Aboriginal child placement principles have been properly applied.”

172. Similar problems have been raised in other jurisdictions, including under the Family Law Act 1975 (Cth). For example, in 2010 in Donnell v Dovey,[39] the Full Court of the Family Court considered parenting and residence arrangements with respect to an Indigenous child in terms which continue to provide helpful guidance.

“[320]   There was another piece of evidence before his Honour which should have alerted him to the fact that the indigenous peoples of Australia do not subscribe to the benefits that European/white Australians see attaching to the modern nuclear family (which arguably may have as much to do with the efficient transfer of private property as it does to emotional benefits flowing to children). The piece of evidence to which we refer was that given by O's father in his trial affidavit where he said that in the Torres Strait Islands, ‘it is common for children to be raised by extended family members’….

[321]   Whilst we accept that the Federal Magistrate was not referred to any writing on this topic, we consider that an Australian court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and non-indigenous people relating to the concept of family. This is not to say that the practices and beliefs of indigenous people are uniform, since it is well known that they are not. However, it cannot ever be safely assumed that research findings based on studies of European/white Australian children apply with equal force to indigenous children, even those who may have been raised in an urban setting.

[322]   In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B v R called  ‘readily accessible public information’. It should not be expected that parties must approach the court on the basis that the presiding judicial officer comes to the case with a ‘blank canvas’.”

[323]   It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.

…

[332]   We accept that the Federal Magistrate was not assisted at trial by any cross-examination specifically directed to the cultural issues we have discussed. However, we have concluded that his Honour should have been aware of, and taken into account, the fact that the 2006 amendments were aimed at ensuring that cases involving indigenous children are no longer determined on the basis of automatic acceptance of ‘modern Anglo-European notions of social and family organisation’. In our view, it should have been apparent that the report writer's recommendations were firmly based on such notions, the writer having failed to take into account in any way the fact that O is an Aboriginal child.”

39. (2010) 237 FLR 53; [2010] FamCAFC 15 at [320]-[323], [332]-[336] (Warnick, Thackray and O’Ryan JJ).

Conclusions

173. The structure of s 4 of the Adoption Act suggests that a degree of flexibility was intended to be built into subs (2). The definition in s 4(1) could have been expanded to include “a child of Aboriginal descent”. Had the issue been in dispute, it would have been necessary for the Court to be satisfied of that alternative limb. Instead, the definition picked up a different structural element, namely by including a child the subject of a determination of the court that the child is of Aboriginal descent. This should be understood as a recognition of the need for a court to draw inferences from material which may not be unequivocal. Historical material may need to be relied on which is dependent on oral tradition rather than documentary records. Documentary records may record one person by a range of names or by a name not readily referable to a specific individual. Such problems were well understood in 2000, following more than 20 years of claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which required the identification of traditional owners of land, and seven years of claims for native title, both under the common law and the Native Title Act 1993 (NSW). It followed numerous well-publicised inquiries and reports which have highlighted the issues in play.

174. In making a determination for the purposes of s 4(2), and more generally, the Court is expressly empowered to consider a broad range of material, including matter which would not be admissible under the Evidence Act 1995 (NSW): Adoption Act, s 126. The making of a declaration does not involve one party having a burden of proof, nor is the standard for the court’s state of satisfaction identified. The degree of satisfaction should take into account the purposes of the proposed determination.

175. I agree with Leeming JA that Belinda is an Aboriginal child for the purposes of the Adoption Act. I also agree with the orders proposed by Leeming JA.

176. MCCALLUM JA: I agree with Leeming JA that Belinda is an “Aboriginal child” for the purposes of the Adoption Act. I agree with his Honour’s reasons concerning the proposed ground of appeal that the primary judge erred in his construction of s 4(2) of the Act (ground 1A). I also agree with the additional reasons given by Basten JA concerning that ground. As to the proposed ground of appeal that there was a denial of procedural fairness (ground 1), I agree with the reasons given by Basten JA for refusing leave with respect to that ground. I agree with the orders proposed by Leeming JA.

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Endnotes

Amendments

21 August 2020 - Coversheet: format of hearing dates amended.

Decision last updated: 21 August 2020