Social Security and the Care and Custody of Aboriginal Children

387. The Issues. During the Commission’s Public Hearings, comments were made about the failure of social welfare authorities to recognise extended family child caring arrangements for the purposes of social security benefits. For example:

… The supporting mother’s benefit is not so much a problem. It is more the family allowance because it tends to be seen as a parent’s right, not a guardian’s allowance. A lot of talking has been going on for some time about making sure that the guardian is getting an income.^[236]

… As to child endowment … there is a problem, and it is an organizational one more than a legal one, of foster children Sometimes with foster children one family will look after them for a while, and then they are sent to a sister who will look after them for a while, and then to another place for a while. and it can be hard proving that you are looking after the child and also trying to chase up the payments from one place to another.^[237]

It was generally agreed that family allowances should be paid to the person who was actually looking after the children.^[238] In some places it was said that the problem did not exist, or was being remedied administratively.^[239] In others the obligation (eg of grandparents) to care for children without endowment payments was described as ‘a millstone around the grandmothers’ and fathers’ necks’.^[240] One witness stated that the problem derived from the requirement that the child endowee be ‘recognised as a guardian of that child under the various State laws’.^[241]

388. The Legislative Framework. Under the Social Security Act 1947 (Cth), payments are made for the care of children in a variety of ways for example, by increases in the rate of age, invalid and widows’ pensions and unemployment benefits, or by supporting parents’ benefit or child endowment. The two latter benefits, specifically designed to support persons caring for children, are of particular relevance here. In both cases the beneficiary is the person who ‘has custody. care and control’ of a child, and is otherwise eligible.^[242] These provisions would appear to require the claimant to have both custody and care and control of the child. On this view, the term ‘custody’ is not a mere synonym for ‘care and control’, but would have to be interpreted strictly as legal custody. In many, indeed most, child care situations within an extended family, legal custody will remain with the parents even though care and control is, for a shorter or longer time, located elsewhere.^[243] In fact there are conflicting decisions of the Administrative Appeals Tribunal on the interpretation of the phrase ‘custody, care and control’. One group of decisions adopts the strict legal interpretation of ‘custody’. For example in Dowling v Director-General of Social Services a second wife was looking after two of her own children by an earlier marriage, and three of her husband’s children by his earlier marriage. The husband had, but she did not have, legal custody of the three children. The Administrative Appeals Tribunal held that she was not entitled to endowment in respect of these children because, although she had care, and possibly control, of them she did not have custody, a term which, in the Tribunal’s words ‘not being defined by the Act, I take to have its normal legal sense’.^[244] If this interpretation is correct, it has further consequences for transfer of children, since for present purposes an endowee ceases to be entitled to endowment only when he or she ‘ceases to have the custody, care and control of the child’ (s 103(1)(a)). An endowee could therefore retain the right to payment by retaining formal custody, even though the actual care and control, and full financial responsibility for the child, were vested elsewhere, for example with grandparents. By the same token the grandparents would not qualify for endowment in respect of the child because they would not have custody. They could, ordinarily, only obtain custody through bringing legal proceedings in the appropriate way. These should not be a prerequisite (even formally) to entitlement to social welfare benefits in respect of the case of children.

389. Conflicting Decisions. On the other hand in several cases other members of the Administrative Appeals Tribunal have adopted a broader approach, treating the phrase ‘custody, care and control’ as ‘a composite expression referring essentially to the responsibility for the actual day to day maintenance training and advancement of the child’.^[245] The conflict between the decisions remains unresolved.

390. Need for Clarification. It is therefore not true to say that the appropriate payment of child endowment or supporting parents’ benefit is a matter of administration rather than law. On the contrary, on one view the law precludes payment of child endowment or supporting parents’ benefit to persons who, although not formal custodians, are actually responsible for children. It is not satisfactory here any more than is the context of traditional marriages, to rely on benign administrative practices where the legislation itself is in adequate or unsatisfactory.^[246] It is suggested that the purpose of child endowment and supporting parents’ benefit is the financial support of persons with actual responsibility for children (both financial and in terms of day to day care). Especially in Aboriginal communities, these persons will often not have ‘custody’ in the technical sense, and will therefore not be eligible for payments such as child endowment. The Social Security Act 1947 (Cth) should be amended to allow child endowment and other benefits on account of the care of children to be paid, as nearly as possible, to the person or persons with overall responsibility for the child or children in question, without undue emphasis on the location of legal custody. This could be achieved by deleting the word ‘custody’ from s 83AAA and 95(1) of the Act. ‘Custody’ would still remain relevant in assessing the location of ‘control’. But bare custody without care or control would not be, as it is now, decisive. This suggestion accords with submissions and evidence to the Commission that social welfare payments, especially for children, should reflect Aboriginal practices of child care within the extended family. Thus the IYC National Committee of Non-Government Organisations in 1979 called for a:

review of legislation and regulations concerning family allowances to see if it is possible to cater for difficult situations where mother surrogates are bearing a large responsibility for the children whilst still in the custody of their father.^[247]

However child care within the extended family, while a distinctive aspect of Aboriginal family organisation, is by no means restricted to Aboriginal families.^[248] The change proposed should be a general one, not confined to Aboriginal children. A general amendment seems the best way of resolving this problem presented to the Commission in the context of Aboriginal child-care practices and traditions. Consideration should therefore be given by the Department of Social Security to the amendments outlined above.^[249]

391. Some Problems of Administration. The Commission has been assured that the Department’s policy is to ensure, as nearly as possible, that welfare payments for Aboriginal children are made to the persons with actual responsibility for caring and providing for these children. To some extent this aim is now being achieved, according to the evidence of the Public Hearings. Even if the requirement of ‘custody’ is deleted from the relevant provisions of the Act (thus permitting the Department to pursue its present policy in conformity with the Act), substantial administrative difficulties will remain. The task of ensuring that child care payments are paid to the appropriate person is obviously not an easy one, especially in more remote communities. The work of the Aboriginal Liaison Unit in the Department was referred to in Chapter 14, and it was suggested that this work should be supported and extended.^[250] This is equally necessary in the present context. Similarly, one aspect of the role of paid part-time agents living or working in Aboriginal communities, in consultation with the community in question, is to assist in tracing changes in the long-term care and control of children, thus allowing child endowment and similar payments to be made to the appropriate persons.