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Goodstone, Alexis --- "Redressing Harm: A Proposal for the Establishment of a Stolen Generations Reparations Tribunal" [2000] IndigLawB 39; (2000) 4(30) Indigenous Law Bulletin 10


Redressing Harm:
A Proposal for the Establishment of a Stolen Generations Reparations Tribunal

By Alexis Goodstone

In the wake of Corroboree 2000 and calls from the Council for Aboriginal Reconciliation and indigenous leaders for Government to implement legislative arrangements to deal with the 'unfinished business' of reconciliation, there is an urgent need to establish a mechanism to acknowledge and redress the harm suffered by members of the Stolen Generations and indigenous people affected by forcible removal. A Stolen Generations Reparations Tribunal, to process claims for reparations for stolen children, their families, communities and descendants, should be set up to achieve this.

These and other matters are currently the subject of an Inquiry by the Senate Legal and Constitutional Committee. The Committee’s Inquiry into the Stolen Generation commenced in November 1999. Written submissions to the Committee have closed. Public hearings will be held in July and August and the Committee will report to Parliament in late 2000. [1]

Why Reparations?

Bringing Them Home[2] found that the forcible removal of indigenous children from their families breached the international prohibitions of systematic racial discrimination and genocide, and was a gross violation of fundamental human rights, raising an obligation on the Australian Government to provide adequate reparations, consisting of a number of measures to acknowledge and redress harm, both monetary and non-monetary, discussed in further detail below. It also found that breaches of the common law occurred in the removal and care of indigenous children, including breaches of the right to freedom from arbitrary detention and breaches of guardianship duties. Criminal wrongdoings such as sexual and physical assaults were also widespread.[3]

The consequences of removal and their continuing effects on members of the Stolen Generations, their families, communities and descendants raise not only a legal, but a moral obligation on Government to provide adequate reparations. Whilst some commentators insist on the benign intent of removal laws, there is ample evidence to justify viewing them as genocidal. There is also a general acceptance of their devastating effects. In these circumstances, it would appear that the only right course is to provide reparations in accordance with the recommendations of Bringing Them Home.

Providing reparations to the Stolen Generations is also a fundamental issue pivotal to progress on reconciliation. As the Governor General, Sir William Deane, stated in 1996:

Theoretically, there could be national reconciliation without any redress at all of the dispossession and other wrongs sustained by the Aborigines. As a practical matter, however, it is apparent that recognition of the need for appropriate redress for present disadvantage flowing from past injustice and oppression is a pre-requisite of reconciliation.[4]

If we are to achieve a just and stable basis for the reconciliation of indigenous and non-indigenous Australians, the history and effects of forcible removal must be adequately addressed.

International Experiences

The experiences of New Zealand, Canada and South Africa, in responding to histories of conflict, dispossession and human rights abuses, reflect a growing international recognition of the essential role of reparations in the process of reconciliation, and provide models for consideration in the Australian context.

The Waitangi Tribunal in New Zealand was established in 1975 in recognition of the large scale dispossession brought about by colonisation, and its drastic consequences for the Maori nation. Maoris may make a claim where they are, or are likely to be, prejudicially affected by any past or present actions or omissions of the Crown which are inconsistent with the principles of the Treaty of Waitangi.[5]

The Truth and Reconciliation Commission was established in 1995 to assist South Africa to ‘transcend the divisions and strife of the past’ and rebuild a future based on respect for human rights.[6] It investigated and held hearings into human rights violations and, in its 1998 Report, recommended that victims of gross violations of human rights receive reparations, including monetary compensation.[7] It also recommended communal reparations in the form of a community rehabilitation program, institutional reform and symbolic measures of reparations.[8]

In response to the Canadian Royal Commission into Aboriginal Peoples, which dealt with Canada's residential schooling policy, under which many indigenous children were removed from their families, the Canadian Government has established the Aboriginal Healing Foundation, which grants funds to community based healing initiatives for use in developing and delivering programs and services for the victims of residential schooling.[9] The Government has committed $350 million for the Foundation to distribute.

Making Reparations – Why a Tribunal?

The approach of the Federal Government to date has been to rely on litigation to determine entitlements to compensation for people affected by forcible removal. Stolen Generations claimants labour under extraordinary disadvantage in attempting to assert their legal rights. The hurdles include:

A Reparations Tribunal, with the power to award compensation and to recommend other forms of reparations, would ensure that all people removed and affected receive a reasonable share of a limited pool of funds. It would provide a scheme for financing a range of reparations measures, and contain the potential for litigation, thus creating finality and certainty, and offering an effective mechanism for providing social justice for Aboriginal and Torres Strait Islander people.

State and federal governments should be responsible for funding the Tribunal. Contributions should also be sought from churches and other organisations involved in the removal, care and custody of indigenous children removed from their families. The Tribunal could also play a role in monitoring the implementation of the recommendations made in Bringing Them Home.

Who can Claim Reparations?

The Reparations Tribunal should address reparations for all those affected by forcible removal, including, as recommended by Bringing Them Home, indigenous people who were forcibly removed as children, their families, communities and descendants.[10]

In acknowledgment of the dislocation from community resulting from removal, the definition of ‘indigenous’ should be broad, including indigenous people who may not be recognised as indigenous by members of an indigenous community.

The definition of ‘forcible removal’ should be that adopted by Bringing Them Home, encompassing children removed by ‘compulsion’, ‘duress’ or ‘undue influence’.[11] This would include all children removed from their families, except removals which were truly voluntary, or where the child was orphaned and there was no indigenous carer to step in. This broad approach recognises that indigenous children and their families were the subject of directly and indirectly racially discriminatory laws, policies and practices.

The available evidence of the numbers of indigenous children forcibly removed suggests that approximately 17,000 indigenous people who were removed might consider applying to the Tribunal.[12]

Establishing Liability

The Federal Government should establish a statutory based scheme for compensation to the Stolen Generations with strict liability for the harm suffered as a result of forcible removal. The public policy justification for providing strict liability is that it gives statutory recognition of the harm that flowed from forcible removal, and provides redress for that harm.

Reparations should be provided to people affected by forcible removal under the following heads, as recommended by Bringing Them Home:

Entitlements for those forcibly removed

Consistent with the recommendations of Bringing Them Home, reparations for indigenous people removed should consist of:

As recommended by Bringing Them Home, where there is a claim for lump sum compensation for someone who was forcibly removed the Government should have a defence if it can demonstrate that the removal was in the best interests of the child.[16] Where this defence is used it should be applied in accordance with contemporary values rather than with the racist and paternalistic values of the past.

Entitlements for their families, communities and descendants

Families, communities and descendants affected by forcible removal should be entitled to reparations, including monetary compensation, where appropriate, if they can demonstrate that they are a family member, community member or descendant of an indigenous person or persons that were forcibly removed, and that they suffered harm under the particular heads of damage identified above. The types of harm suffered by families and communities would typically include racial discrimination, pain and suffering, disruption to family life, and loss of cultural fulfilment.

Forms of Reparations

The forms of reparations ordered or recommended by the Reparations Tribunal should include monetary compensation, acknowledgment and apology, guarantees against repetition, measures of restitution and measures of rehabilitation, as recommended by Bringing Them Home.[17]

Monetary compensation

As discussed above, a Reparations Tribunal should provide lump sum monetary compensation to individuals who were forcibly removed. The lump sum amount should be determined by reference to:

In the Victims Compensation Tribunal, claimants may receive up to $50,000 for the harm occasioned by one act of violence.[18] In the civil courts, successful claimants would receive substantially more, considering the harm identified by Bringing Them Home. In South Africa, the Reparations and Rehabilitation Committee recommended that victims receive a sum equivalent to the median annual household income per annum for six years.

In order to achieve consistency, certainty and an equitable apportionment of limited funds, a statutory schedule of damages should be adopted to guide the Tribunal in assessing damages for 'proof of particular harm'. In determining relevant amounts, similar considerations as above should apply.

Other forms of reparations

Other forms of reparations should also be provided by the Reparations Tribunal. For example, individuals or groups could lodge a claim seeking an apology from a specific individual, local entity, state or federal government or non-government party involved in their forcible removal, or a local commemorative monument in recognition of their harm. Reparations recommended by the Tribunal could also include funding to assist in re-establishing indigenous identity and funding for family tracing and reunion services, counselling and other mental health assistance. Packages of reparations could also be designed around families' and communities' needs.

Procedures of the Tribunal

The Tribunal's procedures should reflect its purpose and the needs of claimants. The Tribunal should:

There is an urgent need for the establishment of a Reparations Tribunal to acknowledge the harm suffered by the Stolen Generations, move away from legal manoeuvring and accept legal and moral responsibility for the past.

Alexis Goodstone is a solicitor with the Public Interest Advocacy Centre.


[1] The proposals here are derived from a submission made by the Public Interest Advocacy Centre (‘PIAC’) to the Committee. The submission is informed by PIAC’s Stolen Generations Project, which has involved case assessment and research, the provision of legal representation in Supreme Court and Victims Compensation Tribunal proceedings and consultations with indigenous organisations. The submission, co-written by the author, draws on PIAC’s experience with public interest litigation, particularly test case litigation and grouped proceedings. It is also based on the findings and recommendations of the report by The Human Rights and Equal Opportunity Commission, Bringing Them Home: The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997) (‘Bringing Them Home’) PIAC’s Stolen Generations Reference Group provided ongoing advice and guidance.

[2] Bringing Them Home, ibid.

[3] Ibid 266-283.

[4] Ibid 4.

[5] Treaty of Waitangi Act 1975 (NZ) s 6(1).

[6] Truth and Reconciliation Commission, Final Report (1998): http://www.truth.org.za/, Vol 1 Ch 1.

[7] The Commission made findings of gross violations of human rights in relation to 22,000 victims, recommending that they each receive a monetary package based on a benchmark amount of R21,700 (median annual household income in South Africa in 1997) per annum for six years (approximately equivalent to Aus $6,000 per annum).

[8] Above n 5, Vol 5, Ch 5.

[9] Aboriginal Healing Foundation website, http://www.ahf.ca.

[10] Above n 2, 283.

[11] Ibid 5-10.

[12] The Australian Bureau of Statistics conducted a survey in 1994, involving interviews with 15,700 indigenous people. It found that 5.7% of those interviewed reported having been taken away from their natural family by a mission, the government or 'welfare'.13 Applying this ratio to 1991 Population Census data, out of the total indigenous population of 303,000 in 1991, approximately 17,000 had been removed from their families up to 1994.14 This is likely to be an under-estimation of the total numbers removed, as it does not capture those people who do not identify as indigenous or do not know that they are indigenous and were removed. However, it is relevant in terms of the numbers that might consider applying to the tribunal: Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Survey 1994: Detailed Findings, ABS Catalogue No. 4190.0, 7.

[15] Above n 2, 304.

[16] Ibid 312.

[17] Ibid 282.

[18] Victims Compensation Act 1996 (NSW) Schedule 1.


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