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Howard’s End: Stolen Generation Decision Outrages

As members of the human race all New Zealanders should be outraged with last week’s adverse decision of Australian Federal Court Judge Maurice O'Loughlin in the aboriginal stolen generation case. I believe the judge was wrong. John Howard writes.

Aborigines, Peter Gunner, 53, and fellow claimant Lorna Cubillo, 62, had sought compensation in a Darwin Federal court for being removed from their parents by Commonwealth officers nearly half a century ago, and for then being harshly treated.

In refusing Peter Gunner's application it all came down to the thumbprint of his mother which had been stamped on a document she couldn't read or understand.

The judge said the thumbprint proved Mr Gunner's mother - now long dead - had given permission for his removal and wanted him to be given a western education. In other words, it was a voluntary act.

No matter, it seems, that she couldn't write, read or understand the English language. In that respect, I believe the judge acted unreasonably and outside the rules of natural justice when making his decision.

The litigants also argued that government officers acted beyond the laws of the time by not taking due care and by acting from a racist desire to assimilate aboriginal children into white society.

The judge said that there was no evidence the removal of Mr Gunner or Mrs Cubillo was contrary to legislation.

Just a minute!

Australia, like New Zealand, still has some ancient human rights law on its books which in our case was again enacted by our Parliament as recently as 1988.

One is Chapter 29 of Magna Carta (1297) and the other is the statute 28 of Edward III (1354).

At the time of the white settlement of both countries these laws were, and still are, relevant and in force. The applicants were entitled to rely on them and the judge should have taken judicial notice of them.

Part of Chapter 29 of Magna Carta says "We will sell to no man, we will not deny or defer to any man either justice or right."

Perhaps of even more relevance in this case is Edward III (1354).

"Item, than no man of what estate or condition that he be, shall be put out of land or tenement, nor be taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law."

Both children were "taken" by an act of the government where there was no "due process of law" and the mother's were "denied justice or right" because they could neither write, read or understand the English language.

That is not the basis of a voluntary act - at the very least it was duress and coercion on the part of the Australian government at the time.

In my view, the judge now, has perpetuated an injustice and, furthermore, he is absolutely and totally wrong in his interpretation and of his application of the law.

The personal circumstances of both Mr Gunner and Mrs Cubillo are horrific and were not disputed in Court.

When aged about seven, Mr Gunner was taken from Utopia station outside Alice Springs and put in a white institution where he was flogged and sexually abused.

The judge also accepted Mrs Cubillo was viciously assaulted by a missionary and starved for affection at the Retta Dixon Home for Children in Darwin.

In Mrs Cubillo's case the judge said there was simply no documentation to prove any wrongdoing by any government officer and that she had not proved her case.

Not good enough judge.

The couple's legal representative, Michael Schaeffer, said an appeal would be considered.

In a kind of recognition that there just might be an appeal of his findings, Justice O'Loughlin calculated compensation in case an appeal succeeds.

Allowing for "the trauma of being forcibly removed from their families and communities," he set Mrs Cubillo's notional damages at $A126,800 and Mr Gunner's at $A 144,100.

What Justice Maurice O'Loughlin has done in my view, is to take the easy way out. He has simply kicked the matter up-stairs to the full Federal Court on appeal.

One can only imagine the heartbreak and trauma that this couple are now going through - not to say the expense of an appeal.

That renowned English judge, Lord Denning, would be turning in his grave. He was well known for searching high and low for case law to "find justice."

The decision of O'Loughlin in Darwin last week, was not just or justice - is was an abdication of judicial duty and responsibility - and we should all be outraged.

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