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Durbach, Andrea --- "Repairing the Damage: Achieving Reparations for the Stolen Generations" [2002] AltLawJl 95; (2002) 27(6) Alternative Law Journal 262

  • Repairing the Damage: Achieving reparations for the Stolen Generations
  • Repairing the Damage: Achieving reparations for the Stolen Generations

    Andrea Durbach[*]

    The establishment of a Stolen Generations Reparation Tribunal is essential to acknowledge and begin to heal the loss and damage suffered by the Stolen Generations.

    Dr Bill Jonas asked earlier this year, ‘Whatever happened to reconciliation?’. In launching the Social Justice and Native Title Reports 2001, the HREOC Social Justice Commissioner expressed concern about:

    the nation’s progress in achieving the exercise of Indigenous rights, particularly in regard to the lack of national leadership and commitment shown by the federal government on the issue of reconciliation.

     The year 2001 marked the tenth anniversary of the final report of the Royal Commission into Aboriginal Deaths in Custody. This year will be the tenth anniversary of the Mabo decision … and the fifth anniversary of the Bringing Them Home report. Indigenous affairs seem to have become a series of anniversaries — operating as an annual reminder of the unfulfilled promises and commitments of governments.

    … we face a deplorable situation in which not only has the Federal Government failed to respond adequately or comprehensively to the Council for Aboriginal Reconciliation’s recommendations, they have quite deliberately sought to shut down debate and avoid any engagement about them by stating that they are committed to practical reconciliation.

     The impoverished notion of practical reconciliation will not in and of itself lead to meaningful reconciliation between Indigenous and non-Indigenous peoples … It is also simply not enough to suggest, as in the past year, that the rights agenda is over by splintering the focus on Indigenous affairs and shifting attention from one topical issue to another, whether it be violence or substance abuse or petrol sniffing in Indigenous communities. Such an approach … often serves only to manage and even perpetuate enduring cycles of disadvantage, at the expense of resourcing more holistic and far-reaching solutions.[1]

    The work of the Council for Aboriginal Reconciliation (CAR) has demonstrated that many of the thousands of families torn apart by forcible removal policies have never been reunited and Indigenous communities remain affected by the trauma of separation and its impact on family and cultural life. Bringing Them Home further recorded how this experience, endured in differing degrees by successive generations of Indigenous people, is undoubtedly an underlying cause of violence, alcoholism, drug abuse, suicide, crime, family breakdown and widespread health problems within Indigenous communities.[2] It is for this reason that CAR has referred to the history of the stolen generations as the ‘unfinished business of reconciliation’.

    What this notion and primary research clearly indicates is that the history and consequential harm and needs of the stolen generations, permeate Indigenous communities at every level; and as long as we fail to recognise their primacy in shaping Indigenous lives, we, as a nation, will remain complicit in perpetuating ‘enduring cycles of disadvantage’, eroding any prospect of real reconciliation.

    The Public Interest Advocacy Centre’s (PIAC) proposal for the establishment of a Stolen Generations Reparations Tribunal was, in part, a response to a federal government that has failed, and continues to fail, to lead our country towards a future that understands and is transformed by its past. Importantly, it is about taking responsibility for recognising, in the words of former Governor-General, Sir William Deane, the need for appropriate redress ‘for present disadvantage flowing from past injustice and oppression’.[3] The proposal grew out of concerns that the devastating experiences articulated by members of the stolen generations at the HREOC National Inquiry not be relegated to the pages of a shelved report, nor accommodated within a disparate welfare-orientated program or ‘practical reconciliation package’, determined with little reference to addressing legitimate rights.

    The PIAC proposal sought to develop a legislative framework that could house an innovative, compassionate and appropriate mechanism to provide reparations to the stolen generations. Importantly, we envisaged a mechanism whereby:

    • the magnitude of the moral wrong perpetuated against the victims of removal policies and the harm and enduring pain borne by the stolen generations, could be acknowledged, both symbolically and substantively;

    • the specific experience and identity of the stolen generations could be confirmed; and

    • Indigenous people could be involved in the design and delivery of reparations processes and outcomes.

    In light of the federal government’s consistent refusal to apologise to the stolen generations and provide redress for their harm, litigation has been commenced in many states. In our experience, legal proceedings were initiated often as the only or inevitable option or last resort open to the stolen generations to exact some justice from a recalcitrant government. Working with members of the stolen generations since the tabling of Bringing Them Home in 1997, and advising and representing stolen generations clients in litigation, has, however, led us to doubt the capacity or the appropriateness of the legal system, in its archaic and inadequate construction, to adequately assess and compensate for the immeasurable damage they have had to endure. Indeed, as the case of Cubillo and Gunner v Commonwealth of Australia [2000] FCA 1084; (2000) 174 ALR 97 so clearly demonstrated, the legal and evidentiary obstacles — the limitations barriers, the absence of key witnesses and records, the adversarial, often brutal nature of cross- examination, the reluctance of the courts to see behind or beyond the apparent good intentions underlying government policy at the time — make the conduct, let alone the viability, of these cases, extraordinarily complex and questionable. While Cubillo v Commonwealth had not yet been decided at the time of the development of the PIAC proposal, the views of O’Loughlin J clearly underpin its rationale:

    … the removal and detention of part Aboriginal children has created racial, social and political problems of great complexity … and it must be left to the political leaders of the day to determine what, if any, action might be taken to arrive at a social or political solution to these problems.[4]

    Regrettably, to date, O’Loughlin J’s invitation has been ignored by the political leaders of the day.

    While the PIAC proposal is largely informed by the difficulties associated with conducting litigation, it is shaped by a realisation, based on national consultations with Indigenous communities (to which I will refer), that the issue of acknowledgement and redress for the stolen generations will continue as a matter of public focus until it is resolved. As lawyer Dumisa Ntsebesa, Commissioner of the South African Truth and Reconciliation Commission, warned at an international conference on reparations hosted by PIAC, HREOC and the Aboriginal and Torres Strait Islander Commission (ATSIC) last year:

    If you fail to address this issue and try to bury it and move forward, it will, like toxic waste, resurface when least expected.[5]

    PIAC’s initial proposal

    In 1997, in consultation with representatives from the secretariat of the HREOC National Inquiry into the Removal of Aboriginal and Torres Strait Islander Children from their Families, Link-Up, ATSIC, the Aboriginal legal, medical and children’s services, the New South Wales Department of Aboriginal Affairs, the CAR and other Indigenous organisations, PIAC developed a proposal for the establishment of a Stolen Generations Reparations Tribunal. The proposal also drew on PIAC’s discussions with members of the stolen generations, material contained in the Bringing Them Home report and international experience. The proposal adopted the categories of reparations contained in the United Nations-endorsed draft van Boven principles, namely:

    • apology and acknowledgement (eg, the design and erection of commemorative monuments);

    • measures of restitution (eg, access to records; re-union services; funding for recording and teaching of indigenous languages lost as a consequence of assimilation practices; measures to re-invigorate aspects of a culture that have been destroyed);

    • rehabilitation (eg, research to identify effects of removal policies; funding of counselling services);

    • guarantees of non-repetition (eg, implementation of oral history projects; inclusion of the stolen generations history in school curricula); and

    • monetary compensation (limited to damages arising from specified harm, such as physical or sexual assault).[6]

    The proposal explored some of the key advantages of a reparations model or approach as against litigation. These included:

    • compliance by claimants with certain threshold tests or criteria in order to be eligible for a measure or measures of reparations. This would avoid the difficult and, at times, artificial exercise of trying to fit significant notions, such as loss of culture and loss of Aboriginality into narrow legal categories which go to questions of duty, liability and harm;

    • an absence of emphasis on corroborative evidence (where the threshold criteria have been clearly met), in recognition of the fact that, with the effluxion of time, many witnesses may be no longer alive or may be unavailable and documentary evidence or records may not have been created or maintained, or may have been destroyed;

    • avoidance of the prospect of revisiting the trauma surrounding acts of removal and subsequent harm in an adversarial setting;

    • an absence of overly formal processes and the inclusion of tribunal members and staff who are culturally appropriate and trained and have a demonstrated understanding of and expertise in stolen generations issues and history;

    • the determination of relief expeditiously, without incurring substantial costs for both the claimants and respondents, which seeks to ensure access to justice and the promotion of the reconciliation process;

    • a shift away from a focus on damages sounding in individual monetary compensation. Many stolen generations clients expressed a concern that it was difficult and inappropriate to ascertain a measure of damages sufficient to meet the extent of their suffering. In addition, individual monetary compensation was considered divisive and reparations offered a more collective approach to redress in recognition of the harm suffered by whole families and communities; and

    • the forms of reparations, determined by reference to the van Boven principles, would be shaped by the claimants with reference to historical and sociological factors, community need and available resources.

    In addition, PIAC argued that the tribunal be accommodated within an existing structure, that is within an administrative body such as the New South Wales Administrative Decisions Tribunal which houses various divisions or tribunals which might, in turn, inform the structure and operations of a Reparations Tribunal. In this regard, PIAC’s proposal drew extensively on models such as the New South Wales Victims Compensation Tribunal and the Veterans’ Review Board.

    The proposal did, however, suggest that the work of the Reparations Tribunal in determining claims be subject to a time-frame, for example a 10-year term, within which claims would need to be lodged.

    The proposal also highlighted growing commitment by international governments to a right to reparations for gross violations of human rights, in particular where these governments were confronting contemporary harm incurred by their citizens as a consequence of policies implemented by previous governments. In this regard, the work of the Canadian Healing Foundation (an initiative which was developed from the deliberations of the Royal Commission on Aboriginal Peoples), the South African Reparations and Rehabilitation Committee (established to implement the recommendations of the Truth and Reconciliation Committee), and the New Zealand Waitangi Tribunal is instructive and offers a stark contrast to the approach of our Federal Government which does ‘not believe that our generation should be asked to accept responsibility of earlier generations, sanctioned by the law of the times …’[7]

    Senate Inquiry into the Stolen Generations

    After almost 18 months of lobbying and advocating for a Stolen Generations Reparations Tribunal as a possible alternative to litigation, PIAC was advised in late 1999 that the Senate had referred an Inquiry into the Stolen Generations to the Senate Legal and Constitutional References Committee. The Committee’s Terms of Reference included consideration of ‘the establishment of an alternative dispute resolution tribunal to assist members of the stolen generations by resolving claims for compensation through consultation, conciliation and negotiation, rather than adversarial litigation.’

    PIAC’s submission to the Inquiry further developed the initial proposal. The Senate Inquiry Report (unsurprisingly, reflecting a Coalition minority) was tabled in parliament in November 2000 and recommended the establishment of a Reparations Tribunal and that ‘the model put forward by PIAC be used as a general template for the recommended tribunal.’

    Moving Forward Consultation Project

    While PIAC’s proposal had gained widespread support from both Indigenous and non-Indigenous organisations and received endorsement from the Senate Inquiry into the Stolen Generations, it was important to ascertain the extent of national Indigenous support for the Tribunal and test its viability amongst individuals and communities most affected by forcible removal policies. To this end, PIAC developed the Moving Forward — Achieving Reparations Consultation Project, which was designed to consult with urban, regional and remote Indigenous communities on the Tribunal’s structure, functions, processes and important aspects, such as entitlement to reparations and the content of potential reparations measures. The Project also served to elicit views on government and church responses to the Bringing Them Home Report. The Project was developed to ensure that the Tribunal proposal, and any model which emerged, was designed with input from the group it was intended to benefit. The Project was managed by a reference group, comprising representatives from ATSIC, the National Sorry Day Committee, HREOC, Northern Territory stolen generations groups and PIAC and received funding from the Myer Foundation, Rio Tinto Aboriginal Foundation and the Reichstein Foundation.

    An issues paper set out the parameters for the consultation process, providing background information about the tribunal proposal and posing questions about its core aspects, including:

    • legal basis;

    • composition and membership;

    • primary functions, which PIAC envisaged might include:

    – hearing testimony from Indigenous and non-Indigenous Australians with direct knowledge of forcible removals policies and their effects;

    – responding to applications for reparations measures made by individuals, families and communities;

    – making recommendations about current government practices and programs;

    • form of applications, that is written and/or oral;

    • entitlement to reparations; and

    • bases for awarding monetary compensation.

    Moving Forward focus groups, which took place between March and July 2001 in Sydney, Nambour, Bathurst, Perth, Broome, Darwin, Alice Springs, Adelaide, Melbourne and Hobart, heard responses to the issues paper from close to 200 Indigenous people. All stolen generations groups in Australia were consulted during the project and close to 50 written and oral submissions addressing the tribunal proposal and suggesting ideas for appropriate reparations, were also received.

    The Reparations Tribunal was strongly supported by those consulted, although the majority tended to call for a tribunal with a narrower focus than originally proposed. The proposal was accordingly modified to reflect less emphasis on legal processes and a greater degree of flexibility to allow for the diverse needs of local stolen generations communities to be accommodated.

    An Interim Report summarising responses to the issues paper and containing findings and draft recommendations was prepared for an international conference on reparations held in Sydney in August 2001.[8] The Interim Report was also forwarded to state, territory and federal governments for comment. A final report on the consultation project, Restoring Identity, which includes content from the Moving Forward Conference, was published in August 2002.[9]

    Restoring Identity underscores the evidence that governments and the churches have failed to meet many of the promises made in the wake of the tabling of the Bringing Them Home Report. The Report makes modest recommendations, capable of implementation with minimal cost. These include:

    • providing programs to ensure access to personal and family records;

    • establishing or resourcing counselling services that effectively target members of the stolen generations and meet their needs, especially in respect of family tracing and reunion;

    • consulting with members of the stolen generations to ensure that programs meet their needs;

    • recognising the distinct identity of the stolen generations;

    • establishing an appropriate forum, or tribunal, which will serve to recognise the distinct experience and identity of the stolen generations, in which Indigenous people will be able to tell of their experience of forcible removal and have it officially acknowledged; and

    • providing compensation for harm arising from forcible removal policies and crimes committed against people in state care.

    Moving Forward: Achieving Reparations for the Stolen Generations Conference

    The Moving Forward conference, convened by PIAC, ATSIC and HREOC, brought together over 250 people to hear a range of speakers from Australia, Canada, the United States of America, South Africa and New Zealand, and representatives from churches, the federal government and opposition, the reconciliation movement and stolen generations organisations. Many of the speakers addressed legacies of injustice and presented their own experiences of healing and reparations, offering ideas and measures that might inform a viable response to the specific needs of the stolen generations.

    The conference provided a forum to consider: international models for providing reparations for violations of human rights; the findings of the PIAC Moving Forward national consultation process; Australian government and church responses to the history and effects of forcible removals; and the role of reparations in advancing the process of reconciliation.

    Dr Bill Jonas wrote in his introduction to the collection of conference papers:

    What became apparent fairly early in the conference was that members of the stolen generations continue to suffer great hardships, and that efforts to date have not ameliorated their harm … The emotion and the reality of their experiences stood in stark contrast to the response by the government that immediately followed, with its detailed rejection of the concept of a reparations tribunal. There could be no greater gulf between the individual cries for help heard during the conference, and the narrowness and unwillingness of the government to consider alternative approaches to redressing this harm.
    … conference participants urged Government to see the [conference and Bringing Them Home] recommendations as a package of integrated, complementary measures. [They] considered that there are significant social and economic costs to the current approach of not adequately responding to the recommendations, and reaffirmed the ongoing and urgent need for reparations and healing.[10]

    The recommendations of the conference and the final recommendations of the consultation project both call for the establishment of a Stolen Generations Reparations Tribunal as a partnership of government, churches and Indigenous organisations and people, including members of the stolen generations, with the primary functions of:

    • hearing testimony;

    • investigating applications from Indigenous people affected by forcible removal policies, including from the descendants of those removed;

    • determining reparations (including compensation, under various categories of harm); and

    • making recommendations, both in relation to the consequences of past forcible removals and practices regarding contemporary separation of Aboriginal and Torres Strait Islander children from their families.

    The recommendations outline the principles which should inform the work of the tribunal including:

    • acknowledgement of the nature and harm caused by forcible removal policies;

    • self-determination by Indigenous people, including the stolen generations;

    • access by Indigenous people affected by removal policies to the tribunal or other redress options; and

    • prevention of the separation of Indigenous children from their families.

    In addition, the recommendations raised the importance of designing and implementing government programs aimed specificically at the needs of the stolen generations, including family re-union and counselling services, access to records, the construction of memorials and community education.

    Where to from here?

    The proposal for the establishment of a Stolen Generations Reparations Tribunal is not a radical initiative. Examples of similar models of redress have been developed and have existed in Australia for decades, such as statutory compensation tribunals or schemes for victims of crime and war veterans. Indeed, in the 2000–2001 budget, the federal government demonstrated its ongoing capacity to provide redress for the victims of history and past government policies, by committing ex gratia payments of $25,000 to each Australian Defence Force prisoner of war of the Japanese, civilian internees and detainees or their surviving spouses.

    The aspirations of the stolen generations indicated during the Moving Forward project are modest. They want a full acknowledgement of history from the federal government, acknowledgement of the distinct identity and needs of the stolen generations, and some control over programs that are intended to meet their needs. Our challenge is to see the proposal implemented by state, territory and federal governments and the churches. Whether this will occur and how is a matter of political judgment and government policy — an assessment by the government of the day as to what and whose interests are valued in the community.

    When PIAC devised the reparations conference, we were, perhaps naively, anticipating a possible change of government and, with other stakeholders, had secured opposition commitment to a national summit which would further explore the tribunal proposal with a view to its implementation. Given the continued stance of the current federal government, our strategy has obviously needed to shift. Accordingly, we are directing our efforts at state governments (some of whom have taken important steps to begin to address the needs of the stolen generations, in particular in Victoria and in Queensland) which might be willing to implement aspects of the conference and Restoring Identity recommendations and lay the groundwork for the establishment of a reparations tribunal at state and/or federal level.

    In her talk to the reparations conference, Nathalie des Rosiers, President of the Law Commission of Canada, spoke about her Commission’s report initiated by the Federal Minister of Justice to assist governments to respond to claims and law-suits arising out of child abuse in institutions, including abuse suffered by aboriginal children sent to residential schools in the late 1800s to 1980s. The report, which articulates government not as defender, but as ‘protector of the public interest’, provides a range of options for governments to respond to the variety of needs of survivors.

    Ms des Rosiers warned the conference about the ‘costs of doing nothing … the costs to the Aboriginal society, to the Canadian society of not responding, of not acknowledging the past history. It is the cost of a wounded society … Healing is complex … It demands imagination and flexibility … Delay in compensation and response will only worsen the injury.’[11]

    American writer, James Baldwin has stated that ‘not everything that is faced can be changed, but nothing can be changed until it is faced’. With the dissemination of the Bringing Them Home report and the public forums which followed around the country, where members of the stolen generations spoke about a history of which many Australians had no knowledge, the opportunity existed to confront these events and bring the nation together to deliver a moral and compassionate response. Rather, our nation’s leaders, propped up by right-wing commentators and high-handed, often ill-informed journalists, have chosen to eschew any responsibility for the contemporary consequences of past events. Indeed, the federal government has questioned the very existence of the stolen generations and Prime Minister John Howard, has ‘urged the nation to forget this unpalatable aspect of our past while his government has mounted vigorous campaigns to quash Indigenous calls for recognition and remedy’.[12]

    This shameful response to the experience of the stolen generations, is one which Anna Haebich reminds us often surfaces ‘when nations are brought face to face with traumatic events that reflect negatively on what is central to their collective identity … and that belie their vision of themselves as moral communities’.[13] If we continue to fail to acknowledge what happened, what mistakes were made, and neglect to ensure reparations for those who suffered abuse and lost their language, their land, their culture and ultimately, their identity, we run the risk, as Nathalie des Rosiers said, of ‘reproduc(ing) the climate for the mistake to be made again’[14]— not only in relation to Indigenous communities, but in relation to those we mark as ‘other’.

    [*] Andrea Durbach is the Director of the Public Interest Advocacy Centre. This is an edited version of a speech she delivered to the Amnesty International Victorian Legal Group at the Melbourne Town Hall on 16 July 2002.

    ©2002 Andrea Durbach (text)

    [1]Human Rights and Equal Opportunity Commission, ‘Whatever Happened to Reconciliation?’, Media Release, 15 May 2002.

    [2] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, HREOC, Sydney, 1997 (Bringing Them Home).

    [3] Deane, Sir William, ‘Some Signposts from Daguragu’, Inaugural Vincent Lingiari Memorial Lecture, 22 August 1996.

    [4] Cubillo and Gunner v Commonwealth of Australia [2000] FCA 1084; (2000) 174 ALR 97, 143.

    [5] Ntsebeza, Dumisa, ‘The Unfinished Business’, Paper delivered at the Moving Forward: Achieving Reparations for the Stolen Generations Conference, Sydney, 15-16 August 2001, available at <www.>.

    [6] See generally Bringing Them Home, pp.277-83 and Appendix 8.

    [7] Herron, Senator John, Minister for Aboriginal and Torres Strait Islander Affairs, quoted in Aboriginal and Torres Strait Islander Commissioner, Social Justice Annual Report 1998, HREOC, Sydney, 1999, p.63.

    [8] Public Interest Advocacy Centre, Interim Report, Sydney, 2001, available at <>.

    [9] Cornwall, Amanda, Restoring Identity: Final Report, PIAC, Sydney, 2002, available at <>.

    [10] Jonas, Dr William, ‘Introduction’, in PIAC, Moving Forward: Achieving Reparations for the Stolen Generations Conference Papers, HREOC, Sydney, 2001, p.4.

    [11] Rosiers, Nathalie des, ‘Moving Forward with Dignity — The Report of the Law Commission of Canada and its Aftermath’, in PIAC, Moving Forward: Achieving Reparations for the Stolen Generations Conference Papers, HREOC, Sydney, 2001, pp.33-4.

    [12] Haebich, Anna, ‘Between Knowing and Not Knowing: Public Knowledge of the Stolen Generations’, Paper presented to the Second National Stolen Generations Conference: Healing the Pain, March 2001, p.14.

    [13] Haebich, Anna, above, ref 12, p.14.

    [14] Rosiers, Nathalie des, above, ref 11, p.34.

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