The law is an ass
The Howard government will gain only limited comfort from the August 11 ruling in Darwin Federal Court by Justice Maurice O'Loughlin.
In dismissing the suit of Lorna Cubillo and Peter Gunner, two representatives of the Aboriginal stolen generations, the judge acknowledged the awful reality of what was done to Cubillo and Gunner and to thousands of other Aboriginal children and their parents. The government's "victory" rests solely on legal technicalities and the difficulty of obtaining legally acceptable evidence after nearly half a century. The moral claim to compensation has been strengthened.
The law is an ass, observed one of Dickens' characters. That is precisely why the Howard government chose to force the stolen children to take their claim for justice into court. It knew that the law — an inseparable part of the same system that stole Aboriginal children from their families — would assist the perpetrators, not their victims.
In a statement released after the Federal Court decision, the North Australian Aboriginal Legal Aid Service said: "The justice of the cause of the stolen generations is beyond doubt. The legal system has not been able to address the injustice suffered by the stolen generations. It is now up to the federal government to address it."
But the federal government has never intended to address that injustice. After the exhaustive and detailed report on the stolen generations by the Human Rights and Equal Opportunity Commission, it should immediately have issued a formal apology and begun providing compensation. It has stubbornly refused to take either step, both of which are necessary for justice.
There is still some possibility that the Federal Court ruling may be reversed on appeal. But the only real hope of justice for the stolen generations lies in a political struggle to force the government to act.
The law is an ass. That is much too gentle a term for the Howard government that hides behind it.