David Hollinsworth


AAfter many years of struggle by members of the Stolen Generations, Australian Prime Minister Kevin Rudd gave the Apology on the 13 February 2008. This apology was “for the laws and policies of successive Parliaments and governments”1 and offers a watershed in relations between the government and Indigenous peoples, especially the Stolen Generations and their families. This national apology was a fundamental element in the 54 recommendations of the Bringing Them Home (BTH) report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families conducted by the Human Rights and Equal Opportunity Commission between 1995 and 1997. Because the BTH report was released on the 26 May 1997, this date is commemorated as National Sorry Day, although its name and focus may change in the light of the apology having been made.

Between 1998 and 2003, all states and territories had made some form of acknowledgement and apology.2. Content of apologies by State and Territory Parliaments. Retrieved 21 August 2008 from: http://www.hreoc.gov.au/social_justice/bth_report/apologies_states.html] So too had most churches, some police departments, social workers, and more than one million individual Australians.3 The Howard Government received the BTH report from co-chairs Sir Ronald Wilson and Mick Dodson, but refused to make an apology, supposedly because an apology would admit legal liability and because present-day Australians could not be expected to apologize for something “in the past” that they did not do. Prime Minister John Howard and Minister John Herron were adamant that what was done had no relevance to today, even claiming that the term “stolen generations” was a misnomer in that no entire generation was ever removed.4 Reactions to this intransigence by members of the Stolen Generations were mixed.5 Many felt that an apology was tenuous coming after a decade of rule by the Howard Government. Others stated that the delay meant they had to make their own peace rather than wait for others to recognize their claim. Yet the fact that there had been no national recognition and apology meant that healing could not commence for many.

In 2007, then opposition leader Kevin Rudd committed to making an apology as one of his first actions if he were to be elected prime minister for the next government. After the election of the Rudd Government, Indigenous Affairs Minister Jenny Macklin moved quickly to consult with both peak organizations, the Stolen Generations Alliance and the National Sorry Day Committee (NSDC). Some members of the organizations favoured the 26 May (Sorry Day) as the logical choice for the apology as well as giving time to foster broader community support. In the end, the government opted to make the apology the first formal item of business for the 42nd Parliament on the 13 February 2008.

Public Opinion and the Apology

As a result of the Howard Government’s criticisms of the BTH report, public opinion polls indicated that 57 per cent were opposed to an apology while 40 per cent agreed: “Australians today weren’t responsible for what happened in the past.”6 The Labor Party’s preparedness to act was strengthened by effective campaigns by lobby groups, including Australians for Native Title and Reconciliation (ANTaR), Reconciliation Australia (RA), and especially GetUp! Action for Australia. In a poll released on the 7 February 2008, 55 per cent agreed and 36 per cent disagreed with the decision to apologize.7 In the poll held immediately after the apology, these results had improved to sixty-eight per cent approval and twenty-two per cent disapproval.8

Such shifts in public opinion show the influence of political leadership (or its absence) can be significant. More than a decade of anti-Aboriginal rights rhetoric had severely eroded popular support built up in the pre-Mabo period.9 Denial of the Stolen Generations and denigration of the BTH report was a key component of that campaign.10 Strong commitment to the apology from Kevin Rudd turned around public opinion, but at the same time the Rudd Government ruled out compensation. Public opposition to monetary compensation is consistent with widely held beliefs that Indigenous people receive “special treatment” and unearned benefits from government.11

The Need for Full Reparations

A key component of the BTH report was measures to make reparations according to the van Boven principles,12 including an acknowledgement and apology, recorded testimonies, guarantees against repetition through community education and appropriate legislation, and measures for rehabilitation, including language and cultural centres, family tracing and reunion services, assistance with identification as Aboriginal or Torres Strait Islander, and protection and access to records. The Report also called for measures for restitution: counselling services, Indigenous control of the welfare of Indigenous children, and monetary compensation for those directly affected by forcible removals for economically assessable damage, for example, for physical and mental harm, loss of opportunities, and loss of culture and land rights.13

The Howard Government response was limited within an individualized health and welfare framework to counselling and assistance for family tracing and reunions, but there was little support for group compensation measures and no monetary compensation.14 The Rudd Government supports a much broader approach to the BTH recommendations, signalled in part by the involvement of the Department of Families, Housing, Community Services and Indigenous Affairs as well as the Department of Health and Ageing, and by a willingness to involve the SGA and the NSDC in developing and implementing the BTH program. The prime minister has firmly located this new approach within a determination “to close the gap that lies between us [Indigenous and non-Indigenous Australians] in life expectancy, educational achievement and economic opportunity.”15 Prime Minister Rudd recognized that without such practical actions, the apology could remain just a “moment of mere sentimental reflection.”16 In negotiations with the SGA, Minister Macklin continues to reject individual compensation despite this broader vision.

The Need for a National Compensation Fund

The BTH recommended a non-adversarial national compensation fund administered by an independent board and funded by all Australian governments. The fund would provide a lump sum in compensation to any person “who was removed from his or her family [unless the responsible government] can establish that removal was in the best interests of the child.”17 In addition, the fund should award extra compensation for specific harm and/or loss resulting from removal. Compensation was to be awarded 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 and fulfilment.
  7. Loss of native title rights.
  8. Labour exploitation.
  9. Economic loss.
  10. Loss of opportunities.18

It is important to note that the proposed statutory compensation mechanism was not intended to displace the claimant’s common law rights to seek damages.19

These are difficult issues, but the fundamental need for an accessible and affordable compensatory mechanism that minimizes the degree of re-traumatization of claimants is undeniable.20, and Public Interest Advocacy Centre [PIAC] (2001). Moving Forward: achieving reparations for the stolen generations. A national conference held 15–16 August 2001 in Sydney, Australia (retrieved 26 February 2009 from:
http://www.hreoc.gov.au/social_justice/conference/movingforward/); Cunneen, C. (2005). Colonialism and historical injustice: reparations for Indigenous peoples. Social Semiotics 15(1):59–80.] The extent of the harm and/or loss resulting from removals, however “well intentioned,” was shown in the evidence to the National Inquiry.21 It was reiterated in the 2006 Ministerial Council for ATSI Affairs’ Bringing them home report on the economic and social characteristics of those impacted on by past policies of forcible removal of children, which compared various health and welfare outcomes for those removed to those who were not. This report found:

  • Higher rates of people with a disability or long-term health condition (68.8 per cent compared to 55.3 per cent)
  • Lower rates of completion of Year 10 – 12 schooling (28.5 per cent compared to 38.5 per cent)
  • Lower rates of living in owner occupied housing (16.9 per cent compared to 28.3 per cent)
  • Higher rates of being a victim of physical or threatened violence (33.5 per cent compared to 18.1 per cent)
  • Lower rates of retention to Year 10 (28.5 per cent compared to 38.5 per cent)
  • Lower rates of participation in sport or physical recreation activities (35.4 per cent compared to 47.0 per cent)
  • Higher rates of smoking (70.5 per cent compared to 51.2 per cent)
  • Higher rates of being arrested more than once in a five year period (14.6 per cent compared to 8.8 per cent)
  • Lower rates of full-time employment (17.8 per cent compared to 24.8 per cent).22

It is probably obvious that the hurt, loss, and trauma for many of those removed and for the families they left behind can never be adequately compensated. It will be difficult to assess such harms and find appropriate forms of compensation to individuals, to families, and to communities. However, one crucial element of a comprehensive compensation process is the official acknowledgement and recognition. One of those who received compensation under the Tasmanian State (provincial) scheme is Deb Hocking, a long-time activist for the Stolen Generations. Deb has stated:

I think that a huge component of the healing process for Stolen Generations is acknowledgement of the pain and suffering that has taken place due to government processes, policies, or laws. The wording of this letter was extremely honest and heartfelt. Monetary compensation is one thing, however big or small, but to have recognition of acceptance of blame and a heartfelt apology has not only allowed me to begin my healing processes, but also been a huge step forward for Reconciliation in Tasmania.23

The alternative of refusing to provide a non-adversarial compensation mechanism will be hundreds of extremely expensive and traumatic civil litigations. There are plenty of lawyers who will work pro bono, but will take sizable percentages of any eventual payments. Class actions have already commenced in several states, yet this approach is inhumane, immoral, and likely to cost much more than a basic compensation scheme. In the most relevant case, after 13 years of struggle, Bruce Trevorrow received compensation of $450,000 for injuries and losses suffered, a further $75,000 in damages for his unlawful removal and false imprisonment, and $250,000 in lieu of interest.24 Less than a year after his victory Bruce passed away, as have so many of those who deserve recognition and compensation.

Cunneen and Grix25 have documented the many legal obstacles to successful litigation of Stolen Generations cases. These include:

  • the problems Indigenous people have in overcoming statutory limitation periods, when these events occurred many decades ago;
  • the difficulty of locating evidence, particularly when governments were lax in recording matters involving Indigenous people;
  • the emotional and psychological trauma experienced by claimants in the hostile environment of an adversarial court system;
  • the enormous financial cost;
  • the length of time involved before the outcome of litigation is finalized;
  • the problem of establishing specific liability for harms that have been caused; and
  • overcoming the judicial view that ‘standards of the time’ justified removal in the best interests of the child.26

Australian courts have consistently favoured official documents over oral testimony, ignoring the obvious tendency to suppress negative information and to present positive accounts of government actions.27 There is also the irony of having to prove in a court of law the actual harm from removal and detention, and then have the court dismiss that information and make the claimant a poor witness and the evidence suspect. The case for an alternative statutory compensation tribunal that could avoid re-traumatizing claimants is clear.28

Ways Forward to Healing

While the need for adequate and accessible reparations is central, there are myriad needs in relation to healing of the hurt and harm done to members of the Stolen Generations, their families, and communities. As previously noted, members of the Stolen Generations and their families have higher than average poor physical and mental health. Some people cannot access Aboriginal medical services because they lack the necessary means of identification. Some find the available services and programs (including mainstream services) unsuitable or inappropriate. A national Aboriginal and Torres Strait Islander healing foundation is needed to complement the work of the compensation tribunal. Such a foundation controlled by members of the Stolen Generations with expertise could establish best practice healing programs, advise governments and Indigenous health services on policies and programs, and develop and provide specific educational and training programs for Indigenous and non-Indigenous health practitioners. Members of Stolen Generations groups have visited Canada and strongly support the Aboriginal Healing Foundation model. The SGA is currently researching Canadian and Australian models of best practice to assist the Rudd Government to develop effective and comprehensive healing policies and programs.

An Australian Aboriginal and Torres Strait Islander healing foundation could provide seed funding to Stolen Generations healing circles and conduct research and policy work. It could also provide (perhaps in partnership with universities) pre-service and in-service training for health professionals and others whose work involves the families of Stolen Generations people. In partnership with the relevant government departments, it could oversee and support the existing family tracing and reunion (Link-Up) services. In the spirit of the BTH recommendations, the healing foundation could guide the provision of government and private sector services to the Stolen Generations and their families according to principles of self-determination and self-reliance.

Close the Gap

Prime Minister Rudd made an eloquent and powerful statement in the apology on the 13 February 2008. He rightly linked the symbolic significance of the apology to the need for practical steps to “close the gap” and to bring about the long overdue healing. We can only hope that this magnificent beginning is realized in a comprehensive program designed to implement all 54 recommendations of the Bringing Them Home report, including genuine reparations and healing for all those damaged by past policies and practices.



Biography

David Hollinsworth has worked with Aboriginal people since 1968 as both an activist and an academic. David taught Aboriginal Studies at Flinders University and at the University of South Australia (1972–1997). David is an Adjunct Professor at the University of Queensland and the University of the Sunshine Coast. David also works as a consultant in anti-racism and Indigenous affairs for the Commonwealth and various state governments as well as Aboriginal organizations. David was a founding member of the Stolen Generations Alliance (SGA) and has served as National Secretary and is now National Non-indigenous Co-Chair of the SGA. He was a founding member and delegate of the previous organization, the National Sorry Day Committee.

David’s curriculum design, teaching, and publications focus on the history of the Stolen Generations and the intergenerational impact of government policies of child removal.

He has published widely on Aboriginal history and politics, Indigenous health, and on representations of Aboriginality. Major works include Race and Racism in Australia, Third Edition (2006) and They Took the Children (2003), which won the 2004 NSW Premier’s Young People’s History Award. David has an international reputation for his work on Australian racism and effective anti-racism strategies.


Notes
  1. Rudd, The Honourable Kevin (2008). Prime Minister of Australia Speech Apology to Australia’s Indigenous Peoples. House of Representatives, Parliament House, 13 February 2008. Canberra, AU: Prime Minister of Australia (see Appendix 6). Retrieved 21 August 2008 from: http://www.pm.gov.au/media/Speech/2008/speech_0073.cfm
  2. Human Rights and Equal Opportunity Commission (HREOC) (no date)
  3. Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) (no date). Sorry Books: An Online Exhibition (retrieved 21 August 2008 from: http://www1.aiatsis.gov.au/exhibitions/sorrybooks/sorrybooks_hm.htm); Senate Legal and Constitutional References Committee (SLCRC) (2000). Healing: A Legacy of Generations. Canberra, AU: Commonwealth of Australia (retrieved 21 August 2008 from: http://www.aph.gov.au/SENATE/COMMITTEE/legcon_ctte/completed_inquiries/1999-02/stolen/report/index.htm).
  4. See SLCRC (2000:292); see also Herron, John (2000:18). Federal Government Submission: “Inquiry into the Stolen Generation” to the Senate Legal and Constitutional References Committee, presented by Senator the Hon. John Herron, Minister for Aboriginal and Torres Strait Islander Affairs, March 2000.
  5. As a Founding Member of the National Sorry Day Committee (1998 to 2004) and a Founding Member of the Stolen Generations Alliance from 2007, I have had the privilege of shared conversations with hundreds of members of the stolen generations and their families. For privacy reasons, individuals are not identified. The views expressed in this article are mine, and not officially those of the SGA.
  6. Newspoll, Saulwick & Muller and Hugh Mackay (2000:34). Public Opinion on Reconciliation: Snap Shot, Close Focus, Long Lens. In Grattan, Michelle (ed.), Reconciliation: Essays on Australian Reconciliation. Melbourne, AU: Black Inc.
  7. GetUp! Action for Australia (2008). Press Release – Majority of Australians support apology for Stolen Generations: first poll in 11 years. Retrieved 21 August 2008 from: http://www.getup.org.au/files/media/getupreleasessorrypoll.pdf?dc =259,360455
  8. Metherell, M. (2008). PM said sorry – and so said more of us. Sydney Morning Herald, 18 February 2008, page 4. Retrieved 5 November 2008 from: http://www.smh.com.au/text/articles/2008/02/17/1203190653987.html
  9. Markus, A. (2002). Race: John Howard and the Remaking of Australia. Sydney, AU: Allen and Unwin; Dodson, M. (2004). Indigenous Australians. In R. Manne (ed.), The Howard Years. Melbourne, AU: Black Inc: 119–143.
  10. Manne, R. (2001). In denial: The stolen generations and the right. Australian Quarterly Essay 1.
  11. Mickler, S. (1998). The Myth of Privilege: Aboriginal Status, Media Visions, Public Ideas. Fremantle, WA: Fremantle Arts Centre Press; Neill, R. (2002). White Out: How politics is killing Black Australia. Sydney, AU: Allen and Unwin.
  12. The van Boven Principles include rights to restitution, compensation, and rehabilitation for victims who have had their human rights and fundamental freedoms violated. These principles were revised to ensure that domestic law is consistent with international legal obligations as well as to ensure that victims are compensated for a State’s violation of international human rights and humanitarian law norms. The United Nations General Assembly adopted the revised version, the Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, also known as the Van Boven/Bassiouni Principles on 16 December 2005. Retrieved 29 April 2009 from: http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/85787a1b2be8a169802566aa00377f26?Opendocument
  13. HREOC (1997). Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. Sydney, AU: Commonwealth of Australia.
  14. Dodson, M. (1999). We all bear the cost if the apology is not paid. In B. Attwood and A. Markus (eds.), The Struggle for Aboriginal Rights: A Documentary History. Sydney, AU: Allen and Unwin: 352–354.
  15. Rudd (2008:para. 1).
  16. Rudd (2008: para. 26).
  17. HREOC (1997:312).
  18. HREOC (1997:304).
  19. HREOC (1997).
  20. HREOC, Aboriginal and Torres Strait Islander Commission [ATSIC
  21. HREOC, 1997.
  22. Ministerial Council for ATSI Affairs (2006:9). Bringing them home: A Report on the economic and social characteristics of those impacted on by past policies of forcible removal of children. Retrieved 21 August 2008 from:http://www.mcatsia.gov.au/cproot/593/4318/Bringing%20Them%20Home%20Baseline%20Report.pdf
  23. Personal communication, 8 May 2008.
  24. Lower, Gavin and Mark Dunn (2008). Stolen generation victim wins $250,000 more. Herald Sun, 2 February 2008. Retrieved 21 August 2008 from: http://www.news.com.au/heraldsun/story/0,21985,23146298-2862,00.html
  25. Cuneen, C. and J. Grix (2004). The Limitations of Litigation in Stolen Generations Cases. Research Discussion Paper 15. Canberra, AU: Australian Institute of Aboriginal and Torres Strait Islander Studies.
  26. Cunneen (2005:68).
  27. Cunneen and Grix (2004).
  28. PIAC (2000). PIAC Submission to the Senate Legal and Constitutional References Committee Inquiry into the Stolen Generation. Retrieved 21 August 2008 from: http://www.austlii.edu.au/au/journals/AILR/2000/37.html