Still Not The ‘Stolen’ Generation

Justice Janine Pritchard in WA’s Supreme Court last week dismissed a potential landmark case for compensation by nine “stolen generation” claimants. They are Donald Collard, 80, and his wife Sylvia, 81, of the wheatbelt town of Kondinin, and seven of their children. They claimed that nine of their 14 children had been  wrongly taken away by the authorities between 1958 and 1961, and split among foster carers and Sister Kate’s Home.

The couple sought damages, exemplary damages, aggravated damages, compensation and costs for themselves and the children. The media have reported it as a ‘multi-million’ claim. The state Government defended the case, described as the first “stolen generations” damages lawsuit in WA, arguing that “it was the right thing to remove the children.” A win by the Collards could have set a precedent for thousands more “stolen” claims.

The 1997 Bringing Them Home report claimed there were 100,000 “stolen generation” cases. Ex-Prime Minister Kevin Rudd, in his formal 2008 apology, dropped the number without explanation to a maximum of 50,000. Bringing Them Home accepted all Aboriginal “stolen” complaints at face value, and published without comment such improbable accounts as this from ‘Jennifer’:

“Cootamundra [Home, NSW] in those days was very strict and cruel…Mum remembered once a girl who did not move too quick. She was tied to the old bell post and belted continuously. She died that night, still tied to the post, no girl ever knew what happened to the body or where she was buried.”

On the face of such and similar claims and accusations, “stolen” members have had an excellent legal case for compensation, not to mention a plethora of pro-bono or government funded lawyers willing to run their cases. A score of cases have been taken to state Supreme courts, the Federal courts and High Court. All but one failed. Some claimants have obtained modest compensation in other jurisdictions for  wrongs suffered after removal, but not for the removal per se.

The WA government, for example, ran a compensation scheme, Redress WA, from 2008-2011 offering ex-gratia payments to people – white and black – abused or neglected while children in state care. About half the claimants said they were stolen generation members. The total of 5200 payouts ranged from $5000 to a maximum $45,000, averaging $23,000. This level contrasts with the Collards’ higher hopes for damages.

The Collard case, involving child removals half a century ago, comes against a backdrop of mind-boggling rates of removal of Aboriginal children today, with official forecasts that  the rate is accelerating. For example, Victoria’s new Commissioner for Aboriginal Children and Young People, Andrew Jackomos, says his state may soon have another “stolen generation”, with    almost 10% of indigenous Victorian children removed from their families — at least temporarily — between 2011 and 2012. [In NSW rate, the 2011-12 rate for Aboriginal out-of-home care was one in 12]. Jackomos’  submission to the State government says:

“At current levels, the rate of Aboriginal child removal in Victoria exceeds levels seen at any time since white settlement… Ten out of 13 young women, who had been sexually assaulted when in the care of their families were subsequently raped or sexually abused by co-residents or sexually exploited by external parties.”

He told the ABC last week, “I must admit I’m shell-shocked from what I’m learning here.” Nationally,  one in 18 Aboriginal children is in care after neglect or abuse, ten times the non-indigenous rate.[i]

Justice Pritchard 44, is no easy target for those objecting to her dismissal of the Collard case, as she has a good feminist pedigree in addition, of course, to her judicial expertise. She holds a graduate diploma in Women’s Studies from Murdoch University, was a board member of Australian Women Lawyers and has been lauded for relating to “the marginalised”. If she has a weakness, it is for “high heels in a variety of colors”.

Justice Pritchard said while she felt for the family, its case had not been established:

“I am conscious that it is difficult for a third party to comprehend the enormity of the emotional pain and heartache experienced by all of the plaintiffs as a result of the children being made wards and living apart from their family for so many years.

Having said that, it is impossible not to be deeply moved by the plaintiffs’ experiences, and one cannot help but admire their efforts to rebuild and maintain their family relationships.

The application of the applicable legal principles to the facts established on the balance of probabilities by the evidence leads to the conclusion that the state was not, and is not, subject to the fiduciary duties alleged by the plaintiffs.

Even if the state was subject to those duties, the plaintiffs did not establish that the state breached those duties, other than in relation to a decision which was made in November 1959 not to return Ellen to Don and Sylvia’s care.

Furthermore, the plaintiffs have no right of action against the state because they did not comply with the requirements of the Crown Suits Act.”

Media accounts of the trial-in-progress, which began last February, are sketchy and mixed with comments by the Collards and supporters outside court. Its inception was on Sorry Day (May 26) in 2010, when Lavan Legal, pro bono, lodged a writ. The 410-page judgment is now available online.

Two of the nine removed Collard children died in car accidents. The seven remaining are Glenys Collard, Wesley Collard, Darryl Collards, Ellen Thomas, Eva Jetta, Beverley Humphries and Bonnie Miller.

The Collard parents’ account is that they were living in a bush camp and working as shearers when they took their five-month-old daughter, Ellen, to hospital. When they returned to collect the baby they were told she’d ‘gone’. They went into shock and were then told Ellen had been fostered out to a white family in Perth. In 1961 a welfare worker or missionary lady and policeman visited the Collard camp and took eight of their children to board at Sister Kate’s. The parents consented, fearing that if they objected, they would be jailed. One of the daughters, Glenys, then 3, said she suffered years of sexual abuse, largely from white volunteers who took her on weekend leave. The siblings at Sister Kate’s  became split up among foster carers. All were psychologically damaged, although they had sporadic contact with their parents. Glenys has on-going physical and mental health issues she attributes to multiple rapes while in care.

Glenys said, “It shouldn’t have happened because we had Mum and Dad, we had Nans and Pops, we had aunties and uncles all around us. We weren’t neglected until we went to Sister Kate’s.” By contrast, Ellen says she grew up in a loving home, not even realizing she was Aboriginal until she was 14 years old. She later re-united with her parents.

The Crown defence, as put by Rob Mitchell, Senior Counsel for the State, was partly based on archived official documents about the Collard family. He said removal of the children, who were living in squalor and neglect, was justified on welfare grounds. It was not racism, as claimed by the Collards.

Mr Collard’s employment as a shearer and a farmhand brought him wages that were above average for the time in WA, Mitchell said. But living in a humpy, Mr Collard had no accommodation or power costs, and evidence suggested he was spending his money on alcohol. The humpy in 1958 had only two rooms and two unclean beds for the parents and six children. Collard had more than a dozen convictions for drinking and other offences dating to the 1950s. He often belted his wife when drunk, Mitchell alleged.

Collard disputed that he  had been a heavy drinker  or that he had been at times in a drunken stupor or paralytic. He had hit his wife eight or ten times, but this was a reaction  to his distressed state, he said. His earnings went on family food and clothes, not alcohol. He said the humpy was on Sylvia’s mother’s property near an Aboriginal reserve and the family used the toilets and washrooms there. They only lived there six months. The humpy  was of tin and lined with hessian, with a floor of wooden boards and dirt; a stove was inside and a fireplace outside: “Our kids were always clean and loved and were never neglected and we shared our lives with them.”

The Collard case has points of comparison and contrast with the earlier major cases. In the Northern Territory, “stolen generation” claims backfired in a spectacular way when they were dismissed in court in 2000. Lawyers for claimants had 550 cases to choose from, and decided their best chance was with claims by Peter Gunner and Lorna Cubillo.

It turned out that Peter Gunner’s mother, Topsy, had put the new-born Peter down a rabbit burrow near the Utopia Station homestead. His aunt however pulled him out, before he could be eaten alive by ants. This fate had been Topsy’s intention for her infant. Topsy was herself a half-caste and therefore an outcast from the camp. Peter was raised there by his aunt, but became so ill and half-starved that only a Flying Doctor visit saved him. Finally, Topsy agreed that Peter could go to a hostel at Alice Springs.

Patrol officers testified to Justice Maurice O’Loughlin that mothers of half-castes would be brutally bashed in the camp and sometimes the infants were as well. Half-caste kids would turn up at missions with spear-marks and other wounds. Half-caste babies were often killed by their grandmothers standing on them, crushing their chests. Half-caste girls who reached puberty would be bartered as sexual playthings. If discovered by patrol officers, the girls could be removed for their own protection.

Lorna Cubillo’s claim was also rejected in court. Her mother died soon after Lorna’s birth, and she was cared for by a grandmother, who then also died. A woman called Maisie took over Lorna’s upbringing. In July, 1947, a truck came and took Lorna, aged 8, and 15 other children to the Retta Dixon Home in Darwin. The judge found that key documents had been lost, but  acknowledged Maisie may have consented and that authorities may have had Lorna’s best interest at heart. Although the camp women were distressed at the removal, they were also appreciative of the children being given the chance for a good education.

The Bringing Them Home inquiry had declined NT patrol officers’ requests to give evidence, later testifying in another judicial forum that removals were a last resort, particularly to save half-caste girls from sexual predators. Policy was to make strenuous efforts to obtain the mother’s willing consent. Mothers could accompany their children to the institution. Parents were free to visit and children could return to them during holidays. In any event, in the two years 1949 and 1950,  only 42 NT children in total were removed, including 12 at their parents’ request, with two others deemed neglected.

The only successful “stolen generations” claimant has been Bruce Trevorrow in the SA Supreme Court. He was “stolen” in early 1958, when 13 months old, by a well-meaning but misguided Aboriginal Welfare Officer called Marjory Angas, who secretly put him out to a white couple for adoption in the incorrect belief the baby’s health would suffer if returned to its parents. Trevorrow won $775,000 damages in 2007-08. Far from validating the “stolen generation” thesis, the Trevorrow case proved the opposite, that there was no policy to remove half-caste children. In SA welfare cases, Aboriginal parents had the right to refuse removal, unless over-ruled by a court. After removals, there was no policy to cut children off from their Aboriginal heritage. “Stealing” Aboriginal children had been legally impossible since an Act of 1911.

Tony Thomas is author of  “Stolen Generations: The Pocket Windschuttle.” Macleay Press, Sydney 2010. He blogs at tthomas061.wordpress.com