D'Souza, Nigel --- "Authors of Our Own History: The Challenge for all Australians" [1998] UNSWLawJl 16; (1998) 21(1) UNSW Law Journal 204
FORUM
The Stolen Generation: From Removal To Reconciliation
Authors Of Our Own History:
The Challenge for All Australians Presented by the
Final Report of The Human Rights Commission National Inquiry into the Separation
of Aboriginal and Torres Strait Islander Children from their Families
NIGEL D’SOUZA
[*]
The National Inquiry into the Separation of Aboriginal
and Torres Strait Islander Children from their Families closes a chapter in
the
history of Australia. Some may say was that it told of the ending of innocence,
and others, the exposure of the biggest lie.
In that chapter we also read about
the falsehood of terra nullius which itself was wiped away by the High Court in
Mabo.[1] In much the same way
that the Mabo decision on Native Title meant that governments could no
longer delay a resolution (to the advantage or disadvantage of Aboriginal
people) of the conflict over land rights between Aboriginal people and the
colonisers; governments can no longer pretend that the
removal of Aboriginal
children did not occur. The closing of one chapter signals the opening of
another - one that we, as Australian
citizens, have the power to write and upon
which we shall be judged by our descendants and the world community.
The
final report of the National Inquiry is the culmination of many years of
lobbying and campaigning on the part of many Aboriginal
people and their
representative organisations. The Secretariat of the National Aboriginal and
Islander Child Care (SNAICC) resolved
at its Brisbane conference in 1990 to
demand this Inquiry. Indeed, SNAICC called for a Human Rights Commission
(HREOC) Inquiry because
it was evident that, three years into the Royal
Commission into Aboriginal Deaths in Custody, a Royal Commission was not a
suitable
form of inquiry. It was far too formal and did not permit significant
participation by Aboriginal people. Furthermore, the experience
of the Human
Rights Commission Inquiry into Homeless Children suggested that such an inquiry
would be preferable, and with a Federal
Human Rights Commissioner like Brian
Burdekin, the Commission could act as a powerful monitoring body.
It took
another five years before the Federal Labor Government issued Terms of Reference
to HREOC. In 1991, with the help of Archie
Roach and Ruby Hunter, we publicly
launched a demand for the Inquiry on National Aboriginal and Islander
Children’s Day, 4th
August. The media release, issued that day,
said:
This issue is a ‘blank spot’ in the history of Australia. The
damage and trauma these policies caused are felt everyday
by Aboriginal people.
They internalise their grief, guilt and confusion, inflicting further pain on
themselves and others around
them. It is about time the Australian Government
openly accepted responsibility for their actions and compensate those
affected.
Mr Butler [the Chairman of SNAICC] called for a Human Rights Commission
Enquiry into the removal of Aboriginal children.
We want an enquiry to determine how many of our children were taken away
and how this occurred. We want the enquiry to hear from
Aboriginal people about
how they have been affected and what must be done to compensate.
We also want to consider whether these policies fall within the definition
of genocide in Article II(e) of the United Nations Convention
on the Prevention
and Punishment of the Crime of Genocide.
SNAICC reiterated this demand for a
national inquiry on National Aboriginal and Islander Children’s Day in
1992, and on many
other occasions thereafter. However, it must be said that
there were other significant voices. Link-Up (NSW) and the Aboriginal
Legal
Service of Western Australia to name just two. Others prepared litigation,
notably the people of the homes in Darwin who organised
the landmark
‘going home’ conference in 1994, which sent out a powerful message
to the Government that this was not an
issue that would disappear; on the
contrary, it just kept gaining momentum.
It is important to record the
history before the Inquiry as well as endorsing the findings of that Inquiry.
The opposition to the
removal of Aboriginal children goes back a long way, to
the moment the practise began. The campaign for the Inquiry and for the
just
resolution of the genocidal policies of social engineering upon which that
Inquiry was based will depend on the determination
of Aboriginal people whose
families still live with this history. However, because this issue has become a
matter of national importance,
there is every danger that once again the people
who raised the concern and about whom this Inquiry was undertaken, will be
disempowered
by the very process they set in motion.
Already we know that the
State and Territory Governments are working on responses which will be minimal.
The recommendations about
child welfare and juvenile justice in particular,
especially those calling for national standards in relation to the principle of
self-determination and the right of Aboriginal people to control child welfare
and juvenile justice systems will be discarded. At
the Commonwealth level,
recommendations about compensation have been entirely left out of the process
that will result in the Commonwealth
Government’s response to the
recommendations. Given the Howard Government’s approach to federalism,
indicated by their
ten point plan approach to the Wik High Court
decision,[2] the recommendations about
national standards legislation will not likely be pursued by the
Attorney-General.
Meanwhile the problems that prompted the establishment of
the Inquiry continue unabated, particularly the inclusion of the fourth
term of
reference (d):
... examine current laws, practices and policies with respect to the
placement and care of Aboriginal and Torres Strait Islander
children and advise
on any changes required taking into account the principle of self-determination
by Aboriginal and Torres Strait
Islander
Peoples.[3]
There is over
representation of Aboriginal and Torres Strait Islander children in custody and
care, and over representation of Aboriginal
and Torres Strait Islander children
in the juvenile justice and child welfare system. On the other hand, the
provision of services
to stem this problem is still predominantly in government
hands. Child welfare services provided by Aboriginal communities have
remained
static in number and have made only marginal gains in terms of decision making
power. Self-determination is still a long
way off and on the basis of the kinds
of government responses to the National Inquiry Report that are being prepared
by State, Territory
and the Federal Governments, self-determination will not be
a reality for some time to come.
This is a pessimistic scenario. However,
governments aside, the Australian public has overwhelmingly taken this issue to
heart.
The churches are responding positively and numerous other non-government
agencies are examining their roles in the framework of the
recommendations.
Sadly, the role of HREOC in monitoring the implementation of
the Inquiry recommendations will be severely curtailed given government
funding
cutbacks. Its ability to disseminate information to Aboriginal people
throughout the country has also been reduced. Informing
Aboriginal and Torres
Strait Islander people about the outcomes of the National Inquiry must be a
priority at the present time.
The problems of HREOC are compounded by the
fact that most Aboriginal organisations that had been involved in bringing about
the Inquiry,
like SNAICC, Link-Up (NSW), the Stolen Generation Litigation Unit
(NT) and the Aboriginal Legal Service of Western Australia (ALSWA)
have not been
consulted on any matters related to the National Inquiry by the Federal
Government.
One wonders also whether the Howard Government will provide
funding to peak national Aboriginal organisations to monitor the implementation
of the Inquiry as recommended.
On a positive note, the establishment of a
national Stolen Generations Group involving all organisations who have been
active in the
Inquiry is a major development. This in itself must be regarded
as a reassertion of the principle of the right of self-determination
by
Aboriginal people and their organisations over a process that will have great
bearing on their future.
Since the release of the National Inquiry Report
there has been an increase in those seeking support for difficulties and trauma
associated
with their experiences of removal which are not restricted to those
removed alone. Siblings, parents and other family members have
all been
affected. Neither is the experience of removal restricted to Aboriginal people
living in urban areas alone, highlighting
yet again that the common experience
of being Aboriginal can never be placed on some sort of hierarchy going from
‘traditional’
to ‘urban’.
The National Inquiry
recommendations are a package that addresses important aspects of Aboriginal and
Torres Strait Islander family
life. They are a response to a social and human
problem with deep roots in history that are still having an impact today, with
yet
another generation of Aboriginal children being removed.
Australian
society’s response to such an event, justifiably called genocidal, will
itself be quite traumatic, though nowhere
near as painful an experience as that
felt by those directly affected. It is time for the new chapter to be opened
with acknowledgment
and expiation and the way cleared for a more open and honest
relationship between Aboriginal and Torres Strait Islander people and
other
Australians.
