Burnside, Julian --- "Stolen Generation: Time For a Change" [2007] AltLawJl 20; (2007) 32(3) Alternative Law Journal 131

Stolen Generation: Time for a Change

On 1 August, 2007 Bruce Trevorrow won a verdict of $525 000 in the Supreme Court of South Australia. Justice Tom Gray found that Bruce had been taken from his parents unlawfully at the age of 13 months, and that he had been fostered out to a white family without any proper precautions and without any legal right.

The case was a landmark: it is the first case in Australia in which a member of the ‘stolen generation’ has been successful in suing the Government.

At the heart of the judgment is a profoundly important finding of fact which will have implications across Australia. The State of South Australia contested every point in the case. Among other things, it argued that in the 1950s people could not have known that removing a child from their primary carer would be likely to cause harm to the child. A great deal of evidence was called in relation to that question. After hearing all the evidence, the Judge found as a fact that in the 1950s it was generally understood among psychiatrists and psychologists that removing children from their primary carer was likely to cause harm to the child. He found that scientific knowledge at the time indicated that removal of children should be done only as a last resort and even then with extreme care.

The importance of the finding is this: it is a finding about the state of scientific knowledge in Australia in the 1950s. It is a finding which does not depend on the individual circumstances of Bruce’s case. It is a finding which would almost certainly be made in other cases concerning the removal of children. What the finding means is that, from the 1950s to the present, governments which removed children from their parents knew they were doing something intrinsically harmful to the children. Commonsense tells us this, and so did science.

Justice Gray found that unless governments took great care they were very likely to inflict harm on innocent children. Unless the children were being saved from even greater harm, the governments were knowingly harming the children they removed.

This fact is as true whether the children taken were aboriginal or not.

Governments will protest and say that the removal of children was thought to be in their best interests. The benefit to the children was said to be that they would have a ‘better upbringing’ in a white family than in an aboriginal family. In retrospect, that attitude is embarrassing. The picture resolves to this: feelings of the inherent superiority of white people led governments to inflict harm knowingly on aboriginal children. They knew what they were doing was harmful, but went ahead anyway.

There can be no excuse for a government which harms children deliberately — even if it does so with the backing of misguided laws. The time has come for governments across the country to acknowledge they have harmed generations of aboriginal children, they knew removal was harmful, and that their reasons for the removals were wrong even if they were benevolent. It is time governments across the country set up compensation schemes which can quickly and efficiently deal with the just claims of children damaged by the State, who have grown up to be damaged adults ignored by the State. They hardly had a chance as children — give them a chance now.

JULIAN BURNSIDE QC is a Melbourne barrister, and President of Liberty Victoria

Editor’s note:

In 2000 the Public Interest Advocacy Centre made a detailed proposal to the Senate Committee of Inquiry into the Stolen Generations for the establishment of a reparations tribunal. The tribunal was proposed as an alternative to litigation, and to address the failure of governments and churches to fully implement the report of the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families.

The Senate Committee adopted the proposal in its recommendations, and PIAC then engaged a national consultation project, Moving Forward: achieving reparations. The project’s final report ‘Restoring Identity’ presented a revised reparations tribunal proposal in light of the extensive consultations. While some state and territory governments have implemented aspects of the tribunal proposal, the Federal Government has made it clear that it is opposed to a reparations tribunal. See further: <http://www.piac.asn.au/system/stolengen.html> .

On 28 September 2007 the Indigenous Law Centre is hosting a conference to mark the 10th anniversary of the ‘Bringing Them Home’ report, which will discuss in part the question of reparations: see <www.ilc.unsw.edu.au>.