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SENATE LEGAL AND CONSTITUTIONAL REFERENCES

COMMITTEE

INQUIRY INTO THE STOLEN GENERATION

FEDERAL GOVERNMENT SUBMISSION


Senator the Hon John Herron
Minister for Aboriginal and Torres Strait Islander Affairs

Assisting family reunions is the most significant and urgent need of


separated families (HREOC, Bringing Them Home)

March 2000
EXECUTIVE SUMMARY

The Commonwealth Government has responded to the report of the Human Rights and
Equal Opportunity Commissions (HREOC) inquiry into the separation of indigenous
children, Bringing Them Home, with a comprehensive range of measures ($63m) to assist
those affected by the past policies and practices of indigenous child separation.

This submission to the Senate Committees Inquiry into the Stolen Generation
discusses the prevailing attitudes at the time the child separation policies were
implemented and describes the context in which the separation of indigenous children
from their families should be viewed. It also questions the HREOC reports assumptions
about the definition of the stolen generation and the numbers of children affected.

The Commonwealth Governments response to the recommendations of the HREOC


report are detailed in full under the inquirys first term of reference. The role of other
parties in responding to these recommendations is also discussed here.

Proposals to compensate people who were separated from their families and to establish
an alternative dispute resolution tribunal to resolve compensation claims are discussed
under the inquirys second term of reference, along with the appropriateness of the
governments response in the context of the van Boven principles.

The inquirys remaining terms of reference are also addressed in this submission.

The governments position is that its response to the HREOC reports recommendations
has been an appropriate and compassionate one concentrating on providing practical
assistance to those affected by past separation practices. The report itself was entitled
Bringing Them Home and it said: assisting family reunions is the most significant and
urgent need of separated families. The government does not support the payment of
cash compensation. It sincerely regrets the fact that indigenous children were separated
from their families, and recognises that those affected need positive assistance in
reclaiming their lives and families where possible. It should be noted that the
Commonwealth is the only party which has comprehensively taken action to address the
consequences of previous actions and has implemented initiatives to address current
need, although historically the States and non-government organisations such as churches
had primary responsibility.

The principal propositions argued by the Commonwealth in this submission are that:
the proportion of separated Aboriginal children was no more than 10 percent,
including those who were not forcibly separated and those who were forcibly
separated for good reason, as occurs under child welfare policies today. There was
never a generation of stolen children.
the category of persons commonly characterised as separated (or stolen) combines
and confuses those separated from their families with and without consent, and with
and without good reason

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the Commonwealth does not seek to defend or justify past policies and practices, but
it does assert that the nature and intent of those events have been misrepresented, and
that the treatment of separated Aboriginal children was essentially lawful and benign
in intent and also reflected wider values applying to children of that era, as recorded
in other recent official reports concerning illegitimacy, adoption, child welfare and
institutionalisation practices throughout much of the twentieth century. Emotional
reaction to heart-wrenching stories is understandable, but it is impossible to evaluate
by contemporary standards decisions that were taken in the past.
the methodology adopted by HREOC in assembling its evidence concerning the
so-called stolen generation did not involve a critical appraisal or testing of the
claims put before it, and failed to elicit or reflect the views and experience of those
involved in administering the policies and practices in question
the Commonwealth Governments response (a $63m package) to the HREOC report
recommendations reflected the overriding priority identified in the report itself viz
facilitating family reunion and addressing the enduring effects on the people
concerned and that response has been far more comprehensive and substantive than
the responses of any other government or non government organisations in relation to
the many recommendations addressed to them
monetary compensation is inappropriate and improper unless a legal liability can be
established in individual cases through a proper process of claims assessment. In
addition, the prospective Australia-wide cost of compensation, as proposed, is
conservatively estimated (on the premise that only 5 percent of children were forcibly
and wrongly removed) as in the order of $3.9 billion and probably more
the separated child case brought in NSW and evidence given in the current cases in
the Federal Court clearly reveal the hazards of accepting such claims without
thorough scrutiny and testing.
there already exists at common law an avenue for the consideration of legitimate
compensation claims and it is unlikely that a statutory scheme would be more
effective or efficient, unless the bulk of claims were to be accepted at face value, with
consequent financial implications as indicated. Such a scheme would also be divisive
and humiliating for the unsuccessful claimants.
the cost of a proper judicial assessment of such claims is not inconsiderable
reflecting the complexity of researching, reconstructing and adjudicating distant
events but that cost is insignificant compared with the potential compensation costs
of a less rigorous process.

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TABLE OF CONTENTS

EXECUTIVE SUMMARY ii

PART 1 - INTRODUCTION: THE HREOC REPORT 1


KEY ISSUE 1: Who are the stolen generation? 2
KEY ISSUE 2: Why were indigenous children removed? Standards
of the time? 5
KEY ISSUE 3: Was there a stolen generation? How many children
were stolen? 13
National Aboriginal and Torres Strait Islander Survey 1994 13
The research of Mr Peter Read 14
Kamiens study in Bourke 15
National Aboriginal Health Strategy Working Party 16
McKendricks survey of Aboriginal general practice patients 17
Commonwealth held records in relation to the Northern Territory 17
KEY ISSUE 4: Why not compensation? 18
KEY ISSUE 5: What has the Commonwealth Government done to help? 19
KEY ISSUE 6: Responsibility for addressing the effects of indigenous
child separation practices 20
KEY ISSUE 7: The methodology of the HREOC Inquiry 21

PART II THE INQUIRYS TERMS OF REFERENCE 25

Term of reference 1, 2(ii) and 3 25


The Commonwealth Governments response 25
Table summary of Commonwealth Governments response 33

Term of reference 2 (i) 38


Compensation 38
International principles for reparation 38
Why not compensation? 40
Programmatic response 41
Legal liability 42
Impediments to a compensation scheme 43
1. Identifying eligible conduct 44
2. Identifying eligible persons 45
3. Proving claims 46
4. Quantifying loss 48
Conclusion 51
Alternative Dispute Resolution 52

Term of reference 4 54
Term of reference 5 54

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LIST OF APPENDICES 56

Appendix 1 Commonwealth Government response to Bringing Them Home

Appendix 2 Progress report on implementation of Commonwealth Government


Response, 31 December 1999

Appendix 3 Motion of Reconciliation, 26 August 1999

Appendix 4 Ministerial Council for Aboriginal and Torres Strait Islander Affairs
1999 status report on juridicitional responses to Bringing Them Home

Appendix 5 Extract from Patrol in the Dreamtime, the autobiography of former NT


patrol officer, Colin Macleod, from the Sydney Morning Herald, 14 June 1997

Appendix 6 The Policy and Practice of Child Removal in the Northern Territory: A
summary of aspects of policy materials produced in the Cubillo and Gunner cases