THE AGE A colorblind judgment By ROBERT MANNE Monday 14 August 2000 No one could read the lengthy judgment delivered on Friday against two members of the stolen generations, Lorna Cubillo and Peter Gunner, without becoming aware of how distressing Justice O'Loughlin found the stories he came across in his court. O'Loughlin accepts that Lorna Cubillo, once a happy young Aboriginal girl, has never recovered from the shock she experienced when she was separated from her family and trucked from Phillip Creek to Darwin in 1947. He finds that as Lorna and the 15 other "half-caste" children departed, a terrible grief gripped their camp; that the mothers howled and beat their heads with sticks until blood was drawn. He regards it as almost certain that these children were removed without their mothers' consent. Justice O'Loughlin accepts that Lorna lived at the fundamentalist Christian Retta Dixon Home in a state of misery, isolated and starved of human warmth. He knows that here she lost forever her language and her culture. He finds that at Retta Dixon one of the male missionaries beat her so savagely that her face was scarred and a nipple almost torn off. He is convinced that her profound current mental suffering is rooted in this traumatic past. And yet because, according to Article 6 of the Northern Territory's Aboriginal Ordinance, the Director of Native Affairs was permitted to take Aboriginal children into custody if he believed this to be in the best interests of the child, and because of the near-complete absence of documentary evidence concerning the Phillip Creek removals, in the judgment of Justice O'Loughlin, Lorna Cubillo's action must fail. O'Loughlin heard, too, about the circumstances surrounding the removal of Peter Gunner from Utopia Station to St Mary's "half-caste" home in Alice Springs in 1956. Counsel for the Commonwealth brought evidence that when Peter was born his mother left him in a rabbit hole to die. O'Loughlin rejects this claim. More importantly, he finds that at the time of his removal, Peter was healthy and happy, living a traditional life, not neglected, not in need of care. Justice O'Loughlin finds it most likely that Peter Gunner was taken by a patrol officer to Alice Springs by force, although only after his mother had given her consent. She was promised her son would return for holidays each year. This promise was never fulfilled. At St Mary's corporal punishments were brutal. The physical conditions were, as O'Loughlin finds, a real disgrace. An archdeacon responsible for the home during Peter's detention described it as a "stinking slum". O'Loughlin accepts that while at St Mary's Peter scoured the rubbish tip for food. He accepts that he was the victim of sexual assault. And that Gunner's chronic state of depression is a direct consequence of his removal and detention. A psychiatrist who saw him said that he had never encountered such a "defeated man". O'Loughlin cannot but agree. And yet - because Peter's mother had consented to his removal and because in his case documentary evidence exists that shows that the Director of Native Affairs took, however mistakenly, his individual circumstances into account - Justice O'Loughlin has ruled that Peter Gunner's action against the Commonwealth must also fail. As O'Loughlin knows, in the Cubillo-Gunner case, the gulf that separates what justice requires and what the law has delivered is nightmarishly wide indeed. As I am not a lawyer, I cannot assess the legal reasoning that has led to this result. I can, however, make an assessment of certain historical arguments on which O'Loughlin's judgment is founded, at least in part. During the course of the trial, counsel for Cubillo and Gunner argued that between 1911 and the early 1950s there existed, in the Northern Territory, a "general" government policy concerning the removal to institutions of "half- caste" children, which did not take the interests of the individual child into account. O'Loughlin disagrees. In my opinion his reasoning is at fault. On some occasions, in his judgment, O'Loughlin confuses the idea of "general" policy with the idea of a "blanket" policy. In fact a general policy and a blanket policy - to which there can be no exceptions - are very different things. On other occasions he suggests that a failure to implement a general policy comprehensively is evidence that such a policy does not exist. This is not so. On yet other occasions O'Loughlin contradicts himself by accepting that, at least in a restricted sense, a general policy - to "collect" all "half-caste" children born of tribal mothers and European fathers - did indeed exist. I am convinced that in the Northern Territory, before the intervention of Paul Hasluck in 1951, this was precisely the "general" policy regarding the removal of "half-caste" children that was for 40 years in force. My disagreement with the historical dimension of the O'Loughlin judgment goes deeper still. O'Loughlin argues that throughout the relevant period "half-caste" children were not removed on racial but welfarist grounds, that is to say with mistaken but nevertheless sincere concern for the "best interests of the child". In my opinion O'Loughlin's belief that there exists a clear-cut distinction between racist and welfarist thinking in the removal of "half-caste" children is founded on a conceptual confusion of a quite fundamental kind. Throughout the history of child removal in the Territory "half- castes" were, in general, removed systematically from the Aboriginal camps not because of any evidence that they were neglected but because it was believed to be in the best interest of these part-European children that they should be "rescued" from their Aboriginality, that is to say from the degraded Aboriginal way of life. Justice O'Loughlin is, in his judgment, blind to the racist assumptions which conditioned what, for 40 years, the administrators regarded as being, self-evidently, in the best interests of the child. His summary of the evidence brought before him in this case is genuinely superb and humane. However, his understanding of the racist mentality that underpinned the decisions made in this case is, in my view, fatally flawed. Robert Manne is researching the history of the stolen generation. 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