Separated provides new understanding of the separation of Aboriginal children from their families in 20th century Australia. The book places the unresolved issue of Aboriginal childhood removal in the context of guardianship law and the state’s duty to look after those children. It is readily accessible to lay person and specialist alike.
The author takes account of legislation, policy debates and official reports relating to Aboriginal child separation practices throughout Australia. The main focus is on Western Australia where the impact of the policy was particularly devastating.
[A] signal example of an elegantly structured and closely reasoned analysis of a legal and social issue, in this case the century-long calculated denial of the rights and benefits of family and community to Aboriginal children in Australia.
... Dr Buti’s book reads like a brief to the ‘court of public opinion’, a brief remarkable for its erudition, sense of history, and implacable logic, yet one not meant to foster legal debate. Indeed, the author proposes not another legal clash ... but rather reconciliation, recovery and renewal, with a view to the promotion of true healing and closure ...
The key to this ultimate reconciliation of all our communities ... is the renewal of the notion of guardianship. Expressed otherwise, we are all dependent upon each other for protection and support and injustice arises when we seek to exploit a temporary situation of relative weakness. Our duty is to ensure that we treat each other as we do members of our own family .
In so doing, we would put an end to policies of forcible separation of individuals, violation of parental rights, abuses of legislative and administrative powers and of innate human rights. But any such enterprise requires a detailed understanding of the experiences of yesterday, how they resonate today and most importantly, how they may influence the future. In this endeavour a book such as this is indispensable. ... - Gilles Renaud (Ontario Court of Justice), Law Society Journal (NSW), July 2005
Dr Buti explores the philosophies, social thought and legal principles that led to legislation which allowed the removal of children from the care of their natural parents. He describes the progression of the philosophy behind policies dealing with indigenous Australians from one of protection to one of segregation of “full bloods” and the absorption of “half castes”, and subsequently to one of assimilation. The separation of children from their parents was a feature, to a greater or lesser extent, of all the resulting legislation. ...
Underlying much of the relevant law was the concept of the transfer of guardianship over a child from the natural parent to the State. ... the practical implementation of these principles clearly often fell far short of what was theoretically required. Whilst racism played its part, Dr Buti puts these failures into an historical context which does not cast players as wicked, but rather as motivated by benevolent and well-meaning concerns. He is resounding though, in his condemnation of the failure of government to protect separated children from sexual and physical abuse. ...
Dr Buti argues that fiduciary law is better suited than tort law to recognise past breaches of trust by the State to separated children under its care. Despite presenting cogent and reasoned arguments which could support claims for breaches of duty however, the book concludes that a political rather than a legal solution for those aggrieved by past policies is both more likely and more desirable in today’s Australia. ...
Dr Buti’s book presents a convincing and legally-based argument for this country to provide reparation to the victims of its past policies. It is a valuable contribution to the current debate. - Judge Sarah Bradley (2005) 26 Qld Lawyer
Separated will be a significant contributor to the debate on the Aboriginal childhood separation issue. For the first time, through this book, we have a comprehensive legal analysis, which superbly identifies and examines the guardianship duties that flow from it. ...
This book deserves a wide readership and is destined to make a significant impact on contemporary legal thinking and provoke wider community debate on an unfinished issue for all Australians. - Sir Ronald Wilson, Former High Court Justice and Commissioner, National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families
Table of Contents
The law of guardianship and best interest of the child principle
The separation history: a national review
Western Australia - a case study
Part A separation, segregation and absorption 1900 - 1945
Western Australia - a case study
Part B assimilation and mainstreaming 1946 - 1972
Implications of the history and where to now?