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8. New South Wales

From 1911 until 1989 a number of NSW laws as well as Commonwealth ordinances applied in the ACT.
The laws

Following self-government in 1989 the ACT passed its own laws.

Decade Laws applying specifically to General child welfare laws/adoption

Aboriginal children laws

1810s Governor Macquarie: Proclamation

dated 4 May 1816
Aborigines declared subject to the
protection of British law, but any
infractions may render them outlawed
and leave to loss of privileges.

1840s Act to Provide for the Care and Education

of Infants Who May Be Convicted of
Felony or Misdemeanour 1849
Where a child under the age of 19 is
convicted, court may assign care and
custody of the child to such persons
as make application where the court is
satisfied it is for the benefit of the child.
Repealed by Infants Conviction Act 1901

1880s State Children Relief Act 1881

Established State Children’s Relief Board.
‘Boarding out’ officers may remove
children from charitable institutions and
arrange for them to be boarded out in
licensed homes.
Regulations may be made prescribing
terms and conditions upon which State
children may be ‘adopted’ by fit persons.
Repealed by State Children Relief Act
1901

1890s Protection of Children Act 1892

Unlawful for certain persons without a
written order of a Justice of the Peace to
receive into care a child under the age of
three ‘to adopt, rear, nurse or otherwise
raise for payment’.
Repealed by Children’s Protection Act
1902

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Decade Laws applying specifically to General child welfare laws/adoption

Aboriginal children laws

Custody of Children and Children’s

Settlements Act 1894
Where a parent applies for an order for
the return of a child the court may refuse
the order where it is of the opinion that
the parent has abandoned or deserted
or neglected the child or otherwise
so conducted himself or herself that
the court should refuse to enforce the
parent’s right to custody; or where the
tender age or state of health of the child
render it expedient that the child should
remain with the child’s mother or some
other person.
Repealed by Infants Custody and
Settlements Act 1899

Infants Custody and Settlements Act

1899
Similar to 1894 Act.
Repealed by Children’s Protection Act 1902

1900s Aborigines Protection Act 1909 Infant Convicts Adoption Act 1901
This Act gave the Board for the Where an infant under 19 years is
Protection of Aborigines statutory convicted of a felony or misdemeanour,
powers in relation to all reserves. the court may assign the care or custody
of the child to an applicant willing to
Definitions
take charge of him and provide for his
aborigine – any ‘full blooded aboriginal maintenance if judged to be for infant’s
native of Australia, and any person benefit.
apparently having an admixture of
aboriginal blood who applies for or is in Repealed by Child Welfare Act 1939
receipt of rations or aid from the Board
or is living on a reserve’ State Children Relief Act 1901

neglected child – a child found by Established State Children’s Relief Board

the court to be neglected under the with authority to direct the removal of
Neglected Children and Juvenile State children; grant licences for the
Offenders Act 1909 reception of State children as boarders;
apprentice any child; approve persons
Key Provisions applying to ‘adopt’ State children; and
Duty of the Board to provide for the arrange terms of ‘adoption’. Boarding
custody, maintenance and education of out officer may remove State child from
the children of ‘aborigines.’ Board may asylum, reformatory school, and arrange
apprentice ‘the child of any aborigine or for a child to be boarded out.
neglected child of any person apparently
Repealed by Child Welfare Act 1923
having an admixture of aboriginal blood
in his veins’ subject to the Apprentices
Act 1901.

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Decade Laws applying specifically to General child welfare laws/adoption

Aboriginal children laws

(The Apprentices Act 1901 provided for a Children’s Protection Act 1902
minimum age of 14 years for apprentices
An offence for any person to receive a
and regulated the terms and conditions
child under three to adopt, rear, nurse or
of apprenticeships.)
otherwise maintain for payment a child,
The Board vested with power over all other than a guardian, manager or officer
reserves including power to remove of an institution or private charity or a
people from them. Entry onto reserves person exempted by Minister. An offence
by non-Aborigines forbidden. also to neglect or ill-treat a child. A child
so found may be boarded out, sent to
Regulations may be made for care,
an industrial school or committed to the
custody and education of Aborigines
care of a relation or other person.
and prescribing the conditions on which
certain children may be apprenticed Repealed by Child Welfare Act 1923
under the Act.
Neglected Children and Juvenile
Regulations
Offenders Act 1905
Aborigines Protection Act Regulation
1909 – ‘every Aboriginal male under the Definitions
age of 14 years, and every unmarried neglected child – includes a child having
Aboriginal female under the age of 18 no visible means of support or no fixed
years shall, when so required by the abode; who sleeps in the open air;
manager, reside or take his or her meals who without reasonable excuse is not
and sleep in any building set apart for provided with sufficient and proper food,
such purposes. nursing, clothing, medical aid or lodging;
whose parents are habitual drunkards;
Aborigines Protection Act 1915 – ‘every
or who is living under such conditions as
able bodied aborigine, half-caste and
to indicate that the child is lapsing into a
other person resident on one of the
career of vice and crime.
Board’s stations shall do a reasonable
amount of work as directed by the Key provisions
Manager.’ Anyone persistently refusing A ‘neglected’ or ‘uncontrollable’ child
to do work when required shall have may be apprehended and brought
all supplies for himself and his family before a court which can release the
withdrawn until he resumes work and child on probation, commit the child to
shall be liable to be removed from the an institution until the age of 18 years or
station. to the care of a willing person. A child
Repealed by Aborigines Act 1969 in an institution may be apprenticed in
accordance with the Apprentices Act
1901.
Repealed by Child Welfare Act 1923

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Decade Laws applying specifically to General child welfare laws/adoption

Aboriginal children laws

1910s – Aborigines Protection Amending Act Child Welfare Act 1923

1920s 1915
Court given similar power as in
Removed the requirement that an 1905 Act to commit a ‘neglected’
Aboriginal child had to be found to or ‘uncontrollable’ child. All children
be neglected before the Board could committed to or inmates of an institution
remove him/her. in the custody are under the control
of the superintendent of the institution
Key provisions
until they attain the age of 18 or are
‘The Board may assume full control and discharged, removed, apprenticed or
custody of the child of any aborigine, if placed out. A child may be adopted if
after due inquiry it is satisfied that such the child’s parents or guardian consent.
a course is in the interest of the moral Consent may be dispensed with if the
or physical welfare of such child’ and court is of the opinion that the parent or
remove such child to such control and guardian has deserted or abandoned the
care as it thinks best. Parents of a child child.
removed in this way may appeal to a
court. Amended by
Child Welfare (Amendment) Act 1924 –
Apprenticeship of children by the Board
court may dispense with consent in any
no longer subject to the Apprentices
special circumstances where it deems it
Act 1901. The Board may apprentice
expedient to do so.
children ‘on such terms and conditions
as it may think under the circumstances Repealed by Child Welfare Act 1939
of the case to be desirable’. Every child
so apprenticed who refuses to go to
the person to whom the Board has
apprenticed him/her may be removed,
for the purpose of being trained, to some
home or institution as the Board may
arrange.
Repealed by Aborigines Act 1969

Aborigines Protection (Amendment)

Act 1918
Definitions
Aborigine – ‘any full-blooded or half-
caste aboriginal who is a native of New
South Wales’.
Key provisions
Provisions in 1909 Act giving Board
power over a person ‘apparently having
an admixture of aboriginal blood in his
veins’ removed.
Repealed by Aborigines Act 1969

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Decade Laws applying specifically to General child welfare laws/adoption

Aboriginal children laws

1930s Aborigines Protection (Amendment) Child Welfare Act 1939

Act 1936 Replaced the Child Welfare Act 1923.
Definitions Definitions
Definition of ‘aborigine’ in 1918 Act neglected child – definition expanded to
amended by omitting reference to New include a child who is destitute, whose
South Wales and substituting ‘Australia parents are unfit to retain the child or
and who is temporarily or permanently who without lawful excuse does not
resident in New South Wales’. attend school regularly
Key provisions ward – includes a child or young person
Court may order the removal of an who has been admitted to State control,
‘aborigine’ who is ‘living in insanitary or committed to an institution or admitted
undesirable conditions’ to a reserve or a to a hostel for expectant and nursing
place controlled by the Board or to the mothers
State from whence he/she came. Key provisions
Repealed by Aborigines Act 1969 Where a court finds that a child is
neglected it may release the child on
certain conditions; commit the child
to the care of the Minister to be dealt
with as a State ward or commit the
child to the care of an institution. The
Minister of Child Welfare is the guardian
‘of every child...who becomes a ward
to the exclusion of the parent or other
guardian’. Minister may direct the
removal or transfer of any ward; remove
any child from any charitable institution,
depot, home or hostel and cause him/
her to be apprenticed, boarded out,
placed out or placed as an adopted
boarder. An adoption order may be
made if it promotes the welfare and
interests of child. Parents or guardian
must consent to adoption but consent
may be dispensed with where the court
deems it just and reasonable to do so.
Amended by
Child Welfare Amendment Act 1961 –
where payment of maintenance for child
who is an inmate of a charitable depot,
home or hostel has not been paid for
1–6 months, the child may be admitted
to State control and the person in charge
of the charitable depot, home or hostel
deemed to be the child’s foster parent.

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Decade Laws applying specifically to General child welfare laws/adoption

Aboriginal children laws

Child Welfare (Amendment) Act 1966 –

where it appears to an officer or person
in charge of a depot, home or hostel
that the welfare of the child may be
promoted, the child may be committed
by a court to the care of Minister to be
dealt with as a ward admitted to State
control; apprenticed, boarded out,
placed out or placed as an adopted
boarder.
Repealed by Children (Care and
Protection) Act 1987

1940s Aborigines Protection (Amendment)

Act 1940
Aborigines Protection Board replaced by
Aborigines Welfare Board. An Aboriginal
child found to be neglected under the
Child Welfare Act 1939 to be committed
to the Board as a ‘ward of the Board’.
Definitions
child – ‘an aborigine under 18 years of age’
ward - ‘a child who has been admitted
to the control of the Board or a home
constituted under the Act’
Key provisions
Duties of the Board include ‘assisting
aborigines in obtaining employment’
and ‘maintaining or assisting to maintain
them whilst so employed, or otherwise
for the purpose of assisting aborigines to
become assimilated into the general life
of the community’. The Board no longer
has duty of education of Aboriginal
children but still has duty of custody and
maintenance. It may establish homes for
the reception, maintenance, education
and training of wards.
Where in the opinion of the Board a
ward is not ready for employment or
apprenticeship ‘the ward may be placed
in a home for the purpose of being
maintained, educated and trained’.
Wages of children to be paid to the
Board and kept in a trust account for use
by the Board for the ward’s benefit until
the ward turns 21.

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Decade Laws applying specifically to General child welfare laws/adoption

Aboriginal children laws

An offence to try to communicate with

a ward in a home or enter any such
home without the consent of the Board.
Where a children’s court finds that a
child is neglected or uncontrollable
under the Child Welfare Act, the court
may deal with the child in accordance
with that Act, except that where the
court decides that the child should be
admitted to State control the child shall
be committed to the care of the Board
as a ward; and where the court decides
to commit the child to an institution the
child shall be committed to an institution
established under this Act.
Repealed by Aborigines Act 1969

Aborigines Protection (Amendment)

Act 1943
The Board may issue (and cancel)
exemption certificates whereby an
Aboriginal person ‘shall be deemed
not to be an aborigine or a person
apparently having an admixture of
aboriginal blood’. The Board may board-
out children admitted to its control.
Once an Aboriginal child has attained
the minimum school leaving age the
child is to be apprenticed or placed in
employment. The Board is the authority
in relation to children admitted to its
control with power over removal and
transfer of wards, apprenticing wards
and approving custody of wards.
Repealed by Aborigines Act 1969

1960s Aborigines Protection (Amendment)

Act 1963
Repeal of provisions allowing a
magistrate to send ‘mixed blood’
Aboriginal people to a place controlled
by the Board; and those which made it
an offence to take an adult Aboriginal
person away from NSW and for non-
Aboriginal and Aboriginal people to live
together.
Repealed by Aborigines Act 1969

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Decade Laws applying specifically to General child welfare laws/adoption

Aboriginal children laws

Aborigines Act 1969

Abolition of Aborigines Welfare Board.
Aboriginal children under the care of the
Aborigines Welfare Board to become
wards of the State. Aboriginal children’s
institutions deemed to be depots
under the Child Welfare Act 1939 and
subsequent child welfare legislation.

After Aboriginal Protection (Amendment) Act 1940, Aboriginal children were removed under the Child
Welfare Act 1939 and subsequent child welfare legislation.

1960s Adoption of Children Act 1965

The welfare and interests of child are the paramount consideration. In making an
adoption order the Court may dispense with consent if a person cannot be found
or identified; the person is not capable of properly considering the question; the
person is unfit to discharge the obligations of parent or guardian having abandoned,
deserted, neglected or ill treated a child; the person failed to discharge obligations of
parent or guardian; or there are any other special circumstances by reason of which
consent may be dispensed with.
Amended by
Adoption of Children Amendment 1966 – court power to dispense with consent due
to ‘other special circumstances’ removed. Court may dispense with consent where
the interests and welfare of child are promoted by the adoption order.
Adoption of Children (Amendment) Act 1980 – established the Adoption Tribunal.

1980s Children (Care and Protection) Act 1987

Definitions
child in need of care – where provision is not being made for the child’s care; the child
is being or is likely to be abused; or there has been an irretrievable breakdown in the
relationship between the child and parents
Key provisions
Introduced Aboriginal Child Placement Principle. Concept of ‘neglect’ replaced by
‘behaviour that harms the child’.

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