'Protection' and assimilation era child removals 1909-1968
The Aborigines Protection Act 1909 (NSW) was the first law in NSW that specifically authorised the removal of Aboriginal children from their families. It continued to exercise control over Aboriginal people and their children until 1969. Separate systems of child welfare existed for Aboriginal and non-Aboriginal children throughout this period.
The Aborigines Protection Act 1909 (NSW) () gave the Aborigines Protection Board (APB) the power to apprentice out certain Aboriginal children but only in accordance with the Apprentices Act 1901 (NSW) ().
The APB could apprentice out a child if they were the child of:
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a full-blooded Aboriginal native of Australia, or
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a person with mixed Aboriginal blood who applied for, or received, rations or aid from the APB or lived on a reserve, or
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a person with mixed Aboriginal blood, if the child was found to be a ‘neglected child’ under the Neglected Children and Juvenile Offenders Act 1905 (NSW) ().
After years of lobbying by the APB, in 1915 it was given the additional power to:
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assume full control and custody of the child of any ‘aborigine’ if it was satisfied that it was in the interest of the moral or physical welfare of the child, and then
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remove the child to the control and care that the APB thought fit ().
The APB argued that it could be ‘insurmountable’ to prove neglect ‘where children are fairly clothed and fed’ () or ‘decently clad or apparently looked after’ () and so lobbied for the power to remove a child ‘whenever the Board are of the opinion that a child should be removed from immoral parents’ (), and without having to establish neglect.
The 1915 changes also gave the APB the authority to send a child to a home or institution for training if the child refused to go to an apprenticeship that the APB had arranged ().
When, in 1914, the NSW Parliament was considering giving the APB these ‘very extraordinary powers’ (), the Colonial Secretary suggested to Parliament that ‘to empower the Board to take the place of the [Aboriginal] parents’ was ‘a machinery measure’ (). Patrick McGarry protested that it would be ‘to steal the child away from the parents!’ (). He was one of three Members of the Legislative Assembly to vote against the bill authorising the APB to remove an Aboriginal child.
This significant 1915 power enabling the APB to remove a child remained in place until 1940, when changes to the law required a Court to commit a child to the care and control of the newly formed Aborigines Welfare Board (AWB) as a ‘ward’ (). The AWB could then indenture the child. However, in 1943, the AWB’s ‘authority to admit a child to its control’ appears to have been re-instated (). This gave the AWB the same powers as the Minister had over non-Aboriginal children. The members of the AWB were not subject to the Public Service Act (), whereas officers and employees of the Child Welfare Department were ().
In 1915, Aboriginal families also lost the rights and protections of the Apprentices Act that non-Aboriginal families had. Their consent was no longer required before their child was apprenticed out. Rights to a probationary period and to terminate an apprenticeship after the probationary period were lost ().
Instead, from 1915, the APB could apprentice an Aboriginal child on the terms and conditions that the APB thought desirable (). The child then fell under the supervision of the APB.
The children who could be apprenticed out changed over time as Parliament changed the definition of ‘aborigine’ and ‘child’ in the legislation.
In 1915, the age at which an Aboriginal child could be apprenticed out due to ‘neglect’ was expanded from 14-21 years old to any age up to age 21. A child could be classified as ‘neglected’ for a range of reasons, including if the child:
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resided with a person who had no visible lawful means of support
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had no fixed address
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slept in the open air in a public place
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begged or habitually wandered around in a public place ().
By 1918, any child of a full blooded or half caste Aboriginal native of NSW could be apprenticed out by the APB, whether or not their parent lived on a reserve or received rations from the APB (). The child did not need to be found to be ‘neglected’, Aboriginality was sufficient.
From 1940, the newly constituted and named Aborigines Welfare Board (AWB) had the power to:
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apprentice a “ward” ie, a full blooded or half caste aboriginal aged under 18 years, admitted to the control of the AWB or committed to a home established by the AWB, or
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place the ward in a home for training if they were not ready for employment or apprenticeship ().
In 1943, a system of boarding out, adopted boarders and foster parents was incorporated into the legislation ().
From 1943 a person could apply ‘not to be an aborigine’ (). This exempted a person from the Aborigines Protection Act and removed the possibility of their child being placed under the control of the APB.
In 1969, all children who had been made wards under the Aborigines Protection Act were transferred to the care of the State when the remnants of the Act were repealed (). All children in NSW were covered by the same legislation.
Research has shown that the removal of Aboriginal children from their families can have lasting effects, including intergenerational trauma. Many Discussion and Analysis documents explore these impacts.