On Wednesday, Shine Lawyers launched a class action lawsuit against the Commonwealth government on behalf of 6000 part-aboriginal Australians who were placed in institutions before the Northern Territory achieved self-government.
The aboriginal plaintiffs are seeking damages from the Commonwealth on the basis that it owed the children and members of their family a duty of care and engaged in unlawful or false imprisonment.
The court documents filed by Shines assert the 'removal regime' was operated by a Commonwealth department. In other parts of the country, state governments were involved in the forcible removal of Indigenous children from their families, until as recently as the 1970s.
Shines are so confident of winning the class action that they have been able to persuade a litigation funder to support the litigation, so the plaintiffs will not be forced to bear any costs.
The lead plaintiff in the class action, Eileen Cummings, is the daughter of a Ngalakan woman and Rembarrnga man who was born in Central Arnhem Land. She was raised in a loving and happy home.
Court documents say Ms Cummings, now 77, was approached by a 'Native Affairs' patrol officer in late 1948 when she was just five years old and asked whether she wanted to go for a ride in his car. She did not speak English.
Ms Cummings is a relative of Barbara Cummings who was an instigator of an earlier ‘stolen generation’ case, Cubillo and Gunner v the Commonwealth. That case mirrors the current matter. Two children were placed in institutions, one in Alice Springs and the other in Darwin. They claimed they had been removed without their parents’ consent. The judge in the case found that there was no evidence that this was true. He went further and said there was no evidence that the federal government had a general policy of removal of part-aboriginal children from their families. This judgement was confirmed on appeal by the full bench of the federal court.
In the judgement by O’Loughlin J. there was a statement:
“...that 'at the relevant times, there was no general policy in force in the Northern Territory supporting the indiscriminate removal and detention of part-Aboriginal children, irrespective of the personal circumstances of each child.”
The issue for Shines is whether this is an irreversible statement of fact. If it is, then the current litigation is doomed. As legal scholar Julie Cassidy says in an article on the case in the Griffith Law Review in 2003:
“...the reality is that the decision deals an incredible blow to all members of the Stolen Generation. All such persons effectively cannot bring any action against the Commonwealth. In the absence of the High Court overruling the determination, including the finding that the Commonwealth government did not have a policy of removing part-Aboriginal children from their families, subsequent claims will effectively be barred.”
In the circumstances, it is cruel to hold out the hope to part-aboriginals in the Northern Territory, that they and their families are likely to receive compensation through litigation.
The Labor opposition has said that it is prepared to make ex gratia payments to children placed in institutions and it is possible the Coalition will adopt the same policy. This is the most likely way the claimants will receive a pay-out.
It would be morally repugnant if part of this money was siphoned off by lawyers and litigation funders.
Disclosure: the author’s father was Director of Welfare in the Northern Territory in the period immediately prior to self-government.
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