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Inquiries and Reports - Australia
Against the background of the Bringing Them Home Report[1] and the Federal Government’s consistent refusal to apologise or compensate the Stolen Generation, the Public Interest Advocacy Centre (PIAC), in consultation with various indigenous organisations, has called on the Federal Government to establish a Stolen Generations Reparations Tribunal. This call, made initially in 1997, has recently gained greater significance as litigation has demonstrated an incapacity to address the complex question of reparations for the Stolen Generation.
PIAC developed its Reparations Tribunal proposal in a submission to the Senate Inquiry into the Stolen Generation, arguing that reparations should be made to all indigenous people who suffered as a result of forcible removal. In keeping with its aim to facilitate the provision of reparations as opposed to individual monetary compensation (as with damages claims), PIAC has proposed that the Reparations Tribunal should have the power to recommend reparations, which might include an apology or acknowledgement (such as a commemorative monument); measures of restitution (such as funding for the recording and teaching of indigenous languages lost as a consequence of removal); measures of rehabilitation (for example, the provision of counselling services); and guarantees of non-repetition (for example by including the history of the Stolen Generation in school curricula). In addition, the tribunal should have the power to award monetary compensation up to a capped amount.
Importantly, PIAC believes that the forms of reparations recommended by the Tribunal should be shaped by the parties before it with reference to need, capacity and available resources. This process underlies the principle that those affected by past forcible removal policies should be directly involved in the design and delivery of reparations.
PIAC believes that there is now a broad groundswell of support for a more constructive approach to resolving the Stolen Generation issue. In Justice O’Loughlin’s words, ‘the removal and detention of part Aboriginal children has created racial, social and political problems of great complexity ... it must be left to the political leaders of the day to arrive at a social or political solution to these problems.’[2]
PIAC’s proposal for a Stolen Generations Reparations Tribunal is contained in its submission to the Senate Legal and Constitutional Committee Inquiry into the Stolen Generation (March 2000), which is extracted below.
...
Federal governments between 1972 and 1996 introduced a number of measures to redress disadvantage and harm caused to ATSI [Aboriginal and Torres Strait Islander] people since colonisation and to provide for self-determination. These measures recognise that the policies of assimilation and integration were wrong, and instead seek to promote the principles of self-determination and social justice. The measures include:
The National Inquiry documented the practices and effects of forcible removal. Its findings and recommendations provided the basis for comprehensive government and community responses to redress the harm caused by forcible removal and to prevent its repetition. It was not the first time that a public inquiry had documented the effects of forcible removal on indigenous communities. The Royal Commission into Aboriginal Deaths in Custody, between 1988 and 1991, identified the link between forcible removal and the disproportionately high incarceration rate for ATSI people. Numerous historians, academics, lawyers and community workers have also documented the practices and their effects.
A major gap in achieving social justice for ATSI people is the failure of federal and state governments to adopt key recommendations of the National Inquiry, including providing adequate reparations to the Stolen Generations and those affected by forcible removal. Just as measures have been introduced in the past to address the mistreatment of ATSI people since colonisation, so the issues which arise from forcible removal must be met with an appropriate response.
The National Inquiry created a much greater awareness of the legal wrongs involved in the forcible removal of Aboriginal and Torres Strait Islander children from their families. Even before this, some cases had commenced in the courts seeking compensation for members of the Stolen Generations. The question of whether legal rights were breached in removing indigenous children will be played out in the courts over the next few years. The Williams case is expected to be heard on appeal in NSW in July 2000, and the Cubillo and Gunner cases in the Northern Territory are likely to be decided by the end of this year. Appeals and further cases appear certain. There are already over a further 700 claims lodged in the Northern Territory. Lack of government commitment to adequate and appropriate reparations for the Stolen Generations will continue to fuel the impetus to litigate.
The litigation may well force governments, and possibly private parties involved in implementing forcible removals, to recognise breaches of the law and to provide compensation for the harm suffered as a result. As the Mabo case illustrated, where governments refuse to recognise legal rights the common law, through the courts, may ensure that justice is done.
This submission presents reasons why it is in the best interests of governments and the Stolen Generations alike, to avoid litigation, and seek alternative solutions to the issues raised by the history and effects of forcible removal. It would be unfortunate if federal and state governments chose to wait until the outcome of Stolen Generations test cases before committing to an appropriate package of reparations. Whilst Stolen Generations claimants labour under extraordinary disadvantage in attempting to assert their legal rights, it is certain that breaches of the law did occur, and distinctly possible that eventually, a number of cases will succeed. Ultimately, governments will be forced to address the issue of liability for forcible removal. Better that it be in an equitable, efficient and constructive manner, than one that is inequitable, inefficient and adversarial.
The Inquiry made a number of findings as a result of the evidence presented to it. It found that:
The National Inquiry recommended that reparations be made to respond to and redress the gross violations of human rights, in accordance with the van Boven principles.[8] In 1989, the Sub-Commission on Prevention of Discrimination and Protection of Minorities entrusted Theo van Boven with the task of undertaking a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, taking into account relevant existing international human rights norms and relevant decisions and views of international human rights organs.[9] Van Boven found that under international law, the violation of any human right gives rise to a right of reparation for the victim, and that particular attention must be paid to gross violations of human rights, which include genocide, systematic discrimination and the forcible transfer of populations. Thus every state has a duty to make reparation in the case of a breach of such rights, including, where necessary, the duty to adopt special measures to permit expeditious and fully effective reparations.[10]
Professor van Boven found that the right to reparations consisted of the right to one or more of the following:
The effects of past laws, policies and practices which resulted in the separation of indigenous children from their families are detailed in Part 3 of Bringing Them Home.
The effects on removed children arose from their separation from primary carers, institutionalisation, abuse, denigration and separation from indigenous community. The evidence to the National Inquiry was of extensive damaging effects, ranging from psychological harm to loss of indigenous identity, culture, heritage, community and native title rights.[13]
Bringing Them Home also identifies the effects of removal on the families left behind and on the entire indigenous community, stating that ‘the evidence clearly establishes that families and whole communities suffered grievously upon the forcible removal of their children’.[14]
Lastly, Bringing Them Home identified the inter-generational effects of forcible removal, including severely compromised parenting, behavioural problems, violence, unresolved grief and trauma, depression and mental illness.[15]
The harm occasioned by the Stolen Generations experience is ongoing and contemporary. As stated in the Sixth Report of the Social Justice Commissioner:
The Stolen Children are still with us, except now they are adults who were deprived of their childhoods, their parents, their extended families and their culture. This is not ancient history.[16]
The consequences of removal and their continuing effects on the wellbeing of indigenous communities raise a moral obligation on governments to make meaningful and adequate reparations. Governments have, however, remained unwilling to accept adequate moral responsibility for the harm. This has led to intense disappointment, sadness and anger on the part of many indigenous people, and particularly members of the Stolen Generations:
We found the reaction of Indigenous people to some government responses following the release of Bringing Them Home was, predominantly, one of intense disappointment mingled with great sadness and anger. ... People frequently expressed the view that the Australian Government had simply dismissed, and attempted to discredit, the Report. ... Many saw the lack of what they considered to be an appropriate federal government response as indicating a determination not to do anything that may seem to show any understanding or compassion for Indigenous Australians.[17]
Providing reparations to the Stolen Generations is a fundamental issue pivotal to progress on reconciliation. As the Governor General, Sir William Deane, stated in 1996:
Theoretically, there could be national reconciliation without any redress at all of the dispossession and other wrongs sustained by the Aborigines. As a practical matter, however, it is apparent that recognition of the need for appropriate redress for present disadvantage flowing from past injustice and oppression is a pre-requisite of reconciliation.[18]
The Commonwealth Government put a motion to the Parliament in August 1999, which expressed ‘sincere regret’ for the practices of past generations. It acknowledged that:
the mistreatment of many indigenous Australians over a significant period represents the most blemished chapter in our international history.
... The Government is committed to continuing the reconciliation process as an integral part of its commitment to a fairer Australian society. We recognise the importance of this process to Australia’s future.[19]
If we are to achieve a just and stable basis for the reconciliation of indigenous and non-indigenous Australians, the history and effects of forcible removal must be adequately addressed. Commonwealth and state governments’ reluctance to provide reparations, including compensation to the Stolen Generations, conveys a lack of appreciation of what is required to bring about true reconciliation.
The right to reparations for gross violations of human rights has been recognised in overseas jurisdictions. Romany victims of forcible child removal in Switzerland have been awarded a total of 11 million Swiss francs to be divided among almost 1900 victims by way of compensation.[20] Germany has also provided reparations to victims of the Nazi and former German Democratic Republic regime.[21] Victims of gross violations of human rights in Honduras, Kuwait and many other jurisdictions have also received reparations, including monetary compensation.[22]
This section canvasses the experiences of three jurisdictions, New Zealand, South Africa and Canada, in responding to histories of conflict, dispossession and human rights abuses by recognising rights to reparations for gross violations of human rights. These examples reflect a growing international recognition of the essential role of reparations in the process of reconciliation, and provide models for consideration in the Australian context.
The Waitangi Tribunal in New Zealand was established in 1975 in recognition of the large scale dispossession brought about by colonisation, and its drastic consequences for the Maori nation. The function of the Tribunal is to make recommendations on claims about legislation, policies and practices of the Crown as measured against the principles of the Treaty of Waitangi 1840 (‘the Treaty’).[23] Maoris may make a claim where they are, or are likely to be, prejudicially affected by any past or present actions or omissions of the Crown which are inconsistent with the principles of the Treaty.[24] The Tribunal also has the power to examine and report on any proposed legislation specifically referred to it for consistency with the principles of the Treaty.[25]
Claims cover concerns relating to ownership of land, language, sewerage schemes, state policies in town planning, environmental management, resource use, public works, education and fisheries control. Recommendations may include compensation, the restructuring of government departments and the auditing of proposed legislation.[26]
The Tribunal adopts an inquisitorial approach, is bicultural and multi-disciplinary. It has adapted its procedures to accommodate Maori witnesses, often hearing people on their traditional land, in the Maori language and in accordance with Maori custom.[27] The rules of evidence are relaxed, for example, any relevant and cogent evidence is admissible, including oral and hearsay evidence, and group evidence may be accepted.[28] By 1998, around 700 claims had been lodged since the establishment of the Tribunal, the majority being historical. By grouping them for contemporaneous inquiry according to geographical districts, they are likely to be disposed of in approximately 30 inquiries.[29]
The Waitangi Tribunal thus has a ‘semi-legal approach’ which prevents the development of the Maori-Pakeha relationship being left entirely in the hands of the judiciary while giving the indigenous rights more protection than mere political appeal.[30]
It has a broad jurisdiction in terms of both the subject matter of claims and its power to consider claims going back to 1840. Despite its lack of binding powers, and the fact that many of its recommendations conflict with the interests of government, the Tribunal’s recommendations are usually implemented, ‘if not fully, at least to some extent.’[31]
In 1991, the Royal Commission on Aboriginal Peoples was established in Canada to investigate the:
evolution of the relationship between aboriginal peoples, the Canadian government and Canadian society as a whole [and] to propose specific solutions, rooted in domestic and international experience, to the problems which have plagued those relationships and which confront aboriginal peoples today.[32]
The Report of the Royal Commission was tabled in Parliament in 1996. It recorded the history of Canada’s treatment of indigenous peoples (Indian, Inuit, Metis), and made 440 recommendations, focusing on:
The Royal Commission’s Report looked in particular at four policies that have devastated indigenous people and communities in Canada. One of those four policies was the residential schooling policy, under which indigenous peoples were subject to a child welfare regime with many similarities to that in place in Australia. From the passage of the Indian Act 1876 until the 1960s, Canadian governments implemented a policy of assimilation and integration through child welfare policies. The means of implementation was church operated residential schools. The method was, as in Australia, separation of indigenous children from their families and communities on a massive scale and the attempt to remove every trace of their ‘indigenousness’.[34] The schools failed to provide adequate levels of education, children were brought up in conditions of chronic neglect, and were victims of overcrowding and disease. Sexual abuse was pervasive, punishments severe, and aboriginal language and culture actively suppressed.[35] About 105,000 indigenous children attended some 80 residential schools across the country before the last ones were closed in the 1980s.[36]
In relation to residential schooling, the Royal Commission recommended that a full investigation take place in the form of a public inquiry to document the origins, purposes and effects of the policy, and to recommend remedial action including apologies, compensation on a collective basis and funding for the treatment of affected people and their families. It also recommended the establishment of a national repository of videos and records relating to residential schools.[37]
The Canadian Government’s response to the Royal Commission includes a range of programs and strategies with the purpose of addressing indigenous disadvantage and forwarding the aim of reconciliation. These include:
In response to the issue of residential schooling, the government has established the Aboriginal Healing Foundation, which grants funds to community based healing initiatives for use in developing and delivering programs and services for the victims of residential schooling.[39] The government has committed $350 million for the Foundation to distribute. Programs and services will address issues such as cycles of physical and sexual abuse, family violence, drug and alcohol abuse and parenting skills.[40] A public apology has, however, been made by the federal government.[41]
Between 5000 and 8000 former residential school students have filed law suits against the federal government, as well as against churches that ran residential schools. Whilst the government initially fought these in the courts, as the numbers of law suits and the costs of litigation increased, and after a number of test cases succeeded, the government began entering into settlement negotiations. In 1997-98, the government settled 220 claims out of court, paying more than $20 million to former victims of residential schools run solely by the federal government where employees had been convicted of sexual abuse. In 1998-99, about $8 million was paid out to 70 alleged abuse victims. Settlements have ranged from $20,000 to $200,000.[42]
The Canadian Government is currently piloting alternative dispute resolution schemes to resolve further claims out of court. These schemes are exploring the possibility of negotiating group compensation deals that involve victims who attended the same schools or live in the same communities.[43]
The Truth and Reconciliation Commission (the Commission) was established in 1995 to assist South Africa ‘transcend the divisions and strife of the past’ and rebuild a future based on respect for human rights.[44]
The objectives of the Commission were to create a record of human rights violations committed between 1960 and 1994; facilitate the granting of amnesty to people who made full disclosure of all relevant facts; restore the human and civil dignity of victims by granting them an opportunity to relate their accounts and by recommending appropriate reparation measures; and make recommendations to prevent the future violation of human rights.[45] It tabled its Final Report in the South African Parliament in October 1998.
The Commission’s Committee on Human Rights Violations investigated and held hearings into human rights violations and, where it found that gross violations were substantiated, referred victims to the Committee on Reparations and Rehabilitation.[46] Gross violations were defined as:
the violation of human rights through killing, abduction, torture or severe ill-treatment of any person emanating from the conflicts of the past and carried out or planned by any person acting with a political motive.[47]
The Committee on Reparations and Rehabilitation received applications for reparations from victims referred by the Committee on Human Rights Violations.[48] In the Commission’s Final Report it made recommendations in relation to an appropriate policy to provide reparations to the victims of gross violations of human rights, their families and communities. It recommended a reparation policy consisting of:
These recommendations are now awaiting consideration and implementation by government.
In light of PIAC’s experience conducting Stolen Generations litigation and our consultations with indigenous groups, PIAC considers that litigation has significant limitations for people who are seeking redress for damage suffered as a result of forcible removal.
Litigation raises a number of hurdles for members of the Stolen Generations claiming compensation. One of the initial hurdles is overcoming the limitation period which applies to claims of negligence and breach of fiduciary duty. To overcome the three year limitation period which applies to negligence, plaintiffs must rebut the presumption that the defendant’s ability to defend the claim has been prejudiced by the delay in its commencement. Similar arguments must be put to avoid fiduciary claims being time barred. Given that the Stolen Generations were children at the time of their removal and subsequent care, that until recent years there was no significant acknowledgment that forcible removal ever occurred, together with the lack of records and the general disadvantage and lack of access to justice experienced by many ATSI people, the delay in commencing litigation is entirely understandable. Those who manage to succeed in having the limitation period extended will be selected on criteria unrelated to the underlying justice of the situation, such as the availability of their own and the defendant’s witnesses and whether the defendant maintained and kept detailed records.
Once Stolen Generations claimants have overcome limitations, there remain major difficulties with establishing duty of care, and breach of duty of care. These issues are dealt with further in 6.2 Rationale for strict liability test.
Major evidentiary hurdles arise for the Stolen Generations because of the passage of time and the lack of records kept by government about Aboriginal and Torres Strait Islander people. Evidentiary requirements make it difficult for people whose only records in relation to their childhood are often the records maintained by government. They need evidence to prove that they were wrongly removed because of particular (unrecorded) breaches of state duties, or suffered harm because of particular (unrecorded) incidents. Even where government records exist they will not reveal the level of abuse, deprivation and racism found by the National Inquiry. It cannot be expected that the perpetrator’s records will detail such matters.
Claimants must overcome the false picture painted by inadequate records, but often have little corroborative evidence to do so. The events in question occurred up to 50 years or more ago, so that witnesses may be difficult to locate, no longer alive or fail to remember relevant facts. The experience of removal, institutionalisation and isolation meant that many children, understandably, never made complaints about abuse, particularly sexual abuse, and hence no records exist to substantiate their story. The nature of sexual abuse itself meant that many victims did not talk about it to anyone until later in life, if at all.
Litigation also involves enormous costs. The Gunner and Cubillo cases, funded by ATSIC and defended by the Australian Government Solicitor, for example, have cost over $10 million to date.[51] These amounts will continue to increase with appeals and the commencement of further cases, at a cost to the taxpayer and no benefit to members of the Stolen Generations.
The evidential and legal issues involved make Stolen Generations litigation very complicated, and protracted. With appeal processes available, it is likely that the final outcome of the Williams, Cubillo and Gunner cases will not be known for several years. This will not only frustrate litigants, and members of the Stolen Generations, but will leave governments with an open ended potential liability, that is, a risk which is both difficult to quantify or budget for. In the interim, the limitations and evidentiary problems associated with the passage of time will continue to mount.
Clients who embark on the process of litigation will inevitably be subjected to lengthy cross examination and required to undergo psychological testing in order to prove harm. They will thus be required to revisit their experiences of suffering in an environment that is clinical and unsympathetic. The gruelling cross examination of Lorna Cubillo and Peter Gunner reveals that:
any plaintiff must accept that no aspect of their life, no family secret and no youthful indiscretion will be safe from savage public scrutiny.[52]
Litigation is also limited in the outcomes it can provide. It only allows for monetary compensation, rather than the broader concept of reparations envisaged by van Boven and the National Inquiry. Further, it is only likely to provide compensation to a limited class of people.
Access to compensation through individual claims based on the common law will have arbitrary and inequitable results for individuals. Those who succeed will be those who can overcome hurdles such as locating evidence of wrongdoing and the harm that resulted, and limitation periods. Those who cannot meet these requirements will receive nothing, even though they suffered the same or perhaps greater harm as a result of systematic government practice. Litigation therefore is an inequitable and arbitrary mechanism for redressing the harm suffered by all members of the Stolen Generations, their families and communities.
Given the disadvantages of litigation outlined above, PIAC submits that the establishment of a Reparations Tribunal should be seriously considered as an alternative to litigation. In our view, a statutory reparations scheme offers significant benefits for governments and affected peoples alike. It would:
Bringing Them Home recommended that compensation be paid to people affected by forcible removal through a National Compensation Fund.[53] The compensation was to be administered by a National Compensation Fund Board, with contributions from both federal and state governments. The Compensation Fund was recommended as part of a comprehensive package of recommendations that saw other reparations measures, such as acknowledgment and apology, rehabilitation and guarantees against repetition, being delivered directly by governments. In particular it envisaged federal leadership on implementation of the recommendations through the Council of Australian Governments.[54]
While federal and state governments have provided some funding and other initiatives in response to the recommendations in Bringing Them Home, implementation of the recommendations for reparations has been patchy, at best. PIAC anticipates that other submissions to the Committee will deal with this issue in detail.
In light of these developments PIAC believes the role of the proposed National Compensation Fund Board should be expanded. It should not only make awards of monetary compensation, but also allocate funding for other reparations measures, and have the power to recommend that third parties (eg churches, welfare agencies) take action to implement reparations, where appropriate.
The proposed Reparations Tribunal would have the advantage of providing indigenous people affected by forcible removal with a forum in which their grievances can be heard, and would achieve public recognition and acknowledgment for their harm. It would provide outcomes that reflect the wishes of those affected by forcible removal through sufficient flexibility, within overall budgetary constraints, to allow affected people a role in shaping reparations for themselves. Participation is essential for reparations to be appropriate and effective. As the Sixth Social Justice Report states:
The Indigenous perception of the inadequacy of government responses to recommendations on these matters is met, not merely with disappointment and a sense of exclusion from government processes, it confirms an expectation that this would be so. There is a strain of Indigenous response which reveals the cumulative effect of paternalistic policies and the lack of participation in government processes: of constantly being the subject of other people’s decisions about what is best for you, what you deserve, what you are entitled to.[55]
To reflect the expanded role and hearing based approach of the proposed model, PIAC proposes that it be called the Stolen Generations Reparations Tribunal rather than the National Compensation Fund Board.
The Tribunal could also provide an important role in monitoring implementation of the Bringing Them Home report through a requirement to provide annual reports to the Federal Parliament. It could also have the power to access relevant government records and to actively facilitate progress on implementation.
As recommended by Bringing Them Home, it is envisaged that State and Federal governments would be jointly responsible for funding the Reparations Tribunal. The advantage of a national fund administered by the Reparations Tribunal is that it would establish a nationally co-ordinated scheme with proportionate contributions from all levels of government. This would overcome the buck passing that has characterised government responses to Bringing Them Home at state and federal level. In the words of the Social Justice Commissioner, ‘both appear to be waiting for the other to take a decisive action and set a standard.’[56]
PIAC submits that the Federal Government should take primary responsibility for establishing and financing the Fund. The States and Territories should realistically make financial contributions that are proportionate to the prevalence of forcible removal in their state.
Church organisations that were involved in forcible removals should also be looked to as contributors of the fund. This would reflect the role played by some churches in implementing policies of forcible removal.
Reparations to people affected by forcible removal should not be funded in whole or in part by budgetary offsets to programs for indigenous purposes.
The proposed Reparations Tribunal should address reparations for all those affected by forcible removal. Bringing Them Home recommends that reparation be made to all who suffered as a result of forcible removal policies, including:
In addressing discriminatory treatment based on racial criteria, one is confronted with the problem of appearing racist if race based criteria are used in targeting the remedy. However, the discriminatory nature of the conduct being addressed justifies reparations targeted at those singled out for discriminatory treatment.[58] The purpose of the Reparations Tribunal should thus be limited to providing reparations to indigenous people affected by forcible removal.
For the purposes of establishing a Reparations Tribunal or similar mechanism, a working definition of ‘indigenous’ will therefore need to be developed.
The Australian courts have said that the definition of ‘Aboriginal person’ and ‘Torres Strait Islander’ in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) are to be interpreted in accordance with the following principles:
In practice however, ATSIC rarely requires proof of descent. People who provide a Certificate of Aboriginality or Torres Strait Islander identity, signed and sealed by an incorporated indigenous organisation, are accepted to be ATSI. In other words, ATSIC’s practice is to emphasise community recognition rather than race. This would effectively discriminate against members of the Stolen Generations who have not been able to link up with their indigenous families and communities. It is therefore impractical.
The court approach appears to be well designed to meet these problems. However, a generous application is required, given that forcible removal was, of its very nature, designed to undermine the self and community recognition of its victims as indigenous.
The Inquiry examined the laws, practices and policies that resulted in separation of ATSI children from their families by compulsion, duress or undue influence (term of reference (a)).
Compulsion is defined as meaning force or coercion. It includes officially authorised use of force and coercion and illegally exercised force or coercion, the removal of children by court order or pursuant to legislative powers.[60]
Duress can occur without the use of force. In the context of the Stolen Generations, duress took place through the use of threats, moral pressure or the infliction of hardship. Identifying duress involves understanding the power relationships which existed between government officials and indigenous families at the relevant time. Many families who ‘gave up’ their child(ren) did so because there was no alternative.[61]
Undue influence means an influence by which a person is induced not to act of his own free will. Children who were ‘surrendered’ following the use of improper pressure on their family, were removed by undue influence.[62]
‘Forcible removal’ for the purposes of term of reference (a) was therefore defined to include all indigenous children removed from their families, except removals which were truly voluntary, or where the child was orphaned and there was no indigenous carer to step in.[63]
The National Inquiry’s terms of reference also included an examination of contemporary removals of indigenous children from their families and communities under the laws and policies on the placement and care of ATSI children (term of reference (d)). The Inquiry found that ATSI children continue to be removed from their families under child welfare, juvenile justice, adoption and family laws.[64] Its principal finding on this issue was that self-determination for indigenous peoples provides the key to reversing the over-representation of indigenous children in the child welfare and juvenile justice systems of the States and Territories, and eliminating unjustified removals.[65]
PIAC believes that reparations should be available to all indigenous people affected by forcible removal policies and practices, both past and present. The National Inquiry did not specify any time limitation on which removals should be the subject of reparations. ‘Forcible removals’ should not be limited to those that took place under Aboriginal specific legislation or prior to an arbitrary cut-off date. Indigenous people affected by contemporary removals must be recognised as within the proposed Tribunal’s jurisdiction so that it can give recognition to ongoing discrimination, contribute to change, and guarantee against repetition.
Bringing Them Home concludes that between one in three and one in ten indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970.[66]
It is difficult to quantify the total number of forcible removals for a number of reasons:
Australia-wide, however, Peter Read estimates that around 50,000 were removed, the vast majority after 1900. In NSW, for example, he estimates that the total number removed between 1921 and 1985 is close to 10,000.[68] He estimates that there are approximately 100,000 people ‘who do not identify as Aborigines but who are entitled to do so because their parent or grandparent had been removed’.[69]
The Australian Bureau of Statistics conducted a survey in 1994, involving interviews with 15,700 ATSI people. It found that 5.7 per cent of those interviewed reported having been taken away from their natural family by a mission, the government or ‘welfare’.[70] The results for different age groups were:[71]
|
Age
|
Percentage Removed
|
|
0-14
|
1.6 per cent
|
|
15-24
|
4.6 per cent
|
|
25-44
|
10.1 per cent
|
|
45 and over
|
10.7 per cent
|
Applying this ratio to 1991 Population Census data, out of the total ATSI population of 303,000 in 1991, approximately 17,000 had been removed from their families up to 1994.[72] This is likely to be an underestimation of the total numbers removed, as it does not capture those people who do not identify as ATSI or do not know that they are ATSI and were removed. Read’s estimate presumably includes these groups. However, the lower estimate is relevant in terms of the numbers that might consider applying to the tribunal.
A legal analysis of the issue of liability in relation to the Stolen Generations raises two distinct questions; potential liability in relation to the act of removal itself and potential liability in relation to the treatment of members of the Stolen Generations after they had been removed from their families and were in the care, custody and control of the State.
In relation to liability for the process of removal itself, the High Court has determined in the Kruger[73] case that if carried out in compliance with the requirements of the laws of the time a removal cannot now be impugned by reference to other rights including human rights. To the extent that there was not compliance with the requirements of the laws at the time, such as failure to obtain a Magistrate’s approval where this was required, then those removals might still be attacked as involving trespass to the person and/or assault.
In relation to claims concerning treatment once in the care of the State a broad range of conduct is involved. This includes physical and sexual assaults, excessive use of corporal and other punishments, failure to provide adequate education, failure to provide adequate health care and assistance, failure to provide appropriate counselling and labour exploitation. A plaintiff in the courts would need to establish a right to bring the action despite the lapse of time since the event, the existence of a duty of care, a breach of that duty of care and damage causally connected to that breach.
The duty may be a common law duty, an equitable duty, or a statutory duty but each revolves around the State/ward of the State relationship. It is presently not clear whether, and if so in what circumstances, this relationship raises a duty of care. That is the issue on appeal in the Williams litigation. The content of the duty is no less problematic because the standard of care expected would be measured by the standards of the period. Arguably any differences in the standards then considered acceptable in relation to indigenous persons relative to white persons, should be ignored for this purpose.
Even once it was established that there had been a breach of the duty of care the damage suffered by the plaintiff would have to be proved to be causally linked to that particular breach of duty. Given the period involved and the widespread problems faced by indigenous Australians regardless of whether or not they were removed from their family, this would be a complex task. It would be difficult to separate out damage caused by particular conduct whilst a person was in the care of the State from the broad range of impacts that the disadvantage and racism faced by Aboriginal people has had.
Examination of the legal issues traditionally associated with assessing liability would be an arid exercise unrelated to the underlying justice of the situation, given the compelling evidence of the existence of the removal policies, the conduct carried out in pursuit of them and the damage that they caused. Now that there is acceptance that removal policies and practices were misconceived, and of the terrible impacts they have had, questions of the circumstances necessary to establish a duty of care and the standards of care thought to be adequate at the time are not relevant and the separation out of strict causal connections is nearly impossible.
Governments have legislated to overcome the difficulties of establishing standards of care and causation in a number of areas. Two well known examples are statutory compensation schemes for victims of crime and for war veterans.
Most Australian states and territories have legislative arrangements for compensation for victims of crime. An example is the Victims Compensation Act 1996 (NSW), which provides compensation for people who receive injuries as a result of violent crimes. Victims include those who are primary victims, those who suffer harm from witnessing or becoming aware of the violent act and for immediate members of the family of primary victims. The types of injury that are compensable include physical injury, and psychological or psychiatric disorder. The State pays compensation to people who can demonstrate that a violent crime occurred and that, as a result, they suffered harm. The victims do not have to establish a duty of care or its breach by the State. Claims usually involves a written application from the victim setting what happened, a police report, and medical certificates or reports attesting to the physical injury or psychiatric disorder.
Claims for compensation for injury or illness caused by war service are also provided as part of a statutory scheme.[74] Claimants must show that they were in war service and that they suffered injury while in war service. Again, there is no issue of establishing a duty of care. These schemes reflect a public policy decision by government to provide a for people who suffer loss as a result of violent crime, and a commitment to take care of war veterans.[75]
Governments have also legislated to overcome the difficulties of establishing standard of care and causation by providing strict liability for harm in public health and safety laws. For example, the product liability provisions of the Trade Practices Act 1974 (Cth) provides that if a company manufactures or supplies manufactured goods that have a defect and because of that defect an individual suffers injuries the company is liable to compensate people for loss suffered as a result of the injuries.[76] The usual requirement to prove negligence or other wrongdoing is removed. People who suffer loss because of the injuries suffered by others are also entitled to compensation.[77]
PIAC submits that the government should establish a statutory based scheme for compensation to the Stolen Generations with strict liability for the harm suffered as a result of forcible removal. The public policy justification for providing strict liability is that it gives statutory recognition of the harm that flowed from forcible removal, and provides redress for that harm. It recognises that much of the harm resulted form breaches of common law standards of care and breaches of international law. It also recognises that forcible removal was morally wrong.
PIAC submits that reparations be provided to people affected by forcible removal under the following heads:
Consistent with the National Inquiry’s recommendations, PIAC proposes that reparations for indigenous people removed should consist of:
People forcibly removed may make claims as individuals for reparations for particular harm, or they may bring grouped claims. For example, a group of former Bomaderry[79] or Kinchela[80] residents may bring a group claim for racial discrimination, physical and emotional abuse and pain and suffering.
PIAC submits that reparations be paid to people affected by forcible removal for particular harm. This would mean that families, communities and descendants affected by forcible removal would be entitled to reparations, including, where appropriate, monetary compensation, if they can demonstrate that they are a family member, community member or descendant of an ATSI person or persons that were forcibly removed, and that they suffered harm under the particular heads identified above.
The types of harm suffered by families and communities would typically include racial discrimination, pain and suffering, disruption to family life, and loss of cultural fulfilment.
People affected by forcible removal may make claims as individuals, for reparations for particular harm, or they may bring grouped claims. For example, a group of members of a community which has lost children to forcible removal, and suffered harm as a result, could bring a group claim for loss of cultural rights and fulfilment and pain and suffering.
The definitions of ‘indigenous’ for the purpose of the tests for entitlement should be that described in Section 5 above.
The definition of ‘forcible removal’ for the purposes of defining the basis for strict liability should be the definition used by the National Inquiry, that is, removals using compulsion, duress, or undue influence, as discussed in Section 5 above.
Appropriate definitions of ‘family’, ‘community’ and ‘descendant’ will also need to be developed. These should be broadly defined, so as not to exclude any persons who suffered harm.
As the National Inquiry pointed out, most indigenous communities have broad kinship networks and responsibilities for care of children. For indigenous children, ‘families were constituted by their entire community’.[81] There must therefore be recognition that there will often be no distinction between families and communities for the purposes of the Tribunal.
People making claims would need to provide sufficient evidence that they were affected by forcible removal, and of the particular harm suffered. The onus of proof would be on the applicant to establish these facts on the balance of probabilities, rather than on the government to refute them.
Bringing Them Home recommended that where there is a claim for lump sum compensation for someone who was forcibly removed the government would have a defence if it can demonstrate that the removal was in the best interests of the child.[82] PIAC submits that where this defence is used it should be applied in accordance with contemporary values rather than the racist and paternalistic values of the past.
The forms of reparations ordered or recommended by the Reparations Tribunal should include monetary compensation, acknowledgment and apology, guarantees against repetition, measures of restitution and measures of rehabilitation.
Provided that government and non-government parties approach the Tribunal committed to addressing the issue of reparations, and to understanding the needs and concerns of the Stolen Generations, the tribunal process could facilitate constructive negotiated outcomes. Reparations ordered and recommended by the Tribunal should be as responsive as possible to complainants’ needs. The role of the Reparations Tribunal in determining claims would promote dialogue and co-ordination between claimants, service providers and other relevant parties so that this could be achieved. Such flexibility would recognise that those affected by forcible removal have different needs and expectations, and would facilitate appropriate responses.
This bringing together of claimants and relevant parties from whom reparation measures are sought in a co-operative approach may also generate models which are of relevance in the broader planning and provision of services to ATSI people by governments.
As discussed above, it is submitted that a Reparations Tribunal should provide lump sum monetary compensation to individuals who were forcibly removed.
How much should individuals removed receive? Under the common law, damages would depend on the facts of each individual case, and on the effects of removal and/or subsequent care on any particular claimant. A statutory compensation scheme, with strict liability tests for entitlement and relaxed rules of evidence, provides significant advantages to people forcibly removed such that an amount less than common law damages may be appropriate. The Reparations Tribunal would facilitate an equitable apportionment of the realistically limited funds available to compensate the Stolen Generations, and overcome the need for costly, protracted and traumatic litigation. In the VCT, claimants may receive up to $50,000 for the harm occasioned by one act of violence.[83] In the civil courts, successful claimants would receive substantially more, considering the harm identified by the National Inquiry. In South Africa, the Reparations and Rehabilitation Committee recommended that victims receive a sum equivalent to the median annual household income per annum for six years. A lump sum amount should be determined by reference to:
Indigenous people forcibly removed and those affected by forcible removal may also, as proposed, be eligible to claim monetary compensation upon proof of ‘particular types of harm’. PIAC submits that in order to achieve consistency, certainty and an equitable apportionment of limited funds, a statutory schedule of damages should be adopted to guide the Tribunal in assessing such damages. In determining relevant amounts, similar considerations as above would apply.
Groups of claimants may elect to seek orders for the pooling of monetary compensation, for example a group of families may prefer their moneys to be transferred to a particular project, initiative or organisation.
The National Inquiry recognised the need to acknowledge the truth about the past as of critical importance to people who have been victims of gross violations of human rights. Bringing Them Home recommended that parliaments and police forces apologise, and that parliaments agree to make appropriate reparations as outlined in the report.[84] Apologies have been forthcoming from all State parliaments and the ACT. There has been no apology from the Commonwealth or the Northern Territory. Others that have apologised include local governments, some state government departments, churches, the Australian Council of Social Services, community groups, some universities and reportedly more than a million individuals, particularly through the ANTaR Sorry Books.[85]
Individuals or groups may approach the Reparations Tribunal seeking an apology from a specific individual, local entity, state or federal government or non-government party involved in their forcible removal. The Tribunal would, after considering such a claim, have the power to recommend that an apology be made to people affected by forcible removal.
Other forms of acknowledgment may also be sought. For example, a group of members of the Stolen Generations from a particular institution may seek a local commemorative monument or the establishment of a local commemorative day in recognition of their harm. The Tribunal could recommend local governments, schools and/or churches co-ordinate to facilitate such reparation measures.
Guarantees against repetition are an essential part of the reparation process. Recommendations of the National Inquiry included those relating to the need for compulsory educational modules in school education, legislating the Genocide Convention to make genocide a crime in domestic law and recognition of indigenous human rights, in particular, the right to self-determination.[86]
Claimants to the Tribunal may seek reparations that go towards guarantees against repetition. By their nature, such claims may be broadly framed, and have effect beyond any particular claimant group. For example, a family or community of individuals affected by forcible removal could seek as reparations the inclusion of education about the Stolen Generations in the school curriculum. The Tribunal could facilitate dialogue between claimants and the Department of Education about such measures of reparations, and facilitate an outcome acceptable to both parties.
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.[87] These could include support for people returning to their land and the communities receiving them; increased funding to language, cultural and history centres; funding for the recording and teaching of local indigenous languages; funding to assist in re-establishing indigenous identity; family tracing and reunion services; and the preservation of, and indigenous access to, records. The Commonwealth has allocated $2 million to the Australian Archives for indexing and preservation of records, and $11.5 million for family reunion services. ATSIC allocated $9 million over three years towards language maintenance and revival activities. There are some state Link Up reports that the most common request by families affected by forcible government initiatives which address these issues as well.[88]
Claims to the Reparations Tribunal are likely to seek many of the above remedies. Removal is for assistance in constructing family trees. Link Up receives numerous requests for such assistance per day. There are many members of the Stolen Generations who still do not have access to all of the records held about them by government, and many who have not returned to country, through lack of funds or support. The Reparations Tribunal could establish a relationship with relevant service providers to facilitate the smooth implementation of such recommendations.
A packaged approach to restitution measures could also be adopted by the Tribunal, to include re-union services provided by Link Up, counselling services and assistance with access to records. For example a community, or a number of communities, may apply to the Tribunal for the establishment of local language, cultural and history centres. The Tribunal could recommend, after consulting with relevant government and non-government parties, the establishment of a number of such centres, to be funded, for example, by a combination of government, church and/or local government resources.
Bringing Them Home made significant recommendations in relation to measures of rehabilitation, including mental health care and assistance in parenting and family programs. These include developing research to identify the effects of forcible removal, improving health professional training on the history and effects of forcible removal and indigenous mental health worker training to conduct parenting and family well-being programs. The National Inquiry also recommended that churches and non-government agencies who provide counselling services to those affected by removal ensure that the services are culturally appropriate and that they assist indigenous organisations who are providing such services.[89] The Commonwealth has allocated approximately $39 million for 50 counsellors, research, clinical support and parenting programs.[90]
The Reparations Tribunal could facilitate the granting of such reparations measures as those described above, both on an individual and group level. It could, for example, recommend that individuals be guaranteed counselling or other mental health assistance, through a voucher or referral system. Packages of reparations could be designed around families’ needs. Community claims may focus on broader measures, for example research into parenting models. The Tribunal could recommend that government and/or non-government parties provide resources for such research.
Consistent with the Bringing Them Home recommendation that the Board of the National Compensation Fund be constituted by indigenous and non-indigenous people, PIAC submits that the membership of the Reparations Tribunal be similarly constituted with members appointed in consultation with indigenous organisations in each state and territory that have particular responsibilities for people forcibly removed.[91] It also recommended that the majority of members be indigenous people and that the chairperson be an indigenous person.[92] PIAC submits that members should also be required to have relevant expertise to hear and assess the merits of claims and to conduct proceedings in accordance with principles of natural justice.
The Tribunal should adopt procedures that involve a minimum of formality and inquisitorial rather than adversarial hearings. These procedures have been adopted successfully by many tribunals at state and federal level. The benefits of these procedural principles for disadvantaged claimants are discussed in Bringing Them Home, and supported in the legal literature.[93] It is also important that the procedures adopted are culturally appropriate.
Considering the Reparations Tribunal’s proposed purpose, PIAC submits that it should adopt relaxed rules of evidence. This would avoid the unfairness of requiring claimants to prove events on the basis of the availability and accuracy of written records and first hand oral evidence. Some of the procedures used in the VCT could be adopted. The overseas models referred to in Section 3 could also be looked to.
Many people forcibly removed and affected by forcible removal will be involved in giving evidence to the Reparations Tribunal. Some will prefer to give oral evidence, others not. The rules of evidence must be sufficiently flexible to accommodate the needs of claimants to it. Claimants and witnesses should therefore be able to give evidence by sworn statements or by affidavits. The admission of group evidence, as in the Waitangi Tribunal, should also be considered in appropriate circumstances.
Claimants should also be able to give evidence in their own language. The Reparations Tribunal should engage interpreters to accommodate non-English speaking claimants.
Applicants should be given the option to have their application heard by the Tribunal in public hearings or to have their application assessed on the papers. The Tribunal hearings will be an important opportunity for many people to have their grievances heard, a significant part of acknowledgment and healing in its own right. Others will not want to be exposed to a public procedure and will prefer to have the application dealt with on the basis of papers presented with their application and any defences filed by the government.
It will be necessary for the Tribunal to be able to hear some evidence in camera as some issues are sensitive and at times witnesses will need to be offered this option, as was the experience of the National Inquiry.
During the course of the National Inquiry some witnesses gave evidence that disclosed acts involving crimes, including assaults. The Tribunal will need to ensure that it has in place a procedure for dealing with these circumstances so that witnesses are protected, and claims of criminal acts are referred to the Director of Public Prosecutions for investigation, where appropriate.
Resources will be needed to provide legal advice and legal representation to claimants. Counselling and support should be provided to claimants to the Tribunal. Following the National Inquiry, many people who gave evidence stated that services to deal with the traumatic consequences of giving evidence were inadequate. The provision of adequate and appropriate counselling services is essential to the proper functioning of the Tribunal, particularly as there may be claimants whose evidence to the Tribunal will be their first opportunity of presenting their testimony.
The Reparations Tribunal will need procedures for the presentation of group claims. Procedures will need to streamline such applications to the Tribunal. Allowing group claims will encourage the development of flexible reparations awards that meet the needs of groups of people. An appropriate model would need to be developed. Existing models include the model prescribed in Part IVA of the Federal Court of Australia Act 1976 (Cth) and that used by HREOC. There may have to be some adjustment because of the potential for group remedies.
It is well established law that decisions of both government and private tribunals are reviewable by the courts on questions of law, including whether the requirements of procedural fairness were met. PIAC submits that this principle be reinforced in the tribunal’s statutory scheme by providing for appeals from the Reparations Tribunal on questions of law to the Federal Court.
Sufficient time needs to be provided for the Tribunal to complete the task of receiving and processing claims. However, PIAC submits that the Tribunal should have a limited life to ensure that proceedings are not unnecessarily protracted, that finality can be achieved and that the working of the Tribunal and its determinations can inform the process of reconciliation. PIAC recommends that claims may not be lodged 10 years after the date of commencement of the Tribunal. Claims lodged within this period but not yet processed should be allowed to be finalised.
PIAC supports the maintenance of common law rights to seek damages through the courts so that claimants may choose whether to pursue their claim in the Tribunal or a court. This is consistent with the Bringing Them Home recommendation that the proposed monetary compensation mechanism not displace claimants common law rights. However, a claimant successful in one forum should not be entitled to proceed in the other.[94]
[1] The Human Rights and Equal Opportunity Commission, Bringing Them Home: The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, 1997.
[2] Cubillo v Commonwealth [2000] FCA 1084 (11 August 2000), at p 21.
[3] Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 FC 92/014.
[4] Supra n 1, at p 266.
[5] Ibid, at p 270-275.
[6] Ibid, at p 266-270.
[7] Ibid, at p 425.
[8] Ibid, at p 282.
[9] van Boven, T, 1993: Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final report submitted by Mr Theo van Boven, Special Rapporteur, UN Doc: E/CN4/Sub.2/1993/8, at p 4.
[10] Ibid
[11] Supra n 1, at p 649-650.
[12] Ibid, at p 282.
[13] Ibid, at p 171-232.
[14] Ibid, at p 212.
[15] Ibid, at p 222-232.
[16] Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Aboriginal and Torres Strait Islander Social Justice Report 1998, at p 62.
[17] Ibid, at p 41.
[18] Supra n 1, at p 4.
[19] Minister for Aboriginal and Torres Strait Islander Affairs website at <www.atsia.gov.au/fr_init.html>.
[20] Supra n 1, at p 307.
[21] Conference on Jewish Material Claims Against Germany, Guide to Compensation and Restitution for Holocaust Survivors, 1999.
[22] Orentlichter, D, ‘Addressing Gross Human Rights Abuses: Punishment and Victim Compensation’, in Henkin, L ,and Hargrave, L, (eds) Human Rights: An Agenda for the Next Century, American Society of International Law: Washington, 1994, at p 454-455.
[23] The Treaty of Waitangi was a treaty of cession in which the British Crown undertook to protect native interests in return for sovereignty. Its terms remain a subject of contention, particularly as a result of the differences between the English and Maori translations: Theron, L, Healing the Past: A Comparative Analysis of the Waitangi Tribunal and the South African Land Claims System (1998) 28 VUWLR 310, at p312-315.
[24] Section 6(1) Treaty of Waitangi Act 1975 (New Zealand).
[25] Supra n 25, at p 315.
[26] Durie, T, and Orr, G, The Role of the Waitangi Tribunal and the Development of a Bicultural Jurisprudence, (1990) 14 New Zealand Universities Law Review 62, at p 62.
[27] Ibid, at p 68.
[28] Clause 6, Second Schedule, Treaty of Waitangi Act 1975 (New Zealand).
[29] Supra n 25, at p 316.
[30] Ibid, at p 319.
[31] Ibid, at p 314.
[32] Report of the Royal Commission on Aboriginal Peoples, Volume 1, <www.indigenous.bc.ca/rcap.htm>.
[33] Smith, D, (ed) Proceedings of the Conference on the Report of the Royal Commission on Aboriginal Peoples, January 31-February 2, 1997, at p 4.
[34] Supra n 34, at Vol 1, Ch 10.
[35] Ibid.
[36] Ottawa Citizen Online, <www.turtleisland.org/news/news-residential.htm>.
[37] Supra n 34, at Vol 1, Ch 10.
[38] Minister for Public Works and Government Services Canada, Gathering Strength: Canada’s Aboriginal Action Plan, 1997: <www.inac.gc.ca/ strength/pdf/index.html>.
[39] Aboriginal Healing Foundation website, <www.ahf.ca>.
[40] Ibid.
[41] The Honourable Jane Stewart, Minister of Indian Affairs and Northern Development, on the occasion of the unveiling of Gathering Strength: Canada’s Aboriginal Action Plan, January 7, 1998: <www.inac.gc.ca/info/ speeches/jan98/actionhtml>.
[42] Supra n 38.
[43] Ibid.
[44] Truth and Reconciliation Commission, Final Report 1998: <www.truth.org.za/>, Vol 1 Ch 1.
[45] Section 3, Promotion of National Unity and Reconciliation Act 1995 (South Africa).
[46] Lyster, R, Why a Truth and Reconciliation Commission? Some comments on the South African Model and possible lessons for Australia, paper from Truth, Justice and Reconciliation Seminar, October 1999, Sydney University Law School, at p 2-4.
[47] Supra n 46, at Vol 5, Ch 1.
[48] Ibid.
[49] The total cost of these grants, as recommended, is approximately A$750 million over six years.
[50] Supra n 46, at Vol 5, Ch 5.
[51] As reported by the Northern Territory Stolen Generation Litigation Unit; Question on Notice, December Senate Estimates Hearings.
[52] Bolkus, N, Hansard, Wednesday 24 November 1999, Senate, at p 10496.
[53] Supra n 1, at pp 308-309.
[54] Supra n 1, at p 23.
[55] Supra n 18, at p 18.
[56] Ibid, at p42.
[57] Supra n 1, at p283.
[58] This complies with the special measures provisions of the Racial Discrimination Act 1975 (Cth) and the International Covenant on the Elimination of all forms of Racial Discrimination
[59] Gibbs v Capewell [1995] FCA 1048; (1995) 128 ALR 577; Edwina Shaw v Charles Wolf [1998] 389 FCA (20 April 1998).
[60] Supra n 1, at p 5.
[61] Ibid, at p 69.
[62] Ibid, at p 9.
[63] Ibid, at p 5.
[64] Ibid, at pp 451-459.
[65] Ibid, at p 17 and 423-581.
[66] Ibid, at p 37.
[67] Read, P, A Rape of the Soul So Profound, Allen and Unwin, 1999, at pp 25-26.
[68] Ibid.
[69] Ibid, at p 26.
[70] Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Survey 1994: Detailed Findings, ABS Catalogue No. 4190.0, at p 7.
[71] Ibid.
[72] Ibid.
[73] Kruger & Ors v Commonwealth of Australia [1997] HCA 27; (1997) 71 ALJR 991.
[74] Veterans Entitlement Act 1986 (Cth).
[75] These schemes are discussed in Graycar, Compensation for the Stolen Generation: Political judgments and community values, (1998) Vol 1 No 1 UNSWLJ 253.
[76] Section 75AD, Trade Practices Act 1974 (Cth).
[77] Ibid, at section 75AE.
[78] Bringing Them Home recommended that monetary compensation be provided to people affected by forcible removal under these heads: Supra n 1, at p 304.
[79] Bomaderry Aboriginal Children’s Home was established in 1908 and received many of the Stolen Generations, particularly young children removed.
[80] The Aboriginal Boys’ Training Home, Kinchela, also received many children forcibly removed.
[81] Supra n 1, at p 11.
[82] Ibid, at p 312.
[83] Schedule 1 Victims Compensation Act 1996 (NSW).
[84] Supra n 1, at p 245.
[85] Supra n 18, at pp 112-114.
[86] Supra n 1, at pp 294-295.
[87] Ibid, at p 296.
[88] Supra n 18, at pp 115-130.
[89] Supra n 1, at pp 315-418.
[90] Supra n 18, at p 127.
[91] Supra n 1, at p 310.
[92] Ibid, at p 310.
[93] Supra n 1 at pp 310-311; see generally Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, Australian Government Publishing Service, 1995.
[94] Supra n 1, at p 313.
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