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Champion, Mark --- "Post - Kruger: Where to Now for the Stolen Generations" [1998] IndigLawB 45; (1998) 4(12) Indigenous Law Bulletin 9

Post-Kruger: Where to Now for the Stolen Generation

By Mark Champion

It is generally believed that until the Mabo decision of 1992,[1] the common law in Australia was based on terra nullius. The consequences of this included an assumption that the indigenous peoples of New South Wales became British subjects from 1788 onwards, that they had no recognisable legal system or sovereignty, and that their rights over land received no recognition by English law. The first reported case on this topic was decided in 1836: R v Murrell[2] is the founding case on the terra nullius doctrine for Australian law. It was not, however, the first time the courts considered these questions. Seven years earlier, in R v Ballard3, the same court took a very different approach.

The recent landscape

On 5 April 1997, the Human Rights and Equal Opportunity Commission (‘HREOC’) delivered the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Bringing Them Home (‘the Report’).[3] One of the Report’s 54 recommendations concerned the need to make ‘reparations’ including ‘monetary compensation’ to those forcibly removed from their families.[4]

On 16 December 1997, Senator Herron, the Minister for Aboriginal and Torres Strait Islander Affairs, released the Commonwealth Government’s response to the Report, indicating its intention to deliver ‘$63 million in practical assistance over the next four years’ in designated areas. Of these funds, however, $9 million is not ‘new’ money but rather is to be drawn from the existing ATSIC budget. Among its initiatives, the Commonwealth promised improved access to archives, family support and link–up programmes and to provide counsellors in an expanded range of regional centres. In response to HREOC’s recommendation for the payment of monetary compensation, the government asserts that ‘there is no practical or appropriate way to address this recommendation.’[5]

Coupled with the continuing refusal of the government to apologise to the Stolen Generations, indigenous groups and others have viewed the government’s response as manifestly inadequate.[6] Moreover, the inadequacy of the government’s response has acted as a spur to continuing litigation.

It should also be noted that even the limited measures promised by the government remain to be implemented. No money has yet been provided and will not be provided until 1 July 1998 at the earliest, more than 14 months after the publication of the Report. The continuing non–deliverance of these measures says something of the Government’s priorities in this area and creates ongoing difficulties for members of the Stolen Generations in dealing with present problems—for example, in accessing appropriate counselling services.

In Kruger, the Northern Territory plaintiffs claimed that their removal from their families under the Aboriginals Ordinance 1918 (NT) violated constitutional rights to freedom of movement and association and guarantees to due process of law. On 31 July 1997 the High Court decided that the freedoms claimed were not contained in the Australian constitution.

It did not, however, slam the door shut on the possibility of other types of legal action. The Aboriginal plaintiffs in Kruger argued that the Commonwealth did not have the constitutional power to enact the laws it did. The Court’s decision that the government did have the power to enact laws such as the Aboriginals Ordinance says nothing about the ways in which the power was used. In Kruger, Brennan CJ observed:

...a power which is to be exercised in the interests of another may be misused. Revelation of the ways in which the powers conferred by the Ordinance were exercised in many cases has profoundly distressed the nation, but the susceptibility of a power to its misuse is not an indicium of its invalidity.[7]

A consequence of the Kruger decision has been a shift in focus by lawyers representing the Stolen Generations to the misuse of those powers. At the core of post–Kruger litigation, is Brennan CJ’s observation that the ways in which the powers were exercised ‘profoundly distressed the nation’, that the national distress has an ongoing personal dimension, and that victims of the policies are entitled

to compensation.

Litigation in various states and territories of Australia

As far as I am aware, litigation is being pursued on behalf of members of the Stolen Generations in the Northern Territory and in New South Wales, to a lesser degree in Western Australia, and is imminent in South Australia. The status of each state’s litigation is as follows.

(a) Northern Territory

Court cases for nearly 2000 members of the Stolen Generations in the Northern Territory were commenced in the High Court in late 1996 and subsequently remitted to the Federal court. Two test cases are now listed for a 3 month trial scheduled to commence in Darwin on 1 March 1999 before O’Loughlin J. In contrast to the New South Wales actions discussed below, by reason of the plaintiffs being Territorians, the Commonwealth government, rather than the Northern Territory Government, is the respondent to the action.[8] The Commonwealth’s position as a respondent is significant at least because policy debate concerning the Stolen Generations is being conducted at a national level and the Territory action ensures Commonwealth accountability in the Courts. Despite the Commonwealth’s respondency, however, the duck shoving attitude of the Northern Territory government should nonetheless be recorded:

...the Territory Government is of the view that, while the policies which led to the removal of the children are to be deeply regretted, they were not the policies of this government. Consequently, the question of an appropriate response to affected Territorians is essentially one for the Commonwealth.[9]

The Commonwealth has indicated its intention to make application to have the claims struck out on the basis that they are ‘frivolous’ and/or ‘vexatious’ by reason of being statute–barred. The fact that the Commonwealth chooses, via its lawyers, to describe the claim of the Stolen Generations as ‘vexatious’ undermines its protestations of goodwill.

The Court has set aside time to hear the Commonwealth’s application in August of this year. It is not surprising that the Commonwealth has raised the limitations issue. In the two Territory test cases, the plaintiffs were removed in 1946 and 1956 respectively and detained for the periods 1946–1956 and 1956–1962. Ordinarily, an action must be commenced within 6 years of the relevant wrong. Section 44 of the Limitation Act 1981(NT) accords the court a discretion to extend time in circumstances when a plaintiff becomes aware of new ‘facts material to the plaintiff’s case’ and commences action within a 12 month window period of ascertaining those facts. The court must consider whether it is ‘just’ to grant an extension of time.[10] In exercising its discretion, the court weighs the injustice likely to be caused to the plaintiff by being denied a right to have his/her action decided on its merits against the prejudice to the respondent caused by having to answer allegations long after the facts in dispute have arisen. On this point, the Territory plaintiffs are not in uncharted waters.

(b) New South Wales

The New South Wales Court of Appeal has previously considered these issues in Williams v. Minister Aboriginal Land Rights Act 1983 (‘Williams’).[11] Ms Williams was successful in her appeal against the decision of Studdert J primarily on the technical ground that Studdert J had incorrectly proceeded on the basis that the Limitation Act 1969 (NSW) applied to the claim brought for equitable compensation for breach of fiduciary duty.[12] Nonetheless, the arguments in the Territory cases are likely to be very similar to those put in Williams. The Commonwealth will most probably assert that it is prejudiced by reason of being ‘bereft of evidence which has either disappeared or been destroyed through the passing of time or the dispersal or death of witnesses’.[13] The plaintiffs will argue, as in Williams:

The law which has often been an instrument of injustice to Aboriginal Australians can an instrument of justice in the vindication of their legal rights. It is not just and close the doors of the Court in Ms Williams face. She should have her chance to prove her case.[14]

In Williams, with the limitations issues now disposed of, a trial is pending in the Supreme Court—a date is expected either late in 1998 or early in 1999.

In February, 1998 a further action was launched in NSW—Stevens v NSW. In commencing the case the Public Interest Advocacy Centre said that the Stevens claim was one of a series to be brought on behalf of members of the Stolen Generations and described the plaintiff’s circumstances in the following way:

Eileen Stevens was taken from her family in the late 1930’s and placed in institutions, first at Bomaderry and then Burnside. Following this, she was placed in domestic service in a private residence. The claim alleges that she suffered abuse and mistreatment during this period, resulting in profound emotional harm.[15]

(c) Western Australia

Proceedings were issued in 1997 in the Western Australian Supreme Court. An Aboriginal Plaintiff, fostered in the 1970s, alleges that he suffered abuse by his foster parents. The State of Western Australia says that the claim is out of time. I understand that the terms of Western Australian limitations legislation provide particular problems for pursuing claims in that State.

(d) South Australia

South Australian lawyers hope to commence test case litigation before National Sorry Day—26 May, 1998. In the action, it will be alleged that the plaintiff suffered significant psychiatric injury during his detention and that although the respondent was aware of the child being at psychiatric risk, it failed to act. The plaintiff’s loss has been compounded by loss of access to his traditional lifestyle. A particular difficulty confronted by the Stolen Generations in South Australia has been the government’s decision to destroy 98% of its archival records keeping only a 2% ‘sample’.[16] The destruction of these records represents the erasure of the history of many members of the Stolen Generations with the obvious adverse impact upon their ability both to link up with family members and to rely on documentary records in aid of compensation claims in the courts.

Different causes of action

The causes of action in the various jurisdictions are largely common. Taking the Territory claims as illustrative, claims have been made for:

Each of these causes of action is reproduced in the Stevens claim (and will be relied upon in South Australia). Although space does not permit an analysis of how these claims overlap and intersect, the point which needs to be made is that the form of the claims reflects the fact that experiences of the Stolen Generations have significant parallels across Australia, whatever the jurisdiction.

In Williams, expert psychiatric evidence was given that Ms Williams suffered from ‘borderline personality disorder’ which ‘could be attributed to her treatment as a child and adolescent’.[17] Parallel claims of serious psychological and psychiatric injury are made in the Territory claims. Indeed, the Commonwealth government’s as yet unfulfilled promises to extend the availability of counselling services is an implicit acknowledgment of the harmful effects of policies of removal at a systemic level.

There are also differences in the approaches of the States and territories. For example, the Territory claims give greater emphasis to the deprivations of cultural and spiritual heritage suffered by the plaintiffs than is the case in NSW. The Territory plaintiffs claim compensation for loss of knowledge of songs, dances and stories of traditional life and loss of contact with traditional lands and the spiritual significance of those lands. The Territory claims also include lost entitlements and other advantages associated with being declared a traditional owner of ancestral lands pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

The way ahead

Further legal avenues remain to be explored. In New South Wales, an applicant under the Victims Compensation Act 1996 (NSW), (the equivalent of crimes compensation legislation in other states), has just received leave to proceed to apply for compensation outside the 2 year time period which usually applies.[18] There may yet prove some jurisdictional hurdles to get over—for example, an ultimate award of compensation would appear to give the Act some degree of retrospective operation in that the injury was initially sustained prior to the Act’s commencement. Nonetheless, actions of this kind warrant consideration in other jurisdictions.

Post–Kruger, it is likely that within 12 months the courts will again consider Stolen Generations claims for compensation which are bound to assume test case status.

Mark Champion is a lawyer with Holding Redlich which, together with the North Australian Aboriginal Legal Aid Service, is working on litigation for the Stolen Generations in the Northern Territory.

[1] See eg M Storey ‘The Stolen Generations: More Than Just A Compo Case’ and Cummings, B. ‘Writs and Rights in the Stolen Generations (NT) Case’ 1996 3(86) Indigenous Law Bulletin 4.

[2] [1997] HCA 27; (1997) 71 ALJR 991.

[3] Bringing Them Home, National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Report of Human Rights and Equal Opportunity Commission, 5 April 1997.

[4] Bringing Them Home, Appendix 9, pp 651–665 (recommendation 3).

[5] Bringing Them Home, Government Initiatives, Minister for Aboriginal and Torres Strait Islander Affairs, 16 December 1997.

[6] The Stolen Generation Litigation Unit, part of the North Australian Aboriginal Legal Aid Service described the response as a ‘whitewash’. Amnesty International expressed its concerns about the government’s failure to acknowledge international human rights obligations in a report released in February, 1998: Australia Silent on Human Rights: Government Responds to ‘Stolen Children’ Inquiry, Amnesty International, AI Index ASA 12/02/98. The current focus for the expression of community concerns about the government’s attitude is National Sorry Day on 26 May 1998.

[7] [1997] HCA 27; (1997) 71 ALJR 991, 99.

[8] Contrast the New South Wales actions discussed below where the State is named as the defendant.

[9] Tim Baldwin, Minister for Aboriginal Development in a letter to the North Australian Aboriginal Legal Aid Service, 8 February 1998.

[10] To be accurate it should be noted that the statute does not apply to causes of action based in equity ie a claim for breach of fiduciary duty. A plaintiff nonetheless may still be denied a right to pursue his/her claim by reason of the operation of the equitable doctrine of ‘laches’ which prevents a plaintiff invoking the equitable jurisdiction of a court when that plaintiff has delayed unreasonably in commencing a claim. See discussion in Williams below.

[11] (1994) 35 NSWLR 497.

[12] See also footnote 10 above.

[13] (1994) 35 NSWLR 497, at 513 (Kirby P).

[14] (1994) 35 NSWLR 497, at 515 (Kirby P).

[15] Public Interest Advocacy Centre, Media Release, 19 February 1998, ‘Claim For Compensation For Stolen Generation’.

[16] Author’s telephone discussion with Joanna Richardson of Aboriginal Legal Service, South Australia, 27 April 1998.

[17] (1994) 35 NSWLR 497, 502.

[18] See section 26(2).

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