Cummings, Barbara --- "Writs and Rights in the Stolen Generations (NT) Case" [1996] AboriginalLawB 82; (1996) 3(86) Aboriginal Law Bulletin 8

Writs and Rights in the Stolen Generations (NT) Case

By Barabara Cummings

Edited speech given at feminist Intervenntions in International Law Symposium, organised by the Law School, Mellbourne University, 30 Sepptember 1996.

In 1911 the Commonwealth government assumed control of the Northern Territory from South Australia. The new government commissioned anthropologist Baldwin Spencer to make recommendations about the `difficult problem' of control of the Territory's Aboriginal population.

Spencer made recommendations regarding the removal of children. He saw that it was only the children of mixed Aboriginal descent who were to be removed. He analysed the ancestry of these children thus:

` ... the mother is a full blood Aboriginal. The father may be a white man, a Chinese, a Japanese, a Malay or a Filipino. The mother is of very low intellectual grade, while the father most often belongs to the courser and more unrefined members of the higher races'.[1]

Spencer concluded that the children of such unions are unlikely, in most cases, `to be of much greater intellectual calibre than those Aboriginal children of full descent'.

The essence of Spencer's recommendations was given legislative effect in the Aboriginals Ordinance 1918 (NT).

Aboriginals Ordinance 1918 (NT)

Section 16(1) of the Aboriginals Ordinance 1918 provided in part:

`The Chief Protector may cause any Aboriginal or half caste to be kept within the boundaries of any reserve or aboriginal institution or to be removed and kept within the boundaries of any reserve or aboriginal institution'.

This straightforward provision is the legislative `guts' of a policy of genocide perpetrated in this country against its Aboriginal peoples. It was a policy of genocide that was particularly directed towards women. It is a policy the effects of which continue with us today.

At the outset I should note that while the Ordinance I have quoted is a Northern Territory Ordinance, there was equivalent legislation in all Australian jurisdictions.[2]

The particular thing I want you to note about section 16(1) is that it is discretionary. The Chief Protector may remove `Aboriginals or half castes'. (I should note here that while I find terms such as `half caste' and `quadroon' quite offensive there are times when the context of this paper will demand their use.) It was this discretion that led to the especially brutal operation of the Ordinance. Not all children were removed. The white authorities were mainly interested in children of mixed Aboriginal descent. The idea was that children of mixed Aboriginal descent were `dangerous' if left in Aboriginal communities because their white blood would make them natural leaders and, on the flip side of the coin, the same white blood also meant that half castes could be given rudimentary education and placed harmlessly in menial jobs. In fact one of the `perks' offered to new white settlers in the Territory, particularly public servants, was the provision of women and girls of mixed Aboriginal descent as domestics.

The selective operation of the Ordinance went one step further. The white station owners were generally more interested in a cheap resident labour force than in the social engineering of the Commonwealth government.[3] Thus the preponderance of children that were taken were females. This gender bias did not disrupt the assimilation policy because it was of course females that posed the real threat of miscegenation. It was presumed that half caste boys would only inter-marry with Aboriginal girls, whereas it was also presumed white men would find half caste women more attractive than full blood women, thus increasing the extent of the `coloured problem'.

Fairly simply then, we can see the specific gender direction of the removals policy. In 1928, Bleakley reported that out of the seventy-six Aboriginal people removed from various parts of the Northern Territory and housed at Kahlin compound, fifty-six were female and twenty were males.[4] Children were removed from their Aboriginal mothers, usually (but not always) their white fathers had already moved on. Primarily it was girls that were removed.

The specific operation of the policy actually developed distinctions more precise than half caste. Operationally, whether someone was a `half caste' with less than half white blood, a half caste with more than half white blood, a `quadroon', or an `octoroon', determined not only whether you were taken but also to where you were sent. Generally (and there were always exceptions) if you had less than half white blood you were not taken. If you had less than half black blood, but were not a `quadroon', you were sent to one of the remote Island missions. If you were `quadroon' or `octoroon' you were likely to end up in a town based mission, or shifted down south. The administrative enunciation of this policy is set out in the 1928 Bleakley report.[5] Its full blown implementation really only started after world war two, in fact after Australia had ratified the Convention on the Prevention and Punishment of the Crime of Genocide.

The main public justification for the policy was that the children removed needed `protection'. It is arguable that what most patrol officers thought children needed protection from was their mother's culture. The `protection' from Aboriginal culture was said to be best for a child's welfare, and to protect them from immorality. However, if protection was the basis for the removals, apparently full blood Aboriginal children did not need such protection.

Another basis for the removals is found in the minutes of mission conferences at the time. There was a regular call at these conferences for the appointment of female Aboriginal Protectors (patrol officers). The implication was that many female missionaries thought the main protection Aboriginal children needed (both full blood and half caste) was from white males.[6] In the end no women Protectors were appointed because, as was noted at one conference, if a woman Protector were appointed she would need a male patrol officer to in turn protect her.[7]

Genocide

Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly in December 1948 and ratified by Australia by legislation in July 1949, defines genocide as:

`any of the following acts committed with the intent to destroy in whole or in part, any national, ethnic, racial or religious group, such as: `(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 designed to prevent births within the group; and, `(e) forcibly transferring children from the group to another group'.

Clearly the removal policy is genocide within more than one head of this definition.[8] Not only is it genocide, but as I discussed earlier, it is genocide with a particular gender focus. The activities of government were directed particularly at women.

After 1957

I do not want my earlier discussion on the Aboriginals Ordinance, which was effectively repealed in 1957, to lead you to think we are only considering history here. After the repeal of the Aboriginals Ordinance, a Welfare Ordinance was introduced (the Welfare Ordinance 1953 (NT)). The Welfare Ordinance was carefully phrased to not refer to Aboriginal people and yet to only apply to them. (The debates in the Legislative Assembly at the time of its passing show the difficulty the members had in achieving this objective.[9]) The Welfare Ordinance set out new criteria to allow for the removal of Aboriginal children from their families. A declaration of ward status (the legal basis for a removal) was assessed by: a person's manner of living; their inability without assistance, adequately to manage their own affairs; their standard of social habit and behaviour; and their personal associations. A person could not be declared if they were eligible to vote or would become so on turning twenty one (that is, if they were white).[10]

The criteria by which declarations could be made ensured that Aboriginal women, who were removed from their mothers on the promise of a better life, were always at risk of losing their children. The unavailability of accommodation for women, the low level of job vacancies, the absence of child care, a woman's association with her Aboriginal kin, the extent to which they adhered to traditional ways, the operation of vagrancy laws, and the lack of life skills brought about by years of institutionalisation: all of these factors worked to ensure the continuation of the genocidal policy of removal right up until the present. The effects of these policies stay with a woman all of her life. They are passed on to her family. But the ongoing effects are not just personal, they are also institutional.

Contemporary effects

Aboriginal Land Rights (NT) Act 1976 (Cth)

This year is the twentieth anniversary of the Aboriginal Land Rights (NT) Act 1976 (Cth). This has been the cause for some celebration by the Land Councils established under the Act.[11] But the Stolen Generations are not celebrating. To us, the Act is one further illustration of the loss we have suffered.

The Land Rights (NT) Act establishes two classes of Aboriginal person; a statute-defined `traditional Aboriginal owner', and those that are not. To be classified as a traditional owner an individual must jump through certain legal and anthropological hoops. They must be a member of the `appropriate' descent group and hold the `necessary' spiritual affiliation. The inquiry focus of the claims procedure under the Act means that these hoops have to be passed to the satisfaction of white lawyers and anthropologists: people who have their own views of who is a traditional Aboriginal and who is not, who is a member of one class and who is a member of the other.

The extraordinary thing about the two classes that the Land Rights (NT) Act has created is that while in form the basis of distinction lies in the statutory definition of `traditional Aboriginal owner', in effect the basis of the distinction is the extent to which individuals and their families have suffered genocidal oppression. The tests the Act creates are more difficult for someone removed from family and country to fulfil. The greater the extent of suffering, the fewer the benefits of the Act. The old assimilationist laws having served as the basis for our abduction and imprisonment, continue to serve as the basis for the denial of our land rights. In effect, the Land Rights (NT)Act is itself a continuation of the same assimilationist policies.

The same assimilationist policies were, as I noted earlier, gender-directed. Their continuation today is, therefore, also affected by that gender direction; first, through the denial of land rights, and further, because of the importance attached to being a statutory traditional owner in Land Council bureaucracies, in the whole operation of the Land Rights (NT) Act, and the Land Councils it creates. For example, the Land Councils themselves have very few women on them. There is no separate women's Council. Rather than being a result of the operation of genuine `traditional culture', this is a product of the flawed anthropological models that underlay the development of the Act.

Mainstreaming of services

I do not want the Land Rights Act to be seen as unique. The same problems arise with most land rights legislation, and the same issues are faced with the delivery of most services. The operation of government policies of assimilation that sought to deny us our Aboriginality continues to have an effect in the contemporary delivery of services. Because of our period of incarceration in the missions, we are defined by white governments as `non-traditional'; assimilated. Because we are seen as assimilated, the same white governments that imprisoned us see less need to facilitate the provision of specialist services.

The irony of this situation is that it becomes the survivors of genocide who, rather than being the focus of increased services, receive less. One of my friends described to me the complete sense of abandonment she felt when, having got too old for the institution she had been on since she was four, she was left in Darwin with no idea of who or where her family was. In a way, that abandonment is the situation we all face today at the hands of government.

My friend went on to say that despite the hurt and loss she felt at not knowing who she was or where she came from, she went on to make the best of her life. Similarly with all of us, we go on to make the best of it. We fight government for appropriate service delivery, we fight Land Councils for recognition of our right to our land, we fight the Commonwealth in the courts for compensation for the wrongs done to us. The struggle for justice is itself part, but only a part, of the healing process. Success in that struggle is a larger part of that healing.

---

[1] Northern Territory Administrator's Report 1912, p12.

[2] South Australia: Aborigines Act 1911-1934(SA); Aborigines Act 1934-1962 (SA). Victoria: Aborigines Protection Act 1869 (Vic); Aborigines Protection (Amendment)Act 1886 (Vic); Aborigines Act 1890-1915 (Vic); Aborigines Act 1951-1928 (Vic); Aborigines Act 1928-1957 (Vic). Western Australia: Aborigines Protection Act 1886-1905 (WA); Aborigines Act 1897-1905 (WA); Native Welfare Act 1905-1963 (WA). Queensland: Aboriginals Protection and Restriction of Sale of Opium Act 1897-1939 (Qld); Aboriginals Preservation and Protection Act 1939-1965 (Qld). New South Wales: Aborigines Protection Act 1909-1940 (NSW).

[3] The Aboriginals and half-Castes of Central Australia and Northern Australia, report by JW Bleakley, Chief Protector of Aboriginals in Queensland, Melbourne, 1929, p15.

[4] JW Bleakley, ibid., p14.

[5] JW Bleakley, ibid., p29.

[6] Conference to Consider the Report and Recommendations Submitted to the Commonwealth Government by JW Bleakley-Report of Proceedings, 1929, p40.

[7] Ibid. p32.

[8] That is, arguably all of (b) to (e).

[9] See Northern Territory Legislative Council debates, 22 January 1953 p100.

[10] Welfare Ordinance 1953 (NT), s14(1).

[11] Refer to the October 1996 Aboriginal Law Bulletin for some papers from the August 1996 conference in celebration of 20 years of the Aboriginal Land Rights (NT) Act 1976 (Cth).