In 1990, Barbara Cummings published her book about policies for half-caste children in the Northern Territory. Entitled Take This Child: From Kahlin Compound to Retta Dixon Home, the book was a history of this issue from the early twentieth century onwards. Cummings had been born at the Retta Dixon Home and grew up there while her mother and siblings were residents. As an adult she moved to Adelaide and took up a career as a social worker. Take This Child was inspired by the work of Peter Read and framed within his thesis about the Stolen Generations. The author selected her facts and interpreted her findings largely within Read’s assumptions. The Human Rights Commission’s national inquiry into Aboriginal child removal subsequently chose her to be a member of its Indigenous Advisory Council.
In 1994, Cummings and others convened a conference in Darwin and invited all those who had been children in the Territory’s half-caste homes. Called ‘Going Home’, it attracted more than 600 people who by this time had been persuaded that they were members of the Stolen Generations too. Some speakers said their wrongful removal from their parents amounted to ‘cultural genocide’. As I noted in Chapter One, Melbourne barrister Ron Merkel, soon to be appointed by the Labor government a Federal Court judge, told the audience of the reparations Germany had paid the Jews after the Second World War. All the Territory’s ‘stolen’ children deserved compensation too. He recommended litigation against the Commonwealth government. The Darwin conference circulated a document of instructions to a solicitor, inviting signatures. Subsequently, committees were formed to pursue the litigation and a ‘Stolen Generations’ legal unit created. At Alice Springs, the Central Land Council opened an exercise book at its offices, inviting all who wanted compensation to sign. All up, lawyers in Darwin filed 550 claims by people claiming to be members of the Stolen Generations against the Commonwealth government for common law damages.
Out of this came one of the two major test cases of the Stolen Generations issue. Lorna Cubillo and Peter Gunner, both part-Aboriginal people, sued the Commonwealth government for wrongful imprisonment and negligence in its duty of care. In 1947 Cubillo and fifteen other children were taken from the Phillip Creek Native Settlement by Amelia Shankelton, superintendent of the Retta Dixon Home, and sent to Darwin in a truck driven by Les Penhall, a cadet patrol officer with the Territory’s Native Affairs Branch. In 1956 Gunner was taken from Utopia Station by Harry Kitching, a patrol officer with the Native Affairs Branch. Kitching drove Gunner to Alice Springs and placed him in St Mary’s Hostel.
The legal action by Cubillo and Gunner made a number of claims but the central issue was the intention of the Director of the Native Affairs Branch. The applicants acknowledged that, during the 1940s and 1950s, the Director had the legal authority to remove half-caste children as he saw fit, irrespective of their parents’ wishes. The major question was whether in doing so he had used his power properly. Had he acted in the best interests of the children or was he pursuing what the applicants called ‘a general policy of removal and detention’ based on the children’s race, whether that was in their interests or not?
In 1951, Charles Duguid, the humanitarian and surgeon who had been instrumental in establishing the Ernabella Mission in the Musgrave Ranges of South Australia, was reported in the press criticizing the federal government for separating part-Aboriginal children from their mothers. The next day the Northern Territory’s Director of Native Affairs, Frank Moy, wrote a letter to the Administrator of the Territory, F. J. S. Wise. Moy’s letter, which became the basis of a report to Canberra and a press release to the news media by the Administrator, described both the existing policy and the role of patrol officers. He wrote:
Patrol Officers, under my direction, are requested from time to time to endeavour to remove certain part-aboriginal children from their native environment on cattle stations and other places, and these officers prepare the mothers of these children for the eventual separation. It is impressed upon them the advantages to be gained by the children and the disadvantages of allowing them to remain in the camp. The matter is discussed with the tribal husbands. If, at the first visit, the parents are loth [sic] to part with the child the matter is left until the next visit when another attempt is made and the process of `educating’ the parents is continued. Eventually (and a period of two years may elapse between the first attempt and final success) the child is willingly handed to the custody of the Patrol Officer.
Under these circumstances there is no distress on the part of either party. In fact it strengthens the confidence of the native peoples in the work of the patrol officer. There have been instances of mothers giving their part-aboriginal children into the care of Native Affairs Branch officials without any prompting and, only this year, one aboriginal mother brought her two part-aboriginal children to Darwin and asked that they be admitted to one of the Institutions.
All mothers are given the opportunity of accompanying their children to Darwin or Alice Springs and this offer is sometimes accepted. In this way they get some insight into the conditions and surroundings of the future life of their offspring, and they invariably return to their country satisfied.
In reproducing this statement in his judgement in Cubillo and Gunner v. the Commonwealth, Justice Maurice O’Loughlin wondered whether Moy’s statement might have been simply designed to put a favourable gloss on what the counsel for the applicants called ‘a general policy of removal and detention’ of part-Aboriginal children. ‘Were these the words of a senior public servant who had the best interests of the part Aboriginal children at heart,’ O’Loughlin conjectured, ‘or were they nothing more than pious hypocrisy?’ Moy was dead and could not be cross-examined to test this, but O’Loughlin explored the issue at considerable length.
He found that, before 1957, Section 6 of the Territory’s Aboriginals Ordinance gave ultimate authority about child removals to the Director of Native Affairs. In practice, the policy did call for a painstaking attempt to explain to the child’s mother the advantages to be gained from the child’s removal but, in law, the Director had the authority to act whether the mother agreed or not. In 1957, however, the old Aboriginals Ordinance was replaced by a new Welfare Ordinance, which abolished the Director’s legal right to remove children on his own judgement. Without a mothers’ consent, he now had to rely upon a court to either declare a child a ward or commit the child to the care of the State Children’s Council. O’Loughlin also observed that there was no doubt that before 1957 that was the policy accepted by the Commonwealth government. He reproduced a letter written in 1951 by the then Minister for Territories, Paul Hasluck:
For many years past, under successive governments, the policy has been that, where half-caste children are found living in the camps of full-blood natives, they should, if possible, be removed to better care so that they may have a better opportunity for education. The theory behind this policy is that, if the half-caste child remains with the bush tribe, he will grow up to have neither the full satisfaction in life which the tribal native has nor the opportunity to advance to any other status.
However, O’Loughlin decided that the Territory’s degree of devotion to this policy could be tested by the number of children it actually removed. He examined the records for 1949 and 1950. They showed that over that period, patrol officers made just 42 removals:
Removed from full-blood aboriginal camp 23
At request of parent 12
Mother unable to maintain due to health 1
Irresponsible mother (disinterested and offering no objections) 1
No definite information available (probably removed from full-blood aboriginal camp). 5
O’Loughlin concluded that removals on such a small scale failed to confirm the applicants’ claim. ‘[I]f I proceed upon the premise that these figures can be accepted as truthful (and there has been no suggestion that they are false) they do not support suggestions of widespread, indiscriminate removals of part Aboriginal children.’
The judge also rejected two other interpretations made about the policies at the time. He found there was not a general policy to provide domestic and manual labour for the European community of the Territory. He also rejected the notion there was a policy to ‘breed out the half-castes’ or to protect the ‘primacy of the Anglo-Saxon race’. No evidence produced at the trial supported a finding that any such purposes existed when either Cubillo or Gunner were removed. Overall Justice O’Loughlin concluded:
Although there is no evidence identifying the number of part Aboriginal children living in the Territory on any given date one can, nevertheless, feel satisfied that the number of such children far exceeded the ability of the Commonwealth to implement a policy of indiscriminate removal irrespective of the personal circumstances of the child. The number of institutions and their capacity to receive residents was small; the number of patrol officers who had the primary task of identifying whether children should be taken was small. Of the children at the Retta Dixon Home and at St Mary’s, the evidence reveals that some were there at the request of their parents and that, in a small number of cases, parents paid fees for their upkeep. The applicants have not, in my opinion, produced the evidence that would substantiate a finding that there was a ‘general policy of removal and detention’ as alleged in their pleadings.