The Aborigines Protection Acts 1909 and 1915

Reconciliation is a crucial aspect which requires both apology and forgiveness to pave the way for the healing process. Agreement entailing both apology and forgiveness is very relevant in Australia where the colonial and post-colonial experiences have left the people with unhealed wounds. The Australian government has taken keen considerations in ensuring such activities and experiences are not recurrent in the future. For instance, the country has put in place measures such as amending the laws governing the country. The changes aim at ensuring the country’s populace is in an appropriate position to relate with each other soundly despite the diverse conditions that may face the nation. As a result, the paper will underline some of the orchestrated amendment acts which promote reconciliation among the indigenous and non-indigenous communities in Australia.

The purpose of the Aborigines Protection Act 1909 (NSW) and the Aborigines Protection Amending Act 1915 (NSW)

   In pursuit of eliminating Aboriginal and Torres Strait Islander Communities, the Australian Regime enacted the Aborigines Protection Act 1909 (NSW) to legally remove Indigenous Australian children from their parents in an attempt to gradually assimilate future generation to Anglo/European society. The act was amended in 1915 which allowed the Board for the Protection of Aborigines to have control over which circumstances can a child be removed from their family.[1]

         In order to contextualize and elucidate the purpose of the Aborigines Protection Act 1909 (NSW) and the subsequent amendment of 1915, it is critical to reflect upon the period before the legislation. The period was marked by the exclusion of children from their kin justified by various reasons. Firstly, the children were perceived as the most vulnerable and subject to cultural brainwashing and hence could be used to uphold the Aboriginal adult cooperation.[2] Secondly, there was an increased risk of heightened racial conflicts between the non-indigenous, and the Indigenous people contributed by growing population of the half-castes, people born by parents from both divides (part European and part Indigenous).

The mixed-race children were one of the subjects of removal since they were termed as “dangerous” and hence perceived as a threat to the white population if left in the Aboriginal societies. Therefore child removal aimed at breeding out the color of the indigenous people through assimilation of the half-castes into the European nations and leaves the indigenous population to die out.[3]Therefore, the whole Aboriginal community was not considered a threat, only the half-castes. Being born of the white blood made the mixed-race people natural leaders capable of causing a revolution and also this made them easy to assimilate into the European society.

  Another category of children subjected to removal was the Aboriginal girls based on their reproductive ability. Removing the girls would naturally control the reproductive capacity of the indigenous communities. As a result, Aboriginal girls were heavily impacted by the removal policies and hence needed protection.[4] The perception of the day was that mixed-race boys would only marry the Aboriginal girls and similarly the men from the white communities would be more attracted to the mixed-race women than the white women, and this would further the racism problem.

The legislative regime in the form of the Aborigines Protection Act 1909 (NSW) and the 1915 amendment aimed at protecting the removed children. Among the challenges, such children would experience included being cultured and forced to live according to European values separate from their own culture, popularly termed as harmful and non-developed. Also, the act aimed at protecting the Aborigines who were not considered to be in need of protection by the removal policies. The Aborigines Protection Act 1909 (NSW) empowered the Aboriginal protection board by giving the board statutory powers not possessed before.[5]

The empowerment was an important milestone since the constitution that governed the Colony of Australia prohibited enactment of laws affecting the Aborigines or any of their state of affairs. Despite the establishment of the Aborigines Protection Boards in the federal states[6], they still lacked statutory powers.

Among the statutory powers established under the Aborigines Protection Act 1909 (NSW) includes the provision of education, custody, and maintenance of the Aborigine children, apportionment and distribution and application of monies voted by parliament towards the welfare of the Aborigines. Also, the regulation and management of reserves, supervision and provision of care in matters regarding the welfare and interests of the Aborigines, and protection of Aborigines from injustice.[7] Despite the statutory powers of removal, the court had to establish neglect before removal.[8]

The Aborigines Protection Board was limited by the Aborigines Protection Act 1909 (NSW) since it was challenging to prove negligence. Moreover, the court procedures were cumbersome and ineffective. The 1915 amendment served the purpose and provided the board with extensive powers. The Aborigines Protection Amending Act 1915 allowed removal of any Aborigine child as long as it was in the child’s physical or moral welfare.[9]After the amendment, different reasons such as “neglected,” “for being aboriginal,” “removal from surroundings” among others warranted removal.[10] Moreover, after the amendment, the age limit of below 14 years was abolished since, under the Aborigines Protection Act 1909 (NSW), only children below 14 years could be removed.

Cubillo v Commonwealth of Australia

 The litigation in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1 covered some issues including removal of Aboriginal children, the duty of care, wrongful imprisonment, and fiduciary duty.[11]Lorna Cubillo and Peter Gunner sued the commonwealth for breach of fiduciary responsibility and carelessness, removal of children from their families and society, and wrongful imprisonment/detention in mission-run institutions. Cubillo and Gunner sought damages for loss of their right to the indigenous aboriginal culture, denial of their fundamental rights as Aborigines, commonwealth’s negligence of their welfare as half-caste children, and psychiatric injuries suffered in the process. The case was presented before the Federal court of Australia.[12]

            The trial failed. The judge held that, firstly, even though the commonwealth directors were generally in breach of duty, the Commonwealth bore no liability related to removal under Aborigines ordinance 1918 (NT). Secondly, the court held that the Aborigines Ordinance 1918 (NT) section 16 provided total protection to Cubillo and Gunner against the illegal imprisonment and therefore the claim that they were detained against their wishes was dismissed. Thirdly, the court held that that the commonwealth was not liable for any breach of statutory duties under the ordinances. Fourthly, it was established that the Commonwealth was not obligated for any duty of care. Moreover, even if the statutory duty existed, the commonwealth had not breached the duty despite the director of St Mary’s breaching duty of care. Fifthly, there was no fiduciary relationship between the applicants and the commonwealth warranting duty of care, and hence there was no breach of the duty of care. Moreover, the court denied an application for an extension citing that the extension would prejudice the respondents. Finally, the appeal, which did not challenge the trial judge's findings, was denied even though the applicants dropped charges on the neglect of statutory duty.[13]

There are four primary reasons why the case failed. Firstly, the applicants had the duty of presenting evidence about unlawful removal from their homes, proving wrongful detentions and neglect of statutory duty by the respondents. The applicants failed to discharge the duty, and hence the case failed. For instance, there was no evidence provided showing Cubillo’s unlawful removal from her family. Some evidence provided worked against the applicants such as the nature of the Commonwealth policy. In other instances, the evidence offered was not satisfactory as a result of Mr. Gunner’s failure to call essential witnesses.[14]

     Secondly, the case failed since the removal was sanctioned by the existing regime particularly the Aborigines Protection Act 1909 (NSW), the Protection Amending Act 1915 (NSW) as well as other welfare laws. The legislation allowed their removal without obtaining parents' prior consent. Moreover, the legislation also sanctioned their detention for other reasons contrary to the applicant's welfare.

            Thirdly, a significant amount of time had elapsed since the removal events and the time of the litigation. As a result, a substantial number of parties/persons involved in the case had died while the surviving ones were too old and frail. Also, some records could not be found such as Mrs. Cubillo’s removal from her indigenous Aboriginal society. The respondent would suffer significant levels of prejudice if the case proceeded and would deny commonwealth a fair trial. In conclusion, the judge declined the application since the case was presented late. [15]

        Fourthly, Justice O’Loughlin established that the respondent was not responsible for the wrongs filed in the suit. It was noted that the transgressions were committed by independent missions and officials who were not being sued. Furthermore, the officials were not privy to the issues filed in court. St Mary’s officials were responsible for the deplorable conditions at the mission, but there was no evidence of suffering presented by Mr. Gunner.[16]

Impact of the Aborigines Protection Act 1909 (NSW) and the Aborigines Protection Amending Act 1915 (NSW)

             The Aborigines Protection Act 1909 (NSW) and the Aborigines Protection Amending Act 1915 (NSW) created a hostile relationship between the indigenous and the law demonstrated by mass incarceration and low levels of legal representation. The civil societies today, the 1909 and 1915 acts have indirectly contributed to improved access to justice for the indigenous people demonstrated by high representation in the integrity system.[17]

A general lack of justice taints the history of the Aborigines before and after the Aborigines Protection Act 1909 (NSW) the Aborigines Protection Amending Act 1915 (NSW). The Aborigines Protection Act 1909 (NSW) gave the Aborigine Protection Board rights to control the Indigenous people as long as proof of negligence was presented before a magistrate.[18] Without the evidence of negligence, which the protection board often found difficult to prove, the protector could not remove the children from their indigenous societies. Due to the difficulty in determining negligence and the rigorous court processes, the Aborigines Protection Amending Act 1915 (NSW) was introduced making the Protection Board the legal guardian of all the Aboriginal children, therefore, displacing the rights of the parents.[19] Without permission to make personal decisions, it is evident that the Aboriginal people had limited or no access to justice.[20]

            Fundamentally, the protection acts aimed at controlling the indigenous population including putting the mixed-race children and Aboriginal girls in reserves. Missionaries or government managed the reserves appointed protectors. Consequently, what was aimed at protecting the indigenous people ended up subjecting the indigenous people to total control.[21]The Aborigines Protection Act 1909 (NSW) the Aborigines Protection Amending Act 1915 (NSW) were therefore significantly flawed and led to treating of the indigenous people as lesser humans. The acts portray the government as a facilitator of the process of eliminating the dying out the indigenous population. The Aborigines Protection Act 1909 (NSW) the Aborigines Protection Amending Act 1915 (NSW) opened the doors to the concept of the ‘stolen generation.’[22]

            The institutionalization and the systematic removal and control of the mixed-race children and the Aboriginal girls from their families created great resentment among the Aboriginal and Torres Strait Islander people.

Consequently, it is widely acknowledged that today, the indigenous people are over-represented in the Australian justice system. Since the 1970s, a has been experienced regarding the representation and justice intervention on behalf of the indigenous people.[23]

The significance and limitations of the United Nations Declaration (UNDRIP)

            The UNDRIP as an international human rights law instrument for Aboriginal and Torres Strait Islander people affirms the indigenous people’s position to self-determination in matters regarding the development of their political, social, cultural, and economic status.[24]Notably, the right to self-determination surpasses the political control essence to cover a broader scope of issues such as the preservation of regional, ethnic and cultural identity[25], as well as social, cultural and economic dimensions.[26]Subsequently, the UNDRIP represents a significant milestone that demonstrates the revolution from the victim perception about the indigenous people to acquiring the status of being the subject of international laws.[27]

          On the other hand, the UNDRIP has been termed as a "soft law"that generally lacks enforceable qualities in international law. When the Australian government supported the UNDRIP, the Indigenous affairs minister noted that the law is non-binding and does not impact the existing national laws. The minister portrayed the law only as critical principles nations should aspire to adopt and hence the UNDRIP May, after all, be just aspirational.[28]

Bibliography

(a) Articles/Reports

A Limited Right to Equality: Evaluating the Effectiveness of Racial Discrimination Law

For Indigenous Australians through an Access to Justice Lens"(2013)

17(2) Australian Indigenous Law Review

Clarke, Jennifer, "Commonwealth Not Liable: Cubillo and Gunner V Commonwealth"

(2000) 5(2) Indigenous Law Bulletin https://primo.csu.edu.au

Maithri Panagoda, ‘the Stolen Generations: A Struggle for Justice’ [2017 (30)] Law Society

            Of New South Wales Journal 80

Goodall H, “Saving the Children – Gender and the Colonization of Aboriginal Children in

NSW, 1788 to 1990”, Aboriginal Law Bulletin Vol. two No. 44 (June 1990)

Cummings B, “Writs and Rights in the Stolen Generations (NT) Case,” Aboriginal Law

Bulletin Vol. 3 No. 86 (November 1996)

McRae H, Nettheim G, Beacroft L, Indigenous Legal Issues, LBC Information Services

(1997), North Ryde

O'Connor, Pam, "History on Trial"(2001) 26(1) Alternative Law Journal

The member states are New South Wales (NSW), Queensland (QLD), Northern Territory

(NT), Western Australia (WA), Southern Australia (SA) and Victoria (VIC).

Human Rights and Equal Opportunity Commission (HREOC), Bringing Them Home –

Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Sydney (1997)

http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/hreoc/stolen/stolen09.html#

Jennifer Clarke, "Commonwealth Not Liable: Cubillo and Gunner V Commonwealth"(2000)

            5(2) Indigenous Law Bulletin

Peter Billings, "Still Paying the Price for Benign Intentions? Contextualising Contemporary

            Interventions in the Lives of Aboriginal Peoples"(2009) 33 Melbourne U. L.R

A Limited Right to Equality: Evaluating the Effectiveness of Racial Discrimination Law For

            Indigenous Australians through an Access to Justice Lens"(2013) 17[2] Australian

            Indigenous Law Review

Erica-Irene A Daes “Some Considerations on the Right of Indigenous Peoples to Self-

The determination” (1993) 3 Transnational Law and Contemporary Problems 1 at 4-5.

Martin Dixon and Robert McCorquodale Cases and Materials on International Law (4th ed,

Oxford University Press, Oxford, 2003) at 226

Jeremie Gilbert Indigenous Peoples’ Land Rights Under International Law: From Victims to

Actors (Transnational Publishers, Ardsley, 2006)

Jenny Macklin “Statement on the United Nations Declaration on the Rights of Indigenous

Peoples” (press release, 3 April 2009)

(b) Legislation

The Aborigines Protection Act, No 25, 1909, Section 7

The Aborigines Protection Act, No 25, 1909, Section 1, Subsection 1

Aborigines Protection Amending Act, No 2, 1915, Section 4, Subsection 13A

United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295,

A/RES/61/295 (2007) [UNDRIP]

[1]  Maithri Panagoda, ‘the Stolen Generations: A Struggle for Justice’ [2017 (30)] Law Society of New South Wales Journal 80.

[2] Goodall H, “Saving the Children – Gender and the Colonization of Aboriginal Children in

NSW, 1788 to 1990”, Aboriginal Law Bulletin Vol. 2 No. 44 (June 1990), p.6.

[3] Cummings B, “Writs and Rights in the Stolen Generations (NT) Case”, Aboriginal Law

Bulletin Vol. 3 No. 86 (November 1996), p.8.

[4] Goodall H, “Saving the Children – Gender and the Colonization of Aboriginal Children in

NSW, 1788 to 1990”, Aboriginal Law Bulletin Vol. 2 No. (44 June 1990), p.6.

[5] McRae H, Nettheim G, Beacroft L, Indigenous Legal Issues, LBC Information Services

(1997), North Ryde, p.410.

[6], The member states are New South Wales (NSW), Queensland (QLD), Northern Territory

(NT), Western Australia (WA), Southern Australia (SA) and Victoria (VIC).

[7] The Aborigines Protection Act, No 25, 1909, Section 7.

[8] The Aborigines Protection Act, No 25, 1909, Section 1, Subsection 1.

[9] Aborigines Protection Amending Act, No 2, 1915, Section 4, Subsection 13A.

[10] Human Rights and Equal Opportunity Commission (HREOC), Bringing Them Home -

Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander

Children from Their Families, Sydney (1997).

http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/hreoc/stolen/stolen09.html#Headin

g29, April 1997.

[11] Pam O'Connor, "History on Trial"(2001) 26{1] Alternative Law Journal.

[12] Jennifer Clarke, "Commonwealth Not Liable: Cubillo and Gunner V Commonwealth"(2000) 5(2) Indigenous Law Bulletin .

[13] Pam O'Connor, "History on Trial"(2001) 26(1) Alternative Law Journal.

[14] Jennifer Clarke, "Commonwealth Not Liable: Cubillo and Gunner V Commonwealth"(2000) 5(2) Indigenous Law Bulletin .

[15] N.d.                            

[16] Jennifer Clarke, "Commonwealth Not Liable: Cubillo and Gunner V Commonwealth"(2000) 5(2) Indigenous Law Bulletin .

[17] Peter Billings, "Still Paying the Price for Benign Intentions? Contextualising Contemporary Interventions in the Lives of Aboriginal Peoples"(2009) 33 Melbourne U. L.R.

[18] The Aborigines Protection Act, No 25, 1909, Section 1, Subsection 1.

[19] The Aborigines Protection Act, No 25, 1909, Section 1, Subsection 1.

[20] A Limited Right To Equality: Evaluating the Effectiveness of Racial Discrimination Law for Indigenous Australians through an Access to Justice Lens"(2013) 17(2) Australian Indigenous Law Review.

[21]  N.d.

[22] N.d.

[23] Peter Billings, "Still Paying the Price for Benign Intentions? Contextualising Contemporary Interventions in the Lives of Aboriginal Peoples"(2009) 33 Melbourne U. L.R.

[24] United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/RES/61/295

(2007) [UNDRIP].

[25]Erica-Irene A Daes “Some Considerations on the Right of Indigenous Peoples to Self-determination” (1993) 3 Transnational Law and Contemporary Problems 1 at 4-5.

[26] Martin Dixon and Robert McCorquodale Cases and Materials on International Law (4th ed,

Oxford University Press, Oxford, 2003) at 226.

[27] Jeremie Gilbert Indigenous Peoples’ Land Rights Under International Law: From Victims to

Actors (Transnational Publishers, Ardsley, 2006).

[28] Jenny Macklin “Statement on the United Nations Declaration on the Rights of Indigenous

Peoples” (press release, 3 April 2009).