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Unfinished Business: The Australian Stolen Generations

Author: Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons) (ANU)
Senior Lecturer, Murdoch University School of Law
Issue: Volume 7, Number 4 (December 2000)

Contents

Unfinished Business: The Australian Stolen Generations

    Introduction

  1. On May 28 2000, up to 250 thousand people walked across the Sydney Harbour Bridge in support of reconciliation between Aboriginal and non-Aboriginal Australians. Politicians from all major parties were represented but the Prime Minister of Australia, the Honourable Mr John Howard refused to participate in the reconciliation march. To some, the Prime Minister's absence from the march was another 'defiant' act or retrograde stance towards the reconciliation process. Criticism of the Prime Minister has been most pronounced in relation to his refusal to initiate and support a motion of apology from the Commonwealth Parliament to the Australian 'Stolen Generations' and his support of a Government document, which questioned the existence of the 'Stolen Generations'.[1] Pursuant to government policies and laws that dominated the first six decades of the 20th century, there was a systematic removal of Aboriginal children from their families: these children, now adults, make up the so-called 'Stolen Generations.'

  2. The focus of this article is on the Australian 'Stolen Generations'. Particularly, this article will examine the demands for reparations[2] for the 'Stolen Generations', the findings and recommendations of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families ('the National Inquiry') and the responses of the Commonwealth Government to the demands for reparations and recommendations of the National Inquiry. Particular attention will be given to the demands for monetary compensation, apology and guarantee of non-repetition. This article commences though with some background information on the history and effects of the removal policies and practices.

    Background

  3. The practice of removing Aboriginal children from their families and culture can be described under the headings: segregation,[3] biological absorption[4] and assimilation.[5] Even though there are differences between the categories the aim was basically the same - to remove 'half-caste' children from their families so that they could be taught the ways of white Australia.[6] The ultimate goal was to absorb the 'half-castes' into the white community with the hope that 'full-blooded' Aboriginal people would 'die out as quickly as possible'.[7] This has lead to some arguing that what was practiced amounted to genocide.[8]

  4. There was a perception that the 'pure' Aboriginal population was declining and that in time there would be no 'pure' Aboriginal people left. Aboriginal people of mixed descent were, however, through most of this period, seen as requiring assimilation into the non-Aboriginal community. It was thought that the earlier a child was removed from Aboriginal society, and the more completely the child was isolated from it, the more likely successful assimilation became.[9]

  5. Mr. A.O. Neville, the second Chief Protector of Aborigines in Western Australia, clearly expounded the aim behind the practice of removing Aboriginal children from their families. In a speech to the initial conference of Commonwealth and State Aboriginal Authorities in April 1937 at Parliament House, Neville stated:
    ... 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 ever were any Aborigines in Australia...
    ... To achieve this end, however, we must have charge of the children at the age of six years; it is useless to wait until they are twelve or thirteen years of age. In Western Australia we have power under the Act to take any child from its mother at any stage of its life, no matter whether the mother be legally married or not (emphasis added).[10]

  6. All States and the Northern Territory, with the exception of Tasmania, had passed legislation which allowed the removal of Aboriginal children 'by the order of a public servant alone'. In Tasmania, Aboriginal children were removed under general child welfare legislation.[11] All States and Territories, including Tasmania, contained legislation aimed at the management and control of Aboriginal people, especially so in the area of Aboriginal child welfare. Typical of such legislation, was the Aborigines Act 1905 (WA).

  7. Section 12 of the Aborigines Act 1905 (WA) empowered the Chief Protector to order that any Aborigine be moved from a reserve or district to another reserve or district and be kept there. Many summary offences were created for contravention of the various provisions of the Act, and extensive regulation-making powers were conferred on the Governor.

  8. The second reading speech of the Aborigines Bill illuminated the intentions and attitudes underlying the prospective Act. It was stated that 'half-castes if bred with white people, become in some respects almost as expert as the whites' hence requiring particular segregation from Aboriginal society.[12]

  9. In 1909 police, protectors and Justices of the Peace were given the power to remove any half-caste child to a mission without the authorisation of the Chief Protector.[13] The guardianship powers created by the 1905 Act were extended by the 1911 amendments so that the Chief Protector had the power of removal 'to the exclusion of the rights of the mother of an illegitimate or half-caste child'.[14]

  10. There have been many reports documenting the harms suffered by those children removed from their families.[15] Professor Beverley[16] has stated that many Aboriginal people who were removed to missions and other institutional and foster care environments have displayed symptoms and behaviour similar to holocaust victims.[17]

  11. In the case of In the Marriage of B and R[18] the Full Court of the Family Court of Australia recognised the devastating effects of placing Aboriginal children in non-Aboriginal environments. Their Honours, Fogarty, Kay and O'Ryan, JJ, stated that it is now beyond controversy that there is a:
    ... devastating long term effect on thousands of Aboriginal children arising from their removal from their Aboriginal families and their subsequent upbringing within a white environment.[19]
    Further, their Honours remarked that the systematic removal policy:
    of removing Aboriginal children and especially part Aboriginal children, usually of tender years, from their parents and placing them in institutions or in other white care...left many Aboriginals in childhood, adolescence and adulthood adrift in a white society which society treated as inferior and in which they lost fundamental connections with family and culture.[20]

  12. Later, their Honours, in discussing the harmful effects of placing Aboriginal children in non-Aboriginal environments, applied to such conduct Deane and Gaudron JJ's 'unutterable shame' passage from Mabo v Queensland (No.2).[21] Their Honours stated that:
    In Mabo v Queensland (No. 2) (1992) 175 CLR 1; 107 ALR 1 Deane and Gaudron JJ, spoke of the dispossession of Aboriginals from their land 'as a conflagration of oppression and conflict which was, over the (19th) Century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame' [at CLR 104]; and that it represented 'the darkest aspect of the history of this nation' [at CLR 109]. There can, in our view, be little doubt that on a more directly personal level the policy of Colonial, and later State, administrations in Australia to systematically remove Aboriginal children from their parents and place them in institutions or other care and the consequences of that can be described in equally strong terms.[22]

    Demands for reparations

    Introduction

  13. The public and political debate concerning the removal of Aboriginal children from their families intensified after the tabling[23] of the National Inquiry Report. However, neither the release of the National Inquiry Report nor the commencement in 1995 of the National Inquiry[24] should be considered as the starting point in the discussion of and push for reparation for the 'Stolen Generations'. Aboriginal individuals and organisations have been active since at least the late to mid 1980's in advocating for a national inquiry into removal policies and practices.[25]

  14. 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.[26] 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.[27]

  15. Other Aboriginal organisations such as, the Aboriginal Legal Service of Western Australia (Inc.) ('ALSWA') and Link-Up (NSW) were also vocal in their demands for a national inquiry.[28] In association with the push for a national inquiry into removal procedures and policies, the ALSWA commenced a project to interview Aboriginal people who had been removed from their families. The ALSWA interviewed over 600 people before it launched its first report in June 1995, Telling Our Story.[29] By the time the ALSWA completed its second report in May 1996, After the Removal, it had collected over 700 stories.[30] Both reports were submitted to the National Inquiry.

  16. Others took the litigation pathway; most notably a female plaintiff from Sydney named Joy Williams[31] and a number of Aboriginal people from the Northern Territory.[32] 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, then QC, addressed the conference. His paper, titled A Paper on Legal Options for Aborigines "Taken" from their Families and their People[33] and The Going Home Conference lead to the establishment of a "Stolen Generations Litigation Unit" within the Northern Australian Aboriginal Legal Service.[34]

  17. On 2 August 1995, the Commonwealth of Australia's Attorney-General, the Honourable Michael Lavarch commissioned the Australian Human Rights and Equal Opportunity Commission to conduct the National Inquiry. As previously noted the National Inquiry Report was tabled in Federal Parliament on 25 May 1997. It documents widespread and systematic racial discrimination and gross ill-treatment of Aboriginal Australians, as law-makers and administrators sought to resolve 'the Aboriginal problem'.

  18. 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.[35] 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.[36]

  19. Even though there has been considerable political and community advocacy for reparations prior to the establishment of the National Inquiry, there is little doubt that the inquiry and its report are major developments in "the awakening of non-Indigenous Australians to... the deliberate and systematic removal of Indigenous children from their families and communities."[37]

    National Inquiry Report

    The Findings

  20. 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:

    1. deprivation of liberty by detaining children and confining them in institutions;[38]
    2. abolition of parental rights by taking children and by making children wards of the Chief Protector or Aborigines Protection Board or by assuming custody and control;[39]
    3. abuses of power in the removal process;[40] and
    4. breach of guardianship obligations on the part of Protectors, Protection Boards and other "carers".[41]

  21. The legally significant consequences of forcible removal were that Aborigines were denied the common law rights which other Australians enjoyed,[42] suffered violations of their human rights,[43] and were often subjected to other forms of victimisation and discrimination.[44] The practice of forcible removal continued until the 1970s.[45]

  22. 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.[46] 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[47] 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'.[48] 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'.[49] Under international law, these violations are attributable to the Commonwealth.[50] The National Inquiry Report notes further that such breaches under international law amounted to "gross violation of human rights".[51]

    Recommendations

  23. 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.

    (a) Acknowledgment and apology

  24. 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.[52]

  25. 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.'[53] The Australian Government has been very reluctant to make an official apology.[54]

    (b) Guarantees against repetition

  26. 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.[55] Recommendation 10 argues for the Commonwealth Government to 'legislate to implement the Genocide Convention' into domestic law.[56]

    (c) Restitution

  27. 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",[57] the fostering of Aboriginal language, culture and history[58] 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.'[59] Reparation of a restitutive nature can also be found in the recommendation dealing with delivery of services to those affected.[60]

    (d) Rehabilitation

  28. The National Inquiry Report agrees that reparations includes 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,[61] parenting and family support programmes.[62] Rehabilitative measures are essential to addressing the needs of those affected by forcible removal.

    (e) Monetary compensation

  29. The awarding of monetary compensation for those removed and/or those affected by the removals received opposition from the Commonwealth Government.[63] 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."[64] 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.[65] 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."[[66]] 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...[67]

  30. 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.[68]

  31. 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.[69]
    Recognising the difficulties with civil actions for compensation, the National Inquiry Report recommends the establishment of a "National Compensation Fund",[70] with the fund being administered by a "National Compensation Fund Board"[71] according to prescribed procedures.[72] It recommends that a prescribed minimum lump sum be paid to those forcefully removed from the "National Compensation Fund"[73] 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.[74]

  32. 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."[75]

    Responses

    Introduction

  33. The Commonwealth Government has lagged behind the State and Territory Governments in providing a formal apology to Aboriginal people.[76] 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.[77] The speech acknowledges:
    ...that the mistreatment of many indigenous Australians over a significant period represents the most blemished chapter in our international history;[78]
    Then the motion continued to express:
    its deep and sincere regret 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...[79]

  34. There has been no acknowledgment that the forcible removal experiment constituted systematic racial discrimination and possibly genocide, or in any case amounted to violations of human rights. Whilst the Commonwealth recognises the need to 'acknowledge the wrongs of the past', the response does not express or appear to accept these 'wrongs' as human rights violations.

  35. The Commonwealth 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':


  36. In certain aspects, the response by the Commonwealth Government is consistent with its international reparations obligation. Specifically, the Commonwealth recognises its obligation to 'acknowledge the wrongs of the past and [to] address the problems that now exist as a result of those wrongs'.[81] It seeks to discharge these obligations through a range of rehabilitative and restitutionary measures. Recognising the enduring 'emotional and psychological damage'[82] inflicted upon both parent and child by the separation policy, the Commonwealth initiative seeks to provide rehabilitation by offering funding for additional professional counselling services and an expansion of the existing network of regional counselling centres.[83] Rehabilitation of those affected by the forcible removal will also be facilitated by the establishment of an oral history project.[84] The project will encourage the reparative process by allowing the victims to tell their story, the simple act of which has been recognised as contributing to the healing process. Additionally, the oral history project advances the 'satisfaction' obligation of verification and disclosure of the facts - it will be a permanent record of this part of Australian history and it will pay tribute to the victims by acknowledging their pain and removing any sense of guilt.

  37. The obligation to make proper restitution within the context of forcible removal and within the context of the nature of the breach necessarily involves as one of its components the reunion of removed children with their parents and families. This is identified by the National Inquiry Report as being a matter of 'most significant and urgent need'.[85] The Commonwealth addresses this obligation by offering practical assistance for family reunion - the indexing and preservation of indigenous family records,[86] and increased funding for nationwide "link-up" services.[87] Certain matters of social justice[88] arising as a consequence of the removal policy and cultural restitution are also addressed.[89]

  38. Even though the Commonwealth Government has made some positive responses it has failed to discharge its international legal human rights obligation in several key areas of Commonwealth responsibility. The funding for rehabilitation and restitution constitutes the bulk of the response, leaving many other components of reparation unresolved.[90] Three areas are readily identified: the failure to pay compensation; lack of an official apology and acknowledgment of human rights violations; and the failure to guarantee non-repetition.

    Monetary Compensation

  39. Pritchard writes:
    The provision of monetary compensation is largely a symbolic act because the loss, grief and trauma experienced by victims of gross human rights violations can never be adequately compensated...Nonetheless, for many victims compensation is of major significance. From the victims' perspective, it has been suggested, monetary compensation "concretizes ...the confirmation of responsibility, wrongfulness, s/he is not guilty, and somebody cares about it." Thus, "[i]t's not the money but what the money signifies - vindication." ...Importantly, as well, for many victims, monetary support can make a practical difference, can make the lives of communities and individuals easier.[91]
    The obligation to pay compensation for breach of international human rights is established more firmly than any other component of reparation in international law.[92] Consistent with its position prior to the tabling of the National Inquiry Report, the Commonwealth Government has no provision in its response for the payment of monetary compensation to victims of the human rights violations that occurred through the practice of forcible removal. In its submission to the National Inquiry, the Commonwealth cited reasons precluding the ex-gratia payment of compensation.[93] In its response, the Commonwealth rejects the National Inquiry Report's recommendation for a National Compensation Fund, merely stating that the 'Commonwealth believes there is no practical or appropriate way to address [the issue of compensation]'.[94]

  40. International law clearly and explicitly imposes an obligation to pay compensation as a measure of reparation for any acts, which constitute a violation of human rights. The Commonwealth, being responsible for making reparations for breaches, which occurred through forcible removal, is therefore under an obligation to pay compensation. Compensation is especially significant and appropriate because measures of restitution cannot completely and strictly restore[95] the status of those affected by the removal.[96] However, compensation is something that the Commonwealth has ruled out. Independently of the practicability or otherwise of compensation,[97] the response must be considered to be prima facie inconsistent with Australia's international legal obligations. That the victims may have a limited right to seek compensation from the domestic judicial system is no answer to Australia's failure to provide compensation pursuant to its international law obligations.[98]

    Acknowledgment and apology

  41. As previously mentioned, the Commonwealth Government has been very reluctant to make an apology to the Australian Aboriginal community for the past policy and practice of 'systematically' removing Aboriginal children from their families. The parliamentary statement made by the Prime Minister fails to specifically mention those removed or utter the word 'sorry'.[99] The word 'regret' is used in a general context for past wrongs and suffering caused by government policies and practices. The statement falls short of the requirement in recommendation 5a of the National Inquiry Report. Furthermore, the Prime Minister's parliamentary statement or any other response from the Commonwealth Government fails to acknowledge the facts of forcible removal as constituting systematic racial discrimination and possibly genocide, or in any case amounting to violations of human rights, the very occurrence of which imposes an obligation upon the Commonwealth to make the reparative response. In other words, whilst the Commonwealth Government recognises the need to 'acknowledge the wrongs of the past',[100] and whilst it provides an oral history project to record and preserve this history, the response does not express or appear to accept these 'wrongs' as human rights violations. Nowhere in the response is the term 'human rights' actually used. Further, as previously mentioned, the Prime Minister has constantly rejected a formal apology by the Commonwealth Parliament and/or Commonwealth Government.

  42. The lack of a formal apology by the Commonwealth Parliament and/or Government is a serious hindrance to the reconciliation process. The importance of an apology should not be underestimated. Minow writes:
    By retelling the wrong and seeking acceptance, the apologiser assumes a position of vulnerability before not only the victims but also the larger community of literal or figurative witnesses. ...Equally important is the adoption of a stance that grants power to the victims, power to accept, refuse, or ignore the apology.[101]
    The Law Commission of Canada specifies the following as necessary elements of a meaningful apology:


    For reconciliation to progress, an apology acceptable to the 'Stolen Generations' is necessary. An apology is necessary for the restoration of dignity for the 'Stolen Generations' and to aid their healing process.[103]

    Guarantee non-repetition

  43. Although the formal policies of removal were abolished in the 1970s, the question remains whether the present state systems of child welfare legislations, by their operation and practice, continue to result in the same human rights breaches as the previous practice of forcible removal. The National Inquiry Report noted that although present regimes recognise the Aboriginal Child Placement Principle,[104] there continues to be systemic inequalities through the application of non- Aboriginal standards and inequitable bureaucratic procedures. Aboriginal children continue to be severely over-represented within State and Territory welfare systems which continue to indirectly discriminate against Aboriginal children and families through the application of Anglo-Australian perspectives and values which reject as beneficial Aboriginal values, culture and child-rearing practices.[105] The Commonwealth Government must be vigilant to ensure that current child welfare practices do not perpetuate past discriminatory practices. In its response, the Commonwealth Government ignored the National Inquiry Report's recommendation for national standards and it resolved to leave the matter to the States.

  44. The final major concern is the present intention of Commonwealth Government not to implement the Genocide Convention into domestic legislation. This may be contrary to its obligation to guarantee non-repetition, depending largely upon whether the forcible removals amounted to genocide. The Government's reference to the High Court case of Kruger and Bray[106] is curious. It appears that the Commonwealth understands Kruger and Bray to somehow determine the genocide question and therefore absolve the Commonwealth Government of any responsibility in respect of the Genocide Convention.[107]

  45. However, the High Court did not decide whether the forcible removal amounted to genocide, but only whether a particular Northern Territory ordinance authorised genocide.[108] As the High Court stated, the general issue of genocide was not one to be resolved in that case and, given this uncertainty, the government's decision not to implement the Genocide Convention remains inconsistent with Australia's obligations at international law. Furthermore, the decision that the relevant Northern Territory ordinance did not authorise genocide and the subsequent uncertainty as to the substantive matter leaves an extremely significant and relevant question open: if genocide did in fact occur, as the National Inquiry Report suggests it did, pursuant to a law which did not authorise it, this must surely be an overwhelming ground for the immediate implementation of the Genocide Convention.[109]

    Conclusion

  46. Australian history includes the Aboriginal child removal experiment; that is the systematic removal of Aboriginal children from their families. However it is not only history; it has a contemporary dimension - those members of the 'Stolen Generations' still alive. The various issues surrounding the Stolen Generations will not go away. They must be addressed if the Australian community is to achieve true reconciliation between its Aboriginal and non-Aboriginal citizens. This requires community impetus and support and, national leadership. Unfortunately we have seen very little of that from the current Commonwealth Government and particularly the current Prime Minister of Australia.

    Postscript

  47. I would like to note two events that have occurred since the writing of this article. First, on the 30 November 2000, the Legal and Constitutional Reference Committee ('the Committee') of the Commonwealth Parliamentary Senate Government released its report into its inquiry into the Commonwealth Government's Implementation of Recommendations made in the National Inquiry Report.[110] A detail commentary and analysis of the Senate Report must await another time. Here I only mention that the Committee found that the Commonwealth Government's implementation of the recommendation of the National Inquiry Report had been lacking in many areas, prompting the Senate to make the following recommendations:

  48. The second event I note is that on 3 December 2000, over 200,000 people in Melbourne and 40,000-50,000 people in Australia marched for reconciliation. At the very least, this shows for a not insignificant section of the Australian community, the stolen generations issue and the reconciliation process, remain very important.

Notes

[1]For example, see '$63m for stolen generation but blacks slam refusal to apologise', The Australian, 17 December 1997; and 'Bringing home the delusions: The Government ignores the truth of the stolen generations', The Australian, 4 April 2000.

[2]Reparation includes all types of redress - acknowledgement of truth and apology , guarantee of non-repetition of violation, restitution, compensation and rehabilitation. Refer to van Boven, T., (Special Rapporteur of the United Nations), Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final Report, UN Doc. E/CN. 4/Sub.2/1993/8, 2 July 1993, at 7; and van Boven, T., 1996: Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117, U.N. Doc. E/CN.4/Sub.2/1996/17, 24 May 1996.

[3]Segregation, the dominant policy in the early 1900s, sought to separate the Aboriginal population from the non-Aboriginal population. This was often accomplished by placing Aboriginal people in reserves or missions. However, the 'half-caste' children, the fairer skin children, were considered 'saveable' and were removed from their Aboriginal families and absorbed into non-Aboriginal culture.

[4]The policy of biological absorption, developed during the 1930s, sought the 'complete mergence of the Aboriginal mixed raced population with white Australia'. Haebich writes: 'Strict state regulations of Aboriginal reproduction to produce progeny with progressively less Aboriginal features, together with social engineering programs involving the wholesale removal of mixed race children, would ensure the breeding out of Aboriginal physical characteristics and cultural practices.' Haebich, A. Submission to the Human Rights and Equal Opportunity Commission Inquiry into the Removal of Aboriginal Children, Murdoch University, unpublished, 1996, at 4.

[5]In contrast to biological absorption, the policy of assimilation sought a social rather than a racial explanation for indigenous disadvantage. The focus shifted from biological racial explanations to social factors.

[6]Although the focus was on the 'light skinned' so-called 'half-castes', Aboriginal children of 'darker complexion' were also removed.

[7]Haebich, A., For Their Own Good, Perth, University of Western Australia Press, 1988, at 150.

[8]See below for comment on the genocide issue.

[9]Aboriginal Legal Service of Western Australia (Inc), Telling Our Story: A Report by the ALSWA (Inc) on the removal of Aboriginal children from their families in Western Australia, Perth, Aboriginal Legal Service of Western Australia (Inc), 1995.

[10]Neville, A.O., Speech at the initial conference of Commonwealth and State Aboriginal Authorities, Canberra, Parliament House, April 1937.

[11]Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Straight Islander Children, (herein referred to as 'the National Inquiry Report'), Canberra, AGPS, 1997, at. 253-254. A summary of the relevant 'removal' legislation for all States and Territories is contained at 600-648.

[12]Western Australia Parliament, Parliamentary Debates, (Hansard), Vol. 28, 1905, at 432.

[13]Western Australia Government, Western Australia Government Gazette, Perth, Government Printer, 19 February, 1909, at 588.

[14]Aboriginal Act Amendment Act 1911 (WA), s. 3.

[15]Above n 2, 177, Johnston E., Royal Commission into Aboriginal Deaths in Custody: National Report, Vol 2, Canberra, AGPS, 1991, at 111-123, 131-138, Human Rights and Equal Opportunity Commission, Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness, Canberra, AGPS, 1993, at 692-704, and Buti T., After the Removal: A Submission by the Aboriginal Legal Service of Western Australia (Inc) to the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, Perth, Aboriginal Legal Service of Western Australia(Inc), 1996, at 57-65.

[16]At the time, Head of the Department of Psychiatry, University of Queensland and also co-author on report of Aboriginal Mental Health. Refer to Swan P., and Raphael B., Ways Forward: National Consultancy Report on Aboriginal and Torres Strait Islander Mental Health, Parts 1 and 2, Canberra, AGPS, 1995.

[17]Speaking at the State Mental Health Conference, Perth, 20 November, 1995.

[18](1995) 19 Fam LR 594

[19]Ibid, 602

[20]Ibid.

[21](1992) 175 CLR 1.

[22]Above n 18 at 602.

[23]In the Commonwealth Parliament on 25 May, 1997.

[24]The National Inquiry was launched on 10 August 1995, in Adelaide. The National Inquiry terms of reference were originally announced on 11 May 1995 by the then Attorney-General of Australia, Michael Lavarch. However, those terms of reference were revoked and replaced with similar but wider terms of reference, including the examination of compensation principles on 2 August 1995. The terms of reference of the National Inquiry were:


[25]Butler R, 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.

[26]D'Souza, N., 'The Stolen Generation: From Removal to Reconciliation', (1998) 21(1) University of New South Wales Law Journal, 204 at 205.

[27]Ibid.

[28]Ibid.

[29]ALSWA, Telling Our Story: A Report by the ALSWA (Inc) on the removal of Aboriginal children from their families in Western Australia, Perth, ALSWA (Inc), 1995.

[30]Via proof of evidence and/or questionnaire-statement from over 700 people.

[31]Williams v Minister Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 (extension of time application) and Williams v Minister Aboriginal Land Rights Act 1983[1999] NSWLR 843.

[32]Kruger v Commonwealth; Bray v Commonwealth 146 ALR 126; and Cubillio v Commonwealth [1999] 89 FCR 528 (strike out application by the Commonwealth).

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

[34]Williams was unsuccessful as have been the plaintiffs in Kruger and Bray. At the time of writing a decision has not been handed down on the substantive trial in Cubillio .

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

[36]Sorry Days took place across Australia on 26 May 1998, 1999 and 2000.

[37]Chisholm, R. (Judge Family Court of Australia), 'Placement of Indigenous Children: Changing the Law', (1998) 21(1) University of New South Wales Law Journal 208 at 208.

[38]Above n 11, at 253.

[39]Id, at 255-256.

[40]Id, at 256-257.

[41]Id, at 259 - 260.

[42]Id, at 277.

[43]Id, at 277 - 278.

[44]Id, at 278.

[45]Id, at 250.

[46]Id, at 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.

[47]Above n 11, at 250, 277.

[48]Id, at 277; the discriminatory operation of the legislation preceded the separate legislation.

[49]Id, at 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.) cited in Buti, T, above n 15, at 12; cf Kruger and Bray cases, above n 32.

[50]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; Charlesworth, H., "Individual Complaints: An Overview and Admissibility Requirements" in Pritchard, S, (ed) Indigenous Peoples, the United Nations and Human Rights (Sydney: The Federation Press, 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.

[51]Above n 11, at 269, 282; and American Law Institute, above n 46, Section 702, Comment m.

[52]Above n 11, recommendations 5 and 6 at 284-292.

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

[54]Refer to Sydney Morning Herald, 9 January 1998; cf Canadian Government's apology for the forced removal of Canadian Indigenous children from their families. Also see below.

[55]Above n 11, recommendations 8 and 9 at 295.

[56]Id., at 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 25 (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).

[57]Above n 1, recommendation 11 at 297.

[58]Id, recommendation 12 at 300.

[59]Id, recommendation 13 at 301.

[60]Id., Part 5.

[61]Id., recommendations 33 - 35 at 396-397; recommendation 37 at 401.

[62]Id, recommendation 36 at 399.

[63]Commonwealth Government, (Submissions to) National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, 1996, at 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.

[64]Above, n11 at 306.

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

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

[67]Above n 65 at 25.

[68]Id., at 303-307.

[69]Id., at 305.

[70]Id., recommendation 16 at 310.

[71]Ibid.

[72]Id., recommendation 17 at 311.

[73]Id., recommendation 18 at 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.'.

[74]Id., recommendation 19 at 312.

[75]Id., recommendation 20 at 313. Refer to 302-313 for a discussion on the monetary compensation issue.

[76]South Australia: 28 May 1997; Western Australia: 28 May 1997; Queens land: 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.

[77]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.

[78]Ibid.

[79]Above n 77.

[80]Australia, Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron "Bringing Them Home - Commonwealth Initiatives" Media Release, Canberra,16 December 1997.

[81]Id., at 1.

[82]Above n 11 at 278-279.. See also Buti, T, "The Removal of Aboriginal Children From Their Families: The Case for Reparation" Address, Eighth Concours International de Plaidoiries (Caen, 26 January 1997), 5.

[83]About $33 million in total, above n 80 at 8.

[84]Id., at 8-9.

[85]Above n 11 at 347.

[86]Above n 80 at 6.

[87]Id., 7.

[88]In conjunction with existing programmes.

[89]Family support and parenting programmes, culture and language centres. Above n 80 at 5, 8-9. Note that the language and culture centres component is funded from ATSIC's existing budget. Note also the existence and partial implementation of migration and transfer of prisoners legislation.

[90]In fact, the Government acknowledged its incomprehensive response when it noted the Report's insistence upon compensation and other measures but stated that the proposed measures on family reunion, health and other services for those affected by forcible removal would "form the focus of the measures being announced". Id., at 2-3.

[91]Above n 53 at 264.

[92]See for example, Article 10, 63(1), American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992); Article 21(2), African Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986; Article 9(5), International Covenant on Civil and Political Rights [ICCPR] G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976; Article 5(5), European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, Rome, 4.XI.1950; Article 14(1) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; Article 19, Declaration on the Protection of All Persons from Enforced Disappearance, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992); Article 15(2), 16(5), ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept. 5, 1991; Articles 12-13, 19, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power G.A. 40/34, annex, 40 U.N. GAOR Supp. (No. 53) at 214, U.N. Doc. A/40/53 (1985); Velásquez Rodriguez Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No. 7 (1990); Velásquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para 174-177; Factory at Chorzów (Germany-Poland), Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, 21; Factory at Chorzów (Germany-Poland), Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, 29; Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep. 184; see John Khemraadi Baboeram, André Kamperveen, Cornelis Harold Riedewald et al. v Suriname (1985) Communications Nos. 143/1983 and 148 to 154/1983, reported in United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988) (New York: United Nations, 1990); Jean Miango Muiyo v Zaire (1987), Communication No. 194/1995, reported in United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988), New York, United Nations, 1990; and Antonio Vianna Acosta v Uruguay (1983) Communication No. 110/1981, reported in United Nations, Human Rights Committee, Selected Decisions of the Human Rights Committee, New York, United Nations, 1980.

[93]The Commonwealth submitted that three principles would preclude the ex-gratia payment of compensation: difficulties in identifying the persons eligible for compensation; difficulties in estimating the amount of loss in monetary terms; negative consequences for the wider community. See above n 11 at 305-306.

[94]Above n 80, Summary of Recommendations and Commonwealth Initiatives.

[95]Because of the nature of the breach, restitutio in integrum stricto sensu is not possible.

[96]In the case of material impossibility: Encyclopedia of Public International Law, Volume 10 'States - Responsibility of States - International Law and Municipal Law', Amsterdam, Elsevier Science Publishers B.V., 1987, at 377 citing the Walter Fletcher Smith Claim (1949) 2 Reports of International Arbitral Awards, 9313; Rhodope Forest Case (1950) 3 Reports of International Arbitral Awards, 1406; Factory at Chorzów (Germany-Poland), Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, 47; De Wilde, Ooms & Versyp v Belgium, European Court of Human Rights, Judgment 10 March 1972 (Article 50), Series A, No. 14, para 20.

[97]Above n11 at 305-307.

[98]For example, Velásquez Rodriguez Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No. 7 (1990), para 30-31; Godinez Cruz Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of July 21, 1989, Inter-Am.Ct.H.R. (Ser. C) No. 8 (1990), para 28-29.

[99]Above n 77. Cf: The Honourable Jane Stewart, Minister Of Indian Affairs and Northern Development, Statement of Reconciliation: Learning from the Past, 7 January 1998, [Internet] URL <http://www.inac.gc.ca/info/speeches/jan98/action.html>.

[100]Above n 77.

[101]Minow, M., Between Vengeance and Forgiveness, Boston, Beacon Press, 1998,

[102]Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions , Ottawa, Law Commission of Canada, at 83.

[103]And the healing process of the nation.

[104]The principle that when an Aboriginal or Torres Strait Islander child is to be placed in substitute care, he or she should be placed within their own culture and community where possible.

[105]Above n 11 at 250, 269, Part 6 - Chapter 21 generally; also Australia, Human Rights and Equal Opportunity Commission "Commission urges Government to make amends to the Stolen Children" Media Release 27 May 1997.

[106]Kruger and Bray, above n 32.

[107]Amnesty International notes that the relevant Northern Territory ordinance in Kruger and Bray, was only one of over one hundred laws and policies which applied across different jurisdictions at varying times: Australia, Amnesty International "Silence on Human Rights: Government Responds to 'Stolen Children' Inquiry" Report ASA 12 February 98, para 19.

[108]Above n 32 at 167 (Dawson J), and at 175 (Toohey J).

[109]It should be noted that a Australian Democrats Senator Brian Greig has introduce into the Senate the Anti-Genocide Bill 1999,l which seeks to give domestic effect to the Genocide Convention. On 14 October 1999 the Senate referred the bill to the Legal and Constitutional References Committee for inquiry and report by 30 June 2000. See further [Internet] URL <http://www.aph.gov.au/senate/committee/legon_ctte>.

[110]The Parliament of the Commonwealth of Australia, Senate Legal and Constitutional References Committee, Healing: A Legacy of Generations: The Report of the Inquiry into the Federal Government's Implementation of Recommendations Made by the Human Rights and Equal Opportunity Commission in Bringing Them Home, (herein referred to as 'the Senate Report'), Canberra, AGPS, 2000

[111]The recommendations are summarised at xvii-xviii of the Senate Report.

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