Smallacombe, Sonia --- "Accessing Personal and Family Records: Contesting the Gatekeepers" [1998] IndigLawB 2; (1998) 4(8) Indigenous Law Bulletin 4

Acessing Personal and Family Records: Contesting the Gatekeepers

By Sonia Smallacombe

The tabling in Parliament of Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families by the Human Rights and Equal Opportunity Commission in May this year (the ‘Inquiry Report’) had an enormous effect on the psyche of the Australian population to the point that it has become one of the best selling reports in this country, even with a purchasing price of $60. The report invoked passionate responses from various sectors of the Australian community, ranging from the Prime Minister John Howard's refusal to publicly apologise for the ill treatment of Aboriginal and Torres Strait Islander Stolen Generations at the Reconciliation Convention in Melbourne, to Parliament a few days later where the Leader of the Opposition, Kim Beasley broke down in tears as he unsuccessfully called on the Federal Government to apologise to Indigenous Australians on behalf of the nation.

The sad reality of any government report relating to Indigenous Australians is that it often provides no redress to those people described in the report. Similarly, if not pursued, this Inquiry Report may provide no redress to the many Indigenous people who divulged so much of their personal grief.

A particular area of significance to the Stolen Generations is the ability to have access to, and control over, personal and family records held by different agencies, government and non–government. Access to information provides the opportunity to re–establish family and community links, revive and maintain Aboriginal and Torres Strait Islander traditions, obtain information for native title claims, and also enables individuals to understand the historical background to contemporary Indigenous issues. The Inquiry Report made nine specific recommendations in relation to the Stolen Generations' access to these records. They all relate to improving access procedures to assist Indigenous people seeking to re–establish family and community links and, in the longer term, to providing the opportunity for Indigenous communities to manage their own historical documents. There is a moral obligation on Federal, State and Territory Governments to address the Inquiry's recommendations in relation to records, as a matter of urgency. But has this been done?

The role of archives

The Inquiry received a number of submissions that detailed the complicated mechanisms and provisions concerning access to records at the different record holding agencies. Submissions also complained that some non–government record holding agencies have refused access to Indigenous people or had set conditions of access.[1] The trouble is that, until recently, record holding agencies viewed their role as 'caretakers' or 'gatekeepers' of records and appeared to plead ignorance of the type of information they were guarding and its relevance and connections to living Indigenous communities. The Inquiry recognised there had to be a number of changes in order to enhance access provisions and that Indigenous peoples themselves had to be involved in the process.

Personal and family history records were created in the past by government and non–government agencies who had dealings with, and control over, the lives of Indigenous Australians. Today, these records form an important part of the cultural heritage of Indigenous peoples and access to them is vital for tracing family members, communities and histories. Aboriginal and Torres Strait Islander peoples not only want to claim their personal histories but also to safeguard any personally sensitive information from the public domain. This has challenged record holding agencies not only about their lack of information services but also their failure to provide Indigenous peoples and their communities with culturally appropriate facilities to access these records. For example, institutions holding Aboriginal–related records have generally perpetuated harmful and disempowering myths about Indigenous Australians, which is evident by the use of racist and offensive subject headings in catalogues and a general lack of respect and protection of personal, secret and sacred material. There has also been a lack of Indigenous involvement either as staff members or as

representatives on boards and councils. As a result, the majority of Indigenous people have been reluctant to visit places which portray or display them in an offensive manner or where there is a lack of Indigenous presence.[2]

Within most records holding agencies, information on Aboriginal and Torres Strait Islander individuals and families are scattered over a number of different records. They are found in various welfare or Patrol Officer's reports, administrative and institutional, police and health files. The main challenge for archival staff lies in not only providing the requested information but also protecting other parties who might also be named in the records. For example, access to adoption records is governed by the various State Adoption Acts and in some instances information about family members is left in the records as it can be seen to be important information to the adoptee who may be seeking family information. In other instances, as well as Native Welfare records, information about one's relatives or other people is seen as unreasonable disclosure of personal affairs and is deleted from the information provided to the individual. This is a rather complex issue, as agencies nowadays place great importance on the protection of other parties, as Indigenous communities are relatively small and, therefore, confidentiality must be respected. However, it is precisely this information that is required to identify family and community links. In the past, the protection of Indigenous–related material has not been a major issue for record holding agencies due to colonial assumptions that all researchers have the right to access all material in the name of 'academic freedom' together with underlying belief that Indigenous Australians were an anachronism and a curiosity of nature and therefore, ‘fair game' for research. It is these assumptions that are also being challenged by Indigenous communities.[3]

Inconsistent access procedures

One of the major issues pointed out in the Inquiry's report is that within each Commonwealth, State and Territory jurisdiction, there is a confusing and complex range of services and procedures for accessing personal and family history records. In other words there is no consistency in legislation across Australia governing access to records.[4] Access arrangements in relation to Commonwealth records are set out in the Archives Act (Cth) 1983 which is currently under review by the Australian Law Reform Commission. Access arrangements to State archives, also known as Public Records Office,s are set out under various library archives legislation in Western Australia and Queensland and the various Archives Acts in Victoria, New South Wales, South Australia and Tasmania. In contrast, the Northern Territory Archives Service and the Australian Capital Territory Archives which were established at the time of self–government, (1978 and 1989 respectively) have no legislation on archives or public access, although there is a tendency to model the access provisions on those of the Commonwealth Archives. The Northern Territory Government has recently developed a Memorandum of Understanding which sets out access provisions for Indigenous peoples researching family information.

In all States, government departments set access conditions at the time of transferring their records to State Archives. The situation can be somewhat confusing in that each government department nominates the length of time that their records are closed although there is a 'general' closed period. For example, in Victoria and Tasmania, records are generally closed for 75 years, while the other States and Territories and the Commonwealth have a 'general' closed period of 30 years; in Western Australian there is no 'general' closed period. However, certain records are closed for longer periods such as the prison records in New South Wales which are closed for 70 years, hospital records in Queensland which are closed for 65 years and police records in Western Australia, which are closed for 50 years. Health Department and Supreme Court records are closed for 75 years. The problems this poses for Aboriginal and Torres Strait Islander people are enormous because there is no guarantee that they can access all the relevant records in their search for personal and family information.

Myriad of agencies

The Inquiry Report pointed out that there is no 'one stop shop' or national database or index on all archive services or record holding agencies. The confusion within the Commonwealth, States and Territory, lies in the myriad of government and non–government record holding agencies that often operate in isolation from one another. For Indigenous peoples this often requires them to contact or visit a number of agencies in search of their personal and family histories. To add to this unnecessary obstruction, personal and family records are often held in centralised locations in capital cities or across state borders, thousands of kilometres away from the people and the communities to whom they have relevance.[5]

State government agencies, such as the Department of Family and Community Services also provide access to personal and family records through the Adoption Information Services which have been set up under the various Adoption Acts. Aboriginal and Torres Strait Islander peoples are able to view and obtain copies of their personal and in some cases family records through personal, written or Link–Up requests. However, there are instances where FOI requests are required. The services provided by the Department of Family and Community Services vary from state to state. In some states it is only available to those people who have been adopted, while in other states this service is extended to ex–wards and those who had been placed under protective care orders. In Western Australia and Queensland this service is available to all Aboriginal and Torres Strait Islander peoples as the Department holds all the old Native Welfare records. The provision of support and counselling services by record holding agencies, and/or referrals to Aboriginal and Torres Strait Islander organisations including Link–Up varies between the different organisations. Not surprisingly, there are concerns by Indigenous peoples that support and counselling services are inadequate, particularly for people who may require intensive and ongoing support.

The State Departments of Aboriginal Affairs in Western Australia, New South Wales and South Australia also provide access to personal and family histories. These records are often held in State Archives but Aboriginal and Torres Strait Islander people approach the Department to obtain access clearance before they go to Archives to view the records. While Aboriginal staff are employed by the Department to assist our people to obtain access, there is the odd confusion when they turn up in the Archives search room. For example, they may have brought family members to Archives for support not realising that their letter of access stipulates that they are the only ones who can access the records. Archives personnel are then required to enforce the access stipulation which leads to frustration and unhappiness for all parties.

The Inquiry Report made reference to the fact that during the years of the assimilation policy, government agencies did not often record a person's Aboriginality on their files. This situation makes it more difficult to trace personal and family histories. Therefore, a knowledge of family names and particular places and areas where Aboriginal and Torres Strait Islander people were known to have resided is important and confirms the need to have local Indigenous staff employed as archivists.

Recent developments

After the Inquiry Report was tabled, I carried out a telephone survey of the Commonwealth, Territory and State record holding agencies. I discovered that all agencies had either examined, or were aware of, the Inquiry's recommendations and some had made submissions and proposals to their governments in relation to implementing the recommendations. Others were waiting on government response to the Inquiry Report before they acted on the recommendations.

My survey also revealed that Commonwealth Archives in Victoria continues to maintain outdated access provisions and had not followed the reforms initiated by their counterparts in the Northern Territory. The Commonwealth Archives office in the Northern Territory and the Northern Territory Government had recently (March and October 1997) signed Memoranda of Understanding regarding access protocols with representatives of the Stolen Generations Combined Reference Groups and two Aboriginal Child Care Agencies.

Aboriginal Advisory Groups had also been established to work with both Commonwealth Archives in the Northern Territory and the Northern Territory Government on policy issues and service practices that affect Aboriginal and Torres Strait Islander peoples. However, it should be noted that discussions between the two organisations and Indigenous groups had commenced prior to, or shortly after, the Stolen Generations Inquiry.

The Inquiry's Recommendations:Recommendations 21–29

Recommendation 21–Destruction of records prohibited

'That no records relating to Indigenous individuals, families or communities or to any children, Indigenous or otherwise, removed from their families for any reason, whether held by government or non–government agencies, be destroyed.[6]

The Inquiry received a number of submissions stating that large numbers of government agencies had destroyed or lost particular classes of records relating to adoption, foster care or personal information either through deliberate culling or through fires in the buildings that housed the records. This issue is being considered by some State Archives and government departments who see the need to have an Indigenous Advisory Group in place to provide information and advice on this matter. According to Australian Archives there is currently a disposal freeze in place on all Aboriginal and Torres Strait Islander related records in Australian Archives.

Recommendation 22–Record preservation

• 'That all government record agencies be funded as a matter of urgency by the relevant government to preserve and index records relating to Indigenous individuals, families and/or communities and records relating to all children, Indigenous or otherwise, removed from their families for any reason.'
• 'That indexes and other finding aids be developed and managed in a way that protects the privacy of individuals and, in particular, prevents the compilation of dossiers'.[7]

The Inquiry felt there was an urgent need to identify, preserve and index records including the identification of lost and destroyed records The work completed by the Queensland Community and Personal History Service in this area was commended as a sound model. The various record holding agencies were at different stages with some only beginning to identify Indigenous related records while others had moved to the indexing stage and only a small number such as the Queensland Community and Personal History Service have completed most of the work in identifying, preserving and indexing records. The fact that Archival institutions see their roles as custodians of records means they only provide minimal assistance on the uses of Indexes and Finding Aids. This situation has been alleviated to some degree by the fact that in some states specialist units within government agencies have been established to assist Indigenous researchers. However, for many Indigenous people visiting archives, there are enormous hurdles to overcome such as having to grapple with Indexes and Finding Aids that have usually been compiled by academics for academic researchers with little input from Indigenous communities.

Recommendation 23–Joint records taskforces

'That the Commonwealth and each State and Territory Government establish and fund a Records Taskforce constituted by representatives from government and church and other non–government record agencies and Indigenous user services to,

1. develop common access guidelines to Indigenous personal, family and community records as appropriate to the jurisdiction and in accordance with established privacy principles,
2. advise the government whether any church or other
   non–government record–holding agency should be assisted to preserve and index its records and administer access,
3. advise government on memoranda of understanding for dealing with inter–State enquiries and for the inter–State transfer of files and other information,
4. advise government and churches generally on policy relating to access to and uses of Indigenous personal, family and community information, and,
5. advise government on the need to introduce or amend legislation to put these policies and practices into place.[8]

This recommendation sends out an enormous challenge to governments and all record holding agencies. Most record holding agencies see this as being important and there is some attempt within each state at co–ordinating inter–agency meetings to discuss issuesof access.

Recommendations 24–29 deal with a number of issues that would be under the responsibility of the Records Taskforce at Commonwealth, State and Territory level. Due to the fact that Commonwealth, State and Territory Governments are yet to respond to the Inquiry Report, there is very little that can be said in response to these recommendations. However, the idea of a 'one stop shop' service to be established for people seeking information from government and non–government record holding agencies is being considered by the Commonwealth, State and Territory Governments. The minimum access standards set out in Recommendation 25 are also being considered particularly in States where there are currently no arrangements between some record holding agencies and the Indigenous communities. Some record holding agencies have no Indigenous staff because of the belief that there were very few with archival qualifications. Interestingly, these same institutions lack employment structures and training programs for Aboriginal and Torres Strait Islander people. Further, they have no professional employment structure and in general, it could be stated that most people employed in archival institutions have no tertiary qualifications and no previous archival experience, and are mainly public servants. To make the claim that Indigenous staff have to be suitably qualified raises serious questions about institutional racism.

Recommendation 24–Inter–state enquiries

'That each government, as advised by its Records Taskforce, enter into a memoranda of understanding (sic) with other governments for dealing with inter–State enquiries and for the inter–State transfer of records and other information.[9]

Recommendation 25–Minimum access standards

'That all common access guidelines incorporate the following standards.

1. The right of every person, upon proof of identity only, to view all information relating to himself or herself and to receive a full copy of the same.
2. No application fee, copying fee or other charge of any kind to be imposed.
3. A maximum application processing period to be agreed by the Records Taskforce and any failure to comply to be amenable to review and appeal.
4. A person denied the right of access or having any other grievance concerning his or her information be entitled to seek a review and, if still dissatisfied, to appeal the decision or other matter free of charge.
5. The right of every person to receive advice, both orally and in writing, at the time of application about Indigenous support and assistance services available in his or her State or Territory of residence.
6. The form of advice provided to applicants to be drafted in consultation with local Indigenous family tracing and reunion services and to contain information about the nature and form of the information to be disclosed and the possibility of distress.
7. The right of every person to receive all personal identifying information about himself or herself including information which is necessary to establish the identity of family members (for example, parent's identifying details such as name, community of origin, date of birth).
8. The right of every person who is the subject of a record, subject to the exception above, to determine to whom and to what extent that information is divulged to a third person.[10]

Recommendation 26–FOI in the Northern Territory

'That the Northern Territory Government introduce Freedom of Information legislation on the Commonwealth model'.[11]

Recommendation 27–Indigenous Family Information Service

'That the Commonwealth and each State and Territory Government, in consultation with relevant Indigenous services and its Records Taskforce, establish an Indigenous family Information Service to operate as a 'first stop shop' for people seeking information about and referral to records held by the government and by churches. That these Services be staffed by Indigenous people. That to support these Services each government and church record agency nominate a designated

contact officer.[12]

Recommendation 28–Training

'That the Commonwealth and each State and Territory Government institute traineeships and scholarships for the training of Indigenous archivists, genealogists, historical researchers and counsellors'.[13]

Recommendation 29–Indigenous repositories

• 'That, on request of an Indigenous community, the relevant Records Taskforce sponsor negotiations between government, church and/or non–government agencies and the relevant Indigenous language, culture and history centre for the transfer of historical and cultural information relating to that community and its members.'
• That the Council of Australian Governments ensure that Indigenous language, culture and history centres have the capacity to serve as repositories of personal information and that the individuals concerned have chosen to place in their care and which is protected in accordance with established privacy principles.[14]

One of the areas addressed briefly by the Inquiry is the issue of ownership of records and it supported the view that original records should remain in the custody of the agency that created them. Repatriation and ownership of records is a sensitive issue for Aboriginal and Torres Strait Islander people. Indigenous staff in record holding agencies are aware that this is an issue that will have to be addressed in the future. Archival institutions make the claim that the legal ownership of records is vested with State and Commonwealth governments. The fact that these records not only hold intimate details of Indigenous individuals and their families but also letters of protest and petitions from Indigenous peoples and their communities gives weight to the argument that the ownership of these records should be vested with those people to whom the records have relevance. Record holding agencies are willing to provide photocopies of records that are relevant to communities and Indigenous individuals. However, some sections of the Indigenous community argue that the original records should be returned and that record holding agencies be provided with the photocopies. The wider issue of Indigenous intellectual and cultural rights in regards to archives needs to be addressed and protected by legislation in the future.

Conclusion

The attitudes towards access arrangements for Indigenous peoples vary among the record holding agencies throughout Australia. Some states have been willing to enter agreements with Indigenous peoples regarding access arrangements, while others have sat quietly claiming they were waiting to hear from the Indigenous community, thus guarding their roles as 'caretakers and gatekeepers'. The major test however, will be how the Commonwealth, State and Territory Governments respond to the Inquiry report and whether that will have any effect on the role of record holding agencies.

One of the concerns that Indigenous peoples have in relation to major government inquiries is that governments and their agencies get caught up in the rhetoric of good intentions and often do not take any responsibility for Indigenous clients. Further, the Inquiry recommendations are not just bandaid solutions that fit neatly into pre–existing bureaucratic procedures. They call for structural changes. This involves major shifts in current attitudes and practices to a position that acknowledges and supports the views and aspirations of Indigenous Australians. The idea that one set of access rules provides equality to all sections of the Australian community has to be challenged as it is this very rule that obstructs Indigenous communities from gaining access to their cultural heritage. Fortunately, there are already a number of record holding agencies who have taken up this challenge and have developed positive relationships with Indigenous people. However, for many Aboriginal and Torres Strait Islander people, particularly those who have been affected by past removal policies, the key to our historical and cultural identity lies in challenging the 'gatekeepers' who hold this information.

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[1] Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997), p 348.

[2] From articles by H Fourmile, 'Who Owns the Past?—Aborigines as Captives of the Archives', Aboriginal History Vol.13, No.1, 1989 and H Moorcroft, 'Ethnocentrism in Subject Headings', TheAustralian Library Journal February 1992.

[3] Draft Guidelines on Research Ethics regarding Aboriginal and Torres Strait Islander Cultural, Social, Intellectual and Spiritual Property, Centre for Aboriginal and Torres Strait Islander Participation, Research and Development, James Cook University, April 1995, p 3.

[4] op cit. n1, p 348.

[5] H Fourmile, ‘Who Owns the Past?—Aborigines as captives of the Archives’ Aboriginal History, Vol.13, No. 1, 1989 p 2.

[6] op cit. n4, p 347

[7] Ibid

[8] Ibid. p 348

[9] Ibid.

[10] Ibid. p 351.

[11] Ibid. p 352.

[12] Ibid.

[13] Ibid.

[14] Ibid.p 356.