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by Chris Cunneen and Julia Grix
The following chronology sets out our understanding of the stolen generations’ litigation over the last decade. The chronology includes both finalised cases and matters currently before the courts.
This chronology is part of a larger research project on legal and reparative responses to the issue of forced removal of Indigenous children from their families. The research is analysing why litigation has led to unsatisfactory results for Indigenous people who were removed.[1] It will also consider the development of reparative approaches to the gross violations of human rights outside of Australia, and what lessons might be learnt for the Australian context.
Joy Williams files notice of motion seeking an extension of time under the Limitation Act 1969 (NSW) to bring a claim for negligence, breach of fiduciary duty and wrongful imprisonment against the relevant Minister and the State of New South Wales. Justice Studdert rejects her application.
Joy Williams is granted an extension of time. Justice Studdert’s decision is reversed by a majority of the Court.
Alex Kruger, George Bray and seven other members of the stolen generations commence legal proceedings challenging the constitutional validity of the Northern Territory Ordinance that authorised their removal from their families.
Lorna Cubillo and Peter Gunner commence proceedings in the High Court. The plaintiffs sue the Commonwealth for wrongful imprisonment, breach of statutory duty, negligence and breach of fiduciary duty arising out of their removal from their families and their detention in mission-run institutions. The matter is remitted to the Federal Court.
Alex Kruger (and others) lose claim when Court finds Ordinance under which Aboriginal families were removed was constitutional.
Eileen Stevens lodges and subsequently withdraws her claim against the New South Wales Government.
In commencing the case, the Public Interest Advocacy Centre (the ‘PIAC’) said that the Stevens claim was one of a series to be brought on behalf of members of the stolen generations, and described the plaintiff’s circumstances in the following way:
Eileen Stevens was taken from her family in the late 1930’s and placed in institutions, first at Bomaderry and then Burnside. Following this, she was placed in domestic service in a private residence. The claim alleges that she suffered abuse and mistreatment during this period, resulting in profound emotional harm.[2]
According to her lawyers, Eileen Stevens withdrew her claim because it was ‘too traumatic’ for her to continue and because of ‘privacy considerations’.[3]
‘Bruce’, a client of the Aboriginal Legal Rights Movement, files a statement of claim against the State of South Australia for injuries suffered as a result of his removal from his family when he was aged 13 months.
Judy Stubbs loses claim for compensation for removal from her family and subsequent abuse. ‘Any way we turn, there is this big brick wall.’[4]
Christopher Johnson loses his application for an extension of the time period within which he may commence proceedings for damages against the Department of Community Services (NSW). An appeal is lodged.
Christopher Johnson is granted an extension of time.
Joy Williams loses her claim against the New South Wales Government over the harm caused to her by her removal.
Lorna Cubillo and Peter Gunner’s case is dismissed by Justice McLoughlin.
Joy Williams loses appeal to New South Wales Court of Appeal.
‘Anne’, a Gilbert and Tobin client, files a statement of claim against the State of New South Wales for injuries suffered as a result of her removal when she was two years of age. She dies one year later before a hearing date is set.
Lorna Cubillo and Peter Gunner lose appeal to the Full Court of the Federal Court.
Lorna Cubillo and Peter Gunner lose appeal from Full Federal Court decision to the High Court.
Valerie Linow’s compensation claim is rejected because the Assessor was not satisfied that her injuries were caused by the sexual assaults she had been subjected to after she was removed by the Aborigines Welfare Board, and placed with a family as a domestic worker.
An appeal from the Assessor’s determination is later upheld and Ms Linow is awarded $35,000 compensation for her injuries:
It's a big shock, because I am the only one out of thousands of members of the stolen generations who got through and was believed that these things did happen. This is the most important thing - the believing.[5]
Information provided by the PIAC notes that:
Since Christopher Johnson was granted an extension of time in 1999 the matter has not substantially advanced.[9] According to Christopher Johnson’s solicitors there are five to six cases ‘in the pipeline’, including Johnson.
On 12 August 2002, 10 test claims went before the Federal Court. Seven have since been discontinued. Only one claim is actively proceeding at this time. At this hearing, the Court anticipated that the Crown would seek summary dismissal of these claims. As at 20 January 2003, the Crown had not done this.[10] At this time, the focus of lobbying in this jurisdiction is on amending the Limitation Act 1981 (NT).[11]
The matter of ‘Bruce’ is still pending. A hearing date has not been set. The Aboriginal Legal Rights Movement is representing a number of Aboriginal people who suffered harm as a result of sexual assaults while in foster placements. The claims for compensation are directed to the individuals and churches responsible for the children’s care at the time the assaults occurred.
Nothing would appear to be pending at this time.
Although there is a report[12] of proceedings having been issued in 1997 in the Western Australian Supreme Court, the result remains unknown. No other matters appear to be pending at this time.
It appears the only successful actions to date have been for compensation for particular injuries that arose after removal and while children were in care. We would welcome any feedback from ILB readers who may have further information on matters we have missed.
Chris Cunneen is the Director of the Institute of Criminology, University of Sydney.
Julia Grix BA (Communications) LLB is a researcher employed by the Institute of Criminology.
[1] Except in cases such as Linow where compensation has been awarded for assault, not for removal. See Chris Cunneen and Julia Grix, ‘The stolen generations and individual criminal victimisation: Valerie Linow and the New South Wales Victims Compensation Tribunal’ (2003) 14(3) Current Issues in Criminal Justice (forthcoming).
[2] PIAC, Claim for compensation for stolen generation, Press Release (19 February 1998).
[3] Telephone conversation with Alexis Goodstone (Solicitor), Public Interest Advocacy Centre, 24 July 2002.
[4] Jopson D, ‘Claim knockback reflects frustration of stolen children’, Sydney Morning Herald, 9 March 2002, <http://old.smh.com.au/news/0203/09/national/national24.html> .
[5] Ms Linow quoted in Jopson D, ‘First compensation win for the stolen generations’, The Age, 18 October 2002, <http://www.theage.com.au/articles/2002/10/17/1034561266360.html> . For further information on Mrs Linow’s case see Alexis Goodstone ‘Stolen generations victory in the Victims Compensation Tribunal’ [2003] IndigLawB 6; (2003) 5(22) Indigenous Law Bulletin 10.
[6] Cornwall A, Restoring Identity (2002)47.
[7] Ibid.
[8] Email correspondence with Janine Smith (Solicitor) Carroll and O’Dea, 21 January 2003.
[9] Telephone conversation with Janine Smith (Solicitor), Carroll and O’Dea, 24 July 2002.
[10] Telephone conversation with Bill Piper (Solicitor), 20 January 2003.
[11] Rush J, ‘Achieving reparations for the stolen generations’ (Speech delivered to Amnesty International, 16 July 2002).
[12] Champion M, ‘Post-Kruger: where to now for the stolen generations?’ [1998] IndigLawB 45; (1998) 4(12) Indigenous Law Bulletin 9, 11.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2003/17.html