Opinion Number. 1691



Key Legislation

CHILD ENDOWMENT ACT 1941 ss 4, 13, 15, 20: CHILD ENDOWMENT REGULATIONS regs 4, 7(2), 16

The Director-General of Social Services

The Secretary, Department of Social Services, has forwarded the following memorandum to me for advice:

In considering applications by Aboriginal Missions for the approval of the Minister to the recognition of their organizations as Institutions for the purposes of the Child Endowment Act it has been learned that, apart from those on Government Settlements, aboriginal children may be grouped as follows:

Group 1. Those wholly fed, clothed, housed and maintained by the Mission.

Group 2. Those who reside for the greater part of their time with their parents on Mission property, are educated at Mission schools during their residence at the Mission and receive assistance in time of need, but are not wholly fed, clothed and maintained at Mission expense. They gather most of their own food or their parents work for it.

Group 3. Those who visit Missions on occasions residing in camps of their own, but who from time to time resume their hunting and tribal life on the Reserves.

In the case of Group 1 it would seem that the Mission, if approved as an Institution by the Minister, might claim and receive endowment in respect of all children under 16 years.

Regarding Group 2 it would appear that the parents, or the Mission on their behalf (Regulation 4 (2)), should claim in respect of the various families and that endowment, if granted, should be paid through the Mission authorities.

Concerning Group 3 attention is invited to the Minister’s statement in Parliament on the Second Reading of the Child Endowment Bill when he said:

It is proposed to pay endowment to the children of Aborigines and half-castes where it is shown that they are living under conditions comparable with white Australians.

There is some doubt, therefore, as to whether the children in Group 3 come within the scope of the Act, although it is stated by the Director of Native Affairs in Northern Territory that they are not to be regarded as nomads. It is further stated that most Missions encourage the resumption of tribal life on the Reserves as an integral part of Mission policy, hoping thereby to introduce among these awakening people benefits of civilization, gradually and harmlessly, so that progress will come in time by processes of evolution without having destroyed beneficial features of native culture on which their future should be built.

If the children included in Group 3 are to be regarded as endowable, it would seem that claims should be submitted by their parents or by the Mission on their behalf. Difficulties would, however, arise when the children leave the Mission and resume tribal life, for the application of the money in respect of these children as provided by section 20 of the Act could not be carried out as intended unless the Commissioner, by the power vested in him under Regulation 16(2), approved of its use for the general maintenance, training and advancement of the children residing on that particular Mission.

Some Missions have asked if they could claim endowment on the basis of say, an average number of children under supervision (not maintained) per month. This would not appear to be possible without an amendment of the Act. If the Act were amended to provide for a special Commonwealth grant to Missions at the rate of 5/- per child per week on the basis of the average number of children under the supervision of the Mission, the administrative difficulties would be minimized but it would be necessary that an assurance be obtained that the money was applied by the Mission authorities in accordance with the provisions of the Act. This could perhaps be given by the Director of Native Affairs of the State or Territory concerned.

In connection with the Methodist Missions–Goulburn Island, Milingimbi and Yirrkala in the Northern Territory–it is stated that strictly speaking the Missions are not entirely supporting any of the children resident thereon. The system is to allow the people to retain their personal freedom. The Mission authorities do not agree with the idea of housing the children in dormitories as is the practice with other Missions. They say experience shows that it is not wise to rear a generation entirely dependent upon the bounty of the Mission for all food, clothing and shelter.

Rev. J. W. Burton of the Methodist Mission Headquarters, Sydney, after consultation with Professor Elkin, has submitted the following suggestions:

  1. That so far as our three stations are concerned in Arnhem Land–Goulburn Island, Milingimbi and Yirrkala–we endeavour to obtain as complete a list as possible of the names of the mothers and of the children who are under the aegis of the mission and who are not living what might be considered a full nomadic life.
  2. That we estimate a number that might be considered a fair average, considering absence, of mothers and children who are definitely connected with our mission stations. We would suggest that this average with all necessary information be submitted to Mr. Chinnery, Director of Native Affairs, and that he should, on your behalf, check up our figures.
  3. That the amounts we receive from your Department on behalf of these stations should be placed in a trust fund in our mission accounts, and that we should render to you, through Mr. Chinnery, a detailed statement of how the money has been expended and what balance, if any, remains in the fund.
  4. That the benefits provided from the Child Endowment Fund for the mothers and children of this area should include increased educational opportunities by providing extra schools and teachers; the fuller development of child welfare work and medical work with someone competent to instruct in mothercraft, etc, etc,; recreational facilities; the supply of foods to combat deficiencies in diet; and clothing that might be considered appropriate for children living in those conditions.

This problem is a difficult one. In the first place it should be definitely decided whether those natives who, for perhaps four to six months in the year, leave the Mission Stations and resume their tribal customs are to be classed as nomads. Mr. Chinnery, the Director of Native Affairs at Darwin, says that they are not to be so regarded but it does not seem that they can be deemed to be ‘living under conditions comparable with white Australian’.

Should it be determined, however, that these people are not nomadic and that the children in respect of whom endowment is claimed are not wholly or mainly dependent upon the Commonwealth or a State for support, it will be necessary to decide whether they may be deemed to be maintained by the Missions, which, in the circumstances, would be most desirable. It will also be necessary to determine whether it would be possible to pay endowment to the Missions on the basis of an average number of children under supervision and resident thereon without the introduction of amending legislation.

I should be obliged if you would kindly favour me with advice on these various matters.

In order to answer the questions on which advice is sought, reference is necessary to the following provisions:

Child Endowment Act 1941:

13. (1) Subject to this Act, an endowment at the rate of Five shillings per week may be granted–

  1. to any person maintaining more than one child, in respect of each child in excess of one maintained by him; and
  2. to any institution in respect of every child maintained by it.

15. Subject to this Act, an endowment may be granted to an aboriginal native of Australia unless–

  1. he is nomadic; or
  2. the child in respect of whom the endowment is claimed is wholly or mainly dependent upon the Commonwealth or a State for his support.

Child Endowment Regulations:

    1. ...
    2. A claim for endowment by a person who is an aboriginal native of Australia–
      1. may be made by the person himself, or, on his behalf, by–
        1. a member of a Board or other authority of the State or Territory in which the person resides charged with the welfare of aborigines, or an officer of any such Board or authority thereunto authorized by the Board or authority, or the Officer in Charge of the Aborigines Department, or other Department administering aboriginal affairs, of that State or Territory; or
        2. by the Senior Protector of Aboriginals in the district, or by the person, if of European origin or descent, in charge of the mission or Government settlement where the person resides; and
      2. ...
    1. Where the Deputy Commissioner is satisfied that it is necessary, in order to ensure the proper application of an endowment granted to an aboriginal native of Australia, that the endowment shall be paid to some other person, the endowment may be paid to a person approved by the Deputy Commissioner.
    2. Where endowments are granted in respect of aboriginal children living in a reserve, settlement or mission supervised by a Protector of Aborigines, the endowments may, subject to the approval of the Commissioner, be applied to the general maintenance, training and advancement of the children residing on that reserve, settlement or mission.

I should say at the outset that statements of a Minister in Parliament are not, from a legal point of view, an admissible source of information as to the proper interpretation of the Child Endowment Act.

I propose to discuss in turn the position of aboriginal children of each of the three classes mentioned in the memorandum.

Child Endowment may be granted only to persons and institutions who are ‘maintaining’, or deemed to be maintaining, children (Child Endowment Act 1941, section 13(1)). As regards children of Group 1 it seems clear that the mission could, if it is otherwise within the definition of ‘institution’ in section 4 of the Act, be approved by the Minister, and that the children would then be ‘inmates’ of an ‘institution’, as defined by the Act, and would be deemed by sub-regulation (2.) of regulation 7 of the Child Endowment Regulations to be maintained by the mission, which could claim endowment accordingly.

As regards children of Group 2, I agree that they are maintained by their father or mother (in accordance with the provisions of regulation 7), and that any endowment would have to be granted on a family basis to the father or mother accordingly.

The application of section 15 of the Act must, however, be considered. ‘Nomadic’ is defined by the Oxford English Dictionary as meaning ‘Characterised by, or leading, a wandering life’. It appears clear on the facts as stated to me that the parents of children of Group 2 are not nomadic, and also that paragraph (b) of section 15 is not applicable to the children. Applications for endowment could, as suggested, be made under regulation 4(2.), and payment made to a person approved by the Deputy Commissioner (regulation 16(1.)). Assuming that the mission was supervised by a Protector of Aborigines, recourse could also be had to regulation 16(2). As regards children in Group 3, it must be remembered that the question by whom a child is maintained depends on the facts of the particular case, and the circumstances of particular children within this group may differ considerably. Some general observations may, however, be made. It is not clearly stated whether, while the families are residing at the missions, the children are wholly or substantially fed by the missions, but it would appear likely that their position while at the missions would be like that of Group 2, and that they must be regarded as maintained by one or other of their parents. Whether an application could be made by or on behalf of such a parent would depend on whether or not the parent was ‘nomadic’, i.e. ‘characterized by, or leading, a wandering life’. The difficulty is that aboriginals may be nomadic in varying degrees, and the word must, I think, be read as meaning ‘leading a predominantly nomadic life’. There is no hard and fast test, but I think a practical view for administrative purposes would be to regard as nomadic an aboriginal who spends on an average more than half his time living his natural tribal life.

Should endowment be granted to the parent of a child of Group 3 who spends more than half of his time (with his parents) at a mission, I think the child could properly be regarded as ‘living in the mission’ for the purposes of the application of regulation 16(2).

In my opinion, in view of the terms of section 13 of the Act, endowment could not be granted under the Act as it now stands except in relation to specific and ascertained children, and could not, therefore, be granted in respect of an average number of children maintained by a person or institution, nor could a regulation be validly made allowing such a grant.

The foregoing is sufficient answer, I think, to all the questions raised in the memorandum which are proper subjects for legal advice as distinct from matters of policy and administration.

[Vol. 34, p. 351]