Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Ron Merkel Q.C
For over a century Aboriginal children throughout Australia have been removed from their families by missionaries and Government authorities. A range of Government motivations and policies were used to justify the institutionalisation, adoption and fostering of Aboriginal children to non-Aboriginal institutions and families. The most recent of such justifications is found in the assimilation policies adopted by many governments in Australia during the 1960's and early 1970's . The policy of assimilating Aborigines into `Australian' life was pursued by encouraging the fostering or adoption of Aboriginal children into `white' homes and families.
It is widely recognised that the fostering or adoption of the children commonly led to pronounced identity problems for those children when they became teenagers and ultimately to the breakdown of their placement. This led to children becoming alienated from their own people and culture, families being dispersed and destroyed which in turn resulted in cycles of alcoholism, gaol and further family disintegration.
Recent studies indicate that the policy proved to be both a cultural and human disaster for Aboriginal communities. Victorian Aboriginal Child Care Agency statistics show that 90% of Aboriginal children placed in non-Aboriginal foster care and adoption were ultimately returned to the care of the State and institutionalised.
The tragedy of this period was captured in the report of the Inquiry into the Death of Malcolm Charles Smith by Commissioner J.H. Wootten Q.C.[1] He discussed Australia's adoption of the Genocide Convention in the Genocide Convention Act 1949. Genocide was defined as acts committed with intent to destroy, in whole or in part a national, ethnic, racial or religious group. Conduct which constituted genocide included causing serious mental harm to members of a group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent birth within the group or forcibly transferring children of the group to another group. The Royal Commissioner concluded that;
"In its crudest forms the policy of assimilation fell within this modern definition of genocide, and in particular the attempt to `solve the Aboriginal problem' by the taking away of children and merging them into white society fell within that definition".
Whilst the statutory framework in which these events occurred may have differed from State to State there were a number of common elements. Statutory officers assumed a self appointed role of guardianship over Aboriginal children. In exercising these guardianship powers they were not authorised or empowered to engage in a deliberate policy of fostering or adoption of Aboriginal children out of their community.
The exercise of these powers attracted a corresponding duty to ensure that the lawful fostering or adoption of any child was to occur independently of its race, colour or creed with an invariable requirement of a prior and fully informed consent on the part of the natural parent. The records strongly suggest that the procedures adopted by Government officials in respect of Aboriginal children were discriminatory and quite different to those adopted for the rest of the community.
In assuming a guardianship role the Government's officers were obliged to ensure that a consenting parent understood the nature and effect of the fostering or adoption and in particular that it may permanently or totally deprive a consenting parent of future parental rights in relation to the infant. There was also a duty on the part of the officials to have regard to the interests of the parent and the child concerned as human beings rather than as members of a group which was being specifically targeted for assimilation.
This tragic period in Australia's recent past directly raises the question of Government culpability for the suffering which has ensued. There may be several causes of action available to the parents denied their children and the children denied their culture, heritage and parental care.
A fiduciary relationship can exist in a large variety of situations. Analogous relationships exist in respect of guardian and ward and of parent and child. In relation to the fostering and adoption of Aboriginal children, Government officers purported to undertake direct statutory and actual responsibility for the children and for the `consent' of the parent(s) from whom those children were taken. The Government officials as fiduciaries as well as the Government on whose behalf they were acting were required to exercise such powers solely for the purpose for which they were conferred, to act in the interests of those to whom the duty is owed, to not exercise undue or improper influence and to avoid any conflict of duty and interest. There is also a duty not to act capriciously or unreasonably and to exercise reasonable care in relation to the exercise of all fiduciary functions and powers. The criticism set out above, of the manner in which these powers may have been exercised can clearly lay the foundation for a compelling case of breach of such duties.
A breach of statutory duty by a public authority is a form of illegality which, if it results in damage to an individual, may give rise to an action for damages. To sustain the action for damages for breach of duty, it is usually necessary to demonstrate that the statute itself imposed a duty on the defendant and that on the spoken language of the statute taken as a whole, a private right of action is conferred on the plaintiff. The statutory framework differed from State to State, however it is likely, that certain duties were owed either expressly or by implication under the relevant legislation which would be akin to the fiduciary duties outlined above.
The ordinary principles of the law of negligence apply to public authorities with the consequence that they are liable for damage caused by negligent acts or omissions when they were under a duty to act or secondly by negligent failure to consider whether to exercise in the public interest the conferred power or, finally by persons relying on the negligent exercise of such a power. There could be little' doubt that in undertaking the guardianship function the officials owed a duty of care both to the parent and the child. The criticism of the manner in which the fostering and adoptions were conducted and the unmitigated disaster which followed provide fairly strong grounds for contending that the requisite standard of care was not met:
If a public officer does an act which to his/her knowledge amounts to an abuse of his/her office and thereby causes damage to another then the action of tort for misfeasance in public office will lie at the suit of the person who has suffered damage. Whilst the ambit and scope of this tort is far from clear the courts have been sympathetic to a plaintiff who has suffered as a result of the wrongful exercise of apparent power by the holder of public office although often the ultimate remedy is founded on breach of a duty of care rather than misfeasance in public office.
The High Court in Beaudesert Shire Council v Smith (1966) 120.CLR 145 stated that independently of the recognised torts there is ' an action for damages upon the case available to a person who suffered harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another.
The identity of persons against whom a cause of action in a particular case may lie is not without difficulty. Clearly it can lie against the individuals involved in any forced fostering or adoptions. A claim may also be brought against the statutory authority employing those individuals although in many cases those authorities '(e.g. the Aborigines Protection Board) may have since been dissolved. However, when the statutory framework is examined it is likely that the ultimate responsibility in any: particular case will have been transferred to or will lie against the Ministerr of Aboriginal Affairs and through him/her the State.
A major legal difficulty in any particular case (apart from the practical consequences flowing from the lapse of time) will be the Limitation of Actions legislation which generally operate to limit actions for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries. Such actions are usually to be brought within 6 years of the date on which the cause of action accrued. The damages that would be claimed by the parent and the child are essentially in respect of personal injuries.
Recent cases have enabled personal injuries claims to be extended to pain and suffering and loss of amenities of life, including a component for loss of cultural fulfilment. During the 1980's damages have been awarded by the courts to Aborigines who have suffered injury which led to loss of cultural status in the tribe with a consequential loss of cultural fulfilment.
Such cases may not be directly applicable but indicate the breadth of the courts approach to what can constitute personal injury in a particular case. Limitation of Actions legislation often permits actions to be brought outside a six year period when it is just and reasonable to do so. The particular circumstances of every case must be examined but there are likely to be compelling grounds for permitting such claims to be brought out of time in fostering or adoption cases.
There are causes of action available to parents and children who have been victims of this tragic period. The breaches of duty inevitably led to the permanent deprivation of the family and community relationships which the parents and children were entitled to expect. The issues of principle raised are of very great importance and the damages that could be claimed are substantial.
The causes of action are complex, however the courts have shown an increased willingness to expand rather than limit the liability of public officers who cause loss to members of the community as a result of the wrongful, negligent or improper exercise of their powers. There are obstacles such as the Limitation of Actions Act to be overcome, but there is no reason to believe at the present time that those obstacles will be insurmountable.
Pursuit of civil proceedings in such cases is yet another instance of how important political and social causes can be advanced through civil litigation. Much has already been achieved in the area of Aboriginal Heritage by the use of civil proceedings. Likewise consideration could usefully be given to the use of civil proceedings in claims 'against police which have resulted in personal injury or death.
The advantages of civil as opposed to 'criminal proceedings are. numerous. Proof is on the balance of probabilities 'rather than beyond reasonable doubt. Success will result in a claim for compensation rather than -a conviction. Most importantly successful civil proceedings in this area can lead to a more enlightened and understanding approach by Government to problems involving the Aboriginal community.
Whilst it is not possible to anticipate where such proceedings will ultimately lead, it is neither foolhardy or fantasy to expect of even demand that Reparations Tribunals be established to compensate Aboriginal children and their parents for the tragic deprivation which they have suffered as a result of one of the most misconceived and misguided policies pursued against the Aboriginal people in recent Australian history.
[1] Wootten J H, Report of the Inquiry into the Death of Malcolm Smith, Royal Commission into Aboriginal Deaths in Custody, Sydney, 1989.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1990/50.html