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

The appeal before the Court of Appeal of New South Wales concerned the interpretation of the term "Aboriginal child" within the *Adoption Act 2000* (NSW). The appellant, Hackett (a pseudonym), sought to challenge decisions made by the primary judge regarding an adoption. The Secretary of the Department of Communities and Justice was the respondent.

The central legal issue was the definition of an "Aboriginal child" for the purposes of the Act. Specifically, the court had to determine whether it was necessary to identify a specific ancestor who was a member of the Aboriginal race, identified as Aboriginal, and recognised by an Aboriginal community, or if it was sufficient to demonstrate descent from people who inhabited Australia prior to British colonisation. A secondary issue related to procedural fairness, with the applicant alleging that submissions provided after the hearing were not considered by the primary judge, and whether leave to appeal should be granted on this basis.

The Court of Appeal, in considering the text, context, and purpose of section 4 of the *Adoption Act 2000* (NSW), concluded that it was sufficient to show that a child was descended from people who lived in Australia before British colonisation. The court disapproved of the approach taken in *Fischer v Thompson (Anonymised)* [2019] NSWSC 773, which had adopted a more restrictive interpretation. Regarding the procedural fairness claim, the court noted the significance of the applicant's failure to apply to the primary judge and the delay in raising the issue, ultimately finding that a proper outcome could likely be reached without a full rehearing.

Consequently, the Court of Appeal granted leave to appeal, but confined it to a specific proposed ground. The court directed the appellant to file a notice of appeal in a particular form and dispensed with service requirements. The Secretary was directed to apply to the Equity Division to review certain orders and adoption plans within 28 days. Otherwise, the appeal was dismissed.