Senate Legal and Constitutional References Committee - Inquiry into the stolen generation
Public hearing, 12 July 2000
Opening comments by Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission
I thank the Committee for the opportunity to appear here today and I would like to acknowledge the Eora people, the traditional owners of the land where we are meeting today. The Commission has provided you with a lengthy submission and a four page executive summary. We have also provided copies of the 1998 Social Justice Report, which was a follow up to Bringing them home. < Our submission responds to the Inquiry's first term of reference, namely the adequacy and effectiveness of the Commonwealth's response to the recommendations of Bringing them home. In the course of dealing with this term of reference the Commission has made comments that are relevant to the remaining terms of reference of the Inquiry.The ultimate conclusion that the Commission has reached in the submission is that the Commonwealth government's response to the recommendations of Bringing them home to date has been inadequate and inappropriate. The Commission particularly notes that the government's submission to this inquiry constitutes a fresh response to many of the recommendations of Bringing them home, which rejects several recommendations of the report on the basis of flawed arguments and poor reasoning.
The Commission is of the view that the government has not provided any sound arguments for failing to implement the recommendations of the report. It is the view of the Commission that the recommendations of Bringing them home continue to constitute the minimum acceptable policy response to the separation of Aboriginal and Torres Strait Islander children from their families.
In the submission, we identify three principles that we recommend should be adopted by the Committee, and which we use to evaluate the adequacy and effectiveness of the government's response. These are the principles of national leadership and coordination; the necessity to address the consequences of forcible removal policies and practices within a human rights framework; and the requirement of ensuring the effective participation of Indigenous people in decisions that affect them.
As we argue in the submission, the government's response does not address these criteria. Until it does, the government's response cannot be judged as effective or even merely adequate.
The first of these principles is that of national coordination and leadership. The Commission considers that there needs to be a nationally coordinated approach in developing, monitoring and evaluating programs, in order to ensure full compliance with human rights principles; to maximise efficiency and ensure there is no duplication of services at different levels; and to ensure that the recommendations of the report do not disappear off the agenda due to jurisdictional 'cracks' or demarcation disputes between governments.
Our submission provides numerous examples of recommendations that have not been adequately implemented due to the lack of national coordination and leadership. In particular, I note the discussion in our submission of recommendations 2 and 43-53.
The second principle identified by the Commission is the necessity to address forcible removal issues within a human rights framework. Perhaps the greatest flaw in the government's response to the report to date has been the failure to understand or acknowledge the human rights basis of the recommendations.
The recommendations of the report are based on a detailed analysis of international principles arising from treaty obligations and international customary law. In rejecting the recommendations, the government has provided either a superficial analysis of these international principles (particularly in relation to the meaning of genocide, the concept of reparations and the status of the van Boven principles), or has provided no analysis at all (for example, in relation to the findings of the report that forcible removal policies and practices were racially discriminatory).
An example that demonstrates this approach is the government's rejection of the recommendations relating to the payment of compensation on the basis that no legal liability to do so has yet to be established.
At its simplest, there is no capacity within the legal systems of Australia to establish such liability in a court of law in relation to a number of the grounds identified in Bringing them home.
As this Committee noted in a recent report, genocide is not prohibited in Australian law. Similarly, there is no redress available for laws, policies and practices prior to 1975 that were racially discriminatory. In some states, for example Western Australia, limitation periods also prevent civil actions from being brought.
It is disingenuous to insist that legal liability is a prerequisite to considering compensation options when it is manifestly clear that victims of forcible removal policies are prevented from being able to establish such liability through court processes on some of the grounds identified in Bringing them home.
The government's limited approach does not account for principles of international customary and treaty law that require that there be redress for victims of gross violations of human rights.
As we note in the final section of our submission, the failure of the Commonwealth to acknowledge these principles runs contrary to a world wide trend. Examples in Canada, Aotearoa / New Zealand, Norway, Denmark, the United States and South Africa variously demonstrate an international acceptance of the principle of reparations for violations of human rights, which extends to monetary compensation; the importance of acknowledgment of the wrong done and apology; and of the human rights basis for providing redress.
The third principle identified by the Commission in our submission is that of ensuring the effective participation of Indigenous people, especially those affected by removal policies, in the development of responses to the report. It is crucial that Indigenous people are directly involved in the implementation of the recommendations. The Commission urges the Committee to adopt this principle of effective participation as key measure of the adequacy and effectiveness of the government's response to the report.
In the limited time left for these opening remarks I want to make four further points, which I will keep brief.
The first is the absence of an adequate response to the fourth term of reference of the National Inquiry, which relates to contemporary forms of separation of indigenous children from their families. The report recommends national legislation to implement the principle of self-determination in juvenile justice, care and protection, family law and adoption. In the submission we use the example of mandatory sentencing laws as contrary to this approach. And today's Sydney Morning Herald provides further reason why these recommendations should be reconsidered. It details the extent of removal of Aboriginal children in NSW under care and protection legislation, and has been referred to as a 'new stolen generation'.
The second relates to proposals for the establishment of an alternative dispute resolution tribunal. The Commission has provided examples of models and factors that have been, or are currently being, taken into account in other countries. In particular I note the recent report of the Law Commission of Canada titled Restoring dignity, which provides detailed analysis of the pros and cons of various approaches to redress for victims of institutional abuse in Canada.
Significantly, the Law Commission highlights the necessity to ensure that the perspective of survivors are at the centre of any approach taken and that there must be diversity in the range of choices available to survivors. The Commission also recognises that a process for providing redress should, in addition to taking into account the needs of survivors, their families and communities, be 'fair, fiscally responsible and acceptable to the public.' The Law Commission concludes that providing redress options is necessary and that these concerns can be met.
[Other relevant models discussed in the submission include vaccine damage tribunals in the UK and USA and war veteran's compensation in Australia. These models demonstrate that governments, including the Australian government, have previously made public policy decisions that it is in the public interest to provide compensation, irrespective of difficulties associated with liability and the quantification of loss.]
As noted at the outset, the Commission is of the view that the recommendations of the report constitute the minimum acceptable response to forcible removal policies and practices. They constitute an appropriate starting point for negotiations between Indigenous people and government about alternative processes for reparation. The Reparations Tribunal proposed by the Public Interest Advocacy Centre, for example, adopts the recommendations and analysis of the report as the basis of their model.
A further point I wish to discuss is that it is the Commission's view that much of the government's approach is based on a misrepresentation of the methodology of the report. Our submission considers the ways in which the government misrepresents the methodology of the report in some detail.
One aspect of their approach is to suggest that the report was not based on a critical appraisal of the claims put to the Inquiry and failed to elicit the other side of the historical record. This does not account for the fact that the report is based on a detailed examination of legislation and official government documents. The stories of Indigenous people were used to illustrate the effects of these laws, not as the basis of the report's conclusions. The 'other side of the historical record' includes the detailed records and submissions supplied to the National Inquiry by the states and churches, who were the employers of those implementing the removal policies.
Finally, on the estimates of the total number of children removed, the government's attempt to down-play the number of children removed by displacing statistical analysis with highly speculative and unscientific arguments is deeply problematic. The estimate adopted in Bringing them home is conservative and directly referable to all available statistical analysis. The report accounts for imperfections in the data, by suggesting that the true figure falls within a broad range of between 10% and 33%. There is nothing in the government's arguments to suggest that this range is excessive or unrealistic.
The government's focus on the exact number of children removed, the fact that they have argued that the number is lower than suggested in the report in order to justify their non-implementation of the recommendations, and their wordplay on what constitutes a generation, misses the point and denigrates the victims of forcible removal policies.
The Commission is also concerned that the government's approach has operated as a distraction from the main concerns of the report. Accordingly, to conclude I want to return to the introductory remarks of Bringing them home, which state that:
In no sense has the Inquiry been 'raking over the past' for its own sake. The truth is that the past is very much with us today, in the continuing devastation of the lives of Indigenous Australians. That devastation cannot be addressed unless the whole community listens with an open heart and mind to the stories of what has happened in the past and, having listened and understood, commits itself to reconciliation ... The Inquiry's recommendations are directed to healing and reconciliation for the benefit of all Australians.[1]
This purpose has been largely obscured by the debates since the release of the report, and the Commission urges that the Committee be mindful of this purpose in conducting the rest of this inquiry. Thank you.[1] Bringing them home, pp3-4.
