If the Stolen Generations story were true, its members should have had many victories in the courts by now. Prime Minister Rudd said the total number of children affected was 50,000. The Human Rights Commission said it could be up to 100,000. The plight of these people has been known since 1981. The accusations involved serious breaches of Australian law — false imprisonment, misfeasance of public office, breach of duty of care, and breach of fiduciary and statutory duties. There has long been a line-up of human rights lawyers and Aboriginal legal aid services eager to take their cases. Yet, in all this time, only one claimant has been successful before a court.
Because of the great controversy over this issue, all those who claim to have been stolen from their parents have by now been able to access their personal records in government archives. Human rights lawyers have been requesting personal files on behalf of those who believe themselves to be members of the Stole Generations since at least 1997. Several states and the Commonwealth archives have set up special programs to make such access easy. Many people have now seen their personal files and know the reasons the authorities gave for removing them. Yet very few have gone to the courts seeking redress. This has not been because incentives were lacking. In South Australia, Bruce Trevorrow won an award of $525,000 plus $250,000 interest on the payment. While it is true that legal action is a daunting process and can take years to deliver a result, with such potential compensation at stake the effort would obviously be worth it for genuine cases.
Given the huge size of the potential client base, and the fact that Aboriginal people and their lawyers have had a grievance about the issue for more than 25 years, the lack of legal success is telling. On its own, it is enough to seriously question whether there ever were any Stolen Generations.
A handful of lawyers and legal academics have tried to explain this outcome. Some have blamed racism and ethnocentric hierarchy in the laws and legal system. In one academic law journal, Alisoun Neville drew her inspiration from the French postmodernist theorist Jean-François Lyotard’s notion of ‘the differend’ to argue:
The hierarchical nature of colonial law and its terms, including its underlying classificatory framework, are linked to studies of ‘Whiteness’, as the testimonies of Indigenous and non-Indigenous witnesses were assessed and located in Cubillo according to a ‘hierarchy of credibility’ that privileges white and/or official voices.
In an analysis of Stolen Generations litigation, Chris Cuneen and Julia Grix of the Law School at the University of Sydney claimed:
The cases presented here show that the legal processes have served to reconstruct and obscure the experiences of Aboriginal people. In Williams, Cubillo and Kruger Aboriginal protection and welfare laws are seen as benign in their intent. The reality of entrenched racial discrimination which these laws embodied has been obscured.
If these claims were true then the same High Court of Australia that made the Mabo and Wik judgements, must have been shrouded in racism when it rejected the Stolen Generations test case of Kruger v. Commonwealth; Bray v. Commonwealth. That is hard to believe.
Others have accused judges of failing to recognize how disadvantaged the applicants were, and have criticized defence counsel for not being more supportive of reconciliation. Some have argued that ‘litigation is a poor forum for judging the big picture of history’. In other words, there are lawyers and legal academics who would say anything rather than admit their clients had unconvincing cases to start with.
A different approach has been to argue that the failure of the legal system to provide a victory meant politicians should step in and give them one anyway. The activist Catholic priest Frank Brennan offered the following interpretation of Justice O’Loughlin’s dismissal of the Cubillo and Gunner case:
a very painstaking decision written once again by an Adelaide-based judge, looking at the situation in the Northern Territory but saying with deep regret, ‘Look, the evidence and the law doesn't carry.’ But saying, ‘There is an extraordinary moral wrong here that needs to be rectified, and it’s up to politicians to do something.’
O’Loughlin did not, of course, use any of the words Brennan attributed to him. As Chapter Ten’s discussion of the Cubillo and Gunner case demonstrates, it would require a highly creative interpretation of his judgement to think he intended anything of the kind.
The chronology of litigation since 1993 by people claiming to be members of the Stolen Generations does not provide any grounds for believing the pattern discussed here is likely to be turned around by the Prime Minister’s apology:
1993 Supreme Court (New South Wales): Joy Williams files notice of motion seeking an extension of time to bring a claim for negligence, breach of fiduciary duty and wrongful imprisonment against the relevant minister and the state of New South Wales. Justice Studdert rejects her application.
1994 Court of Appeal (New South Wales): Joy Williams is granted an extension of time.
1995 High Court: Alex Kruger, George Bray and seven other members of the Stolen Generations begin legal proceedings challenging the constitutional validity of the Northern Territory ordinance that authorised their removal from their families.
1996 High Court: Lorna Cubillo and Peter Gunner begin proceedings in the High Court. They sue the Commonwealth for wrongful imprisonment, breach of statutory duty, negligence, and breach of fiduciary duty arising from their removal from their families and their detention in institutions. The matter is remitted to the Federal Court.
1997 High Court: Alex Kruger and others lose their claim when the court finds the ordinances under which Aborigines were removed were constitutionally valid, were not examples of legislation designed to be punitive towards that racial group, and were not instruments of genocide
1998 Supreme Court (New South Wales): Eileen Stevens lodges claim against the New South Wales government. The claim alleges she was removed in the 1930s and placed in government institutions and then in private domestic service. It says she suffered abuse and mistreatment resulting in profound emotional harm. Stevens then withdraws her case because it was ‘too traumatic’ to continue and for ‘privacy considerations’.
1998 Supreme Court (South Australia): Bruce Trevorrow, a client of the Aboriginal Legal Rights Movement, files a statement of claim against the state of South Australia for injuries suffered as a result of his removal from his family when aged thirteen months.
1999 Victims Compensation Tribunal (New South Wales): Judy Stubbs loses claim for compensation for removal from her family and subsequent abuse. ‘Any way we turn, there is this big brick wall.’
1999 Master Harrison (New South Wales): Christopher Johnson loses his application for an extension of the time period in which he can commence proceedings for damages against the Department of Community Services.
1999 Supreme Court (New South Wales): Justice Rolfe grants Christopher Johnson an extension of time.
1999 Supreme Court (New South Wales): Joy Williams loses her claim before Justice Abadee against the New South Wales government over the harm caused to her by her removal.
2000 Federal Court (Northern Territory): Lorna Cubillo and Peter Gunner’s case dismissed by Justice Maurice O’Loughlin.
2000 Court of Appeal (New South Wales): Joy Williams loses her appeal to the New South Wales Court of Appeal.
2000 Supreme Court (New South Wales): ‘Anne’ files a statement of claim against the state of New South Wales for injuries suffered as a result of her removal at two years of age. She dies one year later, before a hearing date is set.
2001 Federal Court (Northern Territory): Lorna Cubillo and Peter Gunner lose their appeal to the Full Court of the Federal Court.
2002 High Court: Lorna Cubillo and Peter Gunner lose their appeal from the Full Federal Court to the High Court.
2002 Victims Compensation Tribunal (New South Wales): Valerie Linow’s compensation claim is rejected because the assessor was not satisfied that her injuries were caused by the sexual assault she suffered after she was removed by the Aborigines Welfare Board and placed with a family as a domestic worker. An appeal from the assessor’s determination is later upheld and Linow is awarded $35,000 compensation for her injuries.
2002 Federal Court (Northern Territory): Ten test claims go before the Federal Court. Seven subsequently discontinued and one proceeds. The Court anticipates the Crown would seek summary dismissal of these claims.
2007 Supreme Court (South Australia): Bruce Trevorrow is awarded $525,000 in damages and exemplary damages after Justice Gray finds that he was removed illegally, that the state breached its duty of care to him, that he was falsely imprisoned, and that he was subject to malfeasance in public office.
In addition to these cases, Cunneen and Grix reported that some successful claims in Victoria, with awards of $4000 each, had been made under the state’s criminal injuries compensation scheme. In Western Australia, Rosalie Fraser applied unsuccessfully to the state’s crime compensation scheme for damages for assaults she said occurred while she was in foster care. One case against the New South Wales state government was settled out of court on undisclosed terms. They authors observed that, apart from Bruce Trevorrow, the only successful actions had been for compensation for particular injuries that occurred after removal and while children were in care, and the only hearings that gave them any results were compensation tribunals, not courts.
P. O'Connor, ‘ History on Trial: Cubillo and Gunner Cubillo and Gunner v. The Commonwealth of Australia', Alternative Law Journal 26, 1, 2001, p 27: see also M. Flynn and S. Station, 'Trial by Ordeal: The Stolen Generations in court', Alternative Law Journal 25, 2, 2000, p 75