Allam, Lorena; Brooks, Jim --- "Longing to Return Home: the Progress of the National Inquiry into the 'Stolen Generations'" [1996] AboriginalLawB 81; (1996) 3(86) Aboriginal Law Bulletin 6

Longing to Return Home: The Progress of the National Inquiry into the 'Stolen Generations'

By Lorene Allam and Jim Brooks

In 1991, the Royal Commission Into Aboriginal Deaths in Custody reported that `a regime that took young Aboriginal children, sought to cut them off suddenly from all contact with their families and communities, instill in them a repugnance of all things Aboriginal and prepare them for life at the lowest level in a prejudiced white society is still a living legacy among many Aboriginal people today' (See JH Wootten, `Report of the Inquiry into the death of Malcolm Charles Smith', RCIADC, N20, AGPS, 1989, p20.) This `living legacy' is one of the main issues currently being examined by the Human Rights and Equal Opportunity Commission's National Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children from their Families.

The Inquiry has four terms of reference:

• to trace the impact of past laws, practices and policies which resulted in the forced removal of children by compulsion, duress or undue influence;
• to examine the adequacy of, or need for changes in, current laws and services available to people affected by separation (including access to records, counselling and family reunion services);
• to examine principles relevant to determining the justification for compensation;
• to examine current laws, practices and policies affecting the care and placement of Indigenous children, taking into account the principle of self-determination.

The Inquiry was launched in August 1995, commenced hearings in December 1995, and has now held public and private hearings in every State and Territory and visited several key areas in regional and remote parts of the country. It has consulted widely among individuals, families, Churches and Governments, missionaries, foster and adoptive parents, welfare workers, doctors and health professionals, academics, police and independent charities, in a mixture of public and private proceedings.

The forced removal of Indigenous children from their families happened in every State and Territory in Australia. Laws sanctioning the separation of Aboriginal children were in place in Victoria and New South Wales as early as 1885, and in some States were not formally abolished until the early 1970s as Protection Acts of various kinds remained in place. Some Aboriginal children's homes continued operating until the early 1980s.

During the Inquiry's public sittings in Sydney, the New South Wales government estimated that in that State alone, at least eight thousand Aboriginal children were removed from their families between 1885 and 1969. Similar estimates have been made in other jurisdictions but an overall figure may be impossible to determine based on surviving Government and Church records. Not all forced separations were officially recorded, records have been destroyed, and Aboriginality was not always recorded.

The effects of this massive dislocation are far easier to determine, if only because they are so visible in Aboriginal society today. Of the 99 deaths investigated by the Royal Commission Into Aboriginal Deaths in Custody, 43 were of people who were separated from their families as children. Many of them had experienced a lifetime of institutionalisation and severe psychological distress related to their removal.

Such removals often took place on the basis of ´neglect'. Since the evidence of child neglect was often poor housing, poor hygiene and ill health, neglect was not hard to find on the missions and reserves to which Aborigines were relegated. Because they were considered to be places where `full-blood' Aborigines would eventually die out, they were always minimally resourced, with inmates given only the most meagre allocations of food, water, shelter and other necessities. (See JH Wootten, ` `Report of the Inquiry into the death of Malcolm Charles Smith', RCIADC, N20, AGPS, 1989, p20.)

Perhaps, the worst of it was the neglect which many of the children suffered in the institutions to which they were removed. In a number of cases, children suffered sexual and physical abuse. As a nation, we have only begun to tell this secret history.

But this is not just an issue of history. These practices have occurred within the living memory of at least three generations of Aboriginal people: grandmother, mother, daughter. Lives today remain dramatically shaped by the consequences of these practices, the effects of which ripple through entire communities. Dr Jane McKendrick of Melbourne University's Department of Psychiatry told the Inquiry in Victoria:

`Ongoing losses, poverty, family disruption, racism and physical ill health not only predispose [Aboriginal people] to increased rates of disorders but also to chronicity. Loss is an everyday experience for most Aboriginal people, who still mourn the loss of their land. Other losses which began with European settlement continue, including removal of Aboriginal children from their families, loss of health, loss of self esteem, and frequent deaths of relatives and friends at an early age. A high proportion of patients seen by Aboriginal health workers and doctors working for Aboriginal community medical services are significantly psychologically distressed'. (Dr J McKendrick, oral submission to the National Inquiry, Melbourne, February 1996.)

The Inquiry has heard that grief and loss, and the unresolved intergenerational trauma of forced removal, are the underlying causes of other, widespread health problems in Aboriginal communities: family breakup, violence, alcoholism and substance abuse, high infant mortality and low birth rates, dramatically reduced life expectancy rates, parental incarceration, and lack of parenting skills. Loss of cultural, spiritual and community roots, and personal, family and cultural identity, alienation, and ongoing grief and anger are also consequences.

These are contributing factors in a continuing cycle of state intervention in Aboriginal family life, where Aboriginal children remain vulnerable to forced separation under current child protection laws, and where Australia's Indigenous people are overrepresented in the welfare system.

Young offenders overwhelmingly come from families critically affected by these patterns. Nationally, Indigenous children are 18.6 times more likely to be held in detention than any other Australian children. In Western Australia, Indigenous children are 32.4 times more likely to end up in detention. As a nation we must face the unpleasant reality that, in wanting the past to stay buried, we condemn another generation of Aboriginal children to the control of the state, and take them away from their families and culture. As a nation, we are also yet to compensate for past actions.

The compensation terms of reference have been a source of interest and concern for many individuals and organisations and their lawyers. The Inquiry has received many submissions concerning compensation with some lawyers having told the Inquiry that they believe international law will hold the key to compensation for their clients.

There has also been resistance to the idea of compensation in some quarters. On 5 November 1996, Peter Walsh, for example, concluded an article in the The Australian Financial Review concerning the numbers of Indigenous children who had been forcibly removed from their families in Australia, by saying `Anyway it won't matter because the Government has said it won't pay any compensation. If its nerve holds, hundreds of predatory white lawyers will have to seek windfall gains elsewhere'.

But whilst the Federal Government has indeed opposed the payment of compensation to those affected by past laws, policies and practices, that won't make the issue go away. Rather, such resistance appears to have encouraged the opposite.

In October, the North Australian Aboriginal Legal Aid Service commenced actions in the High Court of Australia on behalf of over 500 complainants, based on claims of breaches of fiduciary duty, breaches of statutory duty, negligence, and other grounds, seeking declarations for aggravated damages, exemplary damages, compensation, interest and costs (see Matthew Storey's article `The Stolen Generations: More Than Just a Compo Case' on page 4). On the following day (31 October 1996), The West Australian newspaper reported that it expected the Western Australian Aboriginal Legal Aid Service to commence actions soon on behalf of 700 clients.

Lawyers have also played key roles in assisting the Inquiry, and those who have participated in its proceedings. Rather than seeking `windfall gains', they have demonstrated a commitment to justice and to observance of human rights. Lawyers coordinated by the Public Interest Law Clearing House Incorporated have undertaken research, and have provided advice to many people who have made private submissions to the Inquiry. Richard Refshauge in Canberra and Jim Gibney in Cairns have provided urgent representation to Aboriginal women involved in contemporary battles for custody of their children or grandchildren. Lawyers working for Land Councils and Aboriginal Legal Services in all States have assisted the preparation of submissions based on client cases, community consultation and research.

`Digging up the past'

Critics of the Inquiry say that the laws, practices and policies of forced removal belong to the distant past, and little good can be done by digging up the past. Many Australians, however, are horrified to learn that in a country where the notion of a `fair go' is deeply etched into the national psyche, such cruelties could ever have occurred.

The very fact of Aboriginal peoples' continued survival in the face of such odds is a triumph of the spirit of which Australians can be proud. The Inquiry is providing the Australian people and our elected governments with the opportunity to work towards healing the wounds of this most shameful era of history. The Inquiry's report, to be released early next year, gives us all a chance to mourn the children who will never return. But it also offers us the opportunity to finally recognise the needs and rights of those who survived, and those who are longing for them to come home.

Postscript

Counselling

It is clear that there are many more thousands of people who would benefit from the opportunity to tell their story to a responsible person, in a safe and comfortable environment, with professional and family support available. Inquiry staff and Commissioners who were privileged to hear the experiences of so many, tried to provide such an environment for those who were telling stories of trauma and grief, often for the first time. Assistance and support was available at some hearings from counsellors supplied by Aboriginal medical services.

The Inquiry was also supported by Joyleen Koolmatrie, a Noongah woman, who is a psychologist, now working with the Aboriginal Studies Unit, Curtin University. Joyleen is continuing work with those who have made personal submissions to the Inquiry, and assisting those who wish to establish local support groups.

Archiving

The Inquiry has had access to thousands of individual stories of removal. The contributors, even where their story is recounted in full in the report, will not be identified by name or circumstance. The Inquiry has also amassed a wealth of secondary information about past and present child removals.

Individual submissions which detail removal have been accepted on a confidential basis, and will not be available for researchers. Public submissions, and secondary source material collated by the Inquiry, form a valuable resource which will be attractive to writers and researchers. Records of print and electronic coverage of the Inquiry have also been collected. The Human Rights and Equal Opportunity Commission invites suggestions for ensuring appropriate access to that material.