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The Apology to the Stolen Generations

When should genocide not be punished?

In 1997, the government report: "Bringing Them Home - Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families" detailed policies of genocide by Australian governments towards Aborigines. The report stated that at least 100,000 Aboriginal children had been removed from their families between 1900 in 1970 in a calculated policy to destroy the black race. In the report's own words:

"The continuation into the 1970s and 1980s of the practice of preferring non-Indigenous foster and adoptive families for Indigenous children was also arguably genocidal. The genocidal impact of these practices was reasonably foreseeable … The policy of forcible removal of children from Indigenous Australians to other groups for the purpose of raising them separately from and ignorant of their culture and people could properly be labelled ‘genocidal’ in breach of binding international law from at least 11 December 1946 (confirmed by Justice Brennan in Polyukovich 1991 page 587). The practice continued for almost another quarter of a century. "

Most of the removals were carried out by state governments but after 1967, the federal government gained power to make laws for Aborigines and created a special minister for the task. Although the ministers whose actions were defined as genocide were not named in the report, they were Peter Howson (Liberal Party), Billy Wentworth (Liberal Party), Les Johnson (Labor Party), Ian Viner (Liberal Party), Fred Chaney (Liberal Party), Peter Baume (Liberal Party), Clyde Holding (Labor Party) and Gerry Hand (Labor Party).

Oddly, despite detailing genocide, the report's authors made no recommendation for the government ministers responsible for the policies to be put on trial or extradited to the International Criminal Court in The Hague to answer for their crimes. As the authors would have known, Australia is a signature to international treaties that require that genocide be punished.

The reluctance to recommend that any state or federal minister be charged with genocide would perhaps indicate that the report's authors didn't think genocide was a crime worth punishing or just didn't believe their own words when they defined the removal of children as genocide. Either way, it seemed politics was more important than truth when telling the stories of the path.

In the case of the stolen generations, there definately is some conjecture about what happened and whether a crime occured. The term Stolen Generations was coined in 1981 by Peter Reid; a white historian from the University of Sydney in reference to the placement of mixed race children in missions and orphanages. Reid was also the first historian to define the removal of children as genocide.

Reid's interpretation was disputed by anthropologist Ron Brunton. Although Brunton found that Aboriginal people had been subjected to a ridiculously high level of government interference in the operation of their daily lives, he found no evidence of a government policy to place children in Catholic missions on the basis of their skin colour. Instead, he found evidence that children had been abused, or seen as outcasts in Aboriginal communities, because they were not full bloods.

Simply going to books to check whether governments ever had a policy to remove children was a little problematic because the laws were not consistent and it was not always clear about what they allowed. Specifically, laws in the Northern Territory, Queensland, Western Australia, and South Australia made Aboriginal children wards of the state. NSW and Victoria did not make Aboriginal children wards of the state. Tasmania did not have any laws concerning Aborigines because Tasmanian Aborigines were considered to have died out in the 19th century. The Federal Government didn't have any laws either because they had been constitutionally forbidden from making laws targeted at Aborigines until 1967. (Admittedly, the Northern Territory had a federally appointed administrator who did make policy targeted at Aborigines.) It was only after 1967 that the Federal government gained powers to make laws targeted at Aborigies and in the process, created a designated minister for Aboriginal affairs.

In regards to the regions where Aboriginal children were wards of the state, governments were expected to act in the children's best interests. This didn't mean that governments had the power to remove children from loving parents to pursue a policy of genocide but it did mean they could remove children using subjective criteria of "disadvantage." For example, the child of an unmarried woman (of any race) was defined as disadvantaged, which led to forced adoptions. Finally, defining who was Aboriginal and who was not also changed from state to state. It was very common at the time for someone to have an Aboriginal parent, but not be defined as Aboriginal. In the Northern Territory, the specific legislation stipulated:

In regards to the Northern Territory, the Director of Welfare had the following provisions in relation to Aboriginal wards:

(i)          to promote their social, economic and political advancement for the purpose of assisting them and their descendants to take their place as members of the community of the Commonwealth;

(ii)         to arrange as far as is practicable for the education of wards, including their vocational training, by collaboration with, and assistance to, the education authority and educational institutions and in other appropriate ways;

(iii)        to promote their physical well being, to inculcate proper habits of hygiene and sanitation and to improve their standards of nutrition and housing;

(iv)         to detect, prevent and cure disease and for that purpose to establish and maintain a liaison with the Commonwealth Department of Health;

(v)          to arrange for their vocational training and to obtain suitable employment for them in industrial and other enterprises and for this purpose to establish and maintain a liaison with appropriate organizations;

(vi)         to provide such relief and assistance as is necessary or appropriate; and

(vii)        to exercise a general supervision and care over matters affecting their welfare;”

It should be noted, that the welfare ordinance also stipulated that the Director of Welfare was not to exercise the power to take a child into custody if by so doing:

“(a)a child under, or appearing to be under, the age of fourteen years would be removed from his parents: or

(b)a parent would be removed from his children.

unless the Administrator has, in writing, authorized the Director to do so.”

Although the government report put the figure at 100,000 children that were stolen, academic Robert Manne later received a grant of $62,000 to write about the Stolen Generations. He then revised the figure to 30,000 children.

In 2000, the courts heard test cases which were designed to prove that at least two children were removed unfairly. The legal action was initiated by Lorna Cubillo, 62, and Peter Gunner, 53 - both of whom had been removed as children. If successful, the two test cases would have been followed by many other people also seeking compensation - which some lawyers estimated could total around $5 billion dollars. Both Ms Cubillo and Mr Gunner wept as they testified about the way they were stolen from their mother's communities, and subsequently suffered sexual, physical and psychological abuse at the hands of missionaries.

The official records showed Lorna Cubillo was born in 1939 on the Banka Banka Cattle Station. She was taken from her grandmother's care in 1940 and placed with the Aboriginal community in the Ration Depot at Seven Mile Creek. Peter Gunner was born in 1948 on Utopia Cattle Station. He was committed by the Director of Welfare, Harry Giese, to St Mary's Hostel in Alice Springs in 1956. In a deflating revelation for Mr Gunner, the government was able to show that the committal was only approved after receiving the consent of his mother, who wanted him to have an education. Justice Maurice O'Loughlin dismissed the federal government's liability on the grounds that there had been a failure to prove that the Commonwealth authorities had ignored the children's best interests by removing them from their families.

Collard versus the State of Western Australia (2013), was another test case that found the removal of welfare was on the grounds of subjective criteria of welfare rather than genocide. Specifically, Justice Justine Pritchard stated,

“The references to ‘assimilation’ in the evidence I have set out above are not sufficient to support a finding on the balance of probabilities that at the time of the wardships there was, within the Department of Native Welfare or the Child Welfare Department, the pursuit of a policy of assimilation of aboriginal people into white Australian society through the wardship of aboriginal children.

“More particularly, there was no evidence that the decisions to apply for each of the Children to be made wards were made in the pursuit of a policy of assimilation of aboriginal people into white Australian society. Rather, the evidence supports the finding that the decisions to apply for the Children to be made wards, and subsequent decisions at various times not to return them to the care of Don and Sylvia, were all made having regard to the welfare – albeit primarily the physical welfare – of the Children.”

In 2008, Prime Minister Kevin Rudd apologised to the Stolen Generations, but refused to pay compensation. In addition to refusing to pay compensation, Rudd made no legislative change nor named and shamed any former prime minister or state premier for their policies. Furthermore, Rudd failed to even mention Commonwealth ministers for Aboriginal affairs or the comparable ministers from any state or territory government that had been responsible for the policies.

The apology helped Rudd achieve the highest level of popularity of any Australian Prime Minister in history.

In summation, there was one academic saying mixed-race children were stolen from full blood communities, one academic saying they were rejected by full-blood communities, there was a government report stating that there were 100,000 victims of a policy to remove mixed-race children, a government-funded academic saying that there were 30,000, a court saying that the test cases did not show the existence of a government policy to remove children on the basis of race, and a prime minister saying there had been a policy to remove on the basis of race, that the Federal government was responsible, but that no compensation would be paid, no legislative changes would be made to stop it happening again and there would be no prosecution of government ministers for their crime of genocide. The wide discrepancies between academics, the court, the government report, journalists, and also the prime minister, suggested that there had been some extremely sloppy or deliberately biased research occurring.

Perhaps the story of Lowitja O’Donoghue, the former head of the Aboriginal and Torres Straits Islander Commission (ATSIC), provided the best illustration of the problems associated with not checking testimony as well as some of the problems with fabricating history for political purposes. O’Donoghue initially claimed to have been a member of the Stolen Generations, and blamed the government for causing her to grow up in a mission without access to her culture and her mother's love. Like many others, O’Donoghue’s story was initially taken as sincere and no attempt was made to verify it. Consequently, O’Donoghue was appointed co-patron of the National Sorry Day committee and was seen as one of the 100,000 people who had been stolen as a child.

The Herald Sun newspaper checked O’Donoghue's background and discovered that her white father had placed her and her four sisters in a Catholic boarding school, and paid for their upkeep. Her mother may or may not have agreed to giving up her children. The mission where she was placed did not prevent parents from visiting, and the parents of other children did in fact come to see their kids.

After being shown evidence of how she was placed in the mission, O’Donoghue conceded that she had not been stolen in the technical sense of the word, but blamed the mission for not keeping her in contact with her mother and expressed anger at her deceased father. In that regard, she stated that she had been removed as a child and that the word stolen was misleading.

Transcript with O'Donoghue before she discovered the circumstances of how she was placed in the mission. Interviewer: Robin Hughes
Recorded: March 22, 1994

According to the typical narrative of a child being put into the missions because of their skin colour, O’Donoghue was not a member of the Stolen Generations; however, it could be argued that she was a victim of race-based government policy. Specifically, O'Donohue's parents lived together until the South Australian government amended the Aborigines Act to prosecute white men who were consorting with Aboriginal women. Tom O'Donohue (Lowitja's father) was convicted of carnal knowledge and fined £5 with 10 shillings costs. He was then forced to sell his lease, abandon his defacto wife of 20 years and move to Adelaide. In short, a loving family was broken apart because South Australian law makers were confronted by inter-racial relationships.

Queensland and Northern Territory also had laws that could prosecute non-Aborigines having sexual relationships with Aborigines. Even if the men weren't prosecuted, the stigma of the laws made it difficult for them to have socially respected relationships with Aboriginal women.

By making an apology to the Stolen Generations, Prime Minister Kevin Rudd prevented two very important issues of history being considered. The first issue was whether governments should have the power to make laws targeted at a specific race.  The Federal Government was not responsible for what happened to O'Donoghue (or any other government policy targeted at Aborigines in any state) because until 1967, the Federal Government had been constitutionally forbidden from making laws for Aboriginal people.  If Rudd had clarified that the Federal government was not responsible because it lacked the power to make laws targeted at Aborigines until 1967, he could have triggered a debate about whether the right question was asked in 1967. Basically, the 1967 referendum asked whether the race-power provisions of the constitution should be extended to include Aborigines. The provisions had initially been created in 1901 to give the Federal government the power to discriminate against non-white migrants, but by the 1960s, governments decided that they should be extended so that the Federal government could discriminate in favour of Aborigines. (The state laws that made Aboriginal children wards of the state and prosecuted non-Aborigines who had sex with Aborigines were also designed to discriminate in favour of Aborigines.) Unfortunately, by apologising for something the Federal government was not responsible for, this important question was not considered.

The second issue was the extent to which governments should be allowed to interfere in the lives of people. By saying sorry, Rudd was saying sorry for past governments being racist, which allowed Rudd to communicate an image that he was not racist. It must be stressed; however, that Rudd was not saying sorry for governments passing judgements on what constitutes a "moral" relationship between two consenting adults, or deciding that governments should be able to interfer in people's lives in the name of "helping" them. Today, governments continue to pass judgement on the relationships of consenting adults and continue to pass laws that inpose undue restriction on what people can and can not do. Furthermore, Aborigines continue to be subjected to disproportionately high numbers of social engineering programs designed to help them. These programs are not based on need, but on skin colour. The government's own reports indicate that the programs often don't help and have actually resulted in Aborigines going backwards in many areas.

Because Rudd was apologising for an attitude that may or may not have existed, rather than power to make race-based laws that definately existed, Rudd didn't have to answer questions about whether the Federal government should lose its power to make laws targeted at Aborigines or non-Aborigines that associated with Aborigines.

Considering that various state laws prosecuted white men for having sexual relationships with Aboriginal women, and even prosecuted them for just being in the women's presence, it is really no surprise that 100,000 children of mixed heritage ended up not knowing who their mothers or fathers were. For creating those laws, various state governments contributed to broken families. Despite contributing to family breakdown, there has yet to be a court case that has found that any state government used race over welfare when deciding whether to place mixed race children in the missions. It is unfortunate that, in the dispute over whether a law targeted mixed race children existed, the real lessons of history were not addressed.

 

 

 

Rebellion

John Caesare
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A story heard and considered

Eureka Massacre
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Simpson and his Donkey
A larrikin and a hero

Nancy Wake
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Prime Ministers
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"Let no-one say the past is dead, the past is all about us and within"(Oodgeroo)