Parental 'Consent' to Child Removal in Stolen Generations Cases

The Australian National University
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Past Law, Present Histories, 2012, 1, pp. 193 - 208
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Our reading of recent Stolen Generations cases argues that courts prior to the Lampard-Trevorrow (2007) treated consent as an individual act, freely and voluntarily given by a liberal subject. Consent was seen as a legitimate factor that duly activated the powers of the legislation to bring about legal removal, according to Justice Maurice O Loughlin in Cubillo. In the previous Stolen Generations case of Williams, formal consent had barred false imprisonment and trespass on the basis that a child cannot be imprisoned if her mother consented to the removal. This chapter goes further than simply suggesting that Aboriginal consent has been misread by the courts which was clearly the situation until the case of Lampard-Trevorrow. It also proposes that consent was, and is still used in an underhanded way by the state to legitimise its actions and protect itself from liability. After all, most statutory creatures governing the Stolen Generations allowed for removal, irrespective of consent. The state, nonetheless, sought to procure consent in order to rationalise the policy, facilitate removals, and shift the responsibility for removal from the state to Aboriginal parents.
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