The case of Andrea Grant

The Aborigines Protection Board has no power or authority to remove children from their mothers, and in fact have never done so.
- Penhall to Freda Brown, Bronte, NSW, 1 November 1951, GRG 52/1/1951/30 

 William Penhall was the last Chief Protector of Aborigines in South Australia. He was also the inaugural Secretary of the Aborigines Protection Board (the board). From 1939 to 1953 he presided over an Aborigines Department whose practices were characterised by a blatant disregard for the legislation it acted under. It illegally removed Aboriginal children from their parents, and regularly deceived the parents of those children in doing so.

At the time, the guardianship arrangements that operated in South Australia were similar to those in Western Australia, Queensland and the Northern Territory, with Penhall’s board being the legal guardian of all Aboriginal children under the age of twenty-one. The consensus among present-day writers is that guardianship provisions in these jurisdictions allowed their protectors or boards to remove Aboriginal children from their parents and place them where they saw fit.[1] One writer has argued that such a guardian ‘stands in loco parentis to the child and thus has parental responsibilities’.[2] But, a subtle difference in the South Australian Aborigines Act effectively rendered Penhall’s board impotent, and its actions illegal.

In July 1947, Penhall was asked to bring pressure to bear on an Aboriginal woman, Andrea Grant, in order that her daughter, Susan, be kept at the newly established children’s home at the Gerard Mission, on the Murray River. Penhall readily agreed to do this for the United Aborigines Mission (UAM) organisation. In fact, he recommended to his board that both Susan, aged seven, and Grant’s other daughter Julie, aged 12, be held there. He wrote:

Mrs [Grant] … is not in my opinion a suitable person to have the custody of the older children.

If Mrs [Grant] returned to the Gerard Mission, she would have access to the children occasionally, and will be provided with rations.[3]

If, in Penhall’s opinion, Mrs Grant was not a fit person to have the custody of her children, he should have referred the matter to the Children’s Welfare and Public Relief Board (CWPRB) in order that they could conduct an investigation, as provided for under section 38 of the Aborigines Act. This section of the Act allowed for the transfer of control of the guardianship of any destitute or neglected Aboriginal child from Penhall’s board to the CWPRB, and so to be treated as a regular ward of state.

For some years, Penhall had taken a hard line with Grant, a single mother, and denied her the assistance she needed to keep her family intact. In the winter of 1945, when requesting money from her child endowment funds to buy warm clothes for her daughters, she wrote:

I am on the sick list also my daughter [Julie] has been sick a good while now and also Mr Penhall I do need blankets badly I have only one and the nights are so cold …[4]

Even though all Aboriginal people were entitled to the issue of one blanket each per year, Penhall’s reply, in total, read:

In reply to your letter of the 17th inst., I have to advise that you have expended all monies received for Endowment, consequently I cannot accede to your request. [5]

A lack of rigour in custodial deliberations and child protection investigations were hallmarks of Penhall’s administration. In February 1948, Eve Gardner, of Anna Creek Station, died shortly after being admitted to Port Augusta Hospital, suffering from pneumonia. The doctor who attended her at the railway station at Hawker, 90 kilometres to the north of Port Augusta, refused to admit her to the hospital there ‘owing to staff difficulties etc’[6], which appears to have been a standard excuse used by some members of the medical profession in South Australia at the time to exclude Aboriginal patients from hospitals. Eve was travelling with her husband and two children—a girl of two and a boy of four. The missioner-in-charge of Umeewarra Mission, near Port Augusta, asked Penhall if she could take the children into her home. She made no mention of the father’s wishes in the matter. Penhall immediately replied:

With regard to the death of [Eve Gardner], I am doubtful whether she would have survived even if she had been removed from the train at Hawker, although, of course, one cannot be sure in cases like this.

I think it would be an excellent thing if the children could be placed in the Home, and I may state such action will be entirely approved in the interests of the children.[7]

The case of Andrea Grant gained prominence again in April 1949 when Southwell alleged that she was having an ‘adulterous’ relationship with an Aboriginal man. Even though she was living away from the mission, Southwell made the following suggestion:

The difficulty is to know what punishment to give her [for adultery]. She has, up to date, desired to keep her child [Susan]. If it would be a punishment to her, I would say put [Susan] in an Institution for she is very dirty and neglected.[8]

Penhall immediately agreed to remove Grant’s daughter, though he was careful enough to change the reasoning behind the move, from the punishment of the mother to the ‘protection’ of her daughter. On the same day that he received Southwell’s letter, he wrote to the UAM:

I have come to the conclusion that, for the welfare of the child, [Susan], she should be taken into the Home at Gerard. I shall be obliged if you will endeavour to arrange this, and report if the mother is unwilling.

I should like to know also whether there are any other children in Mrs. [Grant]’s custody.[9]

But Penhall was clearly unsure of his exact legal position, for the following month he requested a report from the Crown Solicitor ‘as to the powers of the Aborigines Protection Board in the matter of removing aboriginal children from the control of incapable and neglectful parents otherwise than by the method described in Section 38 of the Aborigines Act’[10], the ‘transfer of control’ provisions.

The advice from the Crown Solicitor was not what Penhall wanted to hear. Penhall wrote to his board:

The Crown Solicitor has advised that the [APB] has no authority to remove aboriginal children from their parents except by concerted action with the [CWPRB], as provided in section 38 of the Aborigines Act, 1934–39.[11]

There was no equivalent of section 38 in the corresponding legislation operating in Western Australia, Queensland and the Northern Territory. The effect of section 38, according to Justice Gray in the Trevorrow case—the landmark case for compensation brought by a member of the ‘stolen generation’ against the South Australian Government—was that the ‘guardianship’ created by section 10 of the Aborigines Act did not give Penhall’s board the same broad rights and powers enjoyed by a natural parent in relation to a child, and did not convey rights of custody or power to remove Aboriginal children from their parents.[12]

Penhall and his board had been put on notice that their removal of Aboriginal children was without legal authority. Two years later, as the opening quote shows, Penhall would deny that his board had ever removed Aboriginal children from their parents.

Before the opinion of the Crown Solicitor reached him, however, Penhall attempted to remove Susan Grant from her mother. He sent welfare officer McKenzie, who found Mrs Grant adamant that no one would take Susan away from her. According to McKenzie, Mrs Grant was ‘most insolent and told me several times that it was none of my business how she lived’.[13]

McKenzie’s reports reveal an active dislike of, and negativity towards, Aboriginal people. Indeed, a close reading of the archival material suggests strongly that the Aborigines Department was deliberately staffed in such a way as to hamper the social and political development of Aboriginal people.

A few days after McKenzie’s intervention, Andrea Grant again refused to hand Susan over to Southwell, who reported:

As arranged by Sister McKenzie I called for [Susan Grant] yesterday but [Andrea] would not give her up.

I reminded her that she was breaking her own promise & that it would mean police action having to be taken against her.[14]

At the next meeting of the board, Penhall requested that they commit Susan to the children’s home at Gerard. He noted that Mrs Grant was living in a tent near the packing shed at Berri and requested that Susan be ‘removed’ from her and ‘placed in the [Gerard] dormitory and kept there during the pleasure of the Board’. The board adopted this recommendation.[15]

When Southwell called on her a week later, she again refused to hand over her daughter, with Southwell reporting:

I then told [Andrea] that I would call again on Monday & that if she did not hand over [Susan] then I would not call again & she must take the consequences. She replied that she was quite prepared to take them.[16]

The threat appears to have worked, for a few days later Andrea handed Susan over to Southwell. On 1 August 1949, Southwell reported: ‘[Susan Grant] has settled into Dormitory life & [Andrea] has been down twice to see her’.[17] Penhall responded:

I am very pleased that Baby [Grant] has settled in to the dormitory life, and I think it would be a tragedy for [Andrea] ever to have control of these children again.[18]

Of course, the board did at times remove some Aboriginal children who appear to have genuinely been at risk of harm. More often though, there was a capricious element to their removal, with such action precipitated by considerations apart from the protection of children, including the lifestyle of the parents, and whether or not the family or the child were deemed a ‘nuisance’.

At not time during his 15-year reign did Penhall offer any assistance to Aboriginal people whose children were being illegally detained by religious organisations. In early 1952, when an Aboriginal woman approached the superintendent of the Gerard Mission, requesting that her son be released from there, she was told that she needed Penhall’s permission in order to remove him.[19] Her son had been there for fourteen months. When she dutifully wrote to Penhall, he played his part in the charade, advising her that as the original arrangement was made with the UAM, the decision as to the custody of her son rested ‘with the Mission and yourself’.[20] It didn’t; it rested solely with the mother, as Penhall knew.

Penhall could have told the woman that she was free to take her son from the mission. To have done so may well have constituted a critical first step in a new regime of openness and honesty, in which Aboriginal people were made aware that they had the same rights to the custody of their children as enjoyed by the rest of the South Australian population. He chose not to do this.

Indeed, the withholding from Aboriginal people of a frank and honest account of their legal rights was a key part of Penhall’s strategy, repeated time after time. This constitutes another violation of his, and the board’s, roles. Under section 7(g) of the Act, the board had a duty ‘to exercise a general supervision and care over all matters affecting the welfare of the aborigines, and to protect them against injustice, imposition and fraud’. It appears that Penhall did not consider that this part of the Act applied to the board itself.

For Aboriginal girls of Koonibba Mission, near Ceduna, on the far west coast of South Australia, the position was far worse. The children’s home there was a virtual life sentence for some Aboriginal women who were kept in that home into their late twenties and early thirties, and forced to make written requests to Penhall and Pastor Traeger, the missioner-in-charge, whenever they wished to leave, even for holidays. When one woman wrote, ‘my poor sister dreads to think, she’s to spend all her days in the Mission Home,’[21] Penhall advised her that Traeger had ‘authorised’ her sister, soon to turn thirty, to spend one month with her.[22] Of course, neither Traeger nor Penhall had any such authority over the woman’s movements.

Under Penhall, complaint and dissent were stifled by a deliberate policy of limiting the information made available to the general public. Most South Australians simply did not know what was going on. In late 1943, Penhall was instrumental in denying Ronald and Catherine Berndt, the renowned anthropologists, permission to enter Aboriginal reserves in South Australia to conduct their investigations into Aboriginal social, cultural and economic life. He considered that the Berndts, who were to become highly distinguished and respected members of the international academic community, were ‘not suitable persons’.[23] The Berndts were later to write of Penhall:

The reputation among Aboriginal people of this official Protector of Aborigines was perhaps the worst among all of those we have known.[24]

Penhall retired from the public service in August 1953. In some ways it was a watershed; the end of an era. At the end of the same month there was a meeting in the Adelaide Town Hall, organised by the Aborigines’ Advancement League, at which ‘part-Aborigines’ were to discuss the topics ‘Our place in the community’ and ‘Why we need a hostel’. There were to be ‘musical items by part-Aborigines’, and the premiere of the film ‘Men of the Mulga’. It was the first time such a meeting had taken place in any town hall in any capital city in Australia. Despite the spoiling work of Penhall, his board, and his department, there was a residue of social activism among the Aboriginal people of South Australia.

The Last Protector is the result of an exhaustive study of the official correspondence of the Aborigines Department in South Australia from 1939 to 1953, during the reign of its last Chief Protector of Aborigines, William Penhall. Despite assurances by Penhall to the contrary, these records strongly suggest that his board did remove or withhold Aboriginal children from their parents and, in doing so, acted illegally.

Cameron Raynes is an independent researcher and writer but prefers to make things up. He won the Josephine Ulrick Literary Prize in 2008 for his short story, 'Taxi'.

1. See Buti, A.D. 2004, Separated: Aboriginal childhood separations and guardianship law, Sydney Institute of Criminology, University of Sydney, p. 90; Haebich, A. 2000, Broken circles: fragmenting Indigenous families 1800–2000, Fremantle Arts Centre Press, Fremantle, p. 314; Bringing them home: report of the national inquiry into the separation of Aboriginal and Torres Strait Island children from their families, April 1997, p. 256.
2. Buti 2004, p. 23.
3. Penhall to Aborigines Protection Board, 2 September 1947, GRG 52/1/1947/23.
4. Andrea Grant, Swan Reach, to Penhall, 19 June 1945, GRG 52/1/1945/61.
5. Penhall to Grant, 23 June 1945, GRG 52/1/1945/61.
6. Simmons, Umeewarra Mission, to Penhall, 11 February 1948, GRG 52/1/1948/44.
7. Penhall to Simmons, 12 February 1948, GRG 52/1/1948/44.
8. Southwell, ‘Copy of Statement’, 12 April 1949, GRG 52/1/1949/25.
9. Penhall to General Secretary, UAM, 13 April 1949, GRG 52/1/1949/25.
10. Penhall to Minister of Works, 27 May 1949, GRG 52/1/1949/80.
11. Trevorrow v. State of South Australia (2007) 5 SASC 285 para. 41.
12. Trevorrow v. State of South Australia (2007) 5 SASC 285 para. 489.
13. McKenzie, ‘Report, Berri and Gerard’, 21 June 1949, GRG 52/1/1949/65.
14. Southwell to Penhall, 25 June 1949, GRG 52/1/1949/25.
15. Penhall to Aborigines Protection Board, 6 July 1949, GRG 52/1/1949/64.
16. Southwell to Penhall, 14 July 1949, GRG 52/1/1949/25.
17. Southwell to Penhall, 1 August 1949, GRG 52/1/1949/25.
18. Penhall to Southwell, 5 August 1949, GRG 52/1/1949/25.
19. Jill Taylor, Winkie, to Penhall, 16 April 1952, GRG 52/1/1951/4.
20. Penhall to Jill Taylor, 23 April 1952, GRG 52/1/1951/4.
21. Carol Wilkinson to Penhall, 23 May 1940, GRG 52/1/1940/16.
22. Penhall to Mrs Carol Wilkinson, 24 June 1940, GRG 52/1/1940/16; see also Traeger to Penhall, 6 June 1940, GRG 52/1/1940/16.
23. Penhall to Aborigines Protection Board, 16 December 1943, GRG 52/1/1940/97.
24. Berndt, R.M., Berndt, C.H. and Stanton, J.E. 1993, A world that was: the Yaraldi of the Murray River and the lakes, South Australia, Melbourne University Press, Carlton, p. 7.