Guilty of being Aboriginal

For decades, Uncle Larry Walsh lived with a mystery. As a Taungurung man who was taken from his family as a young child, there’s a lot he doesn’t know about his early years. But one thing seemed particularly strange.

Why, throughout his life, did police and magistrates keep referring to a criminal record he supposedly had that dated back to 1956, when he was only a toddler? What could he possibly have done wrong at that age?

It had been bugging the 63-year-old for years, and he’d still never got to the bottom of it. “In court I’d say ‘come on your honour, 1956, I was two and a half years old, how can I have a criminal conviction from then?’” he says. “But nobody would answer that question, and every time I argued with them, it would only make my record worse”.

“Another time, a judge called me a disgrace to my race, because of, again, that thing of having a conviction since 1956.”

So when the respected, white-haired elder walked into the office of a tiny Melbourne-based non-profit called Woor-Dunginin 2016, he saw his chance to solve the puzzle.

With help from volunteers at Woor-Dungin, which was set up to support Victorian Aboriginal community organisations and means ‘share’ in the language of the Gunnai people, Walsh applied for his full criminal history.

What he found there not only sheds light on the course of his own life, but also raises questions for thousands of others who were taken from their families as part of the Stolen Generations.

It was a full 60 years before Walsh found out how he ended up with a criminal record aged two. When he collected his full police file from the post office one afternoon last summer, he had not lapsed into a life of crime despite convictions when younger for theft and property damage. But he discovered that, in a very real sense, he had been branded a criminal for being stolen.

The first charge on Walsh’s police record is his removal from his family. Under ‘offence’ it states “care/protection application”, and under ‘sentence’ it says “committed to care of Child Welfare Services”. His removal was also listed as a conviction on a Victoria Police Criminal History Sheet from 1971, under the heading ‘Record of Convictions against WALSH: Larry.’

Research by Woor-Dungin volunteer Elizabeth Proctor, and by Law Professor Bronwyn Naylor from RMIT University, showed it was standard practice until 1989 for children to get a police record for being removed from their family.

There was a “failure of the previous system to distinguish between children [deemed to be] in need of protection and young people who were offending against the criminal law,” writes Magistrate Peter Power in documents published by the Victorian Children’s Court. “Not only did the Court buildings and the Court processes and outcomes not make any clear distinction between these two classes of children, the institutions in which they were placed were often the same.”

So, while the power of the Children’s Court to hear charges under the Children's Welfare Act 1954 (Vic) was technically 'additional' to its jurisdiction to hear charges against children for criminal offences, in reality no differentiation appears to have been made.

“Babies, children and young persons before the Court were charged with being in need of protection and, if this charge was found proved, it would appear on a police criminal history sheet,” continues Magistrate Power.

For Aboriginal stolen children and their families there was a double injustice, says Walsh. First, children were forcibly taken away without good reason, and, second, they were made to feel like criminals for it.

Walsh was too young to remember going to court, but others recall the experience. It is described in a submission to the 2004 Forgotten Australians report on children in out-of-home care between the 1930s and 1970s: “After suffering the early morning trauma of being dragged away from my family, I was taken before the court, standing beside my brothers with the escort of police. We were charged with what? I can remember thinking what have we done wrong?”, says one former State Ward.

Another person quoted in the report, who was charged with being neglected, said: “As if a child can neglect itself and was a criminal, even today I feel that I have to declare that I have been charged when documents ask for criminal records’.”

Walsh is clear that having a police record from such a young age has affected his life.

“They picked on me as a kid, the police, saying I had a criminal record. If they’d left me alone in peace, who knows what my life would have been,” he says.

The record also followed him into his adult life.

“Even [at] one stage I went to court for driving without a license, and they wanted me to plead to some other charges, but I refused. And they raised the fact that I had convictions dating back to 1956.

“As far as I’m concerned it has been used against me, as part of painting a picture of me as a very bad person. I’ve been telling people about this for years but nobody believed me. How many other people in my age group, or as young as their 30s, have they done this to?”

In total, thousands of children in Victoria appear to have got criminal records simply for being removed from their families before 1989. Both Aboriginal and non-Aboriginal children were affected.

In 1956 alone, Walsh was one of 725 children who were taken into the care of the Children’s Welfare Department. Of these, 564 children came involuntarily through the Children’s Courts, and would have got criminal records: 138 were committed for ‘anti-social behaviour’ such as stealing, and 426, including Walsh, were committed under the Children’s Welfare Act for being in need of care and protection.

Between 1950 and 1990 over 39,000 children were made wards of the state in Victoria, according to Care Leavers Australia Network (CLAN), and a substantial proportion of those would have gone through the courts and received criminal records.

And this is just children in Victoria. Documents shown to SBS by criminal justice and Indigenous rights campaigner Vickie Roach show that the court found her to be a “neglected child… in that she is destitute” when she was removed from her mother in New South Wales as a two-year-old in 1961.

“Because of that neglect charge, I was in the criminal justice system already; right from then and there I had a criminal record,” she says. “That first charge set the course for my life and negatively influenced the way I was viewed by police and other authorities from then on.”

According to CLAN it used to be common across Australia for children to be charged with being ‘neglected’, ‘uncontrollable’ or ‘exposed to moral danger’ and made State Wards.

While the practice of giving police records to children who were removed was not secret, it appears to have been widely forgotten and left unaddressed.

“I find it stunning that some people have been made to have this [criminal record] for their whole lives, on top of everything else that has befallen the stolen children,” says Ian Hamm, Chair of the Stolen Generation organisation Connecting Home.

Hamm says he had heard rumours about these records, but not seen proof until now. “This is one of the many things that is still outstanding business for the Stolen Children,” he says.

Andrew Jackomos, Commissioner for Aboriginal Children and Young People called on the government to remove the charges from people’s records.

“Frankly I’m appalled that the judicial system would criminalise children, and disproportionately Aboriginal children who were removed or stolen because of the colour of their skin. I don’t think it’s too late now for the government of today to make amends to give people the justice they deserve.”

There is a precedent for an official apology and the expungement of unjust convictions says Stan Winford, Associate Director at the Centre for Innovative Justice at RMIT University. Winford is part of a project with Woor-Dungin and others that aims to reduce discrimination against Aboriginal people because of old or irrelevant convictions, by bringing about legislative reform.

“In 2014 the Victorian Parliament passed legislation to wipe the slate clean for historic convictions for gay sex offences,”he says.

“It was accepted that it was wrong to allow this stain on someone’s record to remain, and the time has now come to do the same thing for people who have criminal records simply because they were taken away from their parents as children.”

In response to questions from SBS, Victorian Attorney-General Martin Pakula said: “The forcible removal of Indigenous children from their families was a very dark period in Australia’s history and has caused profound pain and suffering among thousands of Aboriginal and Torres Strait Islander people.”

“I would be extremely concerned if anyone has the appearance of a criminal record as a result of being forcibly removed from their home when they were a child.”

“I have requested detailed advice from the Department of Justice and Regulation on the historical situation in Victoria and on any actions which may be required.”

A spokesperson for Victoria Police claims that while Court Orders on care/protection applications appear on ‘personal use’ police checks, such as the one Walsh requested, their current criminal history information release policy means this type of record will not be released to third parties such as employers.

However, Victoria is the only state in Australia that doesn’t have a legislated spent convictions scheme. This means that, unlike in other states and territories, there is no law to prevent old or irrelevant records such as these from being released.

Back in the homely meeting room at Woor-Dungin where this all began, drinking coffee out of one of the colourful op-shop cups and saucers, Walsh has a characteristic glint in his eye. The elder has worked tirelessly to promote Koorie culture and heritage in Victoria, and has stood up against many injustices faced by his community over the years. He’snot about to let this one slide.

“I want all Aboriginal people [who were affected] to know about it, and to come forward”, he says.

“Someone needs to admit wrong-doing; to admit that criminalising us as kids was the wrong policy, and that it may have caused some people the problems they are having today.

“I’ve had panic attacks since I was eight I’ve had anxiety most of my living memory. [Whether it’s] emotional and mental health issues, drug and alcohol issues, run-ins with the law, all some people know is that they’re trouble, because that’s what they’ve been brought up to believe. And it’s all because of that one little conviction at the very beginning of our lives.

“We need an apology. We need these records expunged and we need the government to make amends.”

Aboriginal people who want help in finding out whether they have a police record for being made a State Ward can contact their local Aboriginal Legal Service.

Members of the Stolen Generation in Victoria can also contact Connecting Home for help on (03) 8679 0777.

Any former State Ward can contact Care Leavers Australia Network on 1800 008 774 for help accessing their State Ward file.