Champion, Aoife --- "Review: of Separated Aboriginal Childhood Separations and Guardianship Law" [2005] AUJlHRights 10; (2005) 11(1) Australian Journal of Human Rights 10

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Separated: Aboriginal Childhood Separations and Guardianship Law

by Antonio De Paulo Buti The Sydney Institute of Criminology, Sydney, 2004

This work by Antonio D Buti addresses the obligations of Australian governments towards institutionalised Aboriginal children, from the perspective of guardianship law as existed at the time children were taken from their Aboriginal families and placed in the care of state or church run institutions. The subject of Aboriginal childhood separations, the victims of which have been referred to as the ‘stolen generation’, had its 15 minutes over the last 10 years, culminating in a political resurgence of the term ‘reconciliation’ and a failed media campaign to shame the Federal Government into apologising for the actions of its forebears. The matter of the stolen generation became, and remains, a significant component in state high school curricula, and novels such as Rabbit Proof Fence by Doris Pilkington, and its film adaptation, have enjoyed rave reviews and significant audience patronage. The subject was even thrust onto an international stage during the Closing Ceremony of the Sydney 2000 Olympic Games, when Midnight Oil performed before one billion international viewers, wearing black outfits emblazoned with the word ‘sorry’ in white print.

More recently, however, this subject has been cast aside in lieu of the international terrorism campaign, the consequent war on terror and the resultant focus on asylum seekers in detention in Australia. It is perhaps timely then that Antonio D Buti has now brought forth this magnificent and thoroughly researched work on the issue of Aboriginal childhood separation, as his book casts a fresh light on the debate that had until now been argued predominantly on moral, human rights and constitutional grounds. Separated has introduced and laid the groundwork for an examination of the duties of governments under the norms of guardianship law, and presents a comparison between government actions and attitudes towards Aboriginal as opposed to non-Aboriginal wards.

The book is set out in such way that the reader is taken on a journey of enlightenment, in which the structure proves paramount in ensuring the effectiveness of the content. Consisting of seven chapters, the second is an examination of the history and theory behind the concept of guardianship in our common law legal system. This chapter follows the progress of guardianship law, from its origins in Roman private law, through the British Poor Laws, then to Australian law in the mid 19th century. Buti presents enough information on the history, development, obligations and application of guardianship law in this chapter to equip the reader with an understanding of the prevailing guardianship norms in the 19th and 20th centuries. The reader is told that guardianship law at that time required, among other things, that children only be removed from their parents as a last resort; that the guardian was responsible for the physical wellbeing and protection of the child; that the family unit was paramount and parents retained the right to visit their children in institutions; and that children should be educated in the religion of their parents to allow for effective family reunification (26–38). This chapter very much resembles a legal text and would appeal most to lawyers and law students.

In the third chapter, the author goes on to overlay the historical timeframe established in the second chapter, with the anomaly of the statutory guardianship of Aboriginal children during that same era. Chapter 3 introduces the ‘separation’ history of Australia by providing a national overview of government policies and legislation affecting Aborigines from the time of settlement in 1788, until the last of the residential institutions ceased operation in the 1980s.

The following chapters (4 and 5) offer a two-part case study of the situation in Western Australia, covering the period 1900 to 1972. This part of the work is exquisitely researched, touchingly personal and made for general consumption, having been written with fluidity and delivered in a manner that implies it is no more than a factual and objective reporting of recorded history. Buti tells the story of the evolution of the WA legislation that codified the removal of Aboriginal children from their families. He begins by indicating that s 8 of the Aborigines Act 1905 (WA) automatically made the Chief Protector of Aborigines the legal guardian of all Aboriginal and ‘half-caste’ children under the age of 16 years, regardless of whether they had parents (90). Non-Aboriginal children were not subject to such guardianship and the removal of those children from their parents for the sake of their wellbeing was governed by separate legislation. The author makes a section by section comparison between the Aborigines Act, governing the removal of Aboriginal children, and the State Children Act 1907 (WA), which applied to the non-Aboriginal population (92–8). He puts this legislation in context by inserting extracts from parliamentary speeches, governmental inquiries and letters by public servants calling for the removal of half-caste children from their families for their own sake, for the sake of society and even, explicitly, to effect the culling of the Aboriginal race. Comments such as those by Rufus Underwood, the WA minister responsible for Aboriginal affairs, offer some insight into attitudes that affected government policy: ‘The sooner the aborigines died out in Western Australia the better it would be for all concerned ... That seemed a hard thing to say but it appeared they could not preserve the aboriginal race and at the same time settle the white race in their country.’¹ Buti offers such evidence on the motivations for government policy but avoids the genocide debate, preferring to focus on the tangible guardianship obligations created by that policy (176).

Throughout the separation years, the Government maintained an agenda based on the principle of the best interests of the child, but this was often confused with an overarching focus on the best interests of society. Much of the understanding that the legislators had of Aboriginal people had sprung from Darwinian and eugenical scientific theories that were popular at the time, and resulted in a belief that Aboriginal peoples were an inferior race to white Australia and would benefit from being integrated and bred into non-Aboriginal society.² Comments such as those made by J Isdell, Member for the Pilbara, when speaking to the Legislative Assembly in regard to the Aborigines Act, highlight the misconceptions about Australia’s indigenous peoples at the turn of the last century. He offered to the Parliament: ‘There is a great deal of maudlin sentiment about taking away a child from the native mother; but the man who sees it done will lose all that sentiment; because when you take a child away from a native woman she forgets all about it in 24 hours and, as a rule, is glad to get rid of it.’³ Such beliefs could have been well served by the sobering account of one Aboriginal father who wrote to the mission where his son was being kept, informing them that his distraught wife was on the brink of suicide, and pleading for the boy’s return, with the words ‘I have as much love for my dear wife and churldines [sic] as you have for yours’.⁴ Whether or not these case study chapters are designed to shock, such is the result, and after absorbing them the reader is left with inconsolable feelings of indignation and injustice, toned down only by the sadness of it all.

Buti has presented a balanced argument in his case study, however, by also noting examples of the dissent raised by parliamentarians who did not agree with the practices or sentiments behind the separation policy (82, 84, 87, 106 and 107). Additionally, he details the various inquiries commissioned by the WA governments throughout the separation years, in response to allegations of mistreatment, that were intended to ensure that practices in the State were still relevant to the outcomes sought.⁵ Although many of these reports criticised some aspects of the separation practices, they were generally in favour, and perpetuated the practice well into the late 1960s.

At no point in these two chapters does Buti impose his views on the reader, nor does he spoon feed them into a realisation of the connection between the information presented in the second chapter and its relevance to the rest of the book. This is the beauty and persuasive power of Buti’s work. He lays the groundwork for his conclusion by juxtaposing parliamentary speeches with personal accounts of ‘separated’ children, but does not make his conclusion until the following chapter, leaving the audience to draw their own much earlier.

In the penultimate chapter, the author finally unveils his argument, being that, as legal guardians of Aboriginal children, the governments of Australian States were under common law duties to protect those children, encompassing all the duties imposed upon guardians at the time, and that they failed to carry out those duties. Neither the Aborigines Act, nor any later legislation, defined the guardianship duties as contrary to the common law or usurped the relevant common law duties, therefore WA governments, for example, were obliged to carry out those common law duties outlined by Buti in the second chapter. The author brings this argument to life with the personal recollections of ‘separated’ children who, while in institutions, were sexually abused, physically abused, denied visits with their parents and not instructed in the religion and culture of their parents (161–78). The reader at this point benefits from the education provided on guardianship duties in the second chapter, such that the historical facts presented in the third, fourth and fifth, can be viewed from the ‘guardianship’ vantage of the sixth and final chapters.

Buti presents this argument with a focus on solutions such as legal redress through litigation for breach of duty, or political redress in the forms of reparations under international human rights law, a Commonwealth Parliamentary apology or the establishment of a reconciliation/compensation tribunal. He is not idealistic, however, and outlines the lack of success litigants have had so far, even in the High Court, in claiming damages for their treatment in institutions, because the Court has said it will only condemn the actions of the governments if they were unconstitutional, or contrary to the norms of the time (as Buti suggests is the case regarding guardianship law (181)). The author concedes that the breach of guardianship law from a fiduciary standpoint would also be a difficult argument with which to strike success, as traditionally Australian courts, unlike those of Canada, have been reluctant and defiant about awarding compensation for a breach of fiduciary duties where the breach did not lead to economic injury (184–90).

Regardless of the difficulty in gleaning results, this work by Antonio D Buti may yet prove to be a catalyst for redress for breaches of guardianship duties. At any rate, it is a worthwhile contribution to the debate and stalemate on the damage caused, and duties owed, to the Aboriginal people in the separation of children from their families under government policy. Buti delivers a highly technical text in such a fluid and deconstructed way that even those without legal training will be informed and inspired to reassess their perception of a national shame that has long been shrouded in false historical justifications.

Aoife Champion LLB, BSocSci

1 Western Australian Parl Debs, Vol 3, series 45 2RSP Assembly (22 November 1912) col 3804-3805, as cited by Buti at 101.

2 See 88, and the quote of J Isdell in ‘Northwest District Report’, as cited by Buti at 99.

3 Western Australian Parl Debs series 28 2RSP Assembly (12 December 1905) col 418-419, as cited by Buti at 89.

4 AD 12/1903, as cited by Buti at p 82.

5 The Roth Royal Commission 1904 at 83; the Moseley Royal Commission 1934 at 105; and the Bateman Inquiry 1947 at 130.