a Critical Perspective

Diana Henriss-Anderssen*

This article is concerned with the extent to which destruction of culture was the intended result of the practice of removal of Aboriginal children in Queensland. It concludes that, while the laws, policies and practices were inconsistent and contradictory, they were based upon a common assumption. This was the construction of Aboriginality, which was defined according to its otherness from the colonisers. The effect of this construct of Aboriginality was to deny Abor~ginal agency, and mask the subjectlvlty of the Aboriginal people as multifaceted intersectional subjects.

Introduction Much of the public debate over the 'stolen generation' has concerned the vexed question of intent. While there seems little doubt that one of the major effects of the practice of removal of indigenous children has been the (incomplete) destruction of culture through the resocialisation of children. there has been much debate over the extent to which this result was ~ntended. This paper will explore this issue through an examination of the laws, policies and practices concerning the removal of Aboriginal children in Queensland.

The removal of Aboriginal children from their families and communities in Queensland falls into two major periods - pre- and post-1965. These two major periods correspond roughly to the protection and assimilation eras respectively, although the use of such terminology can be misleading.' During each of the major periods, powers of removal were exercised concurrently pursuant to legislation specific to Aboriginal people. and to general welfare legislation.

In neither of these periods was the removal of Aboriginal children carried out pursuant to a legislative framework that reflected a slstematic. coherent and calculated policy.' To argue otherwise is to concede too much to the law. In each of the major periods, the laws, policies and practices were inconsistent and contradictory. The official policies masked a range of politic all^^ and

' I,ecturer, School ofl.a\r. James Cook lini\ersit! I rhere is considerable difference. lor e\ample. betireen the polic! ideals of

protection and ass~~nilation and the leglslat~\e apparatus ~lsed to implement them. There 1s also cons~derable oherlap bet\+een the tire periods. 141th the leglslatihe apparatus of prorectlon and asslm~lation operating concurrently in Queensland for most ofthe tnentieth centun

' M'hether \+ell-intent~oned or othern~se.

financially expedient colonising interests, including humanitarian concerns for Aboriginal welfare, but excluding the voices of Aboriginal people themselves. As a result, the legislation and the practices enabled by it often bore little resemblance to official policy.

However, the policies, both official and unofficial, the legislation and the practices were all based on a common assumption. This was the construction of Aboriginality, which was defined according to its otherness from the colonisers. The effect of this construct of Aboriginality was to deny Aboriginal agency, and mask the subjectivity of the Aboriginal people as multifaceted intersectional subjects.

This paper is in two parts. A preliminary discussion of the concepts of construction and deconstruction, in relation to Aboriginality, will precede the examination of the laws, policies and practices concerning the removal of Aboriginal children in Queensland.

A further preliminary point needs to be made. The scope of this paper is not broad enough to do justice to the experience of the Torres Strait Islander people. Much of the available literature on Indigenous Australians and the law adopts the format of discussing Aboriginal experience first, and noting Torres Strait Islander experience where that diverges from Aboriginal experience. The danger in this approach is that it projects Aboriginal experience on to Torres Strait Islander people. The assumption of a category of indigenous Australian people risks adopting the Aboriginal person as the 'essential' indigenous Australian and projecting this on to Torres Strait Islander people.' The experience of the Torres Strait Islander people should not be tacked on to that of Aboriginal people. Therefore the discussion in this paper is limited to Aboriginal people in Queensland, and does not extend to Torres Strait Islander people. The scope of this paper is just not broad enough to do justice to their position.4

Deconstructing the Construct of Aboriginality Post-structural and postmodern discourse' has revealed the influence of duality in Western t h ~ u g h t . ~ This is a tendency to reduce complex relationships to binary oppositions, containing a dominant subject and its 'other ' , lesser counterpart. The act of deconstruction reveals that these binary oppositions are not natural categories, but linguistic constructs that are constructed in relation to each other and are therefore dependent upon each other. As Davies explains:

Conceptual organlsatlon I S not. according to structural and poststructural thought. natural. but constituted b) d~fference Man)

' This will become more apparent during the discussion of essentiality below. V s a result. however; Torres Strait Islanders are overt]) excluded. The writer has

experienced quire a dilemma over this. and is not convinced that this resolution of the dilemma is more desirable.

' For a concise explanation of post-structuralism and postmodernism in relation to legal theor). see Davies (1994). Chs 7 and 8.

" For a discussion of racism and dualistic thinking, see Clarke (1997), pp 232-34.

288 GRIFFITH LAW REVIEW (2002) VOL 1 1 NO 2

concepts are organised into oppositions or dichotomies, which purport to cover the field - something is e~ther sensible or intelligible. inside or outside. positlve or negative, nature or artifice, masculine or feminine, and so on. Derrida explains that in such oppositions, one term is philosophically regarded as superior. while the other term is marginal, a lesser version, or simply a negative. Thus. as feminists have made clear. 'man' is taken to be the paradigm of humanity, while 'woman' is an inferior version. something other . . . The opposition is violent because of the lack of equality, and because the dominant term

7 is formed by the exclusion and repression of the subordinate term.

The use of a binary opposition can obscure the subjectivity of the categories contained within it. The dichotomy of coloniser/colonised, for example, assumes a natural category of colonisers defined in contrast to a natural category of colonised Indigenous people. Not only are any differences between people in each category thereby downplayed compared with their common attributes, but any similarities between people in opposite categories are also dismissed or trivialised. The opposition focuses on one axis of difference at the expense of the multifaceted subjectivity of members of each category. Thus colonial women are classed with colonial men, rather than with indigenous women.'

As explained above, within a binary opposition one of the categories is regarded as superior:

In a classical philosophical opposition we are not dealing with the peaceful coexistence of a VIS-u-v~s, but rather with a violent hierarchy. One of the two terms governs the other (axiologically, logically, etc.) or has the upper hand.9

The dominant term is perceived as the norm and the natural repository of those characteristics valued and claimed by it, while the lesser term is usually constructed of those characteristics rejected by the dominant term in relation to itself. However, the lesser term is essential to understanding the dominant term. Coloniser cannot be understood except in relation to the colonised.

The construction of Aboriginality by the colonising Europeans defined Aboriginal Australians by reference to qualities rejected in their construction of themselves. Aboriginality was seen simply in opposition to the dominant white culture - whether that opposition is viewed in terms o f racial (for example, skin colour) or cultural (for example, 'civilised'/'barbaric','settled'l 'nomadic') difference. The word 'aboriginal' itself is a colonial tern1 and contains no reference to the self-perception or self-identity of ~ u r r i s . " If it

' Davies (1994). p 258. "Similarly. some feminist theory has been criticised for assuming a natural or

essential category of women, which projects middle-class white women's concerns on to 'other' women.

" Derrida, cited in Davies (1994). p 258. '' The term used by Aboriginal people in Queensland in relation to themselves.

did, it might refer to peoples, their homelands and kinship structure. The effect of this non-Indigenous construct of Aboriginality on Murri identity andior culture was to make it invisible to the dominant structures, except insofar as it appeared to conform to the construct. Aboriginal subjectivity was thereby denied.

This is the case for each of the protection and assimilation periods. In each of these major periods, Aboriginality was defined in opposition to the dominant subject, the white male coloniser. The protection ideal relied upon the opposition of Aboriginality to the dominant subject (the 'comparative backwardness of the Aboriginal race to acquire the European arts of civilisation')" to justify their different treatment under the law. The assimilation ideal subsumed Aboriginality into the dominant subject to allow for formally equal treatment under the law. Aboriginal difference was now violently erased, regarded as an aberration. Any perceived Aboriginal difference was still defined in opposition to the dominant subject. In both periods, Aboriginality was seen purely in relation to the dominant subject. Murri subjectivity was denied.

A further result of this duality is the inability to cope with degrees of difference. The extent to which the 'half-caste' population was included in the dominant subject depended upon the perceived degree of conformity, and has varied over time. The degree of conformity of urban Aborigines has similarly resulted in a lack of understanding of urban Aboriginal culture, with any difference from dominant subjectivity perceived as an aberration."

The construction of Aboriginality in opposition to the coloniser has resulted in the apparent erasure of Aboriginal subjectivity and its invisibility to the colonising legal structures. This has effectively denied Aboriginal agency.

Aboriginal writer Larissa Behrendt argues that the apparently equal legal status of Aboriginal people within the dominant legal system in modern times masks the fact that Aboriginal people do not in fact enjoy the same rights as the wider community." By defining Aboriginal people as part of the dominant culture, it disempowers Aboriginal people by implicitly denying their sovereignty and forcing them to have their rights recognised and enforced through the institutional frameworks of the dominant culture.14

Aboriginal agency has effectively been denied by the invisibility of Aboriginal subjectivity to the colonising legal structures. This invisibility is the result of the apparent erasure of Aboriginal subjectivity by the construction of Aboriginality in opposition to the coloniser.

The resulting denial of Aboriginal agency exposed by this deconstruction does not imply that there is an essential or universal Aboriginal subjectivity,

I ' Aborigir~als Protect~on and Prevention of the Sale o f Opium Act 1897 (Qld). prelirninay note.

' Read (1999). p 188 suggests that. until the 1980s, little difference lvas believed to exist between urban Aborigines and lvhites. It is only since the 1980s that research has sholvn that significant differences do exlst.

" Behrendt (1994), p 47. " Behrendt (1994).

but rather the opposite. T h e construct o f Aboriginality masks the subjectivity o f the Aboriginal people as multifaceted intersectional subjects. T h e focus o f this paper on this ' ax i s o f oppression' does not preclude the acceptance o f heterogeneous subjectivity. Rather, the act o f deconstruction undertaken in this paper allows the recognition o f dif ference as relational rather than essential.

T h e Intersectional S u b j e c t T h e m o v e from essentialism t o multiple consciousness has been described b y Angela Harris as involving a number o f acts o f recognition. One is recognition o f a multiplicitous, rather than a unitary, self." Harris writes: ' th is experience o f multiplicity is also a sense o f self-contradiction, o f containing the oppressor within onesel f . I 6 She uses the example o f Patricia Williams. in her article ' O n Being the Object o f ~ r o ~ e r t y ' , " choosing to recognise her white lawyer se l f as well as her black se l f and ' i n so doing t o acknowledge guilt as wel l as innocence . . . This complex resolution rejects the easy innocence o f supposing onesel f t o be an essential black se l f with a legacy o f oppression by the guilty white other.18

T h e second recognition is that ' d i f f e rences are always relational rather than inherent'.I9 T h e example Harris uses here is that o f the 'coloured' girl w h o does not feel coloured in her all-black community but feels most coloured when surrounded b y whites. Her colour is not an inherent part o f her identity, but relative t o her surroundings. T h i s point is also made in relation t o Aboriginal w o m e n b y Larissa Behrendt. w h o says: ' I n a group o f Aboriginal w o m e n you cease being the "other" voice that you are in a group o f non- Aboriginal women.'"

T h e deconstruction o f the Aboriginallnon-Aboriginal polarity, and the focus on this ' ax i s o f oppression' , demonstrate that the legal subject is not essential or natural, but socially or linguistically constructed. Th i s rejection o f essentiality allows for the recognition o f intersections o f subjective experience. For each intersection, the experience o f oppression is d i f ferent . It is not a case o f being more, or doubly, oppressed.

For e x a m p l e , K imber ley Crenshaw argues that b lack w o m e n are marginalised in both anti-racist policy discourse and feminist theory, and that this exclusion:

cannot be solved sllnpl> b! ~ncludlng Black M omen ~ ~ t h ~ n an alreadl establ~shed analqt~cal structure Because the ~ntersect~onal experience I S

greater than the sum o f raclsln and sexlsni, an! anal>s~s that does not

" Harris (1990), p 608. "' Harris (1990). " 14 Slgrls 5 (1998). '7 4 S~gns 5 (1 998) ' " Harris (1990). p 608. '" Behrendt (1 993), p 33.

take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated."

Aboriginal women have also argued that the intersection of race and gender disadvantage is not just the sum o f the two, but a different di~advantage.~: Not only has the dominant male perspective of the Anglo- Australian legal system been projected on to indigenous women, thereby marginalising their interests and experiences vis-2-vw indigenous men,23 but the (white) feminist movement has failed to address the particular position of the indigenous women of ~ u s t r a l i a . ~ '

Intersections of race with class and gender are particularly important in the context of the stolen generation. Although the scope of this paper does not permit the extent of the intersections to be thoroughly explored, the existence of various intersections with gender and class will be recognised where applicable during the course of the paper.

The Removal of Aboriginal Children in Queensland This paper will now turn to an examination of the two major periods identified above in relation to the removal of Aboriginal children in Queensland. Ostensibly, there was a major policy shift from protection to assimilation in the early 1960s. The two major periods (pre-1965 and post-1965) roughly correspond with the changes in official policy. For each of these major periods, the following themes will be demonstrated:

that the laws, policies and practices were inconsistent and contradictory; that this inconsistency and contradiction was due to the political and financial expediency of the various colonising interests, including humanitarian concerns for Aboriginal welfare;25 that at all times the relevant policies, laws and practices were based on a construction of Aboriginality which was defined according to its otherness from the colonisers; that the effect of this construct of Aboriginality was to deny Aboriginal agency; and that intersections with gender and povertl (class) are recognised.

' Crenshaw (1995), p 111. ' See, for example. Huggins (1991): Behrendt (1993). " For example. the Royal Commission into Aboriginal Deaths in Custody has been

criticised for focusing on Aboriginal men. Out of the 339 recommendations of the Royal Commission, not one related specifically to Aboriginal lvomen. See further Scutt (1990): Atkinson (1990), p 9; Cunneen and Kerley (1995) p 72: Pax~nan and Corbett (1991). p 2.

' V e e . for example. Huggins ( 1991): Behrendt ( 1993). " But excluding (until the latter part of the twentieth century) the koices of

Aboriginal people themselkes.

The Pre-1965 Period In Queensland in the period prior to 1965, the removal of Aboriginal children from their communities and families took three major forms: unauthorised removals; removals authorised by legislation specific to Aboriginal people; and removals authorised by general welfare legislation.

Unauthorised Removals

The history of child removal in Queensland began before government intervention or sanction. The abduction and exploitation of Aboriginal women and children for sex and labour forms part of the colonial history of dispossession and violence.26 That history in Queensland was one of extreme violence underwritten by the dependence of the agricultural, pastoral and marine industries on Aboriginal labour.27 The exploits of the Native Police were n o t o r i ~ u s . ' ~ Contemporary reports refer to the abduction and exploitation of Aboriginal children:

Boys and girls are frequently taken from their parents and their tribes, and removed far off where they have no chance of returning; left helpless at the mercy o f those who possessed them, white people responsible to no one and under no supervision by any proper authority . . . Stringent legislation is required to prevent a continuation of abuses concerning the women and children.29

This period in the history of colonial Queensland was characterised by extreme lawlessness. Despite the decision of the Full Court of the Supreme Court of New South Wales in R v Jack Congo ~ u r r e l l ~ ~ in 1836 that Aboriginal Australians were British subjects and subject to the colonial law, the reality was that they did not receive the protection of the law. The law enforcement agencies that did exist failed to prevent the abduction of Aboriginal children. The gap between the law on the books and the law in action was extreme. The subject in British-colonial law was the dominant colonial 'settler', and the Aboriginal people would be protected by the law to the extent that they fitted the mould of the dominant subject. In reality, the very opposition of coloniser to Aboriginal meant that this was virtually impossible.3'

'" Kidd (1997). pp 29-33: Haebich (2000) pp 137-43. 297-300. The gender implications are already apparent.

" Kidd (1997): Haebich (2000). ' Kidd (1997): Haebich (2000). ''I Queensland Government (1896). p 4. '" R v Jack Co~igo .2J14rrell(1836) 1 Legge Rep 72. " As Parkinson (2001). p 107 notes. Aboriginal people were more iikely to be

punished than protected by the colonial l a ~ v . For a discussion o f the ambiguous si tuat~on of Aboriginal subjects under the colonial l a~v . see Cunneen and Libesman (1995), pp 27-28: Mathe\+ et al (1995).

" See. for example, the discussions in Clarke (1997); McRae et a1 (1997); Cunneen and Libesman (1995).

" Historians cite dispossession from land and resulting malnutrition, alcoholism, drug addiction and rampant disease.

' V a e b i c h (2000), p 138. " Meston (1 895); Queensland Government (1 896).

employers objecting to outside interference in their exploitative nark arrangements; missionaries keen to gather the dying remnants together and to nark nith 'half-caste' children; to\+nspeople objecting to unsightly camps in their midst;

36 developers l~anting more land and resources.

According to Kidd, the intention of the Queensland parliament was not to facilitate wholesale racial segregation, nor to set up reserves as total institutions." She argues that the government lacked the financial and administrative means to martial, support and supervise a population of some 20 000 Aborigines. Further, there was no popular support for government sustenance of the entire Aboriginal population. The new law, she argues, was aimed at the population of between three and four thousand living in the south of colony. That gender was a factor in the introduction of the Act is evident from the particular concern to prevent the sexual exploitation of Aboriginal women and children,38 and the gendered division of exploitative labour arrangements.

The protection ideal was therefore just one of a range of policy factors in relation to Aboriginal people that led to the introduction of the 1897 legislation. The common assumption underpinning all these factors was the construction of Aboriginality in opposition to the coloniser.

The Aboriginuls Protection und Prevention o f the Sale of O p i u m Act I897 provided the mechanism for the segregation of Aboriginal people on reserves and settlements, and the control of the conditions under which they lived and worked. The Act provided for the proclamation of districts within the colony, 39

the appointment of Protectors of Aboriginals for each district," and the appointment of a Chief ~rotector ." It also provided for the appointment of superintendents of the reserves."

The definition of 'aboriginal' under the Act enshrined the construct of Aboriginality into legislation. Under section 4 of the Aborig inuls Protection und Prevent ion of the Sule of Opiut?i Act 189 7 , certain persons were deemed Aboriginal for the purposes of the Act. The section read:

Every person \+ ho is - (a) An aboriginal Inhabitant of Queensland; or (b) A half-caste nho. at the commencement of this Act. is l~ving with

an aborig~nal as wife, husband or ch~ld; or (c) A half-caste \ ~ h o , otherllise than as wife. husband or ch~ld.

habltuall! l~ves or associates \~ i th aborig~~:als.

", llaebich (2000). p 169. Kidd ( 1997). pp 16-47

' " S e e for example. Ilaebich (2000). pp 292-3 l2: K~dd (1997). Chs 1-3 "' ,-lborigitinls P~orecrioiz triiti P~evetztiotl oJrhe .S(iie ofOi, i~i~~z .-lc! 1897. s 5 . "' .-lbor.igitlnIs Protectiotl ntzd Preveiztiotl of tile Sale oJ0pilr1i1 .Act 1897. s 6 " ,-lho~igitznls P~otec l io i~ uiid P~eveiliiotz oJriie Sale o /Ol;~i~i~i~ :let 1897. s 6. " ,-lho~igitznls P~orecrioti iltzti I'rex~etziiot7 oJii7e Sale of O;~ilitir .Acr 1897, s 7.

(d) shall be deemed to be an aboriginal \\ ithin the meaning of this Act. Nowhere in the definition of 'aboriginal' in the 1897 Act or in successive

Queensland legislation is there any reference to Aboriginality in Murri terms of reference. There is no reference to peoples such as Gangalu, Jiman, Gungarri or Kuku-Yalngi. There is no reference to descent or kinship.

Aboriginality is defined in terms of its perceived divergence from the dominant colonial subject. Various definitions of 'aboriginal' in the successive Acts assume that the essence of Aboriginality is its otherness from non-

I Aboriginal people. The content of that Aboriginality is blank. or empty. The

I

I effect of colonisation is the apparent erasure or destruction of the culture and

1 identity of the colonised (except in relation to the coloniser) in order to provide the blank page from which progress can ~ c c u r . ' ~ The obvious circularity in

1 section 4(a), deeming an Aboriginal inhabitant of Queensland to be an I Aboriginal, is evidence of the emptiness or lack of content of the definition.

Aboriginal is simply defined in opposition to the colonisers. The definition of 'aboriginal' under the Act was considered by the Full

Court of the Supreme Court of Queensland in Dempsej~ v ~igg . ' ' The question before the court was whether an Aboriginal woman who had married a Malay (having Dutch nationality) was still subject to the provisions of the Act. It had been argued before the court that, upon her marriage, the woman had acquired the Dutch nationality of her husband and that therefore she was no longer subject to the Act. It was further argued that the effect of the marriage was that she no longer required the protection o f the Act, having passed from the protection of the state under the Act to the protection of her husband under the

I general law. The court rejected this argument. It was held that the woman's marriage

did not alter her personal status as an Aboriginal. In the course of his judgment. Chubb J noted:

There 1s a d~fferznce betneen race and natlonallt~ T h ~ s IS a questlon of race A man or \\oman can no more change them race than a leopard can change ~ t s spots ''

This reference reflects the assumption that the category 'aboriginal' is a natural one. It is the apparent naturalness of the category that obscures its constructedness.

The question arose out of a complaint that the woman had been employed by the appellant without a permit under the Act. The court's white male perspective is apparent in the leading judgment of Cooper CJ, who said:

Certainly it seems rather hard that a white man who has married an aboriginal woman is not permitted to take her to live with him if he

" Rose (1996). This does not imply that Aboriginal culture and identity does not contlnue to exist; rather that it is ir~visible to the dominant structures.

" De1npseyvR~gg[1914]StRQd?45. Den7pse.v v Rigg [I9141 St R Qd 245. per Chubb J at 248.

296 GRIFFITH LAW REVIEW (2002) VOL 1 1 NO 2

were employed by some other employer and lived in the house of his employer; but. under s 14, if he were emplo~ed on the premises of his emplo~er. he could not have her living with him on those premises.46

The most important effect of this constructedness of Aboriginality as otherness is its denial of Aboriginal agency. The agents in the case of Dempsey v Rigg were part of the colonising apparatus - the police constable Dempsey, the appellant Rigg and the legal players. The Aborigina! woman at the centre of the case, Eliza Woree, had no agency.

The powers of removal under the 1897 Act were contained in sections 9 and 3 1 . Section 9 gave the minister power to remove Aboriginal people to, and detain them on, reserves and institutions, and to transfer them between reserves and institutions. Section 31 gave the Governor in Council power by proclamation to make regulations for a wide range of matters including:

(6) Providing for the care, custod~ and education of the children of aboriginals;

(7) Providing for the transfer of any half-caste child, being an orphan, or deserted by its parents, to the control of the State Children Department;

(8) Prescribing the conditions on which any aboriginal or half-caste children may be apprenticed to, or placed in service with. suitable persons.

Thus the power to remove and restrain Aboriginal people on reserves and institutions was an administrative power which was not subject to judicial review. The wide-ranging power to make regulations under the Act enabled government officials to control almost every aspect of Aboriginal lives, including the custody and care o f their children. Legislation ostensibly designed to protect the Aboriginal people from unscrupulous exploitation by non-government interests had the effect of placing them under almost total government control. The 'comparative backwardness' of the Aboriginal people justified a reversal of the normal protection of liberty under the law. Here the vulnerable party was the one incarcerated. The irony is well illustrated by the case of a seven-year-old girl rescued from the systematic abuse of the wife of a police constable, who claimed to have 'adopted' the child. The woman was convicted of aggravated assault, and fined. The child, however, was not returned to her family. She was held to be a neglected child and sent to an industrial scho01.~'

' V e m p s e y v Rigg [I9141 St R Qd 245. per Cooper CJ at 248. Section 14 makes it an offence to employ (otherwise than in accordance i+ith the provisions of the Act) or permit an Aboriginal or female half-caste to be in any house or premises in his occupation or control.

i' Haebich (2000), p 312. Although this removal was effected under the general \+elfare legislation (see below), the same result would have been achieved under the Aboriginals Protection and Prevention o f the Sale of Oprum Act 1897. This case demonstrates the choice of enabling legislation under which removals could be effected.

The inclusion of express references to 'female half-castes' in many of the protective sections of the Act is evidence of the gender orientation in the Act. This reflects a concern to prevent sexual exploitation of female Aboriginal adults and children4*. The Amendment Act of 1934 broadened the definition of those subject to the Act, by increasing the scope of the definitions of 'aboriginal' and 'half-caste', and increased the powers of the Chief Protector.

In practice, under the 1897 protection legislation, children were subject to various forms of removal. One of the major forms of removal of children during this period was the initial removal, under the section 9 power, to reserves or missions. It appears that many of the children who were removed from their communities and extended families under this power may have been removed with an adult family member. According to Queensland government estimates, 2024 of the total of 8912 Aboriginal peo le who were removed to f' institutions between 1908 and 1971 were children.' Of these, only 249 were not accompanied by adults.50 This did not preclude separation from that adult upon arrival at the settlement.

Once on the reserves or missions, family members were often separated. The dormitory system operated extensively throughout Queensland as the major method of removal of children from their families on the reserves. Separate dormitories were established on most reserves and missions for boys and girls. Single mothers were allowed to keep their children with them in the women's dormitories until the children were of school age, at which time they would be transferred to the children's dormitories. In addition to the children of single mothers, the children's dormitories housed children who were orphaned, 'neglected' or 'uncontrollable'. They were also used as a place of punishment.5' Contact between children removed to dormitories and their parents and other family members was limited.

Parents or children were also liable to transfer between institutions under the section 9 power, sometimes as a form of punishment, at other times for labour purposes. This transfer to other institutions was another method of separating children from their families or vice versa.

Detention of children for misbehaviour or criminal offences committed by children on reserves and missions could also be processed under the State Children Act 1911 (see below). This would result in the transfer of those children to the State Children Department. They could then be detained in white institutions. Children raised in institutions were usually sent out to work around age 12-14. This involved a further removal from family and community.

The projection of non-Aboriginal gender stereotypes on to Aboriginal people resulted in the differential treatment of girls and boys in relation to the

'' As to the preoccupation of the colonising apparatus with female Aboriginalit), sexualiv, see Walden (1995): Behrendt (1993).

' ' I Queensland Government (1996) cited in Haebich (2000), p 174. '"ueensland Government (1996). cited in Waebich (2000) p 174. " O'Connor (1993), p 14.

care, discipline, training and education they received in the institutions, and the employment they were sent out to.

The wide-ranging administrative powers of sections 9 and 31 allowed the extent o f removal, segregation and control to be determined at an administrative level. The extent of the exercise of those powers depended very much on the discretion of the Chief Protector. In fact, the extent to which the protection measures were invoked increased during the term in office of the second Chief ~ r o t e c t o r . ~ ' In practice, the extent of the protectionisegregation system went far beyond that originally envisaged by the Queensland parliamet~t.

Removals Authorised by Legislation specific to Aboriginals, 1939-65 The 1937 National Welfare Conference is often heralded as the beginning of the 'assimilation' era in Australia. The unanimous resolution of the delegates from the states and Commonwealth was that:

The destiny of the natives of Aburiginal or~gin, but not of the full blood. lies in their ultimate absorption by the people of the Common\yealth, and it therefore recommends that all efforts be directed to thls end."

But, according to Kidd, the Queensland version of assimilation presented at that conference differed in important respects from the Western Australian model of absorption through the 'breeding out ' of ~ b o r i g i n a l i t y . ~ ' The Queensland version focused on assimilation through socialisation, and advocated educational and vocational training on communities to allow individuals to take their place in the white ~ o m m u n i t y . ' ~

The 'assimilation' ideal embraced the Eurocentric model of dominant subjecthood and endorsed the negative value attributed to Aboriginality. Aboriginality would be erased as individuals were trained to fit the dominant white model of subjecthood. In the event, however, the Queensland parliament did not adopt this ideal as policy. The Department was unable to gain the financial support required to implement such a policy ideal.j6 When the Aboriginals Preservation and Protection Act 1939 was enacted, the official policy instead reflected the financial concerns of the government to reduce the numbers of people 'supported' on settlements." The official rhetoric became 'emancipation of half-castes'.'' Under the 1939 Act, the definition of 'half- blood' was narrower than that of 'half-caste' in the previo~is legislation. People

i2 Kidd (1997). pp 70-79. " Cited in Bzresford and Omaji (1998). p 30. '' Kidd (1997). p 141. ji Kidd (1997) p 142. '' Kidd (1997), p 145. '' That government support for settlements was subsidised by the labour of the

Aboriginal people. in terms of Lvages paid into government accounts and unpaid hours of work on settlements. does not appear to have been recognised.

j8 Kidd (1997). p 145.

who had formerly come within the definition of 'half-caste' were no longer subject to the new legislation, and were 'free to earn their own living and live their own lives'.59 Those who still fell within the auspices of the Act, however, were subject to even greater control.

The administrative powers of removal were increased under the 1939 legislation. The power to order the removal, detention and transfer of Aborigines between reserves was retained, and now resided in the Director of Native ~ f f a i r s . ~ ' The power to make regulations extended to the care, custody and education of the children of Aborigines, and prescribing the conditions on which Aboriginal children could be apprenticed or placed In ~ e r v i c e . ~ '

The most striking feature of the Aborlglnulr Prerervutlon and Protection Act 1339 was the guardianship power contained in section 18. This section made the director the legal guardian of every Aboriginal child in the state under the age of 21. In t h ~ s capacity, the director had the power to consent or refuse consent to marriage,62 and make arrangements for the custody of the c h i ~ d r e n . ~ ' The director retained this guardianship power until 1965, when the Act was repealed. The local protector was given power under section 21 to remove any Aborigines camped in or near townships 'to such other place at such distance from such township or place as he may direct'.

Removal under General Welfare Laws, Pre- 1965 The removal of children during the 'protection' era was also enabled by a range of general welfare laws. These laws were, for the most part, apparently neutral - that is, they did not differentiate or overtly discriminate against Aboriginal people. However, as pointed out by the Human Rights and Equal Opportunity Commission, the application of non-Indigenous standards of child raising resulted i:i the discriminatory treatment of Aboriginal people under these apparently non-discriminatory laws.64

Removal of Aboriginal children pursuant to legislative authority in Queensland commenced with the Industrial and Reformutories Schools Act 1 8 6 5 . ~ ~ This Act predated the Aboriginals Protection and Prevention o f the Sale o f 0 ium Act 1897 by 30 years, and reflected a mentality of 'rescue and

, 6 R . reform . T h ~ s mentality is founded in the history of 'reformatory' removal and institutionalisation of children and other vulnerable individuals6' in

Queensland Parliamentary Debates. 1939 at 452. cited in Kidd (1997). p 145. Formerly the Chief Protector This po\+er had been the minister's under the prevlous legislation. .-lborigitlals Presen,atiorl and Protect~on .Act 1939. s 12. ,-lbor~ginals Presernation and Protection ,Act 1939. s 18(2).

Aborlglnirls Preservat!ot~ and Protectron d c t 1939. s 18(3). Human Rights and Equal Opportunity Coniniission (1997). p 33. Mean\\liile. the unla\\ful remobal of children continued. Kidd (1997). p 2 1 . Kidd (1997). pp 20-21 describes those ~ndividuals targeted by the reformatory m e n t a l ~ t y a s 'unschooled young children. females. the poor. itinerants, the

nineteenth-century Britain and colonial Australia. The focus was more on social control than protection of the individuals.

Unlike many o f the later laws o f its genre, the Industrial and Reformatories Schools Act 1865 was overtly discriminatory. The mere fact of Aboriginality constituted neglect under the Act. Section 7 of the Act defined neglected child to include 'any child born of an Aboriginal or half-caste mother'. Other grounds of neglect included wandering about, frequenting any public place, sleeping in the open air, and having no home or settled place of abode. A child found to be neglected might be ordered to be removed from his or her mother and placed in an industrial or reformatory school. Missions were registered as schools under the A C ~ . ~ ~ From 1880, gaols were also defined as institutions under the A C ~ . ~ ~ From age of 12, the children were sent out to work."

The reference in section 7 to Aboriginal children was removed from the Act in 1906. Given the breadth of the remaining grounds of neglect, this amendment would not necessarily have had the effect of limiting the application of this Act to Aboriginal children.

Destitute children were also liable to removal to an orphanage under the Orphanages Act 1879. 'Destitute' was defined as any child under the age of 12 found without, or deserted by, its parents, or whose mother or father was unable to support it. This Act and the Industrial and Reformatories Schools Act 1865 were repealed by the State Children Act 1911.

The State Children Act 1911 made the director of the State Children Department the guardian of all state children, and empowered him to detain them in institutions, apprentice them out or place them in the custody of some suitable person. Such action could be taken without reference to parents or relatives of the child. Included in the definition of state children were neglected or convicted children, or any other child received into or committed to an institution or to the care of the department.

From 1935, the director of the State Children Department was also responsible under the Adoption of Children Act 1935 for making adoption orders for children under 21. In certain circumstances, the director was empowered to dispense with the consent of the child's parents or guardian. Those circumstances existed where the director was satisfied that the parent or guardian had abandoned or deserted the child, could not be found or was incapable of giving consent, had persistently neglected to contribute to support, or was a person whose consent ought, in the opinion of the director and in all the circumstances of the case, to be dispensed with.

In practice, children not living on reserves were subject to removal under this legislation. They were removed generally to white institutions. Some were

destitute, the homeless. or those whose associates were judged as unreliable or unsuitable'.

" Deebing Creek 1895. Myora 1895. Mapoon 1901, Yarrabah 1901. 6" Kidd (1 997). p 3 1. '" Kidd (1997), p 46. She states that this accorded with the practice that applied to

white children from orphanages and reformatories.

sent to dormitories on the reserves and missions. Others were fostered or adopted. Prior to 1965, it seems that the numbers of Aboriginal children fostered and adopted may have been small.71 The practice of sending the children into employment as young teenagers involved a further removal.

Although, from 1906, these general welfare laws contained no overt reference to Aboriginal children, they embraced a Eurocentric model of living. In practice, Aboriginal people were less likely to fit this model, and were therefore predisposed to action under this legislation. The grounds of neglect, combined with the impoverished conditions experienced by Aboriginal families, and differences between indigenous and non-indigenous patterns of child raising, predisposed Aboriginal children to removal under this legislation. These factors will be discussed in more detail below in the section on the post-1965 era. Non-Aboriginal people who likewise did not fit the mould of the dominant colonial legal subject - whether because of race, culture, class, or gender, or combinations of these - were also likely to have suffered covert discrimination under the legislation.

In practice, the powers of removal under general welfare laws could be invoked to enable the removal of Aboriginal children who otherwise fell outside the definition of 'aboriginal' in the protection legislation, particularly after the definition of 'half-blood' was narrowed in 1939. Effectively, the legal apparatus had a choice from a range of enabling legislation, whether specific to Aboriginal people or not, under which to effect the removal of Aboriginal children from their families and communities

While Aboriginal children were concurrently removed from their families under general welfare legislation, the major apparatus for child removal in Queensland in the period prior to 1965 was the 'massive e d i f i ~ e " ~ of protection legislation. To argue, however, that this reflected a government commitment to the protection ideal is to infer a coherent adherence to the ideal which was never the case. The law that enabled the removals was the result of a range of politically and financially expedient policy options, which were underpinned by the colonial construct of Aboriginality. The denial of legal guardianship of their children and the powerlessness of the Aboriginal people in relation to the widespread practice of removal of their children by the colonial legal apparatus is an example of the denial of basic legal agency that resulted from this.

The Post-1965 Period By 1965, assimilation had become the official policy o f the Queensland government. The purpose of this policy as expressed in 1956 was that: 'Aboriginal children [were] ultimately to be assimilated into the white community as useful citizens of the

In 1951 and 1961, delegates at the national welfare conferences had adopted the policy of assimilation. Assimilation was defined to mean that:

" Haebich (2000). p 532. O'Connor (1993), p 14. '' Bayne, cited in Clarke (1997), p 252. " Cited in Haebich (2000), p 528.

all Aborigines and part-Aborigines are expected eventually to attain the same manner of living as other Australians and to llve as members of a singlc Australian community. enjoying the same rights and privileges, accepting the same responsibilities. observing the same customs and influenced by the same beliefs, hope and loyalties as other ~ustralians.'"

This formulation of the ideal of assimilation envisaged a state of transition towards the goal of formal equality. Formal equality is essentially equality as sameness. It requires strictly identical treatment, regardless of difference. The concept of formal equality assumes the equality of human beings and accepts or ignores existing socioeconomic and cultural differences. Guarantees of formal equality are often inadequate guarantees of real or material equality where there is pre-existing disadvantage, in that identical treatment will often simply perpetuate that disadvantage.

Formal equality in this context encapsulates the endorsement of non- Indigenous culture and the denial of lndigenous culture. It reflects the colonising concept of progress from a state of backwardness towards the adoption of the dominant culture of the colonisers. Queensland government policy assumed that Aboriginal people needed to be educated for assimilation: 'preparation of the native people for assimilation through education in all its aspects - academic, industrial, health and hygiene' was to occur within the existing institutional structure.

In order to achieve formal equality under the assimilation ideal, Ahoriginality had to be subsumed into the dominant subject. Recognition of Aboriginal difference was thereby erased, or ignored. Where Aboriginal difference was perceived, it was still defined in opposition to the dominant subject. This difference was then regarded as an aberration, and justified as divergence from the equality ideal.

In any case, the equality rhetoric of assimilation was a mask for a range of policy factors behind the apparent policy shift. The major influences in the development of this policy were the 'economic imperatives"' of government, and federal and international pressure. The government was keen to reduce the numbers of people supported by the government on reserves and settlements, where conditions were notoriously impoverished.'6 The pursuit of wealth from mining on reserve land has also been touted as a major influence in the Queensland government's shift in rhetoric from protection to assimilation." A combination of federal and international pressure also c~nt r ibu ted . '~

The long title of the Aboriginal and Towes Strait lslnnde'el. Affairs Act 1965 reflects the official rhetoric of assimilation as a state of progress. It reads:

C~ted In McKae et al (1997). p 52 K~dd (1997). p 240 See K~dd (1997). pp 238-11. 1 Idcb~ch (2000). pp 529-30 See the dlscuss~on In K~dd (1997). Ch 7 See K~dd (1997). pp 239-42

An Act to Promote the Li ell-be~ng and Progressi\e De\elopnient of the Abor~glnal Inhab~tants of the State and of the Torres Strait Islanders.

The major objective, the reduction of numbers on settlements, was to be achieved by narrowing the scope of those subject to the Act. The Act created a new status of 'assisted Aborigine', the definition of which included Aborig~nes living on reserves, those declared to be 'assisted Aborigines' by the director, those declared by a court to be in need of care or that care be provided, and the children of same. Only 'assisted Aborigines' and 'assisted Islanders' were subject to the provisions of the Act. The Act provided for certificates of entitlement to be issued to 'assisted Aborigines', and gave the director the discretion to cancel such a certificate.

The terms 'Aborigine' and 'part-Aborigine' were defined according io complex categories, which contained repeated references to 'preponderance', 'strains' and 'per centum' of 'blood' For example, section 6(2), which sets out categories of 'part-Aborigines', reads:

A person - (a) one of \ \hose parents IS an A b o r ~ g ~ n e \\ithln categor) (a) specified

In the preceding subsection and the other of \ \hose parents has no straln of the blood of the ~ n d i g e n o u s ~ n h a b ~ t a n t s o f the Common\\ealth. or

( b ) both of \\hose parents habe a s t r a ~ n of the blood of the ind~genous inhab~tants of the Common\\ealth other than a Torres S t ra~t Island and \ \ho hlmself has a straln of more than t\\ent!-fi\e per centuni of such blood but ho has not a preponderance of such blood.

is a par t -Abor~g~ne for the purposes of t h ~ s Act

.Attempts such as these to define the point of po la r~ ty between the Aboriginal1 non-Aboriginal dichotomy illustrate the significance of the binary opposition in the conception of legal subjecthood. The references to blood reflect the assumption that the dichotomy is natural. However, as Jennifer Clarke points out, blood - like race - is not a 'defining biological concept':

A b o r ~ g ~ n e s and Torres S t r a ~ t Islanders do not hake blood \ \ h ~ c h makes them d~fferen t from other Australians In an! e\ent. blood does not cause genetlc difference. DNA does 79

It is the assumption that the binary opposition reflects categories that are natural that obscures its constructedness, and allows Aboriginal subjectivity to become invisible.

The powers of removal under the Aboriginal and Torres Strait Islander Affairs Act 1965, and the Aborigines Act 1971 which replaced it, were similar to those under previous legislation. The major exception was that the now Director of Aboriginal and Island Affairs was no longer the legal guardian of all Aboriginal children. The Aborigines Act 1971 was repealed in 1984.

" Clarke (1997). p 238

The major policy shift from 'protection' to 'assimilation' in 1965 was reflected in changes to the legislation that enabled child removal. In practice, however, the 'protection' and 'assimilation' apparatus operated concurrently until the 1980s. The removal of children under legislation specific to Aborigines continued through the dormitory system, and transfer to and from reserve and white institutions. Simultaneously, greater numbers of children were removed under the general welfare legislation.80

N o figures are available for the numbers of Aboriginal children removed from their families during this period by the Department of Children's Services. However, the fact that, by 1970, about 40 per cent of the children in the care of the department were Aboriginal indicates that a large pro ortion of those children that were removed by that department were Aboriginal. H:

The impoverished conditions experienced by Aboriginal families, and differences between Indigenous and non-Indigenous patterns of child raising, i predisposed them to removal under this legislation.

On reserves, missions and settlements, Aboriginal families lived in appalling conditions. Much of this extreme poverty was government induced.82 Conditions included shortages of food and other basic resources, inadequate medical care, overcrowding, unsafe housing and m a ~ n u t r i t i o n . ~ ~ Under-funding by government was compounded by payment of sub-award wages, the collection of Aboriginal wages by government and unpaid work on s e t t ~ e m e n t s . ~ ~

Many families living off the settlements also experienced impoverished conditions as a result o f discrimination, lack of opportunities for work and education, sub-award wages, and camps being bulldozed by local a u t h o r i t i e ~ . ~ ~

Research in Australia and overseas has linked 'neglect' with poverty.86 O'Connor lists situations characterised as neglect as 'neglect of medical care, malnutrition, inadequate clothing, inadequate food, inadequate living circumstances, chronically dirty and so on'.87 The extreme poverty experienced by Aboriginal families and communities in Queensland has predisposed them to findings of neglect. Although no figures are available for the period prior to 1985, figures available since that time show that substantiated allegations concerning Indigenous children overwhelmingly

The Adoption of Children Act 1964 and the Children's Services Act 1965, which replaced the Adoption of Children Act 1935 and the State Children Act 191 1 respectively. Haebich (2000), p 532; O'Connor (1993), p 16. Kidd (1 997), p 26. The conditions experienced on reserves and missions are detailed extensively in Kidd (1997). For a discussion of the state's control of Indigenous labour, see de Plevitz (1996). See also the discussion in Kidd (1997). Haebich (2000), p 53 1 . See the discussion in O'Connor (1993), p 43. O'Connor (1 993), p 43.

involved neglect, whereas for non-Indigenous children the allegations were more likely to be for physical, emotional or sexual abuse."

The projection of non-Indigenous gender roles of housekeeping and child raising on to Indigenous families meant that much of the focus of this scrutiny was on women. This is not necessarily to say that Aboriginal women suffered more than Aboriginal men, but simply that their experience was different.89 The intersection with class here is also very important. The experience of child removal under welfare laws was shared by poverty-stricken non-Indigenous women and men. The fact that this experience was different due to the intersection with raceg0 does not detract from the recognition of shared experience.

Intense scrutiny of Aboriginal families, abject poverty and the application of non-Indigenous standards of child-raising to Aboriginal children all contributed to the high rate of removal of Aboriginal children under 'neutral' welfare laws. In fact, these 'neutral' welfare laws embodied non-Indigenous concepts of childhood and child raising. The application of these same laws to non-Indigenous and Indigenous families had far from neutral results. The apparent erasure of Aboriginal culture extended to the raising of children. As O'Connor points out,g' the fact that the Dewar Report, pursuant to which the legislation was adopted, did not specifically mention Aboriginal children indicates that it assumed that the situation of Indigenous children was no different to that of non-Indigenous children.

The policy rhetoric of this period espoused the ideal of ass imi~a t ion .~ ' This conceived a state of transition towards the goal of formal equality, which is essentially equality as sameness. The measure of sameness in this context is the dominant subject of the coloniser. The ideal itself is grounded in the assumption of the naturalness of the Aboriginalinon-Aboriginal polarity, and the construction of Aboriginality in opposition to the dominant colonial subject. However, to argue that the removal of children during this era was carried out pursuant to a government commitment to the assimilation ideal is to infer a consistency and coherence which was never the case. The equality rhetoric of assimilation was a mask for a range of other policy factors, which shared with the equality rhetoric the assumption of the construction of Aboriginality described above. The resulting denial of Aboriginal agency is

R R O'Connor (1993), p 43. "' Peter Read (1999), pp 171-72 points out that the absence of child remo~al from

the political agenda until the 1980s reflects the white male political discourse of the 1960s.

" " A s indicated by the figures showing the higher incidence of neglect in Aboriginal cases compared with abuse in non-Aboriginal cases.

" O'Connor (1993), p 30. " In the mid-1980s, there was an ostensible policy shift to 'self-management', but

practice remained assimilationist. The current policy as stated in the Department of Aboriginal and Torres Strait Islander Policy and Development 1999-2002 Strategic Plan contains some references to self-determination. For a discussion of Queensland government policy towards Indigenous Australians, see Grose (1997).

306 GRIFFITH LAW REVIEW (2002) VOL 1 1 NO 2 1

apparent from their inability to prevent the removal of their children. This is not to infer that the Aboriginal people were complicit, but that they were invisible to the dominant legal structures, and therefore lacked agency within those structures.

Conclusion To argue that the removal of Aboriginal children was carried out pursuant to a legislative framework that reflected a systematic, coherent and calculated policy, well-intentioned or not, is to concede too much to the law. In each of the major periods, the laws, policies and practices were inconsistent and contradictory. In fact, the official policies of 'protection and preservation' and 'assimilation' were a mask for a range of political and financial motives. The legislation enabled practices that bore little resemblance to official policy. The one common factor underpinning the policies (both official and unofficial), the legislation and the practices was the construction of Aboriginality in opposition to the dominant colonial subject, and the resulting denial of Aboriginal agency.

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Legislation

Aboriginal and Torres Strait Islander Affairs Act 1965 Aborig~nals Presrraation and Protizction Act 1939 Aboriginals ProtiZctlon and Prevention of the Sale of Opium Act of 1897 (Qld) Abor~ginizs Act 1971 Adoption of Children Act 1935 Adoption of Children Act 1964 ' Chlldr~n 's Srrzlices Act 1965 industrial and Reformatories Schools Act 1865 Orphanagrs Act 1879 State Children Act 191 1 Statr Chlldriw Act 191 1