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SENATE LEGAL AND CONSTITUTIONAL REFERENCES COMMITTEE
“INQUIRY INTO THE STOLEN GENERATION”
SUPPLEMENTARY SUBMISSION BY
THE HON PETER HOWSON
September 2000
THE DECISION IN CUBILLO-GUNNER OF AUGUST 2000, THE QUADRANT FORUM AND THE EXAMINATION OF SIR RONALD WILSON, 4 SEPTEMBER 2000
Since my submission of May 2000, Justice O’Loughlin
has dismissed the claims on the Commonwealth by two part-Aboriginals (Messrs
Cubillo and Gunner) for compensation for maltreatment in the Northern
Territory. The Judge’s decision, with the evidence, essentially confirmed my
submission to the Committee that there was no policy of forcible removal, as I
explained during my appearance on 18 August.
It is not my purpose in this submission to again
canvass the outcome of Justice O’Loughlin’s decision in detail. However, I am
concerned to draw the Committee’s attention to the important and substantive
papers presented at the Quadrant forum in Sydney on 8-9 September 20, 2000. The
paper presented by the Commonwealth’s Counsel, Mr Douglas Meagher, in the
Cubillo-Gunner case is of particular importance in interpreting Sir Ronald
Wilson’s report, Bringing Them Home, which has done enormous unwarranted
damage to Australia’s reputation ( Copies of the main Quadrant papers should be
available from Quadrant, 437 Darling St, Balmain, 2014, Phone 02 9818
1155)
I am also concerned that, in its examination of Sir
Ronald Wilson on 4 September, the Committee appeared not to pursue with him
several issues of considerable importance in deciding on the validity of the
stolen generation thesis. Sir Ronald has, of course, been a key person in promulgating the thesis
through the report Bringing Them Home and in other ways, and it is
important that his views be seen in proper perspective.
Accordingly, I set out below my comments on some
points in the examination of Sir Ronald which the Committee may care to
consider.
Sir Ronald asserted that the Aboriginal witnesses
“are fragile and they are not capable of standing up to rigorous
cross-examination”. An alternative mechanism should be used where the “strict
application of the rules of court” would not apply (L&C 746).
Surprisingly, the Senate Committee did not examine
Sir Ronald’s reaction to the point that the claims by Messrs Cubillo and Gunner
against the Commonwealth were initiated by them, not by the Commonwealth. Nor
that they received very considerable assistance from legal counsel subsidized
by the Commonwealth itself. It must also be assumed that Messrs Cubillo and
Gunner were chosen because they were perceived as good candidates for achieving
success.
Further, from the viewpoint of the Commonwealth and
the wider Australian community generally, the issue raised was clearly of such
national policy importance as to require that the claims by Messrs Cubillo and
Gunner be properly tested and subject to cross-examination. This proved to be
of considerable significance as it revealed that many claims were without
validity.
However, any careful reading of the
cross-examination process would reveal that there is no way it could be
characterized as “rigorous”. Commonwealth counsel went out of their way to
adopt a gentle approach in questioning and to avoid pressing claimants for answers.
Sir Ronald argued that the fact that policies of
removal were in accord with the laws of the day may still mean that they
involved “gross violation of human rights by international standards and by the
standards of our common law”(L&C 746). Sir Ronald also suggested that
Justice O’Loughlin’s decision that Cubillo-Gunner were not forcibly removed
“does not sit very well with his other comments about children being rushed
into the bush to avoid them being taken” (L&C 757)
It seems unfortunate that the Senate Committee did
not explore with Sir Ronald what was a key question. That question was not
whether the laws might involve breaches of human rights, which is a
matter on which lawyers and others may disagree. Rather, the issue was whether
any forcible removals actually occurred. If not, then it is difficult to see
that any substantive breach of rights occurred.
Unfortunately, Sir Ronald did not address that issue
and he was not asked to. This seems to have been an important oversight by the
Senate Committee given that the evidence submitted by the Commonwealth made it
clear that there were no forcible removals. This evidence was not challenged by
either the claimants’ counsel or Justice O’Loughlin. In short, in practice
there was no substantive breach of rights.
As to the moving of children into the bush by
mothers, that does not establish that forcible removal occurred. Indeed, many
part-Aboriginal children were not removed. Even so, some mothers who were
clearly anxious to ensure that their child remained with them were concerned
that they might get involved in the process of official checking of the health
and safety of their children.
When Sir Ronald was asked whether “the approach of
the commission was to accept stories at face value”, and whether the witnesses
“were not subject to any kind of critical testing on an individual basis”, he
agreed that that was so (L&C 756). He asserted that evidence provided by
State Governments was the primary source of the “policies and laws of forced
removal” (L&C 757).
The implication is that Sir Ronald accepts that the
evidence given by Aboriginal witnesses to the Commission could not be relied
upon. If true, this is an astonishing admission given the apparent reliance
placed on such evidence hitherto.
Further, regardless of what States told the
Commission (and that would need careful testing), it is surely a very serious
matter for any Commission to accept without question the evidence of people who
had a vested interest in establishing that there was removal without parental
permission. Such people were potentially eligible for compensation and many
were told of that possibility. Further, the broader national policy
implications of such extravagant acceptance were, and have, also been vast.
Again, it is surprising that the Senate Committee
did not pursue this matter with Sir Ronald.
Sir Ronald was referred to the decision on Ms
Williams’ claims in NSW by Justice Abadee, who found against Ms Williams on all
causes of action, including that she was not a stolen child despite being
referred to as a “typical” one in the Commission’s report. He claimed that he
could not recall that the report used the word “typical”, that he did not
recall the circumstances of the Williams case and that he did not think that “a
great deal can be drawn from Justice Abadee’s comments” (L&C 757).
The Senate Committee did not publicly check the
reference to Williams in Sir Ronald’s report, which certainly highlights her
position as an allegedly stolen child with a claim for civil damages (see
p304-5) It is difficult to believe that Sir Ronald could have “forgotten” this
important reference.
Further, since Sir Ronald gave his evidence and
attempted to discredit Justice Abadee, the full NSW Court has dismissed the
Williams appeal against Justice Abadee’s decision by 3-0 and, according to The
Australian of 13 September, heavily criticized the claimants’ lawyers for
their attempt to make the State liable for the behaviour of institutions that
cared for part-Aboriginal children. Further, although the original case was
regarded as a major test of the stolen generation thesis, the Court noted that
the claim that Ms Williams was a member of the stolen generation had been
abandoned because her mother had consented to her removal. Finally, no error
was found in Justice Abadee’s decision and the claim for exemplary or
aggravated damages was described as “so weak as to render it wholly untenable”.
The outcome of this case must be regarded as a
further significant discrediting of Sir Ronald and his report.
Despite the Committee’s failure to pursue several
important issues with Sir Ronald, the responses given by him must surely
complete the undermining of both his credibility and that of the report Bringing
Them Home. It is to be hoped that the Committee’s report will make that
clear.