Grounds for Reparation

Lots of white kids do get taken away, but that's for a reason - not like us. We just got taken away because we was black kids, I suppose - half-caste kids. If they wouldn't like it, they shouldn't do it to Aboriginal families.

Confidential evidence 357, South Australia.

The Inquiry's third term of reference requires an examination of 'the principles relevant to determining the justification for compensation for persons or communities affected by such separations'. In any legal consideration of a claim for compensation there are two steps. First a wrong (or wrongs) is identified. Second the harm to the victim is identified and 'measured' to the best of the court's (or other decision-maker's) ability using established principles.

In this section we identify the wrongs involved in the forcible removal of Indigenous children from their families. In the following section we define principles which, we recommend, it would be appropriate to employ to remedy the harms caused by those wrongs.

Evaluation of government actions

The Inquiry has been careful not to evaluate past actions of governments and others through the prism of contemporary values.

The Government takes the view that in considering, and ultimately judging, the laws, policies and practices which led to the separation of Aboriginal and Torres Strait islander children from their families, it is appropriate to have regard to the standards and values prevailing at the time of their enactment and implementation, rather than to the standards and values prevailing today (Commonwealth Government submission page 30).

At the same time, it is important to appreciate that there was never only one set of common and shared values in the past. Even predominant values were not always faithfully reflected in policies and practices. There have always been dissenting voices. There was never universal agreement on what was right and just.

Nevertheless, it is appropriate to evaluate the (legislative and administrative) actions of governments in light of the legal values prevailing at the time those actions were taken. Those legal values can be found in the common law introduced to Australia by the British colonists and progressively developed by Australian Parliaments and courts. More recently they can also be found in the international law of human rights to which Australia not only voluntarily subscribed but played a leading part in developing and promoting.

Two broad periods

Broadly speaking there were two distinct periods in law and policy when Indigenous children were forcibly removed. The first was the period of segregation of 'full bloods' for their 'protection' and removal of 'half-castes' for absorption. This period commenced as early as the mid-nineteenth century in eastern States. It was marked by the maintenance of separate legislative and administrative regimes for Indigenous children and families.

Change came with the 1937 national conference at which the assimilation policy was adopted nationally. New legislation was introduced almost everywhere by 1940. Thereafter, some jurisdictions took the path of applying the same laws and standards to Indigenous as to non-Indigenous families, although the application remained discriminatory and unfair (Victoria, Tasmania and New South Wales). The remainder continued for a period with separate legislative and administrative regimes (Western Australia, Northern Territory, South Australia, Queensland). These were gradually dismantled during the late 1950s and early 1960s and Indigenous children were transferred to the mainstream child welfare systems. However, the policy and practice of assimilation, including the transfer of Indigenous children into non-Indigenous families and institutions, continued into the 1970s. The transfer of Indigenous children continues to this day, as documented in Part 6 of this report.

As British subjects, Indigenous peoples throughout the British empire received a promise of treatment consistent with the British common law. Colonies which ignored that promise were roundly condemned from Britain. The Australian colonies were the most notorious. In 1837 the British Parliament tried to bring these outposts into line.

It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil; a plain and sacred right, however, which seems not to have been understood. Europeans have entered their borders uninvited, and, when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country (House of Commons, Select Committee on Aboriginal Tribes (British Settlements) 1837 page 425).

Indigenous children because the focus of colonial policies towards Indigenous peoples generally. In the nineteenth century, children, whether Indigenous or non-Indigenous, were not thought of as children are today.

Childhood is a social construct and, as such, it has always been perceived and acted upon in the context of the particular time and place (Jamrozik and Sweeney 1996 page 13).

In particular, legislation about children and the establishment of residential institutions were not motivated by children's 'welfare' or 'best interests'. Rather the aim was 'to prevent the proliferation of a class of criminal slum-dwellers similar to those which plagued other advanced urban countries, by cutting off the source of its juvenile recruits' (Jaggs 1986 page 2, commenting on the Victorian Neglected and Criminal Children's Act 1864). The proponents of the Act 'were motivated by fear of the dangers which idle and disaffected lower classes posed for society, as much, if not more, than compassion for the young people concerned' (page 2).

Sociologist Robert van Krieken detected a marked difference in the policy approach to Indigenous and non-Indigenous children by the end of the nineteenth century. Non-Indigenous children and their families were part of the 'civil society' which engaged in complex interactions with State agencies (1991 page 7). Indigenous children and their families, on the other hand, were outside civil society and policy with respect to them was baldly based on social control; it 'fit[s] the model of one dominant group regulating and in fact transforming the everyday experience of another, almost entirely against their will' (1991 page 8).

It made little difference what the family situation really was or how the children were cared for, because being Aboriginal was in itself reason to regard children as 'neglected'. Even on the rare occasions when officials did not regard Aboriginal culture with contempt and fear, the emphasis on marriage and having fixed housing and employment in definitions of 'neglect' was inherently biased towards seeing all Aboriginal family life as neglectful (van Krieken 1991 page 8).

Basic safeguards protected the integrity of non-Indigenous families and the well-being of non-Indigenous wards of the State. These safeguards were cast aside when it came to Indigenous families and children throughout Australia.

There was a significant divergence between the imported British notions of fairness and liberty and the treatment of Indigenous peoples in Australia. The major components of forcible removal were,

  1. deprivation of liberty by detaining children and confining them in institutions;
  2. abolition of parental rights by taking the children and by making children wards of the Chief Protector or Aborigines Protection Board or by assuming custody and control;
  3. abuses of power in the removal process; and
  4. breach of guardianship obligations on the part of Protectors, Protection Boards and other 'carers'.

Deprivation of liberty

Respect for individual liberty is fundamental to the British common law inherited by the Australian colonies and subsequently the States and Territories. It traces its origins to the Magna Carta of 1215, a compact between the King and the barons of England. King John promised that the barons 'have and hold the aforesaid liberties, rights and concessions, well and in peace, freely and quietly ... for ever' (article 63). These liberties included the freedom from being seized or imprisoned 'or in any way destroyed' 'excepting by the legal judgement of his peers, or by the laws of the land' (article 39). If that promise was or had been breached, liberty was to be restored (article 52).

Gradually respect for individual liberty extended beyond the barons to all people in the kingdom. The law defended individual liberty by making false imprisonment a criminal offence and permitting the individual to sue for damages on proof of trespass to his or her person (Halsbury 1955 Volume 10 page 735). The Crown (or government) and public servants could be sued just like private citizens when a public servant in the course of his or her duty wrongfully deprived a person of liberty (Halsbury 1955 Volume 10 page 736).

The taking of Indigenous children from their homes by force and their confinement to training homes, orphanages, other institutions and mission dormitories amounted to deprivation of liberty and, in fact, imprisonment, in the common law sense (Halsbury 1955 Volume 10 page 765). Not every deprivation of liberty and imprisonment is unlawful or wrongful. Detention is lawful when it is ordered or ratified by a court according to law.

The common law offered two safeguards of liberty. The first was the requirement that everything except a very short detention (for example following arrest) must be scrutinised by a court. A deprivation of personal liberty was only lawful after the proponent of removal had established its desirability and lawfulness in open and independent court of law. The second safeguard was the writ of 'habeas corpus' (literally 'deliver the body'). This writ developed in tandem with protection of individual liberty and enabled a person to demand freedom - usually for another person - by bringing the Government into court to justify that person's detention or imprisonment. The court would order the person's release if the detention was found to be unlawful, as would often be the case where the detention had not been sanctioned by the court in the first place. The court process offers the safeguard of publicity as well as the chance to challenge the grounds of removal.

The safeguard of pre-detention court scrutiny was denied to Indigenous children in many States and the Northern Territory when legislation permitted them to be removed and confined by the order of a public servant alone (see table). During these periods non-Indigenous children removed from their families had to be processed through the courts. Where an appeal right was given to Indigenous parents, as in New South Wales, the right was ineffectual. The courts were not realistically accessible to Indigenous people in this period. They were unlikely to know of that right and most would not have been able to find any assistance to proceed to court. The civil disabilities under which Aboriginal people laboured precluded most from asserting their rights.

The States which removed the safeguard of judicial scrutiny for Indigenous children and their families were directly discriminating on racial grounds.

Administrative removal powers not subject to prior judicial scrutiny

State/Territory Years Grant of power
Western Australia 1905-1954 Minister empowered to remove any Aboriginal person. As legal guardian of Aboriginal children and head of Aborigines Department Chief Protector (Commisioner of Native Welfare after 1936) could exercise this power in relation to Aboriginal children. After 1909 the removal power in relation to 'half-caste' children under eight years delegated to police protectors and Justices of the Peace.
Northern Territory 1911-1957 Commonwealth legislation authorised the Chief Protector to undertake 'the care, custody or control of any aboriginal or half-caste if in his opinion it is necessary or desirable in the interests of the aboriginal or half-caste for him to do so' and thus to exercise a removal power.
  1957-1964 The NT Administrator was empowered to declare Indigenous people to be wards. The Director of Welfare could remove wards at will. An individual had a right of appeal to a court.
New South Wales 1915-1940 Aborigines Protection Board (later Welfare Board) was empowered to remove any Aboriginal child after 'due inquiry' without recourse to a court hearing. The parent could appeal to a court.
South Australia 1911-1923 Local protectors were created with guardianship powers circumventing the previous requirement for a magistrate's court hearing.
Queensland 1897-1939 The Minister was empowered to order removal of Aboriginal families to and between Aboriginal reserves. On reserves Aboriginal children could be confined in dormitories.
  1939-1965 The Director of Native Affairs was constituted the legal guardian of every 'aboriginal' minor (under 21 years) with full parental powers.

Source: Appendices to this report.

Deprivation of parental rights

Some jurisdictions went further and legislated to strip Indigenous parents of their parental rights, making a Chief Protector or similar official the legal guardian of all children defined to be Indigenous children: Western Australia from 1905 until 1963, the Northern Territory from 1910 until 1964, South Australia from 1911 until 1962, and Queensland from 1939 until 1965. This too was contrary to established common law which safeguarded parental rights.

At least as early as 1592 in Ratcliffe's Case, the common law courts in England recognised and defended the right of the father (or the mother, but only if the father was dead) to the custody and guardianship of a child, to direct the education of the child and to nurture and control the child. The father is the 'natural guardian' of his child according to cases dating from 1748 (Mendes page 624, Halsbury 1955 Volume 21 page 204).

It seems that at common law this applied only to 'legitimate' children. Children born out of wedlock were deemed to be 'children of no-one' (Dickey 1990 pages 298-99, Jaggs 1986 page 7). However, no State relied on this principle to displace the rights of Indigenous parents. Illegitimate non-Indigenous children were not made wards of the State by legislation. No proof was required that Indigenous children were illegitimate before they were made wards. The legislation extended State guardianship over all Indigenous children satisfying the particular definition at the time regardless of whether they were the children of a marriage or not. In other words, their Aboriginality (or the 'degree' of it) was the reason for the extension of guardianship by legislation, not their legitimacy or illegitimacy.

The Crown, as the 'parent' of all subjects, and the courts have long had the power to remove parental rights. Both at common law (Re Agar-Ellis 1878) and under legislation (with the exception of Queensland from 1865 until 1911), however, an individual case would always be scrutinised and the parent could only forfeit parental rights through misconduct or because a court found guardianship to be in the individual child's best interests. The Australian High Court confirmed this position, for a non-Indigenous parent, in 1955.

It must be conceded at once that in the ordinary case the mother's moral right to insist that her child shall remain her child is too deeply grounded in human feeling to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child. It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another's, and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child (Full High Court in Mace v Murray page 385).

Like a parent, or school teacher to whom the parent has entrusted his child, a non-parental guardian such as the Chief Protector had the power at common law to 'confine' his or her ward. By making the Chief Protector or Board the guardian, Western Australia, South Australia, the Northern Territory and Queensland legalised the detention so that they were not in law guilty of wrongful imprisonment of Indigenous children.

Confinement, even by a parent, must be done 'in a reasonable manner and for a sufficient reason' (Halsbury 1955 Volume 38 page 769). Aboriginal Protection Acts did not require Chief Protectors or Protection Boards to consider questions of reasonableness or sufficiency. These decisions were already made: if the child was Aboriginal or 'half-caste' that was reason enough to remove and institutionalise him or her. Again the common law protections were set aside in the interests of maximising State control over Indigenous children. Again Indigenous people were denied common law rights taken for granted by other Australians.

The discrimination was noticed and criticised by many. In 1938 Gladys Prosser made the point in an interview to the WA Sunday Times (quoted above). In the same year, the Hon H Seddon MLC contrasted child welfare practice relating to Indigenous and non-Indigenous mothers.

I wish to cite the case of a mother whose children were taken from her. Judging by the conditions associated with her and judging by white standards, one might say that the department had a considerable amount of reason for its action. Here again is a case where sympathy and understanding might have averted the very serious trouble that overtook this woman. Her two children were taken from her and, as a result, the woman lost her reason. She was confined to the asylum, and the report from that institution is that she is in a very depressed state. I ask the House again to judge that case from the standpoint of a white woman. If a white woman were deprived of her children she would fall into a very depressed state of mind and would suffer considerably. Although the power is given under the Child Welfare Act to take children from undesirable [white] parents, such parents are given every opportunity to appreciate the possibilities of the law and to mend their ways. When dealing with a native, a person whose grasp of our white laws is only more or less that of a child, I say there should be sympathy, there should be understanding, above all there should be help extended to the native before such a drastic step is taken as to deprive a mother of her children (WA Hansard 22 November 1938 at page 2243).

Abuses of power

Legislation authorised the majority of removals. It authorised what would otherwise have been gross breaches of common law rights. Many of the practices carried out under 'protection' legislation, however, should not have been countenanced. Sadly even where a court hearing was required, courts were often less than vigilant about these abusive practices.

Some Protectors and Inspectors resorted to kidnap, taking the children from school or tricking them into their cars. Children disappeared without their parents' knowledge. A woman who had been taken to Cootamundra Girls' Home in New South Wales spoke about the practice of Robert Donaldson, MHR and Inspector: 'he used to go around with a tin of boiled lollies, coaxing, taking little kiddies, different kiddies off different stations. Take them for a ride and never take them back' (quoted by Hankins 1982 on page 2.1.13).

When they came, they had things like balloons and party hats. They told us that we were going on a big party, all the kids. I didn't realise what was happening. They took some of my cousins out of school and put us in the van. I could see Mum was crying. That's when I got frightened. I knew something was wrong. And Dad was running through, and he was like a madman (quoted by Stuart Rintoul submission 58).

The police came one day from Halls Creek when they were going on patrol to L. [pastoral station] and found me, a half-caste kid. They told the manager to take me to Fitzroy Crossing to wait for the mail truck from Derby to take me to Moola Bulla [government station]. When the manager's wife told my Mum and [step] Dad that they were taking me to Fitzroy Crossing for a trip, they told her, 'You make sure you bring her back'. But little did they know that I would never see them again.

Confidential evidence 821, Western Australia: child brought up traditionally by her Aboriginal parents but captured at 12 years in the 1930s.

Today the injustice of these practices is obvious, as the NSW Government recognised in its interim submission to the Inquiry.

The manner in which children were taken compounded the shock and trauma of losing the children. Some children were taken direct from school without their parents knowing, without opportunities to say adequate farewells (page 119).

Many people protested against these unjust practices at the time. Inspector Thomas Clode, a Sub-Protector of Aborigines based in Port Augusta, South Australia, wrote to the Commissioner of Police on 24 February 1910 that,

Speaking for this Division only [Port Augusta], which is a very large one indeed, the only suggestions I have to make is to leave the Half-Caste Children alone. They are well looked after by their Mothers and have never caused any annoyance to the white settlers. I fail to see that any good will be done by placing them in the State School. Knowing the Blacks as well as I do I have no sympathy with the proposed Gathering in of the Half-Castes in this Division. I can only look upon it as a very cruel thing to do, and fear grave consequences will be the result (quoted by Mattingley and Hampton 1992 on page 61).

Ten days earlier, Inspector Clode had written to his superior that,

... on the 16.2.1909 instructions were received by me re committing a number of half-caste children to the State Children's Department ... I think it is my duty to inform you that if these instructions are carried out that grave consequences may be the result, as the natives have as much love and affection for their children as the white people have, and they will fight for the sake of their children. Such being the case it appears to me to be a very cruel thing to enforce. And it is looked upon by the settlers in the interior as being nothing short of kidnapping ... (quoted by Winifred Hilliard submission 387).

As a consequence he was instructed by W G South, the Protector of Aborigines,

... I am still of the opinion that all half caste children found wandering with the Aborigines in the interior should, for their own protection and proper up-bringing, be placed under the care of the State Children's Department, there they will be educated and taught useful occupations instead of being left to acquire the habits and customs of savages and thus continue an increasing burden on the State. It is regrettable that the natives cannot see that their children would be much better off if removed but as this is apparently impossible, I would recommend that at present only those children who are considered not under proper care and control be removed (quoted by Winifred Hilliard submission 387).

H S Taylor, proprietor and editor of South Australia's Renmark Pioneer, wrote to the Protector of Aborigines, around 1910,

[I] call to your attention what I believe to be a grave miscarriage of the intentions of the provision made for the protection of the [A]borigines of this State ... I cannot conceive that it was ever the intention of the legislature that native lads should be torn from their parents without their consent, especially when in the present case, it could be easily shown that the lads were not, in the ordinary sense of the term 'neglected children'. Both of them, in point of fact, were working for kind and considerate masters; the father is in good and regular work ... I am unable to regard it as anything short of an outrage that they should have been so sent in defiance of the parents' wish, more particularly when sending them involved their detention for a period of years ... the affair has so worked on the mother's mind that she has had several seizures of fits since the abduction of their children.

... the lads were got from their employers, brought into court and committed without either parent knowing of it or having any opportunity to be present, to intimate their mind in the matter ... [the father] is strongly opposed to their detention in the industrial school, being of the opinion that they will probably fret themselves ill there (quoted by Mattingley and Hampton 1992 on page 159). The Superintendent of a South Australian boys' home recorded in 1964 that, ... he was only held down in town by bluff, and was not a Ward of State ... (document supplied with confidential submission 179, South Australia: man removed with his brother to a predominantly non-Aboriginal Church of England Boys' Home as an 'experiment in assimilation').

Breach of guardianship duties

The treatment of children while under 'protective' guardianship, or in the care and custody of a Protector or Protection Board, was often officially recognised at the time as intolerable. Many children suffered greatly while in the 'care' of the State. Supervision of their placement in institutions or foster care was inadequate to protect them from brutal treatment and often abuse. Yet these 'carers' were placed by law in a position - a 'fiduciary relationship' - in which they owed legal obligations of care and protection to the children. The fiduciary duty was 'to care for, protect and rear' the ward (KM v HM 1992 page 323).

A fiduciary relationship exists where one party is dependent or vulnerable and the other has discretionary powers over the first.

[T]he critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position (Justice Mason in Hospital Products Ltd v United States Surgical Corporation 1984 at pages 96-97).

The duties of a fiduciary may be spelt out in the legislation creating the fiduciary relationship. Where the legislation leaves gaps, these are filled by the common law.

The most obvious fiduciary relationship is that between a child and his or her guardian. At common law the relationship of guardian and ward was identical to that of father and child, with the additional obligations that the guardian who is not a parent must take into account the parent's wishes regarding the religion and education of the child and must 'teach the infant dutiful feeling towards a surviving parent' (Halsbury 1955 Volume 21 page 211; see also Ex parte Earl of Ilchester 1803-1813).

The fiduciary must refrain from harming the ward, must protect the ward from harm and must provide for his or her education (Batley 1996 page 188). There is an obligation of maintenance (Mathew v Brise 1851). Where harm is caused by an employee or a delegate of the fiduciary, the fiduciary is 'vicariously liable'.

A fiduciary cannot escape liability for breach of his or her duties to a ward or other dependent child by showing that the custody of the child was transferred to someone else. For example, a Protection Board might claim it was not its fault that its wards were inadequately educated or were exploited or abused while they were living at a church-run orphanage or in foster care. The claim would fail. The legislation did not authorise the Boards to delegate their fiduciary duties and common law does not permit such delegation because a ward is especially vulnerable and dependent (Reynolds v Lady Tenham 1723, Burnie Port Authority v General Jones 1994 page 62).

At the same time, a person with physical custody of the child was also likely to have been in a fiduciary relationship because of the child's dependence and the custodian's discretionary powers, for example, regarding the child's accommodation and maintenance, education and employment and extent of contact with family members. This applies, for example, to the management of a church-run orphanage or training home where forcibly removed children were placed.

The table opposite sets out the statutory obligations created by legislation that established fiduciary relationships between Protectors or Protection Boards and forcibly removed Aboriginal children (or in some cases all Aboriginal children).

The Protectors and other officials were obliged to refrain from causing physical harm to forcibly removed children, to protect the children from any such harm, to provide individually and in each child's best interests for their custody and maintenance, and to provide for education. Paul Batley suggests that the duty should be broader in the case of forcibly removed children, extending to their emotional well-being, because their parents had been denied the opportunity to perform this function. In other words, the duty is greater because the child is entirely and solely dependent on the Board for all the necessities of both life and psychological and emotional development (1996 page 191).

If the nature of the obligation depends on the nature of the relationship, then it is arguable that the Board's absolute control over the physical and emotional wellbeing of the child supports the recognition of a duty to provide for the essential needs of the child (page 191).

We can readily identify three ways in which Protectors and Boards failed in their guardianship duties to Indigenous wards or children to whom they had statutory responsibilities. In many cases the agents or delegates of the State similary breached their fiduciary duties: missions, church institutions, forster carers and 'employers'.

  1. They failed to provide contemporary standards of care to Indigenous children when such standards of care were provided to non-Indigenous children in similar circumstances.
  2. They failed to protect the children from harm.
  3. They failed to involve Indigenous parents in decision-making about their children.
State/Territory Years Grant of Power
Western Australia 1886-1905 Aborigines Protection Board responsible for care, custody and education of Aboriginal children.
  1905-1963 Chief Protector (1905-36), thereafter Commissioner of Native Welfare, the legal guardian of all Aboriginal children (except State wards after 1954). Aborigines Department responsible to provide for the 'custody, maintenance and education' of Aboriginal children.
South Australia 1844-1911 Protector of Aborigines made the legal guardian of every half-caste and other unprotected Aboriginal child whose parents were dead or unknown.
  1911-1962 Chief Protector the legal guardian of every Aboriginal and 'half-caste' child until 1923 when he was made legal guardian of every child with any Aboriginal ancestry.
Northern Territory 1910-1957 Chief Protector (Director of Native Welfare from 1939) the legal guardian of every Aboriginal and 'half-caste' child.
  1957-1964 Director of Welfare empowered to declare Indigenous individuals to be his wards; some were deemed wards.
Victoria 1869-1957 Legislation authorised the making of regulations providing for the 'care, custody and education of the children of aborigines (as defined)'.
  1957-1967 One function of the Aborigines Welfare Board was to promote 'the moral, intellectual and physical welfare of aborigines' but otherwise no child-specific powers, nor a regulation-making power as previously.
New South Wales 1909-1915 Aborigines Protection Board charged with the duty 'to provide for the custody, maintenance and education of the children of aborigines (as defined)'.
  1915-1940 Additionally, entitled to 'assume full custody of the child of any aborigine'.
  1940-1969 Education duty dropped.
Queensland 1897-1939 Legislation authorised the making of regulations providing for the 'care, custody and education of the children of aborigines (as defined)'.
  1939-1965 Director of Native Affairs the legal guardian of every 'aboriginal' child under 21 years.

Source: Appendices to this report.

Failure to provide care to contemporary standards

Many witnesses to the Inquiry spoke of the appalling standards of care in institutions. Former residents told of being cold and hungry, worked too hard but educated too little. They told of brutal punishments, fear of sexual abuse and of the stifling of affectionate relationships. They reported emotional abuse by the denigration of Aboriginality and the denial of family contact.

In a submission to the Inquiry the Baptist Churches of Western Australia acknowledged that the standards of care were inadequate.

In retrospect, however, the Baptist Churches of Western Australia acknowledges that the institutionalised nature of the arrangements in the earlier years, the transfer of children between houseparents, the limited number of trained staff, and the paucity of resources available, did nnt provide the optimum family-replacement support for already deprived children.

... the care provided fell far short of standards being developed in WA at the time. This was inevitable, and in this respect Marribank was no different to similar organisations such as Roelands, Parkerville etc. Deficiencies were due to recurrent problems of recruiting and maintaining suitable staff, including relief and support staff, unsuitable buildings, the isolation of Marribank, and the formidable costs involved in running a child care institution (submission 674 pages 2 and 12).

The mainstream child welfare system was also seriously flawed but children in the mainstream did benefit from advances in knowledge about child development and the effects of institutionalisation many decades before Indigenous children were accorded the same standards of care.

In 1874 in New South Wales the Second Report of the State's Public Charities Commission roundly rejected institutionalisation and recommended 'boarding out' or fostering for destitute and orphaned children. This had already occurred in Victoria and Tasmania; South Australia had adopted a similar policy but failed to put it fully into effect. The Commission reported that,

Those who founded the barrack system for the management of children thought less, it is to be feared, of its probable effects on the children than of the ease with which officers could manage them ... Fatal experience in the Mother Country [England] has however proved that this mechanical routine, though necessary for the management of numbers is prejudicial to a healthy development of character, and to the rearing of children as good and useful men and women (page 40).

The same experience had led even earlier to the adoption of boarding-out in Scotland, France, Hamburg in Germany and Massachusetts in the USA.

Children placed with respectable families in their own rank of life, where they are cared for as if they were members of the household, lose that feeling of homelessness, isolation, and pauperism, which is inseparable from the routine and constraint of a pauper school. Their intelligence is stimulated by fresh objects and interests of their new life; the natural affections are called into healthy play; the sentiment of individual responsibility is quickened, and thus the foundations are laid of sound mental education and moral character (page 44 quoting the Victorian Commissioners inquiring into penal and prison discipline).

The home, the family, are the best nursery for all children, and a poor home is almost always better than a good almshouse (page 48 quoting Daniel Kemp, Governor of the Edinburgh Union, February 1869). With this amount of evidence in its favour, we would most earnestly recommend the adoption of the system in this Country, as the best way of escape from the dangers to which children are exposed by being massed in large institutions (page 51).

Institutions as the primary absorption and assimilation tool for Indigenous children, however, persisted for another 90 years in most States and the Northern Territory. They were omitted from developing considerations of humanity and sound practice in child welfare.

... the placement component of the removal policy was out of step with what was driving placement policy for non-Indigenous children, which to me is an extraordinary thing. I find it hard to explain ... I think the various Aboriginal authorities were closely linked to the welfare authorities ... So they should have been informed by that same material. And one is certainly drawn towards the conclusion that Aboriginal and Torres Strait Islander children were at that time being treated in a different way for reasons which I'm not entirely familiar with. We should have known at the time the effect that this was going to have on these people, particularly in terms of the personal psychology but also, I think, in terms of their capacity to be effective and caring parents. There was literature at the time which was driving policy in a more constructive way with other people (Professor Brent Waters evidence 532).

Infants' anxiety on separation from their mothers was scientifically observed at least as far back as Freud in 1905 and various theories emerged to explain the reasons (Bowlby 1961 pages 252-3). Psychologists Dorothy Burlingham and Anna Freud made observations of babies and young children in English children's homes during the Second World War. They found babies between one and three years reacted particularly violently to separation. The child's 'longing for his mother becomes intolerable and throws him into states of despair' (quoted by Bowlby 1961 page 261). Older children, those aged between three and five, also experienced distress, but these children believed the separation was punishment and therefore felt guilt. Yet Freud and other influential figures considered a baby or a child only had needs relating to physical survival. Burlingham and Freud therefore interpreted their observations as indicating a need for a more progressive process of separation from the mother instead of a need to keep mother and child together if possible. They failed to perceive the emotional needs of children or the significance of affectional attachments in the development of the human personality. The academic psychiatrist John Bowlby brought these issues to the fore in 1951 and subsequently.

Again it took some time for Indigenous children to benefit from this new understanding. Indigenous children continued to be institutionalised disproportionately. They continued to be subjected to a standard of care below that provided to non-Indigenous children at the same time.

Failure to prevent harm

The second type of breach was the failure of the Protectors and Boards to prevent the abuse and exploitation of so many of the children in their care. The Inquiry heard evidence not only of the sufferings of many vulnerable children in government and private institutions and foster families but also of the repeated failures of adequate preventive oversight by officials.

Melbourne law firm Phillips Fox submitted that,

In our view, by taking the children away and making them State Wards - by becoming 'legal guardian' to these children - the State took on parental responsibilities, or fiduciary duties, in relation to each such child.

On our instructions, the State in many cases failed to fulfil these responsibilities and duties, not only by denying the children their culture, but by failing to ensure that they were safe from ill treatment, whether they were in institutions or foster care. Many of the children were verbally, physically, emotionally, or sexually abused - or all of these things (submission 20 page 5).

The children were accommodated in institutions whose physical condition was frequently appalling and not conducive to their proper care and maintenance or education. In 1929 the Rector of Port Lincoln visited the institution at Jay Creek outside Alice Springs. His observations received widespread press coverage (Markus 1990 page 29). The children's dormitory accommodated 48 in a space 24 x 50 feet or 7.3 x 15.3 metres.

... a more draughty ugly dilapidated place one could hardly imagine. I think that the children would be less liable to colds in the open than in the disgraceful accommodation provided for them (quoted by Markus 1990 on page 30).

In 1938 the Northern Territory Government Secretary wrote of the school for 'half-castes' at the Telegraph Station that,

[It] and its furniture was in keeping with the rest of the institution which could only be described as nauseating and long overdue for demolition (quoted by Markus 1990 on page 35).

Officially-recognised instances of physical abuse have been quite well-documented and some have been mentioned above. In 1933 the manager of Kinchela Boys' Home in New South Wales had to be warned about punishments he had employed and the NSW Aborigines' Protection Board received allegations from a former Cootamundra Girls' Home staff member about brutal punishments there in 1927. In Western Australia, Chief Protector Neville had found it necessary to draw up regulations to ban 'degrading and injurious punishments and the practice of holding inmates up to ridicule, such as dressing them in old sacks or shaving girls' heads' (Neville 1947 page 113).

Failure to involve parents

The third type of breach was the failure to consult the living parents' wishes concerning the religion and education of their children. Not only were very many children brought up to despise Aboriginal people such as their own parents, many were told falsely their parents were dead.

Forcible removal itself a breach?

Even with the knowledge and by the standards of the times, Protectors and Boards may have breached their fiduciary duties to many children by the very act of removing them from parental or other family care.

We would argue that the removal from the family was so casual as to allow unnecessary deprivation to be experienced by all the children regardless of whether some special care was necessary because of the context of their situation. We would argue also that other basic rights were totally ignored in the structure of care of the children, basic human rights. So much so as to suggest that all institutions involved in the care of the children during that period [early 1960s] failed in their fiduciary duty to some extent ... I think we would want to say that the failure doesn't mean that many individuals in government and the churches were uncaring and did not work unstintingly to love and care for the children (Rev. Bernie Clarke evidence 119).

We have spoken with people who, even today, honestly believe that it was right to transfer indigenous children into white families because this would give them the material benefits they would not otherwise have.
We contend that this motivation does not in any way morally excuse, or legally justify, the taking of children from loving families, and robbing them of their culture and identity (Phillips Fox Solicitors submission 20 page 7).

International human rights

By 1940 assimilation had become official policy in all Australian mainland States and the Territories. In fact the practice of child removal with the aim of children's 'absorption' pre-dated the term 'assimilation'. The assimilation policy persisted until the early 1970s and continues to influence public attitudes and some official practices today. Yet within a few years of the end of the Second World War, Australia, together with many other nations, had pledged itself to standards of conduct which required all governments to discontinue immediately a key element of the assimilation policy, namely the wholesale removal of Indigenous children from Indigenous care and their transfer to non-Indigenous institutions and families.

The United Nations Charter of 1945, the Universal Declaration of Human Rights of 1948 and the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 all imposed obligations on Australia relating to the elimination of racial discrimination. Genocide was declared to be a crime against humanity by a United Nations Resolution of 1946, followed by the adoption of a Convention in 1948. The Australian practice of Indigenous child removal involved both systematic racial discrimination and genocide as defined by international law. Yet it continued to be practised as official policy long after being clearly prohibited by treaties to which Australia had voluntarily subscribed.

Systematic racial discrimination

Legislation made the removal of Indigenous children, as defined, sometimes to cover only 'half-castes, easier than would have been the case had a court order been necessary. This legislation established a legal regime for those children and their families which was inferior to the regime which applied to non-Indigenous children and their families. A pre-removal court hearing would have provided a basic protection, even if only in theory due to the cultural bias of the courts and the unavailability of legal aid at the time. The legislation was racially discriminatory.

Even where a court hearing was necessary, the law discriminated against Indigenous children and families in a number of ways. Almost invariably courts failed to ensure that the families were aware of their right to attend, that they knew the date, that they understood the nature of the proceedings and that they had an opportunity to be legally represented. As noted, in any event legal aid was unavailable.

Too frequently the values and standards expected of Indigenous families were the values and standards of middle-class welfare workers and magistrates. For example, the definition of 'neglect' in the Neglected Children and Juvenile Offenders Act 1905 (NSW) included 'having no visible means of support' or 'no fixed abode', 'sleeps in the open air' and 'who without reasonable excuse is not provided with sufficient and proper food, nursing, clothing, medical aid and lodging'. These descriptions appear overwhelmingly to target Indigenous lifestyles. By imposing these values on Indigenous families, the child welfare legislation virtually ensured the success of any application to a court for a removal order.

Legislation making poverty or homelessness grounds for removal was at best unfair and unconscionable in light of the history of colonial dispossession, segregation and control. Most Indigenous families had been forced into poverty, dependence on handouts and inadequate housing. They were then expected to attain standards of living which were effectively denied to them.

Racial discrimination was recognised as contrary to international law at least upon the establishment of the United Nations in 1945. The UN Charter, which Australia ratified in that year, provides that,

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

...

(c) universal respect for, and observance, of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion (Article 55).

In 1950 Hersch Lauterpacht commented on the Charter's human rights provisions.

Members of the United Nations are under a legal obligation to act in accordance with these Purposes. It is their legal duty to respect and observe fundamental human rights and freedoms. These provisions are no mere embellishment of a historic document; they were not the result of an afterthought or an accident of drafting. They were adopted, with deliberation and after prolonged discussions before and during the San Francisco Conference, as part of the philosophy of the new international system and as a most compelling lesson of the experience of the inadequacies and dangers of the old (pages 147-148).

The binding nature of the Charter's human rights provisions has been repeatedly confirmed by the most eminent jurists. Even before 1950 they were recognised as binding by the most senior North American judges. Two joint judgments in the 1948 US Supreme Court case of Oyama v California relied on these provisions.

Moreover, this nation has recently pledged itself through the United Nations Charter to promote respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion (Justices Murphy and Rutledge). ... we have recently pledged ourselves to co-operate with the United Nations to 'promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion'. How can this nation be faithful to this international pledge if state laws which bar land ownership and occupancy by aliens on account of race are permitted to be enforced? (Justices Black and Douglas).

In 1945 the High Court of Ontario relied upon the human rights provisions of the Charter as part of the public policy of Canada in refusing to enforce covenants based on racial origin (In re Drummond Wren page 781).

The prohibition of racial discrimination soon found further expression in the 1948 Universal Declaration of Human Rights, providing 'an authoritative guide ... to the interpretation of the provisions in the Charter' (Brownlie 1990 page 571).

... the indirect legal effect of the Declaration is not to be underestimated, and it is frequently regarded as part of the 'law of the United Nations' (Brownlie 1990 page 571).

Article 1 of the Universal Declaration provides in part that 'All human beings are born free and equal in dignity and rights'. Indigenous Australians did not enjoy this right until at least the late 1960s and even later in Western Australia and Queensland (Markus 1988 page 56).

Article 2 states that,

Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Universal Declaration enumerated a catalogue of human rights to which everyone is entitled without any distinction based on race. Indigenous Australian families and children in most States and the Northern Territory were denied equal enjoyment of virtually all the rights recognised by the Universal Declaration, in particular,

  • the right to liberty and security of person (Article 3),
  • the equal protection of the law (Article 7),
  • the right to a fair and public hearing by an independent and impartial tribunal in the determination of their rights and obligations (Article 10),
  • freedom from arbitrary interference with their privacy, family, home and correspondence (Article 12), and
  • the right to a free elementary education and the right of parents to choose the kind of education to be given to their children (Article 26).

From 1950 then the prohibition of systematic racial discrimination on the scale experienced by Indigenous Australians was recognised as a rule binding all members of the United Nations. The subsequent International Convention on the Elimination of All Forms of Racial Discrimination, finalised in 1965 and ratified by Australian in 1975, simply gave greater precision to what was already acknowledged as an injunction of international law.

The [Convention] is, to a large extent, declaratory of the law of the Charter, or, in other words, the basic principles of the convention lay down the law which binds also states which are not parties to the convention, but, as members of the United Nations, are parties to the Charter (Schwelb 1972 page 351).

In Australia the prohibition of racial discrimination was disregarded for many more years. Legislation continued to provide a different and inferior regime for Indigenous children until 1954 in Western Australia, 1957 in Victoria, 1962 in South Australia, 1964 in the Northern Territory and 1965 in Queensland. Direct discrimination continued following the repeal of specific Indigenous legislation as welfare departments continued to implement the same policies.

This level of systematic racial discrimination amounts to a 'gross violation of human rights'. While there is no international consensus on the full list of 'gross violations', most lists include systematic racial discrimination together with extermination and torture (Dimitrijevic 1992 page 217, International Law Commission 1991, Third Restatement of the Foreign Relations Law of the United States section 702, van Boven 1993 para 13). The term 'gross' refers to the severity, scope or size of the violations as well as the type of human right being violated (van Boven 1993 para 8).

Indirect racial discrimination continues into the present both in child welfare and juvenile justice systems, as documented in Part 6. Indigenous children and their families continue to be judged from an Anglo-Australian perspective which demonstrates little respect for Indigenous values, culture and child-rearing practices. It provides little or no encouragement of or support for Indigenous parenting. Indigenous children continue to be transferred, permanently or temporarily, from their families and communities to the custody and control of non-Indigenous Australians.

Because laws singled out Indigenous children for removal by administrative means and on the ground of their race or colour, they were racially discriminatory. Whether they may have been partially motivated by a benign purpose is immaterial. In determining whether discrimination has occurred, the purpose or intention of the alleged discriminator is not decisive. In international legal usage the term 'discrimination' refers to distinctions which have the purpose or effect of impairing the enjoyment or exercise, on an equal footing, of human rights.

Senior government officials clearly knew they were in breach of Australia's international legal obligations. For example, writing on 6 July 1949 to the Commonwealth Department of the Interior, A R Driver, Administrator of the Northern Territory, stated,

There are certain restrictions which must remain imposed on Aborigines even though they are at variance with the complete ideals of the Universal Declaration of Human Rights (Australian Archives No AA ACT: CRS F1 1943/24).

The Canadian Royal Commission on Aboriginal Peoples reported in 1994 on Canada's relocation of the Inuit peoples of the High Arctic in 1953-55. The relocation involved coercion, separation of the people into different groups by force, holding people in the High Arctic against their will and denial of family allowance and other universal benefits. The Royal Commission found that 'the relocation was an ill-conceived solution that was inhumane and damaging in its design and effects. The conception, planning and supervision of the relocation did not accord with Canada's then prevailing international commitments' because the rights declared in the Universal Declaration 'were recognized by the Government of Canada at the time of relocation' (page 157). As a result the 'relocatees' had an entitlement to redress including compensation (page 164). The same analysis and conclusion apply to the forcible removal of Australian Indigenous children.

Genocide

Genocide was first defined in a detailed way in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Australia ratified the Convention in 1949 and it came into force in 1951.

The Convention confirmed that genocide is a crime against humanity. This expressed a shared international outrage about genocide and empowered any country to prosecute an offender. A state cannot excuse itself by claiming that the practice was lawful under its own laws or that its people did not (or do not) share the outrage of the international community.

Genocide is defined as,

... any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. killing members of the group; b. causing serious bodily or mental harm to members of the group; c. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. imposing measures intended to prevent births within the group; e. forcibly transferring children of the group to another group (article II).

In determining whether the Australian practice of forcible transfer of Indigenous children to non-Indigenous institutions and families was 'genocide' four issues must be considered.

Forcible transfer of children can be genocide

Genocide does not necessarily mean the immediate physical destruction of a group or nation. The Polish jurist Raphael Lemkin was the author of the term and the major proponent of the United Nations Convention. He defined 'genocide' as 'a coordinated plan of different actions aimed at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves' (Lemkin 1944 page 147). The objectives of such a coordinated plan would be 'the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups' (Lemkin 1944 page 79).

Lemkin defined genocide to include 'deliberate separation of families for depopulation purposes subordinated to the criminal intent to destroy or to cripple permanently a human group'. Genocide, he said, typically comprises two phases: the destruction of the cultural and social life of the 'oppressed group' and the imposition of the national pattern of the 'oppressor' (1944 page 147).

Lemkin's approach was adopted in the United Nations Convention of 1948. Genocide can be committed by means other than actual physical extermination. It is committed by the forcible transfer of children, provided the other elements of the crime are established. As the United Nations Secretary-General explained, the separation of children from their parents results in 'forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time' (UN Document E/447 1947).

The Venezuelan delegate to the General Assembly summarised the views of the countries which supported the inclusion of the forcible transfer of children in the definition of genocide.

The forced transfer of children to a group where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children. Such transfer might be made from a group with a low standard of civilization ... to a highly civilized group ... yet if the intent of the transfer were the destruction of the group, a crime of genocide would undoubtedly have been committed (UN Document A/AC6/SR83 (1948) at 195).

It is clear that 'mixed race' or 'half-caste' children were recognised as 'children of the group'. that is as Indigenous children and not in any sense as children of no group or as children shared by different groups.

Since colonisation of this continent it is quite reasonable to assume that a child born our of mixed parentage have never been categorised, if one could say that, as 'part-white' or 'part-European'. Thus once it is known that a child has an Aboriginal parent, he or she is seen by the wider community as an Aborigine and will be subjected to racist and other negative attitudes experienced by Aborigines (ACCA report submitted by the separate representative and quoted by the Family Court in B and R 1995 page 597).

Especially during the nineteenth and early twentieth centuries relationships between European men and Aboriginal women were often abusive and exploitative. Many children were the products of rape. The European biological fathers denied their responsibility and the authorities regarded the children with embarrassment and shame. As the 'mixed race' population grew many more children did not have a European parent at all, but merely one or more European ancestors. Aboriginal society regards any child of Aboriginal descent as Aboriginal.

Aboriginal children were not removed because their 'white blood' made them 'white children' and part of the 'white community'. They were removed because their Aboriginality was 'a problem' (Chisholm 1985 page 80). They were removed because, if they stayed with 'their group', they would acquire their 'habits', their culture and traditions.

Plans and attempts can be genocide

The second issue concerns partial destruction as compared with total destruction of the group. Not all Indigenous children were removed. Yet it would be erroneous to interpret the Convention as prohibiting only the total and actual destruction of the group. The essence of the crime of genocide is the intention to destroy the group as such and not the extent to which that intention has been achieved. Genocide is committed even when the destruction has not been carried out. A conspiracy to commit genocide and an attempt at genocide are both crimes which are committed whether or not any actual destruction occurred.

However, the extent of destruction can be relevant to the offender's 'intention'. The intention to destroy the group as such in whole or part must be proven. It is widely (see Lippmann 1994 pages 24-25, Robinson 1950 page 498) but not universally (see Dinstein 1975 page 55, Bryant 1975 page 691) agreed that an intention to destroy the group 'in part' can be genocidal if the aim is to destroy it 'substantially'.

The Inquiry's process of consultation and research has revealed that the predominant aim of Indigenous child removals was the absorption or assimilation of the children into the wider, non-Indigenous, community so that their unique cultural values and ethnic identities would disappear, giving way to models of Western culture. In other words, the objective was 'the disintegration of the political and social institutions of culture, language, national feelings, religion, and the economical existence of' Indigenous peoples (Lemkin 1944 page 79). Removal of children with this objective in mind is genocidal because it aims to destroy the 'cultural unit' which the Convention is concerned to preserve.

On this point the Inquiry's finding is contrary to that of Commissioner Elliott Johnston in the final report of the Royal Commission into Aboriginal Deaths in Custody. Commissioner Johnston considered that the child removal policies were adopted 'not for the purpose of exterminating a people, but for their preservation' (National Report Volume 5 para 36.3.7).

As this issue is central to this Inquiry's terms of reference, it has been the subject of much wider research than Commissioner Johnston undertook. This Inquiry concludes with certainty on the evidence that while child removal policies were often concerned to protect and 'preserve' individual children, a principal aim was to eliminate Indigenous cultures as distinct entities.

... we tried to remove Aboriginal children because they were Aboriginal children and I think that's a very important thing. It wasn't just a question of looking at children and saying, 'There's a child in need of care, there's a deserted child, we must look after those individual cases'. The Australian experience has been, 'We dealt with them en masse because they were Aborigines (Professor Colin Tatz, Centre for Comparative Genocide Studies, evidence 260).

Mixed motives are no excuse

This finding raises a third issue, namely, the question of mixed motives. Does the Genocide Convention apply where the destruction of a particular culture was believed to be in the best interests of the children belonging to that group or where the child removal policies were intended to serve multiple aims, for example, giving the children an education or job training as well as removing them from their culture? Where good intentions are acknowledged, do they negate the bad or transform the intention to destroy the group as such (ie for its own good) into a benign intention? Does the Convention apply in cases where the destruction of a particular culture and its family institutions was believed to be in the best interests of the children or where the child removal policies were intended to serve multiple aims?

Through much of the period beginning around the middle of the nineteenth century and persisting until the repeal of overtly discriminatory legislation in the 1960s, a key objective of the forcible removal of Indigenous children was to remove them from the influence of their parents and communities, to acculturate them and to socialise them into Anglo-Australian values and aspirations.

Other objectives included education of the children to make them 'useful' and 'worthy' citizens, their training for labour and domestic service, their protection from malnutrition, neglect or abuse, the reduction of government support for idle dependants and the protection of the community from 'dangerous elements'.

A O Neville, Western Australia's Chief Protector (1915-40), believed he could 'do nothing' for 'full-bloods', who were thought to be dying out. However, he could absorb the 'half-castes'.

The native must be helped in spite of himself! Even if a measure of discipline is necessary it must be applied, but it can be applied in such a way as to appear to be gentle persuasion ... the end in view will justify the means employed (quoted by Haebich 1988 on page 156).

Neville's successor eventually came to have reservations about this policy and practice.

... with caste Aborigines, the emphasis on their 'whiteness' instead of acknowledgement of their Aboriginal heritage postulates in my opinion that we have helped to destroy in them a pride of origin which should have been our Christian duty to protect and preserve (WA Commissioner for Native Welfare Middleton, 1952 Annual Report page 5).

The debates at the time of the drafting of the Genocide Convention establish clearly that an act or policy is still genocide when it is motivated by a number of objectives. To constitute an act of genocide the planned extermination of a group need not be solely motivated by animosity or hatred (Lippmann 1994 pages 22-23).

The continuation into the 1970s and 1980s of the practice of preferring non-Indigenous foster and adoptive families for Indigenous children was also arguably genocidal. The genocidal impact of these practices was reasonably foreseeable. Dr Sarah Pritchard persuasively argues that a general intent can be established from proof of reasonable foreseeability and that such a general intent, as contrasted with the specific intent when the objective was to absorb Indigenous people, is sufficient to establish the Convention's intent element (1993; see also Kuper 1985 pages 12-13).

Genocide continued in Australia after prohibition

How early can Australian policies and practices of removing Indigenous children be considered as breaching international law? The Convention, adopted in 1948 and ratified by Australia in July 1949, came into force in 1951. Certainly any removals after that time with the intention of destroying Indigenous groups culturally would be in breach of international law. It is clear, however, that even earlier removals were in breach of international law.

On 11 December 1946 the United Nations General Assembly adopted a resolution declaring genocide already a crime under international law. This resolution is mentioned in the Preamble to the Genocide Convention, making it clear that when the Convention was adopted in 1948 the crime of genocide was well-established in international law. As Lippmann states (1994 pages 10-11) the resolution 'clearly recognises that the prohibition on genocide is a component of customary international law which is binding on all states'.

The existence of genocide as a crime pre-dated the 1946 resolution. Although Lemkin's 1933 call for genocide to be declared a crime was rejected by the international community, it is generally conceded that it had emerged as such before or during the Second World War (Hugo Princz v Federal Republic of Germany 1944, Lemkin 1944 page 150).

The policy of forcible removal of children from Indigenous Australians to other groups for the purpose of raising them separately from and ignorant of their culture and people could properly be labelled 'genocidal' in breach of binding international law from at least 11 December 1946 (confirmed by Justice Brennan in Polyukovich 1991 page 587). The practice continued for almost another quarter of a century.

Conclusion

Official policy and legislation for Indigenous families and children was contrary to accepted legal principle imported into Australia as British common law and, from late 1946, constituted a crime against humanity. It offended accepted standards of the time and was the subject of dissent and resistance. The implementation of the legislation was marked by breaches of fundamental obligations on the part of officials and others to the detriment of vulnerable and dependent children whose parents were powerless to know their whereabouts and protect them from exploitation and abuse.

Warning: The following link may contain images of deceased Aboriginal and Torres Strait Islander persons.

Click here to view a photo of Group on an outing from Sister Kate's Children's Home, Perth, 1949

Courtesy Mary Terszak.

I would not hesitate for one moment to separate any half-caste from its aboriginal mother, no matter how frantic her momentary grief might be at the time. They soon forget their offspring.

James Isdell, WA travelling protector, 1909.

The issues are growing up not knowing any family history, growing up at school and being asked to bring photos of your family, and you can't do it and the teacher says, 'Why can't you do it?', and you're forced to stand up and say that you don't have any family and people turn around and look at you in disbelief, that you couldn't have a family.

Confidential evidence 218, Victoria