The Unstolen Generations of Tasmania

The Stolen Generations is paraded as the consequence of racist laws applied for the systemic and forcible removal of Aborigines’ children to assimilate them between 1910 and 1970 into white society, the sinister goal said to be the destruction of their language and culture. The Human Rights Commission reviewed all states and in 1997’s Bringing Them Home report concluded every state had pursued that agenda. It should be noted that none of this was ever proven in a court of law and, when examined with specific regard to Tasmania, has no bearing whatsoever.

With the death of Truganina in 1876, the Tasmanian government considered there were no more Aborigines in the island state. Tasmania from 1876 until the 1970s didn’t have any ‘full blood’ Aborigines and no laws were created for Aborigines or their partial descendants — all the state laws applied equally to all people regardless of race or culture.  Fractional or partial-descent Aborigines enjoyed the same rights and liberties as all other residents.  Tasmania did not have a government agency for Aborigines because none was needed.

On this basis alone Tasmania can’t have a Stolen Generation of Aboriginals.

First, some history. In the early nineteenth century the Furneaux islands off the northeast coast of Tasmania became the most intensively exploited sealing ground in Bass Strait. A total of 29 islands in the Furneaux Group have been found to have some tangible link with sealing in the 19th century. European sealers resident on the islands abducted or bartered with Aboriginal elders for women who then lived with the sealers (there are accounts of both kidnapping and trade in women).  Those Aboriginal women came from Tasmania, South Australia and Victoria, and it appears even Maori women were involved. Needless to say, these actions were not sanctioned by the Tasmanian government. They would go on to form their own communities, led by the European men, that would evolve into a small, impoverished community of mixed-race people living on Cape Barren Island. They lived in houses, went to church, their children attended school, everyone spoke English and lived a European lifestyle, albeit a near-indigent one. They did not consider themselves Aborigines and referred to themselves as ‘Straitsmen’ or ‘Islanders’.  The Tasmanian government never considered them Aboriginal.

Despite their very distant and unclear Aboriginal descent, they became entitled to call themselves Aborigines as defined by federal legislation in the 1970s — this despite the last direct link to Aboriginal forebears being more than 130 years in the past. Some of the Straitsmen were necessarily removed from the community over 60 years (1910 to 1970) for their own welfare and survival.  This does not make a Stolen Generation.  Rather, it was the legal and necessary application of welfare laws.

There is no evidence in Bringing Them Home or elsewhere the government ever removed any Aboriginal child (partial-descent or otherwise) to ‘make them white’ or for any reason perceived to be racist. Indeed, there was no surviving “Aboriginal culture” in Tasmania, and partial-descent Aboriginal people very much participated in Tasmania’s Anglo- Christian and thoroughly Western culture. Whilst in Tasmania today there may be attempts to create or resurrect a perceived Aboriginal culture, no such thing existed nor was sought or re-created up until the Whitlam years of the 1970s.

The simple, incontrovertible fact is that less than 100 partial-descent children appear to have been taken into welfare between 1910 to 1970. In that same six-decade span, more some 13,000 children of non-Aboriginal descent were taken into welfare.

Tasmanians identifying as Aborigines are currently asserted to represent 5 per cent of the island’s population, which defies logic.  Clearly, the number of partial-descent children taken into welfare should have been much, much higher if that figure is genuine andcorrect.  A large proportion of welfare children normally come from poor and economically disadvantaged backgrounds which in Australia have disproportionately affected Aboriginal-descent families. But in the case of Tasmania things are significantly different.

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THE FABRICATION of a Stolen Generation in Tasmania was carried out by the Australian Human Rights Commission in Bringing Them Home in order, as some might see it, to inflate a faux narrative and add a burden of national shame.

The Tasmanian government made two submissions  — one interim, the other final — to the inquiry and both submissions clearly show there was no Stolen Generation. From the interim submission (emphasis added):

It is evident that a major reason for most of the separations was that the authorities of the time perceived that the child was neglected, in need, uncontrolled or guilty of an offence.

While there is no specific record of children being separated by the Government from their families specifically due to the fact that they had Aboriginal ancestry in the period from 1937 to 1970, there is mention of children being taken into care because of their circumstances … It is also evident that what was considered to be inadequate housing and living conditions led to the removal of some children

In the final submission the same core message is presented with greater concision:

Mainstream child welfare legislation, that provided for the separation of children in the post war period, applied to all members of the Tasmanian community. Children were taken into State care for reasons of neglect, because they were uncontrolled, in need of protection or guilty of an offence.

Both submissions clearly indicate no racist motivation whatsoever; indeed, what they do indicate is a caring attitude towards such as the Cape Barren Islanders by governments of both stripes. Yet, in 1997 and despite the Tasmanian government submissions, the Human Rights Commission still labelled Tasmania as a state complicit in the Stolen Generations!​

The Liberal government of Tasmania made an apology to the fabricated ‘stolen generation of Tasmania’ in 1997. Neither a Liberal nor Labor government has ever apologised to the thousands of welfare children of all races, known collectively as the “Forgotten Australians”, despite those citizens being taken into welfare for exactly the same reasons as any child of partial Aboriginal descent.

And to ensure this complete absurdity, the Labor government in 2006 made Tasmania the first state to introduce a reparations scheme — not because a child was stolen or illegally removed, not because a child was taken from kin and culture to “make them white” but because their health, welfare and futures were in jeopardy. The government paid over $58,333 to each child of mixed racial descent taken into welfare for a year or more in accordance with state laws and always under judicial oversight.  Those “reparations” were paid solely on the basis that some few partial-descent children were removed.  Another absurdity:  children removed for one year received the same payouts as those who spent 18 years in welfare.​

Tasmania’s Stolen Generation of Aboriginal Children Act 2006 (SGACA) permitted the making of a payment to a particular race but not to other races despite all enduring exactly the same circumstances. This was and is a blatant contravention of the Racial Discrimination Act 1975 (RDA), and all other Tasmanian children taken into welfare in the period should legally be entitled to claim more than $50,000 each. A collective claim or class action, were it to succeed, could result in what a back of the envelope calculation says might run to $200 million or more. If people  not defined as Aboriginal did not enjoy the right to reparations that were provided to Aboriginals – then the RDA, if it is to be taken seriously, requires that non-Aboriginals enjoy access to the same payouts.

Section 10 of the RDA states:

(1)  If, by reason of …. a law of a State, persons of a particular race, ….. do not enjoy a right that is enjoyed by persons of another race, ……. then, notwithstanding anything in that law, persons of the first-mentioned race ….  by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

As stated, 13,000 children were taken into welfare from 1910 to 1970  – the time covered by  SGACA — so it is entirely possible that, say, 4,000 people could still have been alive in 2006 and should have been entitled to over $50,000 per person.

Having researched this issue in a state of mounting disbelief I considered it worth raising the matter with the government agency responsible for the administration of the RDA, the Australian Human Rights Commission.

ON SEPTEMBER 17, 2021, I wrote to the AHRC  and made the complaint that the SGACA was a breach of the RDA. On September 24 I received a response stating that my complaint does not appear to be covered by the Commission’s complaint-handling powers and that I should refer the matter to the Tasmanian Ombudsman. On September 26, I wrote again to the AHRC stating why the compliant handling procedures were specifically applicable to the Australian Human Rights Commission Act and, in accordance with that Act, should be investigated.

On October 15 I received an email from the AHRC stating once again that they did not have the power to investigate my complaint — no explanation offered, by the way — and advising that my best course would be to seek legal advice.

On September 28, 2021, I wrote to the Office of the Tasmanian Ombudsman (TOO) to make the same complaint, that the SGACA was in contravention of the RDA. On October 5,  TOO advised that they were powerless to consider the complaint.  The Ombudsman’s role is to review the administrative actions of government departments, not the laws of the government. It was suggested that I write to Equal Opportunity Tasmania (EOT)

The EOT considers complaints with respect to Tasmania’s Anti-Discrimination Act 1998. I reviewed the Act and discovered that it allows discrimination where a person acts in accordance with a State of Commonwealth Law. Section 24 of the Act states:

1. 24. Actions required by law

A person may discriminate against another person if it is reasonably necessary to comply with –

(a) any law of this State or the Commonwealth; or

(b) any order of a commission, court or tribunal.

My next correspondence was with Department of Premier and Cabinet, to which I wrote on October 7.  I had received no response by November 21, so wrote again. The reply came five days later, this time from the Office of Aboriginal Affairs advising that the law had been properly constructed. I responded by asking “could you please indicate how the SGACA 2006 does not contravene Section 10 of the RDA.”  For my trouble, I was advised that they could assist me no further and, further, that the Attorney-General does not provide advice to the public.

On January 10, 2022, the DPC responded to my original email of the previous October 7 with the information that my correspondence had been forwarded to the Department of Justice. Completing the Kafkaesque circus, the advice was that, as the RDA is administered by the Commonwealth, my complaint

“is best directed to the Australian Human Rights Commission.”

I had come full circle and was back where I started. I next contacted Tasmanian Legal Aid only to be again informed that no assistance was available.

Next, I contacted two prominent law firms with  expertise in class actions and both stated they were unable to assist. Now this was profoundly strange to hear from a law firm: they would not act for me, even as a paying customer, to review or commence an action. Has anyone ever heard of lawyers declining paying customers? Is it possible this remarkable reluctance was due to a fear they might be drawn onto dangerous ground, perhaps even leading to the view in some quarters that the firms were “anti-Aboriginal”? I have no hard and fast explanation, though those suspicions were prominent in my thoughts.

Not yet defeated, I contacted a third law firm, and learnt they were interested and prepared to consider the case but that the review alone would cost as much as $40,000. It is important to note that such a case would be vigorously defended by the Tasmanian government, and if the decision were to go against the plaintiff the total of legal fees and costs would be astronomical. If, however, the case were to be brought before a court and succeed, it would prove:

1/ That there was no Stolen Generation in Tasmania;

2/ That there may exist people who meet the extended and absurd definition of “Aboriginal” for the purposes of the law. But, in reality, the race (in the correct use of the word) of Aboriginal people in Tasmania ended over 150 years ago;

3/ That people now choosing to identify under the definition of Aboriginal in Tasmania have enjoyed the same rights and privileges as all Tasmanians for over 150 years and the separate or special treatment of the definitional Aboriginal or people should not continue.

If there is any lawyer game to pursue this matter on a no-win/no-fee basis, please contact me – I have the details of seven people eager to join such a class action.

Further, I am prepared to cover all incidental expenses.

Robert Hill is a retired investment banker. His interests now lie in Australian history