Lots of white kids do get taken away, but that's for a reason - not like us. We just got taken away because we was black kids, I suppose - half-caste kids. If they wouldn't like it, they shouldn't do it to Aboriginal families.
Confidential evidence 357, South Australia.
The Inquiry's third term of reference requires an examination of `the principles relevant to determining the justification for compensation for persons or communities affected by such separations'. In any legal consideration of a claim for compensation there are two steps. First a wrong (or wrongs) is identified. Second the harm to the victim is identified and `measured' to the best of the court's (or other decision-maker's) ability using established principles.
In this section we identify the wrongs involved in the forcible removal of Indigenous children from their families. In the following section we define principles which, we recommend, it would be appropriate to employ to remedy the harms caused by those wrongs.
The Inquiry has been careful not to evaluate past actions of governments and others through the prism of contemporary values.
The Government takes the view that in considering, and ultimately judging, the laws, policies and practices which led to the separation of Aboriginal and Torres Strait islander children from their families, it is appropriate to have regard to the standards and values prevailing at the time of their enactment and implementation, rather than to the standards and values prevailing today (Commonwealth Government submission page 30).
At the same time, it is important to appreciate that there was never only one set of common and shared values in the past. Even predominant values were not always faithfully reflected in policies and practices. There have always been dissenting voices. There was never universal agreement on what was right and just.
Nevertheless, it is appropriate to evaluate the (legislative and administrative) actions of governments in light of the legal values prevailing at the time those actions were taken. Those legal values can be found in the common law introduced to Australia by the British colonists and progressively developed by Australian Parliaments and courts. More recently they can also be found in the international law of human rights to which Australia not only voluntarily subscribed but played a leading part in developing and promoting.
Broadly speaking there were two distinct periods in law and policy when Indigenous children were forcibly removed. The first was the period of segregation of `full bloods' for their `protection' and removal of `half-castes' for absorption. This period commenced as early as the mid-nineteenth century in eastern States. It was marked by the maintenance of separate legislative and administrative regimes for Indigenous children and families.
Change came with the 1937 national conference at which the assimilation policy was adopted nationally. New legislation was introduced almost everywhere by 1940. Thereafter, some jurisdictions took the path of applying the same laws and standards to Indigenous as to non-Indigenous families, although the application remained discriminatory and unfair (Victoria, Tasmania and New South Wales). The remainder continued for a period with separate legislative and administrative regimes (Western Australia, Northern Territory, South Australia, Queensland). These were gradually dismantled during the late 1950s and early 1960s and Indigenous children were transferred to the mainstream child welfare systems. However, the policy and practice of assimilation, including the transfer of Indigenous children into non-Indigenous families and institutions, continued into the 1970s. The transfer of Indigenous children continues to this day, as documented in Part 6 of this report.