Inside Story

Windschuttle, again

Keith Windschuttle brings the temperament of a barrister to his latest subject, the stolen generations

Dean Ashenden 15 March 2010 5408 words

Silvia, Louise and Marjorie holding a photograph of their parents as Prime Minister Kevin Rudd delivers the apology to the stolen generations at Parliament House, Canberra, on 13 February 2008. Louise Whelan/National Library of Australia

The Fabrication of Aboriginal History: Volume 3, The Stolen Generations 1881–2008
by Keith Windschuttle | Macleay Press | $59.95

JUST WHEN YOU thought it was safe to go back in the water, there he is again! Rarely sighted since the History Wars petered out five or six years ago, Keith Windschuttle is back on the rampage. In his second book (labelled, confusingly, volume three) about the “fabrication of Aboriginal history” he addresses the 120-year history of the “stolen generations” from 1881 to the present day. The book comprises a contrarian construction of the events in question, a scathing critique of accounts provided by others, and a passionate argument about what each of these reveals about our national character.

Much of this will be familiar. Windschuttle laid out the essentials of the case almost a decade ago. It will nonetheless be surprising to historians, and to lay readers such as myself, not for its novelty but for its recalcitrance. Windschuttle’s reiteration and expansion of his case flies in the face of an extensive scholarly and official literature as well as a now-substantial body of public opinion. But this time he has artillery. In the place of a few articles in a friendly middle-brow journal comes a hefty text of 600+ pages supported by more than 1500 footnotes and forty-odd pages of bibliography and index, handsomely designed and produced to boot. “While the case against genocide for the Stolen Generations has already produced several effective critics…” he writes, “a full defence of the charge has yet to be mounted… That could only be accomplished properly by a complete re-examination of the foundation on which the case was originally made: its claim to be historically true.” The book ranges over the history of dozens of Aboriginal missions, reserves and homes, the policies and agencies of the national government and governments in every state and the Northern Territory, several major court cases, the work of scholars including Peter Read, Anna Haebich and Raimond Gaita and the testimony of high-profile members of the “stolen generations” including Lowitja O’Donoghue, Sally Morgan and Charles Perkins.

Windschuttle’s arguments are lucidly made and powerfully sustained. This is polemic of a high order. He insists that both the term “stolen generations” and the associated accusation of genocide are unwarranted. He argues that few Aboriginal children were forcibly removed from their families and that most removals were on the ground not of race but of welfare, and hence for reasons and with consequences broadly comparable with removals of white children over the same period. Exceptions to this generalisation can be justified, Windschuttle believes, by reference to the specific circumstances of Aboriginal people. In particular, the focus of policy on “half-caste” children was required because they found no welcome in either Aboriginal or white society, and girls of mixed blood faced particular vulnerabilities. The total number of removals, Windschuttle asserts, was but a fraction of the often-claimed 50,000. By his calculation the real total was about 8250.

These realities, Windschuttle contends, have been obscured by a mythology of recent manufacture, imbibed by Aboriginal as well as white, to the detriment of the good and decent people involved in child removal and of our international standing and self-respect. “[The] real Australia,” Windschuttle says, “would never have stooped so low as to try to eliminate the Aboriginal race by stealing its children.” He declares flatly that “there were no Stolen Generations,” and insists that “Australia is not and never has been a country whose people would condone such practices.” (Emphasis added.)

These conclusions, in my view, represent half-truths, contrived and disingenuous, reached not by intention but by conviction. There seems little doubt that Windschuttle is absolutely convinced of the weight and truthfulness of his claims and absolutely confident that the dense fabric of evidence and argumentation he has marshalled leads inexorably to those conclusions. He sees himself as, above all, defending Australia’s honour. It is more likely that his book will give those who doubt our honour, and particularly those abroad, more reason to question whether we will ever be able to deal forthrightly with our history and its legacies. The emotional basis of his assault on the accusation of genocide through the removal of children is clear and simple: What? Us? Preposterous! He claims an Australian exceptionalism. None of this is to suggest, however, that he is completely wrong about everything.

WINDSCHUTTLE’s temperament is a barrister’s, not a historian’s. History needs a puzzling, curious, synthesising intelligence drawn to making the best available sense of whatever bits and pieces the past has left lying about. This Windschuttle does attempt, but his overriding obsession is forensic, to search and destroy, to oppose and expose, to advance one cause and case against all comers. His impulse is less to try to figure out what was actually going on when black children were removed by white men than to demolish a hydra-headed mythology. He sets out with a tightly framed accusation that excludes many other similar and related charges, and selects from a long and complex story only events strictly relevant to the charge, then further selects only the evidence that can be held to disprove the charge and arranges it to best advantage. The preordained triumph of this legalism is then used to assert a general truth about our history and our national character.

Perhaps unsurprisingly, Windschuttle’s use and endorsement of legal method is most clearly on display in his extended discussion of a significant episode in relations between white and black which, fifty years after it occurred, precipitated a court case that itself became an important moment in Australia’s history. Windschuttle’s treatment of the original event and of the legal action about it can serve as a test of his methods and perspective.

On 30 October 1996 Lorna Cubillo filed proceedings against the Commonwealth alleging that its policies had caused her to be removed from her family, for which she claimed compensation. Lorna Cubillo, nee Lorna Nelson Napanangka, was one of sixteen children taken from the Phillip Creek mission near Tennant Creek in the Northern Territory in 1947 to the Retta Dixon Home in Darwin, 700 miles away. The agents of this removal were Amelia Shankleton, a member of staff at Retta Dixon, and Les Penhall, a cadet patrol officer with the Northern Territory administration. Some of the children concerned returned to Tennant Creek within a decade or so, but Lorna returned only as a visitor. Co-claimant with Lorna Cubillo was Peter Gunner, who had been taken from his mother in 1956 and placed in a home in Alice Springs.

As Windschuttle points out, the material stakes of “Cubillo” were high. Waiting in the wings were a further fifteen claims by mothers, more than 700 claims by children, and 1367 by children of children. The intangible stakes were even higher, particularly when, soon after the claim was lodged, the Bringing Them Home report on “the stolen generations” was published. Its sensational allegation of cultural genocide provoked a furious onslaught by commentators (including Windschuttle) who counter-charged the report’s chief author, Sir Ronald Wilson, with “traducing” the nation. Stories were being fought over almost as bitterly as the land had once been. So great was the public interest in the Cubillo case that the judge took the unusual step of allowing his reading of the findings to be broadcast. By then more than four years had passed since the suit had been filed. The court had sat for 106 days in seven towns and cities including Tennant Creek. The findings were appealed, and another year elapsed before the result of the appeal was handed down.

Windschuttle relies completely – and selectively – on the court and its methods and conclusions. The court determined, first, that Lorna Cubillo had to show that she had been removed without the permission of her mother or guardian, but could not. Second, it relied on an earlier High Court ruling to decide that the policies under which Lorna was removed did take account of her race but were nonetheless motivated by concerns for welfare rather than the aim of racial obliteration. And third, the court found that even had these facts not applied, Lorna’s claim against the Commonwealth could not succeed because the Commonwealth was not responsible for the actions and policies of the Northern Territory administration.

The court’s conclusions became Windschuttle’s. Most readers would be entitled to think that it looks like a pretty open-and-shut case, and Windschuttle does nothing to disturb that view. But had he proceeded as a historian rather than an advocate it would not have seemed so simple.

For one thing Windschuttle would have let us in on a number of inconvenient passages in Justice O’Loughlin’s remarks. The judge emphasised that the case was about two people and two only, and about events in the Northern Territory and nowhere else, between 1947 and 1963 or thereabouts, not before or since. He made, and could make, no finding about the wisdom or fairness of legislation or policies of that time and place, nor comment on the consequences of those laws and policies, or on mere practices. In fact, he said, he could consider only motives, and motives only as evidenced in writing or by witnesses; but many who might have been witnesses were now dead and many documents had disappeared, so he was not in a position to make a finding that any of the Phillip Creek families had or had not given their informed consent for the removal of the children. Justice O’Loughlin strongly implied that Cubillo’s lawyers had picked the wrong target. Even if the Commonwealth was, for strictly legal reasons, in the clear, others might not be. The judge found that there was a prima facie case for “the existence of a cause of action” against three of the individual participants (including two officers of the Northern Territory administration), and against the Aborigines Inland Mission “for false imprisonment based on her [Lorna’s] removal from Phillip Creek.” The judge quoted with approval a justice of the High Court speaking of “the awful truth” of child removal. “Neither the evidence in this trial, nor the reasons for judgement [the judge said] deny the existence of ‘the Stolen Generation.’ Numerous writings tell tragically of a distressing past.”

The only one of these many points reported by Windschuttle is that concerning the disappearance of evidence and its implications. It should be noted also that on at least one occasion, in his account of the origins of the Phillip Creek mission, he gets the facts wrong even though they are presented accurately in O’Loughlin’s judgement.

A historian’s approach would also have made Windschuttle more sceptical about witness testimony. He accepts at face value evidence given by former patrol officers, for example, both in court and elsewhere, even though it is in defence of their own reputations. This, given Windschuttle’s often-stated scepticism about oral evidence, is surprising. Perhaps he is entitled to take the judge’s word for the reliability of sworn testimony, although Windschuttle fails to report a number of points at which O’Loughlin declined to accept the evidence of one of those officers. Moreover, he accepts without demur what that same former officer said in unsworn testimony in an interview given not long before the Cubillo case. Nor did he do as he has so often urged others to do and go to the archives to see whether what the patrol officers wrote in the 1940s is consistent with what they said in the 1990s. In at least some cases, on my reading of them, it is not.

A historian would also have departed from Justice O’Loughlin in another matter, his belief – or, more accurately, the belief to which the law required him to subscribe – that officials will say what they mean in official documents dealing with touchy matters. One reason why Justice O’Loughlin concluded that there was no “policy” to destroy Aboriginal society was that no witnesses and no documents available to the court said that that was what they set out to do. Windschuttle is happy to share this view about where “policy” is to be found, even though elsewhere in his book he mounts a very cogent argument that “policy” is what people do, not what they say. Had he conformed to his own definition of the term he might have found that “policy” was destroying Aboriginality even if it didn’t say so.

Most importantly, a historian would have been much more curious than Windschuttle about how it was that eight-year-old Lorna Nelson came to be in such a fix.

JUSTICE O’LOUGHLIN’s judgement contains some but not all of the relevant facts. It records that Lorna’s mother Maudie died when Lorna was very young, and that from then until her removal from the Phillip Creek mission at the age of eight years she was in the care of her dead mother’s sister, Mysie (or Maisie). It was Mysie who would have had to be shown to have refused permission for Lorna’s removal to Darwin. The court notes that Maudie and Mysie were daughters of a woman known as “Alice,” but looks no further. Nor does Windschuttle.

Maudie and Mysie’s mother “Alice” was Alice Nampin, a Garrwa woman, from the Borroloola district in the Gulf country, hundreds of miles northeast of Tennant Creek. Alice had been “given” to a station-owner from the Tennant Creek area in the 1890s during the latter’s visit to Borroloola on a cattle drive. When things were at their worst in the Gulf country, in the 1880s, Garrwa girls were being kidnapped in an organised trade and sold to frontiersmen and mining prospectors for ten pounds apiece.

It is likely that the man to whom Alice was “given” was Tom Nugent, previously a member of a gang that roamed the Territory in the early days of the frontier making a rough living, not necessarily by legal means. Looking to settle down, Nugent took the lease on a station he called Banka Banka, just a few miles up the road from the Tennant Creek telegraph station, and so brought cattle deeper into the country of the local people, the Warumungu. There he fathered a number of children by Aboriginal women and it is very likely that at least some of them were from his liaison with Alice Nampin, and that two were the girls known as Mysie and Maudie.

Not long into the new century Nugent gave up Banka Banka and went to live and work at the telegraph station adjacent to the Tennant Creek waterhole. The telegraph station was by then well-established as a ration depot where some old people camped, more or less permanently, and others came and went depending on the season and the availability of work on cattle stations such as Banka Banka. And that is probably how Nugent’s (probable) daughters Maudie and Mysie came to camp near and work at the station, and to have continuing associations with both the telegraph station and with Banka Banka, and hence with the papulanyi, the white men.

Mysie had three children (or perhaps four, the record is contested) by a white man named Dixon, then another two children by a Warumungu man named Mick Japangarti. All five (or six) of Mysie’s children were of mixed racial descent, known as “half-castes,” and were therefore vulnerable to the attentions of a policeman who set up shop near the telegraph station in response to the gold rush that began in 1932. Mysie’s children by Dixon were taken by the police, the girls to Darwin, a boy to a station south of Tennant Creek. The two younger children escaped, hiding in the spinifex from the policeman on his horse. This was the period when Aboriginal women learned (as is recorded by Justice O’Loughlin) to darken their mixed-descent children with charcoal whenever the word spread that there was a government man about.

Maudie had a child, Lorna, by a soldier by the name of Horace Nelson. Very early in Lorna’s life, perhaps even before she was born, the soldier disappeared from the scene, which is how Lorna’s aunt Mysie became, in white terms, her foster mother. On evidence given to the court and other oral evidence it seems likely that Mysie moved back and forth between the telegraph station and Banka Banka and therefore placed Lorna in the care of the missionaries at Phillip Creek and added the mission to her itinerant route. That is probably why the court had such difficulty in establishing her whereabouts at the time of Lorna’s removal.

Although some of the specifics of this sequence of events are not known with certainty the character of the history to which they belong is, and from it a number of conclusions can be drawn.

First, the removal of the sixteen children from Phillip Creek in 1947 belongs to a long sequence of abductions and removals of various kinds for various reasons. In the history of Australia as a whole the first abduction, of Arabanoo by Governor Phillip, occurred within months of the white arrival on the continent. In the history of Mysie and Lorna’s family, abductions or removals occurred across three generations: first Mysie’s mother Alice Nampin, the Garrwa woman; then Mysie’s children by the white man Dixon; then the foster child Lorna.

Second, such abductions and removals were only one part of the destruction of the relationship between Aboriginal generations. Others, in the experience of Mysie and her forebears and children, included being forced to move, sometimes constantly, to find work or sustenance in the face of the relentless erosion of access to land and water that followed the arrival of the telegraph line in 1872 and of the cattle a decade or so later. For the same reasons, younger people (who went to work on the cattle stations) became separated from the older (who often camped as indigents around the telegraph station and subsequently at the Phillip Creek mission). In this way family and authority structures were weakened and often broken.

These ceaseless disruptions and dislocations had much greater impact than abductions and removals. They contributed to the development of alcoholism, new forms of domestic violence, the selling of sex, and venereal and other diseases, all of which greatly compounded the problem of sustaining functional relationships between the generations, even in relatively fortunate groups such as the Warumungu. As is now well known, the repercussions of events that, in the case of the Tennant Creek region, commenced 150 years ago, continue still. Justice O’Loughlin’s judgement records that at the time of the court case Lorna Cubillo had been caring for two grandchildren for more than a decade because they had been abandoned by their mother and their father, her son, a drug addict.

In the chaos of the frontier and its residues the question of whether Aboriginal families did or did not give formal permission for their children to be taken away, or even asked that they be taken away, may seem rather more important to the courts than to the people concerned. Windschuttle is quite right to point to the variety of circumstances in which “permission” was given and/or desperate need arose, and to point to the various motives of participants, but wrong not to attempt to see those circumstances in full or from the point of view of those who experienced them. Some families were incapable of caring for children or had effectively disappeared altogether. Others had lost the will or confidence to “grow them up.” Still others thought that they no longer knew how to grow them up, that their way was in the dustbin of history, while some wanted their children to be educated in the Western way as well as their own. All were aware of the extent of white power and their own powerlessness in relation to it.

Justice O’Loughlin was acutely conscious that this legal matter concerning two people, and two people only, in 1947 and 1963 was just one small part of an encompassing human tragedy. Windschuttle is not. He is with the removers, not the removed, committed to one, oblivious to the other. To look, even for a moment, from the point of view of the removed would have disrupted Windschuttle’s entire argument.

Consider, for example, how Lorna Cubillo’s experience might look to her. The papulanyi deprived her family of the means and perhaps the will for an independent life. Unable to provide for her they acceded to the offer of the whitefellas at the mission to look after her. Then those same people took Lorna away to a place so far off that it might as well have been on another planet. Decades later the papulanyi provided Lorna with an opportunity to tell what had happened, which she did. But they refused to believe her. Then they changed their mind; deciding that she was right after all, they offered an apology – Lorna Cubillo, tears streaming, was in the gallery on that signal occasion. But the apology was for only one of the injuries she has suffered; and there was no compensation for any of them.

Windschuttle wants none of this limp-wristed relativism. He is a true believer. He stands on the doctrine of assimilation, in its most muscular form. That is why he identifies so completely with the cause of those involved in the removal and care of children. He spends the concluding sentences of the book making just this point. “Aboriginal children are Australian citizens,” he writes. “They deserve nothing less than the same opportunities provided for all other children in this country. Most of the people discussed in this book who worked in Aboriginal child welfare in the twentieth century thought the same… For the most part, they did the right thing, both according to their own moral values and the best interests of the children and families they served.”

Windschuttle spares us confusing arguments against assimilation and about alternatives to it. For example, that it doesn’t work. This possibility Windschuttle refuses to entertain, instead claiming that many half-caste people did not identify as members of a distinct racial community. But very often the whites who have to do the assimilating don’t want to. We have been in favour of assimilation in the generality since the 1967 referendum; in the concrete, as the Pauline Hanson episode shows, our feelings have been more mixed. It is also the case that many Aboriginal people don’t want to, or can’t, assimilate, at least not on the terms offered. As W.E.H. Stanner famously observed, assimilation asks Aboriginal people to un-be who they now are – but what if they do not know how? And Stanner was hardly one of those misty-eyed romantics that Windschuttle likes to blame for the damnable policy of self-determination.

It would be possible to argue for an assimilationist policy as a way of smoothing the path toward the inevitable upshot of what Noel Pearson has called the struggle between the 3 per cent mouse and that 97 per cent elephant. But Windschuttle prefers doctrine. Toward the end of his book he offers an astonishing hymn of praise to the civilisation that brought so much misery to an entire people, and an equally astonishing denigration of those who suffered it: “The idea that human beings can be something more than units in a collective,” he writes, “where their place was fixed and their future determined, has only arisen in societies that recognise that every individual life matters. That notion made no sense at all in traditional Aboriginal culture… in a profound sense, the missionaries accomplished what they set out to do, that is, to bring Christianity and civilisation to the world of tribal nomads…” This compares favourably with the government officials of their era, says Windschuttle, “who preferred to leave full-blood Aborigines under customary law, thereby preserving intact many of the practices the missionaries fought against, especially the propensity to violence, the ‘property status’ of women, and sex with children.”

Windschuttle makes these claims on the basis of the work of often well-intentioned, humane people who did what they could for Aboriginal children. But he forgets to point out that his cavalry typically arrived on the scene well after the damage had been done and, in the Phillip Creek case, eighty years after the whole wretched business got under way. He is often eloquent in describing the appalling circumstances in which many Aboriginal children were placed. “Parents who neglected their children, who let them go hungry, who abused them with violence, who prostituted them, who let them go wild with no supervision, or who drank themselves into an alcoholic stupor…” he writes, “all faced forcible removals.” But his eloquence fails him when it comes to considering where these circumstances came from. He presents the agents of church and government as if they were paratroopers airlifted into a dystopia of foreign manufacture.

Windschuttle is quite correct, in my view, to argue that those involved in child removal and care were often, but not always, driven strongly, but not exclusively, by ideals drawn from post-Reformation Christianity and Enlightenment humanism that many of us happen to share. But those people were representative not of us, but of one part of us, of a post-frontier conscience which in most cases, and certainly in the case of Lorna Cubillo and her forebears, turned a blind eye for decades before it roused itself to action. Until that long-delayed day, what would be seen in the Northern Territory was not the conscience of post-frontier society that Windschuttle surveys but the wants and desires of the frontier: for land and water; for cheap labour; for sex; and, often enough, for blood.

The interaction between frontier and post-frontier society, between the wants and desires of the former and the conscience of the latter, is the source of much of the complexity, contradictoriness and moral ambiguity in the history of relations between black and white. It is made more complex still by Aboriginal responses ranging from violent resistance to acceptance and cooperation. One of the things that allow Windschuttle to mount such a clear and consistent case is that he attends to only one of the three or four elements that constituted a long chain of chemical reactions. To argue as he does that our national character is seen in just one part of this morally ambiguous chaos of events is to be exculpatory, to say the least of it.

WINDSCHUTTLE is less likely to be on defensible ground in his account of events than in his criticisms of other accounts; and he is much less likely to care about what those accounts have got right than what they have got wrong. He is so belligerent, so reckless, so often guilty of the offences of which he accuses others, that those attacked could be forgiven if they simply refuse to engage with him yet again or join him in his game of gotcha, a temptation to which an enraged Robert Manne understandably succumbs in the February edition of the Monthly. Windschuttle’s position is relatively friendless at the moment, but there are no grounds for complacency. However galling it may be, it is important to respond, and to do in his case what he declines to do for others, to ask: what has he got right?

Windschuttle has raised, or more accurately, re-raised, four questions that have not yet been well stated and/or answered. He is not the first or by any means the only one to draw attention to any of these issues although his take on them is distinctive.

First, he is of course correct to say that there are events and actions in the story of black and white for which we can be grateful, and to attribute these to post-Reformation Christianity and/or Enlightenment humanism. An irony in this claim, however, is that it follows his bête noire Henry Reynolds in his 1998 This Whispering in Our Hearts – except that Reynolds reminds us that the “light” in our history was accompanied by the “dark.” Windschuttle is also correct to criticise the quite misplaced (and ahistorical) sense of moral superiority which leads many Australians to condemn our past out of hand. But again, this is hardly new or derived only from Windschuttle’s particular outlook; the anthropologist Gillian Cowlishaw has been making the point for at least a decade, and many have followed her lead. And Windschuttle fails to criticise the misplaced sense of national superiority that leads many Australians into the opposite error.

Second, Windschuttle is of course entitled to question the number of children removed, although he perpetuates one of the weaknesses of previous calculations. His argument is that removals were of several kinds and for widely varying durations, but his tabulation of them is in aggregate only. The absolute and relative numbers of removals and of kinds of removals is important to his construction of events, but more so to his attack on the credibility of those who have claimed totals of 50,000 or so. Whether Windschuttle’s recalculation is correct or partly so will not be known until earlier calculators have responded in detail to the detail he has now provided. Robert Manne’s review in the Monthly gets proceedings off to a vivid start.

Third, Windschuttle is correct to join the many who have expressed concern about the term and concept “stolen generations,” although it is more accurate to say that the term is a misnomer rather than to argue, as Windschuttle does, that “there were no Stolen Generations.” And it is more helpful to point out that the concept has done damage of a kind very different from that alleged by Windschuttle. It has distracted attention from the extent and complexity of abduction and of other forms of disruption of relations between Aboriginal generations, not to mention the many other consequences for Aboriginal people of the white presence. The disproportionate attention given the “stolen generations” created the sitting duck that Windschuttle triumphantly bags (thus helping to perpetuate the problem, by the way). The claim about the “stolen generations” has come to be used as a proxy for all the wrongs visited upon black by white, most prominently in the prime minister’s apology. There is much more to be apologised for – and compensated for – than the “stolen generations.”

Fourth and last is the most difficult and dangerous question of them all: “genocide.” Windschuttle wants to declare the charge dead. He asks why there has never been any naming of names or attempt to initiate proceedings, a kind of dare implying that if the case hasn’t been mounted then we’re innocent. There is more to be gained by looking at the charge itself. Is “genocide” another of these concepts developed to name events in other histories, mainly European, and then applied to ours? Is it one of those terms that don’t really fit, such as “invasion,” “conquest,” or “war”? Or “settler,” “explorer,” and “dispossession”?

Raphael Lemkin, who coined the term, put intention at the centre of his neologism, something much easier to find in respect of governments and other organised groups than in the uncoordinated but pervasive and many-sided assault by white society on black in Australia, and where the motive forces were wants and desires rather than intentions. In the Australian case organised entities such as governments and churches were by no means innocent bystanders as the frontier’s wrecking ball went to work, but nor were they its principal agents. Sometimes these representatives of a post-frontier conscience stood between the protagonists, which is why they reward Windschuttle’s partial examination. But most of their sins were of omission rather than commission, of an averted gaze and a buttoned lip, of hypocrisy rather than of a deliberate campaign of destruction unashamed to say what it was up to. It is ironic, to say the least, that the agents of post-frontier society who eventually set out to do something about frontier carnage have ended up being charged with the worst of crimes while the agents and institutions of the frontier have been home free.

What is vulnerable to a genocide-like charge, yet to be given its proper name, is not the agency of church and government surveyed by Windschuttle so much as the entire historical process and the social order that enacted it, and that hardly entitles us to the kind of self-congratulatory comfort Windschuttle wants to administer. •