Bringing them Home - Chapter 16
Human Rights and Equal Opportunity Commission Report
Bringing them Home
Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families
Part 5 Services for Those Affected
- Chapter 15 Evaluating Government Responses
- Chapter 16 Access to Personal and Family Records
- Chapter 17 Funding for Reunion Assistance
- Chapter 18 Mental Health Services
- Chapter 19 Responses of Churches and Other Non-Government Agencies
Chapter 16 Access to Personal and Family Records
- Existing services and procedures
- Search and Tracing Services
- Evaluation government objectives
- Evaluation Inquiry criteria
People need their personal and family records for various reasons.
I wanted to find out my right age and where all my family came from and who I was related to.
Confidential submission 110, Queensland.
In some cases the records held by non-Aboriginal organisations may be the only source of information that Aboriginal people have about ourselves (Link-Up (NSW) submission 186 page 10).
That's why I wanted the files brought down, so I could actually read it and find out why I was taken away and why these three here [siblings] were taken by [our] auntie ... Why didn't she take the lot of us instead of leaving two there? ... I'd like to get the files there and see why did these ones here go to the auntie and the other ones were fostered.
Confidential evidence 161, Victoria.
Access to knowledge can assist: to reinstate pride in family experiences; enhance a stronger sense of identity; re-establish contacts with family members; reaffirm interaction with broad family networks; revive and maintain Aboriginal traditions ...; understand the historical background of contemporary personal issues ...; re-claim ownership of material pertaining to family life; develop resources ... and enhance research skills (Patrick Dodson quoted in the National Report of the Royal Commission into Aboriginal Deaths in Custody Volume 2 on page 78).
The variety of existing services and procedures for accessing personal and family records - even within a single jurisdiction - creates a complex and somewhat confusing scene.
There is a patchwork of laws governing access to these records. At the federal level the Archives Act 1983, the Freedom of Information Act 1982 and the Privacy Act 1988 are relevant. There may be as many as three pieces of parallel legislation in each State. At the local [government] level access to records may be governed by State legislation or by independent regulations of the local government authority.
There is no legislation governing access to records generated in the non-Government sphere ... As there is no single piece of legislation across Australia governing access to government records there is no consistency in terms of practices or policies ...
The differences in practices and policies between States, which are in part a reflection of different legislative frameworks, make the seeking of access more complicated (Australian Archives submission 602 page 4).
The key problem areas for Indigenous searchers, however, can be readily identified. The descriptive material which follows, therefore, briefly sets out those problems and concerns and describes existing responses, some of which may serve as models for other record agencies. The source of the information in this section is government submissions and evidence to the Inquiry unless otherwise stated.
Destruction of records
Many relevant files have been lost or destroyed. Archives legislation in Western Australia, Queensland, South Australia and Victoria permits or permitted at one time the destruction of some classes of records or culling a percentage of records in a particular class. Between 1973 and 1985, for example, 95% of case files created by the SA Department of Family and Community Services were culled. `The belief at the time was that when any child was successfully fostered or adopted, the files would not be of any further use' (Sonia Smallacombe consultancy report submitted by ATSIC submission 684 page 21).
This lost to them information that may have been contained within these files is both priceless and irreplaceable to the survivors of Indigenous Family Separations and may well be lost to them forever, and therefore their links with their past and to their people and country may never be able to be traced (Aboriginal Legal Rights Movement submission 484 page 46).
In WA adoption and wardship files have been kept but the predecessor to the Department of Family and Community Services began destroying foster care files in 1957. Also in WA the Inquiry was told by a former employee of the Department of Community Services,
I know that in 1984-85 there was an instruction went out to all the welfare offices to burn all the files. There were instructions from Perth head office to all the DCS offices instructing them to destroy files. And a couple of the officers here [East Kimberley] started to burn them. And then they started reading some, and then they informed other people and they saved a few. The Derby office [West Kimberley] was burnt down and that's where our [family's] files were.
Confidential evidence 505.
NSW Archives has identified an unexplained gap in Aborigines Welfare Board files for 1938-1948. Also in NSW adoption records from 1922 to about 1950 were culled. A fire is reported to have destroyed files in Victoria prior to the Second World War. The Inquiry was told that Torres Strait Islands administrators regularly destroyed personal files relating to residents (confidential evidence 631) and that personal files in the Northern Territory were culled back to only 200 records in the 1970s due to concerns their contents would embarrass the government (Sonia Smallacombe consultancy report submitted by ATSIC submission 684 page 7).
Little effort has been made to identify all files which are of relevance to Indigenous people affected by forcible removal. Thus `[a]t this stage, no government is able to provide comprehensive information on which records still exist and may be relevant to people tracing their families' (Families on File page 20).
Old records are fragile. The more people touch them the more they risk disintegration. Preservation is a particular concern but it is costly and resource-intensive. The best preservation method seems to be copying the pages onto microfilm. NSW Archives has begun a project to microfilm the Aborigines Protection Board records it holds.
Location of records
Records relevant to forcibly removed children and their families - records which could assist searchers to discover their true identity, to locate family members and to begin the process of reunion - were usually created by a range of records agencies: protection boards, police, welfare departments, adoption agencies, education departments, hospitals and missions among others. While older government records which have survived are usually physically located in an archive, they are still owned by the department which created them or its successor. Access to most records is by arrangement with the agency which created the record.
This fact, coupled with the fact that the searchers were babies and children in the period for which they seek records - and therefore typically unaware of all the authorities who dealt with them - means that the search task is daunting at best, impossible to contemplate at worst.
There is no `one-stop shop' in which all the personal information held generally by government can be located and accessed.
There is no single, comprehensive, national database or index that provides information about what archives are held by which organisation and where. Consequently, researchers need to ask themselves which governments, organisations, or people, have had involvement in any particular event or activity. Then the researcher needs to approach the organisations (or their archives) to establish whether the records are extant, where they might be, whether they are accessible and so on. This may require a deal of searching, and deduction and can be quite daunting and frustrating (Australian Archives submission 602 page 19). In terms of information about the history of Western Australia, there has not been any coordinated approach or any arrangements that actually could bring together all the information ... there has not been any coordinated approach to actually manage the records in ... a way that will serve the interests of the community (Cedric Wyatt, WA Aboriginal Affairs Department, evidence).
The range and complexity of the records of relevance to separated families make indexing a prerequisite to genuine accessibility. Often there is no index at all to assist a searcher to locate a relevant record in a series. Indexes created at the time were more likely to be meaningful to the officers then than to Indigenous searchers today. The size of a search task in unindexed records is illustrated by the example of one record series which contains some information relevant to Aboriginal people together with some of no interest at all. The correspondence files initiated by the Commonwealth department administering the Northern Territory dating from 1903 to 1938 are filed simply in date order and take up 340 metres of shelving (Australian Archives submission 602 page 20).
The family history cards (1916-48) held by the WA Aboriginal Affairs Department and the NT register of wards (known as the `Stud Book' because it records partial genealogies) are easier to search because they are indexed by family name. Indexes are being developed in South Australia, Queensland, Victoria and NSW. The compilation of indexes must tread carefully between providing sufficient information about the records to ensure their utility on the one hand and, on the other, revealing personal information in breach of privacy principles or even permitting the collation of individual dossiers by linking formerly unrelated records.
In addition to appropriate indexes, the production of finding aids is essential if individuals are to locate their own records. Victorian and Queensland records are made more accessible with finding aids specifically for Indigenous records. The Victorian Archives combined with the Australian Archives to produce a guide titled My Heart is Breaking in 1993.
[It] consists of separate annotated listings of the relevant holdings of both Commonwealth and State archives with some notes on the authorities that created the records. It includes a name index to assist with family study ... and suggests other sources for research and study ... [It] includes reference to the archives of other [Victorian] State agencies that are known to have had contact with Aboriginal people in the period until the transfer of responsibility to the Commonwealth [in 1975] (Karen Cleave, Victorian Department of Health and Community Services, evidence).
These guides were criticised, however, on the grounds that they `are written in a language that appeals to only a small tertiary educated elite group' and are `often compiled with very little, if any, Indigenous input' (Sonia Smallacombe consultancy report submitted by ATSIC submission 684 page 10).
Many files which may be of relevance do not distinguish between Indigenous and non-Indigenous subjects.
Where records were created in the course of or to document the lives of Indigenous Australians or in administering Aboriginal or Torres Strait Islander affairs, identification and description is more likely to be relatively straightforward. But records are also created to document activities in which Aboriginality was unimportant to the creators of the record. As a result records about Aboriginal and Torres Strait Islander people or of relevance to them exist embedded within other records (Stuartfield House Consulting Group 1996 page 4).
Indexes to those records `may not give any indication of Aboriginality' (Stuartfield House Consulting Group 1996 page 4) and indeed individual records may not record the person's Aboriginality. This greatly adds to the size and complexity of the search task and there is always a risk that a relevant file will be overlooked.
What was very disturbing ... was the way Aboriginality was identified was not by a mark on the file or by trying to slot kids into Aboriginal programs. It was sometimes just because racist terms appeared in the file [that I could tell the subject was Aboriginal] (Linda Briskman evidence 134).
Many people will need assistance to obtain the information kept by the government about them. Many will need assistance just to be aware there might be a relevant and accessible file.
Firstly, people have to know about the service and their rights of access, and many do not yet have this information. People who live in remote communities may be a long way from a District Centre [of the department]; and language and cultural differences can inhibit communication and access. Aboriginal people who are mistrustful or apprehensive of Family and Community Services may not feel confident about requesting access and negotiating the specific information they want to receive (SA Government interim submission page 23).
Beginning a search
Researching government records is complicated and time-consuming. Few people who have not worked in a bureaucracy can understand the record-keeping systems, codes and procedures.
... a very complex maze. It's hellishly complex. There's terrible numbering systems; the systems have changed over time. There was a whole maze of ways of looking at the [records] system (Linda Briskman evidence 134).
Research based on archival sources is an analytical and labour intensive process. Archival research involves the study of unique, original documents. The storage areas of archives, unlike those of most libraries, may not be browsed by researchers wishing to identify records that might be relevant. This means that researchers are entirely reliant on indexes or finding aids to locate material of relevance to their research. Archives see their role as assisting researchers to understand and use the indexes and other tools. By and large Archives are not able to assist researchers in identifying or selecting relevant records or interpreting the records (Australian Archives submission 602 page 19).
... archives are pretty daunting places for anybody ... all archives have different systems ... They're complicated places to use (Kathryn Frankland, Queensland Archives, evidence).
In reality this kind of search is not possible either for Link-up with hundreds of clients, or for people trying to do their own research. The sheer size of the job is not the only problem although it is a significant one. There are difficulties in identifying possible sources in the first place. Inventories and other finding aids are not always available and access provisions prevent trawling widely through possible sources (Rosie Baird presentation included with Karu submission 540, page 7).
A number of record agencies have established specialist units to undertake the complex search process on behalf of Indigenous searchers. We found such units to be operating in Queensland, WA, SA and Victoria. The Australian Institute of Aboriginal and Torres Strait Islander Studies also offers a family research service. The following table sets out what services are available and whether Indigenous staff are employed.
||Community and Personal Histories Service, Department of Families, Youth and Community Care
7 of 10 staff are Indigenous
Tracing family and community histories through archival records excluding adoption and child welfare records
Financial grants to support family and community history research
Contact family members to seek consent to a meeting
Provides training for Link-Up staff regarding its record holdings and procedures
But cannot assist with access to records created by other departments and now held there or at State Archives
Does not employ any trained counsellors; referral to Link-Up (Qld)
|Aboriginal and Torres Strait Islander Unit, John Oxley Library
1 of 1 staff member is Indigenous
Assistance to access records held is provided to individuals, staff of the Community and Personal Histories Service and to Link-Up (Qld)
Aboriginal link-up service, Family Information Service, Department of Family and Community Services
1 of 1 staff member is Indigenous
Assistance with archived record access and adoption information
Location of family and reunion assistance
Counselling and other support
The Indigenous staff member is a link-up worker; position vacant during 1996;
Departmental Aboriginal Family Care Workers may also assist in regional centres
Liaison with SA Aboriginal Child Care Agency
Aboriginal Project Officer, State Records
1 of 1 staff member is Indigenous
Uses a developing name index to identify files held at State Records (anticipated ultimately to contain 100,000+ entries)
Advice on access procedures to government records generally
Advice on alternative research sources including church archives
|Aboriginal Family Tracing Service, Family Information Service, Department of Family and Community Services
4 of 7 staff are Indigenous
Tracing family history through former Native Welfare client files (1926-72) and card index, Child Welfare files and departmental files from 1972
Provision of identifying adoption information
Assistance in locating and reuniting families
Assistance in locating information in other archives
No automatic referral to Yorganop
No counselling provided
Represented on a co-ordinating committee (Winji Bulup) together with reps from Indigenous services including Yorganop
|Aboriginal Family History Service, Aboriginal Affairs Department
2 of 2 staff members are Indigenous
Tracing family history through 14,000+ restricted archival records of former Aboriginal affairs agencies (many are admin files), 5,000+ personal history cards (1916-48) and 1,500 `Tindale' genealogies (1939-54)
Referrals to FIAS, Yorganop
Represented on Winji Bulup
|Adoption Information Service (1985) extended to ex-wards
No Indigenous members of 14 staff
Referral to link-up for Aboriginal clients; counselling by AIS staff if desired
Adoption clients mandatory pre-disclosure interview; not applicable to ex-wards
Department funds VANISH (non-Aboriginal) to provide expert search services for adoption and ex-guardianship clients; the link-up worker utilises services of VANISH
|Family History Unit, AIATSIS
2 of 2 staff members are Indigenous
Family history research in its own collection including anthropological research collections and a biographical register of over 200,000 Aboriginal names
Births, Deaths and Marriages searches
Referral to likely sources among State records agencies and non-government agencies
Access as of right
`Personal information' is information about the searcher, the forcibly removed child or perhaps a descendant. This information may include the searcher's date and place of birth, birth name, date and reason for removal, placement(s), health and education records. While `personal information' usually includes the names of the child's biological parents and their dates of birth, it does not include other records about the parents such as their health records, employment and housing records, information kept by missionaries and protectors about their relationships, other children, changes of residence and so on. Nor does it include information about the searcher's siblings, grandparents, cousins or other family or community members.
There is a right of access to personal information throughout Australia with the exception of the Northern Territory. This right is established by `freedom of information' laws (FoI) covering personal information compiled by government agencies.
... if someone requests documents - whoever they may be - as long as that document directly relates to them there is no prohibition on their access to the information (Dr David Rathman, SA Department of Aboriginal Affairs, evidence).
If the file was just about you we wouldn't deny you access at all. We'd actually make a copy of the file for you (Rose Mitchell, WA Aboriginal Affairs Department, evidence).Freedom of information legislation sets minimum rights of access. It is a back-up if access to documents cannot be obtained less formally. FoI legislation does not prevent access being provided informally. `[It] is not the only mechanism by which the objectives of government openness and accountability, dissemination of information and protection of privacy can be achieved. Its importance lies in the fact that it provides an enforceable right of access to government-held information' (Open government 1995 page 15).
The FOI Act prescribes when information must be disclosed. It does not prescribe when information is permitted to be disclosed. Agencies retain a discretion to disclose information at any time (Open government 1995 page 38).
FoI legislation requires departments to respond to requests within set time limits and if departments refuse to release records the legislation provides rights of appeal.
Restrictive application of FoI
The administration of FoI application procedures can be unhelpful to many Indigenous searchers seeking personal information. One limitation is that the applicant for a record must usually specify the file sought. Most record agencies will not search through all of their files to discover whether there is a record of the applicant. Nor will they recreate the applicant's life and family history from the various records held.
... when people put in an application for freedom of information they have to be specific about what document they want and be very clear. Freedom of Information covers documents not collections or records as a larger record. So it is very restrictive for anyone applying and in fact it is not at all an easy process under FoI (Jennie Carter, WA Aboriginal Affairs Department, evidence).
The 1995 review of the Commonwealth's FoI Act found considerable resistance among bureaucrats to the release of government records in accordance with the letter and the spirit of FoI (Open government pages 35-6, 81). Nevertheless the existence of FoI laws `does reinforce a culture of open government' (Families on File 1996 page 28).
In the Northern Territory, where FOI laws are absent, Indigenous organisations have reported that departments more often than not refuse to release personal information and have declined to negotiate access principles (Families on File 1996 page 28).
In most States Indigenous people removed from their families as children can see their major personal records without going through the Freedom of Information process. Records kept by Aborigines protection and welfare boards, departments of native welfare and their equivalents are now the responsibility of State and Territory welfare and/or Aboriginal and Islander affairs departments. Where the Commonwealth had legislative responsibility (in the NT and ACT) or where responsibility for Indigenous affairs was transferred to the Commonwealth (in Victoria from 1975) most of the relevant records are held by Australian Archives.
Most Indigenous affairs and welfare departments now have specific (non-FoI) access procedures for Indigenous families in general or specifically for children taken into State care or guardianship. These procedures are less formal than FoI, discretionary and designed specifically for Indigenous searchers. While they are often slower than an FoI application, they are usually free of charge and research assistance may be available (see the table above).
By not requiring people to lodge FOI requests agencies are not bound by restrictive provisions in FOI legislation and have more flexibility to handle each case in a way best suited to the applicant, including using their discretion to release third party information (Families on File 1996 page 27).
Exceptions to this special provision are Victoria and the NT. In Victoria the Freedom of Information legislation must be used. The only Victorian records that are available without going through FoI are files on adults which were created more than 75 years ago and files on children created more than 99 years ago, under archives legislation which has equivalents in most States and Territories. In the NT there is `no automatic entitlement of clients to information or records' (NT Government interim submission page 31).
Adoption information is treated separately. All States and Territories except SA have legislation to permit adopted children to find out who their natural parents are without using FoI procedures. Legislation varies somewhat in each State and Territory. In NSW the birth parent or the adopted child can lodge a contact veto but cannot prevent the release of identifying information. In other jurisdictions the parties can register a veto over the release of identifying information or can permit this release but prevent the other person from making contact. In Queensland even if parents' identity cannot be disclosed the adopted child will be told their age, religion, occupation, ethnicity and a general description. In all jurisdictions adopted children are only entitled to the information about their birth once they reach 18.
No right of access to non-government records
Records made by non-government organisations, for example churches running children's homes and orphanages, are not covered by FoI. Some researchers' records, for example the extensive `Tindale Collection' of photographs and genealogies created by anthropologist Norman Tindale in the first half of this century, and some non-government agency record collections, for example some mission records in the NT and the A O Neville collection in WA, have been deposited in various State, Territory and Commonwealth archives. The Australian Institute of Aboriginal and Torres Strait Islander Studies also holds significant family and biographical information. The general rule is that the depositing organisation and not the archives itself decides who can have access to these materials and on what conditions.
Non-government organisations are under no statutory obligation to retain their records or to expend resources preserving and indexing them. `It really is up to the organisations concerned to have some sort of general social conscience in terms of ensuring survival of important records' (Richard Gore, NSW Archives, evidence).
A current proposal to extend the Commonwealth Privacy Act 1988 to non-government organisations should ensure the protection of relevant church and mission records and grant a right of access for people whose personal information is held in church archives.
No right of access to family information
Family information, as distinct from personal information, is treated as information about third parties. Third party information is protected to varying degrees by privacy principles with the practical effect that the searcher may be denied information about family members. `And yet that file may provide the information that is the missing link to that person's history' (Aboriginal Legal Rights Movement submission 484 page 47).
... Freedom of Information legislation places restrictions on the actual information that a person can access in their file, as it excludes identifying information about other people. This poses particular difficulties for Aboriginal people, as the excluded information is often exactly what they are searching for (SA Government interim submission page 24).
Confidentiality provisions within the legislation and by departmental policy make it virtually impossible to access another persons file without their express written permission. This becomes difficult where that person may have died and cannot give that permission. And yet that file may provide the information that is the missing link to that persons history (Aboriginal Legal Rights Movement submission 484 pages 46-47).
Respect for individual privacy means that information about third parties will not be divulged without their consent or, where deceased, consent from their next of kin. This may appear unjust.
In order to get records I have to prove Dad is dead and that I am his daughter. It is unjust that I have to get paperwork that I am related in order to get the records.
Confidential evidence 183, South Australia.
Yet the importance of protecting privacy was stressed to the Inquiry.
[It] has been raised with me by a number of elderly Aboriginal members of the community that they do not want their families to access records that may have been produced by the Protector of Aborigines or the Aborigines Protection Board that relate to their family histories without them giving express permission ... (Dr David Rathman, SA Department of Aboriginal Affairs, evidence).
When one considers the kind of information recorded about people by protection boards and other agencies, the reluctance of some parents to have their children see it is understandable. A mother may not wish her children to know that she was raped by an employer for example. A father may wish to keep private the fact that his application for an exemption certificate was rejected on the grounds that his standard of living or `intelligence' was judged inadequate.
In view of these concerns two issues arise. The first is whether a distinction can be made between, on the one hand, third party identifying information which permits a searcher to identify his or her own family and community links and, on the other, information which is solely personal to the third party. The second issue is whether the record agency should seek the third party's consent or whether that should be left to the searcher to pursue.
Some States interpret the right of privacy more strictly than others and agencies vary within States. In Queensland information about the immediate family of the searcher will be divulged but `sensitive' information about third parties will be deleted (Queensland Government interim submission page 68). In WA, on the other hand, the welfare department will not even advise a searcher of his or her parents' identity.
Under Western Australian law, if people wish to pursue personal information that has been withheld, they may obtain the consent from the third party if they know the identity of the third party. Departments are obliged under the [FoI] Act not to reveal the identity of the third party. However it is usual practice [for the department] to contact the third party to seek their views (personal communication from Director-General, WA Family and Children's Services).
In the NT many relevant records are held by Australian Archives. Many of these records contain personal information about a number of people. For example, a single record may contain personal information about several generations of one family or it may contain information about a group of unrelated children who happened to have been dealt with together at some time. `The challenge for the Archives has been how to address the needs of indigenous people separated from their families yet safeguard the privacy of individuals' (Australian Archives submission 602 page 5). A `memorandum of understanding' developed by Australian Archives in consultation with Indigenous user agencies resolves many of the third party privacy concerns by requiring the searcher to sign an undertaking not to reveal sensitive information about other people to anyone else. This solution permits the searcher or an agent such as an Indigenous tracing agency to peruse all records of relevance to himself or herself in their context, even when that context includes information personal to others. A similar approach was adopted following a similar process of consultation in the `common access guidelines' developed in NSW.
Some agencies will seek out a third party's consent to the release of information to an applicant. The Department of Community Services and Health in Victoria, the Aboriginal Affairs Department and the Family and Children's Services Department in WA and the Queensland Community and Personal Histories Service will do this. Others leave that up to the searcher, for example NSW Archives and the Queensland Department of Aboriginal and Islander Affairs. The latter approach can place some searchers in a catch-22 situation. Without knowing the identity of a parent, the parent cannot be contacted for consent. Yet without consent, the searcher cannot find out the parent's identity. This absurd situation arises where the record agency takes a very strict approach and does not assist by contacting family members to obtain their consent.
In the case of adoption information most States permit either party to register a veto on the release of identifying information. In NSW however neither party can require identifying information to be withheld.
Unrelated third parties
Respect for third party privacy currently seems to require that all information relating to non-immediate family will be withheld, for example the identity of foster parents or the welfare department's assessments of the quality of care being provided. The Tasmanian Aboriginal Centre submitted that this information belongs as much to the child as to the carers and should be released.
We have raised with the Department the need to make available information which may be adverse to the interests of foster parents (where for example there is information indicating physical, emotional or sexual abuse). To date the Department has indicated that it will not provide such information without the consent of the third party affected. It is our belief that any information, opinion or fact should be released (second submission 325 page 2).
This information may be critical to the success of a civil damages claim brought by a former ward who was harmed or abused in foster care.
Cost and delay
Generally people do not have to pay anything to read their personal information. In most cases files will be copied for free. Sometimes a fee does apply, for example in Queensland identifying information about a natural parent could cost an adoptee a $50 application fee and in NSW the fee is $120. In those cases the fee can be waived or reduced in the case of hardship. Australian Archives is among the agencies which have resisted requests for free copies.
The Archives has received representations that all copying done for the purposes of research by or on behalf of people affected by past child removal policies and practices in the Northern Territory be provided free of charge. The Archives' response was that an open-ended arrangement might have enormous resource implications for the Archives but that the Archives was willing to consider a restricted waiver of charges if an acceptable arrangement could be developed (submission 602 page 16).
Many Indigenous people seeking information about themselves and their family will be able to proceed independently of FoI. In these cases the FoI statutory time limits on departmental responses to applications do not apply.
There are three stages at which researchers may experience delays in accessing records. The first is in the process of undertaking archival research which may be labour intensive ... The second possible delay is when a researcher seeks access to Commonwealth records in the open period [ie older than 30 years] for which the Archives has not yet made an access decision [for example records more than 30 years old will not be released to the public if that would involve an unreasonable disclosure of the personal affairs of the record-subject]. In such instances there may be a delay, particularly if exemptions have to be applied or if consultation is required ... The third possible delay is of the shortest duration - as archives do not allow browsing or self-service in the repository there is a delay between the material being requested [after the completion of the previous two stages] and provided (this is usually no more than thirty minutes) (Australian Archives submission 602 page 5).
Archival research is likely to cause the longest delays in all States and Territories. The difficulty of the task is exacerbated by a lack of indexing as discussed above. The Inquiry heard evidence of considerable delays (SA Aboriginal Legal Rights Movement evidence 484). In WA the Aboriginal Affairs Department can take six months to meet a request although most are met within two months. Requests to the WA Department of Family and Community Services may still be active after four years or more (ATSIC submission 684 page 20).
In NSW efforts were made to reduce the delay significantly for the duration of the Inquiry. The `common access guidelines' envisage a ten day turnaround between the receipt of the application by the agency and the provision of the information sought. In Queensland the Community and Personal Histories Service attempts to prioritise urgent requests such as where the applicant seeks confirmation of his or her date of birth, where the information is needed for a native title claim or where an older person is looking for missing family members.
Distressing information, denigratory language
For forcibly removed people and their families the information recorded about them by government agencies is almost certain to raise painful memories and their files will almost certainly contain information that will cause pain if not trauma and despair.
There's letters written there in my handwriting and I go berserk, I can't handle it. I can't go near them because I see my handwritten letters there as a little kid. You know, `May I see my brothers and sisters? I haven't seen them for a long time. They're dear to my heart'. `Do you know where my mum is? Can I please see my dad?' There's letters written back by them that my behaviour didn't warrant visits. There's letters there saying that if I didn't improve my behaviour that I would not be able to be with my brothers and sisters and that I would never see my parents again.
Confidential evidence 284, South Australia.
... people experience different emotions, ranging from the excitement of locating a missing family member to outrage and distress in relation to what has been recorded on a personal file. For many clients, the records remind them of incidents in their lives that they would prefer to forget and they are often dismayed to find that intimate details of their private lives were recorded on government files (Qld Government interim submission page 69).
The files often contain very minimal or inaccurate information, entries may be written in a tone and style that is very disturbing and offensive to the person concerned, and content may be difficult to understand and interpret (SA Government interim submission page 23).
We've got Mum's records from the department. Mum was in the home when she was about 8 or 9. She didn't get released until she was 17. I was expecting something like a thick book. She only got about, I'd say, maybe 20 pages ...
Confidential evidence 143, Victoria.
There are a lot of stories in the files that have been written about me from when I was in different stations working ... And the bad things they said about me in the past from the settlement wasn't true. There are a lot of untrue things about me on the files. I have cried about the lies on those files. Things that are lies about me, things I was never told about, are on those files.
Confidential submission 110, Queensland.
People may be entitled to write a statement correcting false information and have the statement put on their file. However no information, even false information, can or should be deleted. There is much value in retaining even false information, as well as derogatory and racist language, so that the true quality of administration can always be understood.
With respect to support and counselling the Inquiry was struck by the contrast between the care and funding commitment devoted to adoption reunion counselling and the inadequacy of support for Indigenous family reunions where adoption was not involved. All governments now provide a counselling service in conjunction with access to adoption information.
... the process of obtaining information, searching and making contact with family can precipitate many intense emotions. Counselling, support and assistance is available from AIS [Adoption Information Service] to assist in dealing with these feelings and the issues of loss and grief (Victorian Government interim submission page 25).
Only Victoria and Tasmania have extended the same service to ex-wards of the State including Indigenous people. Yet the trauma involved in tracing and reuniting with families can be far more significant for children who were forcibly removed. Often they remember the removal process, remembering parents to whom they were unable to say goodbye or remembering a last glimpse of a frantically distraught parent. They may have been told their parents didn't want them or were dead. Often they were institutionalised. Institutional and foster care almost always involved denigration of Aboriginality and often brutality and abuse.
For some clients, especially those who were taken from their families as children, the whole process of finding family and establishing cultural links is extremely traumatic for them and their family (Queensland Government interim submission page 70).
The role of Indigenous-controlled family tracing and reunion services is therefore critical.
The effect of seeing information which has been kept confidential, because it is private information, or because it was the practice in some States to document every governmental action and ungenerous remark of an administrator, can be devastating. Sympathetic counselling, especially by other Aboriginal people who have themselves been adopted or institutionalized, such as the Link Up staff, ought to be available to Aboriginal people who gain access to records of their family. We should be mindful of the emotional hurt which can be caused. (Royal Commission into Aboriginal Deaths in Custody National Report Volume 2 page 78).
The availability of family reunion and tracing services - commonly referred to as `link-up' - is the subject of the following chapter.
Our evaluation takes as its first framework the objectives of government record agencies in permitting Indigenous people to access their personal and family records. Are the agencies fulfilling their own objectives with respect to those records?
Government agencies keep records for a variety of reasons. They have obligations under archival legislation to preserve records for posterity. Government departments also have an interest in recording the history of their administration. The objective of relevance to the Inquiry is the objective of responding to the history of forcible removal by facilitating access to the records.
Recommendation 53 of the Royal Commission into Aboriginal Deaths in Custody is the common objective of government record agencies. All Commonwealth, State and Territory governments have agreed to implement that recommendation. Australian Archives advised the Inquiry that `Recommendation 53 ... has largely shaped the Archives' policy on providing access to Commonwealth records by Aboriginal and Torres Strait Islander people separated from their families' (submission 602 page 5). In submissions to the Inquiry both the Queensland Government (interim submission page 63) and the ACT Government (interim submission page 21) referred to their efforts to implement Recommendation 53. The South Australian Government advised the Inquiry,
We are committed to facilitating the access of Aboriginal people to their personal records, and their reconnections with their family, community, culture, and land (interim submission page 22).
The first part of Recommendation 53 calls on all 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 Privacy Commissioner found that the agencies have not adequately evaluated their own fulfilment of this Recommendation. There is a `lack of meaningful measurement of outcomes' (Families on File 1996 page 15).
Essential features of complying access provisions
There are five essential features of a system of access to records which fully and appropriately implements Recommendation 53.
First, information about the availability of access to records should be widely communicated throughout Indigenous communities. In fact most Aboriginal people do not know about the existence of records, their rights of access, how to go about the search or the availability of assistance. Information videos such as that recently prepared by the WA Aboriginal Affairs Department are essential to disseminating this information.
Second, access to one's personal records, including information about one's family background, should be available as of right. There is no general right of access in the Northern Territory, although access may be granted. Elsewhere there is a right of access to personal information. Moreover, in a number of agencies flexibility of interpretation and an understanding of Indigenous people's needs enables searchers to receive information - strictly third party information - to assist in building a picture of their family history. Other agencies, however, continue to interpret third party privacy restrictively and fail to assist searchers to meet their requirements for third party consent. The searcher can be denied the very information needed to identify family members and re-establish community and family links.
The responsibility of governments to provide this information to Indigenous people goes far beyond the standard justifications for FoI legislation, namely openness and accountability of governments and the individual's right to privacy. Indigenous people require personal, family and community information for even more fundamental reasons, namely to assist them to recover from a past marked by gross violations of their human and community rights by governments. By committing themselves to implement Recommendation 53 all governments have recognised this claim. The second part of Recommendation 53 states,
The Commission recognises that questions of the rights of privacy and questions of confidentiality may arise and recommends that the principles and processes for access to such records should be negotiated between government and appropriate Aboriginal organisations, but such negotiations should proceed on the basis that as a general principle access to such documents should be permitted.
Third, the access procedures should be simple, straightforward and very cheap, if not free of charge. In fact however access provisions and services are fragmented (Families on File 1996 page 1). Often the searcher will need to approach more than one agency and go through different kinds of application procedures because `there are [still] inconsistencies in approaches both across jurisdictions and within them' (Families on File 1996 page 26).
Where specialist research units exist they are able to access only the records created by the departments of which they are a part or, in the case of archives, records already archived. Yet Indigenous people were subject to such control by government that relevant records are usually held in a number of departments. Indigenous children were often subject to multiple placements which could involve administration by more than one government department and could also involve control by a non-government agency. To reconstruct a child's history a `file trail' often needs to be followed. This is time-consuming and complex. Existing research units are unable to provide the full assistance service needed and `no government has a streamlined process for delivering access to the records of all its agencies' (Families on File 1996 page 4 emphasis added).
Where the application has to be made under FoI an application fee may be charged. The costs of making copies of documents may also be charged to the searcher. Levying an application fee is not only inappropriate, it is unjust. The individual's need for the information has been created by government policies identified as genocidal and as gross violations of human rights. It is unjust to make restitution, including family reunion, and rehabilitation conditional on the victim's ability to pay.
Fourth, to ensure that all relevant records are identifiable and dealt with in any particular search all the records must be thoroughly indexed. In fact not even all government-created records have yet been indexed (Families on File 1996 page 21). Finding aids are essential for Indigenous searchers themselves to access their records. Only relatively few specialist finding aids or guides have yet been produced.
Fifth, the distressing personal backgrounds of Indigenous searchers, the difficulty of the process of searching for family information and the likelihood that the files will contain material that is upsetting all indicate the individual's need for pre-search counselling, support during the perusal of files and counselling subsequently. Indigenous family tracing and reunion services are available in most jurisdictions to assist Indigenous searchers in this way. Government record agencies may not be the most appropriate providers of the necessary support and counselling. However they must be conscious of the needs of applicants and have referral information on hand. Ideally initial applicant contact should be with another Indigenous person. In fact not even the specialist search services listed in the table above uniformly have either appropriate counselling services on-site or a standard referral protocol. No records agency provides resources for counselling equivalent to that provided for adoption information applicants in spite of the typically far greater harm caused by the removal policies and the grief experienced by Indigenous people now searching for family members.
The second framework for evaluation of procedures for access to personal and family records is the human rights framework already established and detailed.
The right of Indigenous self-determination requires that Indigenous peoples should be able freely to access information critical to their history and survival as peoples. No record keeping agency has transferred control of its Indigenous family and community records, or copies of its records, for holding in Indigenous community-controlled archives or repositories. No such repositories have been established or funded. Australian Archives, invited to comment on the possibilities of transferring ownership and control of its record holding, responded negatively.
Current Commonwealth legislation does not accommodate this view of ownership ... The records are crucial to indigenous people for research, but they are also of use for a variety of other reasons. For example, evidential reasons that are important to the Commonwealth; legal reasons; and research reasons that may or may not be associated with indigenous people (Australian Archives submission 602 page 17).
The co-operative arrangements between government agencies and Indigenous family reunion services represent tentative steps towards partnerships reflecting the right of self-determination. In Queensland Link-Up staff can access the Heritage Database at the Personal and Community Histories Service. In NSW a link-up worker is located in the State Archives at Link-Up's expense. Staff of Indigenous reunion services who are located in such positions have an opportunity to shape the response of the government agency to Indigenous searchers.
The arrangements for accessing records can disadvantage a substantial proportion of Indigenous people. Equity of access requires the creation of a welcoming environment.
Even when Aboriginal people visit institutions holding their cultural and historical resources the problems don't dissolve. Aboriginal people feel ill-at-ease and self-conscious when entering white institutions which emanate an entirely alien cultural presence. So much depends upon the person at the counter.
And ... there is a language barrier for many of us with regards to what is written about us. The institutional language of government, law, economics, anthropology and so on, the jargon, is simply incomprehensible to many of us to whom English is a second or even third language (Fourmile 1989 pages 3 and 4).
Those living in rural and remote communities are significantly disadvantaged.
Government records, which are all that Aboriginal people have formal access to, are held in Perth. There is currently a two year wait to receive files, and it is frustrating to have to deal with a bureaucracy so far away, especially when there are no databases or access to information about what kind of files and information is held (Kimberley Land Council submission 345 page 25).Some record agencies overcome the problem of distance from the capital city by forwarding full or edited copies of files directly to searchers. Potential inequity of access due to poverty is reduced by some agencies in most States and Territories by keeping costs and charges down, although in some cases these arrangements may not continue beyond the life of this Inquiry.
Indigenous communities in Australia do not yet control and manage their own complete documentary history. Renewal of family and community ties and hence regeneration of community life and culture may depend to some extent on reclamation of historical documentation.
... hundreds of Aboriginal and Torres Strait Islander communities have no representative collections of those components of their heritage, and in many cases are unaware that these often rich resources even exist. Consequently our Elders are dying without passing on vital cultural knowledge and history to our younger generations - knowledge which could be rekindled or stimulated if they had ready access to cultural items, old photographs, genealogies, language tapes, anthropological field notes, mission records, and so on ... Aboriginal and Torres Strait Island communities are not getting the benefits of the various collections of their cultural heritage to which they are entitled. The overall situation constitutes a massive breach of our human rights as detailed in a number of international instruments to which Australia is a signatory (Fourmile 1992 page 3).
In most States and Territories Indigenous communities are not being involved in the decisions government and non-government agencies make about the management of access to and research into their records. Concerns about confidentiality dominate the process of releasing records. Most Indigenous communities are not consulted on how third party information should be treated. Some Indigenous communities may be less sensitive about the release of third party information than about longstanding gaps and blanks in the picture of the community's history. On the other hand, non-Indigenous searchers have tapped the documentary history without consultation with the relevant community.
Coherent policy base
No government has a policy statement which acknowledges the full range of needs of people affected by forcible removal. All governments are in the position admitted to by the Northern Territory.
The effects ... have not been examined to any significant degree by government. A number of books and articles have been published [by others]. As far as this Government is aware, none of these so far have carried out a rigorous analysis of the effects in a manner that would be of assistance in developing programs that could address the problems that appear to continue to exist (interim submission page 18).Agencies which have responded at all have done so on their own initiative or more often at the instigation of an Indigenous organisation.
The current social welfare policies within Tasmania merely seek to patch up identified problems. There is no long term social policy in place. Government response is therefore ad hoc (Tasmanian Aboriginal Centre first submission 325 page 8).Even access to personal and family records is typically addressed on an ad hoc basis with the various record agencies operating differently and in isolation from each other. In New South Wales it was recognised `that one of the real problems ... was fragmentation, lack of co-ordination and lack of a whole-of-government approach' (Richard Gore, NSW Archives, evidence). The working party established in NSW to develop common access guidelines has contributed to significantly enhanced co-ordination. ATSIC commended the `holistic' NSW approach to the Inquiry (second submission 684 page 1).
WA has also established an inter-agency co-ordinating committee to address the problem to some extent. Winji Bulup draws its membership from the Aboriginal Affairs Department, the Department of Family and Children's Services, the Aboriginal Legal Service, the Aboriginal family and children's issues services Manguri and Yorganop, and Centacare, a Catholic family welfare agency. All of the organisations represented are engaged in accessing Indigenous family and community records and the committee discusses `ease of access, types of records that we hold or ... if we're unable to locate a particular record, then we're able to utilise the membership of that committee to try and help us search' (Dawn Wallam, WA Family and Children's Services, evidence).
The deployment of family reunion workers by a number of government agencies goes some way to meeting the requirement for adequate staff resources. Most specialist Indigenous family research services do employ Indigenous staff. However most agencies have been unable to employ Aboriginal archivists because few are professionally qualified and no relevant traineeships are available.
The poor state of many record series, the lack of indexes and finding guides and the size of the search backlog in many agencies starkly illustrate the failure to provide adequate resources to government record agencies to enhance access. WA's Aboriginal Affairs Department complained of understaffing and noted the `huge cost problems' of `electronic data capture' of its personal history card holdings (both as a preservation measure and in the interests of more efficient searching).
Queensland's Department of Families, Youth and Community Care is the only agency to have approached the issue comprehensively and with a significant resource commitment.
... in the last five years we have probably spent well over a million dollars on some of the systems that support the Community and Personal Histories Service: information systems, the arrangement and description of the records, the actual safe storage and preservation ... all the records management issues are something that does take a lot of money to do (Carmel Finn, Community and Personal Histories Service, evidence).
The Inquiry's recommendations are designed to achieve three broad objectives. First, all records which may be of assistance to Indigenous people seeking to re-establish family and community links or establish Indigenous identity must be preserved. All culling of relevant or potentially relevant records must be embargoed. Second, access to records must be made easier and less hurtful. This involves improving access procedures, ensuring culturally appropriate access and involving the counselling and support assistance of Indigenous family tracing and reunion services. Third, in the longer term Indigenous communities should have an opportunity to manage their own historical documentation. For those communities which desire it, copies of relevant records collections should be provided to Indigenous repositories within established privacy principles.
The first and second objectives directly aim to implement Recommendation 53 of the Royal Commission into Aboriginal Deaths in custody effectively and the Inquiry's interest in family and community reunion. The third objective recognises, as does Recommendation 53 implicitly, the need for Indigenous communities to reclaim and renew their histories and community identities as one step in the process of recovering from the history of genocide. All three objectives offer strategies for providing restitution, either to individuals and families directly affected or to communities indirectly affected by forcible removals.
Restitution shall be provided to re-establish the situation that existed prior to the violations of human rights and humanitarian law. Restitution requires, inter alia, restoration or liberty, family life, citizenship, return to one's place of residence, enjoyment of property (van Boven Principle 12).
Preservation of records
Subject to certain criteria, government agencies and archives are currently authorised to cull and destroy records they have created. It is essential that all records which could enable any Indigenous person to trace his or her family, establish his or her identity or locate his or her community or communities of origin be protected against destruction. The Stolen Generations National Workshop (1996) submitted that,
... all records relating to Aboriginal people and their communities, including those that were kept by governments, churches and private agencies, are the property of the people and communities to which they relate. Thus no agency (government or non-government) currently holding records relating to Aboriginal people has the right to destroy, alter or deny access by the owner to these records (submission 754 page 23).
Because many record series do not identify subjects' Aboriginality, the obligation to retain records which could reasonably be found to relate to Indigenous communities, families or individuals in effect requires all records of the relevant type to be retained, including those ultimately found to relate to non-Indigenous people. Non-Indigenous people removed from their families of origin in childhood have many of the same concerns about identity and background as Indigenous people. This does not mean that all records created by an agency need to be retained permanently. Two categories of records must be permanently retained: those relating to all children removed from their families for whatever reason and those known to relate to Indigenous people, communities and families.
Destruction of records prohibited
Recommendation 21: 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.
There is an urgent need to identify, preserve and index records now held by governments (initiating agencies or archives) and non-government agencies (such as churches and former missions). This task includes the identification of destroyed or lost records and records series. The Inquiry commends the preservation and indexing work of the Queensland Community and Personal History Service as a sound model.
The task of preserving and indexing records is a priority since assisting family reunions is the most significant and urgent need of separated families. The Stolen Generations National Workshop (1996) proposed to the Inquiry that the `resource implications' of this task `should be seen as a part of the overall reparation package to which governments have a legal and moral obligation' (submission 754 page 22).
Appropriate implementation of the tasks of identification, preservation and indexing will involve a partnership with relevant Indigenous user services and individuals (ATSIC second submission 684 page 2). Prioritising needs within the records held and identifying which records and collections are most likely to contain information of relevance will be among the roles allocated to the Commonwealth, State and Territory Records Taskforces proposed below.
Recommendation 22a: That all government record agencies be funded as a matter of urgency by the relevant government to preserve and index records relating to Indigenous individuals, families and/or communities and records relating to all children, Indigenous or otherwise, removed from their families for any reason.
Recommendations 22b: That indexes and other finding aids be developed and managed in a way that protects the privacy of individuals and, in particular, prevents the compilation of dossiers.
Common access guidelines are needed in each State and Territory. Retrieving relevant personal and family information is currently unnecessarily complicated by the diverse access provisions in the various record agencies. Additional difficulty is attributable to the refusal of access by non-government agencies or, where access is provided, to the different conditions of access. The development of appropriate guidelines will require detailed discussions with Indigenous users. A taskforce should be created by each government, constituted by all interested parties, including record agencies and Indigenous family reunion services. The 1994 Going Home Conference recommended,
...that a representative Aboriginal Advisory Committee be established to advise the Commonwealth archives agency on all matters of interest and concern to Aboriginal people, with a view to ensuring that Aboriginal people have ready access to any information of concern to them for use as the Aboriginal people themselves determine.
Joint records taskforces
Recommendation 23: That the Commonwealth and each State and Territory Government establish and fund a Records Taskforce constituted by representatives from government and church and other non-government record agencies and Indigenous user services to,
1. . develop common access guidelines to Indigenous personal, family and community records as appropriate to the jurisdiction and in accordance with established privacy principles,
2. advise the government whether any church or other non-government record-holding agency should be assisted to preserve and index its records and administer access,
3. advise government on memoranda of understanding for dealing with inter-State enquiries and for the inter-State transfer of files and other information,
4. advise government and churches generally on policy relating to access to and uses of Indigenous personal, family and community information, and
5. advise government on the need to introduce or amend legislation to put these policies and practices into place.
Recommendation 24: That each government, as advised by its Records Taskforce, enter into memoranda of understanding with other governments for dealing with inter-State enquiries and for the inter-State transfer of records and other information.
These recommendations address the central concern of the proposal from the Going Home Conference to ensure the full involvement of Indigenous representatives in decision-making about access to records. The recommendations also take into account the clear evidence that access guidelines and standards may need to vary in detail in different regions. National guidelines would be inappropriate although national minimum standards are essential.
State and Territory based consultations [will] more effectively allow the different laws, history, sensitivities and social organisation of Indigenous people in particular regions to be taken into account (Families on File 1996 page 57).
The first task of each taskforce must be to develop, as a matter of priority and within the parameters of minimum national standards (Recommendation 26), common access guidelines applying to all record agencies. Matters to be considered will include whether and to what extent personal records need to be censored before release to a searcher, how records should be indexed, how priorities are to be established for dealing with requests for access to records, the form of pre-access advice and procedures for referral to counselling and support services. Each taskforce would continue to monitor the implementation of its guidelines and improve and refine them as needed.
A commitment to minimum access standards is required immediately in all jurisdictions and by all record agencies, both government and non-government. The Inquiry has received many submissions concerning these standards. It is most important that they be adopted regardless of jurisdiction and regardless of agency type. Indigenous people seeking personal and family information must no longer experience discrimination on the basis that the information they seek is in a particular State or held by a particular type of agency.
That a consistent approach be adopted across jurisdictions in relation to access by Indigenous people to information in Government records. A national code of practice for archival agencies should be developed that takes account of the rights and interests of indigenous clients (Central Land Council submission 495 page 14, recommendation 7 and ATSIC submission 684 page 4, recommendation 7).
A key issue for access guidelines will be third party privacy.
Privacy is a major issue when dealing with archival research. The information held in Archive files relates to family members, someone's mother and father. The information may not even be known to the person it is written about and with so many peoples histories located in one institutional file, a person electing to do their own research, has someone else's history open to them (Rosie Baird presentation included in Karu submission 540 page 3).
At the Commonwealth level Information Privacy Principle 11 prohibits the disclosure of one person's personal information to any other person without the first person's consent, except in a narrow set of circumstances which are irrelevant here (Privacy Act 1988). The Commonwealth's FoI Act reflects this Principle by exempting personal information belonging to a third party from the general disclosure rule. The 1995 review of the FoI Act proposed that third party information should only continue to be exempt if disclosure, on balance, would not be in the public interest (Open government 1995 page 127). Although this proposal has yet to be implemented it clearly shows that public policy development is moving away from a blanket protection for third party information. In some circumstances the public interest may require disclosure and the relationship between the searcher and the record subject ought to be relevant to that decision (Open government 1995 pages 129-30). This alternative policy of flexibility in recognition of special circumstances is especially appropriate to the needs of Indigenous people seeking family and community information.
The need to protect one person's privacy has to weighed against the need to provide another with access to personal information. The refusal to release third party identifying information could deny an Indigenous searcher the opportunity for reunion with his or her family and/or community and access to entitlements for which proof of community connection or Aboriginality generally is required.
Australian Archives advised the Inquiry that in the course of developing the Memorandum of Understanding for Northern Territory records it became apparent that `the indigenous community and the Archives have differing views on what is sensitive and what is not' (submission 602 page 15). Similarly the consultancy report prepared for ATSIC by Sonia Smallacombe stated,
Within many Aboriginal communities, most people had relatives who suffered from leprosy and they were often accepted as part of the community. The attitudes of the wider Anglo community to isolate and reject people who had leprosy was not always evident in the Aboriginal communities. Therefore, Aboriginal communities may not regard this information to be sensitive enough to warrant restriction (with submission 684 page 12).
While the precise details need to be defined in consultation with Indigenous communities in each region, the Inquiry has come to the conclusion that at a minimum every searcher must be entitled to personal and family identifying information, including parents' and siblings' names and dates and places of birth, even where disclosure of that information might be thought to infringe third party privacy.
Minimum access standards
Recommendation 25: That all common access guidelines incorporate the following standards.
1. The right of every person, upon proof of identity only, to view all information relating to himself or herself and to receive a full copy of the same.
2. No application fee, copying fee or other charge of any kind to be imposed.
3. A maximum application processing period to be agreed by the Records Taskforce and any failure to comply to be amenable to review and appeal.
4. A person denied the right of access or having any other grievance concerning his or her information to be entitled to seek a review and, if still dissatisfied, to appeal the decision or other matter free of charge.
5. The right of every person to receive advice, both orally and in writing, at the time of application about Indigenous support and assistance services available in his or her State or Territory of residence.
6. The form of advice provided to applicants to be drafted in consultation with local Indigenous family tracing and reunion services and to contain information about the nature and form of the information to be disclosed and the possibility of distress.
7. The right of every person to receive all personal identifying information about himself or herself including information which is necessary to establish the identity of family members (for example, parent's identifying details such as name, community of origin, date of birth).
8. The right of every person who is the subject of a record, subject to the exception above, to determine to whom and to what extent that information is divulged to a third person.
FoI in the NT
Recommendation 26: That the Northern Territory Government introduce Freedom of Information legislation on the Commonwealth model.
Access to personal and family information is also hampered by the complexity of record holdings. In recognition of the urgency of facilitating family reunions all efforts should be made to assist people affected by forcible removal. The Inquiry considers that the best approach is to establish an Indigenous Family Information Service in each State and Territory as well as at the Commonwealth level. While these Services would not hold all relevant records, they should have detailed information about the location of records and access procedures so that they can provide a full assistance service to Indigenous searchers. These Services will require priority access to a network of specialist officers in each record-holding agency, sufficient information about the holdings of each agency and sufficient resources and skills to provide competent and reliable referral. Each government has a responsibility to establish an Indigenous Family Information Service as a `first stop shop' for people seeking access to records.
Widespread advertising of the existence and services of the Indigenous Family Information Service would be a key to facilitating access.
While they must be staffed by Indigenous people, the Services would not necessarily be the best source of support and counselling, tracing and reunion support, or general family and community research. It is preferable that these roles be undertaken by Indigenous-controlled services (see Royal Commission Recommendation 192).
Indigenous Family Information Service
Recommendation 27: That the Commonwealth and each State and Territory Government, in consultation with relevant Indigenous services and its Records Taskforce, establish an Indigenous Family Information Service to operate as a `first stop shop' for people seeking information about and referral to records held by the government and by churches. That these Services be staffed by Indigenous people. That to support these Services each government and church record agency nominate a designated contact officer.
The Indigenous Family Information Services must be staffed by Indigenous people. Ideally the entire contact network should be constituted by Indigenous officers. The Going Home Conference recommended,
... that the Minister direct his Department to create positions for Aboriginal contact officers in the central and regional office of the Commonwealth Archives. The Aboriginal contact officers would be responsible for facilitating for Aboriginal people who wish to have access to information held in the Commonwealth archives.
To this end relevant traineeships and scholarships should be established. Graduates would find employment in Family Information Services, government record agencies, family tracing and reunion services and, where established, Indigenous language, culture and history centres.
Recommendation 28: That the Commonwealth and each State and Territory Government institute traineeships and scholarships for the training of Indigenous archivists, genealogists, historical researchers and counsellors.
... there exists a large body of administrative and personal records relating to Aboriginal and Torres Strait Islander peoples ... these records form part of the cultural heritage of the Aboriginal and Torres Strait Islander peoples of this State and are of vital concern to those ... wishing to find out more about their own, their families and their communities past (Queensland Community and Personal Histories Draft Access Policy 1996).
Indigenous organisations and individuals told the Inquiry that records about them created and held by governments and non-government agencies should belong to them. Some witnesses asserted an individual's rights to reclaim his or her records.
Why have they got records on us? I'm not a criminal. I never have been a criminal and I object to the government holding records on me. I didn't do anything wrong and I want those records to be - if they don't want to hand them over to me, then destroy them in front of me. I don't see why I should have that humiliation.
Confidential evidence 284, South Australia.
I think they should be getting everyone's records together and handing it back to them, so that at least we know our own identity. A lot of it's still lost and I don't know if I'll ever find it.
Confidential evidence 283, South Australia.
Indigenous organisations asserted the community's right to recover the documentation of its history, including personal information about community members.
All records relating to Aboriginal people and their communities should be housed by appropriate Aboriginal organisations as determined by the communities (Link Up's, Keeping Places, or Cultural Centres may be examples of such organisations). Such organisations must be given adequate resources in order to arrange proper `user friendly' access, and indexing to these records and to allow for their physical maintenance. In addition such organisations must be resourced in order to provide necessary client counselling and support, research assistance services and `new and potential user' information services (Stolen Generations National Workshop 1996 submission 754 page 23).
Link-Up recommends the establishment of an Aboriginal Archive where all of the departmental records pertaining to Aboriginal people will be consolidated under an Aboriginal-controlled administration with uniform and culturally appropriate access procedures. To implement this recommendation, an Aboriginal Archive committee comprising appropriate departments and Aboriginal organisations should be formed to formulate a plan for establishing the Aboriginal Archive (Link-Up (NSW) submission 186 page 11).
That a national centre or institution be established as a memorial to truth, in recognition of the gross violations of human rights suffered by the `Stolen Generations' and for the purpose of sharing history, keeping records, undertaking research and establishing international links with other victims of forced removal (Central Land Council submission 495 page 14, recommendation 8).
Murri academic Henrietta Fourmile makes a cogent argument for the return of records founded upon the cultural and individual consequences of the history documented in those records. The history is one of disinheritance, disempowerment and ultimately attempted destruction. True restitution and cultural and social reconstruction require the restitution of control over the historical documents. While that control should be shared with those who share the history (in this case with record agencies), Indigenous control must be real and not token. At present Indigenous peoples are almost entirely dependent on non-Indigenous institutions to interpret and disseminate their history. Indigenous peoples need resources and facilities and culturally appropriate avenues to disseminate their history, in particular to their own communities. Indigenous communities must have the information on which to base their retelling of their history.
The Royal Commission into Aboriginal Deaths in Custody similarly recognised the need for `a process of reclamation by Aboriginal people of their own immediate history' (National Report Volume 2 page 77). Fourmile argues for `a cultural policy formulated between Aborigines and governments which gives Aboriginal people ownership and control over important historical and cultural resources which might be housed in Aboriginal cultural facilities comparable to those available to non-Aboriginal Australians' (1989 page 5).
This lack of our collections of books, documents, and records constitutes a severe impediment in our quest to make and pass on our own history ... Much of Aboriginal people's own sense of powerlessness stems from ignorance because of this lack of access to information about matters which control our lives. An informed Aboriginal population will have a much greater feeling of power over its own destiny ...
The nett effect of the lack of our own cultural and historical resources and the difficulties of access to those that exist elsewhere is to foster our dependence on non-Aboriginal specialists in law, history, anthropology, education and in Aboriginal affairs generally. They effectively become our brokers in transactions between Aboriginal communities and the various institutions and the public at large which have an interest in our affairs, and thereby usurp our role as history-tellers ... in the context of Aboriginal sovereignty it is completely untenable that one `nation' (ie European Australia) should have a monopoly and control of such a substantial body of information concerning another, the Aboriginal `nation' ...
At the core of the problem concerning the documentation and recording of our culture and history is the fact that much of it is a shared enterprise undertaken between members of two quite different cultural backgrounds. The documentation itself is a record of the interactions which make up our history. Simple justice would acknowledge the rights of both parties not only to share the physical records of that history but also to share responsibility for their custody and management so that the rights of one party are not prejudiced in order to benefit the other (Fourmile 1989 pages 2-5).
If the revitalisation and resurgence of Aboriginal culture is to fully take place, and so that we can contribute our culture to the world heritage on our own terms, then we must once again be able to own, control and enjoy our cultural and historical resources housed within our own community facilities (1989 page 5).
The Aboriginal and Torres Strait Islander Commission (ATSIC) submitted to the Inquiry that,
The archival records form the basis of a cultural heritage. There is anger that cultural property is vested under Government legislation. Repatriation of records is seen as an important consideration and an issue to be negotiated with indigenous communities and organisations (submission 684 page 23).Australian law does not currently accept the view of record ownership implicit in these arguments. The owner of the record is the person or department which created it (Breen v Williams 1996; various archives acts). While FoI laws recognise the right of the subject of the record to see it and have a copy, they simultaneously prevent any other person or organisation seeing it or having a copy without the individual's consent. However, there are numerous records relating to Indigenous families and communities which do not contain sensitive personal information or which are now less sensitive due to the passage of time since their creation. Records Taskforces are well placed to distinguish between these categories of records.
Original records should generally remain in the custody of the agency which created them or of an archive. Exceptions include letters and other records created by Indigenous people and placed on government or mission files. Non-government agencies or private individuals may donate original records to an Indigenous repository. The Australian Institute of Aboriginal and Torres Strait Islander Studies project, Return of Materials to Aboriginal Communities, may offer some insights into how the provision of documentary materials to an Indigenous repository might be managed in practice (evidence 703).
We have proposed elsewhere the expansion of the role of Aboriginal language centres or the creation of new institutions. The functions of `language, culture and history centres' could include oral history archive as proposed in Recommendation 11, records archive, community education facility, language centre (recording and teaching), memorial, museum, cultural and historical resource and research centre. There was significant support among submissions to the Inquiry for the housing of personal and family records in these centres.
Recommendation 29a: 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 Indigenous language, culture and history centre for the transfer of historical and cultural information relating to that community and its members.
Recommendation 29b: That the Council of Australian Governments ensure that Indigenous language, culture and history centres have the capacity to serve as repositories of personal information that the individuals concerned have chosen to place in their care and which is protected in accordance with established privacy principles.