Families' rights following child removal historically 1788-1968
Although the law gave Aboriginal families the right to appeal child removal, research suggests there was limited use, if any, of this appeal right by Aboriginal families during this period.
Until the late 1800s, child welfare was largely conducted voluntarily by churches, charitable organisations and the progressive social elite. The Aborigines Protection Association, established in 1881, and precursor to the Aborigines Protection Board (APB), was one such organisation. There was little or no government oversight at that time and no appeal mechanisms.
Child welfare policy and practice rapidly evolved. In 1905 the Neglected Children and Juvenile Offenders Act 1905 (NSW) () gave the newly formed Children’s Court the power to commit a neglected child to an asylum, to the care of some willing person or to an institution. Both Aboriginal and non-Aboriginal children were dealt with under this legislation.
These decisions of the Children’s Court could be appealed to a higher court by a child, or their parent on behalf of the child, under the Justices Act 1902 (NSW) (). It is unclear whether the right of appeal was ever used by Aboriginal families.
Aboriginal and non-Aboriginal children committed to an asylum, State children, were subject to the State Children Relief Act 1881 (NSW) () and then the State Children Relief Act 1901 (NSW) (), under which they could be boarded-out and indentured as apprentices by the State Children Relief Board. Parents who surrendered their children for adoption under the State Children Relief Act had no rights of control over their children.
Children who were apprenticed out by their parents under the Apprentices Act, and their parents, had certain rights, including the right of some apprentices’ parents to apply to two justices to have their child restored to the parents under the Apprentices Act 1901 (). From 1909, the Aborigines Protection Board had authority to apprentice out certain Aboriginal children (see SUB0087). Initially, an APB decision to apprentice out an Aboriginal child was also subject to the rules under the Apprentices Act. However, in 1915, the NSW Parliament changed the law so that the APB no longer had to comply with the Apprentices Act when indenturing Aboriginal children ().
Theoretically, parents of Aboriginal children removed under the powers given to the APB in 1915 (see SUB0087) could appeal to the Children’s Court, in a manner prescribed by regulations (). An extensive search of the Government Gazette has failed to confirm that regulations to implement this appeal mechanism were ever made.
During the 1915 Parliamentary debate on those powers, McGarry MLA questioned the viability of such an appeal mechanism for an Aboriginal woman under the control of the APB: ‘We are told that the parents have an appeal. What does an appeal mean? Suppose a poor aboriginal woman goes into court, who will listen to her? Who will defend her and submit her case?’ ().
There are no records of any such appeals (). And, in any case, appeals would have been limited to questions of law or made on the basis that insufficient evidence existed to support the original conviction, order or sentence (). Furthermore, Children’s Courts were established far from Aboriginal communities and no legal assistance was offered to families to access them ().
The 1940 changes to the Aborigines Protection Act removed the APB’s authority to assume control and custody and remove a child, and replaced the APB with the Aborigines Welfare Board (AWB).
From 1940, the Children’s Court made decisions regarding the placement of a neglected or uncontrollable child. Those decisions could be appealed to a higher court under the Justices Act 1902 by a child or their parents on the child’s behalf ().
Changes to the law in 1943 appear to reinstate the power that the APB had until 1940 to admit a child to its control (). No right of appeal was included in this change.
Changes in 1943 also allowed the AWB to remove any child from a charitable institution and apprentice, board-out or place the child as an adopted boarder (). There was no right to appeal these actions of the AWB.
In 1969 the Aborigines Protection Act was repealed and Aboriginal children who had been wards of the State under the APA became wards under the Child Welfare Act 1939. Aboriginal and non-Aboriginal children were then covered by the same child welfare legislation (see SUB0123 for more information on appeal rights during this period).