When the Human Rights and Equal Opportunities Commission tabled Bringing them home, its report into the separation of indigenous children from their families, it was criticised for failing to consider Indigenous child welfare within the context of contemporary standards. Non-Indigenous people who had experienced out-of-home care also questioned why their stories were not recognised. This thesis addresses those concerns, examining the origins and history of the welfare systems of NSW and Tasmania between 1880 and 1940. Tasmania, which had no specific policies on race or Indigenous children, provides fruitful ground for comparison with NSW, which had separate welfare systems for children defined as Indigenous and non-Indigenous. This thesis draws on the records of these systems to examine the gaps between ideology and policy and practice. The development of welfare systems was uneven, but there are clear trends. In the years 1880 to 1940 non-Indigenous welfare systems placed their faith in boarding-out (fostering) as the most humane method of caring for neglected and destitute children, although institutions and juvenile apprenticeship were never supplanted by fostering. Concepts of child welfare shifted from charity to welfare; that is, from simple removal to social interventions that would assist children's reform. These included education, and techniques to enlist the support of the child's family in its reform. The numbers of non-Indigenous children taken into care were reduced by economic and environmental measures, such as payments to single mothers. The NSW Aborigines Protection Board dismissed boarding-out as an option for Indigenous children and applied older methods, of institutionalisation and apprenticeship, to children it removed from reserves. As non-Indigenous welfare systems in both states were refined, the Protection Board clung to its original methods. It focussed on older children, whilst allowing reserves to deteriorate, and reducing the rights of Aboriginal people. This cannot simply be explained by race, for Tasmania did not adopt the same response. This study shows that the policies of the Aborigines Protection Board were not consonant with wider standards in child welfare of the time. However, the common thread between Indigenous and non-Indigenous child removal was the longing of children and their families for each other.

When the Human Rights and Equal Opportunities Commission tabled Bringing them home, its report into the separation of indigenous children from their families, it was criticised for failing to consider Indigenous child welfare within the context of contemporary standards. Non-Indigenous people who had experienced out-of-home care also questioned why their stories were not recognised. This thesis addresses those concerns, examining the origins and history of the welfare systems of NSW and Tasmania between 1880 and 1940. Tasmania, which had no specific policies on race or Indigenous children, provides fruitful ground for comparison with NSW, which had separate welfare systems for children defined as Indigenous and non-Indigenous. This thesis draws on the records of these systems to examine the gaps between ideology and policy and practice. The development of welfare systems was uneven, but there are clear trends. In the years 1880 to 1940 non-Indigenous welfare systems placed their faith in boarding-out (fostering) as the most humane method of caring for neglected and destitute children, although institutions and juvenile apprenticeship were never supplanted by fostering. Concepts of child welfare shifted from charity to welfare; that is, from simple removal to social interventions that would assist children's reform. These included education, and techniques to enlist the support of the child's family in its reform. The numbers of non-Indigenous children taken into care were reduced by economic and environmental measures, such as payments to single mothers. The NSW Aborigines Protection Board dismissed boarding-out as an option for Indigenous children and applied older methods, of institutionalisation and apprenticeship, to children it removed from reserves. As non-Indigenous welfare systems in both states were refined, the Protection Board clung to its original methods. It focussed on older children, whilst allowing reserves to deteriorate, and reducing the rights of Aboriginal people. This cannot simply be explained by race, for Tasmania did not adopt the same response. This study shows that the policies of the Aborigines Protection Board were not consonant with wider standards in child welfare of the time. However, the common thread between Indigenous and non-Indigenous child removal was the longing of children and their families for each other.

Thesis (Ph.D.) -- La Trobe University, 2006. / Research. "A thesis submitted in total fulfilment of the requirements for the degree of Doctor of Philosophy, La Trobe Law, Faculty of Law and Management, La Trobe University, Bundoora, Victoria". Includes bibliographical references (leaves 318-338). Also available via the World Wide Web.

In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations. Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse. The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge. Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.

In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations. Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse. The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge. Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.