Part 3 Consequences of Removal Chapter 10 Children’s Experiences

Reasons for low attendance include disaffection with school, difficulties of attending school arising from poverty, family pressures particularly in single parent families, high levels of sickness and high death rates among adults and the consequent social

obligations (Groome and Hamilton 1995 page 4). However, it is clear that some Indigenous students abandon school because of the pressures of racism and cultural dominance (NSW AECG submission 362 page 1, Groome and Arthur Hamilton 1995 page xii).

A significant number of [Indigenous] students, when askedto reflect on why theyhad left schools, said that they hadfelt depersonalised and had lostself-esteem under thepressure of racial harassment and ‘put downs’ from both teachers andstudents (Groome and Hamilton1995 page 45).

Racism from teachers is a more difficult experience to deal with than racism from other students. The types of racism experienced include racial abuse and vilification, negative comments about families and behaviour on the basis of race, prejudicial treatment, negative personal comments about ‘extra money’ and ‘special benefits’ (Groome and Hamilton1995 page 37).

The poor educational results for Indigenous students are also reflected in the rates of suspensions and exclusions from schools. Indigenous children and young people comprise 12% of school suspensions in New South Wales, although they make-up only 3% of the student population (NSW AECG submission page 4). Children as young as five years of age are being suspended, excluded and expelled from schools (NSW AECG submission 362 page 5).

Successful Indigenous secondary students share a strong and growing sense of identity. In these cases Indigenous identity was a source of strength to achieve.

For the majority of theAboriginal studentswith whom we spoke, identity was a central issue. Theywereproud of theirheritage and culture, especially in the faceofracist attacks. These studentsfelt that they possessed a culture in a way in which theirpeersdid not. Most hada sense of the spiritualdimensionofAboriginality that separated their culture from others … The biggest single tangibleindicatorof the depthofAboriginal identity was thevirtually unanimous feeling that there should be much moreAboriginalStudies taughtin schoolsfor thebenefit of all students (Groome and Hamilton 1995 page11).

Levels of formal education among adultsin Indigenous families are lower than for all Australians. The 1991 Census showed that the level of post-secondary qualification was four times lower among Indigenous adults, vocational qualifications were half the national rate and the proportion of Indigenous parents with no recognised qualifications was 26% higher than all Australians. Most Indigenous young people had left school by Year 10 or earlier. The proportion of 15 to 24 year old Indigenous young people who attained post-secondary qualifications (10%) was less than half that of all Australian youth (23%) (ABS 1996 page 14). Despite both the history of non-Indigenous educational policies towards Indigenous people and the contemporary profile of lower educational attainment, research has shown that the majorityof Indigenous parents have a strong desire to see their children achieve at school (GroomeandHamilton 1995 page 26).

Racism in education and poor educational results are directly linked to juvenile justice and welfare intervention. Early entry into the juvenile justice system is ‘nearly

always associated with the alienation of the children from the education system’ (NSW AECG submission 362 page 1). The 1994 ABS survey found a relationship between education and reported arrests. ‘Rates of arrest were highest amongst persons who had left school but not completed Year 12 and had no formal qualifications compared to those who had either completed Year 12 or obtained post-school qualifications. Rates were lowest among those still at school’ (ABS 1995a page 58). The Royal Commission into Aboriginal Deaths in Custody also identified the effect of high arrest rates on poor education and problems with transition into the workforce (National Report 1991 Volume 2).

The submission from the NSW AECG to the Inquiry noted, after drawing the links between racism, marginalisation, school exclusion and entry into the juvenile justice system, that the provision of culturally appropriate education and training is crucial to prevention of contemporary removal of Indigenous children and young people (NSW AECG submission 362page5).

Inter-generational effects and later removal The effects of separation on past generations can be handed on and contribute to further separation of children from their parents today. Many submissions to the Inquiry raised this issue. It has also been noted in previous Inquiries (HREOC 1993). Both Indigenous people and non-Indigenous experts in mental health and genocide studies have commented on the inter-generational effects outlined above and these have been discussed in more detail in Part 3 of this report.

Separation is linked with psychiatric disorders and with trauma and loss. Separation from the primary carer may render a person less secure and create later difficulties in forming relationships. Those who have been separated may carry with them a fear concerning the loss of their own children. In some cases children in successive generations have been removed. Beresford and Omaji, in an extensive analysis of Indigenous youth and involvement in the WA juvenile justice system, argue that it ‘is impossible to overstate the destructiveness of forcible removal’ (1996 page 33). Removal and institutionalisation had a number of effects including loss of opportunities to acquire cultural knowledge, lack of good models of relationships and parenting and a sense of unresolved psychological trauma. All of these factors have affected children and increased their likelihood of institutionalisation.

Many of the children of those who were removed have not been exposed to, or in some cases have rejected, the controls and authority of Indigenous culture (ALSWA submission 127 page 338).

Sean is my son. He is16 years ofage. He is in jail atthemoment. He has been in and outof jail sincehe was12 years ofage. He doesnotknow how much it hurtsme to see him locked up.He needshis family. I need him.

When I go and visit him hetells me that he is very sorry for what he has done to me. Hejust cannot seem to help himself. He just cannot help getting into troublewith the cops.

‘Sean has been in and out of jail for anumberofoffences. He does not really know what he wants in life. It is very hardfor him and for me … I have to look after five other children whoareall younger than Sean …

Thingshavenot changedthat much fromwhen I was takenaway from parentsand placed in a mission at Norseman. Bythetime I gotout, my mum had died and I couldnotfind my father. I think he had gone somewhereover east and fromwhatI heardhe hit the bottle pretty badly.

Sean’s father had alsobeen taken away from his parents. He hadgone toMogumber Mission. He leftme when Sean wasonly two years ofage … Sean’s dad could not cope with his childhood. He was subjectedto sexualabuse and made to work really hard.

No wonder Sean is the way he is. I and Sean’s dad havehad ourownproblems andI suppose they have rubbedoff on Sean.

Quoted by ALSWA submission 127 on pages335-6.

There is clearly a direct association between removal and the likelihood of criminalisation and further instances of removal. The compounding effects of separation and criminalisation were shown dramatically in the Royal Commission into Aboriginal Deaths in Custody investigations. Forty-three of the 99 Indigenous people who died in custody had been removed from their families as children; 43 had been charged with an offence at 15 years of age or younger (National Report 1991Volume 1 pages 5-6).

Discussion and recommendation Addressing the underlying issues identified in this chapter is necessary to remedy both the effects of past removal and the causes of contemporary removals.

This tragic experience[ofremoval], across several generations has resulted in incalculable trauma, depression and major mental health problems for Aboriginal people. Carefulhistory taking during the assessment of most individuals and families identifies separationbyone means or another- initially the systematic forced removal of children andnow the continuing removal by Community Servicesor the magistracy for detention of children, rather than theprovision of constructive support to families and healinginitiatives generatedfrom within theirown communities. Theprocess has been tantamount to a continuing cultural and spiritual genocide both as an individual and a community experience (submission650 pages4-5).

A recent review of the South Australia juvenile justice system noted,

Becauseof their high unemployment rates, low educational levels, low family incomes, etc., Aboriginal youth are at higher risk of offending in thefirstplace. The introduction of far-reaching social justice strategiesdesigned to address the inequitablepositionof Aboriginalpeople within the SouthAustralian (and Australian) community are clearly required. But although thiswasone of thekey recommendationsof the Royal Commission intoAboriginalDeaths in Custody, the extent to which this is occurringseems to be limited (Wundersitz1996page205).

Social justice measures taken by governments should have special regard to the inter-generational effects of past removals. Parenting skills and confidence, the capacity to convey Indigenous culture to children, parental mental health and the capacity to deal with institutions such as schools, police, health departments and welfare departments have all been damaged by earlier policies of removal.

Unless these conditions are altered andliving conditions improved, social and familial disruption will continue. Child welfare and juvenile justice law, policy and practice must recognise that structuraldisadvantage increases the likelihood of Indigenous children and young people having contact with welfare and justice agencies. They must address this situation.

The denial of social justice violates the basic citizenship rightsof Indigenous people in Australia. Citizenship rights include rights to standards of health, housing, education and equality before the law enjoyed by other Australians.

There isgrowing concern about the abject failureofgovernments – state, territory and commonwealth – to adequately address the rightsof Australia’s Indigenous people.All the reports on Aboriginal services and funding are indicating that the situationforAboriginalpeople is not improving.Health, education,housing,water, infrastructure, and roads are all basic citizenship rights of Australians, yet Indigenouspeople are not receiving an equal level of service outcomes (Northern Land Council submission 765page 16).

Earlier inquiries have made detailed recommendations relating to social justice. Commonwealth, State and Territory governments have committed themselves to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody addressing social justice. The Inquiry commends those recommendations and draws attention to the link between the appalling living conditions in many Indigenous communities and the need for a social justice response built on the right to self-determination. The previous Commonwealth Government committed itself to a social justice package as the third tidr of response to the High Court’s decision in Mabo (No 2).3 The Council for Aboriginal Reconciliation, ATSIC and the Aboriginal and Torres Strait Islander Social Justice Commissioner each prepared a report on how to achieve social justice for Indigenous Australians. The Cape York Land Council urged the Inquiry to ‘strongly advocate’ to government the implementation of a social justice package (submission576; see also Northern LandCouncil submission 765 pages 3 and 16).

Indigenous groups argued that Aboriginal and Torres Strait Islander social justice

should not be seen simply as a package of goods and services to be delivered to their communities. ‘It entails accepting the rights of Indigenous peoples and establishing processes which translate abstract principlesinto the actual enjoyment and exercise of rights’ (Dodson 1995 page 97). These rights are both individual human rights and collective rights that arise from the status of Aboriginal and Torres Strait Islander peoples as Indigenous peoples. They include the right of Indigenous peoples to self-determination.

Social justice Recommendation 42: That to address thesocial and economic disadvantages that underlie the contemporary removal of Indigenous children and young people the Council of Australian Governments, 1.in partnership with ATSIC, the Council for Aboriginal Reconciliation, the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner and IndigenouscommunityorganisationsdealingwithIndigenousfamilyand children’s issues,develop and implement a social justice package for Indigenous families and children, and 2.pursue the implementation of the recommendations of the Royal Commission into AboriginalDeaths in Custody which address underlying issues of social disadvantage.

Endnotes

1A homelandhas beendefined as anarea with which an Indigenous young person recognise an ancestralor cultural links. 2For example,see the National Report of the RoyalCommission intoAboriginal Deathsin Custody, the Toomelah and Mornington reports of the Human Rights and EqualOpportunity Commission and the Aboriginaland Torres Strait Islander Social JusticeCommissioner’s Fourth Annual Report. 3Theother two tiers of response were theCommonwealth Native Title Act and the AboriginalLand Acquisition Fund.

26A New Framework An entrenched pattern of disadvantage and dispossession continues to wreak havoc and destruction in Indigenous families and communities. This situation has been described in the preceding chapters of this Part. State and Territory legislation, policy and practice in the areas of child welfare, care and protection, adoption and juvenile justice do not comply with the evaluation criteria established by the Inquiry (see Chapter 15).

They do not comply with the right to self-determination as applied to Indigenous peoples. In general terms, they have been developed upon an assumption that consultation and participation in service delivery are adequate responses to Indigenous needs. Even consultation has been lacking in many areas of legislative change and policy development in issues directly affecting the likelihood of removal of Indigenous children and young people from their families and communities.

The Secretariat of Aboriginal and Islander Child Care (SNAICC) submitted that the ‘critical principle of the right to self-determination has been all but ignored and swept under the carpet in relation to Aboriginal families and children’ (submission 309 page 31). According to SNAICC, respect for self-determinationhas been stronger in other areas of policy such as health and education than in relation to families and children.

State and Territory policy and practice are often affected by on racial discrimination, in particular, by indirect discrimination. The evidence presented to the Inquiry indicates that Indigenous children and young people do not receive equal treatment before the law. The juvenile justice system produces massive levels of criminalisation and incarceration of Indigenous youth. Indigenous children are grossly over-represented at each stage of child welfare intervention. Their level of over-representation increases as the degree of intervention increases,with the greatest over-representation being in out-of-home care. The failure to ensure equality before the law breaches article 26 of the International Covenant on Civil and Political Rights. It breaches article 5 of the International Convention on the Elimination of All Forms Racial Discrimination which requires States to prohibit and eliminate racial discrimination. It breaches the Racial Discrimination Act 1975 (Cth) which implements the provisions of the Convention. Article 2 of the Convention requires state parties to implement policies to eliminate racial discrimination. These policies include reviewing governmentlegislation and practices which have the effect of creating or perpetuating racial discrimination.

Cultural renewal is another evaluation criterion established by the Inquiry. The continuing removal of Indigenous children and young people from their families and communities interferes with the enjoyment of culture, religion and language. The failure to remedy the disadvantage that leads to removal demonstrate a failure to ensure the conditions for the exercise of the right to enjoyment of cultural life and for cultural renewal.

The Aboriginal and Torres Strait Islander Social Justice Commissioner has concluded that Australian governments have been guilty of human rights abuses in relation to Indigenous children and young people and that the gross over-

representation of Indigenous youth in juvenile institutions raises issues under the Convention (Dodson 1995 pages 35-38). Submissions and evidence to the Inquiry support this view.

State and Territory legislation, policy and practice violate existing or emerging human rights norms in relation to young people. Most importantly, they do not comply with the fundamental principle of eliminating the unjustified removal of Indigenous children and young people from their families and communities. These principles reflect the minimum requirements against which existing legislation, policy and practice must be evaluated.

The system oflegislation,policy andservice delivery dealing with children in this country is itself a structural barrier to the rightsof Aboriginal children. The fragmentationof thefields of children’sservices, broadly speaking, issubverting andundermining the rightsof Aboriginal and Torres Strait Islander children.Unlesswe take a national approach to legislative and policy matters regarding Aboriginal children, the situationwill remain intolerable and hopelessly inadequate to deal with thepresent crises and certainly will beno closer torecognising the ‘right of self-determination’ of Aboriginal andTorresStrait Islander children (SNAICCsubmission 309 page 34).

Existing systems have failed miserably. Nowhere is this failure more profoundly reflected than in the inability of States and Territories to reduce the number of Indigenous children placed in care, held in police cells and sentenced to detention centres.

The starting point for a new framework is the right to self-determination. For this reason this right is discussed at some length. The framework is also built upon Australia’s other human rights commitments, especially those conferring rights on Indigenous peoples and on children and young people generally.

The Inquiry supports the eventual transfer of responsibility for children’s well-being to Indigenous peoples and proposes a framework for negotiating autonomy measures (Recommendation 43). It would be inappropriate and untimely for the Inquiry to pre-empt the results of these negotiations by outlining in this report the features of a self-government scheme.

Evidence to the Inquiry and substantial research findings establish conclusively the need for a fundamentally different approach if the objective of eliminating unjustified and unnecessary removal of Indigenous children from their families and communities is to be achieved. This goal is consistent with article 6 of the draft Declaration on the Rights of Indigenous Peoples.

Indigenous peopleshave the collective right tolive infreedom, peace and security as distinct peoples and tofullguarantees against genocideor any other act ofviolence, including the removal of indigenous childrenfrom their families and communities under any pretext.

Self-determination

The right to self-determination Independent states long denied that their Indigenous peoples enjoy the

recognised international right of all peoples to self-determination. Self-determination is a collective right exercised by peoples. States preferred to describe their Indigenous populations as minorities, reserving the term ‘peoples’ to describe nations and emerging post-colonial nations. However, according to the Chairperson of the United Nations Working Group on Indigenous Populations, Professor Daes, ‘Indigenous groups are “peoples” in every political, social, cultural and ethnological meaning of this term’ (quoted by Coulter 1995 on page 131). Indigenous leaders in Australia have also argued that Indigenous peoples in Australia are ‘peoples’ within the meaning of the term (Dodson 1993).

Once it is accepted that Indigenous peoples have a right of self-determination, debate surrounds the question what that right involves.Article 1 of the International Covenant on Civil and Political Rights defines the right of self-determination as involving the free choice of political status and the freedom to pursue economic, social and cultural development. The Covenant is binding on Australia.

Article 27 of the Covenant provides that ‘persons belonging to ... minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. Many international legal scholars consider that article 27 implicitly recognises a right to self-government or autonomy for Indigenous peoples and other minorities when that is necessary to protect their cultural distinctiveness. Some scholars have gone further and argued that customary international law recognises a right of cultural self-determination for Indigenous peoples (Iorns 1996 page 8). One aspiration Indigenous peoples have for the draft Declaration on the Rights of Indigenous Peoples is that it will put beyond doubt their right of self-determination.

‘[The] free choice of political status carries no necessary implications’ (Dodson 1993 page 41). Self-government, regional autonomy and integration into an existing nation state are all possible exercises of the right. Coulter summarises what self-determination means for some Indigenous peoples.

It is clear that Indigenous leaders mean self-determination to includefreedom from political and economicdominationbyothers; self-government and the management of all their affairs; the right tohave theirown governments andlaws free from external control; free and agreed-uponpolitical and legalrelationshipswith the government of the countryand other governments; theright to participate in the international community as governments; and the right to control theirown economic development (Coulter1995page 131).

Self-determination is only likely to involve secession from an existing nation state in exceptional circumstances.Professor Daes has stated that self-determination for Indigenous peoples,

... means that the existing State has thedutyto accommodate the aspirations of Indigenous peoples through institutionalreforms designed to sharepowerdemocratically. It also means that Indigenous peoples havethe duty to tryto reach an agreement, in goodfaith,on sharing power within the existing State, and to exercise the right toself-determinationby this means and other peacefulways, to the extentpossible ... Furthermore, the right of self-determination of indigenouspeoples should ordinarily be interpreted as theright to negotiate freely their status and representation in the State in which they live (quotedbyIorns1996onpage 13).

The Working Group developed the draft Declaration on the Rights of Indigenous

Peoples and governments are now discussing it through the United Nations Commission on Human Rights. ‘The purpose of the present standard setting is to recognise the specificity of a numerous group which has been largely ignored by the international community. The draft declaration is essentially seeking to protect the collective rights of Indigenous peoples’ (Burger and Hunt 1994 page 411). Although it will not be binding, the Declaration is significant because it has been drafted in negotiations with Indigenous peoples’ representatives and reflectsthe aspirations of Indigenous peoples. It has been referred to as ‘an historic statement of Indigenous people’s rights’ (Coulter 1995 page 123). Aboriginal and Torres Strait Islander peoples played an important part in the development of the draft Declaration, as did the Australian Government. It reflects more fully than any other international instrument the current goals of Indigenous peoples.