Friends,
I must say I find this case quite confusing. Firstly, the judge denied the
case of Mr Gunner because there was evidence (the Judge felt) that his
mother had asked for his removal to Alice Springs. Secondly, he acknowledged
that he (Gunner) had been maltreated in the establishment in which he was
incarcerated. In the first instance the Judge said that the question he was
asked was 'did the Government through the Director of the Department
illegally take the child away.' The thumb print on the request by his mother
constituted proof that she had requested the removal of the child. That the
abuse etc. that he received in that institution was irrelevant.'
In the case of Cubillo, there was no semblance of proof that she was removed
without parental consent but there was no proof that permission had been
given either. The Judge chose to accept on this evidence that he did not
know therefore he chose to deny that this had happened. He also denied her
treatment in the same manner as Gunner.
According to the newspaper article, the following was the question that was
asked of the Judge:
Ms Cubillo and Mr Gunner had sued the Commonwealth for the trauma,
distress and continued isolation from the cultural and
spiritual lives of their Aboriginal mothers.
The pair also had sought punitive damages against the Commonwealth,
awarded when the court thinks the actions of a defendant
require punishment by extra damages.
Somebody seems to have their wires drastically crossed.
The other thing that crossed my mind is that the Conservatives have been in
exclusive control of the N.T. since July 1978. It is therefore probable that
the Judges selected during that time are conservative and possibly black
letter judges. I don't know having left the Territory in 1985 and not
knowing these particular judges. I am not sure if an appeal to the full
Federal Court would change anything. Maybe as they would not be N.T. judges.
Overall, I think that there has been a rather big cockup in the selection of
plaintiffs. As soon as I heard, some time ago, that that document from
Gunner's mother had turned up I felt myself sag. Just in passing I must say
I witnessed the destruction of many of the files related to the children
involved in the Stolen Generation. Later I spent long hours in the Darwin
Archives and well remember the crowds of People coming in and alternatively
crying and/or laughing as they read their files.
There are many many people in the territory that I know who could have put
up a far better case than Gunner and Cubillo, in the Western legal sense. I
find it difficult to understand why this particular duo were picked in
particular.
__________________________________________
Ian J. Henderson Murdoch University
24 Harfleur Place Murdoch, 6050.
Hamilton Hill 6163 Tel: 61-8-9418-3972
Western Australia Email: ianhn@iinet,net.au
___________________________________________
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