A recent front page article in the Melbourne Herald Sun trumpeted the "shock admission" of Aboriginal leader Lowitja O'Donoghue that she was not, as previously claimed, a member of the Aboriginal "stolen generation". As she was quoted as saying, "I don't like the word 'stolen' and it's perhaps true to say that I've used the word loosely at times…I would see myself as a removed child, and not necessarily stolen…"

So what was this "shock" admission? Ms O'Donoghue was two years old when removed from her family but "when confronted by evidence unearthed by the Herald Sun Dr. O'Donoghue conceded that her white father might have given her and her four sisters and brother to the missionary-run Colebrook Home in South Australia, with her Aboriginal mother's possibly uninformed consent (italics mine)".

More light is shed on this tale by Dr. O'Donoghue's nephew, Professor Paul Hughes, who confirms that "to say she was stolen would not be technically right in a pedantic way".

In the days following this report Dr. O'Donoghue described the article as "simplistic, sensationalist, misleading and mischievous". She issued a statement that in her mind "significant numbers of Aboriginal children were removed or stolen from their families." She added that her Aboriginal mother "would have had no legal recourse, nor moral support, in resisting our removal. I know that her grief was unbearable."

The final word should go to former Prime Minister Malcolm Fraser: "Because someone has said, 'alright, it was removal and not stolen', are we going to turn around and say all right, no ill was done, no harm was done?"

Plenty of other have critiqued Bolt's article in far more eloquent terms than are available to this writer, but let's look at his conclusions from a legal viewpoint. In other words, how would a lawyer look at Bolt's interpretation of his subject's words?

As we well know (and often bemoan) the law is defined by words, millions and millions of them. It is therefore an essential task of the law and its commentators that these words attain a certain clarity, that there is an objectivity in interpretation that is available to all. This is the reason we have Parliamentary Counsel, officers who are responsible for drafting legislation according to rules that have been developed over the centuries of the English Law.

As lawyers understand, the meaning of statutory words is not determined by subjective interpretation (for of course we all have our own prejudices and perspectives), but by reference to the sense which an informed legal interpreter would give to them in the context in which they are used. Why? Because we would otherwise find ourselves in a jungle where every person could apply their own interpretation to every law.

What is the difference between "removed" and "stolen"? Mr Bolt professes to have simply related the "truth" of the situation. Admirable indeed, but to someone trained in the law this is of little help. The truth of words is not always found in their literal interpretation - perhaps Mr Bolt would assert that the difference in the words lies in their intent, that is, that "stolen" implies an intent to deprive. But again, if Dr. O'Donoghue is correct, the taking of a child without the consent of one of the parents would still strike most people today as stealing. Yes, maybe there was a legal ability of her father to send her away without the permission of the mother, but today, by our standards, this would nevertheless constitute theft. Surely we must be allowed to question historical actions in the light of today's legal standards. If this were not so judges would interpret antiquated laws only according to the standards of their times, and there would rarely be any need to pass new laws that take account of modern behaviours, attitudes and technologies.

More disturbing is the suggestion that a mother who had "no legal recourse, nor moral support, in resisting our removal" has acquiesced in the extraction of her child. Does this mean that the harsher term "stolen" is not applicable? From a legal viewpoint this is ludicrous.

In Australia, today, consent to many acts must be "informed". That means you can only consent to something, for instance an operation in a hospital, if the consequences have been adequately disclosed. In the health care field a famous High Court case has taken this to mean that the patient must be warned of the risks of the procedure if those risks would be likely to be significant from the patient's point of view.

Let's apply this test to the alleged action taken in removing Dr O'Donoghue from her mother. Would anyone today believe that her mother was informed of the consequences of her children's' removal? Would she have been given the opportunity for an "informed" consent? Did she have the right to refuse, and if not, what possible meaning could anyone attach to her so-called "consent"?

The Gershwins wrote a song that gets to the heart of this story: "You say tomato, and I say tomato (pronounced "tomayto", as the Americans do)…" As the lovers in the song sarcastically conclude, this conflict is enough to "call the whole thing off". Stolen or removed, the definition says more about where you stand than any objective interpretation of history. Yes, it's all very well to stir a controversy, but courts spend lifetimes grappling with words that affect our lives, our businesses and our relationships with each other. They understand that it is often necessary to look at what lawmakers mean to say, to judge words carefully, and to be objective.

Did Dr. O'Donoghue mean to denigrate the credibility of the stolen generation? Was her mother accorded her full legal rights to defend her children's' removal? Would such actions stand the scrutiny of today's courts? Those are the issues, not one journalist's subjective interpretation of a couple of words.

By Geoffrey Winn
Creative Director
www.law4u.com.au

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