- Richards Chris and Lobez Susanna, interview with Father Frank Brennan and David Bennett QC ‘The law report' Radio National 15 August 2000; www.abc.net.au/rn/talks/8.30/lawrpt/stories/s163673.htm
- ‘… [T]he documents that were available point strongly to the Director, through his officers, having given close consideration to the circumstances of the young boy… the promise concerning Peter returning home for the holidays was indicative of personal consideration for the future of the boy.’ Cubillo at 488.
- Although the Human Rights and Equal Opportunity Commission's terms of reference were ‘the laws, practices, and policies which resulted in the separation of Indigenous children from their families by compulsion, duress or undue influence’, the Report's authors chose to incorporate these meanings into the term ‘forcible removal’ for ease of reference. While the language emphasises force, the report defines the term broadly, to cover all removals except those ‘which were truly voluntary, at least on the part of parents who relinquished their children, or where the child was orphaned and there was no alternative carer to step in.’ Human Rights and Equal Opportunity Commission (HREOC) Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families HREOC Sydney 1997 Scope of the Inquiry at 5.
- The quote is taken from Gilbert's introduction to the book Living Black, where he uses the term to describe the total effects of European invasion on Aboriginal Australia, rather than just the effects of child removal. Gilbert Kevin Living Black: Blacks Talk to Kevin Gilbert Penguin Ringwood 1977 at 3.
- Read Peter A Rape of the Soul So Profound: the Return of the Stolen Generations Allen & Unwin St Leonards NSW 1999.
- Specifically, this paper engages with feminist legal theorists such as Catherine MacKinnon, Vicki Wave and Carol Smart, and with ‘critical race feminists’, such as Dorothy Roberts and Angela P Harris. See Part 3 for references.
- Cubillo at 252.
- For a more detailed analysis of the intricacies of these Ordinances and other relevant legislation, and of other issues raised at trial, see Clarke Jennifer ‘Case note: Cubillo v Commonwealth’ (2001) 25 Melbourne University Law Review 218 at 230–250.
- The Ordinance excepted State children within the meaning of the State Children Act 1895 (SA). For more discussion on the overlap of these two categories, see Clarke above note 8 at 232.
- Terms such as ‘half caste’ and ‘part Aboriginal’ are offensive to many Aboriginal people. In this paper, I avoid using them except where it is necessary to quote legislation or other peoples' writing.
- For example, the power to consent might be withdrawn where a parent was hurting their child.
- Cubillo (2000) 174 ALR 97.
- At 151; 1918 Ordinance s 6.
- Cubillo.
- at 265.
- at 263.
- at 266.
- This reflects a notion that children can't be ‘stolen’ unless they have an owner. O'Loughlin seems struggle to understand Aboriginal family structure beyond the nuclear notion of two primary, legally responsible carers—one male, one female.
- Clarke above note 8 at 225.
- Cubillo at 122, 338, 390.
- at 343.
- at 343.
- at 461.
- At 496. O'Loughlin seems to make this finding on ‘general law’ principles, though these principles are assumed rather than explained. See Clarke above note 10 at 239.
- at 461.
- at 496.
- at 485.
- at 560.
- at 343.
- Aboriginals Ordinance (No 2) 1953 (NT) ss3 & 3A. See Clarke above note 10 at 238 for the detail of these changes.
- Cubillo at 193. Clarke points out that ‘consent’ was not the only way of removing ‘half caste’ children from their families—they could also fit within the definition of an ‘Aboriginal’ if they were ‘a person who lives after the manner of, follows, adheres to or adopts the customs of’ ‘Aboriginal natives’(s 3(b)), or through a hearing with the Territory Administrator (s 3A(2)). This further erodes the reality of Topsy Kundrilba's consent. See Clarke above note 8 at 239.
- Cubillo at 364. The difference between these children was also determined by the family's ability to pay school fees: ‘… there were part Aboriginal children residing at St Mary's in Sister Eileen's time whose parents were paying the Hostel an amount of money towards the cost of their board and keep. These payments were a clear indication that those children were residing at St Mary's at the request of and with the informed consent of some responsible member of their family.’ Cubillo at 332.
- at 348.
- at 192.
- at 291.
- ‘Topsv had asked the Director to assume the care, custody and control of her son; the Director accepted that role. The documentary evidence has allowed for no other conclusion.’ Cubillo at 345.
- at 461.
- At 391 (my emphasis).
- At 116 (my emphasis).
- Waye Vicki ‘Rape and the unconscionable bargain’ (1992) 16 Criminal Law Journal 94 at 95; Of course, many other notions of consent exist in other areas of Anglo-Australian law, but this analysis is limited to the two mentioned above.
- Wave above note 40 at 94–5. See also Carter JW and Harland DJ Contract Law in Australia Butterworths Sydney 1991 ch 2.
- Wave above note 40 at 97.
- HREOC above note 3 at 5.
- Cubillo; Mrs Pula's evidence at 360. Report of mothers and children fleeing at 339–341.
- at 360.
- The ‘Coniston Massacre’ in 1928, mentioned in Cubillo at 321.
- Commonwealth Bank of Australia Ltd v Amadio (1983) 151 CLR 447.
- Cubillo at 344.
- For example, in relation to the manner in which Peter Gunner was taken from Utopia see Cubillo at 351.
- at 344.
- ‘It was couched in very formal language and some might think that it would be difficult to understand how its contents could have been accurately translated to an Aboriginal mother who spoke no English.’ Cubillo at 343.
- See Rush Peter and Young Alison ‘A crime of consequence and a failure of legal imagination: the sexual offences of the Model Criminal Code’ (1997) 9 Australian Feminist Law Journal 100 at 128.
- Wave above note 40 at 96.
- Naffine Ngaire ‘Windows on the legal mind: the evocation of rape in legal writings’ (1992) 18 Melbourne University Law Review 741 at 758.
- Not coincidentally, these presumptions also infer that the ‘legitimate’ rape complainant is white. For further discussion of how processes of whiteness operate in rape trials, see Galbraith Janet ‘Processes of whiteness and stories of rape’ (2000) 14 Australian Feminist Law Journal 71.
- Ehrlich Susan ‘The discursive reconstruction of sexual consent’ (1998) 9(2) Discourse and Society 149 at 167.
- MacKinnon Catherine Towards A Feminist Theory of the State Harvard University Press London 1989 at 180.
- Holman v R [1970] WAR 2 at 6 per Jackson CJ, quoted in McSherrv Bernadette ‘No! (means no?)’ (1993) 18(1) Alternative Law Journal 27 at 28.
- Heath Mary and Naffine Ngaire ‘Men's needs and women's desires: feminist dilemmas about rape law “reform”’ (1994) 3 Australian Feminist Law Journal 30 at 37.
- Cubillo at 194, 487.
- at 344.
- At 187. This is despite O'Loughlin's careful disposition on the difference between a mother ‘having the advantages of removal explained’ and actually consenting to that removal.
- At 457. Although O'Loughlin later discusses the presumption of regularity of committal orders, it is not suggested that this presumption applies to the form of consent.
- As above.
- As above. O'Loughlin quotes from Goulding J in Wilover Nominees Ltd v Inland Revenue Commissioners [1973] 1 WLR 1393 at 1399 (affirmed [1974] 1 WLR 1342).
- Commonwealth Bank of Australia Ltd v Amadio (1983) 151 CLR 447.
- For example, in the Medical Treatment Act 1988 (Vic,).
- Similarly, the High Court recently held than an allegedly suggestive telephone call was relevant evidence of consent to an alleged gang-rape and sexual assault which occurred hours later. See Bull v R (2000)171 ALR 613 at 640.
- MacKinnon above note 57 at 178.
- Blokland Jenny ‘A feminist amicus brief in the stolen generations (NT) litigation’ (1997) 3(89) Aboriginal Law Bulletin 10 See also, Cummings Barbara ‘Writs and rights in the stolen generations (NT) case’ (1996) 3(86) Aborigitial Law Bulletin 8.
- Protector Bleakley wrote in 1929 that ‘the presence of the compound at Darwin has been made necessary by the fact that, owing to climatic conditions, life in Darwin for many of the white families would be almost impossible without some cheap domestic labour, and the aboriginal is the only suitable labour of the kind procurable’. Bleakley JW ‘The Aboriginals and half-castes of central Australia and north Australia’ Commonwealth Parliamentary Papers No 21 of 1929 quoted in Read Peter ‘Lorna Cubillo and Peter Gunner v The Commonwealth of Australia: Historical Report’ July 1999 at 32.
- Extracts from Report on Administration of Northern Territory During 1932–33 Document 2247 at 7 quoted in Read Peter above note 71 at 34.
- Roberts Dorothy Race Reproduction and the Meaning of Liberty Pantheon Books New York 1997 p 9.
- Cook to Morelev Honorary Secretary Association for the Protection of Native Races 28 April 1931: 4; Document 2274 quoted in Read Peter above note 71 at 34.
- See Naffine above note 54 at 741.
- As recently as 1996 Jenny Bargen found that 84.3 per cent of women sexual assault complainants in NSW were accused of ‘lying’ during cross-examination. Bargan Jenny Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault Gender Bias and the Law Project NSW Department for Women 1996 at 99 quoted in Puren Nina ‘Bodies/ethics/violence: a review of Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault and The Crimes (Rape) Act 1991 (NSW): An Evaluation Report’ (1997) 9 Australian Feminist Law Journal 134 at 137; See also McGregor Joan ‘Why when she says no she doesn't mean maybe and doesn't mean ves: a critical reconstruction of consent, sex and the law’ (1996) 2 Legal Theory 175 at 177.
- In particular, this campaign has been carried out through the magazine. Quadrant, including writers such as Padraic McGuinness and Geoffrey Blainey. For example see Editorial ‘Poor fella my “stolen generation”’ November 1999 Quadrant 2.
- O'Loughlin views Mrs Cubillo's attitude as one of ‘bitterness towards authority’ see Cubillo at 302, and describes some of her evidence as ‘subconscious reconstruction’ at 287. In regard to Mr Gunner, O'Loughlin comments that ‘the school report referred to him as “sullen and moody”; I observed that those traits have remained with him in his adult life’ at 372. Further, O'Loughlin labelled Gunner ‘a very unreliable witness’ because he had tendered different statements about why he did not return to Utopia Station in 1978–9, a time when he was suffering from alcohol abuse: at 386.
- at 581.
- Similarly, Upton has discussed the (white) legal system's transference of invisibility to cover Aboriginal women as well as white women: Upton John ‘By violence, by silence, by control: the marginalisation of Aboriginal women under white and “black” law’ (1992) 18 Melbourne University Law Review 867 at 869; See also Scutt Jocelynne ‘Invisible women? Projecting white cultural invisibility on black Australian women’ (1990) 2(46) Aboriginal Law Bulletin 4.
- Smart Carol Feminism and the Power of Law London Routledge 1989 at 26 In later work, however, Carol Smart concedes that feminist jurisprudence is limited because ‘in criticising law for being male it cannot escape the related criticism of promoting a (classless, white) female point of view as the solution’. Smart Carol ‘Feminist jurisprudence’ in Fitzpatrick Peter Dangerous Supplements Pluto Press London 1991 133 at 156. See also MacKinnon Catherine ‘Feminism, Marxism and the State: an agenda for theory’ (1982) 7 Signs 515.
- Smart above note 81 at 38, 41; MacKinnon above note 81 at 523.
- See for example Huggins Jackie ‘Wedmedi—if only you knew’ in Jackie Huggins Sister Girl University of Queensland Press St Lucia 1998 25 and Behrendt Larissa ‘Aboriginal women and the white lies of the feminist movement’ (1993) 1 Australian Feminist Law Journal 31.
- Harris Angela P ‘Race and essentialism in feminist legal theory’ in Wing Adrien Katherine (ed) Critical Race Feminism: A Reader New York University Press New York 1997 at 11.
- Harris above note 84 at 14.
- McGregor above note 76 at 181; MacKinnon above note 57 at 181; Smart above note 82 at 32.
- Heath and Naffine above note 59 at 37; McGregor above note 76 at 176.
- Puren Nina Review of Patricia Eastea Balancing the Scales: Rape, Law Reform and Australian Culture (1999) 13 Australian Feminist Law Journal 143 at 148.
- Duncan Sheila ‘Law as literature: deconstructing the legal text’ (1994) 5 Law and Critique 3 at 27: O'Loughlin shows a similar approach: ‘Historians may wish to adjudicate on the racial and social policies of former governments and it must be left to the political leaders of the day to determine what, if any, action might be taken to arrive at a social or political solution to these problems. It would not be proper for this Court to go beyond the boundaries of the legal issues that are to be determined.’ Cubillo at 143.
- Rush Peter ‘On being legal: the laws of sexual offences in Victoria’ (1997) 9 Australian Feminist Law Journal 76 at 87.
- Heath and Naffine above note 59 at 39. See also Carter Meredith and Wilson Beth ‘Rape: good and bad women and judges’ (1992) 17 Alternative Law Journal 6.
- For further discussion of the ‘traditional’ rape stereotype, see Wave above note 40 at 96; Smart Carol and Smart Barry, ‘Accounting for rape: reality and myth in press reporting’ in Smart Carol and Smart Barry (eds) Women, Sexuality and Social Control Routledge and Kegan Paul London 1978. It is important to note that the stereotype of a ‘ferocious stranger’ as rapist also coincides with racial stereotypes. For example, Hazel Carbv writes that, in the US, ‘white men used their ownership of the body of the white female as a terrain on which to lynch the black male’. Carbv Hazel V ‘“On the threshold of woman's era”: lynching, empire and sexuality in black feminist theory’ in Gates Junior Henry (ed) ‘Race’, Writing and Difference: University of Chicago Press Chicago 1986 301 at 309; For a similar analysis pertinent to Australia, see also Huggins above note 83 at 30.
- Several case studies which illustrate a few of these myriad ways are documented in Chapter 29 of Scutt Jocelvnne A The Incredible Woman: Power & Sexual Politics: Volume Two 1997 at 215–230; See also the examples of fraud, duress, compulsion and undue influence documented in ‘Tracing the effects’ HREOC above note 3 at 5–10 and throughout.
- Olsen Frances E ‘The myth of state intervention in the family’ (1985) 18(4) Journal of Law Reform 835 at 837.
- These two stereotypes could be compared to those used to categorise black women in the US as described in Dorothy Roberts' analysis. As she concludes, '[b]laming black mothers, then, is a way of subjugating the black race as a whole.' Roberts above note 73 at 10–18.
- For an historical account of colonisers' discourses of Aboriginal infanticide in Australia, see Stephens Marguerita Contaminated and Overdetermined: Infanticide and Policy in Colonial Victoria Paper presented at University of Melbourne Postgraduate Work in Progress Seminars Melbourne 8 June 2001. These myths also appear in racial stereotypes of black women in the US. For example, Dorothy Roberts quotes Eleanor Tayleur commenting that ‘infanticide is not regarded as a crime among negroes, but it is so appallingly common that if the statistics could be obtained they would send a shudder through the world’. Roberts above note 73 at 14.
- Cubillo at 352.
- At 557–8. This finding was based on Mr Gunner's acknowledgement that he had been told, as a child, by a friend (also a child) that his mother tried to kill him as a baby. O'Loughlin's acceptance of the hearsay of small children on this issue is inconsistent with his scrutiny of other evidence.
- at 557–8.
- at 264.
- at 393.
- at 264.
- at 288.
- at 407–8.
- at 407–8.
- Smart above note 81 at 31.
- Cubillo at 207.
- at 261–2.
- At 242, 264.
- For example, Smart quotes a judge as saying, ‘the enjoyment wiped out her initial resistance’. See Smart above note 81 at 37.
- Ehrlich above note 56 at 168.
- Cubillo at 141, 137, 138.
- Despite the fact that, for Peter Gunner and many other Aboriginal children, this ‘education’ not only scarred them for life, but also failed to give them even basic reading and writing skills. Cubillo at 370–1.
- At 138–9. The author notes that these ‘issues’ listed by O'Loughlin are also matters of human rights rather than ‘opinion’.
- At 485. O'Loughlin defends the Department of Native Affairs from litigation on the basis that it might force them into a ‘more cautious and defensive approach’. Also at 154, O'Loughlin writes, '[t]his beneficial interpretation of the legislation must remain paramount in my opinion even though I am aware, as Murphy J said in Neal v The Queen (1982) 149 CLR 305, a case of criminal assault, that “Aborigines have complained bitterly about white paternalism robbing them of their dignity and right to direct their own lives'”: at 318.
- (1997) 190 CLR 1; (1997) 146 ALR 126.
- 'Counsel for the applicants used this answer to make a claim that such policy as existed was therefore based on “race” and was pursued “without regard for the welfare of individual children or their individual circumstances”. I cannot accept that submission; it failed to recognise those decisions of the High Court to which reference has already been made that classified the legislation as beneficial and protectionist; it failed to recognise that there was then, as there is now, an acceptance of the need for special legislation and special consideration for Aboriginal people.' See Cubillo at 344.
- As this article was being prepared for publication, the Federal Court of Appeal released its decision on the Cubillo appeal, upholding O'Loughlin's judgment which is described and critiqued here. See Cubillo & Gunner V Commonwealth [2001] FCA 1213 (unreported, Sackville, Weinberg & Hely JJ, 31 August 2001). Unfortunately a full analysis of the appeal judgment is beyond the scope of this paper, although the fact that O'Loughlin's findings remain substantially in place suggests there is a continuing need for critical debate on such trials. The appellants did not challenge O'Loughlin's findings of fact as to Topsy Kundrilba's consent and Cubillo's failure to prove the presence of an adult Aboriginal person at Phillip Creek who could have consented to her removal (at 186). While it is notoriously difficult to overturn findings of fact on appeal, the decision not to challenge O'Loughlin's factual findings on consent may have limited the prospects for the success of the appeal because consent lay at the heart of most of the other issues, for example, false imprisonment, refusal of an extension of time due to irreparable prejudice and fiduciary duty (at 255, 302 and 465). Further, O'Loughlin's findings on ‘consent’ may be better understood as broaching the very border between fact and law, as their effect is given meaning by the legal, as well as factual, context. For example, when the appellants attempted to argue on appeal that the removals of Cubillo and Gunner were harmful and wrongful acts regardless of whether O'Loughlin had been able to make a clear finding on consent, the Court of Appeal found that they were raising an argument that had not been raised at trial, and which must therefore be dismissed. Sackville, Weinberg and Hely JJ reiterated that the only harm at issue was ‘forcible removal’ and that ‘the word “forcibly” was clearly intended to connote a non-consensual removal, and not one carried out in a manner which involved the use of excessive force’ (at 362). Although this assertion is justified by the procedural rules of the appeal process, the effect is frighteninglv similar to the criminal law's insistence that even the most forceful, harmful sex is not rape if there is reasonable doubt that the woman may have consented and that consent may be present ‘even when a woman is in fear of her life or being gang raped’. Smart above note 81 at 31.
Australian Feminist Law Journal
Volume 16, 2002 - Issue 1