The Alleged Stolen Generations?

I am sorry that Lorna Cubillo and Peter Gunner, two members of the "Stolen Generations," left the Federal Court in Darwin empty-handed.  Their hopes were raised and dashed.  They should never have been raised.  They did not fail, as the plaintiff's lawyers claimed, because of a mere technicality.  Justice O'Loughlin comprehensively dismissed their cases because they lacked merit.  He stated in his reasons for judgement, "I do not think that the evidence of either Mrs Cubillo or Mr Gunner was deliberately untruthful but ... I am concerned that they have unconsciously engaged in exercises of reconstruction, based, not on what they knew at the time, but on what they have convinced themselves must have happened or what others may have told them".

The Stolen Generations Legal Unit and the Commonwealth consented to these two unrelated cases being run together.  Both sides knew that these were test cases for the Stolen Generations.  Although the judge was at pains to point out he was deciding only the matters before him, there is no doubt Aboriginal interests would have claimed a victory on behalf of the Stolen Generations had the cases succeeded.  Does the defeat mean that future reference should be to the "alleged" stolen generations?

To be fair, the loss does not mean that all cases are doomed to fail.  But if these were the best cases, what hope for the remainder?  Justice O'Loughlin provides the answers.  For cases to succeed:

There will have to be proof a child was forcibly removed -- Only eight witnesses came forth for the applicants, and four of them conceded in cross-examination that they had been placed in the institution at the request of their parents.  Speaking of the people at Retta Dixon Home where Lorna Cubillo had been taken, a contemporary, Mrs Harris said "Well, my mother didn't want me when I was born but afterwards -- well, she wanted to do away with me but my grandmother saved me".

There will have to be proof the actions of the Commonwealth were not in the best interests of the child -- Future cases would rely on evidence from a small and dwindling number of former officers of "exceptionally high calibre" of the Native Affairs Branch and the Welfare Branch of the Northern Territory.  "All of them denied the existence of a general or widespread policy of removal of part Aboriginal children and most of them insisted that no child was removed without the consent of the mother of that child".

Plaintiffs will have to prove absence of "best interest" in the light of the policy and custom of the day -- O'Loughlin J. quotes a fellow judge, "the events that I am being asked to judge and evaluate commenced in 1942 and finished in 1960.  Thus in 1999 I am asked to judge that which took place 39 to 57 years ago ... these are events that occurred in a different Australia, a society with different knowledge, and with different moral values and standards".

O'Loughlin J. noted the Bringing Them Home Report did not inquire into separations that were effected with the consent of a child's family.  "Nor did they require a consideration of cases where a neglected, destitute, sick or orphaned child might have been removed without the consent of the child's parents or guardian".  HREOC and the Federal Government that set terms of reference left out the crucial matter of the context within which children were removed.  O'Loughlin J. did not make that mistake, "After the part-aboriginal people achieved drinking rights, alcoholism and violence became larger social problems for them, which often had welfare implications for their children".

What options are now open to Aboriginal claimants?  How should the Commonwealth respond?  The matters could be left to the courts.  However, as the principal facts have been canvassed in Cubillo many of the remainder of the cases are likely to be struck out.  Aboriginal Legal Aid would have to seriously consider using scarce resources on further cases.  The call for a reparation tribunal is a transparent attempt to have matters heard by a sympathetic body, and for damages to be unlimited.

A compromise is to establish a no-fault compensation scheme.  An ex gratia payment could be awarded to a claimant who suffered some wrong and could prove they were removed by the Commonwealth from their family without explicit consent.  Opting in to such a scheme would foreclose court action.  The statutory amount could be set at a level equivalent to the average of the criminal compensation schemes in the states.

If the Stolen Generations seek more than mere monetary compensation, matters of a moral or political nature could be taken up separately.  An apology for example could be offered without the prospect of huge financial claims.

The problem with the whole sorry affair is that once people become compensation focused, little else matters.  "Mrs Cubillo has, understandably, built up a tremendous sense of grievance and the litigious process has turned that sense of grievance against the Commonwealth to the exclusion of all others".