Bringing them Home - Chapter 14
Human Rights and Equal Opportunity Commission Report
Bringing them Home
Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families
Part 4 Reparation
- Making Reparation
- Acknowledgment and apology
- Guarantees against repetition
- Land, culture and language restitution
- Monetary compensation
The Government has to explain why it happened. What was the intention? I have to know why I was taken. I have to know why I was given the life I was given and why I'm scarred today. Why was my Mum meant to suffer? Why was I made to suffer with no Aboriginality and no identity, no culture? Why did they think that the life they gave me was better than the one my Mum would give me?
And an apology is important because I've never been apologised to. My mother's never been apologised to, not once, and I would like to be apologised to.
Thirdly, I've been a victim and I've suffered and I'll suffer until the day I die for what I've never had and what I can never have. I just have to get on with my life but compensation would help. It doesn't take the pain away. It doesn't take the suffering away. It doesn't take the memories away. It doesn't bring my mother back. But it has to be recognised.
And I shouldn't forget counselling. I've had to counsel myself all my life from a very young age. And in the homes I never showed my tears ... I've been told that I need to talk about my childhood. I need to be counselled for me to get back on with my life.
Confidential evidence 139, Victoria: woman removed at 12 months in 1967.
Denial of common law rights
The Inquiry has found that the removal of Indigenous children by compulsion, duress or undue influence was usually authorised by law, but that those laws violated fundamental common law rights which Indigenous Australians should have enjoyed equally with all other Australians. As subjects of the British Crown, Indigenous people should have been accorded these common law liberties and protections as fundamental constitutional rights.
Breach of human rights
The Inquiry has further found that from about 1950 the continuation of separate laws for Indigenous children breached the international prohibition of racial discrimination. Also racially discriminatory were practices which disadvantaged Indigenous families because the standards imposed were standards which they could not meet either because of their particular cultural values or because of imposed poverty and dependence.
Finally, from 1946 laws and practices which, with the purpose of eliminating Indigenous cultures, promoted the removal of Indigenous children for rearing in non-Indigenous institutions and households were in breach of the international prohibition of genocide. From this period many Indigenous Australians were victims of gross violations of human rights.
The Inquiry has found that many individuals were victims of civil and/or criminal wrongdoing. These wrongs were perpetrated by `carers' and typically ignored by government-appointed guardians. They compounded the initial harm and damage caused by the children's separation and the denial of access to their families, communities and culture.
The Inquiry is aware that no measures can fully compensate for the effects of these violations.
The loss, grief and trauma experienced by Aboriginal people as a result of the separation laws, policies and practices can never be adequately compensated. The loss of the love and affection of children and parents can not be compensated. The psychological, physical and sexual abuse of children, isolated among adults who viewed them as members of a "despised race" cannot be adequately compensated. The trauma resulting from these events have produced life-long effects, not only for the survivors, but for their children and their children's children. The loss of Aboriginal identity, culture, heritage, community and spiritual connection to our country cannot be adequately compensated. Nor can the loss of the parents and other leaders who provide the vision, the strength and the responsibility to carry our communities forward into the future. It is also impossible to adequately compensate us for the internalised racisms expressed as divisiveness within communities caused by separations, such that we judge ourselves and each other as being more or less `Aboriginal' (Link-Up (NSW) Aboriginal Corporation submission 186 page 2).
Nevertheless, the Link-Up (NSW) submission emphasised the responsibility of governments under international law to provide reparations for gross violations of human rights.
Insofar as reparation and compensation can assist us to heal from the harms of separation, it is our right to receive full and just reparation and compensation for the systematic gross violations of our fundamental human rights (page 2).
Dr Jane McKendrick, a psychiatrist with the Victorian Aboriginal Mental Health Network, emphasised the healing power of recognition and compensation.
The people who come to see me with depression and other psychological problems and start talking about the things that have happened to them in their childhood - it is as if they are coping with that on their own and no-one else recognises it. Often they are things that they feel they cannot tell anyone else, even the people closest to them.They also feel that this has been done to them and no-one cares because there has been no official recognition. And people say, well, nothing is going to compensate me for what I have lost and it can never be completely replaced. But I think some acknowledgement and some form of compensation would assist people to feel that their pain and their suffering has been recognised and it has been recognised that something has been done to them. Because families and individuals who have been removed often feel guilty themselves about the removal ...
I think it is a central part of the healing process because you have to have the recognition and to have proper recognition you have to have some form of compensation, because a wrong has been done to these people. And for it to be a proper recognition, there has to be compensation. Unless there is proper recognition of what has been done, people really cannot begin to heal properly (evidence 310).
Principles for responding to the effects of forcible removals must be developed from an understanding of Australian history as having included gross violations of human rights. International human rights treaties and norms of customary international law impose obligations on countries to respect human rights standards and to prevent their violation, including by private persons (Forde 1985 pages 271-8, Meron 1989 pages 156-9 and 162-9, van Boven 1993 para 41). States breach their obligations when they fail to prevent human rights violations by others as well as when human rights are violated by state action. In either event the victims have a right to reparation.
... the obligations resulting from State responsibility for breaches of international human rights law entail corresponding rights on the part of individual persons and groups of persons who are under the jurisdiction of the offending State and who are victims of those breaches. The principal right these victims are entitled to under international law is the right to effective remedies and just reparations (van Boven 1993 para 45).
Many international instruments binding on Australia recognise this right to remedies and reparations. Article 8 of the Universal Declaration of Human Rights (1948) states that,
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 2(3) of the International Covenant on Civil and Political Rights (1966), article 39 of the Convention on the Rights of the Child, article 19 of the Declaration on the Protection of All Persons from Enforced Disappearances, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination all provide a right to compensation for a violation of human rights. The last named provides that states parties are to ensure effective protection and remedies against any acts of racial discrimination in violation of the Convention as well as the right to seek `just and adequate reparation or satisfaction for any damage suffered as a result of racial discrimination'.
The right to reparation does not depend on treaties alone. It is now widely recognised that customary international law requires that states make reparation.
Customary norms are binding upon the constituent units of the world community regardless of any formal act of assent to those norms. An integral part of a State's obligations in regards to international human rights law is the duty to provide an adequate remedy where substantive norms are violated (Anaya 1994 page 360; see also Lutz 1989 page 201).
The Inter-American Court of Human Rights in the Aloeboetoe Case held that the obligation to make reparation is a `rule of customary law' and `one of the fundamental principles of current international law'.
In summary, there is an international legal obligation `to repair the damage caused, awarding the victims means of rehabilitation and, where applicable, compensation or economic indemnification' (Artucio 1992 page 192). This obligation passes from the violating government to its successors until satisfaction has been made (Lutz 1989 page 206).
In 1989 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities entrusted Professor Theo van Boven with a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. He submitted a final report, including a proposal for basic principles and guidelines, in 1993. In 1995, the Sub-Commission requested Professor van Boven to prepare a revised set of basic principles and guidelines for its consideration in 1996. The revised document is entitled Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law (van Boven 1996; see Appendx 8).
The principles recognise a right to a remedy for these victims.
4. Every State shall ensure that adequate legal or other appropriate remedies are available to any person claiming that his or her rights have been violated ...
The Inquiry concurs with van Boven that the only appropriate response to victims of gross violations of human rights is one of reparation. In international law and in the practice of other countries the term `compensation' is generally reserved for forms of reparation paid in cash or in kind. Other terms are used for non-monetary compensation. The term `reparation' is the comprehensive notion. The Inquiry was urged to interpret the term `compensation' in term of reference (c) as `intended to include the more encompassing term "reparation" ' (Aboriginal Legal Service of WA submission 127 page 72). In light of the clear intent of the terms of reference to redress the history of removals the Inquiry adopts this interpretation.
7. In accordance with international law, States have the duty to adopt special measures, where necessary, to permit expeditious and fully effective reparations. Reparations shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (van Boven 1996).
A number of submissions to the Inquiry supported an approach to the principles of compensation which recognises the history of gross human rights violations and the obligation to make reparation. Some were aware and supportive of the `van Boven principles'. The Aboriginal Legal Service of WA commented that,
Many of the specific recommendations made by those interviewed by the ALSWA are consistent with van Boven's proposals (submission 127 page 105).
The ALSWA recommended that Commonwealth and State governments accept and `give effect to the proposed basic principles and guidelines recommended by van Boven to justify an award to persons, families and communities affected by the separation of Aboriginal children from their families' (recommendation 1). The Stolen Generations National Workshop also endorsed the approach taken by van Boven (submission 754 page 50).
The Broome and Derby Working Groups submitted,
We believe that those who have suffered are entitled to monetary compensation and to some form of restitution for what they have lost and that the Government and other institutions responsible for formulating and implementing these policies and practices should assist in the rehabilitation of individuals and families who have suffered the ongoing effects of these policies and practices (submission 518 page 2).
In its 1994 report on the High Arctic Relocation of 1953-55, the Canadian Royal Commission on Aboriginal Peoples proposed a package of reparations along similar lines. It recommended that the Canadian Government `should acknowledge the wrongs done to the Inuit and apologize to the relocatees', should fund additional services to assist the readjustment of `returnees' and all others still adversely affected, and should make `provisions for returning, including re-establishment in the home community' and should pay monetary compensation for the effects of relocation (pages 163-164).
Reparations should be material, in-kind and non-material and should include, but not be confined to, monetary compensation. In this Part we make recommendations relating to acknowledgment and apology, guarantees against repetition, some measures of restitution and monetary compensation. In Part 5 we make further recommendations which are restitutive in nature and a number of recommendations which are rehabilitative in nature.
Components of reparation
Recommendation 3: That, for the purposes of responding to the effects of forcible removals, `compensation' be widely defined to mean `reparation'; that reparation be made in recognition of the history of gross violations of human rights; and that the van Boven principles guide the reparation measures. Reparation should consist of,
1. acknowledgment and apology,
2. guarantees against repetition,
3. measures of restitution,
4. measures of rehabilitation, and
5. monetary compensation.
The gross human rights violations documented by the Inquiry have affected Australia's Indigenous peoples widely. They have affected the families and communities of those forcibly removed. They have affected the entire Indigenous population with demoralising consequences. The van Boven principles recognise that victims of violations may be direct and indirect, thus including the children and families directly affected together with entire communities.
6. Reparation may be claimed individually and where appropriate collectively, by the direct victims, the immediate family, dependants or other persons or groups of persons connected with the direct victims.
The importance of making reparation to all who suffered as a result of these practices is recognised in the Inquiry's terms of reference and was underlined by a number of submissions to the Inquiry.
Compensation needs to be seen not only in direct relation to the children who were removed, but also the parents, families and communities from which the children were taken. Whole communities were severely affected and collective grief is a continuing reality in the communities affected (Link-Up (NSW) Aboriginal Corporation submission 186; supported by Aboriginal Legal Service of WA submission 127 recommendation 11).
This process must include a recognition that the removals affected more than the individuals actually taken, but also the communities they were taken from and the descendants of those taken, all of whom continue to suffer the anguish the removals caused (Stolen Generations National Workshop 1996 submission 754 page 50).
At the same time, submissions emphasised that the principal victims were the children taken away and that their individual rights to reparations should not be overlooked in the process of making reparation to their families and communities.
There is collective grief; but not comparable to the grief suffered by the individuals who were the subject of the policy and who were deprived of being raised in normal circumstances with their family and community. Nor does compensating communities recognise that individuals' legal rights have been affected by the policy, and that individuals suffered damage (Tasmanian Aboriginal Centre submission 325 pages 2-3; supported by NSW Aboriginal Land Council submission 643 page 2 and confidential evidence 163, Victoria).
Recommendation 4: That reparation be made to all who suffered because of forcible removal policies including,
The first step in any compensation and healing for victims of gross violations of human rights must be an acknowledgment of the truth and the delivery of an apology. Van Boven's principle 15 concerns `satisfaction and guarantees of non-repetition' including, as necessary,
(a) Cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth;
(c) An official declaration or a judicial decision restoring the dignity, reputation and legal rights of the victim and/or of persons connected with the victim;
(d) Apology, including public acknowledgment of the facts and acceptance of responsibility;
(e) Judicial or administrative sanctions against persons responsible for the violations;
(f) Commemorations and paying tribute to the victims;
(g) Inclusion in human rights training and history textbooks of an accurate account of the violations committed in the field of human rights and humanitarian law;
(h) Preventing the recurrence of violations ...
For victims of gross human rights violations, establishing the truth about the past is a critically important measure of reparation (Orentlicher 1994 page 457). For many victims and their families, an accurate and truthful description of past policies and practices and of their consequences is the first requirement of justice and the first step towards healing wounds (Danieli 1992 page 210). Also essential is an acknowledgment of responsibility (Danieli 1992 page 208). Related to calls for truth and acknowledgment of responsibility, the Inquiry has heard demands for apologies to the individuals, families and communities who have survived the removal of Indigenous children.
The Canadian Royal Commission on Aboriginal Peoples recently recommended the establishment of a public inquiry to investigate the Canadian policy of removing Indigenous children to residential schools. It is proposed that the inquiry should in turn `recommend remedial action by governments and the responsible churches ... including as appropriate, apologies by those responsible' in addition to the payment of compensation (1996b Volume 5 page 143).
The Inquiry was told that both governments and non-government agencies, including the churches and missions, should acknowledge their part in the separation of Indigenous families and apologise to the victims. ATSIC submitted,
The prospect of apologies to indigenous people has been raised on many occasions. There is no uniform view about reparations but there is a consistent view of indigenous people as to the necessity for apologies ... an apology must be matched by a commitment to rectify past mistakes through reparation and compensation.
... ATSIC considers that reconciliation must surely begin with this one elementary condition: an apology. Indigenous people may then feel that the issue of separation, and the injustices it caused, have been acknowledged by those present-day government and non-government organisations who are directly connected with organisations responsible for past policies and practices (submission 684 page 32).
`[T]he assimilation policy that operated in this country be [should be] denounced officially by governments across the country' (Aboriginal Legal Rights Movement submission 484 recommendation 18); `public acknowledgment and apologies [should] take place from the Australian population including especially government organisations, church bodies' (SA Aboriginal Child Care Agency submission 347 recommendation 5). Link-Up (NSW) called for `a full public disclosure of the facts of separation', admissions of responsibility from governments `for the development and implementation of the policies and practices of separation', admissions of responsibility from the churches for their roles and extension of apologies to the survivors for their `engagement in practices of genocide, forced assimilation and ethnic cleansing' (submission 186). The Aboriginal Legal Service of WA recommended,
That the State government [and the Commonwealth government] make a public statement in Parliament acknowledging the devastating impact of the policies and practices of removing Aboriginal children from their families on individuals, their families and the Aboriginal community, and express regret, and apologise on behalf of the people of Western Australia [and Australia] (submission 127 recommendations 3 and 5).
Australian governments have only very recently admitted the history of forcible removals and its effects. While governments recognise the harms suffered, as the following statements evidence, only the Government of New South Wales has extended an apology.
Addressing the United Nations Human Rights Committee in 1988, Australia's Representative stated,
Launching the 1993 Year of the World's Indigenous People, then Prime Minister Paul Keating stated,
[Australia] acknowledged that the Public Policy regarding the care of Aboriginal children, particularly during the post-war period, had been a serious mistake (quoted by Aboriginal Legal Rights Movement submission 484 on page 18).
It begins, I think, with the act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion.It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask - how would I feel if this were done to me. As a consequence, we failed to see that what we were doing degraded all of us (Redfern, 10 December 1992).
The South Australian Minister for Aboriginal Affairs, Michael Armitage, stated in the House of Assembly in September 1994,
I remind members of the appalling and breathtakingly paternalistic practice of taking Aboriginal children from their families, ostensibly to provide for them in a so-called `better fashion' ...There would be few Aboriginal people beyond school age who were not raised without the threat, if not the actuality of family dislocation. It will take decades yet before the consequences of these policies are worked through.
The consequences of past mistakes are carried from generation to generation. Reconciliation appropriately involves an honest acknowledgment of the impact of colonisation, both historically and up to the current day (quoted by Aboriginal Legal Rights Movement submission 484 on page 48).
In its submission to the Inquiry, the Tasmanian Government stated that it,
... recognises that past legislation, practices and policies have adversely affected Aboriginal people. This has had implications to Aboriginal people in Tasmania over successive generations (final submission page i).
The Queensland Government submitted,
The Victorian Government submitted,
The extent of government control over the lives of the indigenous people of the State that occurred in the past, and the associated high degree of government and institutional interference with indigenous family life, have had wide-ranging and often tragic impacts on Aboriginal and Torres Strait Islander people in Queensland over successive generations.Many of those policies and practices, and the beliefs that engendered them, are not acceptable today (interim submission page 2).
The Government has acknowledged before the Commissioner, that the early history of child welfare in Victoria is hallmarked by policies and practices which evolved in accordance with the views of the Victorian community of that time. Many of these approaches to child welfare would be unacceptable today (final submission page 3).
On 14 November 1996, New South Wales Premier Bob Carr, in a speech on reconciliation in the Legislative Assembly, stated that removals were `done in the name of the State and in the name of this Parliament'.
That is why, Mr Speaker, I re-affirm in this place, formally and solemnly as Premier, on behalf of the government and people of New South Wales, our apology to Aboriginal people.And I invite the House to join with me in that apology, and in doing so, acknowledge, with deep regret Parliament's own role in endorsing policies and actions of successive governments which devastated Aboriginal communities and inflicted, and continues to inflict, grief and suffering upon Aboriginal families and communities.
I extend this apology as an essential step in the process of reconciliation.
Acknowledgment and apology - Parliaments and police forces
Recommendation 5a: That all Australian Parliaments
1. officially acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal,
2. negotiate with the Aboriginal and Torres Strait Islander Commission a form of words for official apologies to Indigenous individuals, families and communities and extend those apologies with wide and culturally appropriate publicity, and
3. make appropriate reparation as detailed in following recommendations.
Recommendation 5b: That State and Territory police forces, having played a prominent role in the implementation of the laws and policies of forcible removal, acknowledge that role and, in consultation with the Aboriginal and Torres Strait Islander Commission, make such formal apologies and participate in such commemorations as are determined.
Submissions to the Inquiry similarly called on the churches to acknowledge their respective roles and extend apologies to the children, their families and communities.
[That] Churches acknowledge what happened, support Aboriginal initiatives to begin healing process, open up their archives providing information about people's families and resolve any outstanding land issues with relevant communities (Broome and Derby Working Groups submission 518 recommendation 3.2.8).
Most churches recognise the devastating effects of the forcible removal policies and practices.
Centacare Catholic Community Services on behalf of the NSW Catholic Church's diocesan welfare agencies deeply regrets the enormous suffering to individuals and the aboriginal people as a community as a result of the massive social dislocation caused by the removal of Aboriginal and Torres Strait Islander children from their families (Centacare Catholic Community Service submission 478 page 5).There is no doubt that the policy of taking children from their natural families has had devastating effects on many of the people who were taken away, on their families and on the community as a whole. Although many of the people have since become leaders in the Aboriginal community, many others have been devastated by the experience ...
As well, the second generation have felt the effects of the deprivation suffered by the generation that was taken away. For them the loss also of parenting, relationship and life-skills, of how to give and receive love has been devastating. There has been a loss of identity, of self-respect and hope (Uniting Church in Australia first submission 457 page 10).
Agencies of the Catholic Church in Australia have acknowledged their role and its effects while other branches have extended apologies in submissions to the Inquiry. On 18 July 1996 representatives from three national groups of the Roman Catholic Church delivered a Joint Statement to the Inquiry.
On behalf of our constituent national groups we sincerely and deeply regret any involvement Church agencies had in any injustices that have been visited upon Aboriginal and Torres Strait Islander families. It is apparent with hindsight that some Church agencies, along with other non-government organisations, played a role in the implementation of government policies and legislation which led to the separation of many children from their families and communities.We sincerely regret that some of the Church's child welfare services and organisations, which were amongst those non-government organisations in Australia that provided residential services and institutional care to Aboriginal and Torres Strait Islander children forcibly removed from their families by agents of the state, assisted governments' implement assimilationist policies and practices.
To the best of our knowledge, at no time have the Church's child welfare services and organisations been given any legislative power or authority to forcibly or physically remove any children from their families ... We do accept that there were cases where the actions of Church child welfare services and organisations were instrumental in keeping children separate from their families and in this respect the Church holds some responsibility in playing a role for the state to keep these children separate from their families (Chairman, Bishops' Committee for Social Welfare, Chairperson, National Aboriginal and Torres Strait Islander Catholic Council and National Director, Australian Catholic Social Welfare Commission, extract from page 1).
We Pallottines freely admit and regret our mistakes in this area. Our attitudes were in some ways typical of the prevailing mindset of the general population. We deeply regret every hurt visited on Aboriginal and Islander people who have been taken from their heritage of family, community, culture and language. We apologise for any role which any of our group, however well meaning, might have played in such activities (Society of the Catholic Apostolate (Pallottines) submission 433 page 1).
We are also mindful of the role our order played in the devastation that is now known as the removal of the Stolen Generation and we are endeavouring to come to terms ourselves with the hurt and pain that this policy of assimilation has caused those Aboriginal people that were removed from their families and the members of the families that were left behind to grieve their loss. In the spirit of Reconciliation we offer unreservedly our apologies for any hurt our role in this process has caused and offer whatever resources we have available to us to help people come to terms with the hurt that has occurred (Kimberley Sisters of St John of God submission 521 page 6).
To those who have suffered personal deprivation and hurt in Church institutions because of the effects of this policy, the Church of this Diocese unreservedly apologizes. Further, She regrets the great suffering that continues in the hearts of some people and extends to them a compassionate wish for peace and reconciliation (Roman Catholic Church of the Diocese of Broome submission 519 page 3).
The Anglican Church Social Responsibilities Commission referred to apologies extended by other parts of the Anglican Church of Australia.
The SRC joins with other parts of the Anglican Church of Australia in offering its unreserved apology for the involvement of Anglicans, both individually and corporately, in the policies and practices that allowed the separation of Aboriginal and Torres Strait Island children from their families. It may be that the church had no direct control over the policies themselves. It may be that its members and agencies, to the extent that they were involved, acted as part of already existing networks of welfare arrangements. It may be that many of those involved believed that they were acting in the best interests of the children concerned. It may also be that many of them did not understand the full implications of their actions, performing only the tasks immediately in front of them. The SRC does not wish to impute any particular motives to those involved. It simply states that no amount of explanation can detract from the now observable consequences of those misguided policies and practices. A great wrong has been done to the indigenous people of Australia. It is for participation in that wrong that this apology is offered (Anglican Church Social Responsibilities Commission submission 525 pages 3-4).
The National Assembly of the Uniting Church passed the following resolution in September 1996.
... that Standing Committee, on behalf of the Uniting Church in Australia, acknowledge to the Aboriginal community:
the trauma and on-going harm caused to individuals, families, the Aboriginal community as a whole and the entire Australian community by the practice of separating Aboriginal children from their parents and raising them in institutions, foster homes or adoptive homes;
that the church thought it was acting in a loving way by providing them with homes, but was blind to the racist assumptions that underlay the policy and practice;
the fact that these assumptions, spoken and unspoken conveyed destructive, negative messages to the children about Aboriginal culture and their Aboriginality;
that fact that although it was the intention and policy of the church to provide children who had been separated from their parents with a loving, secure environment in which they were encouraged to develop their gifts and graces, and although faithful women and men who worked in the institutions often provided such an atmosphere, there were also times when the reality contradicted the intention and goal, and where children even met violence and abuse at the hands of some of the very staff whom they should have been able to trust;
that there were many good, faithful and self-sacrificing houseparents, foster parents and adoptive parents who provided loving homes for the children in their care, and encouraged their self-esteem, their growth, their pride in Aboriginal culture and their achievement; many of the people who grew up in the institutions have continued a close relationship with former house parents until the present time (second submission 457).
Churches of Christ recognize and acknowledge the pain suffered by the children and parents who experienced separation. We recognise our complicity in a system which we understood at the time to be beneficial but now is seen to have been destructive. To the degree which we were a part of the destruction processes we seek forgiveness and offer our repentance. We also acknowledge that we sought to do what was most appropriate and for some the experience was positive and for such people we affirm the outcome (Churches of Christ Federal Aborigines Board submission 411 page 8).It must be acknowledged that, no matter how well intentioned the motives of the Church were in its involvement in separating children from their families, it's complicity has contributed to the dislocation of the people concerned, and therefore to their loss of land, language, and identity.
It is evident that the present high rate of continuing social dislocation and Aboriginal imprisonment is direct result of the separation of children from their families in which the Church was complicit (Anglican Church of Australia, Diocese of Perth submission 410 page 2).
In retrospect, however, Baptist Churches of Western Australia acknowledges that its efforts to reach out with Christian compassion, practical care and spiritual help were unfortunately combined with an unconscious complicity with the Government policy of assimilation of `part-Aboriginal' people. While rightly deploring the degrading impact of European settlement upon Aboriginal peoples, and taking no part in the removal of children, Baptist Churches of Western Australia failed to provide a clear prophetic voice to challenge the Government policies of the day and the general community philosophy of racial superiority. We failed to publicly proclaim, in respect of Aboriginal and Islander peoples, the Biblical view of the intrinsic worth of all people as individuals made in God's image (Baptist Churches of Western Australia submission 674 page 2).
The Australian Association of Social Workers also expressed its regrets.
We know and sincerely regret that social workers, and unqualified workers known as `Social Workers', were actively involved in the removal of aboriginal children from their families even up to relatively recent times. As far as we are aware, our professional association has not made any comment or apology about the involvement of social workers in the separation of families which has had such a dramatic impact on aboriginal communities ... The Association acknowledges that social workers were involved in the forced separation of Aboriginal and Torres Strait Islander children from their families in every state and territory in Australia during this century (Australian Association of Social Workers submission 721 pages 1 and 2).
Doomadgee Inc is the successor of the Aborigines Inland Mission at Doomadgee in Queensland.
... we are sensitive to the perception of some Doomadgee Aborigines that missionaries were sometimes too firm in their administration of discipline, or too assertive in their presentation of the Christian gospel. To these Aborigines we express our sincere apologies. The desire of all the missionaries was to achieve the very best outcomes for Aborigines and anything perceived by them to fall short of this is a matter of deep regret to us (Doomadgee (Inc) submission 78 page 8).
Acknowledgment and apology - Churches and others
Recommendation 6: That churches and other non-government agencies which played a role in the administration of the laws and policies under which Indigenous children were forcibly removed acknowledge that role and in consultation with the Aboriginal and Torres Strait Islander Commission make such formal apologies and participate in such commemorations as may be determined.
Comparable experience suggests that satisfaction should go beyond a single instance of acknowledgment and apology. Victims should be appropriately commemorated (Correa 1992 page 1478). The Inquiry received a number of submissions as to forms of commemoration.
Public tribute must be paid to the survivors, and those who have not survived the policies and practices of separation. Public recognition of the ongoing courage and determination of Aboriginal people to resist the genocidal policies of separation is essential. Commemoration can and should take place at different levels. Nationally, there should be a `Sorry Day' commemorating Aboriginal survival of the holocaust which is accorded the same recognition as ANZAC day. On a local level, communities may wish to establish commemorative places, or have a `Welcome Home Day' (Link-Up (NSW) submission 186).
Other proposals concerning forms of commemoration include establishing education centres, naming of streets, endowing scholarships, memorial services and monuments (see also van Boven 1992 page 15). Commentators have observed that commemoration is important not only for victims but also for the society as a whole.
Commemorations can fill the vacuum with creative responses and may help heal the rupture not only internally but also the rupture the victimization created between the survivors and their society. It is a shared context, shared mourning, shared memory. The memory is preserved; the nation has transformed it into part of its consciousness. The nation shares the horrible pain (Danieli 1992 page 210).
Recommendation 7a: That the Aboriginal and Torres Strait Islander Commission, in consultation with the Council for Aboriginal Reconciliation, arrange for a national `Sorry Day' to be celebrated each year to commemorate the history of forcible removals and its effects.
Recommendation 7b: That the Aboriginal and Torres Strait Islander Commission, in consultation with the Council for Aboriginal Reconciliation, seek proposals for further commemorating the individuals, families and communities affected by forcible removal at the local and regional levels. That proposals be implemented when a widespread consensus within the Indigenous community has been reached.
UN Special Rapporteur van Boven identified a need for guarantees to prevent any repetition of the gross violations of human rights. Appropriate measures must be implemented to ensure that Indigenous families and communities in Australia never again suffer the forcible removal of their children simply because of their race. Governments and responsible agencies are encouraged to consider sympathetically and respond to proposals submitted by Indigenous organisations, communities and individuals with a view to the prevention of repetition.
Teaching the history of the removal policies to all school students was widely supported in submissions to the Inquiry. The importance of a wider public education campaign was emphasised, as was the need for professionals working with Indigenous children and families to develop a complete understanding of the history and effects of forcible removals.
Justice requires that the wider Australia community be informed about these policies and practices, and be informed about the resolute resistance Aboriginal people have continuously maintained. We want the wider community, Aboriginal and non-Aboriginal alike, to be informed about and recognise not only the adversities we have endured as a result of separations, but the courage and strength we have had in surviving as a people and in seeking to reunite with our people despite years of detention in non-Aboriginal environments. It is equally important for it to be recognised that separation policy and practice is not something that happened a long time ago, it is not ancient history. Rather it has continued in various forms and guises up to the present and for the future of many Aboriginals (Link-Up (NSW) submission 186 page 6).
Specific proposals to the Inquiry included,
- rewriting of school textbooks and official histories to include the policies and practices of separation;
- education for those working with Aboriginal people with respect to the issues and effects of separation, including the judiciary, solicitors, social service workers, doctors, psychiatrists, health workers, mental health workers, teachers and other educators, prison workers and archivists;
- general community education (Link-Up (NSW) submission 186 page 6).
The history of removal of children be incorporated into Aboriginal studies programs and that these be compulsory for all students in all schools (Broome and Derby Working Groups submission 518 recommendation 3.2.7).
Truth and reconciliation processes established in Chile, El Salvador and Honduras to address the impacts of periods of gross and systematic human rights violations have also emphasised the importance of general education to reinforce the values of human rights in the culture of the nation (Correa 1992 page 1478). The Truth and Reconciliation Commission in South Africa has expressed a similar view.
Recommendation 8a: That State and Territory Governments ensure that primary and secondary school curricula include substantial compulsory modules on the history and continuing effects of forcible removal.
Recommendation 8b: That the Australian Institute of Aboriginal and Torres Strait Islander Studies be funded by the Commonwealth to develop these modules.
Recommendation 9a: That all professionals who work with Indigenous children, families and communities receive in-service training about the history and effects of forcible removal.
Recommendation 9b: That all under-graduates and trainees in relevant professions receive, as part of their core curriculum, education about the history and effects of forcible removal.
While Australia ratified the 1948 Genocide Convention, its provisions have not been incorporated into Australian law. The Genocide Act 1949 (Cth) merely approved ratification of the Convention and extended its provisions to external territories. Australian service personnel engaged in conflicts overseas are covered by its provisions but not those working within Australia. In 1992 the Human Rights Sub-Committee of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade recommended that the Australian Government introduce legislation to implement the Genocide Convention fully. The effect of implementation would be to create a criminal offence of genocide, including attempting to commit genocide, complicity in the crime of genocide and inciting others to commit genocide. Effective penalties would have to be provided. Implementation would establish a right to compensation for victims of genocide.
Recommendation 10: That the Commonwealth legislate to implement the Genocide Convention with full domestic effect.
The purpose of restitution is to re-establish, to the extent possible, the situation that existed prior to the perpetration of gross violations of human rights. The children who were removed have typically lost the use of their languages, been denied cultural knowledge and inclusion, been deprived of opportunities to take on cultural responsibilities and are often unable to assert their native title rights.
Many stolen children will be unable to satisfy the requirement of a continuing relationship with their traditional land on their own.
It is undeniable that the forced removal of Aboriginal people from their families and the legacy of assimilation policies will have an impact on the ability of some Aboriginal people to claim native title rights ... NSWALC would expect the courts to approach the issue of connection to land in a manner which is sensitive to the historical realities of Aboriginal people and understanding of the ability of Aboriginal communities to rebuild despite the impact of policies aimed at their destruction. NSWALC believes the Inquiry into the removal of Aboriginal children should encourage such sensitivity and understanding (NSW Aboriginal Land Council submission 643 page 3).
However, native title is communal in nature and traditional Law recognises the authority of traditional owners to define the content and scope of that title. In other words, the traditional owners or claimants are entitled to determine whether or not to include a person removed in childhood.
The content of a particular group's native title, including what it has to say about the rights of particular individuals within the group, is determined by the indigenous group concerned according to their traditional law and custom, not the common law.[Thus] it will be the relevant indigenous group which determines according to its traditional law and customs whether a particular individual who was taken away from their community and their land continues to enjoy native title rights and interests in relation to that land in common with the other members of the community (Cape York Land Council submission 576).
Traditional owners and claimant groups should, of course, remain free to define their membership to include people forcibly removed from their families, thereby including these people among those entitled to the benefits of a successful statutory or native title land claim.
Returning to country can be a critical step in the reunification and healing process for people removed as children. However, it is fraught with difficulties.
Many found the task of re-establishing themselves in their country was achievable, but others did not. Communities sometimes found it difficult to accept people who had spent so long away from country back into their social networks on a basis of equality with those who had not been removed. People who had suffered the trauma of removal often encountered the double jeopardy of suspicion, mistrust or even blame upon their return, despite the location of real responsibility in the governments of the day (Cape York Land Council submission 576).
Support is required to facilitate return. This support has two key aspects. First the `returnee' must be prepared for his or her return. This preparation would usually include some information about appropriate behaviour. Second the community needs to be prepared to receive the person returning. This preparation would usually include provision of information about the policies and effects of forcible removal. Where support is available, the return is more likely to be a success and the traditional owners are more likely to accept the `returnee' and reintegrate him or her into the community. Developing community genealogies will assist community leaders in their decision making on the return of people affected by removals.
Assistance should be given to those wishing to return to their and their families' traditional country and to assist them with negotiations with the Native Title holders of that country (Broome and Derby Working Groups submission 518 recommendation 3.2.2).
Traditional owners should be assisted to decide whether, and to what extent, they can include people who were removed as children. In particular, they need reliable information about the history of forcible removal, its effects and the involvement of particular individuals.
Assistance to return to country
Recommendation 11: That the Council of Australian Governments ensure that appropriate Indigenous organisations are adequately funded to employ family reunion workers to travel with clients to their country, to provide Indigenous community education on the history and effects of forcible removal and to develop community genealogies to establish membership of people affected by forcible removal.
Many people affected by the removal policies may be unable to return to their traditional country. In many cases the policies of removal and segregation have successfully destroyed their capacity to maintain their connection to their land. In some cases, traditional owners will be unwilling to reintegrate former community members. People who by reason of their removal are now unable to enjoy native title rights should be able to establish that loss in any claim for monetary compensation. The importance of compensating such loss was emphasised in numerous submissions to the Inquiry.
Grants of land and/or housing should be made to families of those who have lost access to traditional land and such land could be allocated in areas where these people grew up and with which they now identify (Broome and Derby Working Groups submission 518 recommendation 3.2.1).
I think compensation for me would be something like a good land acquisition where I could call my own and start the cycle of building good strong foundations for Aboriginal families. Because the whole thing started from people coming to this country and stealing the land, and then everything fell apart from then on. So I think for people who have been dispossessed of land, but more importantly dispossessed of our identities and dispossessed of where we came from ... I think to give us compensation in the form of some land acquisition would go very well into helping start stable family relationships and stable generations from here on in.
Confidential evidence 696, New South Wales.
What I'd like to have - I'd like to have me own house, me own block of land. Like, I figure they owe me that much. I've given most of my life, surely they can pay for that. Maybe if I was with me family I'd have a decent bank account instead of one with a dollar sixty-seven credit or something like that, or overdraft. I want me own block of land, something that I don't have to pay for again. Something I can call mine and no-one can take it away, because I haven't had that yet.
Confidential evidence 146, Victoria.
[T]he people who have become landless ... partly due to this kind of policy could be compensated by assistance to have a home and land of their own or for their family (Jack Goodluck, former Minster in the Uniting Church and Superintendent of Croker Island, evidence 119).
Other recommendations to the Inquiry have drawn attention to the need for broader measures of `cultural restitution'.
Cultural and language education centres, meeting centres and land acquisition are the kind of reparations and facilities that community opinion indicates may be appropriate as recompense for past suffering and dislocation (ALRM submission 484 at 22; see also Cape York Land Council submission 576). Full support be provided to Kimberley Aboriginal organisations promoting Aboriginal culture, language, identity and history (Broome and Derby Working Groups submission 518 recommendation 3.3.3).
The significance of Indigenous languages to the maintenance of family relations and the preservation and transmission of cultures was not lost on missionaries and protectors. The speaking of languages was frequently prohibited.
People were also punished for speaking language. In many places language became something that had to be hidden; we were taught to be ashamed if we spoke anything other than English (Kimberley Language Resource Centre submission 759 page 2).
[The old people] didn't like you listening in and wouldn't explain things to you, what it was about ... Then again they were frightened of white-fellas, Superintendents [-] they were very very frightened ... If old people tried to teach the younger people, they were sent to Palm Island, at the pleasure of the Superintendent in those days. It was a crime to teach us languages, that's why we were going backwards ... The old people were frightened of getting sent away ... That's why a lot of our people were frightened to teach us our language. It was fear (quoted by Aird 1996 on page 14).
The loss of language is intimately connected with the loss of identity for those forcibly removed and their descendants.
The story of language loss is the story of separation. With the removal of children from their families and displacement to missions, authorities effectively isolated these children from the nurturing and supportive structures of all aspects of their culture.It is well known that the mission children were not only discouraged from speaking their native languages, but in many cases physically punished for doing so.
`What must be remembered is that language is not simply a tool for everyday communication, but through recording of stories, songs, legends, poetry and lore, holds the key to a people's history and opens the door to cultural and spiritual understanding (Aboriginal and Torres Strait Islander Corporation of Languages submission 854 page 2).
The Kimberley Language Resource Centre submitted,
Language and identity are closely linked, and for many of us our language is a symbol of identity central to our self-esteem, cultural respect and social identification. Our languages provide more than just a way to talk to each other. They provide a way for us to interpret the reality we see around us. The words we use to name things, to describe feelings, understandings and each other, carry meanings particular to us. If we lose these words, we lose part of ourselves ...... when our children were stolen from our families one of the things that happened was that the language learning cycles were broken. Transmission from generation to generation is a crucial link in language maintenance. Taking the children away broke this link (submission 759 page 1).
The Royal Commission into Aboriginal Deaths in Custody commended the establishment of language and culture centres and recommended that governments support these Indigenous initiatives (Recommendation 56). A network of regional language centres is now established with funding administered by ATSIC under the Aboriginal and Torres Strait Islander Language Identification Program (ATSILIP). The Program was reviewed for ATSIC in 1995 by the National Language and Literacy Institute of Australia. The Review `strongly recommended' a continuation of the program to the end of 1999-2000 `with an expectation that it may need to be extended further, given the range of languages involved and the work that needs to be done' (Recommendation A.1). The Program was also strongly endorsed in 1996 by the National Board of Employment, Education and Training, with a similar recommendation for extension. Core tasks of the language centres are language recording and maintenance and teaching languages.
The existing language centre model is clearly appropriate for the task of assisting people affected by forcible removal to recover their languages. Local and regional negotiations will be required to determine whether the language centre is the appropriate body to take on other tasks envisaged by the Inquiry, notably that of recording and storing personal testimonies of forcible removal and its effects and that of archiving local history records. The generic term `language, culture and history centres' is used to indicate the range of tasks that need to be performed. Existing language centres may be expanded. Alternatively new institutions may be established.
Language, culture and history centres
Recommendation 12a: That the Commonwealth expand the funding of Indigenous language, culture and history centres to ensure national coverage at regional level.
Recommendation 12b: That where the Indigenous community so determines, the regional language, culture and history centre be funded to record and maintain local Indigenous languages and to teach those languages, especially to people whose forcible removal deprived them of opportunities to learn and maintain their language and to their descendants.
The Inquiry has found that a key objective of forcible removals was to sever the link between the child and his or her family, community and culture. For many people the practices used to advance this objective have resulted in an inability to establish their Aboriginality by reference to the frequently applied three-pronged definition. For many purposes proof of Aboriginality now requires (1) proof of descent from the Indigenous peoples of Australia, (2) self-identification as an Indigenous person and (3) acceptance by the Indigenous community as an Indigenous person.
Some people who were forcibly removed and their descendants are not acknowledged as members by their own communities of origin, while others are unable to locate their communities. The application of a definition requiring acceptance as Indigenous by the person's community must not be permitted to discriminate against the most direct victims of the forcible removal policies.
Recommendation 13: That Indigenous organisations, such as Link-Ups and Aboriginal and Islander Child Care Agencies, which assist those forcibly removed by undertaking family history research be recognised as Indigenous communities for the purposes of certifying descent from the Indigenous peoples of Australia and acceptance as Indigenous by the Indigenous community.
This recommendation extends only to a person's general acceptance as an Indigenous person. It does not propose that the organisations mentioned should be authorised to certify membership of a particular Indigenous community for any particular purpose such as Land Council membership. This is entirely a matter for the particular community itself, which may in its discretion rely on the advice of a link-up worker or other organisation.
- Civil claims for compensation
- Ex-gratia payments
- A national compensation fund
- Procedural principles
- Assessment of compensation
People go on about compensation and all this. And they don't seem to get the real reason as to why people want some sort of compensation or recognition. I need to be given a start. I just need something to make the road that I'm on a little bit easier.
Confidential evidence 441, New South Wales.
On the subject of monetary compensation, van Boven proposed the following principle.
Compensation shall be provided for any economically assessable damage resulting from violations of human rights and humanitarian law, such as:
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities, including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance.
There was considerable support among submissions to the Inquiry for the provision of monetary compensation to the victims of forcible removal.
The Commissioners should encourage governments to negotiate financial settlements with groups and individuals on the basis that either financial compensation or reparations to be made available to them as atonement for past and continuing grievances (Aboriginal Legal Rights Movement (SA) submission 484 page 52; see also Aboriginal Legal Service of WA submission 127 recommendation 11, Broome and Derby Working Groups submission 518 page 1, Stolen Generations National Workshop submission 754 page 50).
All the harms and losses suffered by people affected by forcible removals are recognised under the common law or under contemporary statutory regimes as losses for which compensation can be awarded. People who have suffered these harms and losses should not be denied a remedy just because the perpetrators were mainly governments or because the victimisation was on such a vast scale.
It is NSWALC's view that individuals who have had wrongs committed against them are entitled to full and proper compensation. Compensation to individuals should at the very least be assessed on the same basis as any other tortious claim. The obligation on governments to pay monetary compensation is not to be shirked because it may be considered politically undesirable or because the requirement to pay compensation may be onerous (NSW Aboriginal Land Council submission 643 page 1).The reparations scheme should recognise the full range of harms and losses caused by the removal policies. The Inquiry's recommendations under term of reference (b) in particular address the losses incurred by Indigenous communities. Individual victims should also be entitled to measures of restitution and rehabilitation as proposed under term of reference (b). Monetary compensation should be payable for harms and losses for which it is not possible to make restitution in kind. Any individual affected by the removal policies should be entitled to make a claim for compensation, including parents, siblings and other family members in appropriate cases. The Inquiry was urged to recognise the full range of damages suffered by the victims of the removal policies.
We recommend that compensation to be paid for the following ... :
pain and suffering of the victims and their families
loss of access to their families and their love and support
loss of access to and knowledge of their traditional lands
loss of their Native Title rights
loss of the right to grow up knowing their traditional culture and language
loss of the right to have private property
loss of inheritance rights
loss of freedom
loss of the right to determine their own lives and those of their children
suffering hardship and abuse whilst detained in institutions
suffering racism and discrimination whilst detained in these institutions
(Broome and Derby Working Groups submission 518 recommendation 3.1.1).
Supreme Courts in both South Australia and the Northern Territory have awarded substantial damages to Aboriginal accident victims for loss of cultural fulfilment. In Napaluma v Baker in 1982 $10,000 was awarded for loss of cultural fulfilment to an initiated man of 18 whose head injury meant he could take no further part in ceremonies. In Dixon v Davies in the same year $20,000 was awarded to a boy of 10 who would not be able to be initiated and would therefore lose status and be unable to participate in ceremonies.
With respect to compensation for loss of native title rights, the Cape York Land Council submitted that,
... at least two heads of damage suggest themselves: specific damages for the loss of actual legal rights, which in this case would be the right to enjoy native title as part of a group, and general damages for the pain and suffering arising from the loss of these particular legal rights (submission 576).
Where native title rights can be restored, that is where the traditional owners accept the individual as a full participant in enjoyment of the title, no damages should be available.
The heads of damage identified in Recommendation 14 are in line with those proposed by van Boven and adopted in successful human rights litigation in other jurisdictions.
Heads of damage
Recommendation 14: That monetary compensation be provided to people affected by forcible removal under the following heads.1. Racial discrimination.
2. Arbitrary deprivation of liberty.
3. Pain and suffering.
4. Abuse, including physical, sexual and emotional abuse.
5. Disruption of family life.
6. Loss of cultural rights and fulfilment.
7. Loss of native title rights.
8. Labour exploitation.
9. Economic loss.
10. Loss of opportunities.
Indigenous people are now taking civil damages actions arising from forcible removal. One was commenced in New South Wales by Ms Joy Williams, a woman taken from her mother at birth in 1942 and placed in Bomaderry Children's Home. She was moved at four to a non-Aboriginal children's home because she was `fair-skinned'. Here visits from her mother ceased because the mother was not told of her whereabouts. The child was told she was an orphan. She complains that she was ill-treated in this home and repeatedly ran away. She was brought up to believe she was `white' and to have a low opinion of Aborigines. But in adolescence she was told she had `mud in your veins' causing severe distress. She opened her veins to examine her blood for mud (Williams 1994 page 501). In adulthood she suffers severe psychiatric and other ill-health.
Ms Williams claims the Aborigines Welfare Board was her statutory guardian and breached its fiduciary duty to her by denying her her cultural heritage, by failing to protect her from harm and by failing to prepare her for healthy adult life.
The injuries she now experiences are said to flow from her wrongful removal first from her mother and then from Bomaderry to a non-Aboriginal home. Having overcome a potential problem with the statute of limitations, Ms Williams' case awaits trial on the issues.
Another action has been commenced against the Commonwealth by two groups of Northern Territory plaintiffs, one group of six and another of three. The first group of six includes the mother of a baby girl removed from her in 1946. The other plaintiffs were forcibly removed as children in the 1920s, 1930s and 1940s. Their complaint is that the Aboriginals Ordinance 1918-1953 which the Commonwealth enacted for the Northern Territory and under which they were removed was invalid because it was contrary to implied constitutional rights, notably an implied right to personal liberty. The complainants seek a declaration to that effect and damages for breach of their constitutional rights and for breach of fiduciary duty. The case was argued in May 1996 before the High Court of Australia. Judgment is awaited.
Difficulties of proof and the expiry of statutory periods of limitation may deny a remedy to many victims of forcible removal. However, the harms they suffered, detailed in Parts 2 and 3 of this report, are recognised heads of damages that can be compensated under Australian law. Relying on the civil courts for remedies, however, is likely to lead to great delay, inequity and inconsistency of outcome. The civil process is daunting and expensive, thus deterring many of those affected. It will also involved great expense for governments to defend these claims.
In our experience the separation issue is a very private and personal one for the people concerned. The stress and trauma of a court case and the resulting loss of privacy is likely to deter many Aboriginal people from bringing a legal action against the Government (Tasmanian Aboriginal Centre first submission 325 page 11).
In its submission to the Inquiry the Commonwealth Government proposed that ex-gratia payments might be made to those affected by the forcible removal policies provided that certain criteria and principles could be satisfied (submission page 27).
By definition, ex-gratia compensation is at the discretion of the Government (subject to parliamentary authorisation of appropriations) and it is neither possible nor desirable to develop binding rules (submission page 27).
The Commonwealth submitted that the application of three principles in particular to the facts revealed by the Inquiry would preclude the ex-gratia payment of compensation in this case.
Difficulties in identifying the persons eligible for compensation.
Difficulties in estimating the amount of loss in monetary terms.
- Negative consequences for the wider community.
The Inquiry considers that the Commonwealth has overstated the difficulties in identifying with reasonable certainty people who have suffered loss. The Inquiry has found that in different ways individuals, families and communities have suffered as a result of forced removals. Different forms of reparation and different procedures for determining compensation can be appropriate to reflect particular experiences of, and needs arising from, separation of families. This is consistent with the approach of the United Nations Special Rapporteur van Boven and the Canadian Royal Commission on Aboriginal Peoples in its report on the High Arctic Relocation.
The Inquiry's approach is based on a human rights framework. It recognises that in most cases the right to claim reparation in the form of monetary compensation will be limited to individuals and families. Communities should receive reparation for the harm they have suffered in the form of restitution, rehabilitation, satisfaction and guarantees against repetition. The class of persons eligible for compensation therefore can be specified with reasonable certainty.
The Commonwealth Government also submitted that gaps and deficiencies in records would render the identification of persons within the class problematic. In the Inquiry's view, it would be unjust to exclude from compensation any individual who has been a victim of forcible removal merely because of the unsatisfactory state of his or her records which have been at all times the preserve of government and delegated carers. It would also be unjust to refuse compensation to those whose records have survived and who can establish a claim. Despite gaps and deficiencies, extensive records relating to forcible removals have survived. Where an individual can establish that he or she suffered harm as a result of forcible removal, governments have an obligation to provide compensation.
The second Commonwealth difficulty concerned estimating the monetary value of loss. The Commonwealth submitted that `[t]here is no comparable area of awards of compensation and no basis for arguing a quantum of damages from first principles'. Most elements of the harm experienced by the victims of forcible removal are recognised heads of compensation in Australian civil damages law. The same principles should apply to quantification as would apply in the civil courts. It is difficult to quantify damages for loss of a limb in a motor vehicle accident or for the psychological injury incurred. Yet the difficulty does not prevent civil courts assessing tortious damages in these kinds of cases every day.
Even where Australian law does not presently recognise a right to reparations, as for gross violations of human rights, there are numerous precedents which should guide Australian developments. For example, under the Alien Torts Claims Act United States courts frequently award damages to victims of gross violations of human rights, as well as to their estates and to close family members.
The Inter-American Court of Human Rights on numerous occasions has quantified compensatory damages to be awarded to the families of victims of gross violations of human rights.
In a situation with parallels to that dealt with by this Inquiry, Swiss Romany victims of forcible child removal have been awarded a lump sum amount by way of compensation. From 1926 until 1972 the organisation `Children of the Road', with Swiss Government approval, aimed to protect the children of travelling people, particularly the Roma people (sometimes disparagingly called `Gypsies'). This `protection' involved the enforced settlement of many children and the separation of 619 from their families. Upon the dissolution of Children of the Road, its parent organisation officially apologised to the Romany community and `has set about compensating the victims, a total amount of SF 11 million having been divided among almost 1,900 victims' (Switzerland's periodic report to the Human Rights Committee under the International Covenant on Civil and Political Rights, UN Document CCPR/C/81/Add.8 page 115).
As to the Commonwealth Government's third point of particular difficulty, the Inquiry does not agree that payment of compensation would have negative consequences for the wider community. The Commonwealth argues that the forcible removal laws are only one example of laws later discredited. This understates the enormity of the devastation wrought and the significance of its continuing effects on the well-being of all Indigenous communities. A distinction should be made between a subsequent recognition that public policy was poorly judged and a public policy in breach of fundamental human rights. Systematic racial discrimination and genocide must not be trivialised and Australia's obligation under international law to make reparations must not be ignored.
Far from being socially divisive, reparations are essential to the process of reconciliation. The Chilean National Commission for Truth and Reconciliation was established to investigate gross human rights violations under the Pinochet dictatorship. A member of that Commission has noted that,
[S]ociety cannot simply block out a chapter of its history; it cannot deny the facts of its past, however differently these may be interpreted. Inevitably, the void would be filled with lies or with conflicting, confusing versions of the past. A nation's unity depends on a shared identity, which in turn depends largely on a shared memory. The truth also brings a measure of healthy social catharsis and helps to prevent the past from reoccurring (Zalaquett 1992 page 1433).
The Inquiry received many submissions addressing the means by which compensation should be determined and distributed. A number of submissions call for the establishment of a specialist mechanism to adjudicate on compensation for victims of the removal policies. These submissions refer to the unfairness of requiring victims to pursue their claims through the court system.
It is a monstrous and callous policy which relies on court processes to deal with the effect of a government policy of displacement of Aboriginal children. To avoid simplifying the remedy process for Aborigines affected by the displacement policy, exposing them instead to the adversarial civil system with its onus of proof, causation and technical rules of evidence, is to exacerbate the grief. If governments of the day caused the problem, it is the responsibility of governments of today to fix the problem. The purpose of action for displaced children and families should be to alleviate the pain ... The tribunals should be run on a fairly informal basis, without having to adhere to the rule of evidence or court procedure and protocol (Tasmanian Aboriginal Centre submission 345 pages 12 and 14).
That the Commonwealth and State governments establish a Task Force which has a majority of Aboriginal representation to develop a non-technical, expeditious and effective mechanism to distribute monetary compensation to all individuals, families and communities affected by the removal of Aboriginal children from their families under the assimilation policies (Aboriginal Legal Service of WA submission 127 recommendation 12).
In relation to the compensation issue in general, we would urge the Commission not to recommend a legalistic approach in determining the entitlement to compensation of Aboriginal persons affected by forced family separations ... The few cases initiated to date by Aboriginal plaintiffs seeking redress for their separation from their families have become bogged down in procedural matters ... Court actions are always expensive ... [There are] difficulties in quantifying `damage' for compensation issues. Clearly any attempt to quantify the pain and suffering and psychological problems brought about by government assimilation and integration policies is fraught with difficulty (Tasmanian Aboriginal Centre submission 345 pages 12-13).
There was also support for the establishment of a fund to which affected people could apply for compensation.
[C]ompensation should be paid in non-taxable lump-sums to individuals. Such payments to be assessed against a scale defining categories of persons affected by these policies and practices of removal. [C]ompensation should be paid from a regional trust fund with a Kimberley Aboriginal Board of management, funded by the State and Federal Governments, ex-missions and commercial and mining interests in the Kimberley. A levy could be paid to the trust fund by mining and business interests operating in the region. [[I]ndividuals could apply to the trust fund which would assess each application (Broome and Derby Working Groups submission 518 recommendation 3.1.2).In its submission to the Inquiry the Commonwealth Government expressed a concern that different jurisdictions would be likely to differ in their decisions on compensation, thus causing inequity as between claimants (page 31). To overcome the pitfalls of costly, time-consuming litigation and possible inconsistency of results, the Inquiry proposes, as an alternative to litigation, a statutory compensation mechanism to determine claims in accordance with procedures designed to ensure cultural appropriateness, minimum formality and expedition.
The major church organisations which played a role in forcible removal by accommodating the children should be encouraged to contribute to this fund should they so choose.
National Compensation Fund
Recommendation 15: That the Council of Australian Governments establish a joint National Compensation Fund.
Contributions to the Fund must be over and above existing funding for services and programs to Indigenous people and communities.
It is repugnant, unjust and unprincipled for reparation payments to be met through offsets to allocations for indigenous programs. Compensation should be met by payments specifically distinguished from these appropriations (ATSIC submission 684 page 34).
NSWALC believes great care should be taken in labelling certain measures as a form of compensation ... [T]o suggest that improved delivery of service can be a form of `compensation' for wrongs committed against Indigenous peoples is inappropriate. Services such as health, education and housing are basic human rights which Aboriginal people are entitled to enjoy to the same extent as other citizens ... Aboriginal people should not have to bargain for essential services by foregoing compensation, nor should the delivery of essential services be seen as recompense for past wrongs. These services should be delivered regardless of any compensation that may be recommended by the Inquiry (NSW Aboriginal Land Council submission 643 page 2).
A Board (or similar) will be needed to administer the Fund, consider claims and award monetary compensation. This Board must include Indigenous members and be chaired by an Indigenous person. It is likely that the contributing governments will desire some representation on the Board, while simultaneously sharing an interest in keeping membership to a minimum. The make-up of the Board is ultimately a matter for the Council of Australian Governments.
National Compensation Fund Board
Recommendation 16a: That the Council of Australian Governments establish a Board to administer the National Compensation Fund.
Recommendation 16b: That the Board be constituted by both Indigenous and non-Indigenous people appointed in consultation with Indigenous organisations in each State and Territory having particular responsibilities to people forcibly removed in childhood and their families. That the majority of members be Indigenous people and that the Board be chaired by an Indigenous person.
Some fundamental procedural principles are necessary to ensure that monetary compensation is distributed effectively and equitably. Guidance is provided in this respect by internationally recognised principles, including those of van Boven.
Whatever compensation mechanism is established, culturally appropriate assessment criteria and procedures which are expeditious, non-confrontational and non-threatening and which respect and accommodate cultural and linguistic needs, must be applied in the determination of compensation claims (van Boven 1992 pages 13-14, Lutz 1989 page 210).
The experience of victims of the Shoah (Holocaust) suggests that it can take some time before victims are mentally capable of filing claims or accepting compensation (van Boven 1992 page 14). Lutz has noted that,
[F]ormer victims are not likely to focus immediately on seeking compensation, especially in the years just following their persecution. Their primary concern during that period will be to rebuild their lives. Once physical health needs are addressed, it may take years for a former victim to recognize that he or she has unresolved mental health problems or is unable to work at his or her previous occupational level (1989 pages 207-8).
In this connection, Professor van Boven has commented,
The principle should prevail that claims relating to reparations for gross violations of human rights are linked to the most serious crimes to which, according to the authoritative legal opinion, statutory limitations shall not apply. Moreover, it is well-established that for many victims of gross violations of human rights, the passage of time has no attenuating effect; on the contrary, there is an increase in post-traumatic stress, requiring all necessary material, medical, psychological and social assistance and support over a long period of time (van Boven 1993 para 135).This approach is confirmed by the United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968, but not ratified by Australia).
No statutory limitations shall apply to the following crimes ... [c]rimes against humanity whether committed in time of war or time of peace ... the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed (article I(b)).
Recommendation 17: That the following procedural principles be applied in the operations of the monetary compensation mechanism.1. Widest possible publicity.
2. Free legal advice and representation for claimants.
3. No limitation period.
4. Independent decision-making which should include the participation of Indigenous decision-makers.
5. Minimum formality.
6. Not bound by the rules of evidence.
7. Cultural appropriateness (including language).
In its submission the Commonwealth Government expressed concern that `[p]ayment of a single standard rate of compensation, without regard to individual circumstances would inequitably equate very different circumstances' (page 31). The Inquiry's recommendations will avoid inequity of this kind. Our approach finds support in submissions from the Broome and Derby Working Groups (submission 518) and the Tasmanian Aboriginal Centre (submission 325).
Compensation should be paid in non-taxable lump sums to individuals (Broome and Derby Working Groups submission 518 recommendation 3.1.2).
This approach has been adopted in somewhat analogous situations in other countries. For example, in 1989 the United States Government authorised lump sum reparatory payments to Americans of Japanese ancestry who had been interned during the Second World War. Research undertaken in Chile by the National Commission for Reparation and Reconciliation into the wishes of victims of violations of human rights by the military dictatorship revealed a clear preference for equal compensation for all regardless of their particular circumstances.
In the determination of compensation, some practical difficulties might arise in assessing what qualifies as proof of removal and proof of loss. In many cases evidentiary material such as records may be difficult to obtain or have been destroyed. In these cases, the burden of proof should be on governments to rebut otherwise credible claims. Governments should be able to defend a claim if they can establish that removal was in the best interests of the child. The reversal of the onus of proof to the extent proposed in Recommendation 18 is necessary as a `special measure' under the Racial Discrimination Act 1975 (Cth). Special measures in favour of one ethnic group (or `race') are permissible where needed to secure adequate development, advancement and protection so that they can enjoy, fully and equally, their human rights and fundamental freedoms.
The proposed monetary compensation mechanism is intended as an alternative to the cumbersome and often prolonged processes of civil claims. Accordingly, its processes should be straight-forward and non-technical and should ensure consistent results for claimants. The approach adopted finds support in the submission made to the Inquiry by the Tasmanian Aboriginal Centre.
We contend that such tribunals be empowered to make monetary awards to Aboriginal people affected by such separations. Empowering legislation could prescribe a minimum amount of damages to be awarded to each person on proof that they were displaced. Claimants wanting larger awards could be required to provide further particulars of their separation and the debilitating effect of such separation (submission 325 page 14).
The Chilean Commission for Truth and Reconciliation also recommended payment of equal compensation to all without regard to their particular social, economic or cultural circumstances, although in Chile a pension scheme was recommended in preference to payment of a single lump sum (Danieli 1992 page 206).
Minimum lump sum
Recommendation 18: That an Indigenous person who was removed from his or her family during childhood by compulsion, duress or undue influence be entitled to a minimum lump sum payment from the National Compensation Fund in recognition of the fact of removal. That it be a defence to a claim for the responsible government to establish that the removal was in the best interests of the child.
Proof of particular harm
Recommendation 19: That upon proof on the balance of probabilities any person suffering particular harm and/or loss resulting from forcible removal be entitled to monetary compensation from the National Compensation Fund assessed by reference to the general civil standards.
Everyone who can establish forcible removal and everyone who can establish harm or loss resulting from the forcible removal of any person should be entitled to claim monetary compensation regardless of the date of removal. The principal basis for the Inquiry's recommendations on reparations is that forcible removal was a gross violation of human rights norms legally binding on Australia since late 1946. However, this is not the only basis for compensation. Many of the harms that can be established were the result of actions contrary to common law well before 1946.
In addition, the Inquiry's recommendations do not rest on legal entitlements alone. A crucial justification for reparation, including monetary compensation, is a moral one. It should be appreciated that the applicable human rights instruments did not invent rights but rather recognised and formally declared the existence of such rights as inherent in all human beings and as already existing. Further, invidious and unjust distinctions ought to be avoided. Thus it would be unfair to deny a remedy to a victim of forcible removal in 1945 while extending a remedy to a person forcibly removed in 1947 for example. Both were subject to the same legislation and procedures and would have endured much the same suffering.
A statutory regime of monetary compensation administered under administrative rather than judicial processes should not displace the entitlement of any person to pursue a civil claim through the courts as an alternative. Some people may wish to pursue civil claims to maximise the damages payable to them.
Recommendation 20: That the proposed statutory monetary compensation mechanism not displace claimants' common law rights to seek damages through the courts. A claimant successful in one forum should not be entitled to proceed in the other.
Warning: The following link may contain images of deceased Aboriginal and Torres Strait Islander persons.
Courtesy University of WA Berndt Museum of Anthropolgy.
Those who teach the Aborigines very soon discover that they are no whit behind any other race in mental capacity, and that they can master the lessons that white children learn quite as quickly and completely as they can.
Rod Schenk, UAM missionary in WA in 1935, quoted by Harris 1990 on page 559.
What past? There ain't none. There is more or less the past that they wanted me to have, not what I wanted, what I'd like to have.
Confidential evidence 146, Victoria: one of four siblings placed in a group home.