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Cunneen, Chris --- "Legal and Political Responses to the Stolen Generations: Lessons from Ireland?" [2003] IndigLawB 57; (2003) 5(27) Indigenous Law Bulletin 14


Legal and Political Responses to the Stolen Generations: Lessons from Ireland?

by Chris CunneenAt first glance it may seem odd to expect any connection between developing an appropriate response to the Stolen Generations in Australia and events in Ireland. Afterall, there is no comparable Irish history of an Indigenous group being directly subjected to policies of child removal that sought to achieve genocide and, more recently, assimilation.[1] In many respects events relating to Indigenous child removal in north America, and particularly Canada, may appear to make a more worthwhile comparative approach.[2] However, there existed in Ireland widespread removal of children from their families and their subsequent placement in industrial schools and reformatories from the late 19th century through much of the 20th century. Many children were sexually assaulted and physically abused while detained in the schools, which were almost exclusively operated by religious orders. From the mid 1990s there has been a political campaign and legal action to provide compensation to those who were abused.What I believe to be of interest for Indigenous people, and their supporters, in Australia seeking recognition and reparations for the wrong of forced removals, is the way the Irish government has responded to the situation in their own country. More explicitly, the Irish response provides an illuminating and powerful contrast to the reactionary politics of denial practised by the Howard Government in Australia.[3]Background

In 1970 the Kennedy Report had investigated and reported on children in the Irish reformatory and industrial schools. Some of the important findings of this report included that many of the children suffered from deprivation, the schools were inadequately staffed and most staff had no proper qualifications. Conditions were so bad in two institutions that the inquiry recommended they be closed. There was no adequate system of vocational training for the children, and there was an absence of personal records containing even minimal information in respect of the children. Funding was inadequate to run the institutions and the statutory obligation to inspect the schools at least once a year had not always been fulfilled. Overall, the report recommended the abolition of the institutional system of residential care and replacement by group homes.[4]During the 1990s there was increasing evidence that sexual and physical abuse had occurred in the schools and a number of claims for damages were lodged with the High Court against the Department of Education and Science and/or various religious congregations. In early 1999 Irish national television broadcast a three part documentary States of Fear which exposed the level of sexual and physical abuse in the institutions.Coinciding with the release of the documentary, Bertie Ahern, the Irish Taoiseach (Prime Minister), apologised to those who as children had suffered abuse while in residential institutions under State supervision. ‘On behalf of the State and all citizens of the State, the Government wishes to make a sincere and long overdue apology to the victims of childhood abuse for our collective failure to intervene, to detect their pain, to come to their rescue’.[5] In response to the issue, the Irish Government enacted the Statute of Limitations (Amendment) Act 2000 which extended the limitation period for cases arising from institutional child abuse. The Government also established the following:

Statute of Limitations and LitigationThe statutory time limits on bringing matters before the courts has been a major impediment to Stolen Generations cases in Australia and has been central to the failure of cases such as Cubillo and Gunner.[6] The Irish Statute of Limitations (Amendment) Act 2000 shows how easily a committed government can alter legislation to facilitate litigation in the interests of justice. The amendments retrospectively extended ‘the period within which a person may bring a claim for damages in tort against the perpetrator or someone vicariously or otherwise liable for his or her conduct arising out of child sexual abuse – but only in circumstances where the person bringing the claim is deemed to be “under a disability”’.[7] A person is under a disability if he or she is suffering from a psychological injury caused, wholly or partly, by the act of sexual abuse, (or any other act of the perpetrator), where the victim’s will to bring an action was substantially impaired. ‘In such cases the normal three year period does not begin to run ... until he or she overcomes the psychological injury’.[8]Originally the Statute of Limitations (Amendment) Act 2000 was intended to apply to physical and sexual abuse. The inclusion of physical abuse was not proceeded with because of the apparent difficulties which might arise in determining standards at the time applying to physical punishment. In its final stages the legislation was amended to exclude non-sexual abuse.[9]The amendments still allow for judicial discretion in allowing for dismissal of claims. Section 3 of the Act provides that the court retains the power ‘to dismiss an action on the ground of there being such a delay between the accrual of the cause of the action and the bringing of the action as, in the interests of justice, would warrant its dismissal’.[10]The exclusion of physical assault from the amendments to the Statute of Limitations is problematic. However, it is also clear that litigation is not seen to be the only, or indeed primary, response to the issue of compensation. Applicants have an alternative avenue to the courts by providing evidence to the Laffoy Commission and pursuing claims through Residential Institutions Redress Board. The Board can determine compensation for widely defined instances of abuse, including physical, emotional and neglect.Criminal ProceedingsAnother contrast between the way the Stolen Generations issue has been dealt with in Australia and the response to institutional abuse in Ireland has been around the question of criminal proceedings against perpetrators. O’Sullivan and Raftery[11] note that by early 2001, nine Christian brothers were facing multiple child sexual abuse charges in relation industrial schools in Galway and Kerry. Allegations of abuse were still being investigated at a St Joseph’s industrial school in Galway.An extensive child abuse investigation was being conducted into Artane Industrial School in Dublin, where one Christian Brother has been charged, and completed files on twenty others were sent to the Director of Public Prosecutions (and have been awaiting a decision for over a year).Over 500 formal statements of complaint related to Artane have been lodged with the police. These have implicated up to 150 Christian brothers – some of whom are dead, have left the order or are still serving. About half of the Artane allegations related to physical abuse. Police completed investigations and sent the files to the DPP, who decided that no charges would be brought. The lapse of time, over 30 years in all cases, was the primary reason and it appears that the DPP is disinclined to proceed with these types of matters.[12]While there have been difficulties in proceeding with prosecutions in Ireland, particularly in relation to physical abuse, there appears to have been a complete lack of prosecutorial interest in the many claims of abuse arising from the testimonies of members of the Stolen Generations in Australia.The Commission to Inquire into Child Abuse (Laffoy Commission)The principal functions of the Laffoy Commission, as established in the Commission to Inquire into Child Abuse Act 2000, are to

The Act requires that the Commission conduct its proceedings in a manner as sympathetic and informally as possible. The Government described the Commission to Inquire into Child Abuse as approximating the South African Truth and Reconciliation Commission.[14]The Commission covers various types of abuse including physical, sexual, emotional and neglect. The Vaccines Trials inquiry was also referred to the Commission in June 2001. This additional term of reference arose from a report on clinical trials involving babies and children in institutional settings in 1960, 1961, 1970 and 1973.The Laffoy Commission has two distinct Committees to hear evidence relating to institutional abuse: the Confidential Committee and the Investigative Committee. Those wishing to provide evidence can choose between the two Committees. Both Committees have commenced hearings. The Commission provides a witness support program, and travel and subsistence expenses for the person giving evidence, as well as assistance for a companion or counsellor.Confidential Committee Survivors are provided with a sympathetic forum to relate their experiences. There is no cross-examination and hearings are in private before two members of the Committee. The Confidential Committee is for victims who do not wish to become involved in an investigative procedure. Persons giving evidence before the Committee may bring along one person for support or to assist them. The proceedings are audio recorded unless the person objects. No one the subject of allegations made by the person giving evidence is named in any report. The Confidential Committee will make a general report without naming victims, perpetrators or institutions.Investigation Committee Victims who wish to have a full inquiry into their allegations can provide evidence before the Investigation Committee. The Investigation Committee will fully test and rule on cases of child abuse (including physical, sexual, emotional and neglect). The Committee has wide powers to compel witnesses, and of discovery and production of documents. Persons or institutions accused of abuse are notified and can question the complainant. Legal representation is permitted for both complainant and respondent. Complainants are required to make a statement to an inquiry officer. Inquiry officers then carry out preliminary investigations. The statement is sent to respondents, and a hearing date set. The Investigation Committee can make specific findings. It can name institutions, persons who committed abuse, and those who were responsible for managing or supervising such institutions.The structure of the Laffoy Commission is interesting in that victims/survivors have a choice of how they wish their story to be told and recorded. If there is a desire to name perpetrators then, the claims are tested and there is procedural fairness to those identified. Alternatively, there is the opportunity for people to tell their story without the possibility of cross examination, if they are also satisfied with the specific details of their story remaining outside the public realm.

The Compensation Advisory Committee (The Ryan Committee)

The task of the Ryan Committee was to devise a scheme by which redress payments could be made to people who had suffered different categories of abuse and injury within the Irish residential schools. The Committee acknowledged that financial redress would need to co-exist with a comprehensive package of services and other forms of assistance that has included the establishment of a National Counselling Service and National Office for Victims of Abuse.

The Committee recognised that it needed to develop a scheme which had ‘predictability, sensitivity and flexibility’ and also provided payments ‘which are, and are seen to be, comparable with amounts awarded in respect of other types of serious injury’.[15] The Committee set itself the task of finding a redress system that would meet the requirements of:

In the Australian context, the Ryan Committee’s work shows how a just compensation scheme can be developed where there is the political will to do so – rather than the situation in Australia where the Government has essentially hidden behind a farago of excuses to deny compensation.[17]

When discussing the nature of compensation, the Committee noted that there is ‘no ‘right’ or ‘just’ level of compensation or redress for child abuse, and the effects of child abuse cannot be measured by the kind of mathematical formula used, for example, to measure deafness. Both the general level of compensation, and the amount payable in any individual case, are matters of judgment, taking all relevant considerations into account’.[18] Such an approach contrasts strikingly with the Australian Government’s trivialisation of the issue through arguments such that no amount of compensation could make up for the mistakes of the past, nor should contemporary generations be held responsible for the actions of the past, including laws which were later discredited.[19]

The Committee was not primarily concerned with what has been called ‘equivalent’ compensation designed to put an injured person back to where they would have been without the injury, or equivalence to loss of earnings. Rather the concern of the Committee was with compensation as ‘a form of solace designed to provide some attempt to put right the wrong which he or she has suffered’.[20]

The Ryan Committee noted that financial compensation can provide two ‘vital functions’. The award of ‘appropriate financial redress can at least provide some tangible recognition of the seriousness of the hurt and injury which has been caused’.[21] Redress can also ‘allow many of those victims to pass the remainder of their years with a degree of physical and mental comfort which would otherwise not be readily attainable’.[22]

The Committee considered four areas in relation to abuse and injury: the severity of the abuse itself; the extent of the physical and mental injury suffered by the applicant; the psycho-social sequelae of the injury; and, the loss of opportunity resulting from the abuse and its effects.[23]

The Committee went on to consider five options for setting legislative guidelines for compensation.

The Ryan Committee decided on an approach which uses a scale to determine the weighting given in each particular case of abuse. The overall score determines the broad level of financial compensation. The weighting scale provides for the following categories: severity of the abuse, the extent of the physical and mental injury suffered by the applicant, the psycho-social sequelae of the injury and the loss of opportunity resulting from the abuse and its effects.[25]

The Committee provided a list of non-exhaustive factors to be considered in weighing severity of abuse, under the headings of sexual abuse, physical abuse, emotional abuse and neglect.[26] The Committee also provided a list of non-exhaustive factors to be considered in evaluating severity of injury under headings of physical or psychiatric illness, psycho-social sequelae, and loss of opportunity.[27]

The Ryan Committee recommended that the proposed Redress Board may go outside the scheme where this is necessary to make a fair and reasonable award, including, for example, aggravated damages, or amounts to cover reasonable costs of medical treatment.[28]

Residential Institutions Redress Board

The Government acted quickly on the Ryan Committee’s report and passed the Residential Institutions Redress Act 2002 which established the Residential Institutions Redress Board. The Redress Board was established to make fair and reasonable awards to those abused as children while resident in industrial schools, reformatories and other institutions subject to state regulation or inspection. The Board is wholly independent, and is chaired by His Honour Judge Seán O’ Leary. The legislation establishing the Board in the main followed the recommendations of the Ryan Committee.

The Board began operations in December 2002 and had received 773 applications by March 2003. Thirty of these applications were rejected as outside its terms of reference. The Board will continue to accept applications until December 2005 – under Section 8(1) of the Act, applications to the Board must be made within three years of its establishment.

Under section 5 the Board is empowered to make awards, with hearings that ‘are conducted as informally as is possible’. Under Section 10(4) the applicant is required to provide evidence of their identity and residence at the institution; the abuse received and the injury received as a result of the abuse. Evidence can be presented orally or by written statement (Section 10(5)), although the Board may request oral evidence (Section 10(8)).

The Board is not concerned with making findings of fault or negligence. Section 5(3) states that the Board ‘shall not address any issue of fault or negligence ... and shall not make a finding of fact relating to fault or negligence’. Section 7(4) of the Act provides that ‘an applicant shall not ... be required to produce ... any evidence of negligence on the part of a person referred to in the application, by the employer of that person or a public body’. Similarly, ‘the making of an award to an applicant, notwithstanding a conflict between the evidence given by the applicant and a relevant person, shall not constitute a finding of fact to fault or negligence on the part of the relevant person’ (Section 11(12)). The fact that applicants do not have to prove fault separates the compensation system provided by the Board from litigation through the courts where proving negligence and fault will be a key to success and failure.

The weighting scale and amounts payable for weightings are set out in the regulations to the Act.

SCHEDULE 1

Table of the weighting scale for evaluation of severity of abuse and consequential injury.

Constitutive elements of redress
Severity of abuse
Severity of injury resulting from abuse
Medically verified physical/psychiatric illness
Psycho-social sequelae
Loss of opportunity
Weighting
1 – 25
1 – 30
1 – 30
1 - 15

SCHEDULE 2

Amounts payable for weightings allocated.

Redress Band
Total weighting for severity of abuse and injury/ effects of abuse
Award payable by way of redress
V
70 or more
€200,000 - €300,000[29]
IV
55 – 69
€150,000 - €200,000
III
40 – 54
€100,000 - €150,000
II
25 – 39
€50,000 - €100,000
I
Less than 25
Up to €50,000

Under Section 10(10), interim awards up to €10,000 are payable having regard to the age and health of applicant. Award payments also can be made in instalments (Section 13(8)(a)).

Where an applicant names a person as an alleged abuser (referred to as a ‘relevant person’ in the Act), then there is a right of cross examination. Under Section 11(8) the Board will inform relevant persons named in an application, allow them to give oral evidence, and cross examine (in person or through a legal or other representative) the applicant. The applicant may (in person or through a legal or other representative) cross examine the relevant person or person giving evidence on behalf of the relevant person. Any statements or admissions made before the Board (or Review Committee) shall not be admissible as evidence in any criminal or civil proceedings (Section 19).

The Act establishes a right of review. A Review Committee can review decisions of the Board relating to whether compensation should be payable and the amount of compensation.

Applicants can only use one legal forum. Under Section 13(6) where an applicant accepts an award they shall agree in writing to waive any right of action and to discontinue any other proceedings against the public body or person arising out of the application before the Board.

Conclusion

The Irish response has not been without controversy, particularly over the relatively small contribution the church is making towards compensation. The religious orders agreed to contribute €128 million and have been indemnified against any greater liability. Yet it is acknowledged that the total bill for compensation will be somewhere between €500 million and €2 billion (Leahy 2003). The limited financial contribution of the church also assists in diverting attention away from their role as perpetrators in the abuse. In addition many of the properties offered by religious orders to the state to pay for child abuse settlements are worthless according to the Irish Valuation Office. The Irish Labour Party has been particularly critical of the limited financial contribution of the churches.[30]

There are a number of different avenues in the response to institutional child abuse in Ireland. Many claims for compensation are being made before the Redress Board. In addition the Laffoy Commission provides the opportunity for the survivors of institutional child abuse to have their stories heard and recorded in a sympathetic environment. Their specific allegations will be investigated if they so choose.

Separate to the Redress Board and the Laffoy Commission, litigation before the courts is also still proceeding. Recently the Dublin archdiocese agreed to a settlement in a child sexual abuse case before the High Court which was believed to be between €300,000 and €400,000.[31] Litigation has been assisted by the amendments to the statute of limitations and a greater willingness by the courts to accept vicarious liability on the part of institutions.[32] In August 2003 the High Court made a ruling in a case which involved an abused person suing three parties: the religious order who ran the institution, as well as the Minister for Education and the South Eastern Health Board. The Court found that the religious order was solely liable for the abuse.[33]

I am not suggesting that the Irish response could be simply adopted to the situation in Australia. The historical circumstances were different, and there is not the same component of genocide and racism which must be dealt with in relation to the removal of Indigenous people in Australia. The compensation with which the Redress Board deals is essentially centred on child abuse in its various manifestations. This will be central to any compensation for the Stolen Generations in Australia. However, the Australian compensation regime will also need to consider heads of damage relating to racial discrimination, loss of cultural rights and fulfilment, and loss of native title rights.

Nor does the Irish solution provide more broadly for the concept of reparations as it has been conceived of in Australia. Rather it concentrates on two (perhaps fundamental) aspects of reparations: financial compensation and the avenue for truth-telling and the recording of past injustices. Perhaps also the Irish solution is overly complex through splitting compensation (the Redress Board) off from the establishment of the historical record (Laffoy Commission). However, the Irish example does provide evidence of what a (conservative) government can do where there is commitment to address a widespread and institutionalised wrong.

Chris Cunneen is Associate Professor and Director of the Institute of Criminology, Sydney Law School. Research assistance for this paper was provided by Julia Grix. Dr Eoin O’Sullivan, Trinity College, Dublin provided helpful comments on an earlier draft.


[1] Which is not to say that British colonial policies in Ireland were not devastating. Certainly some would argue that the Irish famine was an example of colonial genocide.

[2] O’Connor, P. (2000) ‘Squaring the Circle: How Canada is Dealing With the Legacy of its Indian Residential Schools Experiments’, 6(1) AJHR 188.

[3] Cunneen, C. and Libesman, T. (2000) ‘An Apology for Expressing Regret?’ Meanjin, Vol 59, No 1, pp145-153.

[4] Compensation Advisory Committee (2002) Towards Redress and Recovery. Report to the Minister for Education and Science, Dublin, January 2002. (Also known as the Ryan Report. Full text: http:/www.rirb.ie/ryanreport.asp).

[5] Quoted in O’Sullivan E. and Raftery, M. (2001) Suffer the Little Children: The Inside Story of Ireland’s Industrial Schools, New Island Books, Dublin, (Revised edition), 330

[6] Cunneen, C. and Grix. J. (2003) ‘The Limitations of Litigation in Stolen Generations Cases’ (unpublished).

[7] Above n 4 , 51-52

[8] Above n 4 ,51-52)

[9] Above n 4 ,52

[10] quoted in Above n 4 ,52

[11] Above n 5

[12] Above n 5, 4-5

[13] Commission to Inquire into Child Abuse (2001a) Interim Report, May 2001, Commission to Inquire into Child Abuse, Dublin, p1; Commission to Inquire into Child Abuse (2001b) Second Interim Report, November 2001, Commission to Inquire into Child Abuse, Dublin.

[14] Above n 5, 390

[15] Above n 4, vi.

[16] Above n 4, 68.

[17] Cunneen, C. (1999) ‘Criminology, Genocide and the Forced Removal of Indigenous Children from Their Families’ Australian and New Zealand Journal of Criminology, Vol 32, No 2, pp 134-136

[18] Above n 4, 37

[19] Above n 17, 135

[20] Above n 4, 38

[21] Above n 4, 66

[22] Above n 4, 66

[23] Above n 4, vi

[24] Above n 4, 58-64

[25] Above n 4, vii

[26] Above n 4, 72-73

[27] Above n 4, 73-74

[28] Above n 4, ix

[29] €1 = AUD$1.75 (approx).

[30] The Sunday Business Post online, 19 July 2003, www.sbpost.ie

[31] McGarry, P. and Brennock, M. (2003) ‘Cost of Awards to Abuse Victims May Go Far Higher’, The Irish Times, 29 January 2003, p.1

[32] Above n 4, 54-56.

[33] See Leahy, P. (2003) ‘Taxpayer Now Another Victim of the Church’ Sunday Business Post. 3 August 2003. The liability of the Churches for the abuse of children in their care, even when placed there by the State, has also been established in Canada (Bazley v. Curry, 1999 CanLII 692 (SCC); [1999] 2 S.C.R. 534). These cases have important implications for Indigenous claims in Australia where churches and missionary societies operated institutions in which Indigenous children were placed, particularly given the outcome in Cubillo and Gunner.


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