Australian aboriginal child separations and guardianship

Thesis

This thesis explores and examines the history of Aboriginal child welfare policy in Western Australia. This historical scheme allowed thousands of Aboriginal children to be separated from their families. The policy of separating Aboriginal children from their families to be raised in the 'white way' was underpinned by an intrusive legislative scheme that made the Chief Protector of Aborigines or the Commissioner of Native Affairs the legal guardian of all Aboriginal children whether they had living parents or not. However, the statutes, Aboriginal specific or mainstream, remained relatively silent on the content of the guardianship duties, thus the need to turn to the common law to identify these duties. Overlaying these duties is the best interest of the child principle. Unfortunately, according to testimonies and some corroborating official documents, it appears that in many instances the State guardians failed to comply with their guardianship duties. This raises issues of State accountability and responsibility and legal liability. However the court system has failed to provide redress for the separated Aborigines. It is argued that the courts could provide redress by holding the guardianship relationship as a sub-category of the fiduciary relationship requiring protection of the non-economic personal interests of the separated Aboriginal children. It is acknowledged though, that the protection of noneconomic interest is foreign to Australian fiduciary jurisprudence. It is furthered acknowledged that the separated Aboriginal children face other legal hurdles. The lack of judicial redress means a political solution is required in response to the demands for justice by the separated Aboriginal children. It is argued that the examination of the guardianship relationship and breaches of guardianship duties provides added political force to the case for awarding reparations to the separated Aboriginal children.

Authors: De Paulo Buti, A

• Peer review status: Peer reviewed
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford