Social Justice Report 1998 : Chapter 4: Government Responses to the Recommendations of Bringing Them Home

Social Justice Report 1998

Chapter 4: Government
Responses to the Recommendations of Bringing Them Home

Introduction
- Methodology
  of Follow Up Project
Overview
of government responses and implementation
Implementation
in specific areas
Outlook

Introduction

Bringing Them
Home - the Report of the National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from Their Families (the
National Inquiry) - made 54 'head' recommendations, 83 recommendations
in total [1], to address what was referred to as 'the
continuing devastation of the lives of Indigenous Australians'. The
implementation of most recommendations requires action to be taken by
the Commonwealth Government and/or State or Territory Governments. A
follow-up project was undertaken by Human Rights and Equal Opportunity
Commission (the Commission) to collate the various Government responses.
The results of the project are presented in Bringing Them Home:
Implementation Progress Report (the Implementation Report [2]).
This chapter reproduces the research in that Report.

The Implementation
Report does not purport to be a comprehensive account of all actions
taken by the nine governments in full or part response to the National
Inquiry's 83 recommendations. The enormity of the task to compile such
a matrix of individual and joint government responses to each recommendation
is obvious and clearly beyond the bounds of the Commission's follow
up project. In any case, such a task - like the painting of the Sydney
Harbour Bridge - would never be finished. Rather, the aim is to provide
a more general account of the governments' responses. This is reflected
in the thematic structure of the Implementation Report, where related
recommendations are grouped under broad headings and discussed collectively.
The Implementation Report focuses on the principal initiatives that
have been taken by governments (as well as those that have not) which
bear significantly on the matters of concern raised by the recommendations.
The Implementation Report is largely descriptive, though an effort has
been made to place governments' responses in the context of the aims
of the National Inquiry's recommendations.

The Commission
has continuing statutory responsibilities that relate to the Report
of the National Inquiry. Pursuant to these responsibilities the Commission
established the follow up project in order to facilitate the implementation
by governments, in their individual and collective capacities, of the
recommendations made in the Report of the National Inquiry. The project
ran for a total of seven months, from early December 1997 until the
Implementation Report was completed in late June 1998. [3]

The project had
four objects:

(i) to fulfil statutory
obligations

Under section 46C
of the Human Rights and Equal Opportunity Commission Act 1986
(HREOCA) the Commission, through the Office of the Aboriginal and Torres
Strait Islander Social Justice Commissioner, is required to report on,
and generally to promote, 'the enjoyment and exercise of human rights
by Aboriginal persons and Torres Strait Islanders'.

Under sections
11(1)(e),(f),(g),(h) and (p), 13(1), 14(1) and 29(1) of the HREOCA the
Commission is further, and more extensively, empowered to examine current
or proposed enactments and practices regarding their compliance with
human rights. It is also empowered to research into and to promote human
rights in Australia in such manner as the Commission sees fit, and to
report on its findings.

The Commission's
concern to see the recommendations of the National Inquiry implemented
and its establishment of the follow up initiative to assist and assess
that process clearly falls within each of these enumerated statutory
obligations and provisions.

(ii) to explain the findings
and recommendations of the National Inquiry

Though the recommendations
are clear on their face, the Commission appreciated that there was a
need for their scope and rationale - including the findings that lie
behind them - to be more fully articulated, especially in the context
of governments faced with the practicalities of implementing the recommendations.

As author of Bringing
Them Home, the Commission was well to do so.

(iii) to facilitate inter-governmental
communication

As the nature of
many of the recommendations requires a common or coordinated response
from Australian governments, there is a need for an ongoing institutional
and procedural framework for inter-governmental coordination and communication
to facilitate this process.

The Ministerial
Council on Aboriginal and Torres Strait Islander Affairs (MCATSIA) has
been charged with the primary responsibility for coordinating cross-governmental
implementation of the National Inquiry recommendations at a ministerial
level. There appeared, however, to be a need for communication and coordination
between departmental officers on more informal terms and on a more regular
basis than is possible through MCATSIA. The project, therefore, was
viewed clearly as a supplement to the MCATSIA process, not a substitute
for it. [4]

(iv) to facilitate communication
and mutual assistance between governments and the National Indigenous
Working Group on Stolen Generations

In so far as it
was able, the Commission assisted in establishing lines of communication
and understanding between governments and the National Indigenous Working
Group on Stolen Generations. It was intended that the concerns both
of governments and Indigenous people regarding the former's responsibilities
to implement the recommendations would be more fully appreciated and
better addressed in advance of implementation, as well as in the process
of implementation. [5]

Methodology of Follow
Up Project

In respect of each
of the nine Australian governments, the Department or agency responsible
for the construction and/or coordination of the government's response
to the National Inquiry's Report, or, more generally, had carriage of
the Aboriginal and Torres Strait Islander Affairs portfolio, was identified
and the responsible Minister approached. In each case a meeting was
sought initially with that Minister, the Director or Chief Executive
Office of the relevant agency and other officers, as well as Ministerial
advisers. Despite concerted efforts, it was not always possible for
all of these people to attend the meeting in each jurisdiction.

Meetings with each
government were held, though the composition of the government representatives
varied from jurisdiction to jurisdiction. In each case, however, the
meetings were attended by Sir Ronald Wilson and Dr David Kinley, representing
the Commission, and a local member of the National Working Group on
Stolen Generations and/or a representative or representatives of other
local Indigenous bodies. The meetings were conducted in each jurisdiction
from February 1998 to late April 1998.

Meetings were held
with the responsible Minister in three jurisdictions. Meetings were
held with representatives of appropriate departments in all jurisdictions.
In the case of the Commonwealth Government, however, though meetings
were held with officers of the Department of Health and Family Services
(and with a member of the office of the Minister for Health and Family
Services) and with officers of ATSIC, there were no meetings held with
officers from the Office of Indigenous Affairs in the Department of
Prime Minister and Cabinet or the Office of the Minister for Aboriginal
and Torres Strait Islander Affairs.

A constant feature
throughout the progress of the project was the involvement of the National
Indigenous Working Group on Stolen Generations, especially through its
then co-chair Ms Carol Kendall. In particular, it was always the case
that the Indigenous representative or representatives from each State
and Territory that attended the Follow Up project meeting in that jurisdiction
also sat on the National Indigenous Working Group on Stolen Generations.
Invariably a meeting was held with the Indigenous representative or
representatives immediately before the scheduled meeting with the relevant
government.

Questions and discussions
in the meetings centred on each government's response where there was
one (in the case of the Commonwealth, Tasmania and Victoria), or progress
of response to the National Inquiry's recommendations, as well as issues
and initiatives raised by each government in their respective submissions
to the National Inquiry throughout its term.

Pertinent information
and materials were obtained from governments both during and after the
meetings. Indeed, a significant part of the collection of material occurred
by way of numerous communications with agencies representatives in the
months that followed the initial meetings. Inevitably, some information
will have been missed. Generally speaking, agencies were open and willing
to provide all that they could and were frank in their answers to our
many queries. But it is true that some were more cooperative than others.
[6]

Overview of government responses
and implementation

Progress of responses

On 31 July 1998,
one year and two months after the tabling of the National Inquiry's
Report in the Commonwealth Parliament, five governments had delivered
formal responses to the recommendations of the National Inquiry. They
are, in order of delivery:

Tasmania,
17 August 1997 (43 pages; including full recitation of each recommendation);

Victoria,
17 November 1997 (60 pages; including full recitation of each recommendation);

Commonwealth,
16 December 1997 (13 pages);

Queensland,
7 April 1998 (18 pages; including abbreviated descriptions of recommendations);

Australian Capital
Territory, July 1998 (17 A5 pages; including full recitation of
each recommendation). [7]

Formal responses
are in the process of being compiled in all of the other four jurisdictions.
In respect of South Australia and Western Australia the
process is well advanced, in that it is our understanding that completed
drafts of the responses are awaiting Cabinet approval.

In New South
Wales, a detailed draft response was prepared by the government,
but on its presentation to the Steering Committee in May 1998 significant
concerns were raised as to its form and content. The government is currently
reviewing how best it can meet those concerns in its response [8],
but, in any event, anticipates making a response by September 1998.
The Government published a brief Statement of Progress on 26
May 1998. In addition, however, it should be noted that the New South
Wales Government made available a draft summary of its response (dated
April/May 1998), on the condition that its use in the Implementation
Report be acknowledged as such and that it be further noted, in particular,
that the summary 'is not endorsed by either the Department of Aboriginal
Affairs or the Minister for Aboriginal Affairs at this stage, as it
is yet to be considered by Aboriginal communities and organisations'
in forthcoming consultations (see further detail below).

In respect of the
response of the Northern Territory Government, it is our understanding
that it has been approved in outline by Cabinet and is presently being
finalised. In any event, in the meetings with each of the governments
it was indicated to the project team that each of the governments whose
response is outstanding expected to deliver their response within a
matter of months, and almost certainly before the end of 1998.

In the meetings
with those governments yet to respond, the project team was told repeatedly
that one of the reasons for delay was to await the delivery of the Commonwealth's
formal response.

Funding specifications

Breakdowns of the
financial implications initiatives are not provided in the responses
of Queensland, Tasmania, Victoria and the ACT. Some specific sums are
nominated (though in the case of Queensland, none of these appear to
relate to newly funded initiatives established or to be established
in direct response to the National Inquiry's recommendations) and these
are referred to under the particular headings below. A total amount
of new funding of more than $425,000 over two years was announced in
a statement that accompanied the Victorian Government's response [9].
No such total sum of new funding has been provided by Tasmania, Queensland
or the ACT.

In anticipation
of the publication of its response, the Western Australia Government,
through the Minister for Aboriginal Affairs, Dr Kim Hames, announced
on 20 May 1998, that '$1 million had been provided in the 1998-9 State
Budget to begin the initiatives outlined in the response' [10].
These initiatives (as discussed further below) are concerned with records
access and management, regional information and counselling services.
The Minister also stated that approximately $600,000 would be recurrent
funding for these services.

The Commonwealth's
response contains a broad outline of funding for the initiatives it
proposes, as reproduced below. Details of the breakdown of the proposed
expenditures were not provided in the response.

Total Commonwealth
funding package = $63 million ($54 million 'new' funds) over an average
of four years:

$39.15 million:
employment and training of 50 additional counsellors ($33.25 million);
research, clinical support and parenting programs ($5.9 million).
To be administered by the Commonwealth Department of Health and Family
Services (DHFS).
$11.25 million:
establishing a national network of Link-Ups. To be administered by
ATSIC.
$2.0 million:
indexing and preservation of records. To be administered by Australian
Archives.
$1.6 million:
to run an oral history project. To be administered by the National
Library.
$9.0 million:
to bolster the work of language, culture and history centres. To be
administered by ATSIC. It must be noted that this amount comes from
within ATSIC's existing general purpose budget.

These figures are
confirmed in the 135 page statement issued by the Minister for Aboriginal
and Torres Strait Islander Affairs, Senator Herron, entitled 'Addressing
Priorities in Indigenous Affairs', delivered on the same day as the
Budget was handed down (12 May 1998) [11]. Specific
details of the breakdown of these amounts were not provided in the statement.
However, the appendices to the statement do provide some additional
general information about the departmental programs through which the
funds will be channelled, as well as the expected outcomes. [12]
This additional information is discussed under the appropriate sub-headings
in section 7 below.

Structure of responses

The responses of
Tasmania, Victoria, Queensland and the ACT specifically consider each
of the National Inquiry's 54 recommendations (and sub-divisions, where
appropriate), as regards the nature and extent of what the governments
perceived to be their responsibilities. In each case, the responses
begin with a brief overview of the background of the National Inquiry,
the general strategies of the government in question in respect of Indigenous
issues and specific initiatives (whether ongoing or planned) that bear
on the issues raised by the Inquiry.

Themes

It was recognised
by all governments that the broad scope of the National Inquiry's recommendations
was not confined to the responsibilities of Aboriginal and Torres Strait
Islander Affairs portfolios. The matters covered in the recommendations
fall within the bounds of a number of government departments. Typically,
the other 'mainstream' portfolios affected are those covering human,
community and family services, health, education, youth affairs, records
and archives, Attorney-General's, justice (and juvenile justice, if
separate), police and finance.

A direct result
of this cross-portfolio responsibility was that a coordinated approach
to the compilation of individual governments' responses was invariably
adopted. This approach took the form of the establishment of a Steering
Committee (in New South Wales) [13] or an Inter-departmental
Committee (in Victoria, Western Australia and the Commonwealth). In
the alternative, the Department or Office responsible for Aboriginal
and Torres Strait Islander affairs acted as coordinator (in the ACT,
Queensland, Northern Territory and South Australia), or the Offices
of Premier and Cabinet Office (Tasmania and Western Australia), or Prime
Minister and Cabinet (the Commonwealth) took on the role.

Just as the breadth
of issues encompassed by the recommendations required a coordinated,
cross-portfolio response, so the implementation of the governments'
responses will require a coordinated scheme of supervision and monitoring.
This need has been foreshadowed by some governments. For example, the
Office of Aboriginal Affairs in Tasmania has indicated that it will
be undertaking a review of the Government's response by September 1998.
The Victorian Government has proposed a more elaborate three-tier scheme
for monitoring implementation involving regional reference groups, a
monitoring Interdepartmental Committee, and a commitment from the Government
to report annually to Parliament on the progress of implementation [14].
In respect of the other governments (including the Commonwealth) it
is proposed or supposed that the Department that has carriage or primary
carriage of Aboriginal Affairs will perform this coordinating and supervisory
role. In the apparent absence of any cross-portfolio coordination in
Queensland, the advisory and monitoring responsibilities are to lie
with the Government's peak Indigenous advisory body, the Indigenous
Advisory Council (see below). However, implementation would seem to
remain the responsibility of the lead agency or the Department of Families,
Youth and Community Care. Though the ACT's Aboriginal and Torres Strait
Islander Consultative Council presently has responsibility for monitoring
the Government's response to the Royal Commission into Aboriginal Deaths
in Custody (RCADIC) recommendations, there appears to be no plans to
extend its terms of reference to include monitoring of the implementation
of the National Inquiry recommendations. [15]

The question of
Australia-wide, cross-government monitoring of governments' implementation
of responses is yet to be fully addressed. The suggested structure that
constitutes Recommendation 2 of the National Inquiry - that is, principally,
the establishment of an 'Audit Unit' within the Commission to which
peak Aboriginal bodies would provide evaluating advice and to which
governments would submit annual reports - has not been favoured. The
Commonwealth's response provided no indication whatsoever as to the
process of monitoring, nationally, implementation at a national level.
No funding, it appears, will be forthcoming for the establishment of
the recommended Audit Unit (Rec. 2(b)), and none for ATSIC to assist
Secretariat of National Aboriginal and Islander Child Care [SNAICC],
National Aboriginal Community Controlled Health Organisation [NACCHO],
and National Aboriginal and Islander Legal Services Secretariat [NAILSS]
to advise the Audit Unit on behalf of Aboriginal communities (Rec. 2(c)).

It was made clear
to the project team that governments had no desire to follow the monitoring
system employed for the implementation of the recommendations of the
RCADIC, which, it was felt, had not been successful. It is our understanding
that the Ministerial Council of Aboriginal and Torres Strait Islander
Affairs (MCATSIA) indicated in its August 1997 meeting that the rigid,
recommendation-by-recommendation style of the monitoring of implementation
applied to RCADIC ought not to be applied to the monitoring of the implementation
of the National Inquiry's recommendations. [16]

It is understood,
furthermore, that during the same MCATSIA meeting, it was resolved that
a working-group be established with the broad aim of considering issues
concerning implementation, including the monitoring of the implementation
of responses. Victoria was charged with the responsibility for the setting-up
of the working-group. At the time of writing the working-group has not
yet been established. It is understood that the intention is to establish
the body after - rather than in advance of - all governments having
finalised and published their individual responses. The project team
has been assured nonetheless by the Office of the Commonwealth Minister
for Aboriginal and Torres Strait Islander Affairs that 'MCATSIA will
be providing inter-governmental coordination mechanisms as required'
[17]. It is unclear how this objective is to be achieved.

Given the nature
of the National Inquiry, the involvement of Indigenous people in the
governments' formulation and implementation of responses to the National
Inquiry's recommendations is particularly important. In any event, the
necessity of Aboriginal and Torres Strait Islander peoples involvement
in the making and implementation of policies that directly affect them
has been unequivocally recognised by all Australian governments in the
National Commitment to Improved Outcomes in the Delivery of Programs
and Services for Aboriginal Peoples and Torres Strait Islanders
[18], where it is stated that:

[t]he Governments
of Australia, in making the National Commitment, have as guiding principles:

the
need to negotiate with and maximise participation by Aboriginal peoples
and Torres Strait Islanders through their representative bodies, including
the Aboriginal and Torres Strait Islander Commission, Regional Councils,
State and Territory advisory bodies and community-based organisations
in the formulation of policies and programs that affect them. [19]

There are a number
of levels at which Indigenous communities have been involved in the
governments' compilation of responses, and could be involved in the
future implementation of those responses.

The level of representation
of Indigenous communities stretches from government departments of Aboriginal
and Torres Strait Islander affairs and governmental advisory or consultative
bodies, through quasi-governmental or non-governmental peak Indigenous
bodies, to specific small groups or individuals. Any of these, in turn,
might be involved with government as a whole or with individual departments.

The form of the
involvement is equally variable, ranging from full consultation and
collaboration, through the provision of advice to governments, to mere
notification by governments of that which has been, or will be done.
Involvement in the process of determining the content of a government's
response has been through formalised and regular broad-based consultations,
or advice sought, on all issues affecting Indigenous peoples (as is
the case with the Commonwealth [20] and the ACT [21]
and Queensland [22]), or has been through involvement
related specifically to the matter of the stolen generations (as in
New South Wales [23] and Victoria [24]).
The relevant departments of Aboriginal Affairs also gauge the opinions
of Indigenous communities through the links that their own Indigenous
staff have with the communities and more informal liaisons. In the absence
of additional consultative processes in some jurisdictions, it is this
form that is principally relied upon in Tasmania, Northern Territory,
South Australia and Western Australia.

All governments
have, to some extent, consulted and are consulting, with Indigenous
peoples and representatives of communities, even if it is no more than
is usual for the relevant department to undertake in the process of
policy-formulation. With the exception of an initiative in New South
Wales, however, it has not been possible for the project team to identify
precisely when, in what manner, and how often Indigenous communities
or Indigenous representative bodies were engaged in such discussion
in respect of all governments.

In New South Wales,
the Steering Committee established to oversee the compilation of the
Government's response has, apparently, been successful in insisting
upon the importance of consultations with Indigenous communities. In
May 1998, the Government agreed to hold a series of public forums around
the State in conjunction with Link-Up (New South Wales), with the aim
of seeking advice 'on the most appropriate ways to target programs
and policies to better suit the needs of the Stolen Generations'. [25]
Six such forums were held during July and August 1998. This initiative
is important because the Government has effectively been prepared to
forego its (by then) near complete draft response, which it will now
use as a framework to produce a more direct and succinct document.

Nonetheless, there
remains some difficulty in measuring how successful any of these efforts
(including the New South Wales initiative) have been, or will be, in
reaching Indigenous communities and reflecting their concerns in the
resulting policy initiatives of governments.

The bulk of the
National Inquiry's recommendations are directed towards the governments;
to this extent it is the responsibility of governments (singly and collectively)
to respond to them, and, where accepted, to implement them. But even
in respect of those recommendations that are not apparently directed
at government, they would best be implemented with the co-operation
of government, or at least in parallel with governmental actions, initiatives,
regulations or laws: see for example the commentary below on recommendations
regarding access to private collections of records (Rec. 38); provision
of counselling services by non-government bodies (Rec. 40); and, the
consideration of the return of private land holdings (Rec. 41).

The need for action
on the part of all Australian governments must be understood within
the broader context of the governments' collective commitment to 'improved
outcomes in the delivery of programs and services for Aboriginal peoples
and Torres Strait Islanders' made in the National Commitment.
[26]

Added to this,
in respect of the Commonwealth Government, Senator Herron in his 1998
Budget day Statement Addressing Priorities in Indigenous Affairs,
pronounced that:

[t]he government
came to office with a firm commitment to address the unacceptable
level of disadvantage suffered by Australia's Indigenous people, particularly
in the key socio-economic areas of health, housing education and employment';
[27]

and that:

[t]his government
is committed to ensuring value for money in indigenous affairs by
systematically targeting areas of greatest need, particularly in rural
and remote communities where access to mainstream services is limited.
[28]

He further announced
that:

[w]e have
implemented innovative and responsive policies such as the ATSIC/Army
initiative, support for indigenous businesses, and the trachoma project.
We are also providing generous levels of funding. We will spend over
$700 million more in real terms in our first four years in office
than we spent in the previous four years. [29]

Certain recommendations
of the National Inquiry are expressly directed towards specific governments
or levels of government, while others are directed, or may be presumed
to be directed, towards all or a number of governments. In the latter
case, it was supposed by the National Inquiry that the most appropriate
level or levels of government would assume individual, collective or
parallel responsibility for addressing the issues raised and/or implementing
the recommendations made.

From the existing
government responses, and from the project team's consultations with
governments, it is clear that perceived demarcations of responsibilities
between the Commonwealth, States and Territories are also instrumental
in determining responsibility. The ready resort to federal divisions
has had the unfortunate result of the responsibility for many issues
being shunted between governments.

National legislation

The National Inquiry
made a number of recommendations calling for the introduction of national
legislation. A strict adherence to Federal divisions of responsibilities
clearly presents an insurmountable obstacle to the implementation of
these recommendations. Two forms of national legislation were proposed:

(i) national
framework legislation (Rec. 43) - such legislation, which would be
structural in form, would have the object of promoting self-determination
through consultation and cooperation between governments and Indigenous
peoples at community and regional levels in respect of the development
and implementation of policy and legislation; and

(ii) national
standards legislation (Recs 44-53) - such legislation, which would
be more detailed and likely be binding at all levels of government,
would aim to establish minimum and/or 'best practice' standards in
government/Indigenous community interrelations in respect of policy
and legislative initiatives.

The specific areas
covered under both proposals are broadly the same - namely, children's
care and protection, welfare and adoption, and juvenile justice, including
police, judicial and government departmental functions. [30]

It was apparent
from the project team's consultations with governments, that there is
no consensus among Australian governments to pursue such uniform legislative
goals through Commonwealth Office of the Attorney General (COAG) or
appropriate Ministerial Councils. Indeed, quite the contrary appears
to be the case. The current situation is that each jurisdiction is being
left to pursue those goals relevant to the issues covered by the recommendations
in a way, and to an end, that best suits its particular circumstances.
[31]

Senator Herron
stated in the Commonwealth Government's response that for 'the Commonwealth
to seek to override the legislative and related responsibilities of
the states and territories in these circumstances would, I believe,
be counter-productive for all concerned.' [32] In
reply to this, the National Inquiry's recommendations do not require
such an 'override' stance to be taken by the Commonwealth; in fact,
quite the reverse. What they suggest is that the Commonwealth takes
a lead in ensuring a cooperative approach to establishing common
frameworks and setting common standards in achieving common goals.

Although a 'top-down' approach to national legislation might be the
most desirable and the most efficient means of delivery, it is clearly
not an option that has found favour with governments. Nevertheless,
the process of separate government responses and initiatives can yield
best practice models which may, by way of a 'bottom up' effect, develop
into national legislation. The particular, pragmatic advantage of this
approach is, as a number of governments pointed out to the project team,
that it reflects the political reality of federal/state relations, while
still allowing for the goal of progressing towards some form of uniformity.

The 'National Commitment
to Improved Outcomes in the Delivery of Programs and Services for Aboriginal
Peoples and Torres Strait Islanders' [33], the New
South Wales Government's 'Statement of Commitment to Aboriginal People'
[34], and the 'Victorian Koori Services Improvement
Plan' [35] are examples of frameworks at the policy
level, which conceivably form the basis for the establishment of framework
legislation. To this end, the 'National Commitment' talks of a 'framework
for improving outcomes' [36] for Indigenous peoples;
the 'Victorian Strategy' talks of 'an 'umbrella' framework within which
both existing and future policies for Koori services will sit',
[37] and the New South Wales Statement declares itself
to be the 'foundation for moving forward'. [38]

Likewise, in respect
of standards, policy statements in one form or another exist in most
jurisdictions in the areas of Indigenous health, welfare, education
and juvenile justice (as discussed below). Individually and collectively
(as most share common themes) these policies provide the basis for common
legislative standards for consultations with, and the delivery of services
to, Indigenous peoples and communities.

However, with the
notable exceptions of the widely adopted Aboriginal (or Indigenous)
Child Placement Principle (ACPP or ICPP) and a patchwork of juvenile
justice standards, the current position is one of potential rather than
actual delivery. The potential of the policy statements, in other words,
have yet to be translated into legislation.

In the 'National
Commitment to Improved Outcomes in the Delivery of Programs and Services
for Aboriginal Peoples and Torres Strait Islanders' the Australian governments
'have agreed on the need to achieve greater coordination of the delivery
of programs and services by all levels of government to Aboriginal peoples
and Torres Strait Islanders.' [39] The same document
also declares 'effective coordination in the formulation of policies
and the planning and management and provision of services to Aboriginal
peoples and Torres Strait Islanders by governments' to be one of the
'guiding principles' for governments. [40]

Not surprisingly,
given the insistence on the demarcation of governmental responsibilities,
intergovernmental coordination has foundered. As noted above, the COAG
never addressed the issue; the MCATSIA delegated the matter to a working
group and the working group has not yet been convened.

A significant dimension
of the governments' responses has been the matter of making officially
sanctioned apologies. It is fair to say that whatever else is contained
or is to be contained in individual government responses, the character
of that response is largely set by the fact of whether an apology is
made or not, and where one is made, its form and tone.

It is important
to stress the context in which these apologies and refusals to apologise
by Australian governments occurred. For the various local governments,
trade unions, churches and other non-governmental groups, as well as
a great many individual Australians (culminating in the 'Sorry Day'
events on 26 May 1998), they were all moved to express in their own
words messages of apology, acknowledgement or regret.

Implementation in specific
areas

Apologies/statements
of regret: Recommendations 3, 5, 6, 7

Some heads of government
and relevant ministers made statements of apology or regret in their
own right, but the definitive statements of apology were those made
by the corresponding Australian Parliaments. Seven of the nine Parliaments
in Australia passed motions of apology expressing, in slightly different
forms, feelings of deep or sincere regret for the hurt and distress
suffered by Indigenous people as a result of the policies of forced
separation of Aboriginal and Torres Strait Islander children from their
families. [41]

The two jurisdictions
in which neither the government nor the Parliament issued statements
of apology were the Commonwealth and the Northern Territory. In both
cases the underlying reasoning for not doing so was the notion that
the generations of today ought not to be held responsible for the wrongs
of former generations.

The Prime Minister
proclaimed in his speech opening the Australian Reconciliation Convention
in Melbourne on 26 May 1997 that 'Australians of this generation should
not be required to accept guilt and blame for the past actions and policies
over which they had no control'.

In the same vein,
Mr Tim Baldwin, the Northern Territory Minister for Aboriginal Development,
stated in a debate on the issue of an apology in the Northern Territory
Assembly, that 'any call for an apology for the policies of past Commonwealth
governments does not involve this government, given that those policies
pre-dated self-government in the Territory'. [42]

Clearly, such concerns
were not so dominant in the thinking of the other seven Australian jurisdictions.

The cleavage between
the past and present is echoed in the response of the Commonwealth Government
in which the Minister for Aboriginal and Torres Strait Islander Affairs,
Senator Herron, stated first that ' we do not believe that our
generation should be asked to accept responsibility of earlier generations,
sanctioned by the law of the times ". However, Senator Herron
then added that, 'we fully accept that we of this generation have an
obligation to address the consequences of those actions and policies'.

It is in this two-part
approach that the heart of the controversy over the making of official
apologies lies, for it is claimed that a critical feature of any meaningful
'addressing of the consequences' by governments has to be an acknowledgement
and expression of regret on the part of those governments for what occurred
in the past. The claim of a current government's lack of any direct
responsibility for the actions of past governments is to overlook a
fundamental and enduring feature of Australian democracy - namely continuing
responsible government. As one member of the Northern Territory Parliament
stressed during the Legislative Assembly's debate on the question:

No one accuses
this government of any wrongdoing in this matter. This government
simply was not in existence at the time. No one accuses this current
federal government of ill-doing in this matter. It is a very different
government. It is a very different time. However, this government
and the federal government are the bodies politic Y the only authorities
that can 'say' sorry, that can issue an apology on behalf of all Australians.
[43]

In respect of State
Police Forces, the New South Wales Police Commissioner, Peter Ryan,
stated publicly on 21 May 1998:

On behalf of the
New South Wales Police Service, I offer a sincere apology to members
of the 'stolen generations' and to all Aboriginal and Torres Strait
Islander people for the prominent role that police played in enforcing
past unjust laws. [44]

No other police
force has formally apologised. The Queensland Government notes, however,
in its response that '[t]he historical role of the police in the removal
of children was acknowledged during the Inquiry by Inspector Col Dillon,
formerly Inspector in Charge of the Cultural Advisory Service'. [45]

26 May 1998, which
marked the first anniversary of the tabling of the Bringing Them
Home Report in the Commonwealth Parliament, was decided upon by
the National Indigenous Working Group on the Stolen Generations (NIWGSG)
to be the most appropriate to mark the commemoration of the history
of forcible removals and its effects (Rec. 7). The NIWGSG formulated
a one page statement articulating the objects of the Sorry Day and facilitated
the holding of events across the country. Certain Governments and certain
agencies within government actively encouraged and participated in these
events. The NIWGSG received a grant of $20,000 from ATSIC to assist
it in its organisation of Sorry Day activities.

It is not yet settled
whether the Sorry Day will be an annual event.

Telling, recording, keeping
and accessing stories: Recommendation 1

At the national
level, the Commonwealth has provided $1.6 million for an oral history
project to be run over four years by the National Library. The objectives
of the project are:

Documentation
of personal and social experiences of Indigenous Australians who were
affected by the various separation programmes and of those involved
in administering and implementing these programmes. [46]

There will be an
initial 'pilot project', to commence in 1998 and to run for 12 months,
during which time 30 'oral history interviews' will be undertaken. The
object of the pilot project is, according to the Commonwealth, to test
the feasibility of a full scale project and to determine arrangements
for its establishment should it be considered feasible. The envisaged
outcome is 'a permanent national record of a significant period in Australian
history, and a publication based on the testimonies of participants
in the oral history project'. [47]

No details as yet
have been provided as to the extent of the full-scale project - that
is, the number of histories to be recorded, and the methodology of the
project, how the histories will be collected, where and by whom.

Also at the national
level as noted earlier, ATSIC is to increase its funding of the 20 or
so regional language and cultural centres by $9 million over the next
three years. This additional amount is not 'new money' but rather will
be drawn from ATSIC's General Purpose grant [48].
According to the Commonwealth Government these funds 'will be targeted
to areas of greatest priority in relation to culture and language maintenance'.
Furthermore, the Government anticipates that 'extensive' community consultations
will precede the setting of any funding priorities. [49]

At the level of
States and Territories' language and cultural initiatives, the landscape
of current and future schemes is varied.

In its response,
the Victorian Government announced that the pre-existing Koori Oral
History Program, administered by the Koori Heritage Trust, is specifically
'to record the stories of Aboriginal people affected by separation from
their families'. [50]

The New South Wales
Government has indicated that the 'State Library would work with the
relevant Government and Aboriginal Organisations to establish an oral
history strategy' [51]. The Government also pledged
$40,000 seed money to the New South Wales Stolen Generations Memorial
Foundation [52]. It is a primary intention of the
Foundation that a 'keeping place' be built as a monument and memorial
to those affected by the policies and practices of separation.

It should be noted
that under a grants scheme operated by the Community and Personal Histories
Section of the Queensland Department of Family Services and Aboriginal
and Islander Affairs, funding (up to a maximum of $5,000) can be obtained
to aid, among other initiatives, the establishment or maintenance of
oral history, family or community history projects.

The ACT Government
has allocated $2.5 million for the construction of an ACT Aboriginal
and Torres Strait Islander Cultural Centre (to be opened in 2001). The
Cultural Centre's vision is 'to retain, maintain and share cultures
of contemporary Indigenous peoples in the ACT region, with special recognition
of the traditional owners - the Ngunnawal people'. In its response the
Government expanded on the Centre's 'underlying philosophy', indicating
that it is 'to build a place for all people to visit, learn and experience
Indigenous cultures as presented by Indigenous peoples themselves. This
will include oral histories, exhibitions and associated materials relating
to the stolen generations'. [53]

Compensation: Recommendations
14, 18, 41, 42

The National Inquiry's
recommendations are based on three foundation principles for monetary
compensation:

(i) the reasons
for compensation, or 'heads of damage' (Rec. 14) - these cover both
loss (in the sense of cultural, land, or economic rights) , and damage
(as occasioned by racial discrimination, loss of liberty, abuse, and
pain and suffering);

(ii) the establishment
and operational structure of a fund from which compensation would
be paid; and

(iii) the bases
upon which compensation claims will be heard/assessed and the entitlement
to a minimum lump sum.

Though no express
indication was provided in the Implementation Report as to the precise
form or process by which compensation payments would be determined,
there are essentially three alternatives:

(i) by way of
litigation in the ordinary courts;

(ii) administered
through a government department or other agency; and

(iii) by way
of a tribunal.

No government showed
any inclination to be proactive in providing compensation or reparation
under the second and third of these mechanisms (the first mentioned
requires, of course, no facilitative action on the part of the state
beyond maintaining the pre-existing court structures), though some had
considered certain possibilities. In the case of three governments,
Victoria [54], Queensland [55],
and the ACT [56], the unequivocal view is that no
monetary compensation ought to be or will be paid. It was repeatedly
put to us by governments that no matter how far their own thinking had
developed on the issues, the matter was unquestionably a national one
and therefore would necessarily require a coordinated national initiative.
Tasmania, for example, indicated that it would support discussion of
the issue at COAG or ministerial council levels. All governments were
content for the time being to wait and see what the outcome will be
of the various cases currently on foot. All governments were aware (at
different levels of acuity) of the various litigation on foot - namely:

after the serving
of more than 700 writs in the Federal Court in the Northern Territory
in October 1996, the Northern Territory Stolen Generations Litigation
Unit (SGLU) is pursuing two cases in the Federal Court against the
Commonwealth - Cubillo and Gunner - on the grounds of
alleged breaches of fiduciary duty, negligence, breach of statutory
duty, breach of guardianship duty, unlawful conduct and unlawful imprisonment
due to unlawful conduct. A date for the joint hearing of these two
cases has been set down for 1 March 1999;
the three cases
in New South Wales: the Williams [57] and
Stevens [58] cases in the New South Wales
Supreme Court, inter alia, alleging breaches of fiduciary duty
on the part of the State [59]; and, the Stubbs
case which is being run by Public Interest Advocacy Centre (PIAC)
currently before the Victims Compensation Tribunal (NSW);
the Western
Australia Aboriginal Legal Service is considering proceeding with
a number of joined cases against the State alleging breach of fiduciary
duty.

The 'watching brief'
adopted by governments in respect of these cases has, invariably, two
points of focus: first, the grounds (if any) that courts indicate would
provide sufficient basis for damages to be awarded; and, secondly, if
awarded, the magnitude of damages.

Another issue of
particular concern for governments is whether the provision of assessed
or ex gratia payments under any administrative (that is, non-curial
and non-tribunal) scheme, would necessarily displace any additional
civil action in the courts concerning the same issue (as would appear
to be the intended effect of Rec. 20). State and Territory governments,
in other words, are especially concerned over the possibility of being
exposed to a 'double jeopardy' in respect of compensation payments.

The only evidence
of consideration of an appropriate mechanism by which such compensation
or reparation might be delivered has been by the New South Wales Government.
This came by way of a proposal put forward by the PIAC for an 'Indigenous
People's Reparation Tribunal' (IPRT). This proposal was submitted to
the New South Wales Government and formed part of the Briefing Material
issued by the New South Wales interdepartmental Steering Committee
which is coordinating the Government's response. The proposal which
was based on consultations with Link-Up (New South Wales), Tranby Aboriginal
Co-operative College, Aboriginal legal, medical and children's services,
and members of the stolen generations was conceived as an alternative
both to seeking redress for legal wrongs through litigation in the ordinary
courts and the National Inquiry's recommendation for a nationally administered
Compensation Fund to be established (Recs 15 & 16). The new Tribunal,
it has been suggested, might be based on the form and procedure of the
existing New South Wales Victim's Compensation Tribunal, thereby avoiding
the potentially traumatising adversarial features of court-room litigation.
The PIAC proposal indicates that,

[i]t would
be given powers to make orders relating to compensation, based on
oral or written submissions, and would also be authorised to make
Recommendations relating to the other aspects of reparations as set
out in Bringing Them Home; ie apologies, guarantees against repetition,
measures of restitution and measures of rehabilitation. [60]

Awards made by
the Tribunal could be formulated to give classes of people benefits
rather than simply limiting relief to individual claimants. [61]

As some of the
remedies envisaged are very different from anything that is currently
available from existing tribunals, there is some doubt over how, or
indeed whether, the proposed IPRT would be able to deliver them. It
is expected that some indication as to how practicable (as well as politically
acceptable) the proposal is will be provided in the eventual response
of the New South Wales Government.

Reunion and records issues:
Recommendations 12, 21 - 31, 38 - 40

Record keeping (access;
archiving procedures and transfers) [62]

Access to, and
maintenance of government held records was an important focus of the
National Inquiry. It also featured prominently in governments' responses
and preparations of responses, and in the project team's meetings with
governments. It is true that serious problems continue to exist (especially
in providing counselling services), but equally it is fair to say that
out of the stolen generations issues addressed by governments, improvements
in record keeping have been notable. At least one of the reasons for
this would appear to be the relative immediacy of beneficial results
that can be attained. The fact that the records are, in the main, still
in existence and held by the governments has meant that establishing
procedures by which the records can be accessed has been readily foreseeable
and practicable.

At the national
level, the National Archives of Australia (NAA; formally, 'Australian
Archives') has been especially active. It established in March 1997
a 'Memorandum of Understanding' (MOU) in respect of access to records
held by the NAA in the Northern Territory, with a number of Aboriginal
and Torres Strait Islander peak bodies including the Northern Territory
Stolen Generations Combined Reference Group. The essential aim of the
MOU is to:

facilitate
access to open period Commonwealth records in the custody of Australian
Archives relating to Aboriginal people, including records or information
which would otherwise be exempt under s.33(1)(g) of the Archives Act
1983 [that is, unreasonable disclosure of the personal affairs of
an individual]. [63]

Specifically, the
MOU is intended to assist Indigenous people affected by separation policies.

It is understood
that a similar initiative is under consideration between the NAA and
the Public Records Office of Victoria. [64]

The Commonwealth Government has also provided $2 million over four years
to the NAA to compile name indexes, copy and ensure the preservation
of Indigenous family records, and to publish 'detailed finding aids
which will enable individuals and organisations from all parts of Australia
to locate relevant records more easily'. [65]

There would also
appear to be some expectation of intergovernmental coordination on the
question of records. As foreshadowed in the Commonwealth's response,
the Council of Federal, State and Territory Archives (comprising the
head archivists in each jurisdiction), has moved in this respect. It
is understood that a 'References and Access Working Group' established
by the Council is to convene at a forum in Perth in August 1998 with
the express aim to share ideas and consider the possibility of initiating
a joint agreement on common keeping and access standards for records
relevant to Indigenous people affected by separation policies. Such
an initiative would provide a sound basis for meeting the demands of
Recommendations 24 and 25 for governments to enter into memoranda of
understanding for dealing with the tracing of records interstate and
minimum access standards.

Interestingly,
in handling interstate enquiries, the Queensland Government notes in
its response that its experience 'suggests that formal memoranda of
understanding between States dealing with interstate enquiries may not
be necessary'. The Government based this contention on the fact that
the practice in the Queensland system on receiving requests for records
information from interstate was simply to send copies of the material
direct to the persons concerned. However, while such an approach may
satisfy the need to access information, it does not take account of
important ancillary needs such as counselling which might have to be
the subject of some intergovernmental agreement.

The ACT Government,
on the other hand, supports of the development of memoranda of understanding
between governments for dealing with interstate enquiries. This is hardly
surprising given the peculiar position that exists in the ACT where,
as its response notes, 'a significant number of ACT records were held
previously by the Commonwealth or NSW governments, and a number of people
now living in the ACT were forcibly separated from their families in
other jurisdictions'. [66]

Records Taskforces

The National Inquiry's
Recommendation 23 that there be established within the Commonwealth
and each State and Territory joint records taskforces has not been universally
adopted. The idea of such taskforces being 'joint' is not just to ensure
that all relevant government departments work co-operatively, but also
that non-governmental record-keeping bodies (such as the churches) and
Indigenous representatives might also be involved. As yet, however,
the involvement of non-government representatives has been inconsistent.
Only the South Australia Records Taskforce reaches beyond government
departments to include representatives of non-government records holding
agencies and Aboriginal groups; though the Tasmanian taskforce
has non-government Indigenous representation. The Records Taskforce
established in New South Wales has consulted with church groups, in
its joint initiative with the Department of Community Services 'Connecting
Kin' Project [67], and in Western Australia the Government
intends to expand its taskforce to include representatives of non-government
agencies. When its taskforce is established, Victoria intends to have
both Indigenous and non-government bodies represented, as well as government
agencies.

In Queensland,
the functions of the taskforce are undertaken by the Community and Personnel
Histories Section of the Department of Families, Youth and Community
Care. [68]

In the ACT, there
is a contact point in the Adoption Information Service which also acts
as a contact point for state and Northern Territory taskforces. [69]

Access fees

Access to personal
or family history records for Indigenous peoples is generally free (in
that there is no fee or it is invariably waived) or at a minimum cost,
and is available by right [70]. Though freedom of
information (FOI) legislation exists in every jurisdiction except the
Northern Territory, it was made clear to the project team by all governments
except the ACT Government, that there was usually no need to resort
to such legislation to secure access. Rather, such access is provided
under the adoption, welfare or archives legislation. In the ACT, perhaps
because of the limited use made of any access provisions, use of FOI
legislation seems to be more readily anticipated [71].
In any case, fees and charges for FOI requests are waived in the ACT
if the records relate to people affected by separation. [72]

In the Northern
Territory, where there is no archives legislation [73],
access is provided either through the above-mentioned MOU in the case
of relevant Commonwealth records, or the Protocol on Access to Northern
Territory Government records by Aboriginal People researching their
families (October 1997) (which in large measure mirrors the MOU).

There is also no
archives legislation in the ACT. [74]

Assisting access

A crucial factor
in the practical accessibility of records is the 'user-friendliness'
of the procedures put in place by the agencies to whose records access
is sought. Recommendation 27 of the National Inquiry highlights the
desirability of a 'one stop shop' (or 'first stop shop') for access.
This has proved to be a challenge for all governments. At base, they
are faced with a dilemma where on the one hand, the central records
keeping agency (ie the archives office) is best placed to provide access
to records originating from across all government agencies. On the other
hand, the agency responsible for Aboriginal or Indigenous affairs may
have the appropriate or greatest expertise and be the agency with which
Indigenous communities are most familiar and have most contact. The
situation at present varies with each government.

The Victorian Government
is still in determining how it will respond to this question. The Public
Records Office of Victoria plans to hold a series of 'Public Records
Forums' around the State in order to disseminate information concerning
current access provisions as outlined in the well received 'My Heart
is Breaking' Guide [75]. The Forums will gather information
from Indigenous communities to identify the access problems they encounter
and how best they might be resolved through modified or new access procedures.

The Tasmanian Government
has made a short-term appointment of an Indigenous officer within the
Department of Health and Community Affairs whose remit has been to 'develop
a policy framework and establish protocols and procedures that ensure
that Aboriginal people have appropriate access to personal information
held by the Department and other agencies' [76].
It is understood that this officer has also provided a point of entry
to government held records for Indigenous people seeking access to them.
It is as yet unclear what long term access provisions and staffing will
be made in Tasmania.

The Adoption Information
Service within the ACT Department of Family Services operates as the
contact point for access to records. There is a relatively small demand
for the Service: since its establishment in June 1996 there have been
less than 10 enquiries. [77]

Under the Northern
Territory Government's Protocol on access to its records the first point
of contact is the Northern Territory Archive Service. The staff of this
Service facilitate access directly where possible or direct the applicant
either to the appropriate Northern Territory Government agency [78],
or to the NAA (under the terms of the MOU described above). Though not
a 'one stop shop', this process appears to be working well [79].
An apparent gap in this system is that of access to non-government held
records. It is unclear what, if any, consideration is given to bringing
such records under the umbrella of the government regime, or what assistance
or advice is provided for the establishment of separate but appropriate
records keeping and access standards.

The position in
Western Australia - where until recently there were two parallel records
access systems in two separate departments - has been recently rationalised
and reformed in response to the National Inquiry's recommendations.
The Department of Family and Children's Services has established a Family
Information Tracing Bureau (FITB), which became operational in mid 1998.
The Bureau's object, as foreshadowed by the Western Australia Aboriginal
Affairs Minister, is to 'provide a comprehensive family and information
tracing service to Aboriginal people through a central point of search
rather than people having to go to a raft of agencies'. [80]

What is more, the
reach of the FITB will be extended through the 23 regional offices of
the Aboriginal Affairs Department: $400,000 has been assigned to the
FITB for 1998/9, as well as $400,000 provided for the enhancement of
the keeping and management of relevant records, particularly, to transfer
them to CD-ROMS. A sum of $440,000 has been pledged in recurrent funding.
[81]

The Department of Human Services in South Australia provides access
to records relating to those affected by past separation policies through
the single Link-Up officer located in the adoption unit of the Department.
It was made apparent to the project team during its meeting with the
Government that this scheme does not work well, not least because the
officer in question is effectively having to play two roles (ie facilitator
of reunions and of records access) which reduces the effectiveness with
which records are made available and accessed. Certainly, given the
staffing levels of the other States' records access schemes, the position
in South Australia would appear to be under resourced.

In Queensland the
Community and Personal Histories Section of the Department of Family
Services and Aboriginal and Islander Affairs provides Indigenous peoples
with access to the Department's historical records relating to their
forebears and the history of the communities they belong or belonged
to [82]. Established in 1992, largely in response
to a recommendation of the Royal Commission into Aboriginal Deaths in
Custody (Rec. 53), the services provided by the Section are widely accepted
as the most progressive in Australia and serve as something of a model
for other jurisdictions. The Section is well staffed, both in numbers
and Indigenous staff; a 'user-Friendly' Records Guide is available (price:
$25) that advises what is available and how the process

of records access works [83]; and, there is a grants
program which funds individual, family and community searches up to
a maximum of $5,000.

The employment
of Indigenous archivists and/or historical researchers across the States
and Territories ranges from more than half of the staff employed in
tracing stolen generations records (as in Queensland) to none (as is
the present case in Victoria, though in its response the Government
has pledged $60,000 over two years for the training of two Indigenous
archivists) [84]. There is also a grants program
which funds individual, family and community searches up to a maximum
of $5,000.

Prohibition on records destruction

In respect of prohibiting
the destruction of relevant records (Rec. 21), the governments' responses
have been varied: in Tasmania, for example, the Government notes in
its response that the types of records referred to in the recommendation
have not been destroyed and 'will continue to be protected by the provisions
of [Archives] Act [1983]' [85], and in New
South Wales a moratorium of one year has been set on the destruction
of records [86]. The Northern Territory Government
has stated that it 'will consider withholding from destruction [relevant]
records' [87], and the Commonwealth has placed an
indefinite freeze on destruction pending the National Archives of Australia
taking the 'necessary steps' to identify which records are to be withheld
from destruction [88]. In Victoria, records destruction
is unlawful unless in compliance with a relevant standard. However,
there is no standard for records concerning the separation of Aboriginal
children from their families, 'nor', in the words of the Government's
response, 'is there any intention to issue such a standard' [89].
The position in the ACT (where there is no archives legislation) is
unclear in respect of the matter of records preservation. The Government
has, however, indicated its intention to 'examine the whole records
management regime'. [90]

Counselling

An important dimension
to accessing stolen generations records is the matter of parallel and/or
subsequent counselling for those who are seeking or who have obtained
access to records. Such is the nature of the records and the circumstances
of their access that the effects on individuals and family are potentially
traumatic. The need for counselling services is, therefore pressing
and constant. It is true to say that all governments recognise the importance
of this factor; indeed, some even stipulate that counselling is compulsory
for those seeking this type of information (this is the case in Tasmania,
for example) [91]. However, in all cases, the provision
of counselling through governments' resources or offices is minimal.
None automatically provide initial 'on-site' counselling nor subsequent
counselling. Rather, the relevant government agencies provide to those
who are seeking access to records advice on counsellors (which may be
either or both private and state funded) that may be contacted. During
our meetings with governments the concern was repeatedly expressed by
Indigenous representatives in each jurisdiction, that to leave it entirely
to the individual concerned to determine whether and when to seek counselling
was not as responsible a course of action as could be taken by governments.
At the very least, more advice as to the objects of, and potential need
for, counselling should be provided to individuals as they embark on
the process of seeking access to such records. This is what was envisaged
in National Inquiry Recommendation 30(b), specifically, points 3,4 and
5.

Throughout our
consultations with State and Territory governments it was made clear
to us that many officials saw the $39+ million allocated to health and
counselling issues (specifically the foreshadowed engagement of 50 new
counsellors) by the Commonwealth Government in its response as going
a long way to filling the lacunae each recognised in its counselling
services. Though governments did not go so far as to say that such services
are the responsibility solely or even primarily of the Commonwealth,
all were happy to rely on the uncertain prospect of this funding (see
further below) as a reason not to commit themselves in this respect.
The Commonwealth initiative in this regard is discussed in more detail
below.

Link-Ups and reunion

A vital role is
played by State and Territory Link-Ups and like organisations or services.
In effect, these bodies provide the essential link between Indigenous
people who have been affected by the policies and practices of separation
and their present needs - that is, access to information about their
past and help and advice as to what to do with that information, including
the possibility of reunion with family or communities. The largest,
most established and successful Link-Ups are those in New South Wales
and Queensland. Though funded through a combination of ATSIC and State
government funds, they operate independently of government, though by
way of their expertise and their constant interaction with government
agencies, they are intimately familiar with 'how bureaucracy works'
and how best to assist their clients in accessing the material and services
they require.

Accordingly, how
governments relate to Link-Up type services - how important they regard
them and to what extent they support them is of the utmost importance.
This is reflected in National Inquiry Recommendation 30(a) which calls
upon COAG to 'ensure that Indigenous community-based tracing and reunion
services are funded in all regional centres with a significant Indigenous
population'. No such action has been taken by COAG.

At the federal
level the important role of Link-Up services is alluded to: 'all Link-Ups
reported an increased demand for their services as a result of the
National Inquiry ' [92]. The thrust of the
Commonwealth Government's response in this regard is based on a pledge
of $11.25 million over four years to support the establishment of a
national network of Link-Up organisations based on an equivalent of
the New South Wales and Queensland services' [93].
The funds are to be used 'to expand the existing New South Wales and
Queensland services and to establish similar services in other jurisdictions'
[94]. Though the Commonwealth has stated that the
funds will be administered through ATSIC [95], an
independent needs assessment is being undertaken which, it is anticipated,
will largely determine how and where ATSIC will direct funds. ATSIC
is working with both the Office of Aboriginal and Torres Strait Islander
Health Services (OATSIHS) in the Department of Health and Family Services
and the National Aboriginal Community Controlled Health Organisations
(NACCHO) in developing these Link-Up services [96].
As discussed below, OATSIHS is also talking directly to Link-Ups and
like organisations about the relationship between them and the proposed
50 new counsellors.

Notwithstanding
this increase in funds, the Commonwealth has stressed the fact that
although Link-Up services are largely supported by the Commonwealth
through ATSIC, the 'proper responsibility' for such support lies with
the States and Territories. The reality is, however, that with two possible
exceptions the States and Territories do not provide, nor is there any
immediate prospect that they will provide, significant support for independent
Link-Up type services. Exceptionally, the New South Wales Government
has pledged $100,000 to be granted to Link-Up New South Wales, for one
year only [97], and the Queensland Government has
announced, without details, that it is to develop a 'specifically targeted
cross-cultural awareness training program to assist reunification of
members of the stolen generations with their families and culture and
promote understanding of Indigenous culture within the non-Indigenous
families involved' and has employed an individual to work on the project
[98]. Once again, the Commonwealth's allocation of
funds for health counsellors discussed above, the temptation yielded
to by the States and Territories has been to adopt a 'wait and see'
approach as to how far the allocation of Commonwealth funds within their
jurisdiction will go and with what effect, before considering what they
might contribute. The response (to Rec. 30(a)) of the Victorian Government
is typical in its pledge to 'make strenuous representations to the Commonwealth
seeking its support for the provision of additional funding for Link-Up'.
[99]

Outside the New
South Wales and Queensland institutions, Link-Up services are mostly
provided by Aboriginal or Aboriginal and Torres Strait Islander Child
Care Agencies. This is far from ideal, as such bodies do not have the
funds, personnel or expertise to undertake such a task. The objects
of such bodies are, in any case, not necessarily suited for the specific
task of providing tracing and reunion services to people affected by
separation policies. Such people are now almost invariably adults, even
if their relevant experiences occurred when they were children, and
therefore the work of a child care agency is ill-suited to their needs.
Indeed, it would seem that this very mismatch is one of the reasons
why State and Territory governments have not funded them to provide
tracing and reunion services.

In some jurisdictions,
a Link-Up type service is provided from within a government agency.
This is currently the case in South Australia (through the Department
of Human Services) and temporarily at least, in Tasmania (through the
officer currently employed in the Department of Health and Community
Affairs). Debates as to whether it is appropriate to provide such services
from within government rather than independent of it are being pursued
with vigour in both South Australia and Western Australia.

In our meeting
with the Western Australia Government it was made clear that from the
Government's point of view there was much to commend locating such a
service within government; not least of the attractions was that it
would avoid duplication of services. Further, it was argued, the responsibility
to provide such a service falls to government. Alternatively, the view
was put to the Government that the service was expressly intended to
be community and not government based for the fundamental reason that
government - no matter how differently it functions today - was the
very agent of the separation policies that led to individuals seeking
Link-Up type services. For such individuals, a government agency may
still be seen as too confronting an institution to deal with directly.
The very success of the non-governmental New South Wales and Queensland
models appear amply to support the need for, and effectiveness of, their
role as independent intermediaries.

Health care; counselling,
well-being, parenting skills: Recommendations 33-37, 42

The obvious and
significant health implications for those affected by past separation
practices and policies forms the basis for the National Inquiry's recommendations
on health care. Physical and mental health questions arise both directly
from the immediate and long-term effects of separation and indirectly
from the subsequent actions taken to trace family and community. The
health care difficulties are not clearly defined nor are their effects
fully understood. As a result, the present and ongoing health problems
are potentially enormous.

Governments' responses
to the National Inquiry's recommendations may be significantly aided
by the existing and planned framework for Indigenous health care, particularly
at the federal and intergovernmental level, but also at the individual
level of some States and Territories. Most importantly, the Commonwealth
has now concluded Aboriginal and Torres Strait Islander Health Framework
Agreements with every State and Territory [100].
The aim of the Agreements is 'to achieve a health system that is more
accessible and responsive to the needs of Aboriginal and Torres Strait
Islander peoples, as well as more appropriate services, better linkages
between heath services and measurable outcomes' [101].
The Agreements also envisage:

joint planning
processes which allow for full and formal Aboriginal and Torres Strait
Islander participation in decision-making and determination of priorities;

improved cooperation
and coordination of current service delivery, both Aboriginal and
Torres Strait Islander specific services and mainstream services,
by all spheres of Government; and

increased clarity
in the roles and responsibilities of the key stakeholders.

The Agreements
provide the structural framework through which the Commonwealth's 'Aboriginal
and Torres Strait Islander Emotional and Social Wellbeing Action Plan'
[102] (the Plan) is being implemented across the
country. The particular significance of the Plan is that it is the vehicle
for implementing the Commonwealth Government's specific health-related
responses to the National Inquiry's Recommendations [103].
What is more, as the Plan was devised, and is being implemented, in
consultation with the National Aboriginal Community Controlled Health
Organisation (NACCHO), it provides a base upon which the need for further
research as outlined in National Inquiry Recommendation 32 of can be
met.

The Commonwealth's responses to the National Inquiry's recommendations
on health care focus on Recommendation 33 and are targeted largely at
Indigenous mental health. General health issues, it seems, are picked
up within the related broader policy goals of the Commonwealth which
it declares are to "address directly the effects of severe socio-economic
disadvantage suffered by Indigenous people through improved outcomes
in health, housing, education and employment' [104].
Further, Dr Wooldridge, in a statement accompanying the 1998 Federal
Budget, pronounced that 'Indigenous health is a major priority, not
only for the Government, but for the nation'. [105]

In fact, the part
of the Commonwealth Government's response targeted at Indigenous health
issues constitutes by far the largest portion of the total response.
At $39.15 million over four years, [106] it comprises
significantly more than half of the total budget. This amount is distributed
across three principal initiatives:

(i) engagement
and training of 50 new counsellors 'to assist those affected by past
policies and for those going through the reunion process' ($16 million);
[107]

(ii) expansion
of 'network of regional centres for emotional and social well being,
giving counsellors professional support and assistance' [108],
with the addition of 3 centres (planned, one each, for New South Wales,
Queensland and Western Australia) to the 11 existing centres ($17.25
million); and

(iii) 'further
development of indigenous family support and parenting programs funded
through the Health and Family Services Portfolio' ($5.9 million).
[109]

The 50 additional
counsellors are to be distributed (on a pro rata basis) across the 11
(+3) regional centres of the Commonwealth Department of Health and Family
Services established, or to be established, throughout the States and
Territories under the 'Wellbeing Action Plan'. In practice, the regional
centres exist and operate either in their own right or within pre-existing
State or community controlled Indigenous health centres. Necessarily,
therefore, the first two initiatives listed above will be implemented,
and will operate, jointly. It is the understanding of the project team
that each regional centre will be responsible for the training and support
of the new counsellors to be placed with them. It is expected that much
of the training will be sub-contracted to appropriate local educational
institutions.

Under the 'Wellbeing
Action Plan', the development of Indigenous family support and parenting
programs was already underway; it is understood that the additional
funding indicated above will, supplement that work through gathering
empirical data on the ongoing effects of separation on families.

In each of these
initiatives the Minister has undertaken to ensure his key advisory body
on Indigenous health matters - the Aboriginal and Torres Strait Islander
Health Council - is involved in monitoring their implementation and
in advising the Minister accordingly [110]. Dr Wooldridge
has also indicated that the Office for Aboriginal and Torres Strait
Islander Health Services (OATSIHS) in his Department 'has been discussing
an implementation strategy with the NACCHO', as well as working with,
both ATSIC and NACCHO on the expansion of Link-Up services [111].
Further, it is understood that the OATSIHS is currently meeting and
discussing with Link-Ups and like organisations across the country the
placement of the 50 new counsellors; in particular about the prospects
for their placement within, or their availability to, such bodies.

In the States and Territories, it is difficult to identify specific
health initiatives adopted in direct response to the National Inquiry's
recommendations. There appear to be two reasons for this. One is that
such 'new' initiatives are placed within existing policy frameworks
(usually drawn up in consultation with the appropriate local peak Indigenous
organisations), as well as the Commonwealth/State and Territory Agreements.
What, in other words, was already in train, is now, or soon may be,
modified to address particular issues raised by the National Inquiry's
Report. This is not necessarily a criticism - especially as the overall
objects of the State or Territory Agreements (including community consultation
and control) commonly correspond with those of the National Inquiry's
recommendations, and the integration of new initiatives with pre-existing
ones is often most effective. But this does make it difficult to distinguish
the new from the existing. [112]

The second is that
State and Territory governments have been unwilling or unable to make
any significant commitments to health care reform following the National
Inquiry's recommendations, until they are clearer about the details
of the Commonwealth's commitment of $39.15 million to health issues
in its response. In particular, precisely where, how much and by way
of what administrative mechanisms, would the funding be expended in
each jurisdiction are matters of concern. This much was repeatedly made
clear to the project team throughout its meetings with governments.

The Project Team
understands that while the specific Commonwealth, State and Territory
health care responses to the National Inquiry's recommendations are
not scheduled for discussion at the next meeting of the Ministerial
Council on Health, it is on the agenda of the next meeting of the intergovernmental,
officer level meeting of Community Services Administrators. Consideration
has also been given to convening a joint Ministerial Council meeting
of health ministers and community services ministers (where the portfolios
are separated) to discuss these issues.

The State and Territory
health services forums provided for under each Commonwealth/State and
Territory Framework Agreement are all scheduled to discuss the various
health related initiatives that bear on the Bringing Them Home
report's findings. These forums, which meet on average every three months,
comprise Commonwealth and State or Territory health department representatives,
ATSIC representatives and representatives from local Indigenous health
care organisations. It is anticipated that these meetings will provide
the opportunity to discuss in detail the mechanics of the Commonwealth
Government's health care initiatives; any foreshadowed local initiatives;
how best to ensure that local and Commonwealth actions complement each
other; and what problems exist or can be foreseen.

Such meetings may
lead to a greater understanding of their respective initiatives (especially
of the Commonwealth's), and could form the foundation for more coordinated,
and therefore more efficient and effective, implementation strategies.

Education and training;
schools, professional bodies, and community: Recommendations 8, 9

The Bringing
Them Home Report raised the question of education in the history
and consequences of the separation policies and practices within the
context of guaranteeing against repetition [113].
Such education, it is believed, if instituted at all levels from school
through tertiary institutions and professional bodies, to the wider
community, would ensure a better understanding and appreciation of the
nature of the past practices and thereby protect against their repetition
through design, neglect or ignorance.

No specific initiatives
in this regard have been instituted by the Commonwealth Government as
it is of the view (not disputed by the States and Territories) that
the relevant recommendations are primarily the responsibility of the
States and Territories [114]. It is pertinent to
note, however, one national initiative that has broader community education
goals. The nationwide Stolen Children's Support Fund was established
as a trust on 25 August 1997. The trustees are Peter Nugent MP (Liberal),
Senator Margaret Reynolds (Labour), Senator Vicki Bourne (Democrats),
and Professor Marcia Langton. Its objects are essentially educational
and support the broad educational aims of the National Inquiry's recommendations.
At present it has a relatively small funding base (approximately $12,000).
On 26 May 1998, the Prime Minister announced that donations to the fund
are tax deductable. [115]

In schools

At the State and
Territory level certain specific actions have been taken in direct response
to the recommendations of the National Inquiry. The most conspicuous
and significant of these have been the decisions in New South Wales,
Western Australia, South Australia and the ACT [116]
to provide every school with packages of material relating to stolen
generations issues, including copies of the 30-page Community Guide
of the Bringing Them Home Report and the Bringing Them Home
video. In Queensland, the Community Guide has been placed on 'the Education
Queensland website Murri Thusi for access by schools and other
community members'. [117]

The bulk of existing
or planned initiatives in each jurisdiction that are relevant to the
recommendations are systemic, in that they presently constitute or will
constitute parts of broad policy platforms and operational strategies.
Certainly, in school education, each State and Territory has a specific
Aboriginal and Torres Strait Islander education policy within its general
education policy [118]. It was made clear to the
project team in each of the meetings with governments that it would
be through these existing broad policy outlines or consultation arrangements
(as in the ACT) [119] that any future specific initiatives
responding to the National Inquiry's recommendations would be executed.
Some education departments have ensured (as in Tasmania) [120]
or recommended (as in Queensland) [121] that schools
include the history of separation policies and practices in appropriate
subjects in curricula.

At present, Indigenous
culture or history courses in public schools are compulsory only in
New South Wales, South Australia and Tasmania [122];
they are elective courses elsewhere. However, as was pointed out in
our meetings with governments, such Indigenous specific courses are
not the only vehicle through which the history and continuing effects
of forcible removal of Indigenous children from their families might
be taught. The standard Australian history course ought properly to
include such material.

An important part
of the process of incorporating these matters in school curricula is
the extent to which there is a coordinated national approach. At the
broadest level, Indigenous Education Agreements (1997-9) have
been concluded between the Commonwealth and all state and territory
governments under the Indigenous Education Strategic Initiatives Program.
The broad objectives set by these Agreements provide the framework within
which the specific goals of Recommendation 8 of the National Inquiry
Report could be achieved. At the particular level of developing a nationwide,
compulsory Indigenous studies course, there was some suggestion earlier
this year that the matter might be pursued both at intergovernmental
officer level and Ministerial Council level, but at the time of writing
no such action has been taken.

Of relevant professionals
and public servants

There has been
no national or coordinated intergovernmental initiative on including
stolen generations information in courses. At the State and Territory
level initiatives have been sporadic and particular. For example, the
Victorian Government response outlines cultural awareness training courses
in various forms for police; criminal justice personnel; judges and
correctional services personnel. [123] The Tasmanian
Government response refers to a 'range of training opportunities provided
within the public service which seek to provide cross-cultural
awareness'; [124] it was indicated to us in our
meeting with the Northern Territory Government that similar induction
and continuing training exists in the Northern Territory. The Queensland
Government response refers to general public service training on cultural
awareness; training for front-line child protection and youth justice
workers ('Family Services Officers') in the Department of Families,
Youth and Community Care in relevant matters including the history and
effects of forcible removal; and, the current development of appropriate
cultural modules for teacher training courses. [125]
In the ACT, Youth Justice staff receive training on Aboriginal culture
and the effects of forcible removal, and cross-cultural communication
workshops are made available to Family Services staff [126].
The Australian Federal Police's cultural awareness training includes
consideration of the effects of the forcible removal of Aboriginal and
Torres Strait Islander children. [127]

Typically, governments
consider the inclusion of appropriate courses in University education
and the training provided by professional bodies to be a matter for
these institutions (if not the Commonwealth) to determine for themselves
[128], and would, in any event, likely require further
consultation and consideration. [129]

Issues of contemporary
separation: Recommendations 42-54

All of the recommendations
made by the National Inquiry have a contemporary focus to greater or
lesser extents, but none more so than those which relate to continuing
and/or contemporary separation of Indigenous babies, Indigenous children
and Indigenous young people from their families or communities.

Recommendations
42 to 52 of the National Inquiry Report relate to both the deep societal
questions of Indigenous self-determination and social justice, and the
minutiae of laws, regulations and policies governing families, adoption
and child welfare, and juvenile justice. The deep and the detailed go
hand in hand. Neither set of questions is more important than the other.
The challenge is how to ensure that their integrated relationship is
understood and issues they raise are addressed as effectively as possible.
It was not, and is not, denied that specific relevant initiatives have
been taken, as referred to below and as discussed in Chapters 20 to
26 of the Bringing Them Home Report. However, it was the very
fact that they have been taken largely in isolation, without clear reference
and linkages to other initiatives in the same jurisdiction let alone
reference to corresponding initiatives in other jurisdictions, that
forms the basis for the recommendations in this area.

It was the need
for co-ordinated and integrated response that led to the recommendations
with such a strong focus on national legislation, or at least intergovernmental
cooperation. At base, it was considered that where nationwide strategies
for the twin goals of self-determination and social justice for Indigenous
people could be set, the problems associated with the gross over-representation
of Indigenous people in matters of child welfare and juvenile justice
would begin to be addressed and concerns over contemporary separations
correspondingly allayed.

Self-determination and social
justice

At the broad level,
the view adopted by the National Inquiry was that the most appropriate
and the most effective means by which to establish a stable and lasting
framework for achieving greater self-determination and social justice
was by national framework legislation and national standards legislation.

However, as is
detailed earlier, there is no immediate or even long-term prospect of
such national legislation being introduced. There is no consensus among
Australian governments to act in such a concerted manner. As so much
of the leadership responsibility for such an initiative falls to the
Commonwealth Government, without its active support - or worse, in the
face of its opposition to the idea [130] - the initiative
will not eventuate.

Incorporation of Genocide
Convention: Recommendation 10

The enactment of
legislation by the Commonwealth to give effect to the Genocide Convention,
as suggested in Recommendation 10 of the National Inquiry, would constitute
an important part of official recognition and acceptance in Australia
of the fact that the separation polices of the past are over and will
not be repeated. There are not now, nor have there been, any sound reasons
not to enact such legislation following Australia's ratification of
the Genocide Convention in 1948. Indeed, such legislation would appear
to be required to comply with constitutional convention in Australia,
which dictates that ratification only occurs once domestic law is brought
into line with the requirements of the international instrument being
entered into.

In its response,
the only reason provided by the Commonwealth Government for its decision
not to enact such legislation amounts to a non sequitor. Its
proposition that in the Kruger case [131]
'the High Court rejected assertions that the Northern Territory law
authorised genocide' [132] fails to address the
rationale behind the recommendation. The point at issue in the recommendation
is not whether past laws governing the forcible removal of Indigenous
children from their families authorised or even effected genocide, but
rather that the enactment of legislation outlawing genocide or any genocidal
action in Australia would help ensure that such an abhorrent phenomenon
would not occur today or in the future, whether or not one accepts that
it occurred in the past.

Child welfare and juvenile
justice: Recommendations 44-53

The recommendations
relating to Indigenous child welfare and juvenile justice fall within
the broad ambit of the National Inquiry's call for national framework
legislation and they constitute the basis of the suggested national
standards legislation. In light of this, such responses of governments
to these recommendations as there are suffer fundamentally from the
lack of support for such a nationwide approach. In particular, the rejection
of the base recommendation for the institution of national standards
legislation - namely Recommendation 44, which calls upon COAG to negotiate
with relevant national Indigenous peak bodies (including SNAICC and
NAILSS) on such legislation - has been fatal.

There has not been
a complete absence of intergovernmental coordination in response to
the National Inquiry's recommendations in these areas. On Indigenous
welfare issues in general (including child welfare) the next scheduled
intergovernmental meeting of Community Services Administrators is to
address the question of coordination and cooperation (as discussed earlier
under 'health care'). Furthermore, on Indigenous criminal justice issues,
including juvenile justice, it is understood that they were to be the
subject of discussion at the MCATSIA meeting scheduled for 17 July 1998.
At this meeting the Northern Territory Government was to present a thematic
review it had prepared of the implementation of RCADIC recommendations
in the Northern Territory. It was also expected that the Western Australia
Government would present its response to the Bringing Them Home
recommendations at the same meeting. However, this level of cooperation,
welcome though it may be, falls far short of that required to negotiate,
let alone implement, national standards.

Nevertheless, the
matters of concern in some of the eight 'Standards' provided for in
Recommendations 46 to 53 have already been, or are soon to be, addressed.
In some cases the standard has been obtained more or less through a
conscious collective effort by governments - as, for example, with the
implementation of the Aboriginal (or Indigenous) Child Placement Principle
('Standard 6' - Rec. 51), which provides conditions for placing Indigenous
children through fostering, adoption or care and protection orders,
and which now operates in every jurisdiction whether through legislative
requirement (as in New South Wales, the Northern Territory, South Australia,
Tasmania and Victoria) [133] or at the level of
policy (as in the ACT and Queensland) [134].

In other cases,
broad compliance is claimed by governments through developing systemic
changes to law, policy or practice. This appears to be the position
in the juvenile justice issues raised by Recommendation 53 which advocates
the universal adoption of a set of 15 rules that comprise 'Standard
8'. These rules, which range from initial encounters with police and
conditions of arrest, through cautioning, representation and interrogation,
to bail issues, sentencing and diversionary schemes, are a mixture of
rules that apply generally to Indigenous and non-Indigenous juveniles
alike (eg arrest conditions, interrogation procedures and diversionary
strategies), and others that are Indigenous specific (eg Indigenous
representation and certain detentions conditions). Though not strictly
acting in concert, the Commonwealth, States and Territories have been
reforming juvenile justice laws along similar lines for more than a
decade as they apply to all children, and particularly Indigenous juveniles,
since the RCADIC Report in 1991. Broadly speaking, governments claim
to have in place laws or policies addressing the main issues highlighted
in the 15 rules. [135]

There are, however,
at least two conspicuous exceptions to this general position - namely
the mandatory sentencing provisions operating in the Northern Territory
and Western Australia. These do not conform to the conditions set out
in rules 1 (arrest as last resort), 13 (non-custodial sentences), 14
(sentencing factors) and 15 (where custodial sentences are considered
necessary, for the shortest possible time). Details of how these initiatives
are working in general and what their impact has been on Indigenous
children in particular, is scarce. Both Governments have, however, recently
undertaken evaluations of their respective schemes; in both cases the
results have yet to be made public. That having been said, the Western
Australian Ministry of Justice informed the project team that according
to its own records, 'between 10 February 1997 and 14 May 1998 a total
of 61 juvenile offenders were sentenced under the three strikes legislation,
of which 46 or 75% were Aboriginal'. [136]

In yet another
context, pre-existing standards or subsequent initiatives satisfying
the Recommendations have been made separately by governments. Thus for
'Standard 5' set out in Recommendation 50, while separate representation
in court for Indigenous children is not generally compulsory in the
areas of family law, care and protection, and juvenile justice, it may
be likely that, through the application of policy or the exercise of
discretion, separate representation is provided or made available in
such cases. [137] The Victorian Government raised
the question of whether representation as used in the text of the recommendation
was to be confined to legal representation; if not, it envisaged that
such representation would have to be made subject to the leave of the
court. [138]

More particularly,
the Queensland Government has indicated in its response that it will
develop a 'Statement of Standards for Aboriginal and Torres Strait Islander
Child Protection', 'which reflects the Recommendations of the Inquiry
and which is consistent with current legislation and policy. The proposed
statement of standards will be negotiated with relevant indigenous organisations'.
[139]

The ACT Government
announced in its response that it will be establishing an Aboriginal
Advisory Justice Committee (AJAC) which will provide the necessary partnership
for the development of strategic plans and agreements on Aboriginal
criminal justice issues. [140]

Monitoring of implementation
of government responses: Recommendation 2

The effective monitoring
of the implementation of government initiatives contained in their respective
responses entails two essential elements. The first concerns the putting
in place of mechanisms that will permit implementation to be monitored;
those that have been established or are planned for by the governments,
and are known to the project team, are detailed below.

The second and
more fundamental element concerns the nature of implementation - what
it is (and who decides what it is), how it is measured, and how different
interpretations are dealt with. The significance of these questions
has been made evident, if not fully appreciated, through the chastening
experience of the difficulties encountered in monitoring the implementation
of the recommendations of the Royal Commission into Aboriginal Deaths
in Custody (RCADIC) [141]. There are no easy answers
to these questions, but it is incumbent upon governments to understand
the importance of the issues they raise when they are instituting monitoring
processes in implementing the Bringing Them Home recommendations,
if such implementation is to be effective.

No mechanics of monitoring exist at the broad national or inter- governmental
level. What is more, there appears to be no prospect of such a nationwide
initiative, as the leadership role that would have to be played by the
Commonwealth Government for such an object is not yet evident [142],
despite assurances that MCATSIA will be providing intergovernmental
coordination and monitoring mechanisms as required. [143]

In certain specific
areas of concern, however, there has been more movement. In the area
of health care, for instance, as noted earlier, the Commonwealth Health
Minister has made clear his willingness to involve the Aboriginal and
Torres Strait Islander Health Council, which advises the Minister, in
the implementation of the Government's responses, alongside its broad
monitoring role. [144]

The Victorian Government
has proposed a three-way means of monitoring:

(i) a series
of 11 State-wide regional reference groups are to be established under
the auspices of the Department of Human Services Koori Improvement
Services Strategy (to be initiated in mid 1998), which will provide
feedback to the Department on the implementation of agreed community
servicing plans; [145]

(ii) an Interdepartmental
Committee to be established to assist Aboriginal Affairs in monitoring
implementation; and,

(iii) an undertaking
that as part of the projected annual report on initiatives and outcomes
in Aboriginal affairs that the Government will deliver to Parliament
there will be a report back on issues raised by the National Inquiry.

The Tasmanian Government
indicated in its response [146] that the Office
of Aboriginal Affairs, through the Minister for Aboriginal Affairs,
provide a report reviewing the progress of the implementation of initiatives
by September 1998.

Finally, the Queensland
Government has made clear that it sees the Indigenous Advisory Council
as having 'an ongoing role in advising and monitoring progress on issues
raised in Bringing Them Home'. [147]

Outlook

Collectively, the
National Inquiry's recommendations are concerned to protect and promote
the human rights of those people affected by the policies and practices
of the separation of Indigenous children from their families. To meet
this goal, or indeed, even to strive towards it, requires national coordination
and leadership. Under a federal system of government such as we have
in Australia, these needs are ever present and exist across a wide spectrum
of areas. The need for a nationwide concerted effort in the areas covered
by the National Inquiry is emphasised by the complexity of the separation
or division of responsibilities. While, for instance, responsibilities
for education and health are shared between the Commonwealth, States
and Territories, responsibility for record-keeping and access resides
separately with each jurisdiction; that for juvenile justice and welfare
lies with the States and Territories, and the Commonwealth has 'special'
responsibility for Indigenous people under s 51(26) of the Constitution
(the races power), as well as for Australia's international human rights
obligations by way of its Executive power to ratify treaties and its
power to 'incorporate' them into domestic law under s 51(29) of the
Constitution.

An especially powerful
message to be drawn from this is that without intergovernmental cooperation,
information exchange and coordination, the States and Territories, in
particular, will be left uncertain as to how to co-ordinate their responses
with those of the Commonwealth in order to maximise effect and efficiency.
Consequently, as related in this Report time and time again, the States
and Territories are simply unwilling or unable to make commitments in
respect of national legislation or in the big spending areas of health
and Link-Up type services, where the Commonwealth has indicated its
commitment.

In the end, for
the lack of adequate national and cross-government cooperation, we might
not only lose those initiatives that wholly or largely depend on such
concerted action, we might devalue many well-intended initiatives as
are outlined in the text of this Report, that have been taken by individual
governments. That would surely be a tragedy as well as an injustice.

1.
Some recommendations comprise a number of separate recommendations.

2.
The follow-up project was funded by a grant from the Stegley Foundation
and the Australian Youth Foundation. Dr David Kinley was responsible
for the collation of all information and material drawn from government
consultations and the preparation of the Implementation Report.

3.
The Implementation Report was updated in August 1998 in order to incorporate
the ACT Government's response delivered in July 1998.

4.
Endorsed by the first meeting of the representatives of governments
convened by the National Indigenous Working Group, Brian Butler and
Sir Ronald Wilson in Melbourne in December 1997.

5.
It is anticipated that the National Indigenous Working Group will assume
this role in future.

6.
In this respect, the Follow Up Project team's repeated efforts to obtain
requested material from the Northern Territory Government were frustrated.
The limited discussion of the Northern Territory Government's initiatives
in the Implementation Report duly reflects the paucity of material made
available.

7.
One apparent complicating factor in the preparation of the ACT's response
was the holding of an election during the period of the response's compilation.

8.
In particular, it was considered by Indigenous representatives on the
Steering Committee (see further below under 'Involvement of Indigenous
Communities') that the dense bureaucratic form of the draft response
was such as to make it unintelligible to those who would be most affected
by its content. The New South Wales Government, in tandem with Link-Up
(New South Wales), conducted a series of public forums throughout the
State during July and August 1998 at which Indigenous people and communities
were able to voice their opinions as to how best the Government can
respond to the National Inquiry's recommendations, with a view to producing
a more 'user-friendly' response.

9.
Media Release from the Office of the Minister Responsible for Aboriginal
Affairs, 19 November 1997, p.2.

10.
Media Statement, 20/5/98.

11.
pp.13-4. There is a small discrepancy between the figures quoted in
the response and those in the statement namely, the latter indicates
that $11.3 has been allocated to the Link-Up network and $39.2 million
to DHFS, which represents an additional $50,000 for each allocation
from the amounts originally declared in the response.

12.
The following page references are from Senator Herron's statement: for
the language, culture and history centres ($9 million), see pp.41-3;
for the Link-Up network ($11.3 million), see pp.44-7; for the Australian
Archives records project ($2 million), see p.74; for the National Library
Oral History programme ($1.6 million), see p.80; and for the DHFS programmes
($39.3 million), see p.107.

13.
For the composition of the Committee, see the Government's 'Statement
of Progress in Commemoration of National Sorry Day', 26 May 1998.

14.
Discussed below at page 144-45.

15.
See Response, p.17.

16.
Discussed below at page 144.

17.
Correspondence from Mr Greg Hunting, Chief of Staff, 3 March 1998; HREOC
file.

18.
As endorsed by Council of Australian Governments (COAG) in May 1992,
and subsequently reaffirmed by the MCATSIA in its July 1996 meeting.
Furthermore, the Prime Minister advertised the reinvigoration of the
National Commitment in his speech opening the Reconciliation
Conference, 26 May 1997, Melbourne.

19.
National Commitment to Improved Outcomes in the Delivery of Programs
and Services for Aboriginal Peoples and Torres Strait Islanders, May
1992, para. 4.3.

20.
That is through ATSIC. As regards the process of formulating the Government's
response, ATSIC staff attended the single Interdepartmental Committee
meeting convened on 22 July 1997 to discuss the response. ATSIC staff
were also involved in a number of bilateral discussions with staff of
the Department of Prime Minister and Cabinet. The ATSIC Board, however,
was never formally or directly consulted, though according to Senator
Herron, 'the matter was raised at a number of ATSIC Board meetings when
I was present': response to a question put to Senator Herron by Senator
Bob Collins, Senate Debates, 4 March 1998, pp.435-6.

21.
The Aboriginal and Torres Strait Islander Consultative Council. The
Council provides advice to the Chief Minister 'on issues affecting the
interests and well-being of Canberra's Indigenous population and to
act as a link between government agencies and Indigenous peoples'; ACT
Response, p.17. The Council has an ad hoc membership and it meets approximately
every six weeks.

22.
The Indigenous Advisory Council (IAC). The IAC is a standing body with
10 staff and chaired by Neville Bonner. It provides advice to government
on the full range of Indigenous issues. See further, Queensland Government
Response, p3.

23.
The Steering Committee convened by the New South Wales Government to
oversee its response to the National Inquiry's recommendations included
two representatives from the New South Wales Stolen Generations Working
Group. The New South Wales Government has considered the detailed recommendations
made by Link-Up (New South Wales) to the National Inquiry as integral
to the preparation of its response. The Link-Up submission and recommendations
have been published separately under the title In the Best Interests
of the Child?, 1997.

24.
The Victorian Government's response that the Department of Human Services,
through Aboriginal Affairs Victoria, 'will make available $50,000 to
employ an Aboriginal officer to debrief Aboriginal communities on the
National Inquiry and, particularly, those who gave witness testimony.
They will also be required to provide feedback to the Government on
the implementation of the State Government initiatives'; p.10.

25.
New South Wales Government's Statement of Progress 26 May 1998.

26.
National Commitment to Improved Outcomes in the Delivery of Programs
and Services for Aboriginal Peoples and Torres Strait Islanders, May
1992, para. 2.

27.
National Commitment to Improved Outcomes in the Delivery of Programs
and Services for Aboriginal Peoples and Torres Strait Islanders, May
1992, Overview, p.1.

28.
Ibid.

29.
Ibid.

30.
The recommendations stipulate 8 specific standards spread across recommendations
46 to 53.

31.
Both the Queensland and Victorian Governments expressly reject the notion
of national framework or national standards legislation; see their responses,
p.14 and p.42, respectively. The Governments of Tasmania (response,
p.34) and New South Wales on the other hand, are more amenable to the
idea and would support intergovernmental discussion of the issue. The
ACT Government has indicated that it 'would be prepared to consider
national standards in relation to child protection and placement and
for young offenders', response, p.3.

32.
At p.10.

33.
See discussion below.

34.
November 1997.

35.
'Improving Human Services for Victorian Koories: A Five Year Plan',
March 1998. The Strategy expressly echoes the sentiments of the National
Commitment upon which it is based.

36.
At, p.8.

37.
At, p.3.

38.
At, p.5.

39.
Introduction, (para.1.1).

40.
National Commitment to Improved Outcomes in the Delivery of Programs
and Services for Aboriginal Peoples and Torres Strait Islanders, May
1992, para.4.4.

41.
South Australia: 28 May 1997; Western Australia: 28 May 1997; Queensland:
3 June 1997; ACT: 17 June 1997; New South Wales: 18 June 1997; Tasmania:
13 August 1997; and, Victoria: 17 September 1997.

42.
Parliamentary Record (NT), 17 February 1998, p.17.

43.
Mr Stirling, Parliamentary Record (NT), 17 February 1998, p.59. The
ACT Government's position is different in this respect. For while it
invokes the 'not directly responsible' argument in its rejection of
the Inquiry's recommendation that financial compensation for those affected
be considered (response, p. 27), the Government, together with the Legislative
Assembly, did issue a statement of apology.

44.
In fact, the Commissioner made clear in the statement that the apology
was made on behalf not only of the police service, but also the Chief
Executive Officers of all New South Wales justice agencies.

45.
Response, p.4.

46.
Senator Herron, Budget Day Statement, 1998, 'Addressing Priorities in
Indigenous Affairs', May 12 1993, p.80.

47.
Senator Herron, Budget Day Statement, 1998, 'Addressing Priorities in
Indigenous Affairs', May 12, 1993, p.80.

48.
In the words of the Commonwealth Government's Response the 'ATSIC Board
has agreed to commit an additional $9 million over the next three years
for language and culture centres'; p.10.

49.
Commonwealth Government's response, pp.41-3.

50.
News Release from the office of the Minister Responsible for Aboriginal
Affairs, Victoria, 17 November 1997, p.2; see also p.16 of the Victorian
Government's response.

51.
New South Wales Government's 'Statement of Progress', May 26, 1998,
p.2.

52.
Statement made by the Premier, Mr Bob Carr, at a Sorry Day Service,
Government House, Sydney, 26 May 1998; reported in the Sydney Morning
Herald, 27 May 1998, p.1.

53.
Response, pp.14-5.

54.
Response, p.10.

55.
Response, p.4.

56.
Response, p.27.

57.
Williams v Minister, Aboriginal Land Rights Act and the State of
NSW (1994) 35 NSWLR 497. The substantive matter of the case is yet
to be argued.

58.
PIAC filed and served a claim for compensation of the plaintiff in the
Supreme Court of New South Wales on 19 February 1998.

59.
In respect of the Stevens case, PIAC's statement of claim is
almost identical to that of the SGLU's in the two Northern Territory
Federal Court cases detailed above.

60.
PIAC, Providing Reparations: A Brief Options Paper, October 1997,
p.9.

61.
Ibid.

62.
Refer also to the table compiled in the Bringing Them Home Report
(pp.330-1) which outlines the records searching and tracing services
available in each jurisdiction. This section takes that table as its
base, and the following observations and comments are provided either
to draw out a particular important feature or point, or where the situation
now significantly differs from that recorded by the National Inquiry.

63.
MOU, p.2. 'Open period records' are records more than 30 years old.
'Closed period records' less than 30 years old are not generally accessible
and are therefore not covered by the MOU. However, the Australian Law
Reform Commission has recommended in its report, Australia's Federal
Record: A Review of the Archives Act 1983, that MOUs ought to be
developed between government departments and Indigenous peoples in respect
of records less than 30 years old; ALRC report No.85, 1998, Rec.213,
p.361.

64.
Victoria alone among the states transferred to the Commonwealth in 1975
all records it held relating to the administration of Aboriginal Affairs.

65.
Commonwealth Response, at p.6; see also Senator Herron's 1998 Budget
Day Statement, p.74.

66.
Response, p.36.

67.
This project, which was on foot before the National Inquiry's recommendations
were made, covers the tracing of family and communities records held
by government and non-government bodies relating to Aboriginal and non-Aboriginal
people. The resultant Connecting Kin B Guide to Records is expected
to provide a guide to one-stop records access.

68.
Response, p.5.

69.
Response, p.36.

70.
The Northern Territory Government has no plans to enact FOI legislation
as called for in Recommendation 26.

71.
Response, pp.8 & 37.

72.
Response, pp.36-7.

73.
There are no plans to enact archives legislation in the Northern Territory.

74.
The Government has declared that it intends to examine the need for
such legislation; response, p.34.

75.
A Joint Guide to Records about Aboriginal People in the Public Records
Office of Victoria and the Australian Archives, 1993.

76.
Response, p.2.

77.
Response, p.39. However, according to the ACT Government, the Australian
Institute of Aboriginal and Torres Strait Islander Studies (Canberra)
is usually the first port of call for Indigenous people seeking personal
and family information; project team meeting with Government.

78.
Protocol, pp.5-6.

79.
There is also provision for the training of archives staff under the
MOU; p.5.

80.
Media Statement 20 May 1998, p.1.

81.
Ibid.

82.
However, the service relates only to those records held by the Department
(whether in its offices or in State Archives). The Section can and does
direct users to other departments (such as Births, Deaths and Marriages)
or non-governmental bodies (such as churches) where it does not hold
the records sought. In respect of the latter records, many are either
held by the John Oxley Library, or the Library has access to them. Volume
3 of the Guide referred to in the following footnote focuses on these
other sources of records.

83.
Only the first of three volumes of the Guide is currently available.
This first volume (along with volume 2) will describe the historical
records held by the Department. Volume 3 will describe the records held
by other government departments (for example, Police, Lands, and Auditor-General).
The price quoted refers to the first volume. The Guide is a joint initiative
of the Department and Queensland State Archives.

84.
Response, p.26.

85.
Response, p.19.

86.
Statement of Progress, May 26 1998, p.8.

87.
Northern Territory Government Protocol, p.13.

88.
MOU, p.6.

89.
Response, p.19.

90.
ACT Government Response, p.34.

91.
Response, p.27: under s 74(1) of the Adoption Act 1988 (Tas),
counselling is mandatory for all adopted persons or birth parents seeking
information; this applies, of course, to Indigenous and non-Indigenous
people alike.

92.
Senator Herron's Budget Day Statement, 12 May 1998, pp.47.

93.
Response, p.7.

94.
Response, p.7.

95.
See Senator Herron's Budget Day Statement, 12 May 1998, pp.46-7. The
Commonwealth points out that this extra funding represents a 300% increase
in the ATSIC's annual budget for this purpose.

96.
Correspondence from the Commonwealth Minister for Health and Family
Services, Dr Michael Wooldridge (to Sir Ronald Wilson), 12 May 1998;
Commission file.

97.
Statement of Commitment, p.8.

98.
Addendum to the Queensland Government's response. No indications are
provided as to how long the employee will be engaged on developing the
project and when it might be finished; how the resultant training program
might be administered and by whom (the Department or Link-Up?), and
no costs estimate or budget is provided.

99.
Response, p.28. Similarly, the ACT Government's response talks, in this
respect, of 'applying' for an additional mental health counsellor for
the ACT from the 50 new Commonwealth positions to be created; at p.4.

100.
The last of which was concluded with the Northern Territory in April
1998. The process of securing all 8 agreements took approximately 2
years. Typically, each agreement is between the State/Territory Minister
for Health, the Commonwealth Minister for Health, Chairperson of ATSIC
and the Chairperson of the peak Indigenous community health care body.

101.
'Wellbeing Action Plan', see following footnote; p.1.

102.
Launched in October 1996 by the Commonwealth Minister for Health, Dr
Michael Wooldridge. The 'Wellbeing Action Plan' has a budget of $20
million spread over four years. The 'Wellbeing Action Plan' is itself
a direct product of the Ways Forward report 1995 (Vols 1 &
2) on Aboriginal and Torres Strait Islander Mental Health, prepared
by Raphael, B and Swan, P.

103.
Commonwealth response, p.8.

104.
Commonwealth response, p.2.

105.
Minister for Health and Family Services, Media Release, 12 May 1998,
p.6.

106.
See further, Senator Herron's Budget Statement, 12 May 1998, p.107.

107.
Commonwealth response, p.4.

108.
Commonwealth response, p.4.

109.
Commonwealth response, p.8.

110.
Dr Wooldridge; correspondence (with Sir Ronald Wilson), 12 May 1998;
Commission file.

111.
Ibid.

112.
The ACT Government, in its response, does however attempt to make this
distinction, at pp.5-9.

113.
At pp.294-5.

114.
Commonwealth Response, 'Summary' table, p.12.

115.
Media Statement.

116.
The provision of the material indicated has been foreshadowed in the
ACT Government response at p.30; it has already occurred in the other
jurisdictions cited.

117.
Response, p.4.

118.
Typically, such policies address the twin questions of how 'to promote
educational achievements of Aboriginal students' and, '[t]o educate
all students about Aboriginal Australia'; these are the word of the
New South Wales Department of School Education's Aboriginal Education
Policy.

119.
Response, p.19.

120.
Response, p.13.

121.
Response, p.4.

122.
Response, p.15: 'Aboriginal Studies' is a compulsory unit of the learning
area 'Studies of Society and the Environment' in Tasmania.

123.
Response, p.14.

124.
Response, p.15.

125.
Response, p.5.

126.
Response, p.30.

127.
ACT Government response, p.30.

128.
See, for example, the responses of the Queensland and Victorian Governments
p.5 and p.14, respectively.

129.
See, for example, the Tasmanian Government response, p.3.

130.
Commonwealth response, p.10.

131.
Kruger v Commonwealth (1997) 71 ALJR 991.

132.
Summary Table appended to response.

133.
For details, see Bringing Them Home, pp.439-448; except for Tasmania
which has now incorporated the ACPP in the Children, Young Persons
and their Families Act 1997, s.9. The draft response of the New
South Wales Government foreshadows a desire to extend the current scope
of the ACPP to cover all placements of Indigenous children and not just
those following a court order, and to articulate more clearly the circumstances
in which discretion is exercised not to apply the ACPP.

134.
Bringing Them Home, pp.439-448. The ACT Government indicates
in its Response that it 'proposes that the principle be enshrined verbatim
in the [Children Services] Act'; p.8. A review of the operation of the
ACPP in New South Wales which includes comparative analyses of the operation
of the principle in all Australian jurisdictions and overseas was conducted
recently by the New South Wales Law Reform Commission, 'The Aboriginal
Child Placement Principle', Research Paper No.7 (March 1997).

135.
See responses of the Governments of Tasmania (p.39) (now bolstered by
the enactment of the Youth Justice Act 1997); Victoria (pp.49-50),
Queensland (p.14) and the ACT (p.8); and the draft response of the New
South Wales Government. See further, Chapter 24 of Bringing Them
Home, and the individual submissions of the governments to the National
Inquiry. For a recent analysis of the status of Indigenous criminal
justice, including juvenile justice, across Australia in the context
of an evaluation of the implementation of the RCADIC recommendations,
see Cunneen, C. and McDonald, D., Keeping Aboriginal and Torres Strait
Islander People out of Custody, 1997.

136.
Correspondence, 31 July 1998; Commission file. The Ministry of Justice
added, '[i]t needs to be noted that some of these young offenders have
been sentenced to community based sanctions and some juveniles have
been sentenced on more than one occasion.'

137.
See, for example, Victorian Government Response, p,47. For an overview
of the status of representation provisions in all Australian jurisdictions
in respect of civil, family and care and protection matters, see Australian
Law Reform Commission and HREOC, Seen and Heard: Priority for Children
in the Legal Process, ALRC Report No.84, 1997, Chapter 13.

138.
Response, p.46.

139.
At p.14.

140.
Response, p.6.

141.
See discussion in Aboriginal and Torres Strait Islander Social Justice
Commissioner's Fourth Report, 1996, p.viii and pp.257-68.

142.
See Commonwealth Government response, p.10.

143.
Correspondence from Office of the Minister for Aboriginal and Torres
Strait Islander Affairs, 3 March 1998; Commission file.

144.
Correspondence from the Commonwealth Minister for Health and Family
Services, Dr Wooldridge to Sir Ronald Wilson, 12 May 1998; Commission
file.

145.
Victorian Government response, p.5.

146.
Overview of the Premier, Mr Tony Rundle MHA, p.4.

147.
Response, p.3.

3
April 2003.

Social Justice Report 1998 : Chapter 4: Government Responses to the Recommendations of Bringing Them Home