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

1. [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. [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

1. [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).

2. [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.

3. [5]

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

4. [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.

5. [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:

6. [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.

7. [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.

8. [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.

9. [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”.

10. [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.)

11. [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:

12. [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).

13. [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.

14. [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

15. [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.

16. [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.

17. [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).

18. [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.

19. [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.

20. [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.

21. [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.

22. [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.

23. [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”.

24. [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.

25. [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.

26. [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.

27. [29]

    I explain below why I have reached those conclusions.

The test for “Aboriginal child”

1. [30]

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

2. [31]

   Subsection 4(2) provides:

3. [32]

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

4. [33]

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

   1. (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. (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. (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”?

5. [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:

6. [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. (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. (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. (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. (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.

7. [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

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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:

7. [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:

8. [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.

9. [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”.

10. [46]

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

11. [47]

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

12. [48]

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

13. [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”):

14. [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.

15. [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.

16. [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:

17. [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.

18. [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:

19. [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”.

20. [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”?

21. [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. (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. (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. (3)

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

22. [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.

23. [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.

24. [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”).

25. [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:

Legislative history and extrinsic materials

1. [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.

2. [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).

3. [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.

4. [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”.

5. [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:

6. [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:

7. [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]:

8. [69]

   The draft bill attached to that report contained the following:

9. [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).

10. [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).

11. [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:

12. [73]

    The paper provides a footnote:

13. [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:

14. [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.

15. [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.

16. [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:

17. [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:

18. [79]

    Thus it may be seen that:

    1. (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. (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. (3)

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

19. [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”.

20. [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.

21. [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

1. [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.

2. [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).

3. [85]

   Secondly, the reasoning in Fischer gives no practical work for s 4(2) to do. According to Fischer, a child will be an “Aboriginal child” only if an ancestor can be found who satisfied the three-limb test of Aboriginal person in the Aboriginal Land Rights Act. That is precisely what follows from the opening words of the definition of “Aboriginal child” – “means a child descended from an Aboriginal”. But on settled principles of statutory construction, not lightly would the additional, extending language of “includes a person who is the subject of a determination under subsection (2)” be given no work to do. (The same reasoning extends to the materially identical provisions in the Children and Young Persons (Care and Protection) Act.)

4. [86]

   Thirdly, there is a sensible meaning to be ascribed to those words, which is clearer when regard is had to the earlier definition, based on “descent”, which continued to apply to adoptions immediately prior to the enactment of the Adoption Act. Descent is different from race, as Drummond J observed in Gibbs v Capewell. The work achieved by s 4(2) was to permit a Court to determine that a child who would qualify under the descent definition was an Aboriginal child, even if no ancestor satisfied the three-limb definition in the Aboriginal Land Rights Act.

5. [87]

   Fourthly, that meaning is further supported by the fact that until 2000, adoptions of “Aboriginal children” had proceeded on the basis that an “Aboriginal child” was defined by reference to the descent-based definition in the Aborigines Act 1969. There is nothing in the extrinsic materials to suggest that the Adoption Act was intended to cease to apply to children who formerly had been treated as “Aboriginal children”. There is every reason for the same Aboriginal child placement principles to apply to the same class of “Aboriginal children” in respect of placement into care as well as adoption.

6. [88]

   Accordingly, the primary judge was wrong to apply the test in Fischer v Thompson. I should make it clear that his Honour was following the approach of another judge in the Equity Division, to which all parties acceded, and it would have been wrong for him to have taken any other course without at least notifying the parties and being persuaded that Fischer v Thompson was clearly wrong.

7. [89]

   It also follows that the Secretary’s submission that Belinda had not been shown to be an Aboriginal child should have been rejected, and the parties had been correct when they made common ground at the hearing that she was an Aboriginal child.

8. [90]

   The precise basis on which that common ground was reached is not completely clear (because the parties were in agreement, so far as I can see neither articulated the basis on which that agreement had been reached). However, the evidence available to this Court comfortably establishes that a man established to have been one of Belinda’s great-great-great-grandfathers, who was born around 1895, had been supplied rations at a reserve by a contractor retained by the Aborigines Protection Board in February and March 1919 and is recorded in a local newspaper dated 26 November 1915 as having pleaded guilty to a charge of disorderly conduct at the same reserve in 1915. The evidence to which Basten JA refers at [163]-[167] is confirmatory of the position. I am satisfied that Belinda is of Aboriginal descent, meaning that she is descended from the people who lived in this country before British colonisation.

Consequences of the success on the second ground

1. [91]

   Appeals lie from orders, not reasons. The question is whether, if his Honour had proceeded on the legally correct basis that Belinda was an Aboriginal child for the purposes of the Adoption Act, the same order would have been made?

2. [92]

   It will be recalled that the primary judge made six orders. Belinda’s biological father concedes that the first two orders made by the primary judge (which relate to his status as Belinda’s father) should stand.

3. [93]

   The remaining orders are (a) an adoption order (order 5), (b) an order “approving” Belinda’s surname and given names (order 6), and (c) order 3 and 4 requiring certain adoption plans to be registered. I have listed those orders in what I regard as a more logical order.

4. [94]

   The most important order is the adoption order, order 5. In order to make that order, it would have been necessary since Belinda is an Aboriginal child to be satisfied that the Aboriginal placement principles had been properly applied: s 90(1)(e). It is clear to my mind that they have been.

5. [95]

   It is to be borne firmly in mind that the paramount consideration is the best interests of the child. The Aboriginal child placement principles give preference to an adoption by parents who are members of an Aboriginal community, but that preference is subject to what is practicable and the child’s best interests. It is plain that Belinda’s best interests would not be served by removing her from the care of the woman who has cared for her, continuously and in a stable environment, since she was an infant.

6. [96]

   The Aboriginal child placement principles also require, in the case of an adoption to a parent who is not a member of an Aboriginal community, satisfaction of s 35(3). No such finding was made. However, this Court on appeal is empowered to make findings of fact, and in my opinion it can and should find that the evidence established something which was treated as uncontroversial by parties who were represented and conscious of this as an issue when the hearing was run on the basis that Belinda was an Aboriginal child.

7. [97]

   That is to say, it was and is accepted that if s 35 applied to Belinda’s adoption, it was either not practicable or not in her best interests for her to be adopted by parents from an Aboriginal community. Rather, the Secretary approached the hearing expressly on the basis that s 35(2)(c) and (3) applied, and that the proposed adoptive mother satisfied those provisions (written submissions dated 20 June 2019, para 10(m)). Belinda’s father’s written submissions stated that it appeared to be “common ground that [Belinda] is to be treated as an Aboriginal child for the purposes of the Adoption Act” (written submissions dated 24 June 2019, para 10). Counsel for the Secretary stated at the hearing that “it is certainly in this case the position of the plaintiff and the Secretary that [the child] is an Aboriginal child”.

8. [98]

   The primary judge addressed the evidence directed to s 35(3) at [86]-[87]:

9. [99]

   Belinda’s biological father required the adoptive mother to attend for cross-examination. None of his counsel’s cross-examination was directed to this aspect of her evidence.

10. [100]

    In order to make an adoption order, the Court must also be satisfied 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”: s 90(3). The primary judge was of that view. His reasons have been reproduced above. He considered that adoption was “quite decisively” preferable to a parental responsibility order. His Honour’s reasons are independent of and unaffected by the question whether Belinda is or is not an Aboriginal child.

11. [101]

    Section 34 provides:

12. [102]

    Counsel who had appeared for Belinda’s biological father at trial made a submission in writing that the inquiries which had been made were not sufficient to comply with s 34, such that the Court lacked power to make an adoption order. I could see the force of this if the Court were asked to exercise power on the basis that a child is not an Aboriginal child. It is obviously important, in order to make the Aboriginal child placement principles effective, for there to be an obligation to make sufficient inquiries to reach an informed view as to whether a child is an Aboriginal child.

13. [103]

    However, Belinda is an Aboriginal child, and is not to be adopted unless the Aboriginal child placement principles are satisfied. There is no further obligation under s 34 which impacts upon the exercise of the power to issue an adoption order.

14. [104]

    Section 101(1)(b) provides:

15. [105]

    It follows that when an adoption order is made in respect of a child who is less than 18 years of age, then it is appropriate for an order under s 101(1)(b) to be made.

16. [106]

    The order made by the primary judge gave Belinda the surname of her adoptive parent, and preserved her first given name. Belinda’s birth certificate did not contain a second given name, and it thus seems likely that the court’s order is the legal basis for her middle name. But this is unaffected by whether or not Belinda was an Aboriginal child.

17. [107]

    Section 46(4) provides that adoption plans for Aboriginal children must make provision of the kind referred to in s 46(2)(a). Section 46(2)(a) refers to “the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered.”

18. [108]

    There may be some problems with the adoption plans. The appeal books contained a “Paternal Adoption Plan”, which was amended in light of discussions at the hearing, and a “Maternal Adoption Plan” executed the previous year. The Court was told the plans had not been registered. The Court’s orders required both to be registered. The Court was also told that the registration had been effected by the plan being annexed to the Court’s orders. If that is so, then it is not apparent from anything I have located in the appeal books or the file, and it is difficult to reconcile with r 56.13 of the Uniform Civil Procedure Rules 2005 (NSW). Quite possibly nothing turns on this, but the position should be regularised; at the moment there is a seeming non-compliance with the orders.

19. [109]

    Turning to the substance of both adoption plans, a further curiosity is that although the primary judge did not find that Belinda was an Aboriginal child, parts of both plans proceed on the basis that she is an Aboriginal child:

20. [110]

    The Paternal (but not the Maternal) Adoption Plan states that “[Belinda’s] cultural plan is attached and will be registered with this adoption plan”. But no cultural plan was attached to the document which was reproduced in the Appeal books, or which appears in the Court’s file.

21. [111]

    Thus, inconsistently with the judge’s findings, but consistently with what his Honour should have found had the correct test been applied, both adoption plans proceed on the basis that Belinda is an Aboriginal child, and are not silent on Belinda’s cultural identity and links with her Aboriginal heritage.

22. [112]

    These inconsistencies should be remedied. But they need not trouble this Court, and are best addressed by the Equity Division. In addition to the power under the slip rule, an adoption plan may be reviewed by the Court on application by one of more of the parties to it. I propose that the Secretary be directed to apply to the Court to review the Belinda’s adoption plans, in order that provision may be made to secure the objects in s 46(2)(a).

Ground 1

1. [113]

   Until the conclusion of the hearing, there was only a single ground of appeal:

2. [114]

   The focus, accordingly, was the process by which the adoption order came to be made.

3. [115]

   The Secretary had commenced proceedings seeking an order for the adoption of the child in 2018. The matter was listed for hearing on Wednesday 26 June 2019. The only parties were the Secretary and the father, both represented by counsel. The father supplied short written submissions, dated 24 June 2019, which drew attention to the common ground that the child’s mother was Aboriginal, and that it appeared to be common ground that the child was to be treated as an “Aboriginal child” for the purposes of the Act. The submission then stated:

4. [116]

   The submission added:

5. [117]

   The transcript of 26 June 2019 confirms the point being raised at the outset:

6. [118]

   As anticipated, judgment was delivered the following day in Fischer v Thompson. His Honour’s reasons have been reproduced above. It had been plain at the hearing that the parties would seek to be heard as to the effect of Sackar J’s decision when delivered. By email dated 1 July 2019, the primary judge’s Associate advised counsel appearing, copying in their instructing solicitors, that “his Honour would appreciate receiving any further written submissions from the publication of Sackar J’s judgment by 5 pm on Friday 5 July 2019”.

7. [119]

   Four days later, on the afternoon of Thursday 4 July 2019, a further email was sent to the same parties by his Honour’s Associate. This email was more elaborate, and warrants reproduction in full:

8. [120]

   It is impossible to read that email as indicating anything other than a statement that what had been common ground at the hearing, according to the more easily satisfied test of an “Aboriginal child”, might no longer be common ground, and that the primary judge, in applying the test formulated by Sackar J, was actively considering the evidence which addressed the Aboriginality of the child’s ancestors and whether it warranted a conclusion that the child was an Aboriginal child.

9. [121]

   Two unfortunate things happened thereafter. The first was that a solicitor acting for the Secretary supplied, by email sent at 2:28 pm on Friday 12 July 2019 to the Associate, the Secretary’s further submissions in respect of the proceeding. They should have been copied to the lawyers acting for Belinda’s biological father. This did not occur until later that evening.

10. [122]

    Those submissions addressed the detailed facts in the Associate’s email and in particular stated, after referring to the evidence, that:

11. [123]

    By email sent at 6:12 pm on Friday 12 July 2019, another solicitor acting for the Secretary emailed a copy of the submissions to the solicitor employed by Legal Aid NSW, stating “Apologies, you were inadvertently omitted from the email below”. How that email came about was unexplained, and in particular whether there had been a telephone communication between the lawyers was unclear. Further, when counsel briefed by Legal Aid first learned that submissions had been supplied to the judge is unclear.

12. [124]

    On the following Monday afternoon, 15 July 2019, by email dated 2:05 pm, the Associate wrote to counsel and their instructors advising that his Honour would be handing down judgment at 9:30 am the following day.

13. [125]

    A little more than an hour later, counsel then appearing for Belinda’s biological father replied to the Associate as follows:

14. [126]

    Those written submissions accepted that the matters identified in para 1 were a complete summary of the evidence save for the “coloured” genogram tendered during the hearing. They accepted that whether the child was an Aboriginal child was a matter for the Court and maintained that having regard to s 126 of the Act, a conclusion that the child was Aboriginal was open. The submissions then continued:

15. [127]

    The submission then addressed the remaining paragraphs of the email and concluded that “the Court does not have power to make an adoption order”.

16. [128]

    It was accepted at the bar table that those were the entirety of the documents between the parties or the Court. I proceed on that basis. Even so, there are demonstrably large gaps in the evidence disclosing this phase of the litigation, including the following:

    1. (1)

       When did Belinda’s biological father’s lawyers first learn that it was no longer common ground that Belinda was an Aboriginal child? Was there communication between counsel shortly after the Associate’s email of 4 July 2019? In the ordinary course, it would be usual and appropriate for counsel to liaise with each other to see what each client’s attitude would be to the new issue raised by that email. The Court has no way of determining whether that occurred.

    2. (2)

       Nor is it even known when counsel, as opposed to the Legal Aid solicitor, received the Secretary’s supplementary submissions. Perhaps a draft was supplied at counsel level in advance of the final copy being served (the email which attached the Secretary’s supplementary submissions dated 12 July 2019 labels them “supplementary submissions – [child] (adoption) 11.7.2019.pdf”, suggesting that submissions had been drafted no later than the previous day).

    3. (3)

       Why did counsel for Belinda’s biological father fail to comply with the timetable? The entirety of this proposed ground of appeal is that the judge failed to have regard to submissions which were supplied late. There is no explanation for the delay. And there is no explanation for the lack of an explanation of an aspect which goes to the heart of the complaint.

    4. (4)

       I would regard it as unlikely in the extreme that his submissions were supplied without first obtaining the approval of his instructor. It is possible that the solicitor would have sought and obtained instructions from the client. It is quite possible that submissions were drafted well in advance of the deadline, and delays in obtaining instructions resulted in the non-compliance. Another alternative is that the fault was entirely attributable to the legal practitioners, as opposed to the client.

    5. (5)

       It must have been obvious when judgment was delivered and orders were made at 9:30 am on Tuesday 16 July 2019 that Belinda’s biological father’s submissions had been ignored or rejected, and it must have been obvious as soon as reasons were read, that the primary judge had proceeded on the basis that the evidence did not establish that the child was an Aboriginal child. That was precisely the circumstance in which an application to reopen and adduce further evidence had been flagged. Why was no such application made, either on the Tuesday morning, or later that day, or at some stage in the next 14 days, or indeed at any stage thereafter?

    6. (6)

       It is, to my mind, difficult to be unduly critical of the absence of any application then and there. It is possible that counsel formed the view, in light of the solemnity of the occasion from the perspective of Belinda, that nothing should at that stage be said. It is also possible that counsel lacked instructions (which may have been because they had been sought and not provided, or because they had not been sought).

    7. (7)

       But why was no application made thereafter? If consideration was given to making such an application, there is no evidence of it before this Court. If no consideration was given to making such an application, then once again there is no evidence of that before this Court. It is unknown whether the father was told that he had a choice, to make an application to the primary judge, or to seek leave to appeal, and if so what his instructions were.

    8. (8)

       All that is known is that some four weeks later, on essentially the last day provided by the rules, a notice of intention to appeal was filed. That gave a total period of three months for an appeal to be brought. A few days before the end of that extended three month period, a notice of appeal challenging the adoption order was filed.

17. [129]

    What follows should in no way be understood as an implicit criticism of counsel now appearing for the father. Yet the serious allegation was made that the primary judge made a decision contrary to natural justice. If that occurred, it was in part a consequence of the father’s non-compliance with the Court’s directions, and the matter has been determined on appeal, rather than much more expeditiously before the primary judge, for reasons which are entirely unknown.

18. [130]

    It must be the case that more information is available within the father’s camp than has been made available to this Court. That information may have supported the application, or hindered it. In the ordinary course, I would expect a candid explanation of the reasons for non-compliance with a direction where that non-compliance is central to an issue sought to be raised in this Court.

19. [131]

    The reasons range from the wholly excusable (illness or unforeseen unavailability) to the merely unfortunate (omitting to recall a deadline) to a calculated attempt to delay for as long as possible the making of orders opposed by the father. Time matters in all civil litigation. Time is of heightened significance in adoption. A court making a decision about the adoption of a child is required to have regard to the principle that “undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare”: s 8(1)(e1). That applies to this Court which is asked to set aside an adoption order, just as it applied to the primary judge. It makes the unexplained delay on the part of the father a powerful factor telling against the grant of leave.

20. [132]

    Belinda’s biological father’s appeal does not lie as of right, but by way of leave, and the explanation of the matters referred to above is, at least to my mind, central to the decision whether there should be a grant of leave.

21. [133]

    There is presently some debate as to the role of materiality when there has been a denial of procedural fairness. But it is not necessary to engage in that debate in order to resolve this appeal. In circumstances where substantially the same orders would be made irrespective of whether Belinda is or is not an Aboriginal child, where there has not been a full disclosure of the circumstances in which the alleged denial of procedural fairness occurred, and where there has already been a delay of almost a year and a retrial would delay certainty to Belinda for many more months, I would not grant leave.

22. [134]

    In order to establish that the denial of procedural fairness was material, Belinda’s biological father adduced further evidence supplementing what had been before the Court, directed to identifying an ancestor who satisfied the three-limb test of Aboriginal person in the Aboriginal Land Rights Act. The tender was opposed, and the matter was argued at a time when ground 1 was the only ground of appeal. I have drawn upon the documentary aspects of that evidence above, to explain why I am satisfied that Belinda was an “Aboriginal child” on the correct test. To that extent, the additional evidence is appropriately before this Court. Otherwise, it is not necessary to address the contested portions of the affidavit which will have no bearing upon the outcome of this appeal.

Orders

1. [135]

   For those reasons, I propose that there be a grant of leave confined to proposed ground 1A, that the Secretary be directed to apply to the primary judge, within 28 days of today, to review the adoption plans, but that the appeal otherwise be dismissed. The purpose of reviewing the adoption plans will be (a) to regularise the fact that no adoption plan appears to have been filed, despite the Court’s orders, (b) to attach the cultural plan which appears not to have been attached, and (c) to ensure that the plans make appropriate provision concerning Belinda’s Aboriginal heritage, in accordance with s 46(2)(a).

2. [136]

   The applicant has had some success on a point not argued at trial, and not opposed by the respondent, but has failed to set aside the adoption order. In circumstances where the Secretary did not seek an order for costs, there should be no order as to costs.

3. [137]

   I propose these orders:

4. [138]

   BASTEN JA: I agree with the orders proposed by Leeming JA and with his reasons in respect of ground 1A of the proposed appeal. Because it was important that the opening paragraphs of his reasons should commence the judgment of this Court, his reasons are published first. (That is not to say that, as occurs in the United Kingdom Supreme Court, the lead judgment should not usually go first.)

Ground 1: procedural unfairness

1. [139]

   I am content to refuse leave to appeal with respect to the claim of procedural unfairness (ground 1), but for different reasons. These may be outlined as follows. First, there is a question as to whether procedural unfairness, like bias, [1] should not be considered first. Arguably that course should be taken because, if made out, the unfairness will vitiate the exercise of judicial power in the court below. However, such a conclusion need not necessarily be accepted on an appeal by way of rehearing. At least that is so where the procedural unfairness can, as in this case, be rectified on appeal. [2]

2. [140]

   Secondly, I agree that the applicant should have explained to the primary judge why the opportunity to put in further submissions was not availed of within time. That explanation, not having been provided to the primary judge, should have been provided to this Court. On the other hand, the Secretary, who sought to preserve the orders made, did not file evidence that the father had been advised of the Secretary’s change in position before the submissions were served on the evening of Friday, 12 July, on the solicitor for the father. Up until that point, the father (and his lawyers) may have assumed that no further submission would be necessary because they would rely upon the submissions of the Secretary. In these circumstances, I would infer that the father’s belated submissions were the product of an expectation that the common approach would be maintained, that assumption being based on what had been common ground until Friday evening, namely that Belinda was of Aboriginal descent.

3. [141]

   The submissions were filed the next working day. The judgment delivered the day after that did not refer to them, nor to the suggestion that there should be an opportunity for further material to be presented to the Court, if it was inclined not to accept Belinda’s Aboriginal descent. Whilst there was a breach of the Court’s direction, it was not egregious; it was not the filing of extra material after judgment is reserved without leave to take any such step. If the submissions had included an explanation as to why they were late, perhaps on the basis set out above, together with the need to obtain further instructions, it would have been procedurally unfair for the judge to disregard them. On the other hand, if the judge did not see the submissions before delivering judgment, the circumstances would be analogous to those which arose in Re Refugee Tribunal; Ex parte Aala, [3] a case in which the Tribunal, mistakenly thinking that it had a particular document, confirmed to the applicant that it had it, when it did not.

4. [142]

   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.

5. [143]

   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.

6. [144]

   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”

1. [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.

2. [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:

3. [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.

4. [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]

5. [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]

6. [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]

7. [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]

8. [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]

9. [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.

10. [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.

11. [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.

12. [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.

13. [157]

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

14. [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:

15. [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]

16. [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]

17. [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:

18. [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.

19. [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”.

20. [164]

    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”.

21. [165]

    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]

22. [166]

    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)”.

23. [167]

    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.

24. [168]

    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.

25. [169]

    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]

26. [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]

27. [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:

28. [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.

Conclusions

1. [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.

2. [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.

3. [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.

4. [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.