The colonial logic of child removal

ABSTRACT

In this article we analyse the forced removal of Indigenous children from their kin and country in New South Wales (NSW) as everyday human rights violations. The parallel regimes of child ‘protection’ and criminal laws are discriminatory and function to deny First Nations sovereignty into the future. By incarcerating Indigenous children, the colonial state continuously disrupts families and Elders from passing down culture and law. Targeted removal of Indigenous children is as global as colonialism. While we cannot claim that international human rights regimes have extended everyday enjoyment of rights by First Nations communities, we argue that a global rights-based perspective is conceptually useful for truth telling in curriculum. We reject reductive presentations of incarcerated children as statistics, and of Indigenous people as ‘over-represented’: prisons are not democracies. The rate at which Indigenous children are criminalised and incarcerated is a direct function of decisions and actions by the colonial state. These practices are peoples’ livelihoods, an unfair exchange of futures that forces and keeps generations at the margins. Our purpose is to locate everyday human rights violations in NSW within a broader perspective of international law, colonial history, and unceded sovereignty.

KEYWORDS:

• Colonisation
• criminalisation
• incarceration
• rights
• police
• child removal

Acknowledgements

This work is done on unceded lands of sovereign First Peoples. We offer respects to elders and ancestors who have passed down knowledge for thousands of generations.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Statutes Amendment (Spit Hood Prohibition) Act 2021 (SA), lobbied for by Caroline Morrison and Aboriginal and Māori Takatāpui Latoya Aroha Rule, whose son and brother Wiradjuri Kokatha and Wirangu man Wayne Fella Morrison died in 2016 after use of a restraint hood by prison officers.

2 The inquiry was driven by Yamatji-Noongar Senator Dorinda Cox (WA Greens) and DjabWurrung Gunnai Gunditjmara Senator Lidia Thorpe (Vic Independent); resourced by research and advocacy of many, in particular Darumbal and South Sea Islander journalist and scholar Amy McQuire.

3 Campaigned for by family of Aunty Tanya Day and the Dhadjowa Foundation they established.

4 Australian Government, ‘Royal Commission into Aboriginal Deaths in Custody’ (1987–1991) <http://www.austlii.edu.au/au/other/IndigLRes/rciadic/>; Australian Human Rights Commission, ‘National Inquiry into Removal of Aboriginal and Torres Strait Islander Children From Their Families’ (HREOC 1997) <https://humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf> (‘Bringing Them Home’).

5 Stolenwealth emerged from protests against Commonwealth Games in Melbourne (2006) and the Gold Coast (2018). See Tony Birch, ‘Rise From This Grave’ [Autumn 2018] 230 Overland <https://overland.org.au/previous-issues/issue-230/essay-tony-birch/> accessed 1 April 2023.

6 At the time of writing, Victoria has established a Treaty Advancement Commission and the truth telling body Yoorrook, where testimony echoes and confirms multiple findings from coronial inquests (see George Newhouse, Daniel Ghezelbash and Alison Whittaker, ‘The Experience of Aboriginal and Torres Strait Islander Participants in Australia's Coronial Inquest System: Reflections from the Front Line’ (2020) IntJlCrimJustSocDem 50 < http://classic.austlii.edu.au/au/journals/IntJlCrimJustSocDem/2020/50.html>; Bringing Them Home (n 4)).

7 Deborah Bird Rose, ‘The Saga of Captain Cook: Remembrance and Morality’ in Bain Attwood and Fiona Magowan (eds) Telling Stories: Indigenous History and Memory in Australia and New Zealand (Allen and Unwin 1982) 61.

8 Teela Reid, Rebellious Lawyering Conference Australia (Online, September 2021) <https://youtu.be/7Y1P39RLi-k> accessed 1 April 2023.

9 Martuwarra RiverOfLife and others, ‘Yoongoorrookoo’ (2021) 30(3) Griffith LR 505, 505 <https://doi.org/10.1080/10383441.2021.1996882>.

10 Michaela Whitbourn, ‘“Unfinished Business”: Top Coroner’s Call to Action’ Sydney Morning Herald (Sydney, 12 April 2021) 23.

11 Christine Black, The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (Routledge 2011).

12 This conceptualisation draws on the work of Mununjali Yugambeh and South Sea Island Professor Chelsea Watego, Another Day in the Colony (UQP 2021).

13 Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015).

14 See Mary Graham, ‘Some Thoughts About the Philosophical Underpinnings of Aboriginal World Views’ [2008] 45 Aust. Humanit. Rev. 181.

15 First Nations National Constitutional Convention, Uluru Statement from the Heart (Uluru May 2017).

16 Karen Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’ (2015) 100 Cornell Law Rev. 1069 <https://scholarship.law.cornell.edu/clr/vol100/iss5/2> accessed 20 March 2023.

17 Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (4th edn, Penguin Books 2012).

18 Human Rights Act 2019 (Qld).

19 Strengthening Community Safety Act 2023 (Qld).

20 ABC News, ‘Driver of ute charged with manslaughter after teen dirt bike rider dies’ (5 March 2023) <https://www.abc.net.au/news/2023-03-05/dirt-bike-crash-utility-waterford-west-manslaughter/102055510 > accessed 4 April 2023.

21 Dieter Dolling and others, ‘Is Deterrence Effective?: Results of a Meta-Analysis of Punishment’ (2009) 15 Eur. J. Crim. Pol. Res. 201; Damon Petrich and others, ‘Custodial Sanctions and Reoffending: A Meta-Analytic Review’ (2021) 50 J Crime Justice 353; Alec Karakatsanis, ‘The Punishment Bureaucracy: How to Think About “Criminal Justice Reform”’(2019) 128 Yale L.J. 848.

22 Constitution Alteration (Aboriginals) Act 1967 (Cth).

23 Holy See, ‘Joint Statement of the Dicasteries on the “Doctrine of Discovery”’ (30 March 2023) <https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2023/03/30/230330b.html> accessed 1 April 2023.

24 Bruce Pascoe, Dark Emu Black Seeds: Agriculture or Accident? (Magabala Books 2014); Bill Gammage, The Biggest Estate on Earth: How Aborigines Made Australia. (Allen and Unwin 2013).

25 Mabo v Queensland (No. 2) [1992] HCA 23.

26 See Emer de Vattell, Law of Nations (first published 1797) LF ed. <https://oll.libertyfund.org/title/whatmore-the-law-of-nations-lf-ed> accessed 1 April 2023.

27 Family Law Act 1975 (Cth).

28 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS; Children and Young People (Care and Protection) Act 1997 (NSW), Part II (CYPA).

29 ‘Protection’ Ordinances and ‘Protectors’ authorised removal of children from 1897. See Bringing Them Home (n 4).

30 Native Title Act 1993 (Cth) s 223(1)(c); Mabo v Queensland (No. 2) [1992] HCA 23 [62].

31 See review chaired by Cobble Cobble Professor Megan Davis: Family is Culture: Independent Review into Aboriginal and Torres Strait Islander Children and Young People in Out of-Home Care in New South Wales (Department of Communities and Justice 2019), https://www.familyisculture.nsw.gov.au/__data/assets/pdf_file/0011/726329/Family-Is-Culture-Review-Report.pdf (‘Family is Culture’).

32 Aristotle distinguished natural (phusikon) and legal (nomikon) justice (Nicomachean Ethics, 350 BCE); as did Justinian’s universal law of nature and codified law of nations (Code of Justinian, 529–565). See also Thomas Aquinas, Summa Theologica (first published 1272) LF Ed <https://oll.libertyfund.org/title/province-the-summa-theologica-of-st-thomas-aquinas-part-i-qq-i-xxvi-vol-1> and customary and codified traditions in the un/written moiety of British law.

33 John Howard interview with John Laws (2UE Radio, Sorry Day [29 May] 2000) <https://pmtranscripts.pmc.gov.au/release/transcript-22788> accessed 1 April 2023.

34 See discussion re Victoria (n 6).

35 See Maria Giannacopoulos, ‘White Law/Black Deaths: Nomocide and the Foundational Absence of Consent in Australian Law’ (2021) 46(2) Aust. Fem. Law J. 1.

36 International Covenants on Civil and Political Rights and Economic Social and Cultural Rights (1976) art 1; United Nations Declaration of the Rights of Indigenous Peoples (2007) art 13.

37 See Royal Commission into Protection and Detention of Children in the Northern Territory (2017), whose title and terms expressly reflect the removal-incarceration continuum.

38 Emma Buxton-Namisnyk and Althea Gibson, ‘Domestic Violence Death Reviews in Australia: From Recommendations to Reform?’ (ANZSOC National Conference, Garramilla (Darwin), November 2022).

39 Coe v Commonwealth (1979) 24 ALR 118, 138 (Murphy J).

40 Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (ALRC No 31, 2010) paras 64–68.

41 Irene Watson, ‘Aboriginal Laws and the Sovereignty of Terra Nullius’ (2002) 1 Borderlands 2.

42 LEPRA s 10. See also s 31 where police ‘use of force’ is held to the same undefined and undefinable ‘standard’—unless challenged in court. The absurdities and bigotries embodied by the fictional ‘reasonable’ man are well documented: see for example RT Hon Lord Hoffmann, ‘Anthropomorphic Justice: The Reasonable Man and his Friends’ (1995) 29(2) Law Teacher 127.

43 Estrella Pearce, ‘Why ‘Admissions of Guilt’ is not Working in Youth Diversionary Schemes in NSW – Exploratory Findings from Interviews with Police Officers’ (2021) 33(3) Curr. Issues Crim. Justice 285, 292.

44 Michael Grewcock and Vicki Sentas, ‘Strip Searches, Police Power and the Infliction of Harm’ (2021) 10(3) Int. J. Crime, Justice Soc. Democr. 191 <https://www.crimejusticejournal.com/article/download/1665/1092/7993>.

45 Jax Sansbury, ‘I Am Not The Problem’ [2023] Archer 24 <https://archermagazine.com.au/2023/03/archer-magazine-18-the-incarceration-issue/issue>.

46 Australian Institute of Health and Welfare, Child Protection Report 2020-2021, <https://www.aihw.gov.au/reports/child-protection/child-protection-australia-2020-21/contents/summary> accessed 20 March 2023.

47 There are always lean years and plenty, such stories are passed down all over the world. See Gawain Bodekin Andrews, ‘Resisting Genocide through D’harawal Relatedness: Understanding the Appin Massacre and the story of how Wiritijiribin the Lyrebird came to be’ (World Indigenous Peoples Conference on Education, Panpapanpalya (Adelaide) September 2022). In contrast, class inequality and poverty is a colonial import, created by dispossession: Reynolds 1981, 2013; Ryan, 2012, 2018, 2020, 2022; Clayton-Dixon 2019; Perkins 2022; Aboriginal Land Act 1991 (Qld); Koowarta v Bjelke-Petersen [198] HCA 27.

48 Australian Commission of Inquiry into Poverty, Law and Poverty in Australia (AGP Canberra 1976).

49 Commonwealth of Australia, ‘Community Affairs References Committee - Poverty and Financial Hardship - A Hand Up Not a Hand Out: Renewing the Fight Against Poverty - Hansard Record of the Committee's Proceedings, 6 August 2003’ 1227. <https://www.aph.gov.au/parliamentary_business/committees/senate/community_affairs/completed_inquiries/2002-04/poverty/index> accessed 20 March 2023.

50 Katherine McFarlane, ‘From Care to Custody: Young Women in Out-of-home Care in the Criminal Justice System’ (2010) 22(2) Curr. Issues Crim. Justice 345; Michael Head, Scott Mann and Ingrid Matthews, Law in Perspective (3rd edn, UNSW Press 2015) 343.

51 In theory, see Malcolm Feeley and Jonathan Simon, ‘The New Penology: Notes on the Emerging Strategy of Corrections and its Implications’ (1992) 30(4) Criminology 449 <http://www.antoniocasella.eu/nume/Feeley_Simon_New_Penology_1992.pdf>. In practice, see Vicki Sentas and Camilla Pandolfini, ‘Policing Young People in NSW: A Study of the Suspect Targeting Management Plan’ (PIAC 2017).

52 See Yuin scholar Amanda Porter, ‘Decolonising Policing: Indigenous Patrols, Counter-policing and Safety’ (2016) 20(4) Theo. Criminology 48.

53 Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW).

54 CYPA (n 28); Family is Culture (n 31).

55 Bringing Them Home (n 4).

56 Sarah Maddison, The Colonial Fantasy: Why White Australia Can’t Solve Black Problems (Allen and Unwin 2019).

57 Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’ (2006) 8(4) Journal of Genocide Research 387.

Additional information

Notes on contributors

Ingrid Matthews

Ingrid Matthews is a white Australian and lecturer in criminology and law. Her PhD (2021) is on decolonising legal education. The authors work together on truth telling in curriculum and their families are connected through ancestral matriarchs of the Ingelba clan.

Lynda Holden

Lynda Holden is a Dunghutti solicitor and legal scholar, formerly a nurse, midwife, and midwifery scholar. She holds a Master of Laws in Criminology and Human Rights and is a NSW Law Society Indigenous Issues Committee member.