Adoption by non-Aboriginal families 1849-1939
While adoption of Aboriginal children into European families happened in the early years of the colony, this was not regulated by law until 1923. Throughout this period, no law or policy had regard to the cultural needs of Aboriginal children being adopted.
Adoption of Aboriginal children into non-Aboriginal families started soon after colonisation. An early colonial document, for example, states that an Aboriginal child, Nanbaree, ‘was adopted by Mr White, surgeon-general of the settlement, and became henceforth one of his family’ ().
During the 1800s, the view that Aboriginal children should be adopted into non-Aboriginal families seems to have continued. In 1810, for example, a letter to the Sydney Gazette () reads: ‘I have urged the necessity of adopting as many of the native children as we can procure, and making them members of our own families...’
The Infant Convicts Act 1849 (NSW) () was the first law about custody of child ‘convicts’. It made it possible for a child under the age of 19 who had committed a misdemeanour or felony to be adopted into a new family by court order.
This law applied to Aboriginal and non-Aboriginal children. An adult wanting custody of an Aboriginal child under this law would have to demonstrate to a judge that they were willing to take charge of the infant and provide for their maintenance and education.
Similarly, the State Children Relief Act 1881 (NSW) () made it possible for children in the State’s care, including Aboriginal children, to be adopted into a new family. The State Children’s Relief Board could approve the adoption to ‘persons applying to adopt State children.’
The Children’s Protection Act 1892 (NSW) () made it possible for a judge to order a child under the age of 14 who had committed an offence to be adopted by a ‘suitable person’. However, there are few records about how many Aboriginal children were adopted under these laws. Later, the Children’s Protection Act 1902 (NSW) () required adoptions of a child under the age of three to be registered.
It was not until the Child Welfare Act 1923 (NSW) () that adoption became regulated, likely as a response to the increasing number of adoptions and to prevent ‘the widespread and unofficial fostering and adoption of Aboriginal children by white families’ (). This law applied to all children in NSW, including Aboriginal children.
The Child Welfare Act regulated the adoption of female and male children in different ways. A female child could only be adopted by a husband and wife, a woman (married or unmarried) at least 18 years older than the child, or a married man at least 30 years older than the child.
In contrast, a male child could only be adopted by a husband and wife, a man (married or unmarried) at least 18 years older than the child, or a woman (married or unmarried) at least 30 years older than the child.
To adopt a child, a person would also have to demonstrate that they were of good repute and a fit and proper person to have the care of the child. These requirements were loosened slightly by the Child Welfare Act 1939 (NSW) (), which made it possible for a husband and wife or any other person above the age of 21 to apply to court for the adoption of a child, including Aboriginal children.
The media promoted the view that Aboriginal children were happier in non-Aboriginal families (see Dudgeon) (). Haebich noted that during the post-war period, significant publicity was given to ‘irregular adoptions’ to promote the idea that removal and adoption by white families promised a much more reliable route to success for Aboriginal children (referenced in Swain) ().
Swain also references Cheater who suggests the adoption of Aboriginal children was rare because the policy of ‘Protection’ was designed to maintain ‘racial purity’ by controlling contact between Aboriginal and non-Aboriginal peoples ().
According to the Bringing Them Home Report (1997), approximately 17 percent of Aboriginal people forcibly removed through the Stolen Generations were adopted into their new (non-Aboriginal) families ().
In 1965, the Adoption of Children Act 1965 (NSW) () was introduced. This did not recognise the cultural needs of Aboriginal children in any way ().
Under this Act, Aboriginal children could be adopted according to the same standards as all other children in Australia. This meant any person the Court deemed to be of good repute, a fit and proper person, and suitable to adopt the child in question, could adopt an Aboriginal child.
In 1969, the Aborigines Act 1969 (NSW) () abolished the Aboriginal Welfare Board (AWB), meaning Aboriginal children became wards of the State under the Child Welfare Act 1939 (NSW).
Despite becoming part of the mainstream out-of-home care system, 'this legislation can be seen to have been repressive and a deliberate attempt to intervene into the rearing of Aboriginal children’ ().
In 1986, the Australian Law Reform Commission () recommended that Aboriginal people who were married under traditional law be qualified to adopt children in the same way as those married under the Marriage Act 1961 (Cth).