The Federal Court has rejected the claim for damages against the Commonwealth by two members of the “Stolen Generation” of part-Aboriginal Australians. In a detailed judgement, Justice O’Loughlin said that evidence was not available to sustain the claims — it was either absent or worked against the plaintiffs by demonstrating parental approval for the relocation of their chidren. The decision led immediately to calls for the establishment of a tribunal which would not be as constrained by the rules of evidence as a court of law. Richard Egan looks at the judgement and what it means for this very vexed issue.
Justice O’Loughlin insists that his dismissal of the claims for damages against the Commonwealth brought in the Federal Court by Mrs Lorna Cubillo and Mr Peter Gunner does not represent a denial of the existence of the “stolen generation”. However, the exhaustive examination of both documentary and eyewitness evidence during the course of the trial, and the astute comments on this evidence by Justice O’Loughlin in his 1,565 paragraph judgement do paint a vivid and insightful picture of the removal of part Aboriginal children in the Northern Territory in the 1940s and 1950s, and their life in the hostels in Darwin and Alice Springs.
This picture, while genuinely sympathetic to the distress suffered by the applicants in this case, and others like them, is far more balanced and realistic than the dominant media view, based largely on Sir Ronald Wilson’s Bringing Them Home. The difference may be attributable to O’Loughlin’s clear sense of judicial responsibility to test and weigh all the available evidence.
Referring to the fact that four out of eight witnesses for the applicants admitted they were placed in hostels at the request of their parents, Justice O’Loughlin remarks:
“The evidence showed that broad generalisations cannot be made. In particular, the mere fact that a part Aboriginal child was placed in an institution does not, without more, justify that person claiming that he or she is a member of ‘the Stolen Generation’. In every case it will be necessary to question why was the child institutionalised? Who was responsible? And was it necessary or desirable in the interests of the child?”
In the case of Peter Gunner, O’Loughlin found that he was placed in St Mary’s Hostel, Alice Springs at the request of his mother, Topsy. In the case of Lorna Cubillo he found that given the death of key witnesses, notably the then Director of Native Welfare, and the absence of documentary evidence, Mrs Cubillo could not establish that the Director had failed in his statutory obligation to consider whether her removal from the camp at the ration depot at Phillip’s Creek to the Retta Dixon Home in Darwin was “necessary or desirable in the interests of the child”.
O’Loughlin forthrightly dismissed the principle claim of both applicants which he summarised as follows:
“On the first day and the last day of the trial the applicants were pursuing the same goal. They set themselves the task of proving that a sovereign State acted with a ‘conscious and contumelious disregard for the welfare and the rights’ of two small part-Aboriginal children by forcibly separating them from their families against the wishes of their families. Their alternative plea was that the Commonwealth acted with a ‘wanton cruel and reckless indifference’ to their welfare and their rights.”
His decisive rejection of these claims was based on his assessment of the evidence as showing that
“integration of part Aboriginal children was not based on race; it was based on a sense of responsibility — perhaps misguided and paternalistic — for those children who had been deserted by their white fathers and who were living in tribal conditions with their Aboriginal mothers. Care for those children was perceived to be best offered by affording them the opportunity of acquiring a western education so that they might then more easily be integrated into western society.”
O’Loughlin notes that in practice, removals only took place selectively, and were based on various considerations related to the “necessity or desirability” of removing a particular child. He cites official statistics as indicating that “a total of forty-five boys and sixty-five girls had been placed in one of [the] four institutions [for part Aboriginal children in the Northern Territory] in the six years between 1946 and 1951” and comments that these figures “do not support an argument that there was a large scale policy of forced removals occurring in this period”.
He accepted that there was sufficient evidence to justify
“rejecting the claim that it was a ‘myth’ to think of a part Aboriginal child as an outcast in Aboriginal communities. There was evidence both ways: evidence of warmth and loving care for the children on the one hand: evidence of death and rejection on the other. I mention a few examples from the evidence that, in my opinion, are of sufficient weight to reject [this claim]. Mrs Harris and Mrs Matthews both recounted sad stories of rejection and death of part Aboriginal children. The applicants’ own witness, GK, conceded that he understood that his life, as a small child, had been at risk. The concern about death and rejection was touched upon by some of the former public servants. Mr Ford referred to a parent who may ‘be in trouble’ for having a part Aboriginal child. Mr Les Wilson talked of a part Aboriginal child at risk of being ‘ostracised’. Mrs Moy claimed that there was a habit of killing one of twins. Finally, Mr Gunner believed Florrie Ware when she told him that his mother had put him on an anthill.”
On the issue of whether Peter Gunner’s mother, “Topsy tried to kill her new born baby by putting him down a rabbit burrow” O’Loughlin concluded that “the evidence on this subject” was “too confusing to make any finding at all”.
Both Lorna Cubillo and Peter Gunner clearly have unhappy memories of their childhoods at the Retta Dixon Home and at St Mary’s respectively.
Commenting on evidence from witnesses for the Commonwealth who testified to their gratitude for the upbringing they received in these hostels, Justice O’Loughlin remarked:
“One only has to recall his or her personal childhood memories to realise that friends of the same age often have very different recollections of the same times and the same events. One of the best examples of this dichotomy is boarding school: some children were and are very happy in boarding school: some of their classmates, doing the same things, working under the same teachers, are miserable and pining for their homes and families.”
In addition to this naturally occurring “dichotomy” the claim of Mrs Cubillo to have been viciously whipped with a belt buckle by a male missionary at the Retta Dixon Home and the claim of sexual abuse experienced by Peter Gunner at St Mary’s Hostel, claims accepted by Justice O’Loughlin after hearing evidence from both the alleged perpetrators, no doubt contributed significantly to their overall negative view of their time in these institutions.
As well as his factual findings that the applicants had failed to make out their case, O’Loughlin makes significant legal judgements of relevance to future cases.
The High Court in the 1997 Kruger case has already upheld the Constitutional validity of the Ordinance under which removal and custody of part Aboriginal children was effected in the Northern Territory.
O’Loughlin accepted and applied Brennan CJ’s observation that the “reasonableness” of decisions of the Director of Native Welfare under the Ordinance can “be determined only by reference to the community standards at the time”.
O’Loughlin also found that, as a matter of law, the Commonwealth is not liable for any decision made by the Director of Native Welfare who exercised an independent statutory function, nor for the care and treatment of children by the mission authorities who ran the various homes.
This is one of the findings that may give rise to an appeal, although O’Loughlin’s dismissal of the claims does not appear to depend on this point.
In relation to damages, applicable in the event of his judgement being overturned on appeal, O’Loughlin calculated Mr Gunner’s at $144,100 and Mrs Cubillo’s at $126,800 for unlawful removal and detention and any consequential losses.
If a significant number of the cases already commenced, said by O’Loughlin to number in the hundreds if not thousands, were eventually to succeed then on this rate of damages the Commonwealth’s exposure could be in the order of hundreds of millions of dollars.
The proposals from various quarters for a compensation tribunal that would not be bound by the rules of evidence, so carefully applied by Justice O’Loughlin in the Federal Court, could be expected to result in an exposure of the Commonwealth, and ultimately the taxpayer, to sums considerably higher than this.
This judgement does not spell the end of the “stolen generation” saga but it does, both legally and historically, subject the ambit claims being made by many proponents to a greater degree of commonsense and realism.