The uncomfortable truth for us all is that the parliaments of the nation, individually and collectively, enacted statutes and delegated authority under those statutes that made the forced removal of children on racial grounds fully lawful.
— Prime Minister Kevin Rudd, Apology to Australia’s Indigenous peoples, House of Representatives, 13 February 2008
[I]ntegration of part Aboriginal children was not based on race; it was based on a sense of responsibility — perhaps misguided and paternalistic — for those children who had been deserted by their white fathers and who were living in tribal conditions with their Aboriginal mothers. Care for those children was perceived to be best offered by affording them the opportunity of acquiring a western education so that they might then more easily be integrated into western society.
— Justice Maurice O’Loughlin, judgement in Cubillo and Gunner v. Commonwealth, Federal Court of Australia, August 2000, para 162
If the Stolen Generations story were true, its members should have had many victories in the courts, now that the tide of opinion is firmly on their side. The charges involved serious breaches of the law — false imprisonment, misfeasance of public office, breach of duty of care, and breach of fiduciary and statutory duties — and human rights lawyers and Aboriginal legal aid services have been lining up for years to take their cases. Yet only one claimant has ever been successful before a court. This was Bruce Trevorrow who in 2007 was awarded $525,000 by the South Australian Supreme Court. 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 really were any Stolen Generations.
In his apology in the House of Representatives in February 2008, Kevin Rudd avoided any use of the term genocide but he did accuse the parliaments of the nation of enacting racist statutes. That accusation, however, was untrue, as either Rudd or his speechwriters would have known were they familiar with either of the two major test cases on the Stolen Generations. The best-known of those cases, Cubillo and Gunner v. Commonwealth, was decided by Justice Maurice O’Loughlin in the Federal Court in August 2000. Counsel for the applicants, Ms M. Richards, had submitted that the Northern Territory in the 1940s and 1950s had a policy called ‘the removal policy’ and ‘the half-caste policy’. She said that, because it targeted only half-caste children, it was based on race rather than welfare. It was pursued ‘without regard for the welfare of individual children or their individual circumstances’. In his judgement, Justice O’Loughlin said:
I cannot accept that submission; it failed to recognize those decisions of the High Court to which reference has already been made that classified the legislation as beneficial and protectionist; it failed to recognize that there was then, as there is now, an acceptance of the need for special legislation and special consideration for Aboriginal people. Finally, there was absolutely no causative link connecting ‘race’ to a failure to have regard for the welfare of children. The existence of one does not preclude the existence of the other.
What the judge meant by ‘those decisions of the High Court to which reference has already been made’, were several verdicts, the most recent of which had been Kruger v. Commonwealth; Bray v. Commonwealth. That was a judgement made by the full bench of the High Court in July 1997 but which today is largely unknown outside legal circles. Yet it was the major case that considered whether the removal of Aboriginal children amounted to genocide. Although handed down only two months after the Bringing Them Home report accused the nation of that very crime, most news media and virtually all members of the political commentariat ignored it. Since then, they have pretended it never existed. I discuss its findings in more detail in Chapter Ten, but let me observe here that five of the six judges commented specifically on the question of genocide. Counsel for the plaintiffs argued that the Northern Territory’s Aboriginal Ordinance of 1918, which permitted the Chief Protector and Director of Native Affairs to remove and detain all Aboriginal people in the Territory, including children, thereby breached the United Nations Convention on Genocide. All five judges rejected the claim. Justice Daryl Dawson said:
there is nothing in the 1918 Ordinance, even if the acts authorized by it otherwise fell within the definition of genocide, which authorizes acts committed with intent to destroy in whole or in part any Aboriginal group. On the contrary, as has already been observed, the powers conferred by the 1918 Ordinance were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally. The acts authorized do not, therefore, fall within the definition of genocide contained in the Genocide Convention.
Justice Michael McHugh concurred:
The 1918 Ordinance did not authorize genocide. Article II of the Genocide Convention relevantly defines genocide to mean certain acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. The acts include ‘imposing measures intended to prevent births within the group’ and ‘forcibly transferring children of the group to another group’. There is, however, nothing in the 1918 Ordinance that could possibly justify a construction of its provisions that would authorize the doing of acts ‘with intent to destroy, in whole or in part’ the aboriginal race.
In short, when they tested specific policies before the Federal Court, and when they argued the general intentions of the parliaments and legislators before the High Court, the historians and political activists who invented the notion of the Stolen Generations proved incapable of substantiating their case. As far as Australia’s highest courts are concerned, the central hypothesis of the Stolen Generations is legally extinct.
The only legal cases with any potential credibility would be those made by individuals such as Bruce Trevorrow, who was unlawfully removed from his family and suffered badly as a result. But as Chapter Twelve demonstrates, the Trevorrow case did not confirm the Stolen Generations thesis. Instead, it provided yet more evidence to disprove it.