Author:	Rosalind Kidd BA, PhD Consultant
Subjects:	Aborigines - The Stolen Generation (Other articles) Aborigines, Australian -- Removal (Other articles) Children -- Institutional care -- Australia (Other articles)
Issue:	Volume 11, Number 2 (June 2004)
Category:	Current Developments

Contents

• Notes

1. Antonio Buti’s book, SEPARATED: Aboriginal Childhood Separations and Guardianship Law,[1] takes a fresh look at Aboriginal child removal policies and practices in Western Australia (primarily) through the prism of guardianship law. This allows an original and valuable exposition both of the tenets and developments of this area of jurisprudence, and of the harsh realities of the removal mentality. The detailed rendering of legislation, policy debates and official Reports relating to Aboriginal child separation practices is sharply evaluated in terms of the rights and responsibilities adhering to government’s appropriated guardianship and fiduciary duty.

2. The timeliness of Buti’s text is aptly demonstrated by its book-ending between Paul Keating’s 1993 affirmation ‘we took the children’ and John Howard’s obdurate refusal to apologise for any aspects of the removal regime. The conflicted responses to the Bringing Them Home Report, which embedded Indigenous experiences in a context of official rights to intervene but was silent on legal accountability to removed children, indicates the value of a text such as this for wide readership.

3. Buti develops a valuable summary of Aboriginal policy and practice relating to child removals in Western Australia in detail that would be unknown other than to specialist historians. The contextualising of this development with mainstream, interstate and occasionally international child removal practices anchors the thesis in broader politico/legal parameters. The fluidity of historical expansions and contractions of definitions of Aboriginal children deemed subject to legal purview in terms of potential separation from parents, and the ease with which authorities activated a range of official and unofficial removal powers, underlines the extreme vulnerability of Aboriginal families to legal fracture. This is a powerful antidote to arguments still maintained, at the highest levels of government, that such separations were initiated only to rescue children from neglect.

4. In terms of historical evidence, this text is admirable in its range of official sources – Annual Reports, parliamentary debates, reports of internal investigators, the Mosely Royal Commission, and some of the debates during the 1937 Welfare Conference. It would have benefited from a greater input of evidence from departmental and mission correspondence that would provide a useful countervailing qualification to some of the exuberant official rhetoric. Such sources would also have provided a wealth of ‘grass-roots’ evidence of the impact of separation practices to add to the personal statements collected by the Aboriginal Legal Service of Western Australia.

5. As a person with limited legal expertise but with a keen interest in the matter of the fiduciary duty of governments towards those they declared wards of state during the twentieth century, I thought the legal arguments were particularly insightful. Buti’s central thesis – that the failure of Aboriginal statutes to comprehensively define guardianship duties means that common law duties would prevail – leads him to offer powerful points of contention to challenge separation practices. Comparison with duties adhering to children separated under mainstream statutes underlines, in his argument, the potential justiciability of failures to secure the best interests of separated Aboriginal children. Such failures included inferior education, deprivation of family and heritage, and, intriguingly, failure to educate children in the creed of their fathers. Buti finds no statutory provision to abolish these common law duties as regards Aboriginal children. Indeed, on this reading, it is difficult to imagine that governments can successfully combat charges that, through inadequate funding and negligent supervision of child removal schemes, they have comprehensively failed to secure the paramount ‘best interests of the child’ principle.

6. Exploration of the legal parameters and subtle differences between guardianship and fiduciary duty give new understanding to cases already launched (and lost) regarding the legal responsibility of governments or their agents for the impact of separation practices on the children (Cubillo and Gunner, Kruger, Williams). Buti’s analysis allows him to propose that attention to the guardianship aspects of fiduciary duty might afford more productive avenues for legal redress. Many of the points Buti raises here are pertinent to understanding why some States (Queensland, New South Wales) are currently facing litigation over Stolen Wages and offering multi-million dollar compensation packages to ‘resolve’ the systemic pauperism of past policies and practices.

7. This is a timely and important book that situates a major contemporary issue (the removal of Aboriginal children from their parents) in an original legal context that will readily reward lay and specialist readers alike.

Notes

[1] Institute of Criminology, University of Sydney and Federation Press, forthcoming.