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G4EBT > STOLEN 04.12.07 16:43l 230 Lines 10261 Bytes #999 (0) @ WW
BID : AC7245G4EBT
Read: DG1VV GUEST
Subj: Landmark Court case in Oz
Path: DB0FHN<DB0MRW<DK0WUE<GB7FCR
Sent: 071204/1431Z @:GB7FCR.#16.GBR.EU #:53482 [Blackpool] FBB-7.03a $:AC7245G4
From: G4EBT@GB7FCR.#16.GBR.EU
To : STOLEN@WW
First, a recap on the forcible removal of Aboriginal children from their
parents, then a landmark legal case, based upon what is known as the
"fiduciary duty" which falls upon those (such as the Oz Government)
who take on the role of legal guardianship.
Background the policy of forcible removal of children:
However well-intended it might have been by the misguided thinking and
standards of the day, this policy has since been discredited and roundly
condemned.
Australian government agencies and church missions - under various state
acts of parliament, denied the rights of parents by making all Aboriginal
children wards of the state between approximately 1869 and (officially)
1969.
The ending of this 100-yr span is really very recent, and the full impact
came to the attention of the world only ten years ago with the "Bringing
Them Home Report".
It was begun by the British when Oz was then under British control.
But continued for a further 70 years or so after Federation on 1 Jan 1901,
when the six former Australian colonies of New South Wales, Queensland,
South Australia, Tasmania, Victoria and Western Australia collectively
became the component states of the Commonwealth of Australia.
The policy of removing Aboriginal children from their parents was based on
Eugenics theory in the late nineteenth/early twentieth-century Australia
that the 'full-blood' tribal Aborigine would be unable to sustain itself,
and was doomed to extinction.
Ideology at the time held that the human race could be divided into a
civilisational hierarchy. This notion held that that Northern Europeans
were superior in civilisation and that Aborigines were inferior.
Via the incongruously named "Aboriginal Protection Act" of 1869,
Australian government agencies and church missions - under various state
acts of parliament, denied the rights of parents by making all Aboriginal
children wards of the state, between approximately 1869 and (officially)
1969.
From 1905 until 1954, the Minister was: Empowered to remove any Aboriginal
person. As legal guardian of Aboriginal children... the Chief Protector
could exercise this power in relation to Aboriginal Children".
There were provisions in The Aborigines Act 1905 which prescribed legal
guardianship to the Chief Protector of "every Aboriginal and half caste
child until such child attains the age of twenty one years".
In taking on legal guardianship, the state takes on what's known as a
"fiduciary duty". A fiduciary duty is the highest standard of care imposed
at either equity or law. A fiduciary is expected to be extremely loyal to
the person to whom they owe the duty.
One of the reasons advanced by John Howard (not the only reason) for not
making a formal apology for this now discredited policy is that it would
risk opening the floodgates for compensation claims.
It wouldn't - each case would be judged on its merits. Saying sorry
is a matter of good manners and good intentions - not good law.
Not that the mother had any choice in the matter, if say she willingly
given up her child in the sincere belief that it would have a better life,
and if indeed the child had grown up and prospered as a member of a new
loving family, was well-educated, well-adjusted and in gainful employment,
it may be hard to claim in adulthood, that he or she had suffered as a
consequence.
This would be especially so if that child's siblings had grown up in
abject poverty, had a miserable existence dogged by ill-health ending in
premature death. (This the red-herring often proffered by apologists - "It
was all for their own good". It wasn't done for their own good - it was
done to make the Aboriginal race extinct over time).
If on the other hand it can be demonstrated - as it has been in the
landmark case, that the child (now in adulthood) suffered harm - be it
physical emotional or sociological, then it must - as it has, expose the
State to claims for damages by those who can show to the court they've
suffered harm.
The landmark case in August 2007 which has set the precedent is that of
Bruce Trevorrow, taken from his Aboriginal family as a young child, who's
become the first of Australia's Stolen Generations to win compensation.
Bruce Trevorrow says his life has been blighted by being 'stolen'.
His journey into legal history began on Christmas Day of all days, in
1957, when - just 13 months old, he was suffering from stomach pains. His
father, Joseph, asked neighbours to take him for treatment to the Adelaide
Children's Hospital in South Australia.
On admission, the hospital recorded that Bruce had no parents and that he
was neglected and malnourished, three untruths that were to change his
life forever. They meant that Joseph Trevorrow, who died some eight years
later, would never see his son again.
Can you imagine the effect that would have on you as a parent, or as
a child growing up estranged from his family and cultural background?
That same Christmas, a local woman called Martha Davies answered an
advertisement in the local paper. It sought white foster parents for
Aboriginal babies. On 6 Jan 1958, she and her husband visited the
children's hospital, and decided to take Bruce home.
Thinking he was still in hospital, Bruce's mother Thora tried to keep
track of her son's progress by corresponding with the local Aboriginal
Protection Board. Bruce Trevorrow grew up surrounded by white children.
Bruces' family did not have a car or telephone. "I am writing to ask if
you will let me know how baby Bruce is," she wrote five months after he
was taken away, "and how long before I can have him home."
Even though Bruce had already been fostered, and was being raised by his
new family, the Aboriginal Protection Board responded that he was making
"good progress", but "needed to remain in hospital for further treatment".
It was the cruellest of lies.
Bruce had by then become an unwitting victim of what became known as the
Stolen Generation - or more accurately, the Stolen Generations - this
practice lasted for some 100 years.
Bruce said that growing up in a white family was the most disorientating
of experiences. "I kept on asking my parents why I was different to the
other kids - they said they had dark relatives."
His school life was miserable.
"Being the only black person, I was bullied at school. That was very
traumatic. I got called names like nigger and black." It was not until
1967, when Bruce was 10, that he was reunited with his mother, Thora.
Even then the reunion proved short-lived (just 14 months). Thereafter
he spent much of his adolescent life in and out of institutions.
Now, almost 50 years after being taken from his family, Bruce Trevorrow
has not only discovered the truth of his upbringing, but has become the
first Aborigine to win compensation for being taken from his family.
Back in June 1998, he launched legal action against the government of
South Australia, arguing that his alcoholism, depression and inability to
hold down a proper job stemmed from being "stolen". He also claimed he had
lost his cultural identity.
He remarked: We've won a case...but you can't put a value on what
happened - most of my life has been lost to me.
The judge agreed, ruling that he had been falsely imprisoned. By way of
compensation, Bruce was awarded A$525,000 (œ220,000GBP, US $447,000),
the first such payout to a member of the Stolen Generations in Australian
legal history.
"I never thought I would win, but just wanted some answers in my life,"
said the father of four. "I just wanted to know who I was and where I
came from."
In a decision which has earned plaudits from Aboriginal groups, the South
Australian government has decided not to appeal the award of compensation,
despite arguing in court that the now defunct Aboriginal Control Board was
not part of the government.
Unchallenged, the ruling may pave the way for hundreds of further cases.
Bringing Them Home - the landmark study published in 1997, found that at
least 100,000 Aborigines had been taken from their parents and placed in
the care of institutions, religious missions or white foster parents.
Will it open the floodgates?
Not necessarily.
Bruce succeeded where others have failed partly because there was a clear
paper trail: the letters exchanged between his mother and the Aboriginal
Control Board, which documented the deceit.
Claire O-Connor, part of his legal team said: "It was unusual to have that
amount of evidence - we could prove that the Aboriginal Control Board had
been negligent."
In other cases, much of the paperwork has been destroyed.
Here's the most tragic part of this sad tale:
In claiming his life had been destroyed, Bruce was able to compare his
experience with that of his three Aboriginal siblings, all of whom have
enjoyed very successful lives.
"We could make such a stark contrast because his Aboriginal brothers were
such high achievers," says Claire O'Connor, "and they had stayed with the
parents."
O'Connor claims that the ruling can be placed alongside the famed Mabo
decision in 1992, when the Australian High Court delivered an enormous
boost to Aboriginal land rights by overturning the doctrine of terra
nullius - the notion that Australia belonged to no one before being
colonised by the British.
Bruce hopes that others will tread the same legal path. "We've won a case,
and there are lots of people out there who lived the same life as me.
Hopefully, they'll get some compensation. "But you can't put a value on
what happened. You can't put a dollar sign on that. Most of my life has
been lost to me."
Is it a one-off?
Read the Bringing Them Home Report.
And please don't put inverted commas around the word Stolen - it suggests
that the report is a work of fiction. The term Stolen is in the URL used
by the Australian Human Rights and Equal Opportunities Commission in the
link to the report in the Social Justice and Reconciliation Library:
http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/hreoc/stolen/
Best wishes
David, G4EBT @ GB7FCR
Cottingham, East Yorkshire.
Message timed: 12:55 on 2007-Dec-04
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