Editors --- "Bringing Them Home - National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families - Digest" [1997] AUIndigLawRpr 36; (1997) 2(2) Australian Indigenous Law Reporter 286

Bringing Them Home -

National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families

Executive Summary

1. Introduction

The Inquiry process

On 11 May 1995, the Attorney-General referred the issue of past and present practices of separation of Indigenous children from their families to the Human Rights and Equal Opportunity Commission (HREOC). On 2 August 1995, the terms of reference of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families were extended to include a reference to principles relevant to compensation for people affected by separation. HREOC President Sir Ronald Wilson and Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Dodson took primary responsibility for conducting the hearings of the Inquiry. They were assisted in each region by an Indigenous Co-Commissioner. They also received advice from an Indigenous Advisory Council. The Inquiry conducted hearings in all capital cities and in many regional and smaller centres. It took public evidence as well as evidence in private from Indigenous people affected by forcible removal and from adoptive and foster parents. Evidence or submissions were taken from 777 people, 535 of these were Indigenous people concerning their experiences of removal policies.

The Report of the National Inquiry was submitted to the Attorney-General in April 1997. This executive summary provides an overview of that report, its findings and recommendations.

In recognition of the need to record and administer access to the testimonies of Indigenous people affected by removal policies, the Inquiry's first recommendation calls on the Council of Australian Governments (COAG) to ensure the funding of appropriate Indigenous agencies. The Inquiry also recommends procedures for implementation of its recommendations, including the establishment by COAG of a working party to develop a process for implementation, the establishment of a National Inquiry audit unit in HREOC, and the funding of peak Indigenous organisations to evaluate progress of implementation. [Recommendations 1-2]

The scope of the Inquiry

Tracing the history

The Inquiry's term of reference (a) required it to "trace the past laws, practices and policies which resulted in the separation of Indigenous children from their families by compulsion, duress or undue influence". The Inquiry interpreted the term compulsion to encompass removals by officially authorised use of force or coercion, as well as by illegally exercised force or coercion. It extends both to the removal of a child by a government delegate and on a court order. Duress differs from compulsion in that it can be achieved without the actual application of force, although threats or moral pressure are usually involved. Duress does not exclude acceptance by those affected by it. The term undue influence has a meaning similar to duress. It was understood by the Inquiry as an influence by which persons are induced not to act of their own free will. In the context of the Inquiry, this meant placing improper pressure on families to induce the surrender of children.

Services and procedures available

Term of reference (b) required the Inquiry to "examine the adequacy of and the need for any changes in current laws, practices and policies relating to services currently available" to those affected by forcible removal. This directed the Inquiry to examine services and procedures available to those affected by reason of experiences of forcible removal or in order to remedy the effects on them of forcible removal. [Recommendations 21-40]

Principles justifying compensation

Term of reference (c) required the Inquiry to "examine the principles relevant to determining the justification for compensation for persons or communities affected by such separations". The Inquiry concluded that an appropriate and adequate response to the history and effects of removals requires reparations, including monetary compensation for defined victims. [Recommendations 3-20]

Current placement and care

Term of reference (d) required the Inquiry to "examine current laws, practices and policies with respect to the placement and care" of Indigenous children and to "advise on any changes required taking into account the principle of self-determination". The Inquiry found that self-determination for Indigenous peoples provides the key to reversing the over-representation of Indigenous children in the child welfare and juvenile justice systems and to eliminating unjustified removals of Indigenous children from their families and communities. [Recommendations 40-54]

2. Tracing the history

National overview

Colonisation

The Inquiry found that Indigenous children have been forcibly separated from their families and communities since the first days of European colonisation. In the nineteenth century, Indigenous children were kidnapped and exploited for their labour. Governments targeted Indigenous children for removal so that they could be employed in service to colonial settlers. Missionaries removed them so that they could be brought up according to western Christian conceptions.

Protection and segregation

By 1911 the Northern Territory and each State except Tasmania had legislation reserving land for the exclusive use of Indigenous people and assigning responsibility for their welfare to a Chief Protector or Protection Board. In some States and the Northern Territory, the Chief Protector was made the legal guardian of Aboriginal children, displacing the rights of parents. Children were placed in dormitories and contact with their families was strictly limited. In Tasmania, Indigenous families were removed to Cape Barren Island of the north coast off the Tasmanian mainland.

Merging

By the late nineteenth century the mixed descent Indigenous population was increasing, in contrast to the full descent population. Government officials theorised that, by forcibly removing Indigenous children and sending them to work for non-Indigenous people, the mixed population would eventually merge with the non-Indigenous population. Protectionist legislation was used to order the removal of Indigenous children without having to establish to a court's satisfaction that the child was neglected, as required under general child welfare legislation. In Tasmania, general child welfare legislation was used in the 1930s to remove Indigenous children from Cape Barren Island to non-Indigenous institutions and foster families.

Assimilation

In 1937 the first Commonwealth-State Native Welfare Conference agreed that "the destiny of the natives of Aboriginal origin, but not of the full blood, lies in their ultimate absorption by the people of the Commonwealth, and it therefore recommends that all efforts be directed to that end". From this time, States began adopting policies designed to assimilate Indigenous people of mixed descent.

Child welfare legislation

After 1940 the removal of Indigenous children in New South Wales was governed by general child welfare legislation, under which they were found to be "neglected", "destitute" or "uncontrollable". These terms were applied much more readily to Indigenous children who, once removed, were treated differently from non-Indigenous children. From the late 1940s other States followed New South Wales. During the 1950s and 1960s; greater numbers of Indigenous children were removed from their families to advance assimilation.

Self-determination and self-management

In the 1970s Aboriginal Legal Services began representing children and families in removal applications. In Victoria, the first Aboriginal and Islander Child Care Agency was established. In 1976, at the First Australian Conference on Adoption, the practice of placing Indigenous children with non-Indigenous families was said to be harmful to the children and inconsistent with the policy of self-determination. In 1980 the family tracing and reunion agency Link-Up (NSW) Aboriginal Corporation was established and in 1981 the Secretariat of National Aboriginal and Islander Child Care (SNAICC). These services lobbied for the adoption of the Aboriginal Child Placement Principle by State and Territory welfare departments.

Estimating the numbers removed

The number of children who were forcibly removed cannot be stated with precision. Many records have not survived and others do not record Aboriginality. The Inquiry concluded that between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period 1910-1970. Most families have been affected, in one or more generations, by the forcible removal of one or more children.

3. Consequences of removal

Children's experiences

Children's experiences following their removal contributed to the effects of the removal upon them at the time and in later life. The following briefly outlines the evidence to the Inquiry concerning those experiences which have had the most significant impacts on well-being and development.

Multiple placements

A high proportion of children experienced multiple placements following their removal. This made the consequences of separation worse, increasing the children's experience of insecurity and instability.

Totality of separation

The overwhelming majority of children forcibly removed were separated from their Indigenous family, community and culture. Generally they were not permitted to use their languages. At best, contact with family members was limited and strictly controlled. Many children were told that they were unwanted and rejected or that their parents were dead.

Institutional conditions

The physical infrastructure of missions, government institutions and children's homes was often very poor and resources were insufficient to keep the children adequately clothed, fed and sheltered. Institutional regimes were strictly regulated, with the well-being of children at times severely neglected and harsh punishments frequently administered. Nineteen percent of Inquiry witnesses reported having been physically assaulted in an institution.

Sexual abuse

Children in all placements were vulnerable to sexual abuse and exploitation. Almost one in ten boys and slightly over one in ten girls allege that they were sexually abused in a children's institution. One in ten boys and three in ten girls allege that they were sexually abused in a foster placement or placements. One in ten girls allege that they were sexually abused in a work placement.

Protection

Chief Protectors, Protection and Welfare Boards and State welfare officers frequently failed to protect their charges from abuse in placements, even though this was a legal obligation.

Bonds of affection

While their developmental needs were largely unmet, in some more enlightened institutions close attachments between older girls and babies, infants and younger children were encouraged. Some children also found love, care, comfort and a measure of understanding of their Indigenous heritage in foster homes and adoptive families.

Education

Little or no education was provided to children removed to missions and institutions. The education that was provided aimed at completion of schooling at the level achieved by a ten year old in the State system. Emphasis was placed on domestic science and manual training. Aspirations for education were trampled.

Work and wages

Children expected to take on work responsibilities at an early age were not trusted with their own wages. They were generally allowed to retain only a small proportion of their meagre earnings as pocket money. The rest was to be held in trust. Many apprentices never received their money and fraud on wards' accounts was common.

The effects of separation from the primary carer

Attachment

Infant separation from the primary carer and institutionalisation are recognised as causally connected to a range of psychiatric disorders in adulthood, including anxiety, depression and psychopathic personality. Attachment to a primary carer helps children achieve full intellectual potential, attain cultural identity, become self-reliant, cope with stress, frustration, fear and worry, and develop future relationships. Between one-half and two-thirds of children forcibly removed were removed in infancy.

Skills and learning

The Inquiry found that "carers" rarely responded appropriately to trauma reactions and grief at the loss of family. Bereavement in childhood can render children vulnerable to stresses, damaged self-esteem and self-efficacy, often resulting in depression in adolescence and adulthood. Disrupted parenting in infancy or early childhood renders the person more vulnerable to adolescent and adult psychological and emotional disturbances, including difficulties in relationships.

The effects of institutionalisation

The effects of institutionalisation persist into adolescence and adulthood. The Inquiry received substantial evidence that these effects can include impaired relationships, weakness of emotional attachment, high levels of emotional disorder and maladjustment, deficits in intellectual and social development, an inability to develop a sense of self-worth, drug and alcohol abuse, delinquency in boys, and detention in juvenile corrective institutions and prisons.

The effects of abuses and denigration

Sexual abuse

At least 17.5 per cent of witnesses to the Inquiry reported sexual exploitation and abuse in children's homes and foster placements. Psychological effects of childhood sexual abuse are manifested in isolation, drug and alcohol abuse, criminal involvement, self-mutilation and suicide. Victims of child abuse have significant difficulties parenting and many abuse their own children.

Other trauma

Trauma resulting from separation and institutionalisation produces a range of mental health problems, especially chronic depression. Consequences of chronic depression include very poor physical health and substance abuse.

Racism

The Inquiry found that removed Indigenous children faced the continuing denigration of their Aboriginality and that of their families. Their complete separation from their Indigenous heritage has had profound effects on their experience of Aboriginality and their participation in the Aboriginal community as adults.

The effects of separation from the Indigenous community

Cultural knowledge

A principal effect of forcible removal policies was the destruction of cultural links and loss of knowledge of culture, language, land and identity.

Indigenous identity

Many witnesses to the Inquiry spoke of a sense of not belonging either in the Indigenous or in the non-Indigenous community. This sense of alienation has ramifications for the well-being of individuals and is also transferred inter-generationally.

Native title

The Inquiry found that separation from their families has dramatically affected people's land entitlements. In all jurisdictions, the ability to bring a native title claim is generally extinguished by forced removal.

The effects on family and community

The evidence presented to the Inquiry established that families and whole communities suffered grievously upon the forcible removal of their children. As a result of widely shared parenting roles and nurturing and socialising responsibilities in Indigenous societies, many people in addition to the biological parents were deprived of their role and purpose in relation to children who were taken. The loss of their children has affected the efficacy and morale of many Indigenous communities, as well as the sense of purpose of Indigenous men in relation to their families and communities. To avoid their children being taken, some families severed family ties and hid their Aboriginal identity. The Inquiry found that, when a child was permanently removed, the entire community lost the opportunity to perpetuate itself in that child. The effects of forcible removal are renewed when communities must deal with the desire of removed children to return and claim their inheritance.

Inter-generational effects

The Inquiry found that the effects of the removal policies continue through the generations of Indigenous families.

Parenting

Most forcibly removed children were denied the experience of being parented or cared for by a person to whom they were attached. Denial of this experience results in individuals whose ability to parent their own children is severely compromised. In adulthood, forcibly removed children carry with them the fear that their own children will be taken from them. Parents' fears sometimes translate into a lack of appropriate discipline for their own children.

Behavioural problems

Many of the "stolen generations" have "problem children" of their own. Because of their behavioural problems, there is a significantly increased risk that these second generation children will be removed from their families or have their children removed.

Unresolved grief and trauma

The Inquiry also received evidence that unresolved grief and trauma are passed from generation to generation.

Depression and mental illness

Rates of depression are high among people who experienced forcible removal in childhood. The children of these people are also known to be at risk.

Reunion

The Inquiry described reunion as the beginning of the unravelling of the damage done to Indigenous families and communities by the forcible removal policies. Many people told the Inquiry of their needs for knowledge and reunion with their families, for example, in relation to health and inherited illnesses, as well as intimate relationships. Some spoke of a feeling of being "home at last" upon meeting a birth parent. For a variety of reasons, many Indigenous people affected by removal have been unable to reunite with their families and communities. People whose Aboriginality was denied or denigrated in childhood may be reluctant to admit to it or to overcome the negative views of Aboriginal people instilled in them. When they trace their families, they may find themselves unable to accept them or rejected by them in turn. Language differences inhibit many reunions and make rebuilding relationships extremely difficult, if not impossible.

For those who trace and meet their families, the lost years can never be fully recovered nor the lost bonds fully healed. Many family reunions have taken place without supportive assistance and counselling. The Inquiry was particularly disturbed to hear of reunions engineered by welfare officers without any preparation of the child or young person involved and without any counselling for the after effects of reunions. The Inquiry found that an unknown number of Indigenous children have been removed by foster families and adoptive parents overseas.

4. Reparation

Grounds for reparation

Evaluation of government actions

The Inquiry was careful to evaluate past actions of governments and others not through the prism of contemporary values but in light of the legal values prevailing at the time such actions were taken. Those legal values can be found in legal principle imported into Australia as English common law and progressively developed by Australian Parliaments and courts, as well as more recently in international human rights law.

Colonial legal standards

The Inquiry found that basic safeguards protecting the integrity of non-Indigenous families and non-Indigenous wards of the State were cast aside in relation to Indigenous families and children. There was a significant divergence between imported British notions of fairness and the treatment of Indigenous peoples in Australia. The major components of forcible removal were deprivation of liberty, deprivation of parental rights, abuses of power in the removal process and breach of guardianship obligations.

Deprivation of liberty

The Inquiry found that the taking of Indigenous children from their homes by force and their confinement to training homes, orphanages and mission dormitories amounted to deprivation of liberty and imprisonment in the meaning of the common law. The safeguard of pre-detention court scrutiny was denied to Indigenous children in many States and the Northern Territory. In these jurisdictions, Indigenous children could be removed and confined by the order of a public servant alone, while the removal of non-Indigenous children had to be processed through the courts. Where an appeal right was given to parents, as in New South Wales, the right was ineffectual as the courts were not realistically accessible to Indigenous people. The removal of the safeguard of judicial scrutiny for Indigenous children and their families amounted to direct discrimination on racial grounds.

Deprivation of parental rights

The Inquiry found that some jurisdictions went further, legislating to remove the parental rights of Indigenous parents. The Chief Protector or similar official was made legal guardian of all Indigenous children. This too was contrary to established common law safeguards of parental rights. At common law and under legislation, a parent could only forfeit parental rights through misconduct or because a court found guardianship to be in the individual child's best interests. Moreover, Chief Protectors and Protection Boards were not required to consider questions of reasonableness or sufficiency in relation to the confinement of Indigenous children. Again, Indigenous people were denied common law rights taken for granted by other Australians.

Abuses of power

The Inquiry found that legislation authorising the majority of removals authorised what would otherwise have been gross breaches of common law rights. Even where court hearings were required, courts were often less than vigilant about abusive practices carried out under "protection" legislation. The Inquiry noted that many people protested against these unjust practices at the time.

Breach of guardianship duties

The Inquiry found that Protectors and Protection Boards were placed by law in a fiduciary relationship in which they owed legal obligations of care and protection to the children who were forcibly removed. Protectors and Boards failed in their guardianship and related fiduciary duties to Indigenous wards and children to whom they had statutory responsibilities in three ways: failure to provide care to contemporary standards, when those standards of care were provided to non-Indigenous children in similar circumstances; failure to protect the children from harm; and failure to involve Indigenous parents in decision-making about their children. In many cases, the agents or delegates of the State (missions, church institutions, foster carers and employers) similarly breached their fiduciary duties. The Inquiry found that, even with the knowledge and by the standards of the time, Protectors and Boards may have breached their fiduciary duties to many children by the very act of removing them from parental or other care.

International human rights

The Inquiry found that legislation which authorised the removal of Indigenous children without the need for a court order was racially discriminatory. This legislation established a legal regime for Indigenous children and their families which was inferior to that for non-Indigenous children and families. Even where a court hearing was necessary, the law discriminated against Indigenous children and families in a number of ways. The Inquiry found that racial discrimination was recognised as contrary to international law from around the establishment of the United Nations in 1945. The prohibition of racial discrimination found expression in the 1945 Charter of the United Nations and the 1948 Universal Declaration of Human Rights. In Australia, legislation continued to provide a different and inferior regime for Indigenous children until 1954 in Western Australia, 1957 in Victoria, 1962 in South Australia, 1964 in the Northern Territory and 1965 in Queensland. Because laws singled out Indigenous children for removal by administrative means and on the ground of their race or colour, they were racially discriminatory. Whether or not they may have been partially motivated by a benign purpose was immaterial. The Inquiry also found that direct discrimination continued following the repeal of specific Indigenous legislation as welfare departments continued to implement the same policies.

Genocide

The Inquiry found that the policy of forcibly transferring Indigenous children to non-Indigenous institutions fell within the international legal definition of genocide. It contravened binding international law from at least 11 December 1946. On that date, the United Nations General Assembly adopted a resolution declaring genocide already a crime under international law. This resolution is mentioned in the Preamble of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Inquiry found that the crime of genocide is not restricted to the immediate physical destruction of a group but includes the forcible transfer of children, provided the other elements of the crime are established. The essence of the crime of genocide is the intention to destroy the group as such, not the extent to which that intention is actually achieved. The predominant aim of Indigenous child removals was the absorption or assimilation of the children into the wider, non-Indigenous community so that their unique cultural values and ethnic identities would disappear. The Inquiry concluded that child removal policies were genocidal because a principal aim was to eliminate Indigenous cultures as distinct entities.

The Inquiry also considered the applicability of the Genocide Convention where the destruction of a particular culture and its family institutions was believed to be in the best interests of the children or where child removal policies were intended to serve multiple aims. The Inquiry found that an act or policy can still constitute genocide even though it is motivated by a number of objectives. The intentional elimination of a group need not be solely motivated by animosity or hatred. The Inquiry found that the continuation into the 1970s and 1980s of preferring non-Indigenous foster and adoptive families for Indigenous children was also arguably genocidal. It has been suggested that a general intent can be established from proof of reasonable forseeability. The Inquiry found that the genocidal impact of these practices was reasonably foreseeable.

Making reparation

Findings

The Inquiry found that the removal of Indigenous children by compulsion, duress or undue influence was usually authorised by law but that the laws violated fundamental common law rights which Indigenous Australians should have enjoyed equally with all other Australians. From about 1946 laws and practices which promoted the removal of Indigenous children for rearing in non-Indigenous institutions and households were in breach of the international prohibition of genocide. From about 1950 the continuation of separate laws for Indigenous children was in breach of the international legal prohibition of racial discrimination. From this period many Indigenous Australians were victims of gross violations of human rights.

The right to compensation

International human rights law recognises the right of victims of gross violations of human rights to reparation. Many international human rights treaties binding on Australia affirm this right. Customary international law also recognises an international legal obligation of states to make reparation to victims of gross human rights violations.

The van Boven Principles

In 1996 Professor Theo van Boven prepared for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities a document entitled Basic Principles and Guidelines on the Right to Reparation of Victims of Gross Violations of Human Rights and Humanitarian Law. The Inquiry concurred with van Boven that the only appropriate response to victims of gross human rights violations is one of reparation. The Inquiry recommends that, for the purpose of responding to the effects of forcible removal, the term "compensation" be widely defined to mean "reparation" and that reparation be made in recognition of the history of gross violations of human rights.

Components of reparation

In accordance with van Boven's principles, reparation should consist of acknowledgment and apology, guarantees against repetition, measures of restitution, measures of rehabilitation and monetary compensation. [Recommendation 3]

Claimants

The Inquiry recommends that reparation be made to all who suffered because of forcible removal policies, including individuals who were removed as children, family members who suffered because of their removal, communities which suffered cultural and community disintegration and descendants of those forcibly removed who have been deprived of family and community ties, culture and language, and links with and entitlements to their traditional land. [Recommendation 4]

Acknowledgment and apology

The first step in any healing for victims of gross violations of human rights must be an acknowledgment of the truth and the delivery of an apology. While a number of Australian governments have recognised the harms suffered as a result of forcible removal, only the Parliament of New South Wales has extended an apology. Accordingly, the Inquiry recommends that all Australian Parliaments officially acknowledge the responsibility of their predecessors for the laws, practices and policies of forcible removal, and extend apologies, in a form of words negotiated with the Aboriginal and Torres Strait Islander Commission (ATSIC), to Indigenous individuals, families and communities. The Inquiry also recommends that State and Territory police forces acknowledge their role in the implementation of the laws and policies of forcible removal and make formal apologies. The Inquiry noted that most churches have recognised the devastating effects of the forcible removal policies and practices and recommends that churches and other non-government agencies which played a role in the administration of laws and policies under which Indigenous children were forcibly removed acknowledge that role and make formal apologies. [Recommendations 5a-6]

Commemoration

The Inquiry considered that satisfaction should go beyond a single instance of acknowledgment and apology and that victims should be appropriately commemorated. Accordingly, it recommends that ATSIC, in consultation with the Council for Aboriginal Reconciliation, arrange for a national "Sorry Day" each year to commemorate the history of forcible removal and its effects. It recommends that proposals be sought for further commemorating the individuals, families and communities affected at local and regional levels. [Recommendations 7a-b]

Guarantees against repetition

The Inquiry recognised the need to implement measures to ensure that Indigenous families and communities never again suffer the forcible removal of their children because of their race. It recommends the inclusion in primary and secondary school curricula of compulsory modules on the history and continuing effects of forcible removal. It also recommends in-service training for professionals working with Indigenous children, families and communities about the history and effects of forcible removal and education for undergraduates and trainees in relevant professions as part of their core curriculum. As a further guarantee against repetition, the Inquiry recommends Commonwealth legislation to implement the 1948 Convention on the Prevention and Punishment of the Crime of Genocide with full domestic effect. [Recommendations 8a-10]

Land, culture and language restitution

The purpose of restitution is to re-establish, to the extent possible, the situation that existed prior to the perpetration of gross violations of human rights. The Inquiry found that the children who were removed have typically lost the use of their languages, been denied cultural knowledge and inclusion, been deprived of opportunities to take on cultural responsibilities and are often unable to assert their native title rights.

Assistance to return to country

In relation to land, returning to country is a critical step in the reunification and assistance process. To facilitate return to country, support is required for the returnees and for the communities receiving them. Traditional owners and native title groups have authority to define their membership to include persons removed in childhood and thus to include such people among those entitled to the benefits of statutory and native title land claims. The Inquiry recognised the need for reliable information about the history and effects of forcible removal to assist traditional owners in their decision-making in relation to people who were removed as children. Accordingly, the Inquiry recommends the funding of appropriate Indigenous organisations to employ family reunion workers to travel with clients to their country, to provide Indigenous community education on the history and effects of forcible removal and to develop community genealogies to establish membership of people affected by forcible removal. [Recommendation 11]

The Inquiry found that people who, by reason of their removal, are unable to enjoy native title rights should be able to establish that loss in a claim for monetary compensation.

Language, culture and history centres

Numerous submissions to the Inquiry drew attention to the need for broader measures of "cultural restitution". The Inquiry considered the model of regional language centres, administered by ATSIC under the Aboriginal and Torres Strait Islander Language Program, appropriate to assist those affected by forcible removal to recover their languages. Local and regional negotiations would be necessary to determine the appropriateness of particular language centres to take on other tasks envisaged by the Inquiry, such as recording and storing personal testimonies, and archiving local history records. The term "language, culture and history centres" indicates the range of tasks to be performed, either through expansion of existing language centres or establishment of new institutions. The Inquiry recommends that the Commonwealth increase funding of Indigenous language, culture and history centres to ensure national coverage at a regional level. It also recommends the funding of regional language, culture and history centres to record and maintain local languages and to teach those languages, especially to people forcibly removed and their descendants. [Recommendations 12a-b]

Indigenous identification

Many people forcibly removed are unable to establish their Aboriginality by reference to the frequently applied three-pronged definition: proof of descent from the Indigenous peoples of Australia; self-identification; and acceptance by the Indigenous community as an Indigenous person. Some people who were forcibly removed are not acknowledged as members by their communities of origin and others are unable to locate their communities. The Inquiry recommends that Indigenous organisations which undertake family history research be recognised as Indigenous communities for the purpose of certifying descent and acceptance by the Indigenous community. [Recommendation 13]

Monetary compensation

The reparations scheme proposed by the Inquiry should recognise the full range of harms and losses caused by the removal policies. Losses incurred by Indigenous communities are addressed, in particular, in the Inquiry's recommendations under the heading "Services for those affected". In addition individual victims should be entitled to monetary compensation for harms and losses for which restitution in kind cannot be made. The Inquiry found that any individual affected by the removal policies should be entitled to make a claim for compensation, including parents, siblings and other family members in appropriate cases.

Heads of damage

The Inquiry recommends that compensation be paid under heads of damage in line with those proposed by van Boven and adopted in human rights litigation in other jurisdictions. These heads of damage are racial discrimination; arbitrary deprivation of liberty; pain and suffering; abuse, including physical, sexual and emotional abuse; disruption of family life; loss of cultural rights and fulfilment; loss of native title rights; labour exploitation; economic loss; and loss of opportunities. [Recommendation 14]

Civil claims for compensation

The Inquiry noted that Indigenous people are taking actions for civil damages arising from forcible removal. While the harms suffered are recognised heads of damage compensable under Australian law, reliance on civil courts is likely to lead to delay, inequity and inconsistency of outcome, as well as difficulties of proof and the possible expiry of statutory limitation periods. Civil processes are daunting and expensive and likely to deter many of those affected.

Ex-gratia payments

In its submission to the Inquiry, the Commonwealth argued that three principles preclude the ex-gratia payment of compensation. First, the Commonwealth referred to difficulties in identifying persons eligible for compensation. The Inquiry noted that in most cases the right to claim reparation in the form of monetary compensation is limited to individuals and families and that communities should receive reparation for the harm they have suffered in the form of restitution, rehabilitation, satisfaction and guarantees against repetition. The Inquiry also noted that, despite gaps and deficiencies, extensive records relating to forcible removals have survived. Second, the Commonwealth referred to difficulties in estimating the amount of loss in monetary terms. The Inquiry noted that most elements of the harm experienced by the victims of forcible removal are recognised heads of compensation in Australian civil damages law. The same principles should apply to quantification as apply in the civil courts. Where Australian law does not presently recognise a right to reparation, there are numerous precedents to guide Australian developments. Third, the Inquiry disagreed with the Commonwealth's suggestion that the payment of compensation would have negative consequences for the wider community. The Inquiry rejected the suggestion that forcible removal laws are only one example of laws later discredited, holding that a distinction should be made between subsequent recognition that public policy was poorly judged and a public policy in breach of fundamental human rights. Far from being socially divisive, reparations are essential to the process of reconciliation.

A national compensation fund

To avoid costly, time-consuming litigation and possible inconsistency of results, the Inquiry recommends the establishment of a joint Commonwealth, State and Territory National Compensation Fund. [Recommendation 15]

The Fund should be administered by a Board consisting of Indigenous and non-Indigenous people appointed in consultation with Indigenous organisations with particular responsibilities to people forcibly removed and their families. [Recommendations 16a-b]

Major church organisations which played a role in forcible removal should be encouraged to contribute to the Fund.

Procedural principles

The Inquiry recognised the need for culturally appropriate assessment criteria and procedures for the determination of compensation claims which are expeditious, non-confrontational and non-threatening and which accommodate cultural and linguistic needs. The Inquiry adopted the principle that statutory periods of limitation should not apply to gross violations of human rights, for many victims of which the passage of time has no attenuating effect. The Inquiry recommends the application of the following procedural principles in the operation of the monetary compensation mechanism: widest possible publicity; free legal advice and representation for claimants; no limitation period; independent decision-making which should include the participation of Indigenous decision-makers; minimum formality; not bound by the rules of evidence; and cultural appropriateness (including language). [Recommendation 17]

Assessment of compensation

The Inquiry recognised that in the assessment of compensation practical difficulties might arise in determining what qualifies as proof of removal and proof of loss. In cases in which evidentiary material is difficult to obtain or has been destroyed, the Inquiry considered that the burden of proof should be on governments to rebut otherwise credible claims. The reversal of the onus of proof was necessary as a "special measure" under the Racial Discrimination Act 1975 (Cth).

Minimum lump sum

The Inquiry recommends that an Indigenous person removed from his or her family during childhood by compulsion, duress or undue influence be entitled to a minimum lump sum payment in recognition of the fact of removal but that it be a defence for the responsible government to establish that the removal was in the best interests of the child. [Recommendation 18]

Proof of particular harm

The Inquiry recognised that some people may be able to prove particular harm and/or loss resulting from forcible removal. The Inquiry recommends that upon proof on the balance of probabilities these persons should be entitled to monetary compensation from the National Compensation Fund assessed by reference to general civil standards. [Recommendation 19]

Civil claims

The Inquiry also recognised that some people might wish to pursue civil claims to maximise the damages payable to them. Accordingly, it recommends that the proposed statutory monetary mechanism not displace claimants' common law rights to seek damages through the courts. However a claimant successful in one jurisdiction should not be entitled to proceed in the other. [Recommendation 20]

5. Services for those affected

Evaluating government responses

Evaluation

The Inquiry was required to evaluate the three principal government responses to the effects of forcible removal: provision of access to personal and family records; provision of funding to Indigenous services assisting family reunion; and provision of services to address the individual and family well-being effects of forcible removal.

The Inquiry's evaluation criteria

In evaluating the responses of government, the Inquiry referred first to the framework established by governments themselves based on recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCADIC); and second to evaluation criteria dictated by its terms of reference and Australia's human rights obligations, namely self-determination, non-discrimination, cultural renewal, coherent policy base and adequate resources.

Access to personal and family records

Existing services and procedures

The Inquiry found the variety of services for accessing personal and family records to be complex and confusing. Many relevant files have been lost or destroyed. There has been little effort to identify files of relevance to Indigenous people affected by forcible removal. Old records are fragile and preservation is costly and resource-intensive.

Location of records

Records relevant to children who were forcibly removed and their families were usually created by a number of records agencies. Access to most records is by arrangement with the agency which created the record. There is no "one-stop shop" in which all personal information held by government can be located and accessed. Indexes and finding aids are essential if searchers are to locate their records. Many files which may be of relevance do not distinguish between Indigenous and non-Indigenous subjects.

Beginning a search

Researching government records is complicated and time-consuming; record-keeping systems, codes and procedures are difficult to understand. Some record agencies have established search and tracing services for Indigenous searchers.

Restrictive application of Freedom of Information

Freedom of Information (FoI) application procedures can be unhelpful to Indigenous searchers. However, most Indigenous affairs and welfare departments now have specific non-FoI access procedures for Indigenous families. Whilst these are often slower than FoI applications, they are less formal, usually free of charge and research assistance may be available.

Adoption information

Adoption information is treated separately, with all States and Territories except South Australia permitting adopted children to ascertain the identity of their natural parents without using FoI procedures.

No right of access to non-government records

Records made by non-government organisations such as churches are not covered by FoI. Where non-government agency record collections are deposited in government archives, the depositing organisation generally decides who can have access to these materials and on what conditions.

No right of access to family information

Family information is treated as information about third parties and protected to varying degrees by privacy principles. Some States treat the right of privacy more strictly than others and the practice of agencies within States varies.

Unrelated third parties

Respect for third party privacy seems to require that all information relating to non-immediate family will be withheld, for example the identity of foster parents and assessments of the quality of care provided. This information may be critical to the success of a civil damages claim brought by a former ward harmed or abused in foster care.

Distressing information and denigratory language

The files of persons forcibly removed almost certainly contain information that will cause pain, even trauma. The Inquiry considered that people should be entitled to have false information on files corrected but that no information, even false information, should be deleted. At the same time, the Inquiry emphasised the importance of support and counselling for people before, during and after files are read. The Inquiry noted the inadequacy of support for Indigenous family reunions where adoption was not involved.

Evaluation -- government objectives

Recommendation 53 of the RCADIC calls on governments to:

provide access to all government archival records pertaining to the family and community histories of Aboriginal people so as to assist the process of enabling Aboriginal people to re-establish community and family links with those people from whom they were separated as a result of past policies of government.

The Inquiry identified five features of a system of access to records which implements Recommendation 53.

* Information about the availability of records should be widely communicated throughout Indigenous communities. The Inquiry found that most Aboriginal people do not know about the existence of records, their rights of access, how to go about searches or the availability of assistance.

* Access to one's personal records, including information about one's family background, should be available as of right. The Inquiry found that some agencies interpret third party privacy restrictively and fail to assist searchers to meet requirements for third party consent. Searchers are denied information needed to identify family members and re-establish community and family links.

* Access procedures should be simple, straightforward and inexpensive, if not free of charge. The Inquiry found that access provisions and services are fragmented and that to reconstruct a child's history a "file-trail" often needs to be followed. For applications under FoI, fees are sometimes imposed and costs of copying documents charged to the searcher. The Inquiry considered it unjust to make restitution, including family reunion, and rehabilitation dependent on a victim's ability to pay.

* All records must be thoroughly indexed. The Inquiry found that not even all government-created records have been indexed and that relatively few specialist finding aids or guides have been produced.

* Pre-search counselling, support during the perusal of files and subsequent counselling should be provided. The Inquiry found that no records agency provides resources for counselling equivalent to that provided for adoption information applicants.

Evaluation -- Inquiry criteria

Self-determination

The right of Indigenous self-determination requires that Indigenous people should be able freely to access information critical to their history and survival as peoples. Cooperative arrangements between government agencies and Indigenous family reunion services represent tentative steps towards partnerships reflecting the right of self-determination.

Non-discrimination

Arrangements for accessing records can disadvantage a substantial proportion of Indigenous people.

Cultural renewal

Indigenous communities do not control and manage their own documentary history. Renewal of family and cultural ties and regeneration of community life and culture may depend on reclamation of historical documentation. In most States and Territories, Indigenous communities are not involved in decisions about the management of access to and research into their records.

Coherent policy base

No government has a policy statement which acknowledges the full range of needs of people affected by forcible removal.

Adequate resources

The employment of family reunion workers by a number of government agencies goes some way to meeting the requirement for adequate staff resources. However, most agencies are unable to employ Aboriginal archivists because few are professionally qualified and no traineeships are available. The inadequate resourcing of government record agencies is reflected in the poor condition of many record series, the lack of indexes and finding guides, and the size of the search backlog.

Recommendations

Destruction of records prohibited

The Inquiry recommends that no records relating to Indigenous individuals, families or communities or to any children, Indigenous or otherwise, removed from their families for any reason, whether held by government or non-government agencies, be destroyed.

Record preservation

The Inquiry recommends that government record agencies be funded to preserve and index such records and that indexes and finding aids be developed and managed in ways that protect the privacy of individuals. [Recommendations 21-22b]

Joint records taskforces

In recognition of the need for common access guidelines in each State and Territory, the Inquiry recommends that the Commonwealth and each State and Territory establish a Records Taskforce constituted by representatives from government and church and other non-government agencies and Indigenous user services to:

* develop common access guidelines to Indigenous personal, family and community records in accordance with privacy principles;

* advise government whether any church or other non-government record-holding agency should be assisted to preserve, index and administer access to its records;

* advise government on memoranda of understanding for dealing with inter-state inquiries and for the inter-state transfer of files and other information. [Recommendations 23-24]

Minimum access standards

The Inquiry accepted that access guidelines and standards may need to vary in detail in different regions. It considered that, while national minimum standards are essential, national guidelines would be inappropriate. Each Records Taskforce should develop, within the parameters of national minimum standards, common access guidelines applicable to all record agencies. The Inquiry recommends that the Northern Territory Government introduce FoI legislation on the Commonwealth model. [Recommendations 25-26]

Indigenous Family Information Service

In recognition of the complexity of record holdings, the Inquiry recommends the establishment by the Commonwealth and each State and Territory of an Indigenous Family Information Service to operate as a "first stop shop" for people seeking information about records held by government and churches. These services should be staffed by Indigenous people.

Traineeships

The Inquiry recommends the establishment of traineeships and scholarships for Indigenous archivists, genealogists, historical researchers and counsellors. [Recommendations 27-28]

Indigenous repositories

Some witnesses before the Inquiry asserted the right of individuals to reclaim their records. Indigenous organisations asserted the right of communities to recover documentation of their history, including personal information about community members. Australian law does not currently accept the view of record ownership implicit in these arguments, considering the owner of the record to be the department or agency which created it. There was significant support in submissions to the Inquiry for the housing of personal and family records in the language, culture and history centres proposed in Recommendation 11. The Inquiry recommends that, on the request of an Indigenous community, the relevant Records Taskforce sponsor negotiations between government, church and/or other non-government agencies and the relevant language, culture and history centre for the transfer of historical and cultural information relating to that community and its members. The Inquiry also recommends that language, culture and history centres have the capacity to serve as repositories of personal information placed in their care. [Recommendations 29a-b]

Funding for reunion assistance

Evaluation -- government objectives

Recommendation 52 of the RCADIC proposes:

That funding should be made available to organizations such as Link-Up which have the support of Aboriginal people for the purpose of re-establishing links to family and community which had been severed or attenuated by past government policies. Where this service is being provided to Aboriginal people by organizations or bodies which, not being primarily established to pursue this purpose, provide the service in conjunction with other functions which they perform, the role of such organizations in assisting Aboriginal people to re-establish their links to family and community should be recognized and funded, where appropriate.

The Inquiry considered that full implementation of Recommendation 52 requires a significant increase in funding of family tracing and reunion services, a fair distribution of Commonwealth funding across jurisdictions and an acceptance of a funding obligation by all States.

Evaluation -- Inquiry criteria

Self-determination

The Inquiry considered that funding of family tracing and reunion services through ATSIC has the potential to promote Indigenous self-determination. No ATSIC support for reunion assistance is provided in Western Australia, South Australia or ACT. There is no independent family reunion service in South Australia.

Non-discrimination

State and Territory governments have committed considerably more resources per reunion to adoption reunions than to Indigenous family reunions. Very serious discrimination occurs with government resources favouring predominantly non-Indigenous adoptees over Indigenous children removed under now discredited laws.

Cultural renewal

Family reunion services are unable to accomplish core reunion tasks, much less attend to clients' broader, longer-term needs with respect to community, cultural heritage and country. Failure to support "cultural reunions" financially is a failure to acknowledge and redress the damage of assimilation policies.

Coherent policy base

There is no underlying policy objective driving Commonwealth spending in the area of reunion assistance. At the State and Territory level, there is a commitment to facilitating family reunions by inter-agency cooperation. However, funding constraints limiting services, the lack of qualified Indigenous researchers, genealogists and counsellors, and the impossibility of State-wide coverage indicate a failure of commitment to full, effective and equitable service delivery in this area.

Adequate resources

Funding for reunion assistance is inadequate and unfairly distributed, outreach limited, services constrained in securing training for staff, and potential clients in rural and remote areas disadvantaged.

Recommendations

Establishment of family tracing and reunion services

The Inquiry recommends the funding of Indigenous community-based family tracing and reunion services in all regional centres with a significant Indigenous population and the funding of existing community-based services, such as health services, in smaller centres to offer family tracing and reunion assistance and referral. [Recommendations 30a-b]

Return of those removed overseas

The Inquiry considered that the Commonwealth should assist those removed overseas to return permanently should they so choose, recommending the creation of a special visa class under the Migration Act 1951 (Cth) to enable Indigenous people forcibly removed and their descendants to return to Australia and take up permanent residence. The Inquiry also recommends amendment of the Citizenship Act 1948 (Cth) to provide for the acquisition of citizenship by any person of Aboriginal or Torres Strait Islander descent. It also recommends prompt implementation of the International Transfer of Prisoners Bill 1996. [Recommendations 31a-c]

Mental heath services

Evaluation -- government objectives

In its submission to the National Inquiry, the Commonwealth Government identified three guiding principles for Indigenous mental health services, based on the 1995 report, Ways Forward: National Consultancy Report on Aboriginal and Torres Strait Islander Mental Health. Services should be based on a mental health promotion and prevention model, emphasise the primacy of Indigenous empowerment and self-determination, and adopt a holistic approach.

Health promotion and prevention model

The Inquiry found that only the most recent Commonwealth initiative addresses the issue of trauma and grief, identified in Ways Forward as among the most serious, distressing and disabling issues faced by Aboriginal people. Contrary to the proposal in Ways Forward that priority be accorded to violence and destructive behaviours, there is no evidence of any project acknowledging that these should be incorporated in the definition of mental health nor of initiatives according them priority.

Indigenous empowerment and self-determination

Most States and the Northern Territory now support Aboriginal medical and health services. Tasmania, South Australia and the Australian Capital Territory do not. However, a preponderance of resources, including human resources, is still controlled by government departments, with most mental health resources devoted to the care of the mentally ill rather than to health promotion and the prevention of mental illness.

Holistic approach

There is a reluctance to pursue a holistic approach which would permit mental health issues to be addressed in the "general health sector". A preventive focus, rather than a continued emphasis on more acute care, would be more conducive to facilitating a holistic approach.

Evaluation -- Inquiry criteria

Self-determination

The Inquiry found that the bulk of mental health resources continue to be controlled by governments and non-Indigenous non-government agencies. If effective Indigenous-controlled primary and preventive programs were available, it might be appropriate and efficient for secondary and tertiary services to remain under government control. However, it would still be essential for government to work with Indigenous organisations in the provision of acute care.

Non-discrimination

The National Aboriginal Heath Strategy and the Indigenous mental health component of the National Mental Health Policy are responses to very significant discrimination experienced by Indigenous people in mainstream mental heath services. There is reason for optimism that discrimination in access to mental health care will be diminished.

Cultural renewal

Where traditional culture remains strong, insistence on a Western model of health service provision can cause significant problems, including exacerbation of ill-health, and undermine Indigenous strategies for promoting well-being. The devolution of service provision to Indigenous-controlled organisations will best secure respect for and incorporation of Aboriginal values and concepts of health and well-being in the health sector.

Coherent policy base

Ways Forward: National Consultancy Report on Aboriginal and Torres Strait Islander Mental Health provides a comprehensive and coherent policy base from which to develop programs and deliver adequate, appropriate and effective services. Governments are still in the process of developing Indigenous mental policies or planning for implementation.

Adequate resources

Services to deal with loss, grief and depression are virtually non-existent. Continuing emotional distress as a result of the removal policies receives insufficient attention.

Recommendations

Research

In recognition of the need for basic information on the needs arising from forcible removal, the Inquiry recommends that the Commonwealth Government, in consultation with the national Aboriginal and Torres Strait Islander Health Council and the National Aboriginal Community Controlled Health Organisation, devise a program of research and consultations to identify the range and extent of the emotional and well-being effects of forcible removal policies. [Recommendation 32]

Indigenous well-being model

In relation to Indigenous well-being models, the Inquiry recommends that:

* services and programs for survivors of forcible removal policies emphasise local Indigenous healing and well-being perspectives;

* government funding for Indigenous preventive and primary health services be directed exclusively to Indigenous community-based services; and

* government-run mental health services work towards delivering specialist services in partnership with Indigenous community-based services and employ Indigenous mental health workers. [Recommendation 33]

Training

In relation to the training of health professionals and mental heath workers, the Inquiry recommends that:

* government health services and health and related training institutions develop, in consultation with Indigenous health and family tracing and reunion services, in-service training for all employees and undergraduate training for all students in the history and effects of forcible removal; and

* State and Territory Governments institute Indigenous mental health worker training through Indigenous-run programs. [Recommendations 34-5]

Parenting skills

The Inquiry recommends adequate funding of relevant Indigenous organisations in each region to establish parenting and family well-being programs. [Recommendation 36] These programs are likely to be located in existing Aboriginal and Torres Strait Islander medical and health centres and/or child care agencies.

Prisoner services

The Inquiry also recommends the provision of adequate funding to Indigenous health and medical services and family well-being programs to establish preventive mental health programs in all prisons and detention centres. [Recommendation 37]

Responses of churches and other non-government agencies

The Inquiry found that the churches share some responsibility for forcible removals because of their involvement in providing accommodation, education, training and work placements for the children. The experience of children cared for in church homes and missions varied considerably. Many church organisations provided information, submissions and evidence to the Inquiry. Many statements were made expressing understanding of the hurt and damage suffered by those affected by forcible removal, acceptance of a share of responsibility and regret. The Inquiry considered that the churches can provide practical assistance to those suffering the effects of forcible removal.

Access to personal and family records

Because of the role played by churches, missions and other non-government agencies in the placement and care of Indigenous children and families, many records were created which may now be essential to re-establish family and/or community links. In this connection, the Inquiry recommends that:

* at the request of an Indigenous language, culture and history centre, churches and other non-government agencies transfer historical and cultural information they hold relating to the community or communities represented by the centre;

* they identify all records relating to Indigenous families and children and arrange for their preservation, indexing and access in secure storage facilities, preferably the National Library, the Institute of Aboriginal and Torres Strait Islander Studies or a State Library;

* they provide detailed information about their records to relevant Indigenous Family Information Services; and

* they implement the national minimum access standards (Recommendation 25) and apply the relevant State, Territory or Commonwealth common access guidelines (Recommendation 23). [Recommendations 38a-c, 39]

Counselling services

The Inquiry found that counselling and related support services for survivors of forcible removal are best provided by Indigenous agencies. However, agencies funded for all Australians have an obligation to ensure the appropriateness and accessibility of their services for all, including Indigenous clients. This is particularly the case where there are no Indigenous agencies or where existing Indigenous agencies are poorly resourced and unable to deal with every need in the Indigenous community. In this connection, the Inquiry recommends that:

* churches and other non-government welfare agencies that provide counselling and support services to those affected by forcible removal review those services, in consultation with Indigenous communities and organisations, to ensure that they are culturally appropriate; and

* churches and other non-government agencies which played a role in the placement and care of Indigenous children forcibly removed provide all possible support to Indigenous organisations delivering counselling and support services to those affected by forcible removal. [Recommendations 40a-b]

Restitution of land

The Inquiry considered that the restitution of land used by the churches and other non-government agencies for the accommodation of children forcibly removed would express their recognition that the policies and practices of forcible removal were wrong. It recommends that they review their land holdings to identify land acquired or granted for the purpose of accommodating Indigenous children forcibly removed from their families and return that land to the appropriate Indigenous community. [Recommendation 41]

6. Contemporary separations

The Inquiry also analysed legislation, policy and practices in the areas of juvenile justice, child welfare, adoption, and family law. It found that Indigenous children and young people continue to be removed from their families through laws, policies and practices in these areas, and are at much greater risk of contemporary separation than non-Indigenous children.

Child welfare -- care and protection

Indigenous children remain very significantly over-represented "in care" and in contact with welfare authorities. This over-representation increases as the intervention becomes more coercive, with the greatest over-representation in out-of-home care. A high percentage of Indigenous children in long-term foster care live with non-Indigenous parents. Indigenous children with disabilities are over-represented in all welfare statistics, particularly in non-Indigenous substitute care. The Inquiry found that Indigenous children are much more likely than non-Indigenous children to be "notified" to a welfare department on the ground of abuse or neglect and that Indigenous children are more likely than others to be removed on the ground of "neglect" than on the ground of "abuse". The underlying causes of over-representation of Indigenous children in welfare systems include the inter-generational effects of previous separations from family and culture, poor socio-economic status and systemic racism in the broader society.

Welfare efforts

The Inquiry found that the historical and socio-economic context of Indigenous families and children and the nature of welfare practice leave Indigenous children at greater risk of removal from their families and communities. Indigenous children are subject to care and protection at six times the rate of non-Indigenous children. Decision making about Indigenous children's well being falls well short of accepted notions of self-determination and of government claims of "partnership" and collaboration.

Aboriginal Child Placement Principle

Acceptance of the Aboriginal Child Placement Principle (ACPP) has been the single most significant change affecting welfare practice since the 1970s. However, it is still not legislatively recognised in Tasmania, Western Australia, Queensland and the Australian Capital Territory, and its effectiveness is impaired by inadequate consultation with Aboriginal and Islander child care agencies (AICCAs), inadequate funding of these agencies and inappropriate, ethnocentric foster carer assessment.

Failure of the welfare approach

The ACPP, while significant, operates within a broader context of government activities which have failed to accommodate Indigenous perspectives and needs. Definitions of welfare, well-being, need and neglect are an issue; for example, definitions of neglect are more subjective and culturally specific than definitions of abuse. The Inquiry found that social inequality is the most direct cause of neglect, the primary reason for welfare intervention in Indigenous communities. The Inquiry considered that adequate family assistance could make major reductions in welfare interventions in Indigenous families. Evidence to the Inquiry confirmed that Indigenous families see welfare departments as unable to assist them and their families, and perceive any contact as threatening the removal of their children.

All State and Territory governments have recognised the importance of self-determination in the provision of welfare services to Indigenous peoples. However, if welfare services are to address Indigenous children's needs, they need to be completely overhauled. Ultimately, child welfare appropriate to each community and region should be negotiated with those whose children, families and communities are subjects of the welfare system.

Adoption

The Inquiry found that the best results in adoptions for Indigenous children are achieved in those jurisdictions in which the ACPP has legislative status and Indigenous child care agencies are most closely involved in placement decisions. The Inquiry noted that Aboriginal peoples' attitudes to adoption differ significantly from those of Torres Strait Islanders. Aboriginal custom, traditional values and Law oppose adoption. In the Torres Strait Islands, customary adoption is a social arrangement which entrenches reciprocal obligations and contributes to social stability. Customary adoptions are not currently recognised in Australian law. The Inquiry considered that several concerns would need to be addressed before a recommendation could be made for legal recognition of customary adoption.

The Inquiry found that adoption of Indigenous children has been reduced to nil or almost nil in jurisdictions where the ACPP is entrenched in legislation and where welfare departments and adoption agencies are required to work with Aboriginal and Islander child care agencies when placing Indigenous children. Where the ACPP is only recognised in departmental policy, adoption of Indigenous children continues but in small numbers compared to past decades.

Family law

Section 68F(2)(f) of the Family Law Act 1975 (Cth) provides guidance on the matters to be taken into account by the court in determining what is in a child's best interests. These matters include a need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders. The Inquiry found that the full significance of this provision is not clear and will need to be spelled out by the court.

The Inquiry found that, by privileging parents and relegating the rights of other family members, the Australian family law system conflicts with Aboriginal child-rearing values. Similarly, by privileging stability of residence, the system entrenches a bias against the Aboriginal practice of mobility of children among responsible adults and their households. The Inquiry noted that the Family Court has effectively directed that a separate representative be appointed in every case involving an Indigenous child to present to the court evidence relating to the relationship between the child's Indigenous heritage and his or her future well-being and interests (following the 1995 case In the Marriage of B and R). The Inquiry also found that judges require continuing education on the history and effects of forcible removal, as well as Indigenous cultural values, especially those relating to child-rearing. All officers of the Family Court involved in parenting disputes, including counsellors and Registrars, require cross-cultural training to ensure accessibility for Indigenous people and to avoid discrimination.

Juvenile justice

The removal of Indigenous children and young people can occur by way of juvenile justice intervention, either through the use of police custody or through incarceration in a juvenile detention centre. Indigenous young people are not only over-represented in the juvenile justice system, they are most over-represented at the most punitive end of the system, in detention centres. They are detained at 21 times the rate of non-Indigenous children.

The processes of juvenile justice separations

Police custody

The Inquiry found that over-representation of Indigenous young people in police custody is a significant problem. Some 40 per cent of all young people (aged 10-17 years) held in police custody in August 1995 were Indigenous. Indigenous children and young people comprise 2.6 per cent of the national youth population.

Juvenile detention centres

Data provided to the Inquiry indicated an upward trend in the incarceration of Indigenous young people during the late 1980s and early 1990s. On 30 June 1996, 36 per cent of youth in juvenile correctional institutions were Indigenous. There are significant jurisdictional variations in the rate of over-representation. The sex of a young person is also a significant factor. Most separations of Indigenous young people that arise as a result of criminalisation and incarceration involve young Indigenous males. However, the over-representation in detention of Indigenous young girls is higher than of boys, with Indigenous girls comprising 46 per cent of all girls incarcerated and Indigenous boys 36 per cent of all boys. The Inquiry also found that Indigenous children enter the juvenile justice system at an earlier age and stay in the system longer.

Juvenile justice legislation

Police have wide discretion as to how young persons are dealt with by the authorities. The Inquiry found the adverse use of their discretion to be a critical factor in drawing Indigenous children further into the juvenile justice system. There is inadequate consultation and negotiation with Aboriginal organisations when legislative changes are proposed (such as the NSW Children (Parental Responsibility) Act 1994). Inadequate funding for Indigenous community-based alternatives to the formal juvenile justice system was also found to be a national problem. The lack of alternatives at the community level undermines self-determination and results in Indigenous young people ending up in institutions.

Causes of separation

Policing

Submissions to the Inquiry raised many issues concerning police responses to Indigenous young people. Most Indigenous young people do not believe that Aboriginal/police relations are improving.

Policing public order

Arrests for public order offences continue to constitute a significant reason for the involvement of young people in the juvenile justice system.

Police discretions

Evidence confirms that Indigenous young people do not receive the benefits of cautioning and other forms of diversion to the same extent as non-Indigenous young people.

Arrest and charges

Indigenous young people are less likely to receive less intrusive interventions such as police cautions or referrals to diversionary options. They are more likely to be proceeded against by way of arrest than by use of a summons or court attendance notice.

Police custody and bail

Widespread and disproportionate detention of Indigenous children and young people in police custody remains a significant problem throughout Australia.

Diversionary schemes

Available evidence strongly suggests that diversionary schemes based on the family group conferencing model as currently administered are likely to lead to harsher outcomes for offending Indigenous young people. Successful Indigenous diversionary schemes have developed from community involvement in finding solutions to specific problems.

Sentencing

Indigenous young people generally receive harsher sentences in the Children's Court than non-Indigenous young people, particularly at the point of being sentenced to detention.

Repeat offenders

Recent changes in the form of repeat offenders sentencing laws in the Northern Territory, Western Australia and Queensland are likely to increase the levels of incarceration of Indigenous young people.

Non-custodial sentencing options

There is a failure to use non-custodial sentencing options as often as possible.

Deaths in custody

The Inquiry noted that fifteen Indigenous young people died in custody in the eight years between May 1989 (when the Royal Commission into Aboriginal Deaths in Custody concluded its investigations) and May 1996. Five deaths were in institutional settings and ten a result of police interventions.

Underlying issues

Despite programs designed to reduce the extent of contemporary removals, the over-representation of Indigenous children among children living separately from their families and communities, temporarily or permanently, remains high. There are broad social, economic and cultural causes for continuing removals. To understand expressions of destructive behaviour on the part of some Indigenous young people, it is necessary to consider the socio-economic conditions in which Indigenous people live.

Family and cultural relations

Cultural differences, particularly different family structures, can lead to adverse decisions by juvenile justice, welfare and other agencies, particularly where cultural difference is not understood or does not inform policy development and implementation. Ethnocentric assumptions about family structure, individual and family dynamics and cultural values lead not only to unnecessary interventions but also to inappropriate arrangements for children in substitute care.

Domestic violence

The failure to deal with domestic violence affects the children and young people of families where violence is a problem. Domestic violence is a frequent feature in welfare department interventions into Indigenous families.

Alcohol and substance abuse

Domestic violence often occurs in conjunction with alcohol and other substance abuse. Alcohol is a factor in a very high number of welfare and criminal justice interventions in Indigenous families.

Health

Hearing loss, linked to poverty, is endemic in Indigenous children. Attention has been drawn to connections between hearing loss, behavioural problems and intervention by juvenile justice or welfare agencies. Welfare interventions in Indigenous families are frequently related to poor nutrition.

Housing

Unsatisfactory housing can also have a direct link with the removal of Indigenous children. Indigenous families are twenty times more likely to be homeless than non-Indigenous families.

Employment and income

In 1994, the unemployment rate of Indigenous young people aged between 15 and 19 was 50%. The level of unemployment among Indigenous young people is an important indicator of the likelihood of coming into contact with juvenile justice agencies. Unemployment among those who have been arrested is double the rate of those who have not been arrested.

Education

Past educational policies and practices which excluded or marginalised Indigenous children have consequences for low secondary school retention rates and low participation rates in tertiary education. Racism in education and poor educational results are directly linked to juvenile justice and welfare intervention.

Intergenerational effects and later removal

The effects of separation on past generations can be passed on and contribute to further separation of Indigenous children from their parents. Factors such as loss of opportunities to acquire cultural knowledge, lack of good models of relationships and parenting and unresolved psychological trauma have affected children and increased their likelihood of institutionalisation.

Recommendation

Social justice

To address the social and economic disadvantages that underlie the contemporary removal of Indigenous children and young people, the Inquiry recommends that the Council of Australian Governments

* in partnership with ATSIC, the Council for Aboriginal Reconciliation, the Aboriginal and Torres Strait Islander Social Justice Commissioner and Indigenous community organisations, develop and implement a social justice package for Indigenous families and their children; and

* pursue implementation of the recommendations of the RCADIC which address underlying issues of social disadvantage. [Recommendation 42]

A new framework

State and Territory legislation, policy and practice in the areas of child welfare, care and protection, adoption and juvenile justice fail to comply with the evaluation criteria established by the Inquiry. They do not comply with the right to self-determination as applied to Indigenous peoples. They are often affected by racial discrimination, in particular by indirect discrimination. There is a failure to ensure the conditions for the exercise of the right to enjoyment of cultural life and for cultural renewal.

Self-determination

Self-determination and responsibility for children

Self-determination can take many forms. It can involve a regional agreement and/or the establishment of a regional authority. It can take the form of a community constitution. It can cover a range of areas, including matters dealing with children and juveniles. The Inquiry noted that some communities may see the complete or partial transfer of jurisdiction for the administration of juvenile justice and child welfare as central to the exercise of self-government. Other communities may wish to work within existing structures, modified to provide legislative recognition of the right of Indigenous organisations to have the key role in decision making processes. The level of responsibility for children which Indigenous communities wish to take must be negotiated by the communities themselves. There are no insurmountable constitutional, legal or administrative barriers to transferring or sharing jurisdiction. Practical examples of shared jurisdiction in maintaining law and order already exist.

Funding

The Inquiry considered that shared financial responsibility between State, Territory and Commonwealth governments is required for the implementation of its recommendations. The provision of funding must take cognisance of the principle of self-determination. Wherever possible, Indigenous organisations should be the decision makers or, at a minimum, have primary contribution into funding decisions.

Recommendation

National framework legislation

The Inquiry recommends that COAG negotiate with ATSIC, the Aboriginal and Torres Strait Islander Social Justice Comm-issioner, the Secretariat of National Aboriginal and Islander Child Care (SNAICC) and the National Aboriginal and Islander Legal Services Secretariat (NAILSS) national framework legislation for negotiations at community and regional levels for the implementation of self-determination in relation to the well-being of Indigenous children and young people. [Recommendation 43a]

The national framework legislation should authorise negotiations with Indigenous communities on, among others, any of the following matters:

* the transfer of legal jurisdiction in relation to children's welfare, care and protection, adoption and/or juvenile justice to an Indigenous community, region or representative organisation;

* the transfer of police, judicial and/or departmental functions;

* the sharing of jurisdiction. [Recommendation 43c]

National minimum standards

In the final part of its Report, the Inquiry recommends negotiations for nationally binding standards of treatment for Indigenous children and young people. The national standards legislation should be applicable to all Indigenous children, whether subject to Indigenous community jurisdiction, State or Territory jurisdiction or shared jurisdiction.

Recommendations

National standards legislation

The Inquiry recommends that COAG negotiate with ATSIC, the Aboriginal and Torres Strait Islander Social Justice Commissioner, SNAICC and NAILSS national legislation, binding on all levels of government and on Indigenous communities, regions or representative organisations which take legal jurisdiction for Indigenous children, establishing minimum standards of treatment for all Indigenous children. [Recommendation 44]

The national standards legislation should include national minimum standards for children under State or Territory jurisdiction or shared jurisdiction. [Recommendation 45a]

An objective of national minimum standards is the elimination of removals of Indigenous children from their families and communities consistently, in particular, with the Convention on the Rights of the Child and the right of self-determination.

Standard 1: Best interests of the child -- factors

The initial presumption should be that the best interest of the child is to remain within his or her Indigenous family, community and culture. [Recommendation 46a]

In determining the best interests of an Indigenous child, the decision-maker must also consider the need of the child to maintain contact with his or her Indigenous family, community and culture; the significance of the child's Indigenous heritage for his or her well-being; the view of the child and his or her family; the advice of the appropriate accredited Indigenous organisation. [Recommendation 46b]

Standard 2: When best interests are paramount

In any judicial or administrative decision affecting the care and protection, adoption or residence of an Indigenous child, the best interest of the child is the paramount consideration. [Recommendation 47]

Standard 3: When other factors apply

Removal of Indigenous children by the juvenile justice system, including for the purposes of arrest, remand in custody or sentence, is to be a last resort, unless the danger to the community as a whole outweighs the desirability of retaining the child with family and community. [Recommendation 48]

Standard 4: Involvement of accredited Indigenous organisations

In care and protection matters, the appropriate accredited Indigenous organisation be involved in all decision making concerning Indigenous children. In juvenile justice matters, that organisation be involved in all decision making, including decisions about pre-trial diversion, bail admission and conditions. [Recommendation 49]

Standard 5: Judicial decision making

In any matter concerning a child, the court must ascertain whether the child is an Indigenous child and if so ensure that the child is separately represented. [Recommendation 50]

Standard 6: Indigenous Child Placement Principle

When an Indigenous child must be removed from his or her family, including for the purpose of adoption, the placement of the child is to be made in accordance with the Indigenous Child Placement Principle. [Recommendations 51a-e]

Standard 7: Adoption a last resort

An order for adoption of an Indigenous child is not to be made unless adoption is in the best interests of the child. [Recommendation 52]

Standard 8: Juvenile justice

There should be specific rules to be followed in every matter involving an Indigenous child or young person. Evidence obtained in breach of any of those rules is inadmissible against the child or young person. The rules for Indigenous juvenile justice should cover warnings, summonses and attendance notices, notification, consultation with accredited Indigenous organisations, interrogation, cautions, withdrawal of consent, recording, bail, bail review, bail hostels, detention in police cells, non-custodial sentences, sentencing factors and custodial sentences. [Recommendation 53]

Family law

The final recommendation of the Inquiry proposes amendments to the Family Law Act 1975 (Cth), including the insertion of a new paragraph to recognise the right of children of Indigenous origins "in community with other members of their group, to enjoy their own culture, profess and practise their own religion, and use their own language". [Recommendation 54]

7. Abbreviations

ACPP Aboriginal Child Placement Principle

AICCAs Aboriginal and Islander Child Care Agencies

ATSIC Aboriginal and Torres Strait Islander Commission

COAG Council of Australian Governments

HREOC Human Rights and Equal Opportunity Commission

NAILSS National Aboriginal and Islander Legal Services Secretariat

SNAICC Secretariat of National Aboriginal and Islander Child Care

RCADIC Royal Commission into Aboriginal Deaths in Custody

* See also Commentary "The Removal of Indigenous Children from their families: The National Inquiry and what came before" by Tony Buti in the next issue (1997) 2 (3) AILR.