First Nations Child Removal and New South Wales Out-of-Home Care: A Historical Analysis of the Motivating Philosophies, Imposed Policies, and Underutilised Recommendations

Abstract

Interactions between First Nations and non-Indigenous Australians have long been shaped by notions of Western authority and First Nations inferiority, both culturally and biologically. From invasion to the present day, forced removals and intergenerational trauma have deeply affected First Nations Australians, particularly through the operations of interacting colonial systems, including child removals and placements. Throughout the 20th century, systematic child removals led to the Stolen Generations, a tragic example of power imbalances, paternalism, and Western ideals, perpetuating trauma across generations. This article examines the context of First Nations removals by the state under the lies of benevolence, exposing the evolution of the colonial system and the systematic dislocation of culture and identity. It highlights the social, legal, and political factors that enabled removal practices and their enduring consequences, including the legacy of forced child separations and cultural erasure. This article argues that policies of absorption and assimilation served to further isolate children from their families, communities, and kinship networks. In doing so, it contends that the systematic disruption of First Nations communities is part of an ongoing process of subjugation, continuing the colonial agenda of cultural and familial disintegration.

1. Introduction

Any understanding of how Aboriginal people view child protection, welfare and juvenile justice issues today must be contextualised by the history of colonial intervention aimed at disrupting Indigenous family life (Cunneen and Libesman 2000, p. 101).

Interactions between First Nations and non-Indigenous Australians or the settler colony have historically been premised on discourses of European superiority and First Nations inferiority, both biological and cultural. The experience of child protection, welfare, and care intervention for First Nations Australians throughout the 20th century—resulting in what is now known as the Stolen Generations—is arguably the most tragic and abhorrent example of how power imbalances, paternalism, and interventions based on Western notions of best interest can result in the fracturing of communities and the creation and reproduction of trauma affecting multiple generations (Hermeston 2023). The racist and heavy-handed approaches employed to facilitate and justify these removals have resulted in a system that ultimately punishes parents, families and communities through the permanent removal of children. Limited self-determination within care and placements arrangements are still evident, with First Nations people continuing to have a fractured and contentious relationship with the imposed Western approaches to child protection, care, and welfare.

This article identifies the historical philosophies, priorities, and policies that have shaped and developed the child protection system, along with the major investigations and inquiries carried out with respect to this system. There is a specific focus on out-of-home care (OOHC) and the evolution of approaches across the various policy eras identifiable in historical records. In this analysis, there is the argument that both government and non-government OOHC service providers continue to operate under a Eurocentric, monocultural, and paternal philosophy, which operates to control communities, bastardising culture, and which is not capable of supporting First Nations cultural connectedness (Krakouer 2018; Beaufils 2022; Warren et al. 2024). Contemporary OOHC retains much of its historic colonialist framing, operating to ensure that First Nations people remain disempowered, ignored in decision making, removed from community, and a problem to be solved (Wolfe 2006, p. 387). Unlike previous attempts, which simply historise child protection through the overlapping waves of legislation (Wright et al. 2017), this article seeks to expose its colonial evolution, showing the reinscription of subjugation for First Nations people in the New South Wales (NSW) child protection system.

This will be shown to be evident in continued child removal, examined across various eras, including the following: invasion and resistance in the frontier warfare; the civilising and institutionalising of Black natives; the segregation/protectionism/assimilation era of the Aboriginal Protection Board (APB); and the continued activism of communities before and after the Bringing Them Home report (Wilson 1997), specifically within NSW. The current high and increasing rates of child removal and placements of First Nations children in OOHC following the landmark Bringing Them Home reports again shows that attempts to reform the OOHC system are failing and this will continue. The Western-oriented policy grounding of child protection, combined with the looming threats of removal interventions, has created a fundamentally oppressive relationship between the department and First Nations communities. The flawed policies, one-way communication, overt stereotyping, and limited genuine acknowledgement of the traumas felt by communities have resulted in complete distrust on the part of First Nations communities (Swan and Swan 2023).

This paper tracks the attempted reforms and the activism of First Nations communities that have highlighted the violent underpinnings of child protection policies. In order to avoid falling into the trap of a new iteration of colonialism, it is first necessary to understand and contextualise the history of removals and the development, structure, and operation of child protection systems as they relate to First Nations people in NSW.

2. First Nations Child Removal and Care in NSW

For non-Aboriginal families, bonds between parents and children have been considered sacrosanct, and the experience of growing up within the circle of the family is an inviolable right to be disrupted only through strictly controlled legal processes to protect “the best interests” of the child. By contrast, Aboriginal families have been viewed as sites of physical and moral danger and neglect and the rights of parents and children to remain together denied (Haebich 2000, p. 13).

NSW has a long history of First Nations child removal, intergenerational harms and placements in various forms within the OOHC system. This strategic removal and separation began soon after European arrival, and has continued to the present day. Historically, removal and care have been variably premised upon policies centring the exclusion, marginalisation, segregation, and later the conditional inclusion (assimilation) of First Nations children (McGrath 1995; Murphy 2013, p. 206; Reynolds 2006). These policies were applied to First Nations culture and people, not with or for them, and can thus be seen as an extension of colonial power exerted on communities rather than policies or practices that served them. Formal government policy structures began with the establishment of the Native Institution in Parramatta (1814), and then Black Town (1829) (Norman 2015; Andrew and Hibberd 2000), followed by the introduction of protection-era legislation throughout the 19th and 20th centuries (Figure 1). These institutional models were based on policies in UK and US contexts, and today’s OOHC frameworks continue as evidence of this legacy (Silink 2017).

3. Invasion and Resistance (1788 to 1800s)

The invasion of the British in 1788 began the disruption of generations of parenting, child rearing, kinship, and care practices of First Nations people. It heralded the introduction of Eurocentric systems of intervention and signalled a colonial desire for conformity and the homogenisation of First Nations peoples. This moment in history resulted in a clash of two utterly different societies and cultures: one centred on individuality, wealth accumulation, land ownership, and colonial prosperity; the other an intrinsically rich system of custodianship, connection, and community. Aboriginal ways of living were fundamentally and irrevocably interrupted.

The colonial government aspired to extend its power and influence, whilst also addressing the ever-growing need for resources, including expanding control over land (Baldry and Green 2002) and exploiting First Nations labour (Ward 1994). Aboriginal people resisted, led by freedom fighters such as Woglomigh, Pemulwauy, Windradyne, and Tarenorerer, who fought to maintain connection to land, community, and family but were seen as a threat and denied a place in the new settler society (Van Krieken 1992; Thompson 1980; Trainor 1994).

The systems and processes of child welfare, removal, and institutionalisation were well documented in this early colonial period. Sexual contact between the colonisers and First Nations people, often forced, resulted in births of “light-skinned” or “half-caste” children (Van Krieken 2004). These children, along with First Nations children generally, would become the central target of legislation, policies, and practices of the separation era (Lavarch 2017). Initially, all children in the colony who were orphaned or abandoned, as their parents or family were unable to provide for them, did not want them, or had died through disease or famine, were accommodated in orphanages, prisons, or asylums under vagrancy laws, often with adults (Wright et al. 2017). The first strategic removals of Aboriginal children began as First Nations people began to be commercialised, both in the sense of the exploitation of their labour and the transport and presentation of them to international audiences, especially in Britain (Brook 2001, p. 37). Bennelong and a young boy named Yemmerrawanie represent the clearest examples of this. Both were taken to England by Governor Arthur Phillip. They performed First Nations songs and dances for King George III on 3 May 1793. Following the performance, both young men were unable to immediately return home. They were taught to read and write in English and given fine clothing, but they continued to live as show pieces for London’s elite.1 After a year of declining health, Yemmerrawanie died in May 1794 at age 19. Bennelong was eventually returned to Australia in September 1795. His experiences exemplify the violence, paternalism, and aspirations of the young colony of NSW, which were fundamentally incompatible with the wellbeing of First Nations peoples.

4. Civilising Through the Black Native Institution (1814 to 1833) and the Emergence and Decline of Institutionalisation (1820 to 1880)

The Age of Enlightenment, which encompassed much of the 17th and 18th centuries, promoted benevolence and the idea that education would provide an important foundation for a successful life. Adopting similar policies to those of Britain and its other colonies, the Australian colonies began to establish formal schooling systems in the late 18th century (Bessant and Watts 2016). The drive for schooling coincided with a rise in a social conscience and the emerging idea of supporting and improving child welfare. Driven by the religious middle class, there was a sustained push for all children to be educated. Calls for compulsory schooling as a way to stamp out vice, ameliorate the effects of poverty, and promote social order took hold in the early colony of NSW (Hague 2007, p. 115). In this pursuit of “welfare”, Aboriginal children living within the growing colonial settlement of Sydney were subjected to coercive child-removal policies and provided an education, which arguably served the more immediate priorities of assimilation and providing a cheap source of labour.

The governor of NSW from 1810 to 1821, Lachlan Macquarie, was disturbed by First Nations acts of resistance. In response, and to ostensibly improve conditions for Aboriginal people, he established a school for Aboriginal children in Parramatta called the Native Institution. Its mission was the “civilisation of natives” (Sherington and Campbell 2009). First Nations people were to be “brought up” to the same level/status as the European population through the civilising effect of a Western education. He dispatched military parties with instructions to procure Aboriginal children for the Native Institution by removing them from their families, thus increasing the number of them under supervision (Reece 1967; Norman 2015). The intention was that these children would be trained as labourers or maids in order to be “useful” citizens bought up in habits of “industry and decency” (Sherington and Campbell 2009; Godfrey 1995; Fletcher 1989). This form of “care” was justified as embodying a “humanitarian” approach. Similarly, across the globe, First Nations people were being subjugated under the myth of benevolence (Dettlaff 2023).

At the Native Institution at Parramatta, Aboriginal children taken from the Sydney area were taught to read and write English, to read and recite Bible scriptures, and to use arithmetic (Wigglesworth et al. 2018). In doing so, they would “lose their language, their culture, their heritage and their Aboriginal way of life” (Han 2015). For the Dharug community (the traditional custodians of the lands that became Parramatta), this schooling was entirely irrelevant to their way of life, and their Elders feared the destruction of their values (Kerwin and Van Issum 2013). From the late 1820s through to the 1880s, the government and philanthropists in Sydney worked together to operate such institutions, claiming concern about each Aboriginal child’s soul, while also considering the future labour needs of the state. These partnerships aimed to “sweep children from the mean streets into institutions” in Sydney and Parramatta. After training, children were apprenticed out as domestic servants and farm labourers or into trades of various kinds. These, and other such industrial and reformatory schools across the colonies, have been described as “little less than prisons” and “a little less than hell” because their conditions were extremely poor, mortality was high, disease was rampant, and the moral climate was scandalous (Picton and Boss 1981). This became known as the period of institutionalisation.

In the UK, the requirement of parental consent for child removal was abolished in 1854, resulting in a widening of the state’s powers of compulsory committal (Kidd 1997). In the absence of meaningful intervention and to reduce the surging numbers of removals, the British government and supposedly well-intentioned philanthropists literally exported as many as 100,000 “home children” to Canada between 1869 and the Great Depression of the 1930s to serve as cheap farm labour (Committee on Health 1998). Across Australia, similar powers were enacted in 1865 with, for example, the Industrial and Reformatories Schools Act (Act no. 8/1865, 29 NSW No. 8), which authorised the removal of any destitute child under 17 years old found wandering or begging in the streets; dwelling with a reputed thief, prostitute or drunkard; or born of an Aboriginal or half-caste mother. This approach became a mainstay of Sydney colonial life through to the 1880s, when it was challenged by the government’s emerging preference for boarding-out and child-fostering schemes that would come to signify the protectionist era.

5. The Aborigines Protection Board (1880 to 1940)

The protectionist era represents a sustained period of non-freedom and segregation for First Nations people in NSW. Draconian legislation restricted every facet of their lives (Davis 2019b). First Nations families and communities had been denied control over their children since the emergence of the institutionalisation period, and the powers exercised by the colonial government over child welfare and OOHC increased dramatically in the 1880s with the introduction of the Aborigines Protection Board (APB) (later becoming the Aborigines Welfare Board), which operated from 1883 to 1969 (New South Wales et al. 1982).

Parliamentary debates at the time of the creation of the APB referred to the need to take “near-white” or “half-caste”2 children from their mothers and train them in institutions (Chisholm et al. 1985). These children could also be placed into the homes of non-Indigenous families for the purpose of education and being given a better life:

We have striven to induce parents to send their children to school, offering every inducement to them to do so, chiefly by providing decent clothing for them and granting a half-ration of food to all who regularly attend.3

While non-Indigenous child welfare became the concern of the NSW State Children’s Relief Department, which was established in 1881, the APB had exclusive responsibility for administering all matters relating to First Nations people, and in 1910 it would gain legislative authority over First Nations children (Godfrey 1995). Despite being developed at the same time as the NSW government’s child welfare system, the APB had different powers and practices, which meant that welfare provisions for First Nations children were developed separately, in the context of different colonial motives.

The ever-increasing number of First Nations people of mixed parentage raised the level of concern from the non-Indigenous population as to how these “mixed” children would fit into society. The APB was designed to facilitate a more intense form of intervention and control (Read et al. 1998), to “smooth the dying pillow” of what was assumed to be a soon-to-be-extinct Aboriginal race (Wilson 1997). Amongst a slew of powers and responsibilities, the APB controlled Aboriginal child welfare and the removal of children until 1969 (Edwards and Read 1989), which interrupted communal parenting and disrupted ceremonies (Tomison 2001). It also controlled the removal/dispersal of Aboriginal people, who were generally displaced from their lands and communities.

According to C. D. Rowley, non-Indigenous settlement in Australia led to the gradual progression of the First Nations people from tribesmen to inmates, from communities to gaols (Rowley et al. 1972). This was especially true for the children. On the larger “stations”, Aboriginal children were removed to dormitories where they ate and slept separately from their parents.4 This practice, established by the missionaries and continued by the APB, was intended “to break the sequence of indigenous socialisation so as to capture the adherence of the young, and to cast scorn on the sacred life and the ceremonies which remain as the only hold on continuity with the past” (Chisholm et al. 1985).

Although the NSW APB was originally set up to “protect Aboriginal populations from the damage done to them by white settlement”, it formed the basis from which a separate Aboriginal child welfare system could be established (Tomison 2001). Practices emerged to indoctrinate “half-caste” or fair-skinned First Nations children into white society, as it was believed that they could be easily integrated and “lose their First Nations identity” (Wilson 1997, p. 24). A Select Committee (Wilson 1997)5 recommended the appointment of Protectors of Aborigines but was not very specific about their role in relation to children:

The education of the young will of course be amongst the foremost of the cares of the missionaries; and the Protectors should render every assistance in their power in advancing this all-important part of any general scheme of improvement.

(Wilson 1997)

In 1910, with the granting of authority over Aboriginal children, the APB would begin a pattern of massive interference with First Nations culture (Read et al. 1998). It was mandated to physically separate the “full-blooded” people, allowing them to die out, and re-socialise the “mixed-race” children into colonial society as “White” (Haebich 1996). At this stage, like all children in NSW, First Nations children were only to be removed from their parents if neglect could be proven before a court. In 1915, the NSW APB was given ultimate powers to remove them without a court hearing, parental consent, or proof of neglect (Manne 2001). This represented a clear departure from the supposedly benevolent welfare philosophies that had informed the institutionalisation period.

The Australian Aboriginal Progressive Association was formed in Sydney to oppose the APB. Its inaugural president was Fred Maynard. It was believed by communities that the state was using children as “hostages” to threaten their parents in order to maintain order and control (Godfrey 1995). If parents did not consent to their children’s enrolment in “apprenticeship schools” or reformatories, they were threatened with prosecution.

Four generations of my family went without parental [sic] love, without mother or father. I myself found it very hard to show any love to my children because I wasn’t given that, so was my mother and grandmother.

—Carol, personal story in the Bringing Them Home report

Children under 10 years who came into the APB’s custody were sent to two main locations: Bomaderry, near Nowra, which was a children’s home managed by the United Aborigines Mission, or, from 1923, the APB-built and -managed Kinchela Aboriginal Boys’ Training Home near Kempsey. Kinchela later became a home for school-aged boys who had also been removed, and there were between 30 and 50 boys at the home at any given time until its closure in 1970 (Drewitt-Smith 2018; Hanson 1979; New South Wales and Aborigines Protection Board 1881–1941; Parry 2007; Thinee and Bradford 1998). Children not placed in homes could also be placed in the care of non-Indigenous families via fostering and adoption.

6. Protection to Welfare, Boarding-Out, and Control (1940–1970)

The 1940s represented a period of re-evaluation of child welfare and care, moving from protectionism to approaches informed by the goals of biological absorption and assimilation. The continuing mistreatment of children whilst in state care and institutions had created widespread public concern that led to the emergence of two care providers: government and non-government services. This separation was to provide more accountability and provide better protection for children in care, preventing the further harm and maltreatment of children and young people whilst in state care (Tomison 2001, p. 46). For First Nations people, the APB was replaced by the Aborigines’ Welfare Board (AWB) in 1940, and with new legislation came the new rhetoric of “assimilation”—a policy that was to be enthusiastically embraced throughout the entire life of the AWB. Following World War II, it was untenable for Australia to maintain its existing treatment of First Nations people through the understanding of the changes globally and the action needed locally. Assimilation promised to deliver “citizenship rights and social equality to indigenous people” (Perkins et al. 1951–2008). It was pursued with vigour and conviction but in practice led to increased child removals through a new emphasis on compulsory schooling for children and a shift to locate First Nations child welfare within mainstream state- or church-run homes and institutions (Goodall 1990; Humpage 2010). “[Aborigines must] be assisted to raise themselves to a greater sense of their responsibilities and must strive to attain the white man’s standard” (Chisholm et al. 1985, p. 20).

During this period, the child protection “pendulum” (Tomison and National Child Protection Clearing House 2003) swung from institutional care to more family-based OOHC, with the focus on the foster care of First Nations children by non-Indigenous families. Formal adoption was emphasised, with non-Indigenous families taking Aboriginal children into their homes and introducing them to “the lifestyle, habits and thinking of white people” (Van Krieken 1992). Drawing on ABS research, Robert Manne suggested that nationally between 1910 and 1970 at least 20,000 to 25,000 children of mixed descent were forcibly removed from their families and placed in state-run institutions or missions or were fostered out to non-Indigenous families (Manne 2001).

A new development, however, was the system of “boarding-out” First Nations children, which was authorised in 1943 by an amendment of the Aborigines Protection Act 1909 (25/1909).6 At first, the AWB spoke of fostering only those children who were “temperamentally unsuited” to institutional life. By 1953, however, foster care had become the preferred option:

The best substitute for its own home is a foster home, with competent and sympathetic foster parents. Failing this, the only alternative is a Home under management of the Board’s own officers (Chisholm et al. 1985). Initial reports indicate children were boarded-out with families on Aboriginal reserves or stations, in private homes off reserves, or with “approved Aboriginal families” (a dozen or so each year). Placements with non-Indigenous families appear as a benefit from 1956:

Efforts were made late in 1955 to secure foster homes for these children amongst white people. Furthermore, this was regarded as being a positive step in implementing the Board number 1 policy of assimilation.7

The AWB annual report of 1956 states that more than 30 Aboriginal children were placed with white foster parents and that after a trial period of 6 months the scheme “ha[d] proved an unqualified success”.8 Remarkably, no outcomes were referred to or assessed against, and the report does not disclose the cultural identity of the foster parents or discuss further efforts to recruit white foster parents to continue the program. The 1957 annual report indicates that “quite a number” of First Nations children were “happily placed in the homes of these people”.9

7. Activism, Welfarism, and Self-Determination (1970s–1980s)

During the 1970s and 1980s, welfarism began to have a greater impact on policy by emphasising the strengthening of the family as a unit of society.10 Child rearing was seen as a task that is not and cannot be the concern only of the family, certainly not the nuclear or the one-parent family. It was noted that social policy should be directed more towards strengthening the family and community (Picton and Boss 1981). Child protection and OOHC were inextricably bound up in family and community, with NSW advisory councils pronouncing the following:

Social policy and planning should be directed towards the maintenance of the family unit. The goal of policy should be to keep the family intact and, if it begins to fragment, to assist the remaining sections to remain together (Thinee and Bradford 1998).11

In spite of this stated goal, removals of children continued to shape the negative relationship between Aboriginal peoples and authorities from the 1970s, as “our own Aborigines formed another significant cultural group whose children suffered severely at the hands of white childcare agencies” (Picton and Boss 1981). Differential policies affected First Nations people and children in ways that were invisible in mainstream welfare state studies—a blindness that remains today (Reynolds 2000). Evidence for these effects is demonstrated by a fundamental change in attitude towards record keeping from the late 1960s. Where previously the APB and AWB had kept meticulous records on their activities as a way of demonstrating their “public interest” impact, from the late 1960s through to the 1980s, record keeping for child protection and OOHC became fragmented and inadequate. The AWB ceased in 1969 after being abolished by the Aborigines Act (1969), which had the effect of including Aboriginal children under the same welfare legislation as non-Aboriginal children. Under the cover of all children being treated equally, and a change in the provision of these services in the community that introduced fragmentation, records became inadequate and incomparable.

Child protection records for Aboriginal children had previously been kept as a monitoring policy for the general public, being more meticulous and timely. However, records reflecting 1969 and 1980 child welfare statistics were disorganised and scattered, with Aboriginality either kept hidden or not recorded due to a prevailing policy of the “equality” of all children (Donzelot 1979; Godfrey 1995, p. 26). This obfuscation and departmental data manipulation can be understood as part of the broader assimilationist movement itself, representing a diminishing of the importance of First Nations culture and supporting efforts to bring First Nations children into mainstream society.

While the records of actual numbers of First Nations children residing in OOHC were limited, reports from various jurisdictions highlight their overrepresentation in child protection and OOHC systems throughout the 1970s:

From the early 1970s, there was a recognition from the lowest levels in the Department of Children’s Services … that Aboriginal and Torres Strait Islander children were over-represented in State care, and importantly, in institutional care (Godfrey 1995).

Substantial evidence exists of the uncritical and often ruthless application of non-Indigenous ideas concerning child behaviour and family structure used to support and justify removals and subsequent adoptions (Sommerlad 1976; Sommerland 1977). There was a large number of Aboriginal children in care, along with continued surveillance of communities (Donzelot 1979; Liddle et al. 2022). This created a narrative of communities being “unable” or “incapable” of “assistance” from government agencies, which was fiercely fought against by First Nations communities themselves. This spread of information and activism culminated in 1976 with attempts to set up First Nations childcare agencies. The independent Aboriginal and Torres Strait Islander Child Care Agencies (ACCAs) that soon followed were instrumental in bringing about substantial changes to government policy regarding the welfare and care of First Nations children. The first Aboriginal Children’s Service was established in 1975 in Redfern, NSW. It brought to the government’s attention cultural issues children faced when they were removed and placed with non-Indigenous foster carers. It also argued that First Nations organisations were best placed to address the culturally specific needs of First Nations children (Haebich 2015, 2016; Sweeney 1995).

Advocacy from Aboriginal Legal Services and Aboriginal Children’s Services at the first Australian Adoption Conference in 1976 pushed for Aboriginal self-determination in Aboriginal child welfare and placement decision making. Continuing the activism that fought against the previous narrative of assimilation, these groups opposed the adoptions of First Nations children to non-Indigenous families, which were often forced, arguing they were against the interests of mob and communities (Haebich 2015; Sweeney 1995). Advocates pointed to the importance of keeping First Nations children with kin and within the community for the dual purposes of developing their cultural identities and equipping them with the skills necessary for combating racism. Advocates attempted to elevate access to culture as a central focal point in the movement for rights and equality. This period became known as the self-determination era12 because of the efforts to centre First Nations culture, including the practices and knowledge of connection, kinship, law, and child rearing. Along with First Nations people, communities, and organisations, the general public was increasingly aware of the disproportionate numbers of children removed by the state. Activists sought to ensure the survival of culture and connections for future generations.

At a policy level, little emphasis was placed on First Nations children being dealt with by their own communities. This contrasted with the situation in the USA, where the Indian Children Welfare Act, 1978, allowed welfare matters regarding First Nations children in the USA to be dealt with by Tribal councils. Australian First Nations communities tried to introduce a similar principle that would encompass all laws covering First Nations children, as well as require the provision of appropriate resources to their communities. Community-controlled organisations were developed in this period, such as the ACCA (1978–1998), whose motivation was to place children with members of their own extended family or, where that was not possible, with another Aboriginal family.

By the 1980s, a groundswell of First Nations advocacy led to law reform in NSW, starting with the introduction of the NSW Community Welfare Act (1982), which implemented advisory committees. The Secretariat of National Aboriginal and Islander Child Care (SNAICC) was initiated in 1981 to allow for First Nations people to come together to form a national organisation for childcare, support each other, and lobby for a national inquiry. Activists fought with astonishing resilience for resources and for the right to have First Nations viewpoints at the forefront of decision making. Throughout the 1980s, such agencies increased their influence and strengthened the role of the non-government sector (Tomison 2001, p. 49).

Uncle Brian Butler, an Aranda and Luritja man and a founding member of the SNAICC, focused on ensuring continued connection:

Children are the guarantee of the survival and reproduction of any people. They are our future generations who we will entrust with the laws, practices and customs which we in turn have tried to keep alive. Our laws, practices, languages (where they survive) and customs are at the same time our reason for survival and the guarantee of our survival. Without them we have no distinct identity. We believe it is necessary to keep these customs alive because the alternative is destructive, individualistic and short-sighted. It does little or nothing to contribute to the future survival and advancement of the [Indigenous] population of the world, let alone that of Australia (Butler 1993).

The 1980s saw key strategy changes and a restructuring of the OOHC sector, as well as legislative change. This included the closing of large-scale group homes and residential care facilities, with a shift in focus to foster care and the adoption of First Nations children. This shift took place through the 1980s and into 1990s, driven by the clear need to provide children growing up in OOHC with better care in a nurturing and “family-like” environment (Secretariat of National Aboriginal and Islander Child Care 2008). This focus on adoption came despite First Nations people’s opposition (New South Wales et al. 1982), in part due to the lack of proper consultation with their communities when the Community Welfare Act was being prepared.

As well as adoption within First Nations families, there was a departmental push for the adoption by non-Indigenous families. On Saturday 4 February 1984, The Sydney Morning Herald ran a front-page story titled “Aboriginal children advertised like dogs”.13 The Department of Youth and Community Services had placed an advertisement in certain country newspapers seeking adoptive parents for three First Nations children. The advertisement read (in part):

M, 6 [years], and J, 5 [years], are brothers of Aboriginal descent. They need a strong loving family where the present children are teenagers or older. M likes to swim, ride his bike and is a good runner. He is often in trouble, and he needs to be constantly reminded of the house rules. He is a slow learner, and he can be a very tiring and sometimes aggressive little boy. J is a bright, good-looking boy and he also loves to run and be outside. He gets on much better with older children than does M.

Such advertisements resulted in outcries from the First Nations community. According to the Herald, several Aboriginal organisations complained that the children were advertised “like dogs of the week” (Chisholm et al. 1985, p. 7). The Tharawal Aboriginal Welfare Centre at Campbelltown was reported as describing the advertisement as “an obscene form of colonialism”.14 The National Organisation of Aboriginal Child Care Organisations later condemned the advertisements.

The push for the adoption of children in care during this time was in fundamental tension with the increasing focus on the child-centred policy goals of the Aboriginal and Torres Strait Islander Child Placement Principles (ATSICPP). To varying degrees, the ATSICPP came into effect across all states and territories by either legislation or policy15 in recognition of the legacy of the harmful effects of removing First Nations children from their cultures, families, and communities (Tilbury 2013). Its goals were implemented in legislations for the state of NSW in 1987. The ATSICPP set forth a hierarchy of placement options for First Nations children entering state care due to child protection concerns (Libesman 2014). It aimed to provide for Aboriginal and Torres Strait Islander children’s “best interests” by protecting their right to culture and preventing assimilation.

The placement hierarchy in the revised ATSICPP states that these children should be placed with kin as a first preference, with no differentiation made between First Nations and non-Indigenous family or kin. When no family members are available to provide care, as a second preference, the children should be placed with another First Nations person from their own (or another) community. Finally, when all other placement options have been exhausted, they should be placed with unrelated non-Indigenous carers (SNAICC 2017). As I argue in this thesis, the application of these principles has been haphazard, often rudimentary, at odds with the child-focused goals of the policy.

8. Change in Agency and the Bringing Them Home Report (1990–2000)

It is difficult, if not impossible, to find an Aboriginal family in NSW that has not been affected in some way (Behrendt 1995).

Reconciliation entered political parlance with the establishment of the Council for Aboriginal Reconciliation in 1991 (Ranzijn et al. 2010). This was, in part, an aspect of the Commonwealth’s response to public attention on the high rates of Aboriginal deaths in custody, as outlined in the release of the 1991 Royal Commission into Aboriginal Deaths in Custody (Johnston 1991). Indeed, government rhetoric towards First Nations peoples shifted throughout the 1990s self-determination era, as strongly noted in the then Prime Minister Paul Keating’s 1992 “Redfern speech”:

The starting point might be to recognise that the problem starts with us non-Aboriginal Australians. It begins, I think, with that act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. It was our ignorance and our prejudice.

(Keating 1992)

Keating’s Redfern speech was a watershed moment of acceptance by an Australian PM of fault for past government actions. This was followed by the Commission of National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, also called the Bringing Them Home (BTH) Report (1997). It highlighted that a disproportionate number of First Nations children were continuing to be dealt with under the welfare system; for example, while “Aborigines in NSW constituted fewer than 1% of the population, they made up 15% of the total number of children in care”.

The Bringing Them Home Report

The BTH report resulted from an extended effort and prolonged struggle from Aboriginal organisations to obtain an official inquiry. By encapsulating the past and contemporary experiences of Aboriginal people with government welfare and institutions of care and removal, it provided the first comprehensive historical account of the interactions between child protection agencies and Aboriginal families (Best 2011). In its 17-month duration, the inquiry heard testimony from 535 First Nations people, with another 600 making submissions. Sir Ronald Wilson, who co-authored the report with Mick Dodson, wrote, “In chairing the National Inquiry … I had to relate to hundreds of stories of personal devastation, pain and loss. It was a life-changing experience” (Wilson 1997).

When the final report was tabled, Federal Parliament heard that between 1910 and 1970 up to 100,000 Aboriginal children were taken from their parents and put in non-Indigenous foster homes. The following submission made to the Inquiry outlines the process and effects of the removal of Aboriginal children:

Children were systematically removed without consent and if that consent was given, it was only for education, ‘cause that was very significant in the act. We’ll take Jeremy because he’s got to go to school. So, mothers were quite happy their child was going to school, but they never sent the child back. And that was the tragedy of it all. It was OK to take us to school, but you had a right to bring us back’. (Barbara Cummings)

The BTH report produced 54 recommendations, including that funding be made available to First Nations communities and families prior to removal, reparations be awarded to those forcibly removed, and official apologies be made at a national, state, and territory levels. It also recommended new uniform standards across the country, access to information, reform of NSW legislation, and national standards around the ATSICPP. In summary, there was to be structural equality and financial support for First Nations communities and assurances of the cultural safety and security of their children. Decades later, very few of the BTH recommendations had been implemented or even recognized (SNAICC 2015).

During this period, there was a sharp decline in the number of children in state-run institutions compared to those in non-government organised care. However, rather than a decline in the number of children in care, they had been merely shifted from the public to the private sector. This increased the cash transfers to private child welfare agencies for the provision of alternative care, along with plans to transfer the remaining care to the private sector, representing a push for the complete privatisation of OOHC (Mowbray 1993).

The first stages of privatisation resulted in instability from the outset, including the continued placements of First Nations children with non-Indigenous agencies. Legislative change facilitated the use of discretionary payments to carers and agencies (Tomison 1996). These payments were intended to assist statutory child protection services, which were struggling with the ever-increasing numbers of reports of suspected child maltreatment and subsequent need for more placements. They were to entice people to become carers and take on children.16 However, along with the increasing numbers of children in care came an over-emphasis on cost-effectiveness. State agencies increasingly looked to larger organisations to increase the efficiency of public expenditure. As in other social service agencies where service delivery is outsourced, this created private bureaucratic structures driven by profit rather than by professional practice and care and served to disconnect statutory agencies from the services they were meant to be responsible for delivering and assuring (Carson and Kerr 2014). NSW was not the only jurisdiction that outsourced its OOHC system to the private sector to create greater perceived cost efficiency for the government; indeed, this was part of a global trend (Carson and Kerr 2014; Savelsberg and Kerr 2001).

9. From the BTH Report to the FIC Report: Continued Statements, Mounting Recommendations and Little Self-Determination (2000 to 2019)

After BTH, there was growing pressure on the NSW government to reduce the number of First Nations children being removed and to reform the OOHC sector. On 13 February 2008, incoming Prime Minister Kevin Rudd made a formal apology to Aboriginal and Torres Strait Islander peoples, particularly to the Stolen Generations whose lives had been blighted by past government policies of forced child removal and assimilation. Rudd’s speech captured a spirit of reconciliation and highlighted the children’s removal from culture and country:

We apologise for the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians. We apologies especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities, and their country. For the pain, suffering and hurt of these Stolen Generations, their descendants and for their families left behind, we say sorry. To the mothers and the fathers, the brothers and the sisters, for the breaking up of families and communities, we say sorry. And for the indignity and degradation thus inflicted on a proud people and a proud culture, we say sorry (Rudd 2007).

The government’s apology was widely applauded by both First Nations and non-Indigenous Australians (McKenny 2008).17 Elder of the Kungarakan people and Iwaidja man, Dr Tom Calma, then Aboriginal and Torres Strait Islander Social Justice Commissioner of the Australian Human Rights and Equal Opportunity Commission, gave a speech formally responding to the government’s apology. In Member’s Hall, Parliament House, Canberra, Dr Calma thanked the Parliament for acknowledging and paying respects to the Stolen Generations: “By acknowledging and paying respect, Parliament has now laid the foundations for healing to take place and for a reconciled Australia in which everyone belongs” (Calma 2008). Dr Calma also noted that there were many recommendations in the BTH report that, as of 2008, had not yet been implemented, with little to no progress on implementation.18 In the years following the apology, there has been a complete failure to effect change.

In 2007, the NSW Governor commissioned the Hon. James Wood, AO, QC, to undertake an inquiry to determine “what changes within the child protection system were required to cope with future levels of demand” (Wood 2008). In 2008, the Report of the Special Commission of Inquiry into Child Protection Services in New South Wales (referred to hereafter as the Wood Report) was released. The Wood Report concluded that that the child protection system, including OOHC, was overburdened and could not cope with the demands being placed on it. The key principle was as follows:

Child protection is the collective responsibility of the whole of government and of the community. Primary responsibility for rearing and supporting children and young people should rest with families and communities, and with the government providing support where it is needed, either directly or through the funded non-government sector (Wood 2008).

At this time in NSW, the child protection sector was “remov(ing) more children from their families in New South Wales than any other state”. Pru Goward, the then NSW Minister for Family and Community Services, was responsible for social policy and welfare, including matters relating to youth.19 Under Goward’s instruction, the NSW government was to move all OOHC externally to organisations accredited by the Office of the Children’s Guardian (OCG), since government OOHC services had not gained accreditation. Despite this, implementation commenced under the NSW Coalition Government in 2012–2013. This policy shift removed the accountability of the government to the people of NSW regarding the provision of OOHC; non-Aboriginal non-government organisations were now in charge of care and placement service delivery.

In March 2009, the NSW government published a response to the report, Keep them safe: A shared approach to child wellbeing (New South Wales and Department of Premier and Cabinet 2009). Of concern in the government’s response, especially for First Nations communities, was a lack accountability and responsibility for those responsible for removing these children. There was limited consultation with First Nations communities, who were largely opposed to the project of privatisation of social services, including OOHC. However, the NSW Parliament passed the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 with little debate. This legislation introduced some of Justice Wood’s recommendations and enacted other changes that were not included in the Commission of Inquiry report (Hansen and Ainsworth 2009). In 2014, under the direction of Minister Goward and in consultation with the non-government sector, new policy measures aimed at reducing the number of children entering care were developed. Policy development and implementation again involved little consultation with First Nations people. A goal of these reforms was to increase the permanency arrangements for children in long-term care. Now known as “Safe Home for Life”, these reforms included changes to the Children and Young Persons (Care and Protection) Act to promote permanency for children entering care (Office of the Children’s Guardian 2015). These measures aimed to create a stronger direction in the courts by making the adoption of children the preferred form of placement; otherwise, they would be placed under the long-term care of the Minister.

The Permanent Placement Principles in section 10A(3) set out the following hierarchy of preferred permanent placement options for children in care:

(1)

Family preservation or restoration to parents.

(2)

Guardianship or third-party orders by kin, relatives, or other “suitable persons”.

(3)

Adoption (for non-Aboriginal children).

(4)

Parental responsibility to the Minister (foster, kinship, or residential care).

(5)

The least preferred option for Aboriginal children was adoption.

These measures were meant to streamline judicial decision-making processes and limit the time spent by children in care to set target periods.20 In making the case for reform based on permanency planning, the NSW government pointed to the rising rates of children entering care, the disproportionately high numbers of First Nations children in care, and the increasing number of placement breakdowns.21 Since 2014, there has been an increase in adoptions overall, although to date only a small number of First Nations children have been adopted.

During this period, First Nations communities continued to resist, with increased concern from Elders, communities, and activists opposing the colonial child protection system with its high numbers of First Nations child removals and subsequent placements in non-Indigenous homes (Libesman 2016; Swan 2014). One of the largest grassroots campaigns has been Grandmothers Against Removals (GMAR). GMAR opposes the ongoing removal of Indigenous children from their families, communities, and cultures, arguing that “forced removals” may lead to a repeat of the Stolen Generation.22 GMAR’s activism falls within a counter-assimilation framework; it asserts the importance of returning children to family, community, and culture and opposes “racist” systemic removals of Indigenous children. GMAR points to the inadequacy of “cultural plans” for removed children. GMAR activist and Gomeroi woman, Aunty Deb Swan, has articulated the imperative of returning First Nations children to family and culture:

Their cultural plan is to give [removed children] books. The cultural plan should always be that you return them to family. They need to be living [culture] with their family—that is how they learn. Taking them away from their family and culture is the most traumatic thing (Thorburn and Syed 2017).

The Tune Report (2016) (Tune 2016), written by non-Indigenous former senior public servant David Tune, painted a damning picture of OOHC in NSW. Tune reported that while the NSW government had spent AUD 1.86bn on vulnerable families in 2015–2016, the spending was “crisis-oriented” and had “evolved in an ad hoc way”. He argued that the system was ineffective, unsustainable, failing, and unable to arrest devastating cycles of intergenerational abuse and neglect. While the drivers of demand for OOHC are complex and cut across the portfolio responsibilities of many agencies, programs within different agencies are highly siloed, with interventions that are not adequately evidence-based or tailored to meet the multiple diverse needs of vulnerable children and families.

Tune’s recommendations included three systemic changes: (1) broaden the focus of the system to be not just client- (child-) centred but family- and community-centred; (2) authorise FACS to hold primary accountability for very vulnerable families; and (3) systematically align expenditure to the evidence for what is effective (and preventive), rather than have crisis-driven expenditure. In response to this report, the NSW government launched Their Futures Matter (TFM), a whole-of-government reform aimed at delivering improved outcomes for vulnerable children, young people, and their families. However, the governance and cross-agency partnership arrangements used to deliver the reform were ineffective. Although foundations were put in place and new programs were trialled over the reform program’s four years, the key evidence-based, whole-of-government, early-intervention approach for vulnerable children and families in NSW—the key objective of the reform—was not successfully established.23 Goward continued to reject advocacy for the appointment of an Aboriginal Child and Family Commissioner to assist in reducing the number of Aboriginal children being removed from their families and placed in OOHC (Allam 2018).

These recent reforms in NSW OOHC policy, which focus on achieving placement permanency, have posed a danger of “continuing a long colonial tradition of devaluing, commodifying and separating Indigenous children and young people from their families and culture” (Libesman 2019). While a policy argument for permanency may include ideas of stability for Aboriginal children, it represents a high risk of ongoing and permanent removal of children from their families, communities, culture, and country by non-Aboriginal systems. A new time limit applies—currently one year—in which an order for permanent placement must be made, which can include long-term foster/kinship care, guardianship, and adoption. This permanency push is motivated by the need to process and remove children from the OOHC system, given the resourcing and demand pressures, irrespective of the impact on the children and families involved. In addition, it is important to recognize that these policies are informed by largely non-Indigenous researchers and theories (e.g., attachment theory).24 Such early placements risk creating continued cycles of intergenerational trauma and harm for First Nations people and an even more degrading layer of failure by the government “to take responsibility [and accountability] for the harm generated by previous [and current] colonial laws and policies” (Libesman 2019, p. 60).

10. They Are Still Not Home—Family Is Culture (2019) to Now (2024)

The Australian Institute of Health and Welfare (AIHW) has reported national child protection data annually since 1998. The numbers of First Nations children in OOHC have increased each year. In the first AIHW report in 1996–1997, there were 16.3 per 1000 First Nations children in OOHC compared to 2.5 per 1000 for all other children (AIHW 1998). Alarmingly, the rate of First Nations children residing in OOHC has continued to climb since the late 1990s, doubling to 30.1 per 1000 on 30 June 2006, and tripling to 56 per 1000 on 30 June 2020 (AIHW 2007, 2021). NSW has remained the jurisdiction with the largest number of children in state-run OOHC. In 2016, there were 17,800 children in care in NSW, with 6652 of those being Indigenous. This is a rate of 71.6 per 1000 for Indigenous children—11 times higher in comparison to non-Indigenous children, at 6.9 per 1000. In 2016, when Aboriginal people represented around 3.4 per cent of the NSW population, more than one-third of children in care in NSW were Indigenous.

In 2016, as a direct result of the advocacy from GMAR and AbSec (the peak Aboriginal Children’s Agency in NSW), an independent review was commissioned to examine the disproportionate and increasing number of First Nations children in OOHC in NSW. For the first time, it was led by a First Nations person, Cobble Cobble woman Professor Megan Davis, an activist, academic, and international human rights lawyer. The Family Is Culture (FIC) report released in November 2019 made 125 recommendations about the ways the NSW government might deliver services, with more than 3000 recommendations referring specifically to children and young people. With 20 years having passed since the BTH report, the FIC report highlighted the non-compliance with legislation and policy of the NSW child protection system, focusing on the ATSICPP and First Nations cultural care plans.

Importantly for this article, the FIC report reviewed extensive testimonies of harm experienced by First Nations children in OOHC placements, as well as possibilities for alternatives to removal from kin. Findings from the FIC report supported those in the Tune Report: that care and protection funding overwhelmingly targeted tertiary interventions rather than prevention and family preservation; that is, funding supported interventions after abuse or neglect had occurred (Hermeston 2023, p. 361). The FIC report made significant recommendations to require the consultation and engagement of communities and families during care. Recommendations 6, 7 and 8 encourage the involvement of stakeholders in the review of policies to increase self-determination, to review the ATSICPP, and to strengthen provisions consistent with the First Nations rights. However, recommendations pertaining to the review or reform of child protection legislation and court processes, to better support early engagement with families and enshrine the collective right of Aboriginal peoples to self-determination, have been delayed until 2024, five years after the recommendations were handed down (Davis 2021).

11. Conclusions

In the period between invasion and the end of the 20th century, the treatment of First Nations children in NSW has been motivated by paternalistic and colonial ideas of benevolence, protectionism, segregation, biological absorption, and assimilation. These have produced legislation, policies, systems, and the management of First Nations affairs in NSW that have repeatedly failed to understand First Nations complexities and best interests or achieve positive outcomes for children in state care (Beaufils 2022; Beaufils et al. 2024, 2025; Warren et al. 2024). While the motivations differ in respective policy eras, they are all derived from a fundamental control by the government over the interactions of First Nations families and children, preferencing British-derived legal, social, educational, political, cultural, and economic systems. They demonstrate and enact a single point of control from the centre (government) out (to families and communities), which time and again has been shown not to be effective and inappropriate. The over-representation of First Nations children in OOHC is the systemic process of colonisation, the outgrowth of the long colonial history, that has increased since the so-called “end” of the assimilation era (Davis 2019a). This is despite many inquiries and reports making recommendations that have been partially implemented, inadequately responded to, or ignored.

For most of the periods examined in this article, the cornerstone policy was that the best efforts of the OOHC system would involve the separation of First Nations children from their families, even though this was a measure of “last resort” under colonial child welfare and protection. This article has shown that these policies and the myth of benevolence have not served First Nations children’s and communities’ so-called best interests, because at their core, the changes are just iterations of colonisation, emerging from the same ideologies of colonial control and inferiority of the First Nations people and culture. In the movement towards true self-determination, there is the need to allow communities themselves, not agencies, to govern the impact of the colonial systems. This is to be in their ways of being and doing, specifically by controlling early intervention and authority across statutory care, including the placement of their children and young people. Furthermore, from a legal perspective not allowing the ongoing practice and connection to culture contravene Australia’s obligations as a signatory to the UN Declaration on the Rights of Indigenous Peoples. However, First Nations people have been systematically denied from participating in deciding the care of their children. Failure to properly consult, refusal to implement recommendations, and denial of First Nations voices reinscribe the mistakes and atrocities of the past. To avoid falling into the trap of a new iteration of colonialism, we need complete separation and our own systems reflecting First Nations autonomy in protecting and caring for our younger generations.