Seeking justice for the Stolen Generation
The first stolen generation trials
Allens is committed to supporting Australia's First Nations peoples and in 1996 it helped pave the way towards the National Apology through its involvement in the first Stolen Generation legal trials.
Alec Kruger, the son of Yrambul Nungarai, a Mudpurra woman, and Frank Kruger, a man of German and Irish descent, was just three years of age when, in 1928, he was taken from his mother and institutionalised at the Kahlin Compound, under the Aboriginals Ordinance 1918 (NT); the now discredited assimilation policy that permitted the separation of mixed descent Indigenous children from their families. George Bray was to suffer the same fate at age nine. They were part of the Stolen Generation.
In 1994, Arthur Robinson & Hedderwicks (one of the Allens founding firms) agreed to support the North Australian Aboriginal Legal Aid Service in the preparation and conduct of legal proceedings in the High Court of Australia for Alec Kruger, George Bray and seven other plaintiffs.
In the proceedings, filed in 1995, it was asserted that the Ordinance authorising the removal of these children was constitutionally invalid as it impermissibly infringed various constitutional rights/guarantees and fetters on legislative power. Declarations of invalidity were sought as well as damages for infringement of those asserted rights/guarantees and for wrongful imprisonment at common law. It was the first case of its kind.
The Ordinance was asserted to be invalid in that it was not a law for the government of the territories; infringed the separation of powers doctrine; infringed implied constitutional rights/guarantees as to freedom of movement and association, equality and from legislative or executive acts constituting ‘genocide’; and infringed the express constitutional right to freedom of religion. The constitutional questions raised were determined by the High Court, with the Court’s judgment delivered in 1997.
While the High Court did not accept the Ordinance was invalid, the proceedings exposed the devastating impact of forced child removal on the children, their families and the wider community. Neither Kruger nor Bray received compensation for their mistreatment, yet these pioneering trials paved the way towards the national apology to Australia's Indigenous peoples given by Prime Minister Kevin Rudd in 2008, particularly in its message to the Stolen Generation.
The firm continues to undertake pro-bono work to fight for recompense and, in 2011, achieved the first Victorian compensation payment for Neville Austin, one of the Stolen Generation. Austin was 15 months old when he was taken into the care of the State. For the next 16 years his mother fought to have her son returned. Allens Arthur Robinson secured an undisclosed compensation settlement for Austin, as well as a personal letter of apology from the Victorian Government for his treatment as a ward of the state and as a member of the Stolen Generation.
This was a history-making moment on both fronts, though for Austin the apology was more significant than the money. He said his battle through the courts was undertaken 'to vindicate my mum's actions in seeking my return to her care. The settlement represents that vindication.'
Image (top): Maryjane Crabtree, Neville Austin and Peter Haig
Image (bottom): Alec Kruger
Kim Smyth/ Newspix