History Wars

The boy “stolen” from an ants’ nest

The Pocket Windschuttle: Why the Cubillo-Gunner Case was lost 

Tony Thomas: This essay tells of the origins of the important test cases in the Northern Territory in which two ‘stolen generation’ claimants sought and failed to win damages against the Commonwealth. It describes the crucial evidence which helped convince the judge that the claims lacked validity.

[Note: All page references are to The Fabrication of Aboriginal History – Volume Three: The Stolen Generations 1881-2008 by Keith Windschuttle (Macleay, 2009)] 

Barbara Cummins was a one-time inmate of the Retta Dixon Home in Darwin and a member of the advisory council of the Human Rights Commission (“Bringing Them Home”).

In 1994 she helped convene a Darwin conference of ‘stolen’ generations with 600 attendees. Melbourne barrister Ron Merkel, soon to be appointed by the Labor federal government a Federal Court judge, told them they had a similar case for compensation as German Jews after WWII. This bore fruit via 550 claims in Darwin by the ‘stolen’ against the Commonwealth.

Lawyers picked the claims of Lorna Cubillo and Peter Gunner as the best test cases to run, alleging wrongful imprisonment and negligence in duty of care. p518

Sorry, folks, but you’re now going to have to follow a bit of detail about these two cases.

Lorna Cubillo in 1947 was picked up with 15 other children from Phillip Creek Native Settlement and taken to Retta Dixon Home in Darwin.

Peter Gunner in 1956 was taken from Utopia Station by a patrol officer to St Mary’s Hostel, Alice Springs.

Via their lawyers, neither denied that the Native Affairs Branch had the legal power to do so, regardless of half-cast parents’ wishes. The issue was whether the Director had used his powers properly, in the interests of the children, or whether he was just rounding them up for racist reasons, regardless of their best interests. p518

The Director, Frank Moy, wrote a letter in 1951 to the Administrator F.J.S. Wise which went public at the time. It said, among other things:

  • Patrol offices are sometimes asked to remove certain half-caste children, after doing their best to persuade the mothers and tribal husbands of the benefit to the children of education compared with camp life. If the parents don’t like the idea, the officer goes away and returns later for another try at persuasion. Eventually, maybe even after two years, the parents agree.
  • This approach, Moy said, left no-one in distress, and improved confidence of Aborigines about the patrol officer. Some mothers had given up their half-caste children immediately and willingly. That year, 1951, one mother had even made a trip to Darwin to ask that her two children be admitted to local institutions.
  • “All mothers are given the opportunity of accompanying their children to Darwin or Alice Springs…In this way they get some insight into the conditions and surroundings of the future life of their offspring, and they invariably return to their country satisfied.” p519

Justice Maurice O’Loughlin then had to decide, given that Moy was dead, if this letter was honest or pious hypocrisy to mask racism. He noted that the then Minister for Territories, Paul Hasluck, had written in 1951 that half-castes would be better off being boarded out for education, rather than staying in camps where they were not accepted by tribespeople.

The judge tested the issue by checking just how many NT half-castes were removed in 1949 and 1950, i.e. was this a mass racist removal? Answer: in two years, only 42 removals. Of those, 12 were at parents’ request, and two were neglected children. p520

The Judge rejected the ‘racist roundup’ theory. In any event, he said, there was simply not any NT infrastructure (institutions, patrol officers, funding) to enable big roundups.

It was important to know what was in the minds of the patrol and welfare officers as they did their job of half-caste removals. Some of them offered evidence to the Bringing Them Home inquiry: that inquiry declined to call them as witnesses. p521

But Judge O’Loughlin did call them and did examine their views. Their evidence and archives largely decided the case, Windschuttle says. p521

Colin Macleod, patrol officer, said of his 1955 to 1958 work:

“Never, however, were children taken from their families with a mother and a father. They were always {his emphasis) from very young and unprotected single mothers, often young girls between 10 and 13 with no family member to properly care for them.

On the occasions that I recommended the removal of children from their families, it appeared the alternatives were pretty shocking.” p521

The Judge found that the calibre, education and intelligence of these young officers were ‘exceptionally high’, and ‘all of them denied the existence of a general or widespread policy of removal of part-Aboriginal children and most of them insisted that no child was removed without the consent of the mother of that child.’ p522

“Stolen Generation”: huh?

The former Assistant Director of Welfare, Ted Milliken, rejected that in his time from 1955 there was either a general removal policy or that removed children were isolated from their Aboriginal parents or prevented from going home during holidays. Or prevented visits from families. p523

Another patrol officer, Harry Kitching (1953-60) said he had never heard of a child being removed forcibly or without consent of the mother. He had only twice recommended removal of a half-caste.

Another official said that in 30 years, he had never been involved in a half-caste child’s removal, but was aware there was such a practice, as common knowledge. Patrol officers viewed it as a most detested part of their duties. p524

From 1957, patrol officers had to get tangible evidence, e.g. a thumb-print, of a mother’s consent. From 1957, according to a welfare officer, no child came in except by request of the mother.

The applicant Peter Gunner’s mother Topsy had provided such a thumb-print.

The removal documents about the applicant Cubillo were lost. p525.

But Windschuttle says that the accumulated evidence of the patrol officers was decisive. 

The half-caste as outcast 

Lawyers for Cubillo and Gunner claimed it was a myth that half-castes in camps were also outcasts. The Judge disagreed.

Two patrol officers provided the following cases:

“You’d find one of these kids running around a camp. Then you’d find out where the mother was – and she’s probably got broken arms, broken fingers, she’s been mutilated for having this half-caste kid – who in certain cases was belted as well.” – Les Penhall, 1946-55.

“Half-caste kids would now and again turn up at missions with spear marks and signs of horrific beatings. Babies were occasionally abandoned and young children left to fend for themselves. ‘Yella fellers’ could find themselves in a no-man’s land and a no-win situation.” – Colin Macleod, 1955-58.

But the applicants’ case really collapsed when applicant Peter Gunner accepted that his mother Topsy Kundrilba had put him on an anthill to die. p526

This item arrived via an affidavit by Dora McLeod, co-owner of the lease on Utopia Station in central Australia, where Topsy gave birth to Peter.

Topsy was then a house-girl at the station. Dora McLeod wrote:

“I didn’t see the baby after Topsy gave birth. I was quite shocked when she turned up to start work at the house one morning and had obviously given birth since the previous day. I said, ‘Which way picanniney?’ Topsy definitely understood what I meant – what happened with the baby, where is it? She just giggled at me as she always did when I asked her a question. When I asked her again she told me the baby had gone, that it had been put down a rabbit burrow. I understood this to mean that the baby had been killed…I was quite shocked but I considered it was tribal business, their way of life and I never interfered in those things.”p527

Strangely, Peter Gunner had been interviewed by a social worker Eileen Mosely long before this court case. Mosely had tape-recorded it and this recording was provided to the judge. Peter said his mother

“wanted to kill me. She wanted to let the ants eat us alive and apparently my mother’s sister was the one that went back and got me from the ants’ nest and kept me and grew me up.” p527

Mrs McLeod explained why Topsy wanted to kill her baby Peter. She was a half-caste and outcast in the camp, with no husband, no help, and living wholly off rations.

Peter thereafter became shockingly neglected in the camp and ill, almost starving. Only Flying Doctor aid saved him. Finally Topsy agreed for Peter to be admitted to a hostel at Alice Springs. p528

There was further evidence about killings of half-caste babies. One part-Aboriginal woman Rosalind Kunoth-Monks, who grew up on Utopia Station, was interviewed in 1994 and said,

Up this way, if they had half-castes, they killed them…The children killed were from white men passing through, abusing an Aboriginal woman for one-night stands or for two-night stands…Grandmothers stepped on (the babies’) chests and smothered them, crushed their chests. p529

Patrol officer Les Penhall in 1994 told of half-caste girls how,

Once they reached the age of puberty the man or the consort (could) sell that girl to anyone in the camp – she became an economic asset..exchanged in the earliest days for tins of jam, a few sticks of tobacco, and later for bags of sugar and a bit of money. p530

Colin Macleod, in his book Patrol in the Dreamtime, wrote:

“Young part-coloured girls became playthings of the outback, to be used and swapped like currency. At the drovers’ camps I sometimes caught a glimpse of these girls, who were hidden away when our curiosity became obvious…’Yella fella’ girls were talked of as ‘studs’, so that a girl might even be known as ‘Old Jack Riley’s stud’, for instance. Who would ever know they existed, let alone how they were treated, or what happened to their babies? There were many successful cases of part-coloured girls being removed for their own protection by the welfare authorities of the time.” p530

Let us know quickly deal with the applicant Lorna Cubillo’s case.

In 1947 she was in the Aboriginal camp at Phillip Creek, managed by missionaries. She was 8. In July a truck came and took 16 of the children and put them into Retta Dixon home in Darwin, three days’ drive distant.

Her mother had died when she was a baby. She never knew her white father, and was cared for by her grandmother until she too died. Then a woman called Maisie looked after her. Lorna was not destitute or neglected at the time the truck came. p531

There was sad evidence from Eileen Napanangka, a daughter of Maisie at the camp at the time. She and Maisie were both crying, as were all the mothers and children. Maisie suffered deep emotional hurt. p531

But the Judge found there was not enough evidence to find for Lorna, given faded memories and lost documents. Maisie might have consented to removal. Frank Moy the Director, might have had Lorna’s best interest at heart. There was also evidence that although the adult women were distressed, they were also appreciative of the children being given a chance for good education. p532

I would end by noting that of 550 potential ‘stolen generation’ claims in the NT, the Gunner and Cubillo claims were selected by their lawyers as the best ones to pursue. They both failed. Peter Gunner was certainly lucky to be ‘stolen’ from the ant-heap. 

Read The Pocket Windschuttle by Tony Thomas here…  

Buy The Fabrication of Aboriginal History – Volume Three: The Stolen Generations 1881-2008 here…

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