Bringing-Them-Home-Report-Web

Aborigines Department Chief Protector (Commisioner ofNative Welfare after 1936) could exercise this power inrelation to Aboriginal children. After 1909 the removalpower in relation to ‘half-caste’ children under eight yearsdelegated to police protectors and Justices of the Peace.Northern Territory 1911-1957 Commonwealth legislation authorised the Chief Protector toundertake ‘the care, custody or control of any aboriginal orhalf-caste if in his opinion it is necessary or desirable in theinterests of the aboriginal or half-caste for him to do so’ andthus to exercise a removal power.1957-1964 The NT Administrator was empowered to declareIndigenous people to be wards. The Director of Welfarecould remove wards at will. An individual had a right ofappeal to a court.New South Wales 1915-1940 Aborigines Protection Board (later Welfare Board) wasempowered to remove any Aboriginal child after ‘dueinquiry’ without recourse to a court hearing. The parentcould appeal to a court.South Australia 1911-1923 Local protectors were created with guardianship powerscircumventing the previous requirement for a magistrate’scourt hearing.Queensland 1897-1939 The Minister was empowered to order removal ofAboriginal families to and between Aboriginal reserves. Onreserves Aboriginal children could be confined indormitories.1939-1965 The Director of Native Affairs was constituted the legalguardian of every ‘aboriginal’ minor (under 21 years) withfull parental powers.Source: Appendices to this report.Deprivation of parental rightsSome jurisdictions went further and legislated to strip Indigenous parents of theirparental rights, making a Chief Protector or similar official the legal guardian of allchildren defined to be Indigenous children: Western Australia from 1905 until 1963, theNorthern Territory from 1910 until 1964, South Australia from 1911 until 1962, andQueensland from 1939 until 1965. This too was contrary to established common lawwhich safeguarded parental rights.At least as early as 1592 in Ratcliffe’s Case, the common law courts in Englandrecognised and defended the right of the father (or the mother, but only if the father wasdead) to the custody and guardianship of a child, to direct the education of the child andto nurture and control the child. The father is the ‘natural guardian’ of his child accordingto cases dating from 1748 (Mendes page 624, Halsbury 1955 Volume 21 page 204).It seems that at common law this applied only to ‘legitimate’ children. Children bornout of wedlock were deemed to be ‘children of no-one’ (Dickey 1990 pages 298-99,