Although this is not the beginning of the "stolen generation" saga, which in reality began in the second decade of this century, a significant turn of events has taken place on the legal front. In the Federal Court in Darwin, Lorna Cubillo and Peter Gunner, both part-Aboriginals, are seeking damages for the harm they allegedly suffered as a result of being part of the "stolen generation". And there are hundreds of other potential claimants waiting in the wings, eager to see the outcome of this landmark case - a successful claim will inevitably lead to similar actions, in other words, this is a major test case concerning a controversial issue. As most Australians now know, successive Governments removed part-Aboriginal children from their parents and placed them with white Australian families, or in institutional care. Often they were abused, or used as domestic servants, or simply placed in homes against their will. they wantThe claimants believe they were betrayed by the Commonwealth Government, which should have taken far greater care for their welfare, and therefore should now pay compensation for the harm resulting from their actions. The claimants say that were denied access to their families, from whom they were removed without parental consent, and placed in institutions where they could no longer take part in their Aboriginal culture or see their families. Since this affair was sanctioned by policies of the Australian Government, who did not make allowances for the specific circumstances of the individual children, the two claimants lay the blame squarely at the feet of the Governments of the day. At the time, the government policy was spelt out in the following terms by the then Minister for Territories (and later Governor-General) Mr Paul Hasluck: "…(when) half-caste children are found living in camps full of full-blooded natives, they should, if possible, be removed to better care so that they have a better opportunity for education…if a half-caste child remained with a bush tribe, he will grow up to have neither the full satisfaction in life which the tribal native has, nor the advance to any upper status. The policy is applied with care and discretion, and a full recognition on the part of the administration that the mother has the same affections as every woman. " This makes it sound like the arrangement was amicable, but of course the claimants dispute this. As their lawyer Jack Rush QC stated to the Court, the Commonwealth alleges consent was properly obtained at the time, but the document they rely on is undated and is "signed" by a thumbprint, not to mention the fact that Peter Gunner's mother could not even speak English. Okay, so it was tough to remove these children from their families and cultures, and no doubt there is harm in this, but where is the "damage" they claim to have suffered? First, it's important to understand the nature of a legal claim for "damages". Under the law of negligence, "damage" refers to a loss suffered by a person as a result of the foreseeable negligent actions of another. For instance - you reverse your car out of your drive without taking care to check whether a pedestrian is crossing the footpath. Unfortunately, a pedestrian is crossing the footpath and is injured because you didn't look where you were going (i.e. you didn't take proper care). Is an injury foreseeable? Yes, clearly it could be anticipated that a pedestrian might be injured, because it's always possible a pedestrian will be walking by when your car crosses the footpath, and you know a serious injury might result if a car hits a person. So the claimants in this case say the Commonwealth didn't take care of them because they dragged them away from their families, and it could be reasonably anticipated that they would suffer harm from this action. That harm includes, according to their lawyer, suffering because of the disruption to their lives and separation from their families and cultures. In this case, the "damage" claimed is not restricted to physical harm, but also includes emotional anguish and ongoing distress. And of course, as we all know, traumatic events that take place in our childhoods often leave lifelong emotional scars. Our readers may not be surprised to learn that the Commonwealth believes there are some serious legal impediments to overcome before the "stolen generation" can begin to have their claims litigated in court. They say that too much water has passed under the bridge to make a claim at this late date, and anyway, the decision to relocate the children was not a decision of the Government of the day but the bureaucrats and charitable groups who undertook the operation. The Government makes it clear that, as far as they are concerned, the Court cannot decide this case on issues of right and wrong, but solely on a strict interpretation of the law. And finally, even if the Court was to decide that there is no legal barrier to the claim, the facts do not support it because the policy, even if misguided, was developed to meet a real social problem in accordance with the prevailing social climate. The case continues in the Federal Court, and for now the judge will have to decide whether the claimants have a right to have the issue decided at all. And even if they decide otherwise, there may still be appeals, so it may be some time before the case is litigated in full. In the meantime, if you want to learn more about this issue, check out the "Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families", entitled "Bringing Them Home". As a matter of interest, it is this Report that sparked the now long-running debate about an "apology" to the stolen generation, which was specifically recommended in the Report. Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information. |