International Review of Indigenous issues in 2000: Australia
6. Indigenous children as victims of racism
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.
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. 
The Human Rights Committee, in July 2000, also expressed concern at the ongoing impact of the policy of removing children from their families.
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.
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).