Thursday, February 26, 2004


As several commenters have pointed out, the post below gets it wrong: here's the passage from the judgement that I missed, thanks to inept use of the technology.

1159 The applicants have pleaded that the Commonwealth had a policy that called for the removal of part Aboriginal children without regard to their individual circumstances. Using the purported existence of such a policy as a lynch-pin, the applicants have then argued that that policy was imposed by the Commonwealth on those who were responsible for the administration and implementation of the legislative schemes that were contained, first, in the Aboriginals Ordinance and, then, in the Welfare Ordinance. The next step in the applicants' argument was to the effect that the Commonwealth, having imposed its policy on the Directors, had thereby caused the Directors to refrain from acting in accordance with their own opinions or had caused the Directors to act without having regard to the interests of the children.

1160 That submission suffered from a lack of support from the documentary evidence. I have already set out many of the writings that were tendered on the subject of "policy". The 1952 principles were clear and concise and I see no reason to withhold from saying that they applied four years later at the time when Peter Gunner went to St Mary's. The position that existed in Lorna Nelson's time was not so clear cut however. It would probably be necessary to go back to the situation that existed prior to the Second World War. Even so, there was nothing in any of the writings that would justify a finding that all part Aboriginal children had to be removed or that all illegitimate part Aboriginal children had to be removed or that all illegitimate part Aboriginal children living in native camps had to be removed. Then, if one moves from "policy" to "implementation of policy", the evidence failed to establish that there even was, at any time, activity on such a scale that it could be said that a general policy of removal was then being enforced. The writings of the patrol officers to which reference has been made have indicated that there was a matter of selectivity based on the personal circumstances of the individual children. As I said at the outset of these reasons for judgment, the evidence does not deny the existence of the stolen generation and there was some evidence that some part Aboriginal children were taken into institutions against the wishes of their parents. However, I am limited to making findings on that the evidence that was presented to this Court in these proceedings; that evidence does not support a finding that there was any policy of removal of part Aboriginal children such as that alleged by the applicants: and if, contrary to that finding, there was such a policy, the evidence in these proceedings would not justify a finding that it was ever implemented as a matter of course in respect of these applicants.

1161 These conclusions do not, however, bring the claims of false imprisonment to an end. To establish imprisonment, it will be sufficient to prove that there was a constraint on an applicant's will that was so great as to induce him or her to submit to a deprivation of liberty; physical force need not be used. A mere taking and detaining will be sufficient and it can be effected as a result of the accumulation of the actions of two or more persons. Thus, it could be that the combined actions of Miss Shankelton and Mr Penhall might be the catalyst for the cause of action.
[My emphasis]

I think that's enough; right now I have some serious sulking to do. Anyone who doesn't consider this an adequate retraction can "porcreateagte with my handsomee loinmds, loinmsns" (I think that last is an MSN Messenger plug-in or something).

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