International Review of Indigenous issues in 2000: Australia -- 6. Indigenous children as victims of racism

International Review of Indigenous issues in 2000: Australia

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6. Indigenous children as victims
of racism

Forced removal of children

In the period 1910
to 1970 between 1 in 3 and 1 in 10 Indigenous children were forcibly removed
from their families. The effects of such removal were, for most victims,
negative, multiple and profoundly disabling. The policies and practices
underlying the removal of Aboriginal children from their families were
discriminatory and genocidal in intent. Further, the treatment of many
removed children after their removal involved breaches of fiduciary duty
and duty of care, as well as criminal actions. The profound problems suffered
by Indigenous people and communities as a result of removal policies are
ongoing.

In 1995-1996 the
Human Rights and Equal Opportunity Commission conducted an inquiry into
the forcible removal of Aboriginal and Torres Strait Islander Children
from their families. The findings of the inquiry were reported in The
National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children and Their Families, Bringing Them Home [Bringing Them Home]
in May 1997.

Bringing Them Home
made a number of recommendations, including:

• that the Commonwealth
  government provide reparations for the injury suffered by Indigenous
  people affected by removal policies. The report adopted the van Boven
  principles for reparation for gross violations of human rights as the
  basis of recommendations for addressing the harm caused;
  
• that the Commonwealth
  Government legislate to implement the 1949 Convention on the Prevention
  and Punishment of the Crime of Genocide with full domestic effect
  as part of official recognition that removal policies of the past are
  over and will not be repeated.
  
• that self-determination
  for Indigenous children and young people be implemented through national
  framework legislation for juvenile justice and care and protection systems.
  
• The report also
  considered contemporary forms of separation, and recommended the introduction
  of national standards and framework legislation incorporating international
  human rights standards for the treatment of Indigenous children.

The government responded
to the report in 1997 with a $43 million package that included measures
taken to facilitate family reunion and to improve counselling and family
support services for the victims.

However the government
has denied that the forcible removal of children was a gross violation
of human rights or was genocidal. Instead the Government has emphasised
the idea that the removal of Indigenous children was often perpetrated
by people of 'good will' and that it was consistent with the 'standards
of the day'. The Government has criticised the Bringing Them Home
report on the basis that the number of children forcibly removed was significantly
less than Bringing Them Home suggested, saying that there is no
'stolen generation' and that the methodology of the report was flawed.
The Government has rejected recommendations for financial compensation
and other forms of reparation and has stated that there is no basis for
making reparations as the van Boven principles are not binding in international.
The government also rejected recommendations for national framework legislation
for juvenile justice and care and protection systems.

The government's
response to Bringing Them Home is racist and based on flawed reasoning.
Contrary to the Government's stated position:

• Several international
  instruments require governments to redress the effects of past discrimination.
  The guarantee of non-discrimination and equality before the law under
  Articles 2 and 5 of the ICERD creates and obligation to redress past
  discrimination and to provide effective remedies through competent authorities
  for any person whose rights or freedoms have been violated. The Government's
  refusal to acknowledge and provide redress for past discrimination raises
  further issues of compliance with Australia's obligations under the
  ICESCR, in particular in respect of Article 1, self-determination, and
  Article 2, non-discrimination. The van Boven principles, on which Bringing
  Them Home based its reparations recommendations, are a synthesis
  of international law and practice, which incorporate obligations across
  a range of such international instruments;
  
• Forcible removal
  policies may constitute 'genocide': The definition of genocide in the
  Genocide Convention extends to situations where there are mixed
  motives, some of which may be perceived as beneficial. Furthermore,
  genocide may also describe the destruction of a people or culture where
  it is achieved through means other than physical killing and where it
  does not cause the complete destruction of the group;

A failure to address
the problems caused by forcible removals and to implement the recommendations
of Bringing Them Home impacts upon the present and future generations
of Indigenous people.

International Commentary

In its March 2000
decision, the CERD Committee expressed concern regarding the Government's
failure to take responsibility for past government actions, particularly
in relation to forcible removal policies:

13. The Committee
notes the conclusions of the 'National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from their Families'
and acknowledges the measures taken to facilitate family reunion and
to improve counselling and family support services for the victims.
Concern is expressed that the Commonwealth Government does not support
a formal national apology and that it considers inappropriate the provision
of monetary compensation for those forcibly and unjustifiably separated
from their families, on the grounds that such practices were sanctioned
by law at the time and were intended to 'assist the people whom they
affected'. The Committee recommends that the State party consider the
need to address appropriately the extraordinary harm inflicted by these
racially discriminatory practices.

In response, the
government referred to the Motion of Reconciliation that was resolved
upon by both houses of federal Parliament in August 1999. However, the
Motion of Reconciliation does not contain the necessary elements of an
apology identified in recommendation 5a of Bringing them home, and is
'generic' in the sense that it does not specifically mention forcible
removal policies at all. [126]

The Human Rights
Committee, in July 2000, also expressed concern at the ongoing impact
of the policy of removing children from their families.

While noting the
efforts by the State party to address the tragedies resulting from the
previous policy of removing indigenous children from their families,
the Committee remains concerned about the continuing effects of this
policy.



The Committee recommends that the State party intensify these efforts
so that the victims themselves and their families will consider that
they have been afforded a proper remedy (arts 2, 17 and 24).

126 Aboriginal
and Torres Strait Islander Social Justice Commissioner, Submission to the
stolen generation inquiry, HREOC Sydney 2000, p14. The submission is available
at www.hreoc.gov.au.
Last updated 7 October 2003.