A bit of judicial biffo goes on all the time as appeal courts rule on whether a trial judge got it right or wrong. A case in point is the High Court’s unanimous critique last year of two Victorian appeal judges who sent the innocent Cardinal Pell to prison. Such court language has a polite veneer. But do you ever wonder what judges really think? To find out go buy Nicholas Hasluck’s Bench and Book, (Arcadia, $44), published a month ago. It’s his two-year diary from 2000 when he became a WA Supreme Court judge. He reitred in 2010.
Barrister Nick, also novelist, memoirist and poet, took crimson while continuing as chair of the Literature Board of the Australia Council and finishing a Jacobean-era novel, Arbella’s Baby, writing as “Margaret Martin” in a post-modern identity twist.
Book and Bench publishes for the first time his private biffo with ex-High Court Judge Sir Ronald Wilson over the latter’s Bringing Them Home Report of 1997, source of the “stolen generations” story and alleging government-administered “genocide”.
Hasluck’s father, Paul, was Commonwealth Minister for Territories running Aboriginal policy and administration in the Northern Territory from 1951-63, and Governor-General 1969-74. Paul Hasluck, with his devotion to Aboriginal welfare, didn’t actually spend his time stealing part-Aboriginal kids from their wailing mother’s arms. Equally absurd is that Paul’s bureaucrats did the stealing behind his back; Paul was fanatical about portfolio detail.
Yet if Bringing Them Home were true, Paul had to be a genocidal monster. Paul’s son, Nick, was not having any of that.
The intra-judicial explosion detonated when Sir Ronald wrote effusively to Nick congratulating him on becoming a judge (their Perth homes were only 7km apart as the crow flies). Sir Ronald doubtless expected a grateful reply. But Nick was stewing over Sir Ronald’s telling the National Press Club in 1999 about NT ‘genocide’ in the Hasluck era. Nick blasted Ron; Ron lashed back. They banged heads to mutual exhaustion. And later, Ron admitted to Patrick Carlyon of The Bulletin (June 2001) that his ‘genocide’ claim was a crock (p258) – which hasn’t stopped the Australian wokerati spraying the term around regardless.
Drafting his Bench and Book, Nick overcame qualms about publishing the letters.
wrote to express the congratulations, pleasure and approval I feel in your appointment to the Bench…As you will understand, I have felt a real affinity with your fine leadership of the Equal Opportunity Tribunal over the past ten years and congratulate you on your work in that regard… (p105-8)
Nick fumed for several weeks. Then, on a quiet Saturday afternoon, between writing up two court judgements, “I realise that the time has come to send a candid response. I can’t prevaricate or postpone the unpleasant task any longer. I work away at it for a while and eventually settle upon a somewhat lengthy reply in these terms:
…I cannot pretend to agree with much of what you have had to say in recent years about the so-called ‘stolen generations’ issue, especially in regard to the Northern Territory in the post-war era. Accordingly, I feel that I would be lacking in moral courage if I simply responded to your letter with a bland, and thus insincere reply.
It is apparent from your Bringing Them Home report and your subsequent utterances that you will allow no merit or humanity to anyone involved in the administration of Aboriginal affairs prior to 1972. This, inevitably, brings with it a condemnation of my father, the late Sir Paul Hasluck. Indeed I saw you on television at the National Press Club saying, unequivocally, to a vast viewing audience, that ‘genocide’ was being perpetrated in the Northern Territory throughout the 1950s as a deliberate policy; that is to say, during the period my father was in office as Minister for Territories. And yet, it is also apparent from your report that no serious attempt was made by you or your colleagues to explain the policies of the day or to allow any of those involved to be heard in their own defence.
I regard this lack of due process as reprehensible and the meagre exposition in your report as a travesty. This makes the characterisation of my father as a genocidal murderer doubly offensive, especially when one remembers that Paul Hasluck’s call in his maiden speech in Parliament on March 14, 1950, for the rights of Aborigines to be respected was, to use Gough Whitlam’s words, ‘the most thorough speech ever to have been delivered in the national Parliament.’ Now, under your leadership, an insidious attempt is being made to demonise Paul Hasluck and many others like him.
Perhaps you will be inclined to respond to this with semantics, and seek to convince me that ‘genocide’ is being used in some special sense that doesn’t encompass a murderous intention to exterminate an entire race.
But that is not the way your followers see it. At Writers’ Week in Adelaide recently, Bob Ellis and many other speakers had no compunction in comparing the so-called ‘genocide’ in Australia to the use of gas chambers in Nazi Germany, and those responsible for the former as being in the same ring of hell as Hitler, Goering and Goebbels. Inflammatory comments of this kind are now de rigueur in Australian intellectual life, as I discovered again at a recent conference at the National Library in Canberra. This is the level to which debate in this country has now sunk as a direct consequence of your report…
Hasluck next criticised Wilson for
tarnishing the names and reputations of many people of an earlier generation – the patrol officers, the nurses, the teachers, the missionaries, the administrators – who laboured in good faith with limited resources to confer benefits on those who might otherwise, at that time, have been left without a future. I cannot see that defamations of this kind are a necessary or desirable part of ‘reconciliation’… it is a tragedy that as a consequence of your report so many Australians of goodwill now feel that this is a subject that is ‘out of bounds’ and can no longer be discussed.
Hasluck attached a letter he wrote to the Sydney Morning Herald on March 11, 1999, quoting Paul Hasluck himself on the NT that
an earnest effort was made to change Australian neglect and indifference towards Aborigines, to improve their conditions and raise their hopes for the future. We strove for full recognition of their entitlements – legally as citizens, socially as fellow Australians.
Wilson responded within three days that his inquiry had solicited evidence from all quarters and by ‘genocide’ he referred to cultural not physical destruction. He denied trying to demonise Paul Hasluck, and said the report’s finding of genocide was based on the states’ Protectors conference of 1937 aiming “to persuade all governments to adopt the policy of biological absorption of Aboriginal children of mixed descent into Western society” and eliminating the children’s cultural identity and traditions.
Wilson: The Report voices the changing motivation underlying the assimilation policies from biological absorption to what was thought to be best for the children. Unfortunately the stripping away of all traces of aboriginality was still thought to be in the best interest of the children, such was the insidious impact of the racist White Australia policy on this aspect of Australian life.
Sir Ronald ended by saying the Report’s “credibility is beyond question. I am truly sorry that it has occasioned you such distress and anger. Yours sincerely, Ron. PS Please do not feel obliged to respond to this letter.”
Within three days, Hasluck did indeed reply:
…To my mind, your Report’s failure to take account of contemporary sources of this kind [namely Paul Hasluck’s book Shades of Darkness] is inexplicable and justifies my earlier reference to the Report’s ‘meagre exposition’. (P111-12)
Hasluck complained that Wilson’s Report also ignored the PhD of Colin Tatz on NT administration in the 1950s, which has “not a single word about forcible removals, genocide or human rights abuses of any kind.”
Wilson replies, ending the exchange:
I sadly agree that we shall have to agree to disagree. I believe the gulf between us centres on our respective understandings of the breadth of the term ‘genocidal’. The Report acknowledges that removal may have been motivated by the belief that it was in the best interests of the children.
In a later glorious aside, Hasluck remarks (p139),
The credibility of the report is not assisted by the fact that its principal author, Sir Ronald Wilson, was a Senior Crown Prosecutor in WA for many years during the assimilation era, but failed to prosecute anyone for the crimes of the kind he now contends were taking place his home state during the period he was in office. Paradoxically, it seems that as a former Moderator of the Uniting Church and as a member of the governing board of Sister Kate’s hostel for part-Aboriginal children, Wilson was an active collaborator in the policies and practices he now condemns. 
In his lawyerly way, Hasluck quotes the High Court case – Kruger (1997) and Full Federal Court – Cubillo-Gunner (2001) , affirming that NT child policy was oriented to their welfare, not genocidal in any sense. Likewise the Wilson report itself says the final report of the Royal Commission on Aboriginal deaths in custody “contains the specific finding that child removal policies were adopted not for the purpose of exterminating people, but saving them.” (page 138)
Hasluck also had little time for “the sanctimonious Sir William Deane”, another one-time High Court judge (1982-95), who was Governor-General from 1996-01. At the 2001 Centenary celebrations, Deane was “managing to suggest, as usual, and very piously, that any members of the audience who are not ashamed of their nation’s past are clearly in need of Orwellian re-education.” (page 210)
Keep in mind that Bringing Them Home of 1997 suggested 100,000 or so “stolen” children, and Kevin Rudd in his 2008 Apology said “up to 50,000”. The alleged total is an elastic figure.
But try this: When Paul Hasluck became Territories Minister in 1952 he asked for a report on numbers of NT Indigenous children removed from camps and sent to hostels and schools in Darwin and Alice Springs. This pre-dated any “stolen” controversies. His officials told him that, from 1927 to the World War II, the incomplete records indicated 77 boys and 32 girls had left their families, all with the consent of the mothers. That’s under ten per year, from an NT Aboriginal population of around 17,000.
Nick Hasluck: The number since the War, where records were complete [to 1951], was 45 boys and 65 girls, much less than 1% of the Aboriginal [NT] population and less than 3 percent of the [NT] Aboriginal children of the period. Not exactly the picture of widespread removals now presented to the Australian public in the 21st century by activists with an axe to grind! (page 135).
Neither Paul nor Nick refer to whatever happened to part-Aboriginal children in other states, since Paul’s ministerial remit was solely the NT. The South Australian archives, for example, have now revealed that numbers of removed children in SA were even fewer than in the NT – averaging two to three per year from 1840-1940, including a SA government count of five per year from 1900-13, and that’s for all reasons.
Keith Windschuttle from his archival research for The Fabrication of Aboriginal History (Vol 111, p617) puts the national total of child removals from 1880 to 1970 at 8250 or 92 per year for all reasons, including orphaning, neglect, jeopardy and consensual transfers for fostering and education (those dominate the NSW data). Only one compensation court case has ever succeeded, involving a well-meaning but misguided Adelaide welfare officer who separated infant Bruce Trevorrow from his family in defiance of state policy against such removals. Trevorrow was awarded $775,000.
The late Professor Colin Tatz AO mentioned by Nick Hasluck spent the early 1960s in the NT doing his PhD thesis (1964) on Fifties era administration of NT Aboriginal policy. This is a crucial contemporary record. Tatz, previously a crusading South African lawyer, was well placed to note any malpractices (let alone genocidal tendencies). Nick read Tatz’s thesis in the ANU libary. He writes,
Tatz was given entry to every corner of the NT in the early 1960s. Whilst there … he interviewed some 300 people, officials and others active in Aboriginal welfare. His thesis mentions administrative shortcomings and even suggests that not enough was being done to implement the assimilation policy of the time – that is, a policy to ensure that Aboriginal people had the same entitlements as other Australians. Curiously, as I now confirm by a careful study of his text, there is no mention whatsoever of any problems concerning the ‘removal’ of part-Aboriginal children from their parents. How is it that Colin Tatz, a human rights campaigner, failed to protest, or even notice, the ‘genocide’ that was allegedly taking place at the time he was writing his thesis? Probably because, contrary to current [2000-01] propaganda, it wasn’t there to be noticed. Perhaps it simply wasn’t happening! (p73)  
Hasluck cites a 1959 book, Medicine Man by an NT medico, Dr F McCann, many years before the “stolen” controversy:
It establishes, contrary to [academic] Robert Manne’s contentions, that many ‘half-caste’ children (a term used in that era) were abandoned by their communities and were ‘rescued’ by removal to places such as the refuge in Alice Springs, the Bungalow , and the Retta Dixon Home in Darwin.” (page 257)
If Nick Hasluck was concerned in 2000 that the genocide myth was taking root in a “constant note of recrimination and hysteria”, he must be in despair today. Every schoolchild is now coached that Australian governments sponsored genocidal “stolen generation” policies. Only last week NSW’s $605,000 bureaucrat Jim “I got fired” Betts farewelled his Department of Planning, Industry and Environment (DPIE) in these terms:
I hope DPIE continues its journey towards genuine reconciliation with our First Nations people, acknowledging the reality of the genocide inflicted upon them … DPIE can make a difference by taking its own bold steps on the journey to Truth, Voice and Treaty. Maintain the rage.
Cue applause for Mr Betts. In today’s Australia, impeccable historical accounts, judicial findings to High Court level and plain common sense count for zilch in rebutting the genocidal child-stealing myth.
 The same could be said of WA Labor Premier (1953-59) Bert Hawke , uncle of advocate for Indigenes Bob Hawke.
 Carlyon wrote: “Wilson is sorry for that most shocking finding in Bringing them Home, the verdict that elevated Australian practices and policies to levels of evil associated with Hitler \
 Another Festival panellist was Bernard Schlink, a visiting writer on the Nazi Holocaust. He was heard to say, “What is happening in this country that people cannot tell the difference between taking children away to be educated and to the gas chambers?” p43
 Hasluck writes that the now-acknowledged flaws and exaggerations of the Bringing Them Home Report would not have been brought to light “unless Quadrant writers and people such as Reg Marsh, Ron Brunton and Michael Duffy had possessed the courage in an age of political correctness to separate fact from fiction.” P262
 Hasluck also finds it ironic that such Indigenous proponents of the genocide narrative as freedom-rider and bureaucrat Charles Perkins and Wilson Report protégé Mick Dodson were themselves advantaged by advancement measures including boarding and education scholarships. P140
 “The three judges on appeal agree with the trial Judge, Justice O’Louglin, that there was no general post-war policy in the NT to remove part-Aboriginal children. Rather, the personal circumstances and welfare needs of each child were considered… it certainly casts further doubt on the Bringing Them Home Report. (P279). Hasluck says of the original case,
“The (ABC) listener will surely be left with the impression that governments of 50 years ago were in the business of snatching babies and children simply for the malicious pleasure of doing so…I can’t imagine where it will all end, now that leading academics and malleable institutions like the ABC have thrown to the four winds any concern for truth or objectivity.” (p59).
I was not previously aware that the Federal Attorney-General’s Department was persuading the Liberal cabinet to fold and not defend the Cubillo-Gunner case. This Munich-like surrender was thwarted by several days of phone lobbying led by libertarian Ray Evans.(p143).
 He found a mere 11 people had accessed the thesis, none from the Bringing Them Home inquiry.
 Similarly, among the many injustices cited by the Aboriginal tent embassy outside federal Parliament in the 1970s, there was no mention of any stolen children. (Windschuttle, Fabrication, p34).
 Tatz authored “Australia’s Unthinkable Genocide” and the question-begging “Genocide in Australia: By Accident or Design?” (2011).