The Stolen Generation

Contributed by Dennis Eggington, Tonia Brajcich, Angela Bromfield, Diane Winter and Antonio Buto and current to 1 September 2005

The Commonwealth Labor Government launched the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (the National Inquiry), conducted by the Human Rights and Equal Opportunity Commission (HREOC) on 10 August 1995.

The inquiry conducted 18 months of public and private hearings and took submissions from Commonwealth, State and Territorial governments, churches and Aboriginal organisations. The resulting report, Bringing Them Home, was tabled in the Commonwealth Parliament of Australia in May 1997. The report documents widespread and systematic racial discrimination and gross ill-treatment of Aboriginal and Torres Strait Islander peoples resulting from the perception of lawmakers and administrators that there was a need to resolve ‘the Aboriginal problem.’

THE HISTORY

The first seminal statute that set the legislative framework for the removal of Aboriginal and Torres Strait Islander children from their families was the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld), which was followed seven years later by the Aborigines Act 1905 (WA). The Queensland and Western Australian statutes were to form the blueprint of legislation in the other states (except Tasmania) and the Northern Territory. The churches were very involved in housing the removed children in church-run missions. By the mid 1960s the process of removal to missions had slowed down and by the mid 1970s it had come to an end.

The above mentioned Aborigines Act 1905 (WA), provided the legislative authority for the State, via the Chief Protector of Aborigines, to remove a defined class of Aboriginal children from their families without the consent of the parents or a court order. This was achieved through Section 8 of the Act, which made the Chief Protector the legal guardian of every Aboriginal and ‘half-caste’ child until such child attained the age of 16 years. Subsequent amendments increased this to 21 years and the guardianship provision remained in force until repealed by the Native Welfare Act 1963 (WA).

Assimilation was at the forefront of separation policy. Often this assimilation policy was coated in language that spoke of the complete ‘absorption of’ Aboriginal and Torres Strait Islander peoples, particularly those of ‘lighter skin’, into the dominant white European population. The 1937 Canberra conference of Commonwealth and State Aboriginal Affairs ministers, a conference dominated by Western Australia, Queensland and Northern Territory, resolved to support a policy of the complete ‘absorption’ of the Aboriginal and Torres Strait Islander peoples of Australia into the European population. Thus, much of the education practice, and the very way of life in missions and other institutions, were aimed at inculcating European beliefs in Aboriginal children.

There have been numerous testimonial allegations of sub-standard care and physical and sexual abuse in the missions and other institutions. Many Aboriginal and Torres Strait Islander children separated from their families complained of harsh conditions, denial of parental contact and cultural heritage, harsh punishment and physical and sexual abuse. This has resulted in many Aboriginal and Torres Strait Islander individuals being unable to properly function as parents and members of communities. Often this has been played out through substance abuse, contact with the criminal justice system, poor health, suicide, mental illness, loneliness, and alienation.

Key Legal Historical Events in the History of Aboriginal and Torres Strait Islander Peoples in Western Australia
65,000 BC-1829	Aboriginal traditional law applies
1829	Western Australia is colonised by Britain and the British legal system begins to apply. During the next few years an Aboriginal prison is established on Rottnest Island, a direction is made excluding Aboriginal peoples from towns and Aboriginal peoples are massacred at Pinjarra.
1883	A Royal Commission is held to inquire into treatment of Aboriginal prisoners.
1886-1898	The Aborigines Protection Board is established to provide food, clothing and education for Aboriginal peoples. The WA Constitution is amended to provide for 1% of gross revenue to be used for Aboriginal welfare. Aboriginal peoples are denied the vote in Western Australia.
1898-1948	Restrictive laws are gradually passed. These: authorise the removal of children from Aboriginal families; restrict Aboriginal peoples’ movement, marriage and employment by requiring them to have permits and by moving them to reserves and missions; exclude Aboriginal and Torres Strait Islander peoples from the vote in Commonwealth elections; make certain actions offences if done by Aboriginal peoples; and grant limited rights to “detribalised” Aboriginal peoples. Four Royal Commissions are held in relation to ill-treatment of Aboriginal peoples, including a massacre in the East Kimberley.
1948-1975	Laws affecting Aboriginal and Torres Strait Islander peoples are gradually liberalised. Aboriginal and Torres Strait Islander peoples gain legal rights to citizenship, to vote, to equal wages and some statutory rights to become involved in the government decision-making process. The Racial Discrimination Act 1975 (Cth) is enacted, granting all Australians equal treatment before the law in relation to certain matters including voting, freedom of movement, property and education.
1979	Aboriginal Communities Act (WA) enables some Aboriginal communities to control community affairs.
1980	Arising out of disputes at Nookanbah station, the Aboriginal Heritage Act 1972 (WA) is amended to give the relevant Minister power to approve disturbance of an Aboriginal sacred site.
1984	Voting in Commonwealth elections by Aboriginal and Torres Strait Islander peoples is made compulsory.
1987	The Royal Commission into Aboriginal Deaths in Custody is established. It hands down its report in 1991.
1990	The Aboriginal and Torres Strait Islander Commission is established, consisting of members elected by Aboriginal and Torres Strait Islander peoples. ATSIC is defunded by the Federal Government in 2004.
1992	The High Court decides in Mabo v Queensland that Australia’s common law recognises a form of traditional native title. In 1993 the Federal Government legislates a system for recognising, registering, extinguishing and determining disputes in relation to native title.
1995	The Human Rights and Equal Opportunity Commission brings an Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families.
2002	The report of the WA Inquiry into the Response by Government Agencies to complaints of Family Violence and Child Abuse in Aboriginal Communities (“the Gordon report”) is published.

THE REPORT FINDINGS

The National Inquiry report states that from at least the mid or late nineteenth century, there was a policy of forcible separation adversely affecting Aboriginal and Torres Strait Islander peoples across Australia in all States and Territories. It argues that in many cases, forcible separation resulted in deprivation of liberty, violation of parental rights, abuses of legislative and administrative powers, breaches of guardianship obligations and breaches of human rights. The report goes further to argue that the history of separation fulfilled the legal definition of genocide. Specifically, the report argues that the laws and policies promoting the separation of Aboriginal and Torres Strait Islander children aimed to destroy, or had the effect of destroying, Aboriginal and Torres Strait Islander peoples as racial groups and their ‘Indigenous culture’. The report recommends that the Commonwealth, State and Territorial governments and relevant churches provide a reparation package to those separated and their families and communities.

Governments at the Commonwealth, State and Territorial levels have provided reparations to varying degrees such as funding of family reunions and oral history projects. However, recommendations for the establishment of a compensation tribunal and a Parliamentary apology have yet to be implemented.

Some Aboriginal individuals who were removed as children instigated action against the responsible government (not in Western Australia though). However, all court litigation, the two most famous being the Kruger case (Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1) and the Cubillo case (Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 and (2001) 12 FCR 455), has faced insurmountable doctrinal and historical barriers and thus has failed. However, another plaintiff was successful in being awarded criminal injuries compensation before the NSW Victims’ Compensation Tribunal (the decision has not been reported).