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Bridge Over Troubled Australian Waters: Reparations for Aboriginal Child Removals and British Child Migrants

Author: Antonio Buti BPE (Hons), Dip Ed, MIR, LLB(Hons)(ANU), DPhil (Oxon)
Senior Lecturer, Murdoch University School of Law
Issue: Volume 10, Number 4 (December 2003)

Contents:

Acknowledgement: I would like to acknowledge the research assistance of Sarah Costa in the preparation of this article. I would also like to thank Senator Andrew Murray for his enlightening discussions on the topic and for providing a model for reparations that I include in the final section of this article. Further the comments of the anonymous referee have been most helpful. All opinions and errors are, of course, those of the author.

    Introduction

  1. In the first sentence of the preface of his book The Guilt of Nations, US academic Elazar Barkan writes: ‘I began writing this book because I was fascinated by the sudden appearance of restitution cases all over the world.’[1] This push for restitution or the more commonly used termed ‘reparations’ is in response to a history of 20th century atrocities and systematic and institutional abuses. Of course there is the holocaust, the killing fields of Cambodia, the genocide of Rwanda and the torture and State sanction murders in apartheid South Africa just to name a few. Then there are the cases of sexual and physical abuse in the boarding schools of Ireland or the residential schools of Canada. And in the last decade of the 20th century and continuing into the 21st century, governments in Australia and the wider public have been confronted with the historical issues of Aboriginal child removals or separations from families[2] and British child migrants.

  2. This article focuses on the Australian context. It commences with a brief overview of the history of the Aboriginal child removals or separations and British child migrants. It then goes onto examine the demands made for reparations from these two historical events and the responses to these demands. Next the issue of the legal and moral basis of reparations is examined along with the composition of reparations. The article concludes with a suggested approach to the issue of providing reparations in the Australian context.

    The History

    Aboriginal Child Removals or Separations

  3. The removal or separation policy and practice commenced in earnest at around the turn of 20th century. The seminal statute that set the legislative framework for the removal of Aboriginal children from their families was the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld), which was followed seven years later by the Aborigines Act 1905 (WA). The Queensland and Western Australian statutes were to form the blueprint of legislation in the other states (except Tasmania[3] and the Northern Territory.[4] The churches were very involved in housing the removed children in church run missions. By the mid 1960s the process of removal to missions had slowed down and by mid 1970s and the last mission school closed in either 1983 or 1984. The legislative scheme in each state provided for the involvement of third parties such as churches in the removal process.

  4. Assimilation was at the forefront of removal policy in Australia. Often this assimilation policy was coated in language that aimed to completely ‘absorb’ Aborigines, particularly those of ‘lighter skinned’ into the dominant white European culture. At the 1937 Canberra conference of Commonwealth and State Aboriginal Affairs ministers, a conference dominated by Western Australia, Queensland and Northern Territory, a resolution was passed supporting the policy of the complete ‘absorption’ of the Aboriginal peoples of Australia into the European population:

    DESTINY OF THE RACE. – That this Conference believes that the destiny of the natives of aboriginal origin, but not of the full-blood, lies in their ultimate absorption by the people of the Commonwealth, and it therefore recommends that all efforts be directed to that end.[5]

    There was a desire to bring Aboriginal peoples within the realm of western society. Thus, much of the education practice, and the very way of life in the missions and other institutions, were aimed at inculcating European beliefs in Aboriginal children.

  5. Education was not central to the purpose of the missions. Only a few hours each day were set aside for school or lessons. Often this was centred on Christian education and an elementary teaching of the 3R’s.’[6] The rest of the day, or much of it, was focused on menial duties what might loosely be called ‘vocational’ training. Theoretically, this involved training Aboriginal children and adolescents in some useful trade or occupation. More often than not, however, the children merely provided for their own survival.

  6. There have been numerous testimonial allegations of sub standard care and physical and sexual abuse in the missions and other institutions that housed the Aboriginal children. Many Aborigines removed from their families complained of harsh conditions, denial of parental contact and cultural heritage, harsh punishment and physical and sexual abuse.[7] The following statement from an Aboriginal removed to a mission as a child is not atypical:

    We were inculcated into a Christian religion and my Aboriginal culture or history was non-existent. That was completely irrelevant to our lifestyles at that stage. It was really an understatement to say that we were not taught anything about our Aboriginal culture or history. The fact is that our Aboriginality was never mentioned, it was never a consideration.[8]

    And again:

    When we had our periods we used rags that we had to wash out ourselves. We were never allowed to ask the housemother for sanitary clothing. We always had to ask the big red headed Dutchman, who had a vile temper and some awful strange behaviour. He loved nothing better than to watch us have a bath. He also enjoyed giving us a floggings.[9]

  7. An empirical study conducted by the Aboriginal Legal Service of Western Australian (ALSWA) gives further support to the sub standard treatment and abuse many Aborigines placed in missions and other institutional care suffered. Out of a survey response of 483, of whom 411 spent some time in a mission, 81 percent experienced physical abuse and 13 percent experienced sexual abuse during their mission stay.[10]

  8. Many Aborigines continue to endure the effects of the removal of children from families to be institutionalised. Loss of culture, family, connection and trust, to name but a few losses, and the pain of abuse, whether physical, sexual or psychological, has resulted in many Aborigines being unable to properly function as parents and members of communities. Often this has been played out through substance abuse, contact with the criminal justice system, poor health, suicide, mental illness, loneliness, and alienation. Professor Beverley, a psychiatrist, 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.[11]

  9. Bringing Them Home, the report of the ‘National Inquiry into the Separation of Aboriginal And Torres Strait Islander children from their Families’ (‘National Inquiry’) concluded that the Aboriginal child removal scheme resulted in deprivation of liberty by detaining children and confining them in institutions. [12] It also concluded that: parental rights were abolished; there were abuses of power in the removal process; Protectors, Protection Boards and other ‘carers’ breached their guardianship obligations; and there had been violations of international human rights norms which, under international law, gives rise to a right to remedies including damages or reparations.[13]

    British Child Migrants

  10. Child migration from Britain had its inception in 1618 when the first group of 100 children emigrated from the UK to Richmond Virginia. Emigration to Australia became more popular as the 20th century developed and particularly after World War II. The major destinations for the children in Australia were Western Australia and New South Wales.

  11. The UK government played an active role in the emigration scheme. The rationale that underlay this role was ostensibly welfarist, although parliamentary extracts show clearly that the ulterior motive of separating the human ‘wheat from the chaff’ was at work. On presenting a bill to the House of Lords in 1852, the purpose of which was to facilitate the funding of child migration, Lord Shaftesbury, said:

    The proposition of it [child migration] would he was sure, be most favourably received in the Colonies, and, when understood, would, he doubted not, be equally acceptable to all who cared for the welfare of the rising generation, who would alike be benefited by it, both those who emigrated and those who remained. [14]

  12. There were also economic considerations at play - by removing the children from Britain, the colonies and not Britain would have to cope with the drain on its resources in providing for the children. Then there was also the motivation of populating the colonies with ‘good white’ British stock. The children who made up the emigration contingents were generally poor.

  13. Although the British Government played an active role in the emigration scheme, its supervision of the scheme was wanting. To large extent organisations such as Barnados, Fairbridge and the Catholic Church had a free reign in recruiting the children to send to Australia and in how they were looked after in Australia. Prior to 1948, there was little or no statutory regulatory power over the voluntary agencies engaged in the emigration process. The Children Act 1948 (UK) provided the Secretary of State with regulatory power over the voluntary agencies and local authorities but no regulations were promulgated in relation to the arrangements and activities of voluntary organisations in emigrating children.[15] The West Australian Department of Family and Children’s Services, noted in its submission to the Australian Senate Community Affairs References Committee; that the private organisations ‘in practise dealt with all decision making processes and procedures in relation to the selection of children, consents and migration arrangements.’[16] In light of this submission, it would seem that procuring the consent of the Secretary of State to the migration of a child was an exercise in formality rather than substance.

  14. Australian governments’ involvement in the schemes before World War II was based on an interest in providing the children with rural farm training. This rationale changed after the war when Australia became conscious of the need to bolster its population – the need to ‘populate or perish’ – especially with good ‘British stock’.

  15. The history of British child migration to Australia does not present a pretty picture – there are numerous accounts of abuse and harm to children who were part of the mass exodus of unaccompanied child migrants form Britain to Australia during the course of the first six decades of the twentieth century. The history presented by some authors is a litany of physical and sexual abuse and cruelty.[17] Even taking into consideration works that are somewhat polemical, one is still faced with four government or parliamentary inquiries that give credence to claims of maltreatment and abuse.

  16. Both the reports of the Western Australian Legislative Assembly Select Committee into Child Migration[18] and the Queensland Commission of Inquiry into Abuse of Children in Queensland Institutions[19] reflect unsatisfactory institutional treatment of the child migrants and even abuse. The UK Health Committee similarly reports of brutal and harsh conditions at the institutions that housed the child migrants.[20]

  17. The most recent inquiry of the Australian Senate Community Affairs References Committee provides further evidence of harsh conditions, cruelty and abuse.[21] The Australian Senate inquiry concludes that many British child migrants were subjected to physical, sexual and psychological abuse ‘and other forms of emotional abuse including depersonalisation, arduous and exploitative work regimes, limited educational opportunity, inadequate food and clothing, and poor after care.[22]

    Demands for Reparations

    Aboriginal Child Removals or Separations

  18. From at least the early 1990s there have been persistent calls for Government enquiries into the removal experience and process. There have also been corresponding demands for reparations. Largely as a result of these demands from various Aboriginal and non-Aboriginal organisations, 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 a national inquiry into the separation of Aboriginal children from their families – to examine and report on the history and effects of Aboriginal child removals, improving service delivery to Aboriginal people, principles for awarding compensation and current Aboriginal child welfare. The National Inquiry report, Bringing then Home, was tabled in Federal Parliament on 25 May 1997. As indicated above it documents widespread and systematic racial discrimination and gross ill treatment of Aboriginal Australians, as lawmakers and administrators sought to resolve ‘the Aboriginal problem’.

  19. 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.[23] In relation to one of the more controversial recommendations, compensation, the National Inquiry stated that part of the reason a ‘National Compensation Fund’ should be established[24] is because of the procedural, evidential and cost difficulties involved in litigation.[25]

  20. Although, the National Inquiry was a Commonwealth initiative, it should not be lost that apart from the Northern Territory, in the main the Aboriginal child removal scheme was a State responsibility. However, the Commonwealth was complicit in the scheme and it is the Commonwealth that instigated the National Inquiry.

    British Child Migrants

  21. The calls for reparations for the Aboriginal separated children has been echoed in relation to the British child migrants. On the motion of Senator Andrew Murray[26] in June 2000 the Australian Commonwealth Senate referred the issue of child migration to a select committee for report and inquiry. That report, entitled Lost Innocents: Righting the Record[27] was published in August 2001 and the Commonwealth government has responded to its various recommendations by establishing a trust for the now adult victims of the scheme. The Lost Innocents Report builds on previous reports from other parliaments –the Legislative Assembly of the Parliament of Western Australia[28] and the UK House of Commons Health Committee.[29] The matter of British child migrants was also touched on in the Queensland government’s initiated inquiry into abuse of children in that State’s institutions.[30] There has also been some out of court settlements between a number of former child migrants and the Christian Brothers (who ran some of the institutions)[31] and there has been talk of further legal action.[32]

  22. Both the UK Health Committee and the Australian Senate inquiry have recognised the need for the responsible parties to provide some form of reparations. The UK Health Committee writes that the Government of the UK must accept moral responsibility for passing legislation that allowed the migration scheme to flourish and ‘is under a moral and legal duty to display concern for the welfare of former child migrants and to offer them meaningful practical assistance. This will lead the way to a just conclusion to a sorry episode in British History.’[33]

  23. Likewise the Australian Senate inquiry remarks that the same obligation applies to the Australian government, especially for child migrants post World War II where the Immigration Minister was the guardian of the unaccompanied immigrant children. The Australian Senate inquiry comments that irrespective of delegation of guardianship (duties) to the states and their child welfare departments, the Commonwealth government and the Minister of Immigration retained ultimate responsibility.[34] However, the Australian Senate inquiry acknowledges that there ‘is a shared responsibility between the British, Australian and Australian State governments, and the sending and receiving agencies.’[35]

  24. The Senate inquiry made a number of recommendations in respect of tracing of family records, counselling, access to personal records, family reunification, financing of travel back to Britain, housing and age care assistance to the child migrants, automatic Australian citizenship for the child migrants, removal of legal barriers to litigation against responsible parties, recognition and regret and apology by responsible parties of the wrongs committed under the child migrant scheme, educative programmes, and establishment of appropriate memorials commemorating former child migrants.[36]

    Responses

    Aboriginal Child Removals or Separations

  25. Most of the State parliaments and some of the churches have made statements of apology to the Aboriginal community in relation to the negative effects of the removal or separation scheme.[37] However, the Australian Commonwealth Government has been very reticent in providing a formal apology to Aboriginal people. It was not until 26 August 1999 that the Prime Minister, John Howard proposed a motion to Parliament offering a statement of regret but not sorry to Aboriginal people to reaffirm the Government’s commitment to reconciliation between Aboriginal and non-Aboriginal Australians.[38] While the speech acknowledges past mistreatment of Aborigines and regrets any resulting hurt and trauma it fails to specifically acknowledged or apologise for damages suffered by those Aborigines removed from families to missions and other institutions.

  26. The Australian 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’ – providing financial assistance for things such as preservation of records, the recording of oral stories, family support and parenting programmes, language and cultural programmes, family link-up services and counseling. [39]

  27. It should also be added that most State governments and major churches have made some form or reparations.[40] This reparation in the main has funded counseling services and family re-unification projects.

    British Child Migrants

  28. Even prior to the Senate inquiry into British Child Migrants, some of the responsible parties in the UK and Australia had made some form of reparations. For example, the UK Government established a trust fund to assist British Child migrants to travel back to the UK in search of their families. Likewise, the Western Australia Government has provided resources to help in the tracing of family records.

  29. Since the Senate inquiry, the Australian Commonwealth government has responded to most of the recommendations made in Lost Innocents: Righting the Record. Whether the responses and reparations made by the Australian government and other responsible parties are adequate requires further examination and another article. In relation to the most recent inquiry of the Australian Commonwealth Senate Community Affairs references Committee, I reproduce in part the media release of Senator Andrew Murray, the person who initiated the inquiry and a British Child migrant to Rhodesia (as it was then known):

    The Australian Democrats welcome the Federal Government’s response to ‘Lost Innocents: Righting the Record’, the Report of the Community Affairs References Committee Inquiry into child migration.
    …
    I applaud the Government’s intention to contribute $1 million annually for three-years to establish a travel fund to assist child migrants to visit their country of origin in order to re-establish connections with family members. However, I am concerned that the eligibility criteria for access to the travel fund have not been spelt out.
    …
    Senator Murray said he was disappointed by the rejection of the committee’s recommendation that child migrants be offered automatic Australian citizenship, with the provision for persons to decline citizenship.
    …
    The worst response is the Government’s rejection of the recommendation that Francis Paul Keaney’s MBE be cancelled. Keaney was a monster and to continue to allow him to sully the list of deserved recipients is a great mistake … .[41]

    Reparations

  30. The advocacy for reparations that have been made both in the context of the Aboriginal child removal and British Child Migrations schemes rests on arguments of international law and morality. This section briefly looks at these arguments.

    International Law and Reparations

  31. It is a well founded principle in international law that reparations should be made for violations of human rights. Thus there is no need to here engage in a long dissertation on the issue but to only provide the reader with a brief summary on the issue. The right to reparations for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems. In 1961, Justice Guha Roy of India wrote:

    That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable.[42]

  32. Legal academic, Diane Orentlicher has remarked:

    [I]nternational law has long recognised that human rights guarantees rest, above all, on a foundation of law – in particular, on the assurance of an effective legal response when violations occur… The principle underlying these duties is straightforward: the only way to assure that rights are protected is to maintain effective legal safeguards against their breach. In particular, those who commit atrocious human rights crimes must be punished, and victims must be assured appropriate redress.[43]

  33. States have a duty not only to respect international human rights but also to ensure them, which may include enforcing compliance by private persons and preventing violations. Successive governments are bound by the responsibility incurred by previous governments for wrongful acts committed and not redressed.

  34. The obligation under international law to provide reparations for violations of human rights has found expression in a number of international treaties. For example, article 2(3) (a) of the ICCPR[44] states: ‘Each State Party… undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy…’ Likewise, article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)[45] says: ‘States Parties shall assure to everyone within their jurisdiction effective protection and remedies… as well as the right to seek just and adequate reparation or satisfaction…’ Article 39 of the Convention on the Rights of the Child (CROC)[46] provides that: ‘States Parties shall take all appropriate measures to promote physical and physiological recovery and social integration of a child victim of… [any form of] cruel, inhuman or degrading treatment or punishment…’ And article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)[47] states: ‘Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.’ [48]

  35. The reparation obligations founded in international human rights treaties as mentioned here are reflected in the decisions of a number of international bodies. For example, a substantial body of case law has been developed by international judicial bodies such as the Inter-American Court of Human Rights and the United Nations Human Rights Committee (UNHRC) to the ICCPR, which defines State responsibility in terms of duties which offending States are under an obligation to carry out.[49]

  36. The decision by the Inter-American Court of Human Rights in the Velásquez Rodriguez Case[50] provides a succinct summary of the international legal obligation to provide reparations for human rights violations. In this case the Inter-American Court of Human Rights held that the Honduran Government was responsible for the disappearance of Manfredo Velásquez in 1981 and that this was in contravention of the American Convention on Human Rights. The Court stated that:

    It is a principle of international law, which jurisprudence has considered ‘even a general concept of law’, that every violation of an international obligation which results in harm creates a duty to make adequate reparation.[51]
    …
    This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of' juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.[52]
    …
    Reparation of harm brought about by the violation of an international obligation consists in full restitution (restitution in integrum), which includes the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm.[53]

  37. In another case – Aloeboetoe et al v Suriname[54] – the Inter-American Commission of Human Rights brought an action against the government of Suriname based on the death of seven Saramaccan Maroon Boatmen by a squad of Surinamese soldiers in 1987. In September 1993 the Court ordered the Suriname Government to provide various forms of reparation to the families of the victims. In addition to awarding compensation for the actual deaths of the victims, the Inter-American Court of Human Rights awarded “moral” compensation to the victims’ parents and also to their successors for emotional suffering endured by the victims before they were killed, the court saying that:

    it can be presumed that the parents have suffered morally as a result of the cruel death of their offspring, for it is essentially human for all persons to feel pain at the torment of their children.[55]

    The Court in Aloeboetoe further held that the Suriname Government was under an obligation to provide education to the children of the victims and to enforce this obligation the Court ordered the re-opening of a school at a medical dispensary in the village where the majority of the victims’ families resided.[56]

  38. Numerous other decisions of international courts have required reparations to be made.[57] This has been repeated by domestic courts[58] and national governments.[59]

    The van Boven Principles

  39. In 1989 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities commissioned Professor Theo van Boven to undertake a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms.[60] A final report, including proposed basic principles and guidelines, was submitted in 1993.[61] A revised set of basic principles and guidelines was submitted in 1996.[62] For his reports, van Boven examined relevant existing international human rights norms and decisions of international courts and other human rights organs. Van Boven states:

    In accordance with international law, States have the duty to adopt special measures, where to permit expeditious and fully effective reparations. Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.[63]

  40. Van Boven synthesised the contents of reparations to restitution, compensation, rehabilitation and, satisfaction and guarantees of non-repetition.[64] Restitution refers to measures such as restoration of liberty, family life, citizenship, return to one's place of residence and, return of property seek to re-establish the situation that existed prior to the violations of human rights and humanitarian law.[65] Compensation refers to monetary compensation for any economically assessable damage resulting from violations of human rights and humanitarian law.[66] Rehabilitation includes medical and psychological care as well as legal and social services.[67] Satisfaction and guarantees of non-repetition includes, inter alia, an apology (including public acknowledgment of the facts and acceptance of responsibility) and, measures to prevent recurrences of the violations.[68]

    The Temporal Issue and Morality

  41. In the context of the removal of Aboriginal children from their families and the British Child migrants to Australia, the basis of an obligation to provide reparations may need to come from some general and underlying principle and not from international human rights treaty law. This is because for nearly or most of the period that the removal or emigration was practiced in any significant way, say prior to the 1970s, Australia was not a signatory to the major relevant international human rights instruments such as the ICCPR or ICERD. [69] However, it may be possible to argue that during the relevant period, international customary law prohibited the removal of children from family based on racial identity, denial of family contact and cultural heritage and physical and sexual abuse or even if they didn’t have customary law status they were still recognised as human rights by the international community. Thus justice demands reparations or redress as espoused by Justice Roy of India.

  42. In summary what I am saying here is that reparations for human rights violations is a well established principle under international law – having treaty and customary law support. However, whether this principle had international customary law status prior to the emergence of the international human rights treaty regime post World War II is unclear. Arguably it is unlikely that reparation obligations for human rights abuses had customary law status prior to the development after World War II of the international human rights treaty regime. This is why the moral duty to provide reparations for human rights violations becomes important when discussing the two historical scenarios that are the focus of this article.

  43. It is difficult not to refer to morality when discussing the issue of reparations for wrongdoings – as human rights law is arguably a legal recognition of moral rights and wrongs. Further we in Australia live in a democracy governed by the rule of law and values of justice, morality and civility. Australian academic, Damian Grace writes that ‘[c]ivility begins with good manners and treating others – even strangers and opponents – with respect.’[70] Arguably this involves admitting wrongs when they occur or are identified and then providing reparations - reparation to acknowledge the wrongs and reparation to help the healing and rehabilitation process. So arguably the philosophical moral foundation for providing reparations for human rights abuses rest on the need to act in a civil manner to others – a sense of civility that is an essential component of a civil society in a liberal democracy. And if human rights law is a legal recognition of moral rights and wrongs, arguably it follows that the moral need to provide reparations for wrongs committed flows onto a legal duty to do so.

  44. While there has been some measure of reparations in relation to the Aboriginal removed or separated group and the British child migrants, the responses from the various governments and other bodies has not fully satisfied the demands of those concerned or the recommendation of Bringing them home and Lost Innocents: Righting the Record. This article now moves onto looking at the appropriate reparations for the Aboriginal removed or separated children and the British Child Migrants.

    Composition of Reparations

    Introduction to a scheme

  45. As the Van Boven reports reiterate, reparations must attempt to alleviate victims suffering and afford them some justice. The various needs of the victims should be met, with reparations being proportionate to harm and the nature and severity of the violations. To sufficiently meet the needs of the Aboriginal child removals and the British child migrants a workable proposal for reparation must include restitution, compensation, rehabilitative services and acknowledgement.

  46. Compensation and rehabilitation via litigation has not and is unlikely to in the future bring favourable outcomes for the Aboriginal child removals or British child migrants. The narrow legalistic or litigious approaches to seeking redress, as evidenced in the trial and appellate cases in the area in the last ten years, have failed the Aboriginal plaintiffs.[71] These cases have floundered on a number of issues such as: legal and evidentiary problems with the ‘passage of time’; justiciability of assimilation policies legislated by Parliament; protective nature of the relevant Aboriginal specific legislation that severely inhibits liability being attached to the State; and the judiciary’s doctrinal reasoning in relation to the various causes of actions.[72] Thus those advocating for redress to the Aboriginal ‘separated class’ and/or the British Child Migrants need to turn to a non-litigious approach as advocating in National Inquiry and Senate Inquiry. Both these inquiries argue that the prefer approach is a comprehensive scheme focussing on awarding direct financial compensation to Aboriginal child removals and British child migrants combined with rehabilitation, acknowledgement and apology. Here I focus on the issue of monetary compensation as it is the measure that is probably the most contentious of all the reparation measures.[73]

    Monetary Compensation

  47. Monetary compensation could be provided for ‘economically compensable impairments,’ resulting from any maltreatment. Such compensation should include any physical or mental injuries, compensation for pain and suffering, emotional distress, loss of enjoyment of life, lost opportunities, loss of earnings and capacity to earn, rehabilitative or medical costs, harms to reputation.[74]

  48. A number of different approaches may be taken in awarding monetary compensation. The individual members of either group under consideration here could have individualistic claims, which may be awarded by assessing their personal harm and suffering. This may be on a case-by-case basis, or worked around various scales and categories of harms experienced.

  49. There are a number of concerns with individual, needs-based awards. Such an approach may exclude various categories of individuals who are unable to prove or explain their situation. It forces victims to endure further pain through the requirement to prove the severity of their experiences and may also fail to recognise the reach of the harm to extended family members and other areas of a victim’s life. Individual award puts extensive pressure on victims to remember their experiences in great detail, and to justify their need for rehabilitation and restitution, and right to compensation. Potential claimants may be required to provide voluminous evidence and may require legal advice. Individually assessed reparations may take longer to reach victims, and force them to undergo further harm in attempting to make their claim. For institutional abuse of this kind, widely acknowledged by the community, victims should not have to endure this burden.

  50. Measuring the volume of compensation on a case by case basis challenges the workability of a reparations scheme. While individual assessments and awards are preferable, the nature of this situation may benefit from a general award per individual. A predetermined single figure, comprehensive of all harms suffered, may be awarded to all Aboriginal child removals and British child migrants, regardless of individual degrees of harm and need. A predetermined award per person offers general compensation to all members of either group. This acknowledges the injustices of their experiences, and offers some justice and relief to victims. Combined with extensive and continuing rehabilitative services, predetermined compensation may be the most achievable, inexpensive and effective way to provide reparations for the removed Aboriginals or British child migrants. Such an approach is likely to limit the time, costs and administration involved in claims and payments and is a model that is likely to be successful in reaching all sufferers to some extent. A workable and fair figure per individual is likely to allow reparations to be made, and to be made without excessive costs or time delays or causing further pain for victims.

  51. It should be recognised though that monetary compensation is to a large extent a symbolic act as no amount of money can adequately compensate a victim of gross human rights violations. However as Sarah Pritchard writes:

    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.[75]

  52. The question of monetary compensation for families of deceased victims or for those that have received compensation through the judicial litigation process is difficult to answer. It is not proposed to deal with this here apart from a brief comment or two.

  53. In many cases harm caused to victims is likely to have significant effect upon their families. Children and remaining family may wish to take advantage of tracing and identity services to determine their own identities. An argument could probably be made that the family members should not be denied services or compensation for the harms suffered by the victim.

  54. Due to the nil success rate of plaintiffs in the court system in Australia, the issue if whether successful litigants should be excluded from a reparation scheme is someone of a moot point. However, in any case compensation received through court litigation is likely to be of limited value. Thus arguable any such plaintiffs should not be excluded from reparation schemes. They should be completely entitled to receive supports services and rehabilitation without restriction (although as mentioned below any out of court reparation settlement is likely to contain clauses restricting further litigation).

  55. Funding for monetary compensation, and rehabilitative services, should be provided by all those responsible for the supervision and regulation of the two schemes and the individual perpetrators if still alive. Proportions of liability and the financial requirements of individual parties must be assessed and determined as part of the creation of such a scheme. It is important for the victims to receive compensation provided by the perpetrators.[76] A scheme that incorporates all responsible parties communicates to the victims some recognition of the harm done by all parties involved. The scheme being advocated here is one that comes about through negotiation. It is argued that by spreading the financial burden among the various responsible groups there is a greater chance of each party admitting to their responsibility to award reparations.

  56. More than likely any agreements by members of either group to compensation, rehabilitation or any other form of reparation will contain restrictive clauses. However this should be within reason, and should not apply to any responsible parties who have failed to contribute to a scheme. Criminal liabilities should not be excluded within the scheme. Nor shall such a scheme limit victims rights to make public their experiences, inclusion of former Aboriginal removed children and British child migrants experiences in public record should be encouraged and facilitated.

    Practicalities and Actions

  57. As previously indicated some form of reparations has been made by the responsible parties in relation to both the members of the Aboriginal removal or separated group and the British child migrant group – mainly in there of counselling services and family reunions. But the issues of an apology from the Commonwealth Parliament for the Aboriginal ‘separated class’ and monetary compensation for both the Aboriginal ‘separated class’ and the British child migrants still remain as vexed issues in the continuing debate of bringing justice to these two groups.

  58. Understandably, governments and other parties are reticent in saying yes to reparation funding because of concern over the quantum of funding required. As suggested above, that concern may be lessened if liability is spread over the various responsible parties. For example in relation to the Aboriginal child removal scheme the responsible parties will in the main be the State Governments and the churches, who administered most of the missions and homes. However, the Commonwealth Government should also be required to provide some of the funding as they acquiescent and in fact encouraged the scheme. And of course in the Northern Territory it was the Commonwealth Government that was the responsible government. Also of course contributions should also come from the individual perpetrators.

  59. In relation to the British child migrants, we have the UK, Commonwealth and State Governments, the sending agencies, receiving agencies, the Churches and charities that ran the institutions that housed the migrants in Australia. Also there are the individual perpetrators.

  60. Individual, governmental and organisational liabilities must be assessed, and based on their proportionate liability responsible parties will incur various costs. In creating a comprehensive reparations scheme, party contributions must be assessed with respect to liability and responsibility; ability to pay and funding available; amounts already contributed; services provided; and whether public acknowledgement and apology has been made. Liability of parties should be negotiated and determined during establishment of a reparation scheme. All responsible parties should contribute funds to a scheme or part thereof based upon their responsibility and surrounding factors.

  61. The discussion and recommendation made here is reflected in the table below. This table was created by Senator Andrew Murray in relation to providing reparations to the British child migrants’ reparation issue. A similar but modified table could be made in relation to reparations for the Aboriginal removed or separated group.[77] You will notice from the table that the Western Australian Government receives a separate entry. This is because in relation to the British child migrant scheme the Western Australia Government had a particularly major role to play in the scheme.

  62. The advantages of including all the various responsible parties in a comprehensive reparation scheme are that it has a greater chance of achieving a positive outcome. It reduces the individual financial strain on each actor. It also may have a psychological effect by spreading the ‘blame’ across the board rather than targeting one actor. Also with a greater number of actors there is a greater potential funding pool, which increases the chances of obtaining adequate funding for a comprehensive reparation scheme.

     

    Parties Responsible

    Proportion of Liability (%)

    Value of Reparations Due ($)

    Value of Reparations Provided ($)

    Remaining Value of Reparations to be Provided($)

    British Government

     

     

     

     

    Australian Government

     

     

     

     

    West Australian Government

     

     

     

     

    Other State Governments

     

     

     

     

    Churches or Charities

     

     

     

     

    Sending Agencies

     

     

     

     

    Receiving Agencies

     

     

     

     

    Individual Perpetrators

     

     

     

     

     

  63. This proposed scheme is only likely to succeed if the various responsible parties, whether it be in relation to the Aboriginal ‘separated class’ or the British child migrants if all responsible parties agreed to it. As argued above, a negotiated agreement for such a scheme is more likely to come to fruition if the liability and therefore the financial burden are spread among the various parties. Logically, all parties should be responsible for the administration of the scheme. This may be a combination of financial and in-kind (for example, personnel) assistance.

    Conclusion

  64. As mentioned in the introduction, the issue of reparations for human rights violations has taken on particular potency in recent years. This is certainly the case in Australia, as governments, policy makers, the media and others debate and discuss the enduring effects of both the Aboriginal child removal scheme and the British Child Migrant scheme.

  65. There is an established international law jurisprudence on the need to provide reparations for human rights abuses. And there is also a moral duty to provide such reparation, in a nation that professes to be a civil and liberal democratic society. But it must be acknowledged that providing reparations can impose considerable financial strains on the liable parties. It is recommended that this necessitates an approach that will spread the financial imposition across all responsible parties and thus improve the chances of a comprehensive and adequate reparation scheme being achieved.

Notes

[1] E Barkan, The Guilt of Nations (2000) IX.

[2] The term ‘stolen generation’ or ‘stolen generations’ has become common usage when describing the removal or separation of Aboriginal children from their families. This article avoids its usage, as too much energy is wasted debating the veracity and accuracy of the term and its connotations. More importantly, the term creates problems about which Aborigines can be members of the ‘stolen generation’ or ‘stolen generations’. Here I use either ‘the removed’ or ‘the separated’

[3] In Tasmania, Aboriginal children were removed under general child welfare legislation.

[4] The legislation in the various jurisdictions that make up the Commonwealth of Australia are summarized in Human Rights and Equal Opportunity Commission, Bringing them home (1997) 599-648.

[5] Commonwealth of Australia Aboriginal Welfare-Initial Conference of Commonwealth and State Aboriginal Authorities (1937) 3.

[6] FEA Bateman, Report on Survey of Native Affairs ( 1948) 10.

[7] Refer to Aboriginal Legal Service of Western Australia (ALSWA), Telling Our Story (1995).

[8] Ibid, 40.

[9] Ibid, 4.

[10] ALSWA, After the Removal (1996) 44, 49-51.

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

[12] Above n 4, 253.

[13] Ibid, 255- 257,259-260, 247-313.

[14] See 122 Parl. Debs (3rd Series), cols. 1328-1331 (1852)

[15] Australian Senate Community Affairs References Committee, Lost Innocents: Righting the Record (2001), 57..

[16] Submission of the Department for Family and Children’s Services (WA), to the Senate Community Affairs References Committee for their report entitled ‘Lost Innocents: Righting the Record’.

[17] In particular refer to P Bean and J Melville, Lost Children of the Empire (1989) 110-50; and A Gill, Orphans of the Empire: the shocking story of child migration to Australia (1998)

[18] Western Australian Legislative Assembly, Select Committee into Child Migration Interim Report (1996).

[19] L Forde, J Thomason and H Heilpern, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (1999) and L Forde, J Thomason and H Heilpern, Closed Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (2000).

[20] UK House of Commons Health Committee, The Welfare of Former British Child Migrants (HC Paper no 755 1997-98), paras 13 and 73.

[21] Above n 15, 71-105.

[22] Ibid, 105.

[23] Above n 4, 247-313. The National Inquiry argues that these reparation elements flow from the finding of a violation of international human rights law.

[24] Ibid, recommendation 16, 310.

[25] Ibid, 305.

[26] Senator Murray is himself a British child migrant to Rhodesia, as it was then known.

[27] Above n 15.

[28] Above n 18.

[29] Above n 20.

[30] Above n 19.

[31] These cases are refer to at above n 18, 219-25,312- 13.

[32] An Australian lawyer, Adrian Joel, is considering the option of a class action.

[33] Above n 20, para 94.

[34] Above n 15, 115.

[35] Ibid, 121.

[36] Above n 15, xv-xix, 122-243.

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

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

[39] Australia, Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron. ‘Bringing Them Home – Commonwealth Initiatives’ Media Release, Canberra, 16 December 1997.

[40] See further I Scanlan, ‘An Analysis of the Western Australian Government’s Response to the Recommendations of the Bringing Them Home Report’ (Unpublished, School of Politics and International Studies Parliamentary Internship Programme Murdoch University 2000); 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 (2000); A Cornwall, Restoring Identity (2002).

[41] Senator Andrew Murray, Media Release – ‘Righting the Record: Democrats welcome Government recognition of child migrant neglect and abuse’ (14 May 2002). In relation to Keaney refer to above n 15, 116 where he is introduced as follows: ‘Brother Francis Paul Keaney was born in Ireland in 1888, emigrated to Australia in 1912 and joined the Christian Brothers in 1916. By 1919 he was a junior staff member at Clontarf. He served a number of terms as principal including at Clontarf 1936-

[41] and at Bindoon 1942-44 and 1948-54. Brother Keaney is portrayed as possessing a strong, domineering personality, yet capable of being exceptionally charming to outsiders.’

[42] Justice Roy, “Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?” (1961) 55 American Journal of International Law 863, 863.

[43] DF Orentlicher, ‘Addressing Gross Human Rights Abuses: Punishment and Victim Compensation’ in L Henkin and JL Hargrove (eds), Human Rights: An Agenda for the Next Century, (1994), 425-426.

[44] G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) U.N.T.S. 171, entered into force Mar. 23, 1976. Ratified by Australia on 13 August 1980 and entered into force in Australia on 30 November 1980.

[45] 660 U.N.T.S. 195, entered into force Jan. 4, 1969. Ratified by Australia on 30 September 1975 and entered into force in Australia on 30 October 1975.

[46] G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989); ratified by Australia on 17 December 1990 and entered into force in Australia on 16 January 1991.

[47] G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/15 (1984); adopted by the General Assembly on 10 December 1984.

[48] Also refer to Articles 8-11, 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); Article 50, European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, Rome, 4.XI.1950 in the context of De Wilde, Ooms & Versyp v Belgium, European Court of Human Rights, Judgment 10 March 1972 (Article 50), Series A, No. 14.

[49] For example, refer to (1983) UNHRC Communication No. 16/1977; (1983) UNHRC Communication No. 110/1981; Velásquez Rodriguez Case (Venezuela v Peru), 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).

[50] Velásquez Rodriguez Case (Venezuela v Peru), Ibid.

[51] Ibid, para 25.

[52] Ibid, para 166.

[53] Ibid, para 26.

[54] Aloeboetoe et al. Case, Reparations (Art. 63(1) American Convention on Human Rights) Judgment of September 10, 1993, Inter-Am.Ct.H.R. (Ser. C) No. 15 (1994).

[55] Id, para 76.

[56] Id, para 96. As part of the reparation package the court ordered that the Suriname government create two non-taxable trust funds at the Suriname Trust Bank in Paramaribo - one for the children and the other for the adults, established a fiduciary duty to minister the funds as trustee, a one time $4,000.00 to cover start-up costs of the fiduciary committee and the court stated that they would supervise compliance with their decision. For further comment on the Aloeboetoe case refer to DJ Padilia, ‘Reparation in Aloeboetoe v Suriname’ (1995) 17 Human Rights Quarterly 541.

[57] For example, refer to 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) (1990).

[58] Maharaj v Attorney-General of Trinidad Tobago (No. 2) [1979] AC 385; Celsa Hilao et al v Estate of Ferdinand E Marcos United States District Court of Hawaii, MDL No. 840, CA No. 86-0390 – 18 January, 1995.

[59] Refer to M Gannage, An International Perspective: A Review and Analysis of Approaches to Addressing Past Institutional or Systematic Abuse in Selected Countries (1998); E Barkan, above n 1.

[60] E/CN.4/Sub.2/1989/13.

[61] T van Boven, (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, 7 ( ‘van Boven Report’).

[62] T van Boven, 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 (‘revised van Boven Principles’).

[63] Above n 60, 1.

[64] Ibid.

[65] Ibid, 4.

[66] Ibid.

[67] Ibid.

[68] Ibid, 5.

[69] However the Convention on the Prevention and Punishment of the Crime of Genocide came into existence in 1948 – however I do not indeed debating the issue of genocide here.

[70] D Grace, ‘The question of an apology: reconciliation and civility’ (2001) 7 Australian Journal of Human Rights 77, 78.

[71] Kruger and Anor v Commonwealth (1997) 190 CLR 1; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (SCNSW 25 August 1993); Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1999) 25 Fam L R 86; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor [2000] Aust Torts Reports 81-578, 64,136; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (HCA s246/2000 22 June 2001); Cubillo and Anor v Commonwealth (1999) 89 FCR 528; Cubillo and Anor v Commonwealth (2000) 103 FCR 1; Cubillo and Anor v Commonwealth (2001) 112 FCR 455 ; Cubillo and Anor v Commonwealth (HCA D10 and 11/2001 3 May 2002). There have been two other ‘least significant’ Aboriginal child separation cases – one that was poorly pleaded and rejected by a single justice of the High Court of Australia (Thorpe v The Commonwealth [No 3] (1997)

[71] ALJR 767),and the other that has not yet reached the trial stage (Johnson v Department of Community Services and Anor [2000] Aust Torts Reports 81-540, 63,472).

[72] J Clarke, ‘Cubillo v Commonwealth’ (2001) 25 Melbourne U L Rev 218; R van Krieken, ‘Is Assimilation Justiciable? Lorna Cubillo & Peter Gunner v Commonwealth’ (2001) 23 Sydney L Rev 239.

[73] Although the issue of apology to the Aboriginal ‘separated class’ has been a hotly debated political issue. Refer to S Pritchard, ‘The Stolen Generations and Reparations’ (1997) 4 UNSW Law Journal Forum 28, 28-29; Sydney Morning Herald, 9 January 1998; Transcript of the Prime Minister The Hon. John Howard MP Motion of Reconciliation 26 August, 1999 [Internet] URL <http://www.pm.gov.au/news/speeches/1999/reconciliation2608.htm> 1.

[74] Above n 61 and 67.

[75] Above n 73, 261.

[76] Above n 15, 126

[77] Would not include sending or receiving agencies.

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