- In the recent decision of Hackett (a pseudonym) v Secretary, Department of Communities and Justice  NSWCA 83, the Court affirmed a more expansive and descent-based definition of Aboriginal children in the NSW adoption and child protection systems.
- Under the Adoption Act 2000 (NSW) the Supreme Court of NSW has the discretion to determine that a child is an Aboriginal child if the Court is satisfied the child is of ‘Aboriginal descent’.
- A child of ‘Aboriginal descent’ is distinct from a child who ‘descended from an Aboriginal’, with the former meaning that the child is descended from the people who lived in this country before British colonisation.
- A child of ‘Aboriginal descent’ does not require an ancestor to meet the definition of an ‘Aboriginal person’ as defined under the Aboriginal Land Rights Act 1983.
Leeming JA’s lead judgment in the recent case of Hackett (a pseudonym) v Secretary, Department of Communities and Justice  NSWCA 83 (‘Hackett’) opens with a simple but poignant statement: ‘The most important person in this appeal is a young teenaged girl’.
Indeed children and young people like Belinda (a pseudonym) are at the centre of all decisions made under the Adoption Act 2000 (NSW) (‘the Adoption Act’) – decisions which will have lifelong impacts. In this case, the Court had to determine whether Belinda was an Aboriginal child for the purposes of the Adoption Act.
The NSW Court of Appeal’s decision expands the narrow interpretation preferred in the earlier decision Helen Fischer v Ashley Thompson (Anonymised)  NSWSC 773 (‘Fischer’) and adopts a broader descent-based definition of Aboriginal children in the NSW adoption and child protection systems.
Background: the adoption of Aboriginal children in NSW
It is important to recognise at the outset that the adoption of Aboriginal children in NSW (and Australia generally) is a sensitive area of government policy and has a complex and often painful history (see further, 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)). As a result, the Adoption Act does not treat all children alike.
In the case of an ‘Aboriginal child’, the Act imposes additional safeguards, the most important being the requirement that the Court be satisfied the Aboriginal child placement principles (set out in s 35 of the Act) have been properly applied.
These principles aim to ensure that, wherever possible, Aboriginal children are adopted by persons 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. Like most decisions involving children, however, these considerations remain subject to an overriding objective: the best interests of the child.
The definition of ‘Aboriginal child’ is set out in s 4 of the Adoption Act to mean ‘a child descended from an Aboriginal’ and includes a child who is the subject of a determination made by the Court. ‘Aboriginal’ is also defined in this section as having the same meaning as ‘Aboriginal person’ in s 4 of the Aboriginal Land Rights Act 1983. In short, this requires satisfying a three-limb test of:
(a) being a member of the Aboriginal race of Australia;
(b) identifying as an Aboriginal; and
(c) being accepted by the Aboriginal community as an Aboriginal.
Importantly, s 4(2) of the Adoption Act goes on to provide that, despite the definition of Aboriginal person, the Court may determine that a child is an Aboriginal for the purposes of the Adoption Act if the Court is satisfied that the child is of ‘Aboriginal descent’.
The definition of an ‘Aboriginal child’ is also in the same form in the Children and Young Persons (Care and Protection) Act 1998 (‘Care Act’). The Care Act contains several additional safeguards relating to the adoption of an Aboriginal child. Most importantly, adoption is the last preference under the child placement principles contained in s 10A of the Care Act.
The facts in Hackett
The Secretary commenced adoption proceedings in 2018 seeking an adoption order in respect of Belinda. Belinda was 12 years old and had lived with her proposed adoptive mother for most of her life. Her birth father opposed the making of the adoption order. There was evidence that Belinda’s birth mother was of Aboriginal descent and at the hearing before the Supreme Court, it was common ground that the child was an ‘Aboriginal child’ for the purposes of the Adoption Act. The proceeding progressed on the basis that the Court would make a determination that Belinda was an Aboriginal child under s 4(2) of the Adoption Act.
However, a day after the hearing, the Supreme Court handed down a separate decision in Fischer (see earlier), which altered the parties’ understanding of who is an ‘Aboriginal child’ for the purposes of the Adoption Act. Under Fischer, a child could only meet the definition of ‘Aboriginal child’ if it was possible to identify an ancestor of the child who met the definition of ‘Aboriginal’ – in other words – one who could satisfy the three-limb test.
After applying the test in Fischer, the primary judge in Hackett concluded that there was insufficient evidence to show that Belinda was an Aboriginal child. For this reason, among others, the Court made an order allowing Belinda’s adoption to proceed.
On appeal, the applicant (Belinda’s father) argued that Belinda was an Aboriginal child for the purposes of the Adoption Act and should not be adopted.
The Court of Appeal’s decision
The Court of Appeal found that the strict test applied in Fischer was based on an overly narrow interpretation of the Adoption Act. The Court found that the correct test to determine that a child is an ‘Aboriginal child’ under s 4(2) is that the Court is satisfied that the child is of Aboriginal descent, meaning that the child is descended from the people who lived in this country before British colonization.
This is the critical aspect of the Court of Appeal’s decision. It empowers the Court to determine that a child is an Aboriginal child even if no ancestor of the child satisfies the three-limb test in the Aboriginal Land Rights Act (as outlined above).
Of course if there is already evidence that a child has an ancestor who satisfies the three-limb test under the Aboriginal Land Rights Act, then the child is an Aboriginal child under s 4(1) of the Adoption Act and there is no need for the Court to exercise its discretion to make a determination under s 4(2).
Leeming JA respectfully found that the more limited test in Fischer was incorrect (at ) and gave four key reasons why:
Textual: The narrow interpretation of the Adoption Act, which requires satisfaction of the three-limb test in all circumstances, would give ‘no practical work for s 4(2) to do’. The Court found that it would be highly unusual for the words ‘includes a person who is the subject of a determination under subsection (2)’ to have no practical effect.
Contextual: Extensive law reform work performed in the years prior to the enactment of the Adoption Act argued for a more expansive definition of ‘Aboriginal child’. This work explains the merits of a broad descent-based definition, which differs sharply from other historical definitions based on ‘race’. Race-based definitions can in turn involve an analysis of ‘degrees of descent’, which the law reform work regarded as inappropriate.
Purposive: Based on the law reform work referred to above, it was evident that s 4(2) was enacted with the specific purpose of expanding the class of children who were ‘Aboriginal children’ beyond the three-limb test.
Pre-existing law: Before 2000, the definition of an ‘Aboriginal child’ for adoption purposes, referred to a descent-based definition in the Aborigines Act 1969. The Court found no reason to suggest that the Adoption Act intended for the class of children who had formerly been regarded ‘Aboriginal children’ to narrow.
Based on its more expansive interpretation of the definition of ‘Aboriginal child’, the Court exercised its discretion under s 4(2) to determine that Belinda was an Aboriginal Child. This decision was based on evidence that Belinda’s great-great-great-grandfather, born in around 1895, received rations from a contractor of the Aborigines Protection Board in 1919. The same ancestor pleaded guilty to a charge of disorderly conduct at an Aboriginal reserve in 1915. Importantly, this same evidence would not have been sufficient to meet the three-limb test in Fischer.
The broad range of evidence that the Court was empowered to consider and rely upon in order to satisfy this test is also of interest. It included evidence that would not otherwise be admissible under the Evidence Act 1995 (NSW) and included evidence of a local newspaper report from November 1915.
This decision has significant ramifications for adoption and child protection law in NSW. It clarifies that the Court has discretion to make a determination that a child is Aboriginal based on evidence of their descent, even when they do not meet the narrow requirements of the three-limb test under the Aboriginal Land Rights Act. In effect, this expands the class of children that may be considered an ‘Aboriginal child’ for the purposes of adoption and child protection.