Federal Court judge Justice Maurice O’Loughlin said it – as it were – in black and white.
Yesterday’s decision in the Federal Court was not a resolution of the question of the stolen generations. Nor was it a resolution of the question of whether there should be a national apology to those of the stolen generations.
It never could be. Courts are not capable of doing that. All they can do is decide cases brought before them and rule in favour or one part or the other.
The Federal Court, of its nature, was not capable of doing what many had hoped: to spell out why their should be an apology.
Justice O’Loughlin accepted that the two members of the stolen generations Lorna Cubillo, 62, and Peter Gunner, 53, were taken from their mothers in the 1950s and that Ms Cubillo had been viciously assaulted by a missionary while in a white institution.
The question for the judge was whether this removal could lead to a successful claim of damages by these two (and only these two) members of the stolen generation. Was the removal a breach of the law at the time; was it false imprisonment; was the Commonwealth, as administrator of the Northern Territory at the time, liable to pay damages?
The judge ruled that, as in most cases that come to court, it is for the plaintiffs – the two Aborigines – to prove all the elements of the case.
The law at the time – Section 6 of the Aboriginals Ordinance — provided that the Director of Native Affairs, a Commonwealth public servant, could take care, custody and control of a part Aboriginal child if, in the director’s opinion, it was necessary or desirable in the interests of the child to take the child into care. The director (and those who worked under him) could use force if necessary.
So it was for Mrs Cubillo and Mr Gunner to show more than forcible removal. They had to show that the people who did the removing thought at the time that they were not acting in the child’s best interests, that they were acted improperly and with bad motives.
This was an impossible hurdle. Only one person involved in Mrs Cubillo’s removal is still alive, and he was a junior truck driver just doing what he was told with no idea whether those who gave the orders thought they were doing what they thought was best for the children. They key parties are dead.
“”What is more,” the judge said, ”none of the parties have been about to find any documents that dealt with the reasons for the removal of the children. There is a huge void. We know that Mrs Cubillo was taken away but we do not know why.”
In short, in the forum of a court there is no such thing as truth and justice; there is only law and evidence.
Aborigines who were taken as children, indeed have two impossible hurdles. First, they have to find the people who took them. Then they have to show that those people acted with improper motives according to the law and community standards of the time. It has to be a matter of direct evidence, too. It is no good getting people to give second-hand views of what they remember someone else saying about the motives they acted on.
In any event, we know from much indirect evidence in Sir Ronald Wilson’s stolen generations report that by and large those doing the taking acted with good intentions, even if they were misguided. They believed that half-caste children would be “”better off” in white homes.
So even if the first hurdle were overcome, and those who did the taking were found, all they would have to do is say, “”I acted in what I believed at the time was in the best interests of the children,” and the claim for damages would be defeated.
The law at the time would be enough to deny the claim for damages.
In court cases, it is not a question of morality, just a question of the statute.
This is why Justice O’Loughlin was at pains to point out that the evidence in the case and the reasons for judgment do not deny the existence of a stolen generation.
And this why people who want to deny a stolen generation and deny the injustice to those taken should take no comfort from this case. The historic injustice remains uncorrected. It will remain an open wound and a matter for bitterness and argument in this nation until it is.
The lawyers for the stolen Aborigines eloquently summed up the nature of that injustice even if they inevitably failed to translate that into a proven cause of action in law. They said, “”These cases concern great injustice done by the Commonwealth of Australia to two of its citizens. By the actions of the Commonwealth, Lorna Cubillo and Peter Gunner were removed as young children from their families and communities. They were taken hundreds of kilometres from the countries of their birth. They were prevented from returning. They were made to live among strangers, in a strange place, in institutions which bore no resemblance to a home. They lost, by the actions of the Commonwealth, the chance to grow among the warmth of their own people, speaking their people’s languages and learning about their country. They suffered lasting psychiatric injury. They were treated as orphans when they were not orphans. They lost the culture and traditions of their families. Decades later, the Commonwealth of Australia says in this case that it did them no wrong at all.”
The case was always going to be damning for the nation. Either damages would have to be squeezed out of a reluctant government or no damages would be paid by the whole Australian legal-political system. The stolen generation would remain aggrieved. Our Government hid behind legal nicety to deny wrong-doing. The case highlights not only the enormity of the taking of the children but also that the law and system in place allowed it then and that even today, the mores and standards of the time (or lack of them) are a legal excuse against liability. And our Government was willing to take advantage of that bankrupt law to avoid taking moral responsibility.
And on a practical level the action of the Government and Prime Minister John Howard is wrong. Howard argues that by giving an apology he will open the Government to legal action for compensation. But the exact opposite is true. The Commonwealth is the only Australian Government not to have given a formal apology over the stolen generation. And it got sued. Of all the other states and territories only NSW has had a case against it.
It seems that a formal apology lessens, rather than increases, the chance of being sued for monetary compensation. It is precisely because members of the stolen generation still feel injustice in the face of a failure by the national government to apologise that they seek another forum – the courts – to pursue that cry for justice.
The two stolen Aborigines in this case said as much. Alas this case took 107 sitting days and cost $8m and resolved nothing on that score. Despite the legal hurdles other cases are likely to follow.
It took the court a huge amount of time and money to deal with just two cases of the stolen generation. There are thousands of others. The courts are the wrong place to resolve this question. Digging up direct evidence of events long ago is too costly and difficult. And win or lose in the courts the sense of injustice will continue. The national government must act.