The Sydney Morning Herald [Print Edition] May 3, 1999 Hope for the Stolen Generation by Robert Manne THE law, I am pleased to report, is not always an ass. On Friday, Justice O’Loughlin of the Federal Court delivered his judgment on the Commonwealth’s application to "strike out” the civil action brought against it in Darwin by two members of the “stolen generations” – Lorna Cubillo and Peter Gunner. O’Loughlin ruled that the Commonwealth’s attempt to prevent the case from being heard had failed. He found that only two relatively minor matters raised in the writs must be struck out. He found, most importantly, that there exists a prima facie case against the Commonwealth concerning the four main claims of Cubillo and Gunner – wrongful imprisonment, breach of statutory duty, breach of fiduciary duty and breach of duty of care. It is obvious, even to a non-lawyer like myself, that there are a number of matters of real legal interest in the O’Loughlin judgment. One of the great questions placed before the Federal Court by the Commonwealth in its strike out application was whether the long delay in bringing on these actions had hopelessly prejudiced the Commonwealth’s capacity to mount an effective defence. In his judgment, O’Loughlin does not discount the seriousness of the “hardship” suffered by the Commonwealth in this regard. But he argues, as a matter of justice, that such hardship must be weighed in the balance against the hardship Cubillo and Gunner would suffer if their claims were not allowed to be heard. I am not sure what is the precise significance in law of O’Loughlin’s decision to allow this action to proceed despite the long delay. But I feel in my bones it ought to give thousands of members of the stolen generations great cause for hope. In the end, no-one could read this aspect of Friday’s judgment, without being impressed, above all else, by Justice O’Loughlin’s recognition of the moral significance of the case before him and of how fundamental to national self-understanding the issue of the stolen generations has become. The following are the judgment’s most important words: “I am satisfied that [Cubillo and Gunner] should be allowed to argue their respective causes. It seems to me, with respect, that these cases are of such importance - not only to the individual applicants and to the larger Aboriginal community, but also to the nation as a whole - that nothing short of a determination on the merits with respect to the competing issues of hardship is warranted.” For me at least, the significance of the O’Loughlin judgment goes well beyond questions of law. It raises serious new political questions about the manner in which the Commonwealth has defended itself against the Cubillo-Gunner claims. Two months ago, Douglas Meagher QC, delivered his opening address on behalf of the Commonwealth. It consisted of a long historical account of Aboriginal child removal in the Northern Territory. Meagher’s address was not only at points historically inaccurate. It also amounted - as I argued in an earlier column - to an unambiguous defence of the practice of Aboriginal child removal and of the wisdom of the assimilationist philosophy that underpinned it. The political significance of all this is clear. Meagher was not speaking personally. His client in this action was the Howard Government. After completing his opening address, Meagher turned to his attempt to persuade the Federal Court to strike out the Cubillo-Gunner case. In essence a case may be struck out only in the most extreme or clear-cut circumstances, if prospects are utterly hopeless or if the court judges the case to be “vexatious” or “frivolous” or an "abuse of process”. As O’Loughlin points out, justice has a decided bias. It is to allow those with a grievance to pursue it before a court of law. Given this, the decision of the Government to instruct its counsel to try to frustrate the attempt by Cubillo and Gunner even to present their case seems to me an astonishing one. It is even more astonishing if historical circumstances are taken into account. In 1997 a Keating Government-appointed commission of inquiry recommended that members of the stolen generations be granted some financial compensation. The Howard Government refused. It was at least in part as a consequence of this refusal that the common law action in Darwin went ahead. For many thousands of Aborigines it represents a kind of informal test case. Even if one concedes, for the sake of argument, that the Commonwealth now - as the representative of a parsimonious tax-paying citizenry - has a legitimate interest in fighting the Cubillo-Gunner claims, this does not mean that any kind of defence it might mount is thereby legitimate. For the Commonwealth in this action has a dual personality. It is no mere defendant at law. It is also the Government of Australia. Just as it was quite wrong for the Howard Government to allow its counsel to use the Federal Court as a forum to justify child removal, so was it wrong for it to allow its counsel to try to prevent the first civil action of the stolen generations against the Commonwealth from being heard. Imagine, if on Friday the Commonwealth had succeeded, that is to say if the Cubillo-Gunner action had been aborted. What effect did the Howard Government believe such an outcome would have on the Aboriginal people, on their faith in the system of justice? What effect did it think it would have on the millions of non-Aboriginal citizens for whom the question of Aboriginal child removal is a matter of bafflement and of shame? Governments do not rule on behalf of taxpayers alone. I find it hard to believe that any fair-minded Australian would want to deny Cubillo and Gunner their day in court. The question of how this country now deals with the surviving members of the stolen generations has become central to the process we call reconciliation. One group of advisers, within the Prime Minister’s Department, is working to advance the process of Aboriginal reconciliation. Another group of advisers, working on the Darwin trial, has developed a legal strategy potentially lethal to the reconciliation cause. Fortunately this legal strategy appears to have failed. In the case of the stolen generations it is not the law but the Government which has been behaving like an ass. Robert Manne is Associate Professor of Politics at La Trobe University. ------------------------------------------------------- RecOzNet2 has a page @ http://www.green.net.au/recoznet2 and is archived at http://www.mail-archive.com/ To unsubscribe from this list, mail [EMAIL PROTECTED], and in the body of the message, include the words: unsubscribe announce or click here mailto:[EMAIL PROTECTED]?Body=unsubscribe%20announce This posting is provided to the individual members of this group without permission from the copyright owner for purposes of criticism, comment, scholarship and research under the "fair use" provisions of the Federal copyright laws and it may not be distributed further without permission of the copyright owner, except for "fair use." RecOzNet2 is archived for members @ http://www.mail-archive.com/
