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National Observer Home > No. 40 - Autumn 1999 > Legal Notes

Aboriginal Children Taken Under Government Care: Further Facts Justifying Welfare Officers

I.C.F. Spry


A regrettably emotional issue of recent years has been raised under the somewhat misleading rubric of the "stolen generation". Complaints have been made that in the 1940s and the 1950s Aboriginal children were removed from their parents and brought under government care to hostels where they were raised separately from their families.

It has never been denied that many young Aboriginal children, especially mixed-blood children, were removed from parental control. It is conversely clear that the expression "stolen generation" is misleading and indeed mischievous. Clearly there was no attempt to remove an entire generation. Rather ad hoc decisions were made, and in most cases Aboriginal children were left with their parents, but in exceptional cases they were removed to be taken into care elsewhere.

Hence the area of debate has come to be whether the removals were proper. First, were they lawful? Secondly, were they appropriate in all the circumstances?

It has generally been assumed that the removal of children into government care was lawful, although it may be that in some cases technical or procedural requirements were not complied with. Failures to comply with technical or procedural requirements should however not be overstated or viewed out of context. In all areas where administration powers are exercised errors or informalities may be expected to arise. Mistakes are made, and of course care should be taken that they are minimised, but this does not vitiate the appropriateness of a general process.

The question whether particular removals were appropriate is hence the main question. Unfortunately it is a question which, if it is determined, must be determined forty to sixty to years in retrospect. Witnesses have meanwhile forgotten relevant facts or have died or become untraceable. Those who have experience of legal processes are aware how difficult it is to determine facts retrospectively even ten or twenty years after the event. After forty to sixty years there is so great a risk of inaccurate determinations that normally such issues are not broached by the courts.

The very cases where it has been sought to make an exception to these principles have raised the greatest risk of injustice. Where strong emotions give rise to attempts to prove war crimes after sixty years, or to prove that an Aboriginal has been mistreated, those very emotions are likely to lead witnesses astray. This is all the more so if for example a child is involved. If a boy aged seven at the time of his removal is asked to give evidence forty-eight years later, for example, what accuracy can be expected, especially if he has been taught subsequently to believe that his removal was unjust?

The Cubillo and Gunner Cases

These questions were raised in proceedings brought before the Federal Court, in Darwin, in March 1999. The two plaintiffs were Peter Gunner and Lorna Cubillo, now aged 51 and 60 years respectively.

Peter Gunner was reported to have claimed that he had been part of "one big happy family" before being taken to St. Mary's Hostel, in Alice Springs, in 1957. He was then approximately seven years old. He was reported to have said that "the welfare blokes" "grabbed me and held me by the arms and dragged me to the truck": "The women were crying. They couldn't do anything about it."

Further material before the Court casts a different light. The Court was informed that previously Mr. Gunner had made a written statement in which he had said, "My mother wanted to kill me and she wanted to let the ants eat me alive, and apparently my mother's sister was the one that went and got me back from the ants' nest and kept me and grew me up." It was also indicated that Mrs. Dora McLeod, the wife of a station owner, recalled Mr. Gunner's mother, Topsy Kandrilba, saying the baby had on one occasion been put in a rabbit hole to be left to die, and that on another occasion when the baby was unconscious his uncle Jimmy was going to bury him and dug a grave for that purpose. There was also evidence that Mr. Gunner's mother, Topsy Kandrilba, had spoken with welfare authorities for at least a year before she finally agreed to his being educated in a mission.

In the case of Mrs. Cubillo, the Court was informed that she was an orphan whose grand-mother had died and whose aunt had left her.

Rejection of Children by Aboriginal Groups

Before the Federal Court Mr. Douglas Meagher Q.C. commented on the unfortunate rejection by many Aboriginal communities of mixed-blood children. The mixed children of white fathers and black mothers were commonly subjected to severe discrimination and systematic mistreatment by Aboriginal communities.

Mr. Meagher noted that mixed-blood children were often treated as "outcasts" by their own communities: "Half-caste children born to young Aboriginal women brought difficulties both to mother and child. Mother and child in many instances were treated as outcasts . . . The lot of such children has from time to time been described as pitiful and indeed it was."

Mr. Meagher indicated that in all the circumstances it was common for the mothers of such children to give them up voluntarily to be brought up in State institutions: "It's not surprising that the mothers, undoubtedly with great maternal reluctance, nevertheless thought that in the interests of the child, [an institution] was where the child should go."

It is also clear that in some cases children were removed against their mother's wishes. In these circumstances there is always room for debate whether a correct decision was made. It may be assumed that welfare officers made bona fide decisions as to what they regarded as most likely to be for the benefit of a neglected child.

Here it may be recalled that in addition to physical and emotional mistreatment, many of the unfortunate children were made sexually available to men by their Aboriginal communities. Sometimes the occasion was simply for obtaining alcoholic drink in exchange for the provision of girls' services. To note this fact amongst others is necessary in order to have proper appreciation of all the circumstances in which mixed-blood children were taken into welfare institutions.

The Course of Litigation

Amongst other matters the Commonwealth contended before the Federal Court that through the passage of time it had become inappropriate for the case to proceed now. Between the times when Peter Gunner and Lorna Cubillo had been removed to institutions and the present time, at least forty-one out of fifty-eight people involved had died. Many of the relevant documents had been lost, either through destruction during Cyclone Tracy or through the normal culling of old documents or from other causes.

In the circumstances these considerations appear to justify fully a refusal to re-examine old issues now. In ordinary cases between non-Aboriginals the passage of time would certainly prevent the assertion of rights to redress, if any. It is not appropriate that different rules be created for Aboriginals, presumably on the basis of perceived political correctness.

This is so especially when decisions made long ago, by officers who in many cases are now dead, were made on an examination of a large range of circumstances that cannot now be identified or weighed appropriately. What is clear is that in many cases the welfare officers acted correctly. It may be that in some cases incorrect decisions were made, but there are undue dangers in reaching that conclusion at a time when there is an emotional atmosphere and an inability to determine accurately the true facts.

In any event, even if in a particular case it appeared with the benefit of hindsight that a particular decision was inappropriate, it would not follow that an award of damages should be made. Many administrative decisions are made in many areas. They affect all or almost all members of the community. There is neither the money nor the resources for litigating retrospectively at public expense the correctness of such decisions.

The Federal Court proceedings have however been useful in one respect. For some time a number of Aboriginal representatives have made immoderate and, it must be said, inaccurate statements about the removal of half-caste children to welfare institutions. Generally these claims were not answered, perhaps largely because at the present time some courage is needed to speak against what is perceived to be politically correct. But material before the Federal Court is showing that in fact there existed compelling considerations which supported the actions taken by welfare officers. This will inevitably bring better balance to public discussions of these issues.

I.C.F. Spry

National Observer No. 40 - Autumn 1999