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Track the History - Us Taken-Away Kids: commemorating the 10th anniversary of the 'Bringing them home' report

Us Taken-Away Kids Us Taken-Away Kids (2007)

Commemorating the 10th anniversary of the Bringing them home report

Track the History

This timeline focuses on
one particular aspect of the history of Aboriginal and Torres Strait Islander
peoples - the forcible removal of Indigenous children from their families.

This material identifies some significant laws and practices that made
removal lawful and includes writing and artwork from members of the Stolen
Generations and their families which illustrate their experiences of these
policies. This section uses as its primary resource Bringing them home, the
report of the National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from Their Families
. It also draws on documents and
information from a wide range of others sources. The chronology particularly
focuses on significant events and legal developments in the 10 years after the
publication of the Bringing them home report, between 1997 and 2007.

A
more detailed timeline, government responses to the 10th Anniversary and other
information can be found on our website www.humanrights.gov.au/bth

Coming Home by Beverley Grant, 2007

Painting: 'Coming Home'
Beverley Grant, 2007.

Colonisation by Lawry Love, 2001.

Painting: 'Colonisation' by Lawry Love, 2001.
.

1770

James Cook claims possession of the whole east coast of Australia. Cook
raises the British flag at Possession Island, off Cape York Peninsula in
Queensland.

1788

The First Fleet lands in Port Jackson - British settlement in Australia
begins. Clashes between Aboriginal people and the settlers are reported over the
next 10 years in the Parramatta and Hawkesbury areas outside the main settlement
areas.

1830

Tasmanian Aborigines are resettled on Flinders Island without success.
Later the community is moved to Cape Barren Island.

1837

The British Select Committee examines the treatment of indigenous peoples
in all British colonies and recommends that ‘Protectors of
Aborigines’ be appointed in Australia.

1838

The Myall Creek Massacre, near Inverell (NSW). Settlers shoot 28 Aboriginal
people, mostly women and children. 11 Europeans are charged with murder but are
acquitted. A new trial is held and seven men are charged with the murder of one
Aboriginal child. They are found guilty and hanged.

1869

The Aborigines Protection Act (Vic) establishes an Aborigines Protection
Board in Victoria to manage the interests of Aborigines. The Governor can order
the removal of any Aboriginal child from their family to a reformatory or
industrial school.

1883

The NSW Aborigines Protection Board is established to manage reserves and
the lives of 9,000 people.

1897

The Aboriginal Protection and Restriction of the Sale of Opium Act (Qld)
allows the Chief Protector to remove local Aboriginal people onto and between
reserves and to hold children in dormitories. Until 1965 the Director of Native
Welfare is the legal guardian of all ‘aboriginal’ children whether
the parents are living or not.

School, Mornington Island, 1950. Courtesy of the State Library of Queensland and the community of Mornington Island.

Photograph: School, Mornington Island, 1950. Courtesy of the State Library of Queensland and the community of Mornington Island.

1901

Australia becomes a Federation. The Constitution states that Aboriginal
People shall not be counted in the census, and that the Commonwealth has the
power to make laws relating to any race of people in Australia with the
exception of Aborigines. The federated states therefore retain exclusive
power over Aboriginal affairs until the Constitution is amended in
1967.

 

1905

The Aborigines Act (WA) is passed. Under this law, the Chief Protector is
made the legal guardian of every Aboriginal and ‘half-caste’ child
under 16 years old. In the following years, other states and territories enact
similar laws.

1909

The Aborigines Protection Act (NSW) gives the Aborigines Protection Board
power “to assume full control and custody of the child of any
Aborigine” if a court finds the child to be neglected under the Neglected
Children and Juvenile Offenders Act 1905
(NSW).

1911

Aborigines Act (SA) makes the Chief Protector the legal guardian of every
Aboriginal and `half-caste’ child with additional wide-ranging powers to
remove Indigenous people to and from reserves.

The Northern Territory Aboriginals Ordinance (Cth) gives the Chief Protector
powers to assume “the care, custody or control of any Aboriginal or half
caste if in his opinion it is necessary or desirable in the interests of the
Aboriginal or half caste for him to do so.” The Aborigines Ordinance 1918 (Cth) extends the Chief Protector’s control even further.

1928

The Coniston Massacre, Northern Territory. Europeans shoot 32 Aborigines
after a white dingo trapper and station owner are attacked by Aboriginals. A
court of inquiry says the action of the Europeans’ is
‘justified’.

1935

The introduction of the Infants Welfare Act (Tas) is used to remove
Indigenous children on Cape Barren Island from their families. From 1928 until
1980 the head teacher on Cape Barren is appointed a special constable with the
powers and responsibilities of a police constable, including the power to remove
a child for neglect under child welfare legislation.

Group of Warriors from the tribes west of Hermannsburg, Central Australia

Photograph: Group of Warriors from the tribes west of Hermannsburg, Central Australia. Photographs of Australian Aborigines, Aborigine's Friends' Association, Adeleaide 1936. Courtesy of Ivan Copely.

1937

The first Commonwealth / State conference on ‘native welfare’
adopts assimilation as the national policy: “The destiny of the natives of
aboriginal origin, but not of the full blood, lies in ultimate absorption ...
with a view to their taking their place in the white community on an equal
footing with the whites.”

In 1951, at the third Commonwealth / State Conference on ‘native
welfare’, assimilation is affirmed as the aim of ‘native
welfare’ measures.

‘Group of Warriors from tribes west of Hermannsburg,
Central Australia’,
Photographs of Australian Aborigines,
Aborigines’ Friends’ Association, Adelaide, 1936. Courtesy of Ivan
Copely.

Leaving the Mission, by Beverley Grant, 2007.

Painting: 'Leaving the Mission'. Beverley Grant, 2007.

Lake
Tyres,
Aboriginal Station,
Aug. 14th, 1930.
Most Excellency Lord
Stonehaven,
State Governor,
Canberra House, N.S.W.

I'm a full -
blooded Aboriginal by birth decent from Royal Blood. I used to write letters to
Queen Victoria in my young days. Your most Excellency, I beg to ask of his
Excellency a great favour - would his Excellency kindly grant me permission to
get my three grand - children who were snatched suddenly from me by an Ordering
Council under escort of Nurse Singleton from Lake Tyres Aboriginal Reserve,
transferred to the State Public Home, Melbourne. Three girls ages ranging from
13 years, 5¼ years, baby 2½ years Mary Darby, Sarah Darby and Nelly
Darby. The three girls were my only comfort when their mother Lizzie Darby, my
daughter, expired nine months ago at the Bairnsdalegate Hospital. When we came
down to the town Captain Newman made a covenant with me in the presence of
Patrol Walter M' Cready, that I could have the three grand - daughters till such
time I'd be married. On the eve of my marriage to Mrs. Edwards who looked after
and never neglected the children, they were snatched away by an Ordering
Council. I wish to bring under your Excellency's consideration the matter. I was
decoyed to marry for the sake of the three grand - daughters, to keep them, and
for them to be snatched away by an Ordering Council. God is no respector of
persons. We are in His sight equal to all His subjects. Before the white people
came to Australia. God gave us children to bring and train up for His service in
our own disposition. Our disposition is instilled in our children and I don't
consider it fair the white people should deprive us of our children to bring
them up in their disposition. It can never be done.

I am, Yr. obedient
Servant ,
(SGD.) Frederick Carmichael

- Helen
Baldwin

“I was born on Cape Barren Island off the North East
Coast of Tasmania, but my stay on the island was not to be very long. The reason
being that my Mother died when I was 5 days old, and to this day I do not know
who my father was. As a result, along with my sister and brother we were left in
the care of my Grandmother. At the age of 2 months the Police and Welfare
officers came to the Island and took me away along with my brother and sister,
there I was made a ward of the State and institutionalized. I was to spend the
time from 2 months to 21 years of age in this Institution. I will always believe
that I was taken under the Assimilation policy and also denied my
Aboriginality.”

- Eddie Thomas

1938

Australian Aborigines Conference is held in Sydney. Meeting on January 26,
the 150th Anniversary of NSW, Aborigines mark the first ‘Day of
Mourning’.

1948

The Universal Declaration of Human Rights is adopted by the newly-formed
United Nations, and supported by Australia.

1949

The Convention on the Prevention and Punishment of the Crime of Genocide is
ratified by Australia. It comes into force in 1951.

1967

A national Referendum is held to amend the Constitution. Australians confer
power on the Commonwealth to make laws for Aboriginal people. Aborigines are
included in the census for the first time.

1969

By 1969, all states had repealed the legislation allowing for the removal
of Aboriginal children under the policy of ‘protection’. In the
following years, Aboriginal and Islander Child Care Agencies
(“AICCAs”) are set up to contest removal applications and provide
alternatives to the removal of Indigenous children from their
families.

1975

The Commonwealth Parliament passes the Racial Discrimination Act
1975
.

1976

The Aboriginal Land Rights Act (NT) is passed by the Commonwealth
Parliament. It provides for recognition of Aboriginal land ownership, granting
land rights to 11,000 Aboriginal people and enabling other Aboriginal people to
lodge a claim for recognition of traditional ownership of their
lands.

1980

Link-Up (NSW) Aboriginal Corporation is established. It is followed by
Link-Up (Brisbane) in 1984, Link-Up (Darwin) in 1989, Link-Up (Tas) in 1991,
Link-Up (Vic) in 1992, Link-Up (SA) in 1999, Link-Up (Alice Springs) in 2000,
and Link-Up (WA- seven sites) in 2001. Link-Up provides family tracing, reunion
and support for forcibly removed children and their families.

1981

Secretariat of the National Aboriginal and Islander Child Care (SNAICC) is
established. SNAICC represents the interests on a national level of
Australia’s 100 or so Indigenous community-controlled children’s
service organisations.

1983

The Aboriginal Child Placement Principle, developed principally due to the
efforts of Aboriginal and Islander Child Care Agencies (“AICCAs”)
during the 1970s, is incorporated in NT welfare legislation to ensure that
Indigenous children are placed with Indigenous families when adoption or
fostering is necessary. This is followed in New South Wales (1987), Victoria
(1989), South Australia (1993), Queensland and the Australian Capital Territory
(1999), Tasmania (2000) and Western Australia (2006).

1987

1987 Northern Territory elections are held and for the first time voting is
compulsory for Aboriginal people.

The Bicentennial of British Settlement in Australia takes place. Thousands
of Indigenous people and supporters march through the streets of Sydney to
celebrate cultural and physical survival.

Genocide by Lawry Love, 2001.
Painting: ‘Genocide’,
Lawry Love, 2001

 

Alfred Coolwell (2nd from left), with his family on the day he first met them at Mugrave Park in 1988. Photo courtesy of Emily Bullock.

Photograph: Alfred Coolwell (2nd from left), with his family on the day he first met them at Mugrave Park in 1988. Photo courtesy of Emily Bullock.

My name was Mark Saunders until I met my family and found my real name is Alfred Coolwell. I had been searching for my family since I was a young adult and had no luck.
My Foster family, I now know, lied to me a lot. They said I was from WA - not from just down the road from Ipswich at Beaudesert, that I was adopted, not fostered - my family didn't give me up. They said I left on the railway line, not stolen from my hospital bed where I was being treated for pneumonia.

To Whom It May Concern,

My name is Lena Yarry and I would like to write a few words relating to how I feel about being taken from my parents and the effects it had on me.
I am the oldest of seven children, Grace (dec), Leila (dec), Richard, Margaret, Alfred and Victor. Dad had another son, Cyril Richard Gomes by another woman from Coraki, NSW her name was Daphne.

When I first my my brother Alf and sister Marg was one day we were travelling to Ipswich to visit my Aunty Grace (Dad's sister) and Mum spotted them going to the butcher shop/ She told the cabbie to stop while I ran inside to tell them who I was and that mum was in the cab. Margaret didn't want a bar of it but Alf sneaked a phone number to me. I was so happy and Mum and I was overcome with emotion we were crying and telling our cousins about it. It really hurts me because I know Mum and Dad were trying to find them and the Native Affairs (at that time) would never reveal their whereabouts.

This photo was taken the day I met my family. I travelled up to Brisbane from Sydney to join the protest in 1988 at the opening of the Expo Exhibition. I lead the march playing the digeridoo into Musgrave Park. There, my sister Gracie recognised me (because I looked so much like my brother) and tapped me on the shoulder and said 'stay there, I am getting your family'. I felt overwhelmed, excited and tearful. I was introduced to lots of relatives, learnt about my parents, my early life and the history of my mob.

To this day I believe my Mum and Dad died of a broken heart. I love my brothers and sister. Meeting Alf was the best. he would make you feel at ease and so funny. Gee, just reminds me of me. I love his outgoing personality. Grace was just so glad that she met our brothers and sister before she passed on.

To find my family was a burden lifted off my shoulders. It gives me great sorrow my Mum and Dad never got to find my sister or me and I never met them. My older sister told me mum and dad never gave up looking for their two stolen children. They passed on not knowing us.

I thank God I met them all.

Love, Lena.

PS. The Government think they know what they're doing but they ruined my family and our lives.

 

Mission Breed

I grew up on an old Bre
Mission
You might know the name,
It wasn’t Dodge or Barwon
Four
This place made me shame
It was here the welfare man
Kept me from
my mother
He said in court “We’re taking you
To put you with
your brothers”
“You dirty low down good for nothing”
The
mission man would say,
“You dirty low thing, no hoper”
His
words never fade away
Snatched from friends and family
From Bourke they
took me far
Away from all I knew and loved
To a kids home called
Bethcar
One hundred kays northeast of Bourke
‘Bout seven miles out
of Bre
Were thirty odd little Koori kids
They all looked just like
me
Moonie, Monkey, Moothie, Rabbit,
Crusty Nuts, Friggity,
Dog, Cat,
Big Ears, Bandicoot,
Mouse, Pointy Bum, Sadie,
Dora, Big Lips, Doody
Towel,
Names that come to mind
I can’t remember all of
them
Memories fade with time

This little mob of mission
breeds
Affectionately known
Became the only family
That I could call my
own
We all grew up eventually
And some got into strife
Some stayed in
Bre, some moved away
To find a better life
One thing for sure I rniss you
all
dream of going back
‘tis seventeen years since last
drove
That old familiar track
The day’ll come when I’ll
arrive
Cruise on into town
I’ll park down near the old fish
traps
Have a look around
Then head toward the Barwon Bridge
Drive a
mile or two
Turn right off the bitumen
Follow it right through
So until
then I’ll quietly wait
Until I can head out
To satisfy this ancient
urge
The one called walkabout
We’ll laugh, we’ll cry, well
drink some grog
Then we’ll reminisce
About the life that we once
lived
Growing up out on the mish.

David Nolan, Possum
Wiradjuri.

Cherbourg State School, 1959.

Photograph: Cherbourg State School, 1959.
Photograph reproduced
coutesy of the State Library of Queensland and the community of Cherbourg.
Right-left: Vincent Serico, Adrian Jones, Jennifer Combo, Sheila Chermside,
Pansy Colonel.
Boys on left: Robin O’Chin (handing our fruit), John
Stanely, Glen Brown (standing near post)

1991

The Council for Aboriginal Reconciliation is set up, funded by the
Commonwealth Government. Parliament noted that there had not been a formal
process of reconciliation to date, “and that it was most desirable that
there be such a reconciliation by 2001.”

The Royal Commission into Aboriginal Deaths in Custody presents its report
to the Commonwealth Government. It finds that of the 99 deaths it investigated,
43 were of people who were separated from their families as
children.

Jap

Am I the only one who remembers Jap
Who knew
‘Jenny’ was her real name
The only one who remembers
How
Jenny, at 18, died
Alone
Her lithe and beautiful body
Broken
And
bleeding on the concrete floor
Of a lonely convict cell
Her bold, defiant
laughter snatched
Forever from this world
With the
snapping
Crack!
Of a police issue boot
On the back of her neck
I
wonder if the cop remembers
The feel of her young
body
Crushed
Despoiled
And lifeless beneath his heel
Has he slept
well
These past thirty years
With his conscience
And his memory
Of a
dark-skinned girl
With a long proud neck
And glowing dark eyes
Does he
remember Jap
I do

– Vickie Roach

“Jenny
‘Jap’, was 18 years old when she died in police custody. Jap and I
became close friends when we were about 11 years old in a juvenile detention
centre together. We were later reunited aged 17 in women’s prison.
Jap’s death a year later was one of the still mounting tide of Aboriginal
deaths in custody.” – Vickie Roach

1992

The High Court of Australia hands down its landmark decision in Mabo v
Queensland No.2
. It decides that native title exists over particular kinds of
lands – unalienated Crown Lands, national parks and reserves - and that
Australia was never terra nullius or empty land.

“On this 15th Anniversary of the High Court Decision in the Mabo case,
we should indeed celebrate the hard work and achievements of Eddie Mabo and the
other Meriam applicants. But at the same time, let us not pretend that the
decision by the High Court recognised our land rights as we understand them, as
we understand our responsibilities for country and connections with each other.
We know that the High Court attempted to accommodate Indigenous law and custom
within the colonial common law, but it was only able to understand our law and
custom from within the framework of Eurocentric colonial legal and political
systems.“

 

– Mick Dodson, Native Title Conference, ’Tides of Native
Title’, Cairns 7 June 2007

 

1993

International Year of Indigenous People. The United Nations declares the
‘International Year for the World’s Indigenous People’.
Subsequently, 1994- 2003 is declared the first ‘International Decade for
the World’s Indigenous People’.

The Commonwealth Government passes the Native Title Act 1993. This law
allows Indigenous people to make land claims under certain situations. Claims
cannot be made on freehold land (privately-owned land).

The position of Aboriginal and Torres Strait Islander Social Justice
Commissioner is established within the Human Rights and Equal Opportunity
Commission (HREOC). The Commissioner’s role is to monitor and report to
the Commonwealth Parliament on the human rights of Indigenous Australians.

1994

The Going Home Conference in Darwin brings together over 600 Aboriginal
people removed as children to discuss common goals of access to archives,
compensation, rights to land and social justice.

1995

The National Inquiry into the Separation of Aboriginal and Torres Strait
Islander Children from Their Families
is established by the Commonwealth
Government in response to efforts made by key Indigenous agencies and
communities.

1996

The High Court hands down its decision in the Wik case concerning land
which is, or has been, subject to pastoral leases.

Sunset Story by Heide Smith, 1996

Photograph: 'Sunset Story' by Heide Smith

1997

HREOC presents Bringing them home, its report on the findings of the
National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from Their Families
, to the Commonwealth Government. The parliaments
and governments of Victoria, Tasmania, ACT, New South Wales, South Australia and
Western Australia all issue statements recognising and publicly apologising to
the ‘Stolen Generations’.

“In my life, I
have seen my people face hostility and rejection and cruelty on more occasions
than I would care to recall.

But nothing could have prepared me for the
days I spent with my co-Commissioners listening as people spoke the truth of
their lives for the first time.

Of being taken away from their mothers
at three weeks of age.
Of mothers waiting a lifetime to see their
babies’ faces again.
They came before this Inquiry, and they told us
of being sent to institutions ‘for their own
good’.

Institutions without the loving arms of aunties and
grandma’s. But rather cat-o-nine tails and porridge with weevils and
frightening adults who came into your room at night.

They recalled
being told that their parents had given them away because they did not love
them. And they told me what it was like to be taught to hate Aborigines and then
turn that hate against your own history, your own mother and
yourself...

This nation is proud of its rule of law.
Proud of its
sense of justice and a fair go.
One of those laws is that if you steal
something and you are caught, you have to give it back.

This nation has
stolen.
From parents and families and communities it has stolen children.
From children is has stolen love, and family; language and culture; land
and identity.

It committed a grievous crime.
It is time to pay for
that crime.”

– the Aboriginal and Torres Strait Islander
Social Justice Commissioner Mick Dodson, launch speech of the Bringing them
home
report, 1997

1997

Kruger & Ors v
The Commonwealth (1997)

Alec Kruger  and others lose their court case against the Commonwealth
when the High Court finds that the Northern Territory Ordinance under which
Aboriginal children families were removed was constitutionally valid. This case
also discussed whether the policies of forcible removal could be considered
genocide. The Court held that while the Ordinance did allow children to be
forcibly removed, the intent of the Ordinance was not to ‘destroy...their
racial group’, the definition of genocide in the Convention on the
Prevention and Punishment of the Crime of Genocide
(the Genocide Convention)
which Australia has signed.

 

The Punishment by Kunyi McInerney

Painting: 'The Punishment' by Kunyi McInerney, 1994.

 

1998

HREOC releases the Social Justice Report 1998, which includes a summary of
responses from the churches, and non-Indigenous communities to the
Inquiry’s recommendations plus an Implementation Progress
Report.

The Commonwealth Parliament amends the Native Title Act. This restricts the
ways in which native title can be claimed.

The National Archives Australia - Bringing them home indexing project is
launched. The project is focussed on the identification and preservation of
Commonwealth records related to Indigenous people and communities.

1999

Federal Parliament passes a motion of ‘deep and sincere regret over
the removal of Aboriginal children from their parents’.

Mandatory sentencing in Western Australia and the Northern Territory becomes
a national issue. Many call for these laws to be overturned because they have
greater impact on Indigenous children than on non-Indigenous children.

2000

The People’s Walk for Reconciliation on 28 May occurs in state and
territory capitals throughout Australia. The Council for Aboriginal
Reconciliation presents the Prime Minster with its declaration and four
strategies to achieve reconciliation at the Corroboree 2000 Ceremony held at the
Sydney Opera House.

Australia appears before the United Nations Committee on the Elimination of
Racial Discrimination. The Committee expresses concern about the Commonwealth
Government’s decision not to provide a national apology or to consider
monetary compensation for those forcibly removed from their families as the
Bringing them home report recommended.

An inquiry into the federal government’s implementation of the
recommendations in the Bringing them home report is undertaken by the Senate
Legal and Constitutional References Committee. The Senate Committee tables its
report Healing: A Legacy of Generations in November 2000 and makes ten
recommendations. These concentrate on the need for ongoing reporting and
monitoring of responses to the Bringing them home report and the establishment
of a reparations tribunal. 

The Australian Government’s submission to the inquiry is presented by
Senator Herron and includes the propositions that ‘there never was a
generation of stolen children’ and ‘the proportion of separated
Aboriginal children was no more than 10 per cent’.

Final report of the Council for Aboriginal Reconciliation is presented to
the Prime Minister and the Commonwealth Parliament. One of its six
recommendations is that the Parliament enact legislation to address a range of
unresolved issues, including the effective implementation of the Bringing them
home report recommendations.

The case of Williams v The Minister, Aboriginal Land Rights Act 1983 [2001] fails.

Joy Williams loses her appeal in the New South Wales Supreme Court of Appeal
alleging the NSW Government breached its duty of care by removing her from her
mother soon after birth. Joy had sought compensation for the harm and mental
illness she suffered as a result of removal.

The case of Cubillo and Gunner v Commonwealth (2000) in the Federal Court of
Australia fails. Lorna Cubillo was removed from her family in Tennant Creek and
placed in the Retta Dixon home in Darwin in 1947. Peter Gunner was removed in
1956 and placed in the St Mary’s Hostel in Alice Springs. Both claimed
they were seriously assaulted during their time in these institutions. Their
claims failed for several reasons including a lack of evidence. Between 25 and
35 years had passed between their institutionalisation and the court case. Many
records had been lost or destroyed; many of the people involved were dead; and
the laws at the time of their removal allowed officials to remove children for
reasons other than their own welfare.

“I jumped when I
heard a screw call my name and looked up to see him beckon me with his fat
finger. I dropped my broom and walked over to where he was standing on the
corner of the isolation block. Well, he grabbed hold of me and shoved me inside.
I can remember him starting to hit me, but can`t remember what he was saying.
Then he grabbed me by the back of the neck and slammed my head into the corner
of the brick wall. I wondered if he was going to keep beating me till I was
dead. I remember later, sporting the bruises, swelling and abrasions, I
complained to
Mrs S. that I was going to dob to someone about his treatment
of me. Her response was, `we`ll just say you fell over`.“
- Jeannie
Hayes

2001

The Northern Territory Government repeals its mandatory sentencing laws.
The same year, the Northern Territory Government presents a parliamentary motion
of apology to people who where removed from their families.

The
Human Rights and Equal Opportunity Commission and the Public Interest Advocacy
Centre (PIAC) hold the Moving Forward Conference. The conference aims to explore
ways of providing reparations to Indigenous people forcibly removed from their
families.

“As a nation we now find ourselves in a position where
we can no longer forget or ignore the truth of our past. The author Milan
Kundera has noted that ‘forgetting... is absolute injustice and absolute
solace at the same time’. Such ‘absolute solace’, or
‘ignorance is bliss’, is no longer an option for Australian society.
Bringing them home has forced us to challenge some of the myths of settlement
and colonisation - myths which one academic has described as having previously
operated in Australia as ‘a self-constructing form of
repression’.

It is now just over four years since the release of
Bringing them home. It is uncontroversial to note that there is now broad
community acknowledgement of the history of those forcibly removed. We cannot
under-estimate how important this recognition is. However, it is but the first
step in a process of healing and of addressing the consequences of this
history...

This devastation inflicted upon Indigenous communities by
forcible removal policies cannot reasonably be described as a distraction, or as
being of little relevance to the day to day lives of its victims. Responding to
forcible removals is also clearly about what the Minister describes as
‘the often forgotten needs’ such as the ability of people to take
control of their own lives...

Our national government owes us more than
practicality in responding to a human tragedy of the scale inflicted upon the
Aboriginal peoples of this nation. After four years of inaction, it is time to
move forward the debate on forcible removal policies and focus on the real
issues, by developing mechanisms for reparations and for
healing.”

- the Aboriginal and Torres Strait Islander Social
Justice Commissioner, Dr William Jonas,
Speech at Moving Forward:
Achieving Reparations for the Stolen Generations
, Sydney, 2001

2002

The Social Justice Report 2001 and Native Title Report 2001 are tabled in
the Australian Parliament. Both reports express serious concerns about the
nation’s progress in improving the human rights of Indigenous.

The PIAC releases Restoring Identity - the follow up report to
the Moving Forward Conference. The report presents a proposal for a reparations
tribunal.

The National Library of Australia Oral History Project is
published, Many Voices: Reflections on Experience of Indigenous Child
Separation
.

Valerie Linow is awarded compensation by the NSW Victims
Compensation Tribunal. This marks the first time a member of the Stolen
Generations is compensated for the harm suffered while under the care of the
state. She suffered harm as a result of sexual assaults which occurred while she
was a 14 year old domestic worker on a rural property where she was placed by
the Aborigines Welfare Board.

2003

The Ministerial Council for Aboriginal and Torres Strait Islander Affairs
(MCATSIA) commissions and releases an independent evaluation of government and
non-government responses to the Bringing them home report. This gives
effect to one of the recommendations of the 2001 Senate Inquiry Report, Healing:
a Legacy of Generations
.

The Aboriginal and Torres Strait
Islander Social Justice Commissioner publicly criticises the failure of
governments to provide reparations for members of the Stolen Generation, a
national apology, or the appropriate mechanisms for individuals that were
forcibly removed to reconnect with their culture.

The Victorian
Stolen Generations Taskforce delivers its report to the State Government. The
Victorian State Government commissioned the report in response to the Bringing
them home
report, in order to address the hurt and suffering caused by the
forcible removal of Indigenous children from their families.

2004

The Commonwealth Government unveils a memorial to the ‘Stolen
Generations’ at Reconciliation Place in Canberra.

461
‘Sorry Books’ recording the thoughts of Australians on the unfolding
history of the Stolen Generations are inscribed on the Australian Memory of the
World Register, part of UNESCO’s program to protect and promote
documentary material with significant international historical value.

2005

The organisation ‘Stolen Generations Victoria’ is set up as a
result of the 2003 report of the Stolen Generations Taskforce. Its purpose is
to establish a range of support and referral services that will assist Stolen
Generation members to reconnect with their family, community, culture and
land. 

The National Sorry Day Committee announces that in
2005, Sorry Day will be a ‘National Day of Healing for All
Australians’ in an attempt to better engage the non-Indigenous Australian
community with the plight of the ‘Stolen Generations’.

The
Aboriginal and Torres Strait Islander Commission (ATSIC) is abolished by the
Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth).

The first official Sorry Day ceremony outside Australia is hosted
in Lincoln Fields, London, on 25 May 2005.

The Western Australian Child
Health Survey is released. The report states that 12.3% of the carers of
Indigenous children aged 0-17 in Western Australia were forcibly removed from
their families. Compared with other Indigenous children, the children of members
of the Stolen Generations are twice as likely to have emotional and behavioural
problems, to be at high risk for hyperactivity, emotional and conduct disorders,
and twice as likely to abuse alcohol and drugs.

The United Nations
Commission on Human Rights passes Resolution 2005 / 35 that adopts the Van Boven
/ Bassiouni Principles. These principles declare a right to a remedy and
reparations for victims of gross violations of international human rights law
and serious violations of international humanitarian law.

 

Culture Shock by Lawry Love, 2001

Painting: 'Culture Shock' by Lawry Love, 2001.

 

2006

Bennell v State of Western Australia [2006] is handed down by the Supreme
court of Western Australia. Justice Wilcox decided in favour of the Noongar
people, recognising their native title rights to land including the Perth
metropolitan area and coastal towns such as Bunbury, Margaret River and Albany.

THE NOONGAR NATIVE TITLE CLAIM

In early October
2005, I commenced hearing evidence concerning a native title claim that had been
lodged with the Federal Court by 99 named applicants, acting on behalf of a
group of people whom they described as “the Noongar People”.

The claim related to an area of land in the southern part of Western
Australia. The northernmost point of the claim area, on the Indian Ocean coast,
was just north of Jurien Bay, about two-thirds of the way from Perth to
Geraldton. The northern boundary of the claim area then extended easterly, north
of Moora, before bearing south-easterly to meet the Southern Ocean slightly west
of Esperance. This is a vast area of land, taking in the Perth metropolitan area
as well as major coastal towns, such as Bunbury, Mandurah, Margaret River and
Albany, and many towns in the wheat-belt.

It was apparent that much of
the land in the claim area would be freehold or held under a lease that had
extinguished any native title. If the claimants were able to demonstrate the
necessary connection with the claim area, there would need to be detailed
discussions, or a further hearing, about the particular parcels of land that
were still subject to native title. However, all parties agreed this should be
left for another day; the immediate task was to determine whether there was any
subsisting native title at all.

In order to make good a native title
claim, it is necessary for the claimants to establish:

(1) the identity
of the indigenous group under whose laws and customs land rights were
regulated at the date of European settlement; in this case,
1829;

(2) that this group has since continued to exist, and continued to
observe its laws and customs relating to land, subject only to any
variations that have been forced upon it by later circumstances including,
particularly, white settlement; and

(3) that the instant claim is made
on behalf of the members of that group or an identifiable part of
it.

The applicants’ case was that, in 1829, a society of people,
now known as “the Noongar People,” occupied the whole of the claim
area; they had a complex of laws and customs, relatively homogenous throughout
the whole area, that governed land rights. Under these laws and customs, each
person had primary rights over the relatively small area of land upon which he
or she usually resided, in an extended-family unit, and for which the
unit’s members had management responsibilities. They “spoke”
for that country. People also had secondary rights over a larger area of land,
the primary rights to which were held by others. People were free to access
their secondary country, but were not entitled to “speak” for it. If
people wished to visit country to which they did not have either primary or
secondary rights, they needed the permission of the right holders.

The
applicants’ case was that the Noongar People continued to exist as a
society, although in a changed form, and to apply, as between themselves, the
traditional landholding rules.

The Western Australian and Commonwealth
Governments both contested the claim. They said the relevant group, at date of
settlement, was not constituted by all the people who resided in the claim area
in 1829 but that land in this area was then held under the laws and customs of
much smaller, “clan” groups; so any native title claim had to be
brought in their name, and on their behalf. The two governments disputed that
there was ever an Aboriginal society that extended over the whole claim area and
said, alternatively, that, if there ever had been, it no longer
existed.

I heard evidence over 20 days. Written and oral evidence was
given by expert witnesses, (two historians and two anthropologists, one of each
being called to give evidence by counsel for the applicants and the other by
counsel for the State, and a linguist called by counsel for the applicants) and
by 30 Aboriginal people. The Aboriginal evidence was given over 11 days, all
“on country”, under canvass in a makeshift courtroom that was moved
from one location to another within the claim area.

Counsel also
tendered many documents. These included the writings of several Europeans who
were either stationed, during the period 1826-1829, at the garrison at King
George’s Sound (modern Albany) that preceded the Swan River settlement or
were early settlers in the Perth area. Each of these writers attained some
knowledge of the local Aborigines, and their laws and customs, and, in some
cases, became fluent in their language. These writings, combined with the
linguist’s expert evidence, established that, in 1829, there was a common
language throughout the claim area, albeit with dialectic differences. This
finding, supplemented by evidence of the degree of contact between the
Aboriginal people in different parts of the claim area and the similarity of
their laws and customs, led me to conclude that, in 1829, there was a single
society that occupied the whole of the claim area and whose laws and customs
regulated land rights.

The more difficult problem was the effect of
European settlement on this society. The evidence about this was graphic.

The first European settlement, as distinct from the garrison, was in
the fertile Swan Valley. This area had previously been home to many Aboriginal
people, no doubt because it sustained abundant food sources. However, the early
white settlers fenced off their land grants and drove out the wildlife. The
Aborigines, deprived of a principal food source, responded by taking the
settlers’ stock for food. This led to reprisals. Many Aborigines were shot
for stealing. Within a few years, the Swan Valley lost most of its Indigenous
population. As settlement expanded, so did the area from which Aborigines were
excluded, at least in the sense of being able to maintain their traditional
lifestyle. The Aboriginal people either moved further out, into unsettled areas
that were the “country’ of other Noongar people, according to their
traditional laws, or took employment, as stockmen or domestic servants, with the
European settlers; in the process, family members were often separated. People
from different areas were often congregated together in missions or on
Aboriginal reserves. The effect was to weaken peoples’ links with their
country.

Most of the Aboriginal witnesses gave detailed evidence about
their descent, usually extending back four or five generations. Every one of
these witnesses mentioned at least one white male ancestor. It appears that,
when the British Government decided to transport convicts to Western Australia,
and in contrast to its policy in respect of earlier transportation to the
eastern colonies, it paid little attention to the need to maintain a convict
gender balance. The result was a substantial excess, in Western Australia, of
males over females. Predictably, many white males formed relationships with
black women. Although it seems many of these relationships were loving,
long-term relationships, they had two far-reaching effects.

First, the
traditional rule, throughout most of the claim area, was that children took
their rights to country through their fathers. If the father was white, he had
no country to pass on. But connection to country is fundamental to Aboriginal
life and culture. So, rather than have children lose any connection to country,
the Noongar people accepted inheritance through the mother. This modification of
the traditional rule was relied on by the two governments, in the Noongar case,
in arguing that the present body of rules was not the body of laws and customs
operative in 1829.

Second, over a period of about 50 years, there was
an official policy in Western Australia (in common with most other parts of
Australia) of removing “mixed blood” children from their families.
Because of the high proportion of Noongar children who had at least one white
male ancestor, almost all of them were targets for removal. Many were in fact
removed, most notoriously to the Moore River camp that was depicted in the film
‘Rabbit-proof Fence’. Many of the witnesses before me had
themselves been removed from their families or told of parents or siblings who
had been removed. Sometimes removed children were eventually reunited with their
families; often they were not. In terms of community cohesiveness, the
consequences of the removal policy were profound.

After completion of
the evidence, counsel prepared and submitted to me written submissions dealing
with every aspect of the case. I eventually reached the conclusion, contrary to
my original expectation, that the applicants had proved the survival of the
Noongar society from 1829 until the present time. The basis of my conclusion was
compelling evidence about five matters: the continuing use of the Noongar
language by many people throughout the claim area; the adherence by all the
witnesses to a complex of spiritual beliefs that accorded broadly with the
beliefs noted by the early European writers and were widespread in the claim
area; the maintenance of traditional hunting practices, even where this was not
necessary for food-gathering purposes; the continuing coming-together of people
for festivals, funerals etc; and, most importantly, the continued adherence, by
many people, to the traditional rule about seeking permission to visit someone
else’s country.

I handed down reasons for judgment to a packed
court, in Perth, in September 2006. The reasons were lengthy, so I merely made a
statement about the history of the case, the main issues and the result. When it
became clear to the audience that I accepted the claim that the Noongar society,
and Noongar culture, had survived, there was an audible, collective intake of
breath and widespread emotion.
The evening television news services
featured celebrations involving many hundreds of people. A few days later, after
I had returned to Sydney, my Associate took a telephone call from a woman who
identified herself as Noongar. She said she practised as a psychologist and had
many Noongar patients. She asked my Associate to tell me my finding had given
the Noongar people a psychological lift like none she had seen before. The
message tended to conform a feeling I had gradually developed over my long
exposure to native title litigation: the most important result of success in a
native title case is not in relation to permissible uses of the subject land,
but the communal recognition and affirmation it provides.

My finding
is the subject of an appeal, probably the main issue being whether the
modifications to the traditional laws and customs that have occurred since 1829
— in my view, as responses to the effects of white settlement — mean
that the rules now observed cannot be said to be the laws and customs in force
in 1829. Whatever the final outcome of the case, it will not take from me the
memory of the Noongar reaction to my decision.

- Murray Wilcox QC, former judge of the Federal Court of Australia.

Photograph by Fabienne Balsamo

Photograph: by Fabienne Balsamo

2006

The first Stolen Generations compensation scheme in Australia is set up in
Tasmania by the Stolen Generations of Aboriginal Children Act 2006 (Tas).

 

First payout deal for stolen children

The Australian, Matthew
Denholm,
18 October, 2006 

The national debate on the
``stolen generations’’ will be reignited today by the unveiling of
the nation’s first compensation package for Aborigines taken from their
parents under assimilation policies.

Tasmania will today announce a
government apology and a $4 million compensation scheme for members of the
stolen generations. The Australian understands the scheme will involve the
appointment of an independent assessor, who will judge individual cases against
set criteria.

The assessor will consider individuals’ testimonies
and examine government records to test claims of wrongful removal by welfare
agencies, mostly from the 1930s to the 1950s.

A compensation funding pool
- to be capped at about $4million - will then be distributed among those found
to have genuine cases. While the number of potential applicants is unknown, the
Tasmanian Aboriginal Centre has already identified 40 individuals with ``solid
claims’’ for compensation. The scheme - hailed by Aboriginal leaders
yesterday as a model for other states to follow - will be advertised nationally
to invite applications from those who may have left the state.

Premier
Paul Lennon will sell the package as lifting a key barrier to reconciliation
between Aboriginal and non-Aboriginal Tasmanians. Yesterday, Aboriginal leaders
praised Mr Lennon’s ``leadership’’ and ``courage’’
and expressed hope it would rekindle national debate on the issue.

It is
nine years since the release of the Bringing Them Home royal commission report
into indigenous children removed from their families. TAC legal adviser Michael
Mansell said he hoped other states would examine and adopt the model and that
the Prime Minister would reconsider his opposition to an apology for the stolen
generations. ``This is a very groundbreaking decision and not just the other
states but John Howard also should ... take a very close look,’’ he
said.

Official reasons for the removal of Aboriginal children to
institutions or foster homes included maternal ``neglect’’ or
``waywardness’’. However, many Aborigines believe these were often
groundless excuses to suit a policy of assimilating black children into white
foster families wherever possible.

Some claimants told The Australian the
scheme would allow them to ``begin to forgive’’. Eddie Thomas, 70,
believed to be the oldest surviving member of the stolen generations in
Tasmania, was taken from his grandmother when he was six months old. He and his
brother and sister had been placed in her care when his mother died after his
birth on Cape Barren Island, northeast Tasmania, in 1936.

He believed his
grandmother was duped into signing a consent form. ``She couldn’t read or
write, so she couldn’t have been in agreement,’’ he said. His
life with white foster families on mainland Tasmania was unhappy and his
grandmother was prevented from visiting the children, he said.

``There
used to be this old lady come to the gate and our foster mother would say,
`That’s just a silly old black woman’, and take us
inside,’’ he said. ``It wasn’t until I was old enough to go to
work that I met up with an uncle who told me that was my grandmother. She wanted
to talk to us, to cuddle us, but she wasn’t allowed. She died of a broken
heart.

``I’ve felt for a large part of my life so much anger, but
this (an apology and compensation) will allow me to move forward and to forgive
those people.’’
Heather Brown, 63, broke down as she recalled the
day she and six other children were taken from her family home.

``Those
people just came through our home and got me -- I ran, there were children
running everywhere,’’ she said. ``It happened all at once. I was
dazed. I didn’t talk for months afterwards.’’

She still
does not know why she was taken from her parents at Wiltshire Junction,
northwest Tasmania, or why she was not allowed to see them or her siblings while
she grew up in a succession of foster families. ``I’ll never
forget,’’ she said.

Annette Peardon, 57, said she and two
siblings were taken from their mother on Flinders Island, because of maternal
``neglect’’. She disputes this, remembering a clean home with
sufficient food.

The childhood that followed was marked by ``physical,
emotional and sexual’’ abuse at institutions and foster homes, she
said. While she found her mother after turning 21, her sister and brother were
never reunited with her.

``It broke her spirit -- she had three children
taken away and only one went back,’’ Ms Peardon said.

Many of
those affected have since died, but the TAC has identified 27 individuals it
believes have an ``extremely strong’’ case for
compensation.

The scheme fulfils a commitment first made by Mr Lennon in
The Australian two years ago and repeated at the March state election this
year.

Article reprinted courtesy of News Limited.

Eddie Thomas, Premier Paul Lennon and Annette Peardon after the successful passage of Tasmanian compensation bill.

Photograph: Eddie Thomas, Premier Paul Lennon and Annette Peardon after the successful passage of Tasmanian compensation bill.
Courtesy of Eddie Thomas.

”After all these years of struggle a breakthrough
finally came. Our long time Tasmanian Aboriginal lawyer and Activist Michael
Mansell who has worked so very hard for us, phoned up and told me that Annette
Peardon and myself were to attend a function for the history-making handing down
of the Landmark Draft Bill for the Stolen Generation to make an Apology and to
compensate them... this happened on October 18th, 2006. This was to be the
beginning of history being made... eventually a date had been set to attend
Parliament, it was a full sitting of the Lower House.

This was history
making, never before in Tasmania had members of the public been invited to the
floor of the Chamber to speak while Parliament was in progress.

While
we were waiting to be taken into Parliament by the Sheriff... I felt very
nervous this was a very important occasion. But the time came to enter the
House, I was to speak first, I was introduced to the Speaker, who in turn
introduced me to the Members, I was now at the lectern and microphone and I felt
so proud and for some reason I was no longer nervous. I looked around addressed
the Speaker, the Leaders of each political party, after doing this I was on my
way... the words spilled from my mouth.

How being stolen from my family
under the Assimilation act, the denial of my Aboriginality, the loss of my
family, community and culture.
On top of this I spent twenty years in a
cruel institution, being a slave to others. By the time I had made my address (I
really spoke for all members of the Stolen Generation) I don’t think there
was a dry eye in the House, both men and women, I know they felt very much for
us. History was made again when the Compensation Package was passed through the
House unanimously.

But still there were a lot of butterflies, because
we now had to get it through the Upper house and everybody knew it was going to
be touch and go. We were present in this sitting... [and it was] a nervous wait.

This was on the 28th November 2006 and there was quite a lot of
discussion... but after the third reading the Compensation Package was passed.
What a joyful and emotional time this was as we came out of Parliament House,
news travels fast because there were cameras everywhere and a large crowd of our
people to cheer us. I was fortunate enough to be one of the first to
congratulate our Premier Paul Lennon, because I knew what a huge effort he had
put in for us.

I must say that it has been a long road to this victory,
but it has helped a lot of people to come to terms with life, it has given them
justice and something to build a new life around. Money cannot erase all the
sadness, but it will help us to now enjoy our lives and to help our families.

– Eddie Thomas

Sewing Class, Mapoon Mission, 1960.

Photograph: Sewing Class, Mapoon Mission, 1960.
Photograph reproduced courtesy of the State Library of Queensland and the community of Old Mapoon.

2007

2007 The 10th anniversary of the Bringing them home report is commemorated
in May.

“The 10th anniversary [of the Bringing them home
report] is a bittersweet one. For many Indigenous people, they have benefited
greatly from the responses that governments have provided to the report’s
findings over the past decade, and also from the public groundswell of
compassion and support that has resulted.

Many people have been
reunited with their families. Others have been able to trace and learn details
about what happened to their families. And the vital services that had
previously been provided by organisations such as Link-Ups - without much
funding and without recognition – have been able to obtain ongoing funding
so that they can better service communities of Indigenous peoples who were
removed.

These are important outcomes and ones that we must celebrate
as we look back on ten years since the report was released.

But it is a
bittersweet anniversary because others have not benefited similarly from the
responses to the report.

There were two aspects to the awareness
created by the report – it had an effect of validating the experiences
that many people had lived. But it also raised the ghosts of those experiences
– the trauma, the grief and the memories. Left unresolved, this can have
the effect of re-traumatising people and creating a ‘limbo’ world in
which they have not been able to go home.

It is unfortunate, but the
hostility towards the report’s findings by government has contributed to
this re-traumatisation. That is why an ongoing commitment to reconciliation
remains such an important need in our country today.

So as we
commemorate the tenth anniversary of the report, we must also remind ourselves
of the suffering that many of our brothers and sisters have continued to endure,
and the challenges that remain unmet for those who were forcibly removed, for
their children and their children’s children.”

- the
Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma,
speech at a Parliament House, Canberra, May 2007.

2007

Trevorrow v State of South Australia (2007)

Reflections
on the case, Joanna Richardson, solicitor for the plaintiff.

On 1 August
2007, His Honour Justice Gray handed down his decision in the matter of
Trevorrow v State of South Australia. It was the moment that Bruce Trevorrow and
his legal team had been working towards for 13 years. Despite being unwell,
Bruce had travelled from Bairnsdale on the east coast of Victoria, to Adelaide
to hear the decision. I had arranged to meet Bruce and his family beforehand. We
were all very nervous. We reminded each other that whatever the outcome we had
put the best case we could, and we now knew the answer to the questions that
Bruce asked when we first met at Aboriginal Legal Rights Movement (ALRM) in
March 1994: Why had he been removed from his family when he was little? Why did
he find life so difficult?

After meeting Bruce I began to seek and
obtain government documents that recorded what had happened to him. At first we
were given only a small part of his personal file. These documents included a
report from the local police officer to the Aborigines Protection Board which
recorded that on Christmas Day 1957 Bruce had been unwell and his father had
insisted that he be taken to hospital. From there he was placed with a white
foster family, but at this point we had no idea why. There was a letter from
Bruce’s mother, Mrs Thora Karpany, to the Secretary of the Aborigines
Protection Board dated 25 July 1958, asking about her son, asking how long
before she could have him home, telling the Welfare Officer she had not
forgotten she has a baby son. The Secretary replied on 19 August 1958, telling
Mrs Karpany that as yet the doctor did not consider Bruce fit to go home. Later,
I found hospital records that demonstrated that Bruce had quickly recovered from
his illness and, contrary to the Secretary’s letter, it seemed he was not
under the care of a doctor in August 1958.

After I was granted access
to the files held at State Archives, I also obtained correspondence and policy
documents of the Aborigines Protection Board, the Secretary of the Board and the
Aborigines Department. Included in that material were the opinions of Crown
Solicitors, documents which recorded the inability of the Children’s
Welfare and Public Relief Board and Aborigines Protection Board to reach
agreement about the treatment of Aboriginal children and frank admissions by the
Secretary of the Aborigines Protection Board to his counterpart in Victoria
that, without lawful authority, many children were being placed in institutions
and with white foster families. He estimated that in 1958 there were
approximately 300 children who had been placed in this manner.

In 1998
we issued proceedings against the State of South Australia. We argued that the
State did not have the power to remove him from his family in the way they had,
i.e. the State had acted unlawfully or beyond its powers; that Bruce had been
falsely imprisoned and that the State knew they acted unlawfully when they
removed him. We also argued that the State had owed Bruce fiduciary and common
law duties of care. For example, as the Aborigines Protection Board was his
“legal guardian” they were obliged to protect him and, because they
knew he had been unlawfully removed from his parents, they were obliged to make
sure he got independent legal advice about what had happened to him.

Also, the Board had to make sure they were very careful about removing
babies, they had to make sure there was a good reason why a baby should be taken
away, that the foster placement was good and healthy, and then when the child
was returned to the parents, they had to make sure that was done in a safe way.
We said the State had not done those things properly and had therefore breached
those duties of care.

We said Bruce had suffered permanent injury and
loss, including loss of culture, as a result of his removal, his placement and
in the manner of his return to his family. As a result of this treatment Bruce
sought declarations and damages, including exemplary and aggravated damages
which are sought when the defendant has acted in complete disregard of a
person’s rights or in an especially malicious or fraudulent way.

The State vigorously defended the claim. It denied Bruce had been
unlawfully removed and denied it was liable for the actions of the Aborigines
Protection Board. It argued that, as a result of the passage of time, it would
suffer prejudice if the claim were permitted to proceed.

For the next
seven years the action ground through numerous preliminary stages. Background
events also made our preparations very difficult. Bruce suffers from ill health,
and the lengthy process took its toll on him and on his family. The passage of
time made it impossible to keep together a core legal team. I was the only
lawyer who remained acting throughout that time. Many people have made important
contributions to the presentation of the case: Robyn Layton QC, who acted as
senior counsel until the end of 2005; Gordon Barrett QC and Sydney Tilmouth QC;
Andrew Collett and Nigel Wilson, junior counsel who assisted in the
preparations; and Julian Burnside QC and Claire O’Connor both of whom
accepted the brief only weeks before the trial began and who must have blanched
when we began to inundate them with volume after volume of pleadings, materials
and reports, and whose advice and skills proved critical. Then there are the
researchers, some of whom started as volunteers and who worked on the case at
various times: Graham Hyde, Andrew Alston, Christopher Holland, Dr Irene Watson;
George Lesses, Christopher Johnston and most importantly, Andrew Nettlefold.

Other legal processes also had an effect. The Joy Williams claim in NSW
was unsuccessful, and we saw the toll that action had on Mrs Williams. In the
Northern Territory claims were brought against the Commonwealth on the part of
Mrs Cubillo and Mr Gunner. Although those claims were unsuccessful I remember
reading the judgements and realising that the facts of Bruce’s case and
the laws in South Australia at the time he was removed meant that those
decisions did not deal a fatal blow to his claim, in fact the decisions
strengthened his claim. At the same time, important cases about the extent of
the liability of statutory authorities (which broadly means the responsibility
of government to the people they look after) were being decided in Australia and
in the United Kingdom.

In March 2005 the claim was given trial dates in
November 2005. The trial lasted for 37 days, spread between November 2005 and
April 2006. In the course of the trial 173 exhibits were filed, expert evidence
was heard about the plaintiff and his health, about the knowledge in the late
1950’s of the harmful effects of the separation of a child from their
family, and evidence was taken from, amongst others, Bruce and his family, from
his foster sister and officers of the Aborigines Department.

Finally, on
1 August 2007, Justice Gray delivered his decision. He found for Bruce, he
rejected the State’s defence.

At the time of preparing this
article we do not know if the decision will be the subject of an appeal to the
Full Court of the Supreme Court of South Australia. Although the Premier, Mr
Rann, has announced that the State would pay Bruce the compensation he has been
awarded, the State has nevertheless reserved its right to appeal the
decision.

So, at this time, what does the success of this case mean for
others? It recognises that in South Australia, the State through the Aborigines
Protection Board, the Children’s Welfare and Public Relief Board and the
Aborigines Department, engaged in a practice whereby Aboriginal children were
removed from their families despite the fact that it was known there was no
legal authority or power to do that. In 1958 the Secretary of the Aborigines
Protection Board estimated that approximately 300 children had been dealt with
in this way. It was done despite the fact that they knew such removals carried
risk of harm to children. And, as was demonstrated in Bruce’s case, even
when there was sufficient material to demonstrate the child was not, in fact,
neglected, the child was not returned to the care of his family. Instead,
accurate information about the child was withheld, his parents were misinformed
and their attempts to have their child returned to their care thwarted.

It also has broader implications across Australia. The decision is
authority for the proposition that by the mid- 1950’s it was reasonably
foreseeable that the separation of infant Aboriginal children from their
families and placement in long term non- Indigenous foster care created real
risks for the health of those children. Officers of the State working in this
area foresaw those risks, or ought to have foreseen those risks. One of the
consequences of the foreseeability of this risk of harm is that the State then
owed duties of care to the children in the manner of their removal, their
placement and their return to family. The State can be held liable where it is
demonstrated that the duties of care have been breached and the child has
suffered injury and loss as a result of the breach.

What can we learn
from the conduct of this case? It has confirmed what we already knew, that
litigation is costly in terms of time, money and emotion. As was recommended ten
years ago in the Bringing them home report, litigation should not be the method
by which other Aboriginal people who have suffered from similar actions, whether
by reason of their removal, placement or return to family, and there are others,
should be forced to seek redress.

For a more comprehensive explanation
of the case and a summary of Justice Gray’s findings by Joanna Richardson,
visit our website www.humanrights.gov.au/bth

 

`` I don`t recall what
I`d done exactly, but I was locked up underground in the dungeon. It was a
creepy place to be and the imagination, born from the stories the girls would
tell, would run rampant in my mind. Time turned over every so slowly in the
dungeon... what I do remember from three weeks in segregation is that I had
bruises from a bashing. I can`t remember why or who had done it, but I knew I
was being kept there until those bruises faded... I was sweeping what we called
the cubaway (or covered way) when a screw called me into his office. Now, that
fat man started to punch and slap me about and he landed a couple of punches
into my stomach. I guess he was dreaming about being a boxer and was looking for
a bit of practice on someone who couldn`t, rather wouldn`t dare hit back, such
as a small girl like myself. I don`t rightly remember what it was all about, but
I do remember walking out of that office to a group of girls, who were standing
by worried about me, with a smile on my face and told them it didn`t hurt. Well,
the screw heard me and called me back to the office... I reckon it was then he
shoved me down the stairs to be locked away in the dungeon. The screws loved to
push me down those steep narrow dungeon steps. They wanted me to take a fall,
but I don`t think I ever did.``

- Jeannie Hayes

 

'Girls living under the stone age system' 1936.

'Native girls living under civilised conditions' 1936

Photographs: ‘Girls living under the stone age system’ and
‘Native girls living under civilised conditions’, Photographs of
Australian Aborigines, Australian Aborigines Friends’ Association,
1936.
Photograph courtesy of Ivan Copely.

 

2007

Roach v AEC and Commonwealth of Australia [2007]

Vickie
Lee Roach, an Aboriginal woman from Wiradjuri country in NSW, serving time in
Victoria’s Dame Phyllis Frost Women’s prison, wins a High Court
challenge. She and the Human Rights Law Resource Centre in Victoria successfully
overturn legislation which banned prisoners serving a sentence of three years or
less from voting at elections. The High Court held the legislation was
unconstitutional.

“This year marks 10 years since the
Bringing them home report. Out of the seven siblings that were taken away from
my mother four of us were not return to my mother’s care, after the death
of my brother I was sent home but ran away after my mother started drinking
again. My other brother and sister have never been returned to my mother, they
are adults now and have families of their own- I was hoping that during the 10
years I would had made some contact with my siblings but this has not
happened.With the help of Bondi Mayor, who has offered a space at Bondi for a
Stolen Generation Memorial wall, my brothers and sister will be remembered in
2008 on 26th May, National Sorry Day. This has been my dream ever since my
brother was killed. Not only will he be remembered, but for all my Aboriginal
brothers and sisters who were never brought home.”

- Mary
Hooker

 

Mary’s will to survive

By Ellen McIntosh, The
Penrith Press, March 13, 2007

TORN from her family at eight, abused by
supposed protectors, labelled a delinquent and “borderline retarded”
- it could have been easy for Mary to yield to the stereotype. But she has spent
a lifetime fighting to prove the system wrong and seeking justice for herself
and other members of the “stolen generation” of Aboriginal
children.

Mary, 49, of Kingswood Park, has told her story publicly over
the internet and for the Warsaw Museum. She also testified at the Parliament
inquiry into the “stolen generation”, which adopted just one of the
54 recommendations from the Bring Them Home report - to encourage Aboriginal
people affected by the forcible removal policies to tell their
stories.

Mary said her Department of Community Services file stated her
IQ was ‘‘borderline retarded’’, but at age 40 she
enrolled in university. She now has childcare qualifications, nursing training
and last year graduated from Bible college, qualified for the Indigenous
ministry.

She has been married for 22 years and has two adult children
and two grandchildren. ‘‘I didn’t want to be like my brothers
and sisters, using [the abuse] as an excuse and a crutch,’’ Mary
said. ‘‘I was determined to fight the system and prove that I
wasn’t useless.’’

One of Mary’s most rewarding
achievements will be the unveiling of a memorial at Bondi on May 26, the 10th
anniversary of national Sorry Day.

It will mark the death of her younger
brother Tommy and other Aboriginal children who have died in care.

Mary
said Tommy died in 1975 after falling from a train during a trip home to Taree
for holidays. He and four other state wards were insufficiently unsupervised,
she said.

Mary was eight when she was removed from her parents and the
Aboriginal reserve on which they lived near Taree. She said eight of her 10
siblings were removed during the years, separated and trained to be housekeepers
and nursemaids to white people.

Mary was sent to Mittagong but ran away,
classified a delinquent and sent to Parramatta Girls Home. She said unruly girls
were taken to ‘‘the dungeon’’, blocked off tunnels
leading to the neighbouring psychiatric
centre.

‘‘That’s when the men would come to bash us
and rape us,’’ Mary said. ‘‘We were told not to tell
anybody because nobody would believe us and that they were our parents and they
could do anything they liked to us.’’

In 2004 Mary saw
‘‘the dungeon’’ again at a reunion and the memories
flooded back. She said one by one, scores of other women admitted they too had
been abused there. Mary said she was next sent to be a governess at Vaucluse,
and then to Reiby Training School at Campbelltown after she ran away
again.

Meanwhile, the abuse continued, she said. ‘‘When I
was 18, I was given a letter by the department and told I was no longer a ward
of the state. That was it.’’

Mary continues to fight to
have the offenders charged by police: ‘‘They need to be accountable
to me: I want to know why. ‘‘I was taken off my parents for neglect,
but they did far worse – my parents never bashed or raped
me.’’ Mary said she was also suing the Department of Community
Services, although a department spokeswoman said she had not served any court
proceedings on the department.

She had made some claims against the
department ‘‘which, on the basis of the information supplied, cannot
be substantiated’’. While Community Services Minister Kay Patterson
officially apologised to Aboriginal people in June 2005, ‘‘no
information has been supplied by [Mary] that would establish that she is a
member of the ‘stolen generation’ or that this is the basis of any
claims’’, the spokeswoman said.

Article reproduced courtesy
of the Penrith Press
(www.penrithpress.com.au).