aborigines protection (amendment) act 1940

7/21/2019 Aborigines Protection (Amendment) Act 1940

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ABORIGINES PROTECTION (AMENDMENT)

ACT.

Act No. 12, 1940.

An Act to provide for the dissolution of TheBoard for the Protection of Aborigines andfor the constitution of an Aborigines Welfare

Board; to amend the Aborigines ProtectionAct, 1909-1936, in certain respects; and forpurposes connected therewith. [Assentedto , 22nd May, 1940.]

BE it enacted by the King's Host Excellent Majesty,by and with the advice and consent of the Legis-lative Council and Legislative Assembly of New SouthWales in Parliament assembled, and by the authority ofthe same, as follows :

1. (1) This Act may be cited as the "Abo rig ine sProtection (Amendment) Act, 1940."

(2) This Act shall commence on a date to beappointed by the Governor and notified by proclamationpublished in the Gazette.

(3) The Aborigines Protection Act, 1909-1936, asamended by this Act, may be cited as the AboriginesProtection Act, 1909-1940.

2. (1) The Abor igines Protect ion Act , 1909-1936, isamended by omitting sections four, five and six and byinserting in lieu thereof the following sections:

4. (1) There shall be a board to be called the"Aborigines Welfare Board" which shall consist of

ten members.(2) (a) The person for the time being holding

the office of Under Secretary , Chief S ec re ta ry 'sDepartment, shall be a member of the board andshall be the chairman.

(b) The remaining members of the board(in this section referred to as "appointed mem-bers") shall be appointed by the Governor.

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Of the appointed members

(i) one shall be the Superintendent of Abori-gines Welfare;

(ii) one shall be an officer of the Dep artment ofPublic Instruction;

(iii ) one shal l be an officer of the Department ofPublic Health;

(iv) one shall be a member of the police force ofor above the rank of inspector;

(v) one shall be an expert in agricu ltu re;

(vi) one shall be an expert on sociology and/oranthropology;

(vii) three shall be persons nominated by theMinister for appointment.

(3) The provisions of the Public Service Act,1902, or of any Act amending that Act, shall notapply to the appointment of appointed members, norshall any member of the board, in his capacity assuch member, be subject to the provisions of anysuch Act.

(4) An appointed member shall be deemed tohave vacated his office if he

(a) dies;(b) res igns his office by writ ing under his hand

addressed to the Governor;(c) ceases to reside in the State;(d) becomes ban kru pt , compounds with his

creditors or makes an assignment of hisestate for their benefit;

(e) becomes an insane person or patient, or anincapable person within the meaning of theLunacy Act of 1898;

(f) absents himself from two consecutive ordi-nary meetings of the board except on leave

granted by the board.(5) The board shall annually elect one of its

members to be vice-chairman.

(6) (a) The procedure for the calling of meet-ings of the board and for the conduct of business atsuch meetings shall, subject to this Act and to anyregulations made in relation thereto be as determinedby the board.

(b)


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(b) Fo ur members of the boa rd shallform a quorum and any duly convened meetingof the board at which a quorum is present shall becompetent to transact any business of the board.

(c) At any meeting of the boa rd the chair-man or in his absence the vice-chairman shall preside.

If both the chairman and the vice-chairman areabsent the members present shall elect one of theirnumber to preside at the meeting.

(7) No act or proceed ing of the board shall beinvalidated or prejudiced by reason only of the factthat at the time when such act or proceeding wasdone, taken or commenced there was a vacancy in theoffice of any member of the board.

(8) Each member of the boar d shall be entitledto receive allowances to cover expenses incurred byhim for conveyance and subsistence in travellingupon business of the board at such rates and in suchcircumstances as may be prescribed.

Except as provided in this subsection no fees orremuneration of any kind shall be paid to a memberin respect of his services as such member.

5. (1) The Governor may, under and subject tothe provisions of the Public Service Act, 1902, asamended by subsequent Acts, appoint a Superinten-dent of Aborigines Welfa re and such other officersand employees as may be necessary for the adminis-tration of this Act.

(2) The Superin tenden t of Aborigines Welfareand other officers and employees shall be subject tothe provisions of the Public Service Act, 1902, asamended by subsequent Acts, during their tenure ofoffice.

6. The boa rd may appoint committees at suchtimes and for such purposes as the board may thinkfit.

Each committee shall exercise and discharge suchfunctions and duties as the board may determine.(2) Upon the commencement of this Act The Board

for the Protection of Aborigines shall be dissolved andthe members of that board shall cease to hold office assuch members.

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3 . The Aborigines Protection Act, 1909-1936, is furtheramended

(a) (i) by omitting from section three the defi-nition of "Board" and by inserting in lieuthereof the following definition:

"Board" means the Aborigines Wel-fare Board, constituted under thisAct.

(ii) by insert ing in the same section after thedefinition of "Board" the following new

definition:"Child" means an aborigine under

eighteen years of age.(iii) by omitting from the same section the

definition of "Local Committee";

(iv) by insert ing in the same section after thedefinition of "Stations" the following newdefinition:

" W a r d " means a child who has beenadmitted to the control of theboard or committed to a home con-

stituted and established under sec-tion eleven of this Act.

(b) (i) by omitting from paragraph (a) of sectionseven the words "of aborigines" and byinserting in lieu thereof the words "orbenefit of aborigines or for the purpose ofassisting aborigines in obtaining employ-ment and of maintaining or assisting tomaintain them whilst so employed, orotherwise for the purpose of assistingaborigines to become assimilated into thegeneral life of the community";

(ii) by omitting from para grap h (c) of thesame section the words "maintenance andeducation" and by inserting in lieu thereofthe words "and maintenance";

(iii ) by insert ing at the end of section seven thefollowing new paragraph and subsection:

(f) to arrange for the inspection atregular intervals of each station

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and training school under the con-trol of the board, by the Super-intendent of Aborigines Welfareand one or more of the other mem-bers of the board, or by one or moreof such other members.

(2) The board may on the applica tion ofthe parent or guardian of any child admitsuch child to the control of the board.

(c) by inserting in subsection one of section eightafter the word "regulations" the words "or amember of the police force'';

(d) by inser ting in subsection one of section 8A afterthe word "conditions" the words "or should inthe opinion of the board be placed undercontrol";

(e) by omitting sections eleven, 11A, 11B, twelve,thirteen, and 13Aand by inse rting in lieu there-of the following sections:

11. The board may constitute and establishunder this Act homes for the reception, main-tenance, education and training of wards and

may assign a name or names to such homes.11A. (1) The board may, by indenture, bind

or cause to be bound any ward as an apprenticeor may, where apprenticeship conditions are notapplicable or desirable, place any ward in othersuitable employment.

(2) The inden ture s of apprenticeshipand agreements shall be in the forms presc ribedand shall contain provisions to the satisfactionof the board for the maintenance, training, careand religious instruction of any ward concernedand for the due payment of any wages payable

thereunder . Such indentures and agreementsshall be exempt from the provisions of theStamp Duties Act, 1920-1939.

(3) All wages earned by any ward exceptsuch part thereof as the employer is requiredto pay to the ward personally as pocket money,shall be paid by the employer to the board onbehalf of such ward and shall be applied asprescribed. (4)


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(4) The wages due by any employer orperson on account of any ward may be sued forand recovered in the name of the board, or anyofficer authorised by the board in that behalf,in any court of competent jurisdiction, for thebenefit of such ward.

11B. (1) Where a ward is not regarded bythe board as ready for placement in employ-ment or for apprenticeship, such ward may beplaced in a home for the purpose of being

maintained, educated and trained.

(2) Where the boa rd is satisfied th atany ward is not likely to succeed in his employ-ment or as an apprentice, the board may, withthe approval of the employer or guardian ofsuch ward, cancel any indenture of apprentice-ship or agreement, and may place such ward ina home for the purpose of being maintained,educated and trained.

11c. Upon complaint made by the board orany officer authorised by the board in that

behalf, that any person with whom any wardhas been placed in employment or apprenticedis not observing or performing the conditionsof any indenture of apprenticeship or agree-ment or is unfit to have the further care of suchward any magistrate or justice may call uponsuch person to answer such complaint, and onproof thereof a children's court establishedunder the Child Welfare Act, 1939, may ordersuch agreement to be terminated and may directthat the ward be sent to a home constitutedand established under section eleven of this

Act pending arrangements for further employ-ment or apprenticeship.

12. (1) If any ward placed in a home consti-tuted and established under section eleven ofthis Act, or any ward placed in employment orapprenticed, is absent without the leave of theboard, or of any officer authorised in that behalfby the board, any member of the police force or

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any officer of the board may apprehend suchward and convey him to such home or back tohis employer.

(2) Any magistrate or justice may issuea warrant for the arrest of any ward who hasabsconded or been illegally removed from hisproper custody.

(3) Where any ward who has abscondedor has been illegally removed from his propercustody is arrested, he shall, as soon as practi-

cable, be brought before a children's court estab-lished under the Child Welfare Act, 1939.

(4) Any ward who absconds from hisprope r custody shal l be guilty of an offenceagainst this Act, and such court may

(a) order the offender to be punished byone or more of the methods of punish-ment referred to in Part XI of theChild Welfare Act, 1939;

(b) exercise any of the powers enumeratedin subsection one, subsection two, orsubsection three of section eighty-three

of the Child Welfare Act, 1939; butwhere it decides to exercise the powerreferred to in paragraph (d) of sub-section one or paragraph (c) of sub-section two of that section it shall com-mit the child to the care of the board tobe dealt with as a ward admitted to thecontrol of the board; and where itdecides to exercise the power referredto in paragraph (c) of subsection oneor paragraph (d) of subsection two ofthat section, the court shall commit thechild to a home constituted and estab-lished under section eleven of this Act;o r

(c) return the ward to his former custody.

13. (1) Whosoever without the consent ofthe board or of any officer authorised by theboa rd in tha t behalf or of the officer-in-chargeof any home constituted and established under

section


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section eleven of this Act, as the case may be,holds or attempts to hold any communicationwith any ward who is an inmate of such homeor enters or attempts to enter any such home orany premises belonging thereto or used in con-nection therewith, and does not depart there-from when requ ired to do so, or after beingforbidden so to do by the board or any officerso authorised or of the officer-in-charge of suchhome, as the case may be, holds or attempts tohold any communication, directly or indirectly,

with any ward who is an inmate of such home,shall be guilty of an offence against this Act.

(2) A person shall be guilty of an offenceagainst this Act if he

(a) ill-treats, terror ises , overworks orinjures any ward; or

(b) counsels, or causes or att empts tocause, any ward to be withdrawn orto abscond from any home constitutedand established under section eleven ofthis Act, or from the charge of any per-

son with whom he is placed or to whomhe is apprenticed or to escape from hisproper custody; or

(c) knowing any ward to have so beenwithdrawn or to have so absconded orescaped harbours or conceals such wardor prevents him from returning to suchhomo or person or to his propercustody; or

(d) having the care of any ward

(i) illegally discharges or dis-misses or attempts to dis-

charge or dismiss him fromany home constituted andestablished under sectioneleven of this Act,

(ii) illegally detains him in anyhome constituted and estab-lished under section eleven ofthis Act,

(iii)


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(iii) neglects him, or

(iv) does not well and truly ob-serve, perform and keep allthe covenants, conditions andagreements contained in anyindenture or agreemententered into by him respectingany ward, and which by suchindenture or agreement he hasbound himself or agreed, to

observe, perform or keep.

13A. (1) Any justice may, upon oath beingmade before him by any officer authorised bythe board in that behalf, or by any member ofthe police force, that having made due inquiryhe believes any child to be a neglected or uncon-trollable child

(a) issue his summons for the appearanceof such child before a children's courtestablished under the Child WelfareAct, 1939; or

(b) in the first instance issue his warrantdirecting such child to be apprehended.

(2) Any person havin g the care, custodyor control of a child may apply to a children'scourt established under the Child Welfare Act,1939, to commit the child to the control of theboard or to a home constituted or establishedunder section eleven of this Act upon theground that he is an uncontrollable child.

(3) The expressions "neglected child"and '' uncontrollable'' shall respectively have the

meanings given to those expressions in theChild Welfare Act, 1939.

(4) Any officer authorised by the board inthat behalf or any member of the police forcemay, although the warrant is not at the timein his possession, apprehend any child for whosoapprehension a warrant has been issued underthis section.

(5)


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(5) Any child apprehended as aneglected or uncontrollable child shall be takento a place of safety or to a shelter constitutedor established under the Child Welfare Act,1939, and as soon as practicab le thereaf ter shallbe brought before a children's court establishedunder that Act.

(6) Any child charged as a neglectedor uncontrollable child shall be brought beforea children's court established under the Child

Welfare Act, 1939.(7) The provisions of sections eighty-

one and eighty-two of the Child Welfare Act,1939, shall apply, mutatis mutandis, to and inrespect of any proceedings against a child underthis section:

Provided that where the court decides toexercise the power referred to in paragraph(d) of section eighty-two of that Act, it shallcommit the child to the care of the board to bedealt with as a ward admitted to the control ofthe board, and where the court decides to exer-

cise the power referred to in paragraph (e) ofthat section it shall commit the child to a homeconstituted and established under section elevenof this Act.

(f) (i) by ins ert ing in section 13c after the word"concerned" the words "and/or of his wifeand/or children";

(ii) by omitting from the same section the word"secretary" and by inserting in lieu thereofthe words "Superintendent of AboriginesWelfare";

(iii) by ins ert ing in the same section after the

word "due" the words "and/or of his wifeand/or children";

(g) by omitting sections sixteen, seventeen andeighteen and by ins ert ing in lieu thereof thefollowing sections:

16. (1) Wher e an aborig ine under sixteenyears of age has been admitted to the controlof the board and is a ward, or where any order

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has been made by a children's court establishedunder the Child Welfare Act, 1939, committingan aborigine under sixteen years of age

(a) to the care of any person; or

(b) to the control of the board; or

(c) to a home constituted and establishedunder section eleven of this Act,

the near relatives shall be liable to pay for orto contribute towards his maintenance.

(2) The provisions of Part XII of theChild Welfare Act, 1939, shall, mutatismutandis, extend to and in respect of the main-tenance of any such aborigine and the liabilityof the near relatives in respect of such main-tenance.

For the purposes of such extension

(a) a reference in tha t Pa rt to the Ministershall be construed as a reference to theboard,

(b) a reference in tha t Pa rt to an inst itutionshall be construed as a reference to ahome constituted and established undersection eleven of this Act, and

(c) a reference in tha t Pa r t to the Direc torshall be construed as a reference to theSuperintendent of Aborigines Welfare.

17. (1) Any per son guil ty of an offenceagainst this Act shall be liable, upon summaryconviction, unless some other penalty or punish-ment is expressly provided, to a penalty notexceeding twenty pounds or to imprisonment forone month, or to both such penalty andimprisonment.

(2) Proceedings for an offence againstthis Act or the regulations may be taken beforea court of petty sessions.

18. Proceedings for an offence aga ins t thisAct or the regulations may be instituted in thename of the board by any officer or employeeof the board or member of the police force.

(h)


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(h) by omitting from section nineteen the words"on the authority of the board by any memberof a local committee, guardian, or by any memberof the police force if such member is also autho-rised by the Commissioner of Police" and by in-serting in lieu thereof the words "or by anyperson authorised by the board in that behalf";

(i) by insert ing next afte r section nineteen thefollowing new sections:

19A. (1) The board may, from time to time,by resolution delegate to any person eithergenerally or in any particular case or class ofcases such of the powers, authorities, duties orfunctions of the board as may be specified in theresolution: Provided that no such delegationshall have any force or effect unless and untilthe same has been approved by the Minister.

(2) A delegate while acting within thescope of any such delegation to him shall bedeemed to be the board.

(3) The board may by resolution revokeany such delegation, and in such case shallsubmit a full report of the circumstances to theMinister.

19B. The board shall as soon as practicableafter the first day of July in each year submitto the Minister a report of its proceedingsduring the next preceding year.

The Minister shall cause such report to belaid before both Houses of Parliament.

(j) (i) by omit ting from pa ra grap h (a ) of subsec-tion one of section twenty the words "localcommittees, guardians and persons" andby inserting in lieu thereof the words"committees and persons appointed o r " ;

(ii) by inserting in paragraph (c) of the samesubsection after the words "for the" thewords "relief o r " ;

(iii)


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(iii) by omit ting from pa ra gr ap h (e) of the samesubsection the words "custody and educa-ti on" and by inse rtin g in lieu thereof thewords "and custody";

(iv) by omitting par agr aph (f) of the samesubsection and inser ting in lieu thereof thefollowing paragraph:

(f) Presc ribing the conditions on whichwards may be apprenticed or

placed in employment unde r th isAct, the form and contents ofagreements, appointments, appren-ticeship articles, and other instru-ments and documents, the mini-mum rates of wages of wards so

* ' apprentic ed or placed in employ-

ment, and the liabilities of personsin respect of the welfare of wardsapprenticed to or placed in theircare.

(v) by omitti ng from par agra ph (h) of the

same subsection the word "children" andby in se rti ng in lieu thereof the words"wards placed in employment or."

aborigines protection (amendment) act 1940

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