Bringing-Them-Home-Report-Web

the kingdom. The law defended individual liberty by making false imprisonment acriminal offence and permitting the individual to sue for damages on proof of trespass tohis or her person (Halsbury 1955 Volume 10 page 735). The Crown (or government) andpublic servants could be sued just like private citizens when a public servant in the courseof his or her duty wrongfully deprived a person of liberty (Halsbury 1955 Volume 10 page736).The taking of Indigenous children from their homes by force and their confinementto training homes, orphanages, other institutions and mission dormitories amounted todeprivation of liberty and, in fact, imprisonment, in the common law sense (Halsbury1955 Volume 10 page 765). Not every deprivation of liberty and imprisonment isunlawful or wrongful. Detention is lawful when it is ordered or ratified by a courtaccording to law.The common law offered two safeguards of liberty. The first was the requirementthat everything except a very short detention (for example following arrest) must bescrutinised by a court. A deprivation of personal liberty was only lawful after theproponent of removal had established its desirability and lawfulness in open andindependent court of law. The second safeguard was the writ of ‘habeas corpus’ (literally‘deliver the body’). This writ developed in tandem with protection of individual libertyand enabled a person to demand freedom – usually for another person – by bringing theGovernment into court to justify that person’s detention or imprisonment. The courtwould order the person’s release if the detention was found to be unlawful, as wouldoften be the case where the detention had not been sanctioned by the court in the firstplace. The court process offers the safeguard of publicity as well as the chance tochallenge the grounds of removal.The safeguard of pre-detention court scrutiny was denied to Indigenous children inmany States and the Northern Territory when legislation permitted them to be removedand confined by the order of a public servant alone (see table). During these periods non-Indigenous children removed from their families had to be processed through the courts.Where an appeal right was given to Indigenous parents, as in New South Wales, the rightwas ineffectual. The courts were not realistically accessible to Indigenous people in thisperiod. They were unlikely to know of that right and most would not have been able tofind any assistance to proceed to court. The civil disabilities under which Aboriginalpeople laboured precluded most from asserting their rights.The States which removed the safeguard of judicial scrutiny for Indigenous childrenand their families were directly discriminating on racial grounds.Administrative removal powers not subject to prior judicial scrutinyState/Territory Years Grant of powerWestern Australia 1905-1954 Minister empowered to remove any Aboriginal person. Aslegal guardian of Aboriginal children and head of