Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 Hearing dates: 6 April 2020; 9, 22 April (written submissions) Decision date: 06 May 2020 Before: Basten JA at [138]; Leeming JA at [1]; McCallum JA at [176]. Decision: 1. Grant leave to appeal confined to proposed ground 1A. 2. Direct the appellant to file a notice of appeal which conforms with proposed ground 2 of the draft notice of appeal, and otherwise dispense with the requirements as to service. 3. Direct the Secretary to apply to the Equity Division within 28 days of today to review orders 3 and 4 made on 16 July 2019 and the adoption plans the subject of those orders. 4. Otherwise dismiss the appeal. Catchwords: ADOPTION – "Aboriginal child" - whether necessary to identify ancestor who was a member of Aboriginal race, identified as Aboriginal and was recognised by Aboriginal community - consideration of text, context and purpose of s 4 of Adoption Act 2000 (NSW) - sufficient to show child was descended from people who lived in Australia before British colonisation - Fischer v Thompson (Anonymised) [2019] NSWSC 773 disapproved

APPEAL - leave - procedural fairness - applicant alleged submissions supplied after hearing not considered by primary judge - significance of failure to apply to primary judge and delay - whether proper outcome could be reached without a rehearing - leave refused Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), s 4 Aboriginal Land Rights Amendment Act 2001 (NSW), Sch 2, cll 2.1, 2.2 Aborigines Act 1969 (NSW), s 2 Aborigines Protection Act 1909 (NSW), s 3 Aborigines Protection (Amendment) Act 1918 (NSW), s 2 Aborigines Protection (Amendment) Act 1936 (NSW), s 2 Adoption Act 2000 (NSW), ss 4, 8, 32, 34, 35, 46, 52, 54, 90, 92, 101, 118, 126 Children and Young Persons (Care and Protection) Act 1998 (NSW), s 5 Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2000 (NSW) Children (Care and Protection) Act 1987 (NSW), ss 3, 87 Constitution, s 51(xix) Evidence Act 1995 (NSW) Indian Child Welfare Act 25 USC, §§1902, 1915(a) Interpretation Act 1987 (NSW), s 7 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 56.13 Vagrancy Act 1902 (NSW) Cases Cited: Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 DFaCS and Boyd [2013] NSWChC 9 Donnell v Dovey (2010) 237 FLR 53; [2010] FamCAFC 15 Ealing London Borough Council v Race Relations Board [1972] AC 342 Fischer v Thompson (Anonymised) [2019] NSWSC 773 Gail and Grace [2013] NSWChC 4 Gibbs v Capewell (1995) 54 FCR 503 Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Shaw v Wolf (1998) 83 FCR 113; (1999) 163 ALR 205 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1; [1983] HCA 21 Twist v Council of the Municipality of Randwick (1976) 136 CLR 106 Williams v Central Bank of Nigeria [2014] AC 1189; [2014] UKSC 10 Texts Cited: Australian Law Reform Commission, Essentially Yours, Protection of Human Genetic Information, Report 96 Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report 31, AGPS, Canberra Bailey, D and L Norbury, Bennion on Statutory Interpretation (7th ed, 2018, LexisNexis Butterworths) de Plevitz and Croft, "Aboriginality under the Microscope: The Biological Descent Test in Australian Law" (2003) 3(1) QUTLJJ 104 Ganter, R, "Turning Aboriginal – Historical Bents" in 7 borderlands e-journal, Vol 7, No 2, 2008 Human Rights and Equal Opportunity Commission, Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997) Legislation Review Unit, Department of Community Services, Review of the Children (Care and Protection) Act 1987 (December 1997) Legislative Assembly, Parliamentary Debates (Hansard), 21 June 2000, p 7384 New South Wales Law Reform Commission, Adoption Act 1965: Review of the Adoption of Children Act 1965 (NSW) (1997) New South Wales Law Reform Commission, The Aboriginal Child Placement Principle (March 1997) Royal Commission into Aboriginal Deaths in Custody, National Report (1991), Commonwealth of Australia, Canberra Social Policy Group, Commonwealth Parliamentary Library, Defining Aboriginality in Australia (February 2003) Whittaker A, "White Law, Blak Arbiters, Grey Legal Subjects: Deep Colonisation's Role and Impact Defining Aboriginality at Law" (2017) 20 Aust Indigenous L Rev 4 Category: Principal judgment Parties: Hackett (a pseudonym) (Applicant) Secretary, Department Communities and Justice (Respondent) Representation: Counsel: P Herzfeld (Applicant) M England, T Epstein (Respondent)