The Act was passed unanimously in both Houses of Parliament in November 2006, evoking scenes rarely observed in 150 years of Tasmanian Parliament. It was reported that the public galleries of both the Legislative Council and the House of Assembly were crowded with onlookers who clapped, cheered and cried as politicians of all political persuasions spoke in favour of the legislation.
— Tasmanian government website describing the passing of Stolen Generations of Aboriginal Children Act 2006 to provide $5 million compensation to the state’s Stolen Generations.
Removing children from their homes simply on the basis of race is unthinkable today. But it is fundamental that we formally recognize what occurred in previous generations.
— Premier of Tasmania, Paul Lennon, on making compensation payments to the state’s Stolen Generations, January 2008
In January 2008, the Tasmanian government announced it would pay 84 Tasmanian people $58,000 each because they claimed to be members of the Stolen Generations. ‘It doesn’t seem much for a lifetime of cultural isolation,’ Premier Paul Lennon said at the time. ‘It is intended as a gesture: a statement that we are genuinely sorry for the past policy of forced separation.’
To make the gift a bipartisan gesture, the Labor Premier Lennon asked one of his predecessors, the former Liberal Premier Ray Groom, to assess those eligible. Groom readily agreed. Of 151 applications he received, Groom found 84 people were Stolen Generations victims and 22 were the children of victims who had since died. The living victims got $58,000 each while the children of victims got $5000 each.
Tasmania was the first state or territory to establish a compensation fund for the Stolen Generations. So far, it is the only one. Elsewhere, in New South Wales, South Australia and the Northern Territory, when those claiming this status have applied to the courts for compensation, the government concerned has rejected the application and appointed counsel to defend it. More than a decade after the Bringing Them Home report, all those who have gone to the courts have lost their cases, except one person in South Australia. Rather than seeing himself as the odd man out, however, Premier Lennon thought this innovation by the smallest and economically poorest state would show up all the others:
I aim to keep Tasmania at the forefront of advancing the reconciliation debate. And I hope the nation will recognize and respond to the positive agenda we are setting.
The most conspicuous oddity of the Tasmanian example was that while the Premier’s media releases spoke of children being removed because of their race, his new legislation was careful not to mention that topic at all. To be eligible for payments under the state’s Stolen Generations of Aboriginal Children Act 2006, claimants only have to establish they were Aborigines, they had once been made a ward of the state, and that they weren’t fostered out to Aboriginal families. They didn’t have to be removed because of their race. In Tasmania, a member of the Stolen Generations had to only fulfil the following conditions:
An applicant must:
1. be an Aboriginal person within the meaning of the Aboriginal Lands Act 1995
2. have been living on October 16, 2006, and
3. have been admitted or declared as a child of the State, or a ward of the State, under the Infants’ Welfare Act 1935 or the Child Welfare Act 1960; on or before December 31, 1975, and remained a child of the State, or a ward of the State, for a continuous period of 12 months or more, and not in the care of an Aboriginal family during that period.
What was truly weird about the Tasmanian case was that this was one state where it was legally impossible for anyone to have been a member of the Stolen Generations in the period nominated by the Human Rights Commission, 1910 to 1970. Since 1876, when the last Tasmanian Aborigine, Truganini, died, the Tasmanian government could not possibly have been guilty of removing any child from its home ‘simply on the basis of race’, as Premier Lennon put it. After that date, Tasmanian governments presumed all the Tasmanian Aborigines had died out. The apparent absence of the race meant there were no laws based on race and no policies directed at race. As a result, Tasmanian Aboriginal people were not mentioned specifically in any state legislation or regulations until the 1970s. There had been no Protector of Aborigines since 1847 when the inhabitants of the government’s old indigenous reserve on Flinders Island moved back to Oyster Cove on the main island. Although the government and some of the churches knew the small community that later emerged on Cape Barren Island was made up of descendents of the indigenous wives of the handful of Englishmen who had worked as Bass Strait sealers since the 1810s, the only legislation in which they figured was the 1912 Cape Barren Island Reserve Act, which leased them land there.
Even then, the island’s inhabitants were not regarded by anyone, including themselves, as real Aborigines, or indeed, as anything but ‘islanders’ or ‘straitsmen’. Molly Mallett, who grew up on Cape Barren Island in the 1920s and 1930s, recalled: ‘We knew we were different but they — our parents — never told us we were Aborigines.’ Similarly, another member of the Cape Barren Islander community, Annette Mansell, said in a film interview in 1978:
I’m not an Aboriginal. I’m only a descendant of one. There are no Aboriginals now. There’s not much in any of us. There’s no tradition in Tasmania with the Aboriginals.
She spoke at the same time as the notion of Aboriginality was being reinvented on the Tasmanian mainland by modern, urban, political activists.
The case made here is not controversial. It is actually supported by historians of Tasmanian child welfare who otherwise accept the truth of the Stolen Generations thesis. For instance, Caroline Evans and Naomi Parry, two comparatively recent PhD candidates who each wrote their theses on Tasmanian child welfare in the period 1880 to 1940, have jointly argued: ‘Aboriginal people were never specifically mentioned in state legislation’.
It is certain that Aboriginal children were swept up within the Tasmanian child welfare system in the early twentieth century, under the definitions of neglect applied to other children. However, the Tasmanian government would not recognize what we now call Aboriginality, so it is not surprising that Indigenous background was never cited as a reason for removal, as it had been in New South Wales. We found only two passing references to the Aboriginality of state wards, amongst hundreds of records.
Bringing Them Home, however, treated Tasmania as yet another site for the Stolen Generations. It wrote:
The forcible removal of indigenous children from their families occurred during two periods in Tasmania. The first commenced with the European occupation of Van Diemen’s Land (as Tasmania was called until 1856) in 1803 and lasted until the middle of the nineteenth century. The second commenced in the 1930s with the forcible removal of Indigenous children from Cape Barren Island under general child welfare legislation and continues into the present.
The major historical source on which the report relied for the colonial period was Lyndall Ryan’s book The Aboriginal Tasmanians. In my book on Tasmania, Volume One of the Fabrication of Aboriginal History, I demonstrated that nothing Lyndall Ryan has written about Tasmanian history should be trusted. Her work was driven by the radical agenda of Tasmanian Aboriginal politics. On the removal of children, she was especially unreliable. She gave false accounts of the contents of orders given by colonial governors, she misrepresented several of her primary sources, and she exaggerated the number of Aboriginal children in the care of settlers. Ryan claimed one governor consigned Aboriginal children to an orphan school that did not even exist during his time in the colony.
For its historical account of the 1930s to the present, Bringing Them Home adopted a similar methodological approach. Before its investigation had even begun, it reached its findings about stolen children and decided the political agenda it would recommend. During its nationwide tour of community hearings, the Human Rights Commission went to Flinders Island in December 1995 and held a meeting at the old Aboriginal settlement of Wybalenna. There, a lawyer for the inquiry announced (i) there had been a government policy of separation, (ii) its intention had been to remove children from their culture, and (iii) one of the inquiry’s recommendations would be to rebuild Aboriginal culture.
When they came to write Bringing Them Home, its authors knew full well that Tasmanian legislation never targeted non-white children as such. They admitted that Tasmania was an exception to the system of protection on the Australian mainland, and grudgingly acknowledged: ‘Until the late 1960s Tasmanian governments resolutely insisted that Tasmania did not have an Aboriginal population, just some “half-caste” people.’ Their report nonetheless presented a narrative of indigenous families enduring an unequal struggle against devious authorities determined to use any means to steal their children.
Although the Tasmanian government did not formally adopt a policy of removing Indigenous children from the Island, the Infants Welfare Act 1935 was used to remove these children from their families. From 1928 until 1980 the head teacher on Cape Barren was appointed a special constable with the powers and responsibilities of a police constable, including the power to remove a child for neglect under the child welfare legislation. A shed at the back of the school sometimes served as a temporary lock-up.
Poverty, alcohol abuse, and the refusal of the Islanders to adopt an agricultural lifestyle as specified in the 1912 Act and the surveillance of that lifestyle that Act entailed put Indigenous families at risk of losing their children. The reliance of community members upon each other to care for their children in times of difficulty was regarded not as a strength but as an indication of neglect.
Moreover, the Commission’s authors also knew that for any Tasmanian child to be charged with neglect and removed from its parents, a hearing had to be held before a magistrate sitting as a children’s court. So they portrayed this process as one where the magistrates were always prejudiced against Cape Barren Islander parents and where the odds were so stacked against them they had no hope of resisting the force of authority.
Although a parent was entitled to appear at court to argue that the child was not neglected, this theoretical possibility took no account of the remoteness of mainland and non-Indigenous legal processes from the Island communities, the speed with which removals occurred, the parents’ lack of knowledge of their rights under the law, their financial inability to get to the court in Launceston in time and the fact that no legal assistance was available to them.
One of its unstated assumptions was that magistrates of the period were so biased against these parents they overlooked how disadvantaged their procedures were. This was a slur that none of the still living Tasmanian magistrates were given an opportunity to correct. Moreover, to argue that children were wrongly found to be neglected simply because they had Aboriginal ancestry was to accuse the Tasmanian judicial system of being inherently corrupt, indeed racist. Both the authors who made this accusation, Ronald Wilson and Mick Dodson, had high legal qualifications — Wilson was a former judge of the High Court — so they knew what they were doing. To compound this offence by refusing to provide the magistrates with the opportunity to publicly answer the accusation was to treat them most unjustly. Wilson, in particular, disgraced his own reputation by this action. Wilson and Dodson did not publicly call Tasmania’s magistrates racist, but they did call witnesses to shore up the case that this was how islander parents felt. They heard Tasmania’s chief Aboriginal political activist Michael Mansell, a man born and raised in Launceston, who described the helplessness the islanders felt before the overwhelming force of white authority.
We never questioned the right of any white person, whether they had a blue uniform or not, to come into our homeland more or less to do what they liked … It was just the way of life and we grew up accepting that white people had some greater right than we did.
However, other people who were unable to give evidence to the same hearings had a different perspective. Some who knew the islander community’s brushes with the law in Launceston later portrayed its members as anything but innocent and helpless victims. Indeed, they said the islanders knew how to work the legal and welfare systems well, and had their own allies within them. One former officer of the Tasmanian Department of Social Welfare, Max Chugg, gave a very different version of how the courts normally treated Cape Barren Islander children.
I worked in the Launceston office of the Department of Social Welfare in the first half of the 1970s and kept the Children’s Court Register. At that time the District Child Welfare Officer had the power to veto any attempts by police to prosecute any child. He was on extremely friendly terms with the Cape Barren Islanders who had open access to his office. When Cape Barren Islander children were in trouble the mothers made a bee line for the District Child Welfare Officer’s office, and although I know that these children got into more than their fair share of mischief, I have no recollection of one ever going to court.