Protection Must be Color Blind

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I first published the following in the Age in July 2009 following a trial of an indigenous man accused of raping a 12 year old tribal girl. His defence: it is acceptable in his culture. What do you think?

The original is published here.

Protection must be color blind.

The abuse experienced by many Aboriginal children raises questions about the role cultural issues play when it comes to safeguarding our most vulnerable.

FIFTY years ago my father, employed as a federal government patrol officer, removed from their parents Aboriginal children thought to be at risk of harm. Ten years ago I wrote an apology for that removal in The Age and called upon the Federal Government to do the same. Last year the Government finally did so.

Now the Productivity Commission tells us that Aboriginal children are six times more likely to suffer abuse than non-Aboriginal children. Last year an Aboriginal man claimed as part of his defence in a Queensland court that he saw nothing wrong in having sex with a 12-year old Aboriginal child as she “did it with everyone”.

Yet if I were to call for that Aboriginal child to be removed from an environment in which it was felt that a 12-year-old girl having sex with an adult was OK, I would be accused of repeating the evils of the removals policy implemented by my father. Conversely, if I called for a 12-year-old white child in Melbourne to be left in an environment where she had sex with an adult, I would rightly be called perverted.

Where have we gone wrong? Let me make a couple of clear statements, and then look at some difficult issues.

If a child is at risk from the family environment, then the state should seriously examine the removal of that child regardless of the child’s colour, race or religion. A child should never be left in an environment where he or she is susceptible to harm. These are easy statements to make, but how do we implement it?

When my father implemented removals of Aboriginal children in the late 1950s, his original papers show that he tried to do so with the best intentions of the child in mind. He tried to “remove them from harm”. While policy implementation in the ’50s had less of the racial overtones than removals of the 1930s, those racial overtones nevertheless remained. One of many big errors of the 1950s was that in determining “best interests” of the child or “harm” to the child, a European perspective was always used, not taking into account culture, identity and belonging.

So what do we do now for children at risk of “harm”? What is the culture that determines “right” and “wrong” in modern Australia — indigenous or otherwise?

Do we now have an “Australian cultural standard” that could help us determine “harm”, “right” or “wrong” regardless of ethnic background? Can we use this standard to protect children regardless of race — or do we fear accusations of repeating past wrongs so much that we are frozen with inaction?

When I look up the word “indigenous” in the dictionary I find confusing alternatives. One definition says “of or from a place”. I was born here, my father was born here, so was my grandmother. By that definition I am indigenous, but I am not Aboriginal. Another says “natural and not introduced”. Well, as the cane toad was introduced, I suppose so was the white man. But regardless of my race, or heritage, I belong in Australia. I don’t have anywhere else to go. 

My culture is the culture of this country.

Australia’s culture is a mix and harmony of so many cultures, from that of Tasmanian Aborigines that predated the arrival of the mainland Aborigines in the last Ice Age, who in turn predated the arrival of the white man, who predated the Chinese, who predated the Greeks, Italian, later the Vietnamese, and now many from other countries as well. But do we have a universal Australian “culture” to which we all belong? Do we want an Australian culture?

I have worked in many countries for the United Nations and the Red Cross. I have seen people fight each other in wars over relatively small cultural differences, be it the Serbs and the Croats, both of whom are southern Slavs, the Tutsis and Hutus in Rwanda, the Tamils and Sinhalese in Sri Lanka. I do not seek to dilute their cultures, but in my view more united them than divided them — yet they fought.

Now we in Australia have a challenge. Do we have a culture? Do we want a culture? Can this culture protect children? Or do we seek to differentiate ourselves in the name of protecting identity and history, be it Aboriginal tribes and peoples, newly arrived Islamic Australians, Irish, Italian, Greek, or my father at the Melbourne Scots in his kilt? Will we allow different cultural norms for different Australian communities, or the application of different laws to different races in the country as was practised in Australia before the referendum of the 1960s?

In my view each Aboriginal language that is lost to history is lost to me and my family as much as to indigenous communities. Each law lost through time, each cultural practice forgotten, is lost to me because it is lost to Australia and all her people, and I belong to her. I may have not been educated in the ways of all communities in this country, but all are part of me.

In the same way, all of Australia is part of each of us. It is time we say that with pride. It is time that we say, in the words of Bruce Woodley “I am, you are, we are Australian” and unashamedly say that our culture is a melting pot of many. Yet there is a fundamental minimum that we should not go below. And that fundamental minimum is the protection of children.

So, what is the “harm” that we protect children from? If my father’s error of the 1950s was using a European cultural perspective when assessing harm, what cultural perspective should we use now? In some Aboriginal traditional cultures and laws, sex with a 12-year-old is acceptable, in others not. In European culture it is not.

Australia has another opportunity for us to debate who we are. The simple question of “when is a child at harm?” raises many more cultural issues that we must not only debate. It is a quandary we must solve.

Andrew Macleod is a Melbourne-born international lawyer who has worked for the Red Cross and the United Nations and whose own family was split by issues around the stolen generation.

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