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Buti, Antonio --- "Bringing Them Home the ALSWA Way" [2004] MurdochUeJlLaw 34; (2004) 11(4) Murdoch University Electronic Journal of Law

Bringing Them Home the ALSWA Way

Paper presented at the 23rd Annual Australia and New Zealand Law and History Society Conference, Murdoch University, Western Australia (2-4th July, 2004)

Author: Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons), DPhil (Oxon)
Senior Lecturer, Murdoch University School of Law
Issue: Volume 11, Number 4 (December 2004)

Contents

    Introduction

  1. On 26 May 1997,[1] after eighteen months of public and private hearings and submissions from Commonwealth, State and Territorial governments, churches, Aboriginal organisations, Aborigines who were separated from family and other interested parties, the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (the ‘National Inquiry’), Bringing them home (the ‘National Inquiry Report’)[2] was tabled in the Commonwealth Parliament of Australia. The report, which has generated significant public, media and academic debate and criticism,[3] documents widespread and systematic racial discrimination and gross ill-treatment of Australian Aborigines[4] resulting from the perception of lawmakers and administrators that there was a need to resolve ‘the Aboriginal problem.’ One literary critic has described Bringing them home as the best book released in the winter of 1997.[5]

  2. Neither the release of Bringing them home, nor the commencement in 1995 of the National Inquiry,[6] should be considered as the starting point for the push for reparations[7] for Aboriginal people removed from their families under government policies. Aboriginal individuals and organisations have been active since at least the late 1980's in advocating for a national inquiry into removal policies and practices. [8]

  3. The aim of this paper is to exam the activities and strategies of the Aboriginal Legal Service of Western Australia (ALSWA) in relation to its calls for ‘action’ in relation to the Aboriginal childhood removal issues.[9] It then goes onto discuss the National Inquiry Report and the response from Governments to the Report’s recommendations. However, I commence with a brief summation of some other activism that preceded the National Inquiry.

    Demands for Reparations

  4. The Secretariat of the National Aboriginal and Islander Child Care (‘SNAICC’) resolved at its national conference in 1990 to demand a national inquiry into the removal issue.[10] On 4 August 1991, National Aboriginal and Islander Children’s Day, SNAICC in conjunction with high profile Aboriginal entertainers, Archie Roach and Ruby Hunter, publicly launched a demand for an inquiry. They issued a media release stating:
    This issue is a ‘blank spot’ in the history of Australia. The damage and trauma these policies caused are felt everyday by Aboriginal people. They internalise their grief, guilt and confusion, inflicting further pain on themselves and others around them. It is about time the Australian Government openly accepted responsibility for their actions and compensate those affected.

    Mr Butler [the Chairman of SNAICC] called for a Human Rights Commission Enquiry into the removal of Aboriginal children.

    We want an enquiry to determine how many of our children were taken away and how this occurred. We want the enquiry to hear from Aboriginal people about how they have been affected and what must be done to compensate.

    We also want to consider whether these policies fall within the definition of genocide in Article II (e) of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.[11]

  5. Other Aboriginal organisations such as Link-Up (NSW) were also vocal in their demands for a national inquiry.[12] Yet others took the litigation pathway; most notably a female plaintiff from Sydney named Joy Williams[13] and a number of Aboriginal people from the Northern Territory.[14] As to the latter, the drive for litigation was given support and enforced by a 1994 conference in Darwin, called The Going Home Conference, which brought together Aboriginal people, mainly from the Northern Territory, who had been removed from their families. Ron Merkel QC (at the time a leading barrister at the Melbourne Bar)[15] addressed the conference. His paper, titled A Paper on Legal Options for Aborigines “Taken” from their Families and their People[16] and The Going Home Conference lead to the establishment of a “Stolen Generations Litigation Unit” within the Northern Australian Aboriginal Legal Service.[17]

  6. In addition to instigating litigation, the Stolen Generations Unit of the Northern Territory Aboriginal Legal Service was also a strong advocate for monitoring the National Inquiry and its outcomes. In September 1996, the Stolen Generations Litigation Unit hosted a national workshop in Alice Springs which was attended by over 250 delegates from across the nation. A number of issues were discussed and recommendations made, including the establishment of a “Stolen Generations National Secretariat” serving several functions, one being the monitoring of recommendations emanating from the National Inquiry.[18] This National Secretariat was duly established in the later part of 1997, having a major role in the National Sorry Day held on 26 May 1998.[19]

  7. The late Rob Riley, a leading Western Australian and National advocate for Aboriginal Land Rights and Justice for Aborigines was at the helm (Chief Executive Officer) of the Aboriginal Legal Service of Western Australia (ALSWA) as it advocated for a Royal Commission into the Aboriginal childhood removal issue. Riley viewed the issue of Aboriginal childhood removals being as important as land rights. Riley made contact with a number of Aboriginal organisations and politicians around the country as he lobbied for a Royal Commission. However, there was little political will in the early 1990s for a Royal Commission although there was some support for the setting up of an inquiry into the past government practices of removal Aboriginal children from their families.

    "Telling Our Story" – The Lead Up

  8. In September 1994, the ALSWA via a ‘poster’ campaign in a number of Aboriginal media organisations, invited Aboriginal people who had been removed from their families as children or who were parents of removed children to contact the ALSWA. From September 1994 to March 1994, the ALSWA interviewed over 600 people. Most of these interviews were contacted in the Perth office of the ALSWA, although a number were conducted in the various country offices of the ALSWA. Some of the interviews were lengthy but in some cases people said only a few words and filled in a questionnaire that sought to elicit information from the clients. As the project leader of the ALSWA ‘stolen generations’ programme, the writer can attest to the fact that in many cases the interviews were a deeply traumatic experience for some of the interviewees and interviewers.

  9. The ALSWA continued to lobby for a Royal Commission during the same period as it was conducting its own inquiry. This lobbying was rewarded not with a Royal Commission but with the National Inquiry. The announcement of the National Inquiry, to be conducted by HREOC, was made in May 1995. At the time the ALSWA was drafting its first substantial submission on the removal issue. This document is entitled Telling Our Story. [20]

  10. The official launched of Telling Our Story occurred in July 1995 at Manguri in Queens Park (a suburb about 10 kms south of Perth). Manguri is the former Sister Kate’s Home, where over the years thousands of Aboriginal children had spent the majority or some of their childhood.[21] The launch proved to be a very emotional event that some found difficult to cope with. One of those people was Rob Riley. The launch was attended by over two hundred people. For the first time in public, Rob Riley mentioned that he had been hit by a Sister Kate’s employee for asking questions about his parents. Just over 24 hours after telling part of his story at the launch of Telling Our Story, Rob Riley was involved in a high speed police car chase. The consequence of the car chase was the conviction of Rob Riley for dangerous driving. Along with the guilty charge, he lost his driver’s license and for a period of time was suspended from the ALSWA. This was the beginning of a rapid downward spiral in the life of Rob Riley, which tragically culminated in his suicide in early 1996.

    "Telling Our Story" – The Report

  11. Telling Our Story, as the title implies, was an attempt to document some of the individual and family histories as told to ALSWA solicitors and court officers. This was done via individual and family case studies and selective quotes. The case studies were a combination of personal evidence and documentation from native welfare and child welfare files.[22] The case studies and individual quotes provide a picture of hurt and suffering, enduring effects, confusion and ‘official’ actions to deny children contact with their families and Aboriginal culture:
    I feel very bitter, hurt and confused over what has happened to me especially being removed from my family. I have tried to commit suicide on a number of occasions and I blame the Welfare Department and my foster mother, who never told me about my mother’s death until much later. I was never allowed to mix with Aborigines and I have no Aboriginal cultural identity.[23]

    We were inculcated into a Christian religion and my Aboriginal culture or history was non-existent. That was completely irrelevant to our lifestyles at that stage. It was really an understatement to say that we were not taught anything about our Aboriginal culture or history. The fact is that our Aboriginality was never mentioned, it was never a consideration.

    … One of the greatest travesties I think that Sister Kate’s has ever committed on children that have been there, including myself, is that they never prepared us for the fact that we had to one day leave the home and go into the outside world and deal with the fact that we were Aboriginal and how we would communicate with our own families and with the white community as Aboriginals. That is something that was very neglected by Sister Kate’s and they basically just ignored that fact that we were Aboriginal. We were being brought up as whites and to live in a white society.[24]

  12. Some of the historical documentation reproduced in Telling Our Story was used to support the argument that the systematic removal of Aboriginal children from their families in Western Australia was for the purpose of assimilation and ‘… an attempt to “breed out” the Aboriginal race.’[25] Telling Our Story reproduces two comments of A.N. Neville, the Chief Protector of Aborigines in Western Australia from 1915 to 1940, which supports the ‘breeding out’ school of thought:
    Mr Neville holds the view that within one hundred years the pure black will be extinct. But the half-caste problem was increasing every year. Therefore their idea was to keep the pure blacks segregated and absorb the half-castes into the white population. Sixty years ago, he said, there were over 60,000 full-blooded natives in Western Australia. Today there are only 20,000. In time there would be none. Perhaps it would take one hundred years, perhaps longer, but the race was dying. The pure-blooded Aboriginal was not a quick breeder. On the other hand the half-caste was. In Western Australia there were half-caste families of twenty and upwards. That showed the magnitude of the problem.

    In order to secure this complete segregation of the children of pure blacks, and preventing them ever getting a taste of camp life, the children were left with their mothers until they were but two years old. After that they were taken from their mother and reared in accordance with white ideas.[26]

    … the native population is increasing. What is to be the limit? Are we going to have a population of 1,000,000 blacks in the Commonwealth, or are we going to merge them into our white community and eventually forget that there were any Aborigines in Australia. There are not many now, whereas not so many generations ago there were a great many. … The Aborigines have inter-mixed with our own people. I know of some 80 white men who are married to native women, with whom they are living happy, contented lives, so I see no objection to the ultimate absorption into our own race of the whole of the existing Australia native race.[27]

  13. Telling Our Story focuses on the telling of individual and group narratives. This narrative framework is supported by a legal discussion of the consequences of the many experiences of those removed. Chapter Six of Telling Our Story discusses in a preliminary manner, possible legal options available for those that were removed from their parents and communities. A number of recommendations are also made and the Western Australian and Commonwealth governments were placed on notice as to the remedies being sought by Aboriginal people who were removed as children.

    "After the Removal"

  14. After launching Telling Our Story, the ALSWA commenced working on a substantive submission to the National Inquiry. The submission was titled After the Removal.[28] By the time After the Removal had been written, the ALSWA had interviewed over 700 people who either as children had been removed from their parents or were the parents of the removed children. The approach taken in After the Removal and the source of that approach is outlined in the introductory chapter:
    … This submission records the experience, effects and losses identified by those who provided information to the ALSWA. The clients also set out a number of recommendations to remedy the losses that they have suffered and continue to suffer. Some clients made strong recommendations on the current unacceptable involvement of Aboriginal adults in the criminal justice system, and Aboriginal children with child welfare and criminal justice systems, have shaped the form and content of this submission to the National Inquiry.

    The wishes and recommendations made by the ALSWA’s clients are very wide ranging and cover a significant variety of laws, practices and policies that impinge upon the lives of Aboriginal people. This is not surprising given the far-reaching effects of the assimilation policies and removal practices of the past, and the present separation of Aboriginal children from their families by the child welfare and criminal justice system. Further, nearly all Aboriginal people in Western Australia have been affected, directly or indirectly, by the past policies and practices of assimilation which led to the removal of children from their families. This necessitates that the National Inquiry take a broad view of the terms of reference.[29]

  15. The ‘wide ranging and detailed approach’ to the terms of reference, that the ALSWA advocated the National Inquiry to adopt, was followed through with by the ALSWA in After the Removal. After the Removal explored a number of wide ranging remedies: government and churches apologies; assisted family reunions; secure housing; relevant and appropriate health services and aged care; improved education services for Aboriginal people and education of non-Aborigines of Aboriginal culture and the history and effects of the removal polices and practices; up-graded and integrated local government delivery of services to Aboriginal communities; drastic changes to the criminal justice system in general and juvenile justice in particular; greater Aboriginal autonomy in Aboriginal child welfare; self-government and monetary compensation.[30]

  16. In After the Removal, the ALSWA submitted that compensation as appears in the terms of reference (c) of the National Inquiry[31] should include the more encompassing term ‘reparation’.[32] Reparation involves material and non-material redress, and includes restitution, compensation, rehabilitation and satisfaction and guarantees of non-repetition.[33]

  17. The National Inquiry accepted the arguments by the ALSWA as expressed in After the Removal. In accepting the wider reparation notion, Bringing them home commented:
    The Inquiry concurs with van Boven that the only appropriate response to victims of gross violations of human rights is one of reparation. In international law and in practice of other countries the term ‘compensation’ is generally reserved for forms of reparation paid in cash or in kind. Other terms are used for non-monetary compensation. The term ‘reparation’ is the comprehensive notion. The Inquiry was urged to interpret the term ‘compensation’ in term of reference (c) as ‘intended to include the more encompassing term “reparation”’ (Aboriginal Legal Service of WA submission 127 page 72). In light of the clear intent of the terms of reference to redress the history of removals the Inquiry adopts this interpretation.
    …

    A number of submissions to the Inquiry supported an approach to the principles of compensation which recognizes the history of gross human rights violations and the obligation to make reparation. Some were aware and supportive of the ‘van Boven Principles’. The Aboriginal Legal Service of WA commented that,

    Many of the specific recommendations mad by those interviewed by the ALSWA are consistent with van Boven’s proposals (submission 127 page 105). The ALSWA recommended that Commonwealth and State governments accept and ‘give effect to the proposed basic principles and guidelines recommended by van Boven to justify an award to persons, families and communities affected by the separation of Aboriginal children from their families’ (recommendation 1).[34]

  18. Bringing them home extensively cites from After the Removal. However, for reason best know to the National Inquiry Secretariat, Bringing them home never refers to After the Removal - preferring to cite information from the report as ‘Aboriginal Legal Service of WA submission’. This despite the fact that Bringing them home uses material contained in After the Removal and not in the ALSWA’s oral submissions made to the National Inquiry public hearings in Perth in May 1996. When reproducing the results of an empirical study conducted by the ALSWA as reported in After the Removal,[35]

  19. Bringing them home never once mentions After the Removal.[36] It is submitted that this is somewhat strange and not helpful for those wishing to source After the Removal. In contrast, Telling Our Story is referred to by name in Bringing them home.[37] This is even more surprising when one considers that although the ALSWA submitted both Telling Our Story and After the Removal to the National Inquiry, it was the later report that specifically addressed the terms of reference of the National Inquiry and it was the later report that was extensively cited in Bringing them home.[38]

    National Inquiry Report

  20. Above I have argued that the ALSWA reports Telling Our Story and After the Removal were significant submissions to the National Inquiry that impacted on the content of the National Inquiry Report. Here I provide greater detail of the National Inquiry Report.

    The Findings

  21. The National Inquiry Report found, inter alia, that the policy of forcible removal adversely affected Aborigines across Australia in all States and Territories. Forcible removal of Aboriginal children began as early as the mid-nineteenth century in the eastern States of Australia and was characterised by legislative and administrative regimes enacted and exercised specifically for Aboriginal people. Such regimes discriminated against them either in law or in fact. The National Inquiry Report found that forcible removal resulted in:

  22. The legally significant consequences of forcible removal were that Aborigines were denied the common law rights which other Australians enjoyed,[43] suffered violations of their human rights,[44] and were often subjected to other forms of victimisation and discrimination.[45] The practice of forcible removal continued until the 1970s.[46]

  23. The National Inquiry Report further found the forcible removal of Aboriginal children from their families to be in breach of international human rights obligations to prevent systematic racial discrimination and genocide.[47] Forcible removal was racially discriminatory because it was carried out pursuant to legislation which either denied the Aborigines common law rights on the basis of race[48] or because the legislation, although not discriminatory in form, had the substantive effect of discriminating against Aborigines through the exercise and use of procedures and standards ‘which they could not meet either because of their particular cultural values or because of imposed poverty and dependence’.[49] Genocide was found on the basis that the laws and policies promoting the removal of Aboriginal children was for the purpose, or had the effect, of destroying the Aborigines as a racial group or their ‘Indigenous culture’.[50] Under international law, these violations are attributable to the Commonwealth.[51] The National Inquiry Report notes further that such breaches under international law amounted to “gross violation of human rights”.[52]

    Recommendations

  24. In total, the National Inquiry Report made 54 recommendations. The recommendations covered all the components of reparations: acknowledgement of truth and an apology; guarantees of non-repetition of violations; rehabilitation; compensation; and restitution.

    Acknowledgment and apology

  25. For victims of gross human rights violations, establishing the truth about the past is a critically important measure of reparation. The National Inquiry Report recommends that all Australian Parliaments, State and Territory police forces, and churches and other relevant non-government agencies, ‘acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal’ and apologise for the wrongs committed.[53]

  26. The demand for acknowledgment of the truth and the delivery of an apology has generated much community debate. The significance of such a demand should not be underestimated. Pritchard writes ‘[t]he Inquiry agreed that the first step in healing for victims of gross violations of human rights must be an acknowledgment of the truth and the delivery of an apology.’[54] The Australian Government has been very reluctant to make an official apology.[55]

    Guarantees against repetition

  27. It is important to include measures to prevent such human rights violations in the future as an aspect of reparation. Emphasis should be placed on informing the wider Australian community about the history and continuing effects of separation and to promote awareness of the human rights violations suffered by Aboriginal people, families and communities as a result of separations. The National Inquiry Report recommends that school curricula and professional training include the study of forcible removal.[56] Recommendation 10 argues for the Commonwealth Government to ‘legislate to implement the Genocide Convention’ into domestic law.[57]

    Restitution

  28. In respect of restitution, the returning to Australia of children who were forcibly removed and now living overseas has been identified as a critical step in the reunification and assistance process. To facilitate return to country, support is required for “returnees” and for the communities receiving them. The National Inquiry Report made recommends in relation to “assistance to return to country”,[58] the fostering of Aboriginal language, culture and history[59] and the accreditation of Aboriginal organisations such as Link-Up and Aboriginal and Islander Child Care Agencies ‘for the purposes of certifying descent from the Aboriginal people of Australia and acceptance as Aboriginal by the Aboriginal community.’[60] Reparation of a restitutive nature can also be found in the recommendation dealing with delivery of services to those affected.[61]

    Rehabilitation

  29. The National Inquiry Report agrees that reparations include rehabilitation measures, such as ‘legal, medical, psychological and other care services’. These measures require culturally appropriate delivery of services such as mental health and counselling services,[62] parenting and family support programmes.[63] Rehabilitative measures are essential to addressing the needs of those affected by forcible removal.

    Monetary Compensation

  30. The awarding of monetary compensation for those removed and/or those affected by the removals received opposition from the Commonwealth Government.[64] In its submission to the National Inquiry, the Commonwealth Government raises as a concern the difficulty in estimating the monetary value of losses, on the grounds that “[t]here is no comparable area of awards of compensation and no basis for arguing a quantum of damages from first principles.”[65] Professor Graycar suggests that the Commonwealth Government’s excuses for not providing compensation to Aboriginal peoples who had been affected by removal policies are little more than a rhetorical device.[66] Further she states:
    Even the most minimal familiarity with the legal frameworks used for compensating various sorts of injuries would make it clear that what is, or is not, compensatory at law is more a matter of political judgment and government policy than it is a matter of any inherent legal understanding of compensability… Perhaps the most common form of compensation that courts deal with is the assessment of damages for personal injuries caused by negligence, such as in the negligent driving of a motor vehicle. Many tort scholars have pointed out that this process is little more than, as Ison called it, a “forensic lottery.”[67] Judges often make assessments of both economic and non-economic losses, at common law, on a lump sum ‘once and for all’ basis. This of necessity, involves speculation about a range of imponderables...[68]

  31. The National Inquiry Report strongly argues and recommends:

    [t]hat monetary compensation be provided to people affected by forcible removal under the following heads:
    1. Racial discrimination;
    2. Arbitrary deprivation of liberty;
    3. Pain and suffering;
    4. Abuse, including physical, sexual and emotional abuse;
    5. Disruption of family life;
    6. Loss of cultural rights & fulfilment;
    7. Loss of native title rights;
    8. Labour exploitations;
    9. Economic loss; and
    10. Loss of opportunities.[69]

  32. With regard to civil claims for compensation the National Inquiry Report states:
    [d]ifficulties of proof and the expiry of statutory periods of limitation may deny a remedy to many victims of forcible removal. However, the harms they suffered... are recognised heads of damages that can be compensated under Australian law. Relying on the civil courts for remedies, however, is likely to lead to great delay, inequity and inconsistency of outcome. The civil process is daunting and expensive, thus deterring many of those affected. It will also involve great expense for governments to defend these claims.[70]

  33. Recognising the difficulties with civil actions for compensation, the National Inquiry Report recommends the establishment of a “National Compensation Fund”,[71] with the fund being administered by a “National Compensation Fund Board”[72] according to prescribed procedures.[73] It recommends that a prescribed minimum lump sum be paid to those forcefully removed from the “National Compensation Fund”[74] and:
    [t]hat upon proof on the balance of probabilities any person suffering particular harm and/or loss resulting from forcible removal be entitled to monetary compensation from the National Compensation Fund assessed by reference to the general civil standards.[75]

  34. The National Inquiry Report concludes the discussion on monetary compensation with the recommendation that any “statutory monetary compensation mechanism” should not prohibit the right to common law action but a “claimant successful in one forum should not be entitled to proceed in the other.”[76]

  35. Unlike the Australian State and Territory Governments,[77] but like the US Government, the Australian Federal Government has been very reticent in providing a formal apology to Indigenous people. It was not until 26 August 1999 that the Prime Minister, John Howard proposed a motion to Parliament offering a statement of regret but not sorry to Aboriginal people to reaffirm the Government’s commitment to reconciliation between Aboriginal and non-Aboriginal Australians.[78] While the speech acknowledges past mistreatment of Aborigines and regrets any resulting hurt and trauma it fails to specifically acknowledged or apologise for damages suffered by those Aborigines removed from families to missions and other institutions. The speech acknowledged
    …that the mistreatment of many indigenous Australians over a significant period represents the most blemished chapter in our international history;[79]

    Then the motion continued to express:

    its deep and sincere regret[80] that indigenous Australians suffered injustices under the practices of past generations, and for the hurt and trauma that many indigenous people continue to feel as a consequence of those practices…[81]

  36. The Australian Federal Government has been more ready to act on other recommendations made by the National Inquiry report. In a press release by Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron on 16 December 1997, about six months after the National Inquiry report’s tabling in Federal Parliament, the Government again reiterated its opposition to monetary compensation. Instead the Government outlined a plan to provide $63 million over four years, primarily aimed at addressing the ‘family separation and its consequences’ – providing financial assistance for things such as preservation of records, the recording of oral stories, family support and parenting programmes, language and cultural programmes, family link-up services and counseling. [82]

    Conclusion

  37. Although this article has examined the contents of the National Inquiry Report and also the government responses to the report’s recommendations, the primary focus of this article has been on the ALSWA role in agitating for an inquiry into Aboriginal childhood removals and the ALSWA reports (submissions) to the National Inquiry. Thus I wish to conclude this article with some further comments on the ALSWA reports (submissions) to the National Inquiry.

  38. Although Telling Our Story and After the Removal were utilised by the National Inquiry and the later report was specifically written for the National Inquiry, both documents also stand alone apart from the National Inquiry. These documents have been used and referred to by academics doing research in the area of Aboriginal childhood removals.[83] As Franceso Bartlett comments in her article on ‘Aboriginal Resistance Literature’:
    The text I shall be discussing, Telling Our Story, published in July 1995, and After the Removal, published in May 1996, are different from the Human Rights publication [Bringing them home] in their refusal to be incorporated by an all-encompassing governmentality in production of public documents of this nature.[84]

  39. In the early to mid 1990s the ALSWA was at the forefront of lobbying to have the Aboriginal childhood removal issue placed on the national political and community agenda. As it waited for the machinery of politics to do so, it grabbed the initiative and conducted its own inquiry. The products of this inquiry are Telling Our Story and After the Removal. These documents are composed from the over 700 hundred stories told to the ALSWA by those removed as children and from those who were parents of those removed. Accompanying these stories is a legal framework that advocated for reparations to be made. The National Inquiry was strongly in agreement with what the ALSWA was saying in Telling Our Story and After the Removal, this being reflected in the content and recommendations made in Bringing them home.

  40. The whole push for a national inquiry into the past history of Aboriginal childhood removals and the demands for reparations came from a wide cross-section of Aboriginal and non-Aboriginal organisations, community leaders, academics, professionals and parliamentarians. The ALSWA is only one cog in that wheel but a significant cog nonetheless. And the symbolic and political head of the ALSWA cog was the late Rob Riley, whose own story is a powerful narrative in Telling Our Story[85] and a fitting way to end an article discussing the role of the ALSWA in the Aboriginal childhood removal debate in the 1990s:
    On 26 March 1964, Malcolm (aged nearly ten years) was visited at SKCH [Sister Kate’s Children Home] by his parents. … He describes this as the happiest and saddest day of his life. It was the happiest day of his life because it vindicated what he had always believed, that is he belonged to someone. He knew that he belonged to someone despite being told by SKCH authorities that he didn’t. Seeing his parents was final proof that he did belong. He also found out that he had brothers and sisters that he never knew he had. Malcolm still has a present that his father gave him the day they met at SKCH. It was an eleven pence penny and Malcolm has kept this coin as a symbolic token of his belonging. The day was also sad because of the trauma of being punished for asking questions of who he belonged to and the fact that he did belong to someone and was punished for trying to find out. It was also sad because the reunion with his parents brought to him the realisation that part of his life has been robbed from him by being placed in SKCH rather than being with his parents.[86]

Notes

[1] This coincided with the thirtieth anniversary of the 1967 referendum, which granted the Commonwealth Parliament power to legislate for Aborigines and count the Aborigines in the census.

[2] Human Rights and Equal Opportunity Commission (HREOC), Bringing them home (AGPS Canberra 1997)

[3] For example, refer to R Brunton, ‘Betraying the Victims: The “Stolen Generations” Report’ (1998) 10 IPA Backgrounder 1; H Wooten, ‘Ron Bruton & Bringing then Home’ (1998) 4 Indigenous L Bulletin 4; P Howson, ‘Rescued from the Rabbit Burrow’ (1999) June Quadrant 10; R Marsh, ‘ “Lost”, “Stolen” or “Rescued”?’ (1999) Quadrant 15; B Lane, ‘Rights body a “bad influence’ on policy’ The Australian (11 September 2000) 26; S Powell, ‘Sloppy study makes falsehoods fact’ The Australian (11 September 2000) 26; R Manne, ‘In Denial: The Stolen Generations and the Right’ (2001) 1 Australian Quarterly Essay 3; P Carlyon, ‘Stolen Children: On the Words that Matter’ The Bulletin (12 June 2001) 26

[4] Above n 2, 277-78.

[5] D Modjeska, ‘A Bitter Wind Beyond the Tree Line’ Sydney Morning Herald (18 September 1997) 19.

[6] The National Inquiry was launched on 10 August 1995, in Adelaide. The National Inquiry ‘terms of reference’ was originally announced on 11 May 1995 by the then Attorney-General of Australia, Hon Michael Lavarch. However, on 2 August 1995, those terms of reference were revoked and replaced with similar but wider terms of reference, including the examination of compensation principles. The final terms of reference of the National Inquiry were: (a) tracing past laws, practices and policies that lead to the removal of Aboriginal and Torres Strait Islander children from their families and the effects of those laws, practices and policies; (b) examining the adequacy of services available to those affected by removal and recommencing appropriate changes; (c) examining the principles that would justify the awarding of compensation to those forcibly removed from family; and (d) examining current laws, practices and policies with respect to child placement and care of Aboriginal and Torres Strait Islander children and recommending appropriate changes while taking into account the principle of self-determination.

[7] See below for meaning of reparations.

[8] R Butler, speaking at the workshop on removal of Indigenous children at the Australian Reconciliation Convention in Melbourne, 26 May 1997, stated that the Secretariat of National Aboriginal and Islander Child Care, along with other organisations and individuals had been lobbying governments to hold an inquiry since the late 1980's.

[9] In the interest of full disclosure, the author informs the reader that for much of the period discussed in this paper, the author was the co-ordinator of the ‘Stolen Generations’ Project at the ALSWA. Further he was the editor and principal author of Telling Our Story and author of After the Removal (see below for full citation of these publications, where the ‘official’ authorship is given to the ALSWA). As such the author does not claim to be unbiased in the views and opinions he expresses in this article.

[10] N D’Souza, ‘The Stolen Generation: From Removal to Reconciliation’ [1998] UNSWLawJl 16; (1998) 21(1) University of New South Wales Law Journal 204, 205.

[11] Ibid.

[12] Ibid.

[13] Williams v Minister Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 (extension of time application). The Williams case has lead to a number of decisions post the release of Bringing them home: Williams v Minister Aboriginal Land Rights Act 1983[1999] NSWLR 843 ; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (SCNSW 25 August 1993); Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor [1999] NSWSC 843; (1999) 25 Fam L R 86; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor [2000] Aust Torts Reports 81-578, 64,136; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (HCA s246/2000 22 June 2001)

[14] Kruger and Anor v Commonwealth [1997] HCA 27; (1997) 190 CLR 1. The other Northern Territory case has played out after Bringing them home: Cubillo and Anor v Commonwealth [1999] FCA 518; (1999) 89 FCR 528; Cubillo and Anor v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 ; Cubillo and Anor v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455; Cubillo and Anor v Commonwealth (HCA D10 and 11/2001 3 May 2002). There have been two other ‘least significant’ Aboriginal child separation cases – one that was poorly pleaded and rejected by a single justice of the High Court of Australia (Thorpe v The Commonwealth [No 3] [1997] HCA 21; (1997) 71 ALJR 767), and the other that has not yet reached the trial stage (Johnson v Department of Community Services and Anor [2000] Aust Torts Reports 81-540, 63,472).

[15] He is now Justice Ron Merkel of the Federal Court of Australia.

[16] Unpublished. Refer to an earlier version of the paper, R Merkel, ‘Government Culpability for the Forced Removal of Aboriginal Children From Their Families’ (1990) 2(47) Australian Law Bulletin 4.

[17] Williams was unsuccessful as have been the plaintiffs in Kruger and Bray and Cubillio .

[18] Refer to The Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Aid Service (eds), Proceedings of the first National Workshop (Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Service Alice Springs September 1996) 1.

[19] There have been a number of Sorry Days in subsequent years.

[20] ALSWA, Telling Our Story (ALSWA Perth 1995).

[21] Manguri is the headquarters of an Aboriginal support organisation. The Uniting Church, who ‘inherited’ the complex from the Presbyterian Church when it became part of the Uniting Church, as a gesture of goodwill to Aboriginal people, ‘gave’ the complex to the Aboriginal organisation. Recently it has been announced that it will become a retirement home for former ‘inmates’ of Sister Kate’s.

[22] In contrast to Bringing them home, most of the personal stories published in Telling Our Story were corroborated via the relevant Native Welfare files.

[23] Above n 20, 28.

[24] Ibid, 40.

[25] Ibid, 2.

[26] Ibid, 1-2, quoting a report in The Telegraph 5 May 1937.

[27] Above n 20, 208, excerpt from Neville’s speech at the initial conference of Commonwealth and State Aboriginal Authorities, Parliament House, Canberra, April 1937.

[28] ALSWA, After the Removal (ALSWA Perth 1996).

[29] Ibid, 11.

[30] The remedies explored in After the Removal are manifested in 166 recommendations to the Commonwealth government, State (Western Australia) government, local government, churches or a combination of governments.

[31] Refer to above, fn 6.

[32] Above n 28, 72.

[33] Ibid. Also refer to T van Boven (Special Rapporteur of the United Nations), Study concerning the right to restitution, compensation and rehabilitation of victims of gross violations of human rights and fundamental freedoms: Final Report (UN Doc. E/CN. 4?Sub. 2/1993/8 2 July 1993) 7.

[34] HREOC (1997) 281.

[35] ALSWA (1996) 38-58.

[36] Preferring to refer to as the ‘ALSWA Submission’. For example refer to above n 2, 182,187, 194.

[37] For example refer to above n 2, 218.

[38] But as ‘ALSWA Submission’ not After the Removal.

[39] Above n 2, 253.

[40] Ibid, 255-256.

[41] Ibid, 256-257.

[42] Ibid, 259 - 260.

[43] Ibid, 277.

[44] Ibid, 277 - 278.

[45] Ibid, 278.

[46] Ibid, 250.

[47] Ibid, 266, 269; and American Law Institute, Restatement of the Law, Third, The Foreign Relations Law of the United States, INTERNATIONAL LAW OF HUMAN RIGHTS, Section 702 (headnote), St. Paul, American Law Institute Publishers, 1997.

[48] Above n 2, 250, 277.

[49] Ibid, 277; the discriminatory operation of the legislation preceded the separate legislation.

[50] Ibid, 270-275, 278. Such violations occurred during the time which Australia was bound under international law by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘the Genocide Convention’) and possibly before under obligations erga omnes; see Hugo Princz v Federal Republic of Germany 26F. 3d 1116, 65, 1 July 1994 (US App.); cf Kruger and Bray cases, above n 14.

[51] Notwithstanding that the legislation authorising the removal was primarily State legislation; see Heirs of the Duc de Guise Case (France-Italy) (1964) 13 Reports of International Arbitral Awards 154, 161; Pellat Case (France-Mexico) (1952) 5 Reports of International Arbitral Awards 534, 536, cited in Encyclopedia of Public International Law, Volume 10 ‘States – Responsibility of States – International Law and Municipal Law’ (Amsterdam: Elsevier Science Publishers B.V., 1987), 367-8; H Charlesworth, ‘Individual Complaints: An Overview and Admissibility Requirements’ in S Pritchard, (ed) Indigenous Peoples, the United Nations and Human Rights (The Federation Press, Sydney, 1998), 76; Velásquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988); note also American Law Institute, above n 46, Section 702, Comment b, Reporter’s Note 2, Section 703, Comment c.

[52] Above n 2, 269, 282; and American Law Institute, above n 46, Section 702, Comment m.

[53] Above n 2, recommendations 5 and 6, 284-292.

[54] S Pritchard, ‘The Stolen Generations and Reparations’ (1997) 4(3) UNSW Law Journal Forum 28, 28- 29.

[55] Refer to Sydney Morning Herald, 9 January 1998.

[56] Above n 2, recommendations 8 and 9, 295.

[57] Ibid, 294-295. The lack of domestic incorporation of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (‘the Genocide Convention’) was noted in Kruger and Bray cases, above n 14, (Dawson J, at 160; Toohey J, at 174; Gummow J, at 231. Gaudron J, at 190, comments on genocide being contrary to fundamental principles of common law).

[58] Above n 2, recommendation 11 at 297.

[59] Ibid, recommendation 12 at 300.

[60] Ibid, recommendation 13 at 301.

[61] Ibid, Part 5.

[62] Ibid, recommendations 33 – 35, 396-397; recommendation 37, 401.

[63] Ibid, recommendation 36, 399.

[64] Commonwealth Government, (Submissions to) National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, 1996, 26-32. Also refer to ‘Long delay awaits victims of forced removal’, The Australian, 27 May 1997, and ‘No compo for stolen children: Williams’, Canberra Times, 22 May 1997.

[65] Above, n 2, 306.

[66] R Graycar, ‘Compensation for the Stolen Children: political judgments and community values’ (1997) 4(3) UNSW Law Journal Forum 23, 24-25.

[67] T Ison, The Forensic Lottery: A Critique of Tort Liability as a System of Personal Injury Compensation, (Staple Press, London, 1967); and see more generally P Cane, Accidents, Compensation and the Law (5th ed, Butterworths, Sydney, 1993); H Luntz, The Assessment of Damages for Personal Injuries (3rd ed, Butterworths, Sydney, 1990).

[68] Above n 66, 25.

[69] Ibid, 303-307.

[70] Ibid, 305.

[71] Ibid, recommendation 16, 310.

[72] Ibid.

[73] Ibid, recommendation 17, 311.

[74] Ibid, recommendation 18, 312. ‘That it be a defence to a claim (for a minimum lump sum) for the responsible government to establish that the removal was in the best interests of the child.’

[75] Ibid, recommendation 19, 312.

[76] Ibid, recommendation 20, 313. Refer to 302-313 for a discussion on the monetary compensation issue.

[77] South Australia: 28 May 1997; Western Australia: 28 May 1997; Queensland: 3 June 1997; ACT: 17 June 1997; New South Wales: 18 June 1997; Tasmania: 13 August 1997; and Victoria: 17 September 1997. The Northern Territory Government has not made a statement of apology. Most of the major churches have also issue statements of apology. Also a National Sorry Day organised by members of the community was held on 26 May 1998.

[78] Transcript of the Prime Minister, The Hon. John Howard MP Motion of Reconciliation 26 August, 1999 [Internet] URL <http://www.pm.gov.au/media/pressrel/1999/reconciliation2608.htm> 1.

[79] Ibid.

[80] Emphasis added.

[81] Above n 78.

[82] Australia, Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron “Bringing Them Home – Commonwealth Initiatives” Media Release (Canberra, 16 December 1997).

[83] For example refer to Q Beresford and P Omaji, Our State of Mind (Fremantle Arts Centre Press Fremantle 1998); F Bartlett, ‘Aboriginal Resistance Literature’ (1998) 4 UTS Review 80.

[84] F Bartlett (1998) 86.

[85] In Telling Our Story the name all names were changed. Rob Riley’s was changed to Malcolm. The excerpt from Telling Our Story that is referred to here was retold by Rob Riley at the public launch of Telling Our Story at Manguri (formerly Sister Kate’s Home for Aboriginal Children).

[86] Above n 20, 110. Most of the narratives in Telling Our Story were recorded in the third person but in After the Removal most were in the first person.

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