Transcript: Forced adoption: Righting wrongs of a dark past

AIFS seminar: Forced adoption: Righting wrongs of a dark past - Wednesday 12 November 2014

Audio transcript (edited)

The following audio presentation is brought to you by the Australian Institute of Family Studies as part of our monthly seminar series in which we showcase national and international research related to the family. The seminars are designed to promote a forum for discussion and debate. They are open to the public and free of charge.

Seminar facilitated & speaker introduced by Dr Daryl Higgins

Professor The Honourable Nahum Mushin

Thank you. I think I should start by telling you that I have amended the dictionary and crossed the word retirement out of my copy and every other copy of dictionaries that I see. It's a non word I'm afraid. May I also recognise the originals owners of the land on which we meet and pay my respects to their elders past and present.

I'm going to deal with this topic in two parts. First I want to tell you about the apology itself the process which led to the ultimate apology in March of last year and secondly to tell you about what's called the concrete measures which arise out of the apology and the government's response.

So just to start the Senate Community Affairs References Committee tabled its report on forced adoptions in February of 2012. There were 20 recommendations in all of which recommendations 1 to 7 dealt with the apology and 8 to 20 with the concrete measures. A summary of 1 to 7 may be seen there as starting with the recommendation that the apology should be on a national framework, that the Commonwealth should apologise to people affected by forced adoptions and that there should be state and territory apologies in the form of the Canadian Law Commission which I will come to in due course and that they should be taken - they should accept responsibility for past wrongs, that there should be undertakings of concrete measures and that they should be in a very wide form and I hope that the apology which was eventually offered on the 21st of March of last year and I think a copy of which is here that you can take complied with all of those.

Now it's important to start of with understanding what it is that we apologised for. The story of people affected by forced adoption is indeed a startling one and the title of this paper, "Writing Wrongs of a Dark Past" in fact what has happened constitutes a dark past in Australia's history. You'll be aware of the fact that there needs to be consent by the parents of a child in order that adoption should take place. There was consistent and regular lack of consent or forgery of consent documents, or post dating of consent documents and all of this is clearly established in the Senate report. So many - in fact probably the majority of these young mothers were under the age, which was then 21, the age of consent. They had no guardians, the had no personal representatives, they had no independent legal advice, they usually had no legal advice at all. They were regularly not permitted to see their babies after the birth. At times sheets were put in place to stop that. They were tied to the bed, they were under the influence of drugs and ultimately they were deprived of their dignity and individuality as people in institutions to which they were sent to have these babies.

A lot of them were sent interstate and even overseas, many to the country and there are a number of institutions which accommodated them. They weren't allowed visitors, they weren't supported by their own families, at times given the way people felt about single motherhood and particularly unmarried young women the criticism of them and the society attitude to them was nothing short of appalling. Even if parents were involved they were discouraged and there's one experience of, related in the Senate report, of the parents being actually escorted from the hospital when they wanted to see their new grandchild.

Now we're not just talking about mothers here. We're talking about adoptees, fathers and extended families and I'm about to come to the language issues so you can understand what I'm referring to there.

So the time period. The best figures as the Senate related it started in about 1940 and from then until the present time there have been approximately a quarter of a million adoptions in Australia. There was a peak period of those, about 150,000 in the 20 years to the early 1970s and that came to an end with the creation of better social security provisions to make it possible for single mothers to bring up their children. There were some submissions made to us that the apology should be restricted to that 20 year period. Now the difficulty - while understanding the nature of that submission the difficulty of that was while you validate the people who fall within that period you take away the validation for everybody outside it and if there was one thing that then Attorney General Roxon told me about in our first meeting on this it was that the principles of diversity and inclusiveness were fundamental to our consideration and our writing of this apology.

The Commonwealth's role in forced adoptions was relatively narrow. This is not to underrate it. But adoptions are within the jurisdiction of the states and territories. Always have been. In my view that should be changed but that's not a matter for today. Their attitude first of all started with issues of social security and I've referred to the introduction of better social security in 1973 which made things somewhat easier for single mothers. They assisted with a development of model legislation which never really came about but were leading that and they also promoted apologies in the states and territories and you will see that the recommendation for the States to apologise everybody except the Northern Territory has in fact apologised and I understand that the Northern Territory's attitude is born out of the proposition that the Northern Territory was really part of the Commonwealth at the time and hadn't achieved independence.

Attorney General Roxon established the reference group, the Forced Adoption Reference Group in June/July 2012 which is when I came on board - that's interestingly two and a half years now - supported by a wonderful from the secretary from the Attorney General's department and our primary purpose was to draft the apology. We met four times between August and December 2012 and delivered an apology to the government - the draft apology to the government just before Christmas in 2012 and the membership of the group basically was myself the three leading Senators who participated in the Senate reference committee together with the honourable Graham Perrett a member of the House of Representatives who had also been affected by forced adoption, three mothers, two adoptees and a father.

I went round Australia I think twice. Forty eight consultations in all capitals except Darwin and I know several of you here today gave very useful input into our work. Those consultations were conducted in very small groups and people who'd indicated an interest in contributing to the formulation of the apology were all given that opportunity. They were all given undertakings of confidentiality and also undertakings that what they said would be related to the reference group and one of the interesting things about that was what we heard from outside from the consultations was the same as the views that were being expressed within the reference groups. So there was a consistency of views which enabled us to be confident that what we were doing was on the right track.

Now the structure of a public apology is important. We need to ask who are we are apologising to? What are we apologising for? And of importance is you do not give and apology you offer an apology. The concept of an apology is one of offer and acceptance. You offer it and it is up to the person to whom it is offered to decide whether they come within that group of people to whom it’s offered so that they can accept it. I referred to the Law Commission of Canada. This is extremely important research work. The only reference I can find to it is in the Senate report of that reference but they say there are five steps to an apology. Acknowledge the wrong, accept responsibility, express sincere regret, assure that the wrongs will not recur and reparation through concrete measures and I'm coming to that shortly. I'm confident that the apology complied with all of that and of course that's in accordance with one of the recommendations of the Senate committee that that should be the structure of the apology.

Now we determined right at the very beginning that this started and finished with the concept of language. If you got the language wrong you got the whole thing wrong and conversely if you get the language right you're at least well on the right track. So the first two meetings of the reference group considered the question of language. Mother. People referred to relinquishing mothers, birth mothers, biological mothers, life mothers and probably other things. It think there's a fifth one and I couldn't remember it. "Relinquishing" has a particularly bad aspect to it because that contemplates some sort agreement to giving away this child which is fundamentally offensive in the whole area of forced adoption. A mother is a mother is a mother. It doesn't need an adjective. It's somebody other than a mother that's when it needs an adjective. So really what we decided was the term in clearly mother. Likewise father. Adopted person - we had a bit of debate about adopted person whether it should adopted person or adoptee and at the beginning of the apology because of the context we referred to babies and of course there are then siblings and extended families and we must not forget that forced adoption affects a very wide group. It's like throwing I was going to say a pebble or stone into a pond and the ripples right through can at times have been a tidal wave.

We were advised right at the beginning and accepted the advice that "stories" is not an appropriate word to describe people's experiences. I think of the song that I learnt when I was very young, "Tell me a story and then I'll go to bed." They're not stories. These people have lived these events and they have experienced those events and therefore the word "experience" is far more appropriate that "stories". The word "forced" which of course is in the title to the Senate committee report is as we decided not all encompassing. There is more to forced adoption than "forced" but that is the terminology that was used. There's been as I've said lack of informed consent but the word on which I was prepared to go to the barricades was the word "illegal". So that really what you're talking about here is a breach of the law. Arguably if the law had been complied with in all its aspects with regard to consent and revocation of consent and independent advice and guardians of underaged people and all of those sort of thing arguably you would not have had forced. Although community attitudes at that time, lack of peer group pressures and all of those sort of things were extremely relevant to all of those issues. But it was the word illegal which mattered and to my mind I said to people right at the very beginning, "That word is going to be in the apology." And it was.

Mother's in particular but others used words such as "lied to." It's quite clear that was right. "Betrayed." It’s quite clear that was right. "Kidnapped" depends on your definition. "Stolen" and "removed" - all of those words in that context have meaning. But we decided against them in the apology because we thought that they were too inflammatory, particularly in circumstances where this apology we hoped - and I'll come to this in a moment too - this apology was going to be an education thing for the community so that the community could understand it. I know the decision we took on that is controversial. It remains controversial to today but that's the decision we took.

There are three sensitive issues which we had to deal with. The first of those was inter-country adoptions. Now since that time and particularly with the new government

inter-country adoptions have become front and centre. We had representations to the reference group that inter-country adoptions should be included. I put that to the government and they decided against it. There were sensitivities with other countries and it was seen as being something that needed to be dealt with separately. My own view and predict it now is that sometime in the future one of the forthcoming apologies will be for inter-country adoptions. I think it's only a matter of time myself but we'll see.

The thing that shocked me most about this work was the conflict within the forced adoptions sector. It really startled me to think that people who'd had the same or similar experiences were saying and writing things and had created entities which are undoubtedly life long. I don't believe that they are capable of resolution but it is something on which I simply make a comment and I have to say to you that my concerns are particularly significant in the area of conflict between mothers and adoptees. Now it's there and it's my duty to make people aware of it. I think it's wrong. I think it is doing damage to the whole of the sector. I think it is resulting in people in power having an excuse not to listen to the important messages. But whatever, it needs to be referred to.

Adoptive parents. We received submissions that adoptive parents should also be included within the apology. The decision we made and we didn't need to even put this to government because the reference group was quite clear on it was that adoptive parents should not be included. There is great enmity - I think it's the most difficult issue of all. There is great enmity between in particular mothers and adopting parents but that's one of the facts. One of the issues is for adoptees - first of all of course mothers feel that adoptive parents stole their children but the adoptees told us over and over and over again that they felt like the meat in the sandwich between their mother and their adoptive mother. I can only say this should be fixed. I can't see it happening but I raise it as an issue which I think is very important to bring closure for so many people affected.

Now the apology itself was offered by the former Prime Minister. Go onto YouTube and watch and listen to it if you haven't already. It's extraordinary. Motions were put to both Houses and supported and on the same day the government tabled its formal response to the Senate report. One other thing happened on the same day. I can't think of a better way in which the then government could've sucked all the oxygen out of what happened at the apology than by having the fiasco of the leadership spill that happened or attempt which happened on that day. I can remember being on the lawns outside Parliament house as the word went round that this was going on. Not one of the interviews was played. Not one of the media referred to these things and it is a matter on which those involved are to be condemned.

We cannot avoid looking at the emotion arising out of people's experiences. It is essential that we be aware of that and that was extremely evident on the day. It affected people differently. Some people said, "Yes well that's all very well thank you very much that's okay." And some people were extremely affected by the apology and it is essential that every person be respected for the way in which she or he acted and reacted to it and there's no doubt that the apology itself re-traumatised or re-victimised many people. There were counsellors available on the day and that's all been extremely difficult and of course if you are dealing in this area always expect to be upset and moved.

Following that Minister Macklin and Minister Collins established the forced adoptions implementation working group which has a similar structure to the reference group. "Concrete measures". That is a quote from the Senate report which in term quotes the Law Commission of Canada and I want to read it.

"Verbal apologies must be accommodated by concrete measures such as financial compensation, counselling and other measures. These measures help translate the static message of an apology into an active process of reconciliation and healing. Official apologies in particular need to be accompanied by direct and immediate actions."

And during the consultation we were told over and over again. "No concrete measures? This is only words. Forget it. It'll be gone." So really what's happened is since about June, July last year we have been dealing with the concrete measures and I now want to tell you something about it.

$11 million was basically - $11.5 million dollars was granted by the government to concrete measures. $5 million of that went to the Department of Social Services to improve access to specialist supporter services and together with records tracing and things like that. That tender process is under way. One would hope that there would be an announcement before Christmas and I can't say any more about it I'm not involved in the tender process. However I hope you've seen the structure which is going to be State based and hopefully it's going to be multi-faceted with organisations including the very important peer groups involved in delivering support services. $5 million of that - a further $5 million over four years was contributed to provide for mental health services. $3.5 million went into ATAPS the Access To Allied Psychological Services on the day of the apology or the day after. There's no need to go into the details now but that has not been a pretty picture. It wasn’t as well administered as it could've been but it was there. A further $1.5 million was awarded - granted for guidelines and training and that tender process is also underway. Again I can't say anything about that process but one would help that there would be an announcement before Christmas. $1.5 million went to the archives for a website and what I call a hardcopy exhibition. The website was launched on the first anniversary in March of this year. It is nothing short of fantastic. If you haven't seen it see it because it is really worthwhile and the exhibition which will tour all round Australia will be launched on the second anniversary. It's actually for those of you who want to know it's happening in a ceremony in Canberra on Thursday 19 March. The Anniversary of the apology this year's on a Saturday.

Harmonisation of records. This involves several aspects. This is birth certificates in particular. Integrated birth certificates that show both families that is the mother and father and the adoptive families and also the inclusion of fathers' names on birth certificates of adopted children. It wasn't funded by the government's response it's all within the jurisdiction of the states and territories and I have to say that when we leave this project at the end of the year this is the one that's not going to have been completed. The states and territories are not as enthusiastic about this project as I for one and I'm sure lots of people would like them to be. In my view it needs leadership from the Commonwealth and literally as we speak there are representations being made along those lines. So the discussions are continuing between relevant ministers in their departments and the working group is directly involved in those discussions both verbal and written.

There have been other suggestions of concrete methods which include a forced adoptions commemoration day, a memorial statue in Canberra and centralisation of health records. Those are no more than a wish list on which the working group will be advising the government but at this stage there's been no action on any of those at all.

Here are some issues. Funding of those concrete measures was for four years. There is no suggestion at this stage that funding will be continued after the four year period. There are two particular programs in which it's essential that that take place. One of them is the health training and guidelines and the other is the DSS services to both of which I've already referred. I am of the view that government should commit itself - Commonwealth government should commit itself to ongoing funding and I can but hope that that will occur. I think that needs to occur for the sake of the piece of mind of people affected by forced adoption.

There is great concern in the community - I've received I don't know how many emails about inter-country adoption. This is outside of the jurisdiction of the working group because we are only implementing the recommendations of the Senate committee and they don't deal with inter-country adoption. I've already suggested that at some time in the future I think there's going to be an apology for people affected by inter-country adoption. There is some really major issues in this area not the least of which is the question about whether

inter-country adoption should take place by way of bi-lateral arrangements between Australia and other individual countries or should be done through the Hague Convention on inter-country adoption. My view is it should be done through the Hague Convention. The government is in the process of formulating policy and legislation and we will see what transpires.

And one must record the proposition that there is a lot of feeling out there with regard to the abolition of adoption. The argument at least in part is to honour the experiences of people affected by forced adoption who are traumatised by the whole concept of adoption and understandably so and given that so many jurisdictions have now moved from what's called closed adoption where a wall is put up and the adoptee doesn't know anything about his or her background to open adoption where it's open to the court to make certain orders with regard to ongoing contact with mother and father and original siblings and extended family. One must ask the question whether the whole concept of adoption has now become questionable and whether we really should be moving towards a situation in which we are simply dealing with best interests as in family law of which I have but a passing knowledge. So that's a question I think which needs to be debated. I think there's another question which needs to be debated. Can we justify the proposition that a child adopted in Albury and another one adopted in Wodonga are adopted pursuant to separate and different laws? I ask that question rhetorically.

It is very difficult to ignore surrogacy with its similarities to the whole area of adoption. Again outside the area of the working group but who could not be moved by the facts of the baby Gammy case which has been in the newspapers so much recently? There is a significant amount of cross over between the various issues including dare I say as a lawyer the jurisdictional issues that are involved in that and the fact that the law has not kept up with science in terms of regulating some of these things. They are all questions on which in my view the community needs to have a significant discussion.

I thank you.




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