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Editors --- "Bringing Them Home: Implementation Progress Report - Digest" [1999] AUIndigLawRpr 34; (1999) 4(3) Australian Indigenous Law Reporter 67

Bringing Them Home:

Implementation Progress Report

The Report of the Follow Up Project on the progress of Australian Governments’ Responses to and Implementation of the Recommendations made by National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families in its Bringing Them Home Report (1997)

HREOC,

Sydney, September 1998.

The purpose of this Report is to inform the community about the responses made by Australian Governments to the 83 Recommendations of the National Inquiry into the Separation of Children in its Bringing Them Home Report, which was tabled in Federal Parliament on 26 May 1997. The report reproduced here was written by Dr David Kinley of the Human Rights and Equal Opportunity Commission, (HREOC) and was completed on 1 September 1998, although its release was postponed until after the Federal election on 3 October 1998. The Follow Up Project reported on in this document was initiated by HREOC in order to facilitate the implementation by governments of the Recommendations made in the original Bringing Them Home Report.^[1] The Project ran for a total of seven months, from its establishment in early December 1997 until the conclusion of the writing of this Report.

NB It should be noted that since the date of publication, the Governments of Western Australia and South Australia have published formal responses to the Recommendations. Western Australia reported on 17 November 1998 and South Australia on 31 December 1998. The substance of the Western Australian response is not significantly different from what which is referred to in this Report as its draft or proposed response (see especially Part 6 of this report).

The Follow Up Project was an initiative of the Human Rights and Equal Opportunity Commission (HREOC) and operated under its auspices. The project manager was Margie Cook, Director of Public Affairs in HREOC. Jan Wade, James Iliffe, Lisa Thompson, Julia Grix and Pauline Fitzpatrick of the Public Affairs Branch and Leanne Smith of the Human Rights Unit all provided invaluable assistance to the Project.

The research undertaken by the Follow Up Project and the compilation of this Report were made possible through funds provided to the Human Rights and Equal Opportunity Commission by the Australian Youth Foundation and the Stegley Foundation.

Every effort has been made to ensure that the information in the Report is accurate as of 1 September 1998.

26 August 1998.

1. Summary of Governments’ Responses to Recommendations

This table provides a collective overview of the responses made by governments to the Inquiry’s Recommendations. Analysis of government responses together with details of individual government initiatives, where they are known, are provided in the body of the Report that follows (specifically Sections 6 and 7).

2. Introduction

On 26 May 1997, Bringing Them Home – the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families – was tabled in the Australian Parliament. The Report was researched and compiled over a 20-month period, from August 1995 to April 1997. It made 54 ‘head’ Recommendations (and 83 separate Recommendations in total)^[2] for change, to address what were referred to in the Report as ‘the continuing devastation of the lives of Indigenous Australians’ caused by the laws and policies of the removal of Aboriginal children from their families. Implementation of most of the Recommendations requires action to be taken by the Commonwealth Government and/or the States and Territories Governments.

3. Purpose and Form of this Report

The purpose of this Report is to inform the community as to the key contents of those responses made by Australian governments to the Recommendations of the National Inquiry and the general state of their implementation, as well as to report on the progress being made by those governments who have yet to respond. In this way, it is considered that community awareness and understanding of the issues involved will be enhanced and the need for implementation, and its further progress, correspondingly advanced.

It must be stressed that the Report does not purport to be a comprehensive account of the all actions taken by the nine governments in full or part response to the Inquiry’s 83 Recommendations.^[3] The enormity of the task to compile such a matrix of individual and joint government responses to each Recommendation is obvious and clearly beyond the bounds of this Follow Up Project. In any case, such a task – like the painting of the Sydney Harbour Bridge – would never be finished. Rather, the aim is to provide a more general account of the governments’ responses. This is reflected in the thematic structure of the Report, where related Recommendations are grouped under broad headings and discussed collectively. That being said, the Report focuses on the principal initiatives that have been taken by governments (as well as those that have not) which bear significantly on the matters of concern raised by the Recommendations. The form of the Report is largely descriptive, though an effort has been made to place governments’ responses in the context of the aims of the Inquiry’s Recommendations. There is room, therefore, for others to draw inferences and to analyse further the actions of our governments in this regard.

4. About the Follow Up Project

The Commission has continuing statutory responsibilities that relate to the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families. Pursuant to these responsibilities the Commission established the Follow Up Project in order to facilitate the implementation by governments, in their individual and collective capacities, of the Recommendations made in the Report. The Project ran for a total of seven months, from its establishment in early December 1997 until the conclusion of the writing of this Report in late June 1998.^[4]

Specifically, the Project had four objects:

(i) To fulfil statutory obligations

Under s 46C of the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA) the Commission, through the office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, is required to report on, and generally to promote, ‘the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders’.

Under ss 11(1)(e),(f),(g),(h) & (p), 13(1), 14(1) and 29(1) of the HREOCA the Commission is further and more extensively empowered to examine current or proposed enactments and practices regarding their compliance with human rights. It is also empowered to research into and to promote human rights in Australia in such manner as the Commission sees fit, and to report on its findings.

The Commission's concern to see the Recommendations of the Report implemented and its establishment of the Follow Up initiative to assist and assess that process clearly fell within each of these enumerated statutory obligations and provisions.

(ii) To explain the findings and Recommendations of the National Inquiry

Though the Report’s Recommendations are clear on their face, the Commission appreciated that there was a need for their scope and rationale – including the findings that lie behind them – to be more fully articulated, especially in the context of governments faced with the practicalities of implementing the Recommendations.

As author of the Report, the Commission was naturally well placed to provide aid to a range of parties in this respect.

(iii) To facilitate inter-governmental communication

As the nature of many of the Recommendations requires a common or coordinated response from Australian governments, there is a need for an ongoing institutional and procedural framework for inter-governmental coordination and communication to facilitate this process.

The Ministerial Council on Aboriginal and Torres Strait Islander Affairs (MCATSIA) has been charged with the primary responsibility for coordinating cross-governmental implementation of the Report’s Recommendations at a ministerial level. There appeared, however, to be a need for communication and coordination between departmental officers on more informal terms and on a more regular basis than is possible through MCATSIA. The Project, therefore, was viewed as a supplement to the MCATSIA process, not a substitute for it.^[5]

(iv) To facilitate communication and mutual assistance between governments and the National Indigenous Working Group on Stolen Children

In so far as it was able, the Commission assisted in establishing lines of communication and understanding between governments and the National Indigenous Working Group on Stolen Children. It was intended that the concerns both of governments and Indigenous people regarding the former’s responsibilities for implementation of the Recommendations would be more fully appreciated and better addressed in advance of implementation, as well as in the process of implementation.^[6]

5. Methodology of Follow Up Project

In respect of each of the nine Australian governments, the Department or agency responsible for the construction and/or coordination of the government’s response to the National Inquiry’s Report, or, more generally, had carriage of the Aboriginal or Aboriginal and Torres Strait Islander Affairs portfolio, was identified and the responsible Minister approached. In each case a meeting was sought initially with that Minister, the Director or Chief Executive Office of the relevant agency and other officers, as well as Ministerial advisers. Despite concerted efforts, it was not always possible for all of these people to attend the meeting in respect of each jurisdiction.

Meetings with each government were held, though the composition of the government representatives varied from jurisdiction to jurisdiction. In each case, however, the meetings were attended by Sir Ronald Wilson and Dr David Kinley, representing the Commission, and a local member of the National Working Group on Stolen Children and/or a representative or representatives of other local Indigenous bodies concerned with stolen children issues. A list of all meetings and of all who attended them is provided in Appendix A. The meetings were conducted in each jurisdiction throughout the period of February to late April 1998.

Meetings were held with the responsible Minister in three jurisdictions – namely, the ACT (Mrs Carnell); New South Wales (Dr Refshauge), and Tasmania (Ms Swan). Meetings were held with representatives of appropriate departments in all jurisdictions. In the case of the Commonwealth Government, however, though meetings were held with officers of the Department of Health and Family Services (and with a member of the office of the Minister for Health and Family Services) and with officers of ATSIC, no meetings were held with officers from the Office of Indigenous Affairs in the Department of Prime Minister and Cabinet or from the office of the Minister for Aboriginal and Torres Strait Islander Affairs.

A constant feature throughout the progress of the Project was the involvement of the National Indigenous Working Group on Stolen Children, especially through its co-chair Ms Carol Kendall. In particular, it was always the case that the Indigenous representative or representatives from each State and Territory that attended the Follow Up Project meeting in that jurisdiction also sat on the National Indigenous Working Group. Invariably a meeting was held with the Indigenous representative or representatives immediately before the scheduled meeting with the relevant government.

Questions and discussions in the meetings centred on each government’s response where there was one (in the case of the Commonwealth, Tasmania and Victoria) or progress of response to the Inquiry’s Recommendations, as well as issues and initiatives raised by each government in their respective submissions to the Inquiry throughout its term.

Pertinent information and materials were obtained from governments both during and after the meetings. Indeed, a significant part of the collection of material occurred by way of numerous communications with agencies representatives in the months that followed the initial meetings. Inevitably, some information will have been missed. Generally speaking, agencies were open and willing to provide all that they could and were frank in their answers to our many queries. But it is true that some were more cooperative than others.^[7]

6. Overview of Government Responses and Implementation

Progress of responses

On 31 July 1998, one year and two months after the tabling of the National Inquiry’s Report in the Commonwealth Parliament, five governments had delivered formal responses to the Recommendations of the National Inquiry. They are, in order of delivery, the following:

• Tasmania, on 17 August 1997 (43 pages; including full recitation of each Recommendation).
• Victoria, on 17 November 1997 (60 pages; including full recitation of each Recommendation).
• Commonwealth, on 16 December 1997 (13 pages).
• Queensland, on 7 April 1998 (18 pages; including abbreviated descriptions of Recommendations).
• ACT, on July 1998 (17 (A5) pages; including full recitation of each Recommendation). One apparent complicating factor in the preparation of the ACT’s response was the holding of an election during the period of the response’s compilation.

Formal responses are in the process of being compiled in all of the other five jurisdictions. In respect of South Australia and Western Australia the process is well advanced, in that it is our understanding that completed draft of the response is awaiting Cabinet approval.

In respect of New South Wales, a detailed draft response had been prepared by the Government, but on its presentation to the Steering Committee in May 1998, significant concerns were raised as to its form and content. The Government is currently reviewing how best it can meet those concerns in its response,^[8] but in any event anticipates making a response by September 1998. The Government published a brief Statement of Progress on 26 May 1998. In addition, however, it should be noted that the New South Wales Government kindly made available a draft summary of its response (dated April/May), on the condition that its use in this Report be acknowledged as such and that it be further noted, in particular, that the summary ‘is not endorsed by either the Department of Aboriginal Affairs or the Minister for Aboriginal Affairs at this stage, as it is yet to be considered by Aboriginal communities and organisations’ in forthcoming consultations (on which see further, below).

In respect of the response of the Northern Territory Government, it is our understanding that it has been approved in outline by Cabinet and is presently being finalised. In any event, in the meetings with each of the governments it was indicated to the Project team that each of the governments whose response is outstanding expected to deliver their response within a matter of months, and almost certainly before the end of 1998.

In the meetings with those governments yet to respond, the Project team was told repeatedly that one of the reasons for delay was to await the delivery of the Commonwealth’s formal response.

Funding specifications

Breakdowns of the financial implications initiatives are not provided in the responses of Queensland, Tasmania, Victoria and the ACT. Some specific sums are nominated (though in the case of Queensland, none of these appear to relate to newly funded initiatives established or to be established in direct response to the Inquiry’s Recommendations) and these are referred to under the particular headings in Section 7 below. A total amount of new funding of more than $425,000 over two years was announced in a statement that accompanied the Victorian Government’s response.^[9] No such total sum of new funding has been provided by Tasmania, Queensland or the ACT.

In anticipation of the publication of its response, the Western Australia Government, in the form of the Minister for Aboriginal Affairs, Dr Kim Hames, announced on 20 May 1998, that ‘$1 million had been provided in the 1998-9 State Budget to begin the initiatives outlined in the response’.^[10] These initiatives (as discussed further below) are concerned with records access and management, regional information and counselling services. The Minister also stated that approximately $600,000 would be recurrent funding for these services.

The Commonwealth’s response contains a broad outline of funding for the initiatives it proposes. This outline is reproduced below. Details as to the breakdown of the proposed expenditures were not provided in the response.

Total Commonwealth funding package = $63 million ($54 million ‘new’ funds) over an average of four years

• $39.15 million: employment and training of 50 additional counsellors ($33.25 million); research, clinical support and parenting programs ($5.9 million). To be administered by the Commonwealth Department of Health and Family Services (DHFS).
• $11.25 million: establishing a national network of Link-Ups. To be administered by ATSIC.
• $2 million: indexing and preservation of records. To be administered by Australian Archives.
• $1.6 million: to run an oral history project. To be administered by the National Library.
• $9 million: to bolster the work of language, culture and history centres. To be administered by ATSIC. It must be noted that this amount comes from within ATSIC’s existing general purpose budget.

These figures are confirmed in the 135 page statement issued by the Minister, Senator Herron, entitled Addressing Priorities in Indigenous Affairs, delivered on the same day as the Budget was handed down (12 May 1998).^[11] Specific details of the breakdown of these amounts were not provided in the statement. However, the appendices to the statement do provide some additional general information about the departmental programs through which the funds will be channelled, as well as the expected outcomes.^[12] This additional information is discussed under the appropriate sub-headings in Section 7 below.

Structure of responses

The responses of Tasmania, Victoria, Queensland and the ACT are in the form of specific consideration of each of the Report’s 54 Recommendations (and sub-divisions, where appropriate), as regards the nature and extent of what the governments perceived to be their responsibilities. In each case, the responses begin with a brief overview of the background of the National Inquiry, the general strategies of the government in question in respect of Indigenous issues and specific initiatives (whether ongoing or planned) that bear on the issues raised by the Inquiry.

Themes:

Cross-portfolio coordination in compiling responses

It was recognised by all governments that the broad scope of the Inquiry’s Recommendations was not confined to the responsibilities of Aboriginal and Torres Strait Islander Affairs portfolios. The matters covered in the Recommendations fall within the bounds of a number of government departments. Typically, the other ‘mainstream’ portfolios affected are those covering human, community and family services, health, education, youth affairs, records and archives, Attorney-General’s, justice (and juvenile justice, if separate), police and finance.

A direct consequence of this cross-portfolio responsibility was that a coordinated approach to the compilation of individual governments’ responses was invariably adopted. This approach took the form of the establishment of a Steering Committee (in New South Wales)^[13] or an Inter-departmental Committee (in Victoria, Western Australia and the Commonwealth). In the alternative, the Department or Office responsible for Aboriginal and Torres Strait Islander affairs acted as coordinator (in the ACT, Queensland, Northern Territory and South Australia) or the offices of Premier and Cabinet Office (Tasmania and Western Australia) or Prime Minister and Cabinet (the Commonwealth) took on the role.

Cross-portfolio coordination in responding and monitoring implementation

Just as the breadth of issues encompassed by the Recommendations required a coordinated, cross-portfolio response, so the implementation of the governments’ responses will require a coordinated scheme of supervision and monitoring. This need has been foreshadowed by some governments. For example, the Office of Aboriginal Affairs in Tasmania has indicated that it will be undertaking a review of the government’s response by September 1998. The Victorian Government has proposed a more elaborate three-tier scheme for monitoring implementation involving regional reference groups, a monitoring Inter-Departmental Committee, and a commitment from the Government to report annually to Parliament on the progress of implementation.^[14] In respect of the other governments (including the Commonwealth) it is proposed or supposed that the Department that has carriage or primary carriage of Aboriginal affairs will perform this coordinating and supervisory role. In the apparent absence of any cross-portfolio coordination in Queensland, the advisory and monitoring responsibilities are to lie with the Government’s peak Indigenous advisory body, the Indigenous Advisory Council (see below). However, implementation would seem to remain the responsibility of the lead agency – the Department of Families, Youth and Community Care. Though the ACT’s Aboriginal and Torres Strait Islander Consultative Council presently has responsibility for monitoring the government’s response to the RCADIC Recommendations, there appears to be no plans to extend its terms of reference to include monitoring of the implementation of the Recommendations in Bringing Them Home.^[15]

Inter-governmental cooperation in monitoring implementation

The question of Australia-wide, cross-government monitoring of governments’ implementation of responses is yet to be fully addressed. The suggested structure that constitutes Recommendation 2 of the Inquiry – that is, principally, the establishment of an ‘Audit Unit’ within HREOC to which peak Aboriginal bodies would provide evaluating advice and to which governments would submit annual reports – has not been favoured. The Commonwealth’s response provided no indication what so ever as to the process of monitoring, nationally, implementation at a national level. No funding, it appears, will be forthcoming for the establishment of the recommended Audit Unit (Rec 2(b)), and none for ATSIC to assist SNAICC, NACCHO and NAILSS to advise the Unit on behalf of Aboriginal communities (Rec 2(c)).

It was made clear to the Project Team that governments had no desire to follow the monitoring system employed for the implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCADIC), which, it was felt, had not been successful. It is our understanding that the Ministerial Council of Aboriginal and Torres Strait Islander Affairs (MCATSIA) indicated in its August 1997 meeting that rigid, Recommendation-by-Recommendation style of the monitoring of implementation applied to RCADIC, ought not to be applied to the monitoring of the implementation of the National Inquiry’s Recommendations.^[16]

It is understood, furthermore, that during the same MCATSIA meeting, it was resolved that a working-group be established with the broad aim of considering issues concerning implementation, including the monitoring of the implementation of responses. Victoria was charged with the responsibility for the setting-up of the working-group. At the time of writing the working-group has not yet been established. It is understood that the intention is to establish the body after – rather than in advance of – all governments having finalised and published their individual responses. The Project team has been assured nonetheless by the Office of the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs that ‘MCATSIA will be providing inter-governmental coordination mechanisms as required’.^[17] It is unclear how this object is to be achieved.

Involvement of Indigenous communities

Given the nature of the National Inquiry, the involvement of Indigenous people in the governments’ formulation and implementation of responses to the Inquiry’s Recommendations is a matter of especial importance. In any event, the necessity of Aboriginal and Torres Strait Islander peoples involvement in the making and implementation of policies that directly affect them has been unequivocally recognised by all Australian governments in the National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders,^[18] where it is stated that:

[t]he Governments of Australia, in making the National Commitment, have as guiding principles:

...

the need to negotiate with and maximise participation by Aboriginal peoples and Torres Strait Islanders through their representative bodies, including the Aboriginal and Torres Strait Islander Commission, Regional Councils, State and Territory advisory bodies and community-based organisations in the formulation of policies and programs that affect them;^[19]

There are a number of levels at which Indigenous communities have been involved in the governments’ compilation of responses, and could be involved in the future implementation of those responses.

In terms of the level of representation of Indigenous communities, the scope stretches from government departments of Aboriginal and Torres Strait Islander affairs and governmental advisory or consultative bodies, through quasi-governmental or non-governmental peak Indigenous bodies, to specific small groups or individuals. Any of these, in turn, might be involved with government as a whole or with individual departments.

The form of the involvement, what is more, is equally variable, ranging from full consultation and collaboration, through the provision of advice to governments, to mere notification by governments of that which has been, or will be done. Involvement in the process of determining the content of a government’s response has been through formalised and regular broad-based consultations, or advice sought, on all issues affecting Indigenous peoples (as is the case with the Commonwealth^[20] and in the ACT^[21] and Queensland),^[22] or has been through involvement related specifically to the matter of the stolen generations (as in New South Wales^[23] and Victoria).^[24] The relevant departments of Aboriginal affairs also gauge the opinions of Indigenous communities through the links that their own Indigenous staff have with the communities and more informal liaisons. In the absence of additional consultative processes in some jurisdictions, it is this form that is principally relied upon in Tasmania, Northern Territory, South Australia and Western Australia.

All governments have, to some extent, consulted and are consulting, with Indigenous peoples and representatives of communities, even if it is no more than is usual for the relevant department to undertake in the process of policy-formulation. With the exception of a initiative in New South Wales, however, it has not been possible for the Project Team to identify precisely when, in what manner and how often Indigenous communities or Indigenous representative bodies were engaged in such discussion in respect of all governments.

In New South Wales, the Steering Committee established to oversee the compilation of the government’s response (discussed above) has, apparently, been successful in insisting upon the importance of consultations with Indigenous communities. In May 1998, the Government agreed to hold a series of public forums in conjunction with Link-Up New South Wales, around the State with the aim of seeking advice ‘on the most appropriate ways to target ... programs and policies to better suit the needs of the Stolen Generations’.^[25] Six such forums were held during July and August 1998. Part of the significance of this initiative lies in the fact that the Government has effectively been prepared to forego its (by then) near complete draft response, which it will now use as a base or framework for the production of a more direct, succinct and intelligible document.

It must be stressed, nonetheless, that there is some difficultly in measuring how successful any of these efforts (including the New South Wales initiative) have been, or will be, in terms both of reaching Indigenous communities and reflecting their concerns in the resulting policy initiatives of governments.

The necessity of government action

The bulk of the Inquiry’s Recommendations are directed towards the governments; to this extent it is the responsibility of governments (singly and collectively) to respond to them and, where accepted, to implement them. But even in respect of those Recommendations that are not apparently directed at government, they would best be implemented with the co-operation of government, or at least in parallel with governmental actions, initiatives, regulations or laws: see for example the commentary below on Recommendations regarding access to private collections of records (Rec 38); provision of counselling services by non-government bodies (Rec 40); and, the consideration of the return of private land holdings: Rec 41.

What is more, the need for action on the part of all Australian Governments in this particular regard must be understood within the broader context of the governments’ collective commitment to ‘improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders’ made in the National Commitment.^[26]

Added to this, in respect of the Commonwealth Government, Senator Herron in his 1998 Budget day Statement Addressing Priorities in Indigenous Affairs, pronounced that:

[t]he government came to office with a firm commitment to address the unacceptable level of disadvantage suffered by Australia’s Indigenous people, particularly in the key socio-economic areas of health, housing education and employment;^[27]

and that:

[t]his government is committed to ensuring value for money in Indigenous affairs by systematically targeting areas of greatest need, particularly in rural and remote communities where access to mainstream services is limited.^[28]

He further announced that:

w]e have implemented innovative and responsive policies such as the ATSIC/Army initiative, support for Indigenous businesses, and the trachoma project. We are also providing generous levels of funding. We will spend over $700 million more in real terms in our first four years in office than we spent in the previous four years.^[29]

Divisions of responsibilities between governments

Certain Recommendations of the Inquiry are expressly directed towards specific governments or levels of government, whilst others are directed, or may be presumed to be directed, towards all or a number of governments. In the latter case, it was supposed by the National Inquiry that the most appropriate level or levels of government would assume individual, collective or parallel responsibility for addressing the issues raised and/or implementing the Recommendations made.

From the existing government responses, and from the Project Team’s consultations with governments, it is clear that perceived demarcations of responsibilities between the Commonwealth, States and Territories are also instrumental in determining responsibility. The ready resort to federal divisions has had the unfortunate consequence of the responsibility for many issues being shunted between governments. See further, ‘Summary of Governments’ Responses to Recommendations’ in Section 1 above.

National legislation

The National Inquiry made a number of Recommendations calling for the introduction of national legislation. A strict adherence to Federal divisions of responsibilities clearly presents an insurmountable obstacle to the implementation of these Recommendations. Two forms of national legislation were proposed:

(i) national framework legislation (Rec 43) – such legislation, which would be structural in form, would have the object of promoting self-determination through consultation and co-operation between governments and Indigenous peoples at community and regional levels in respect of the development and implementation of policy and legislation; and,

(ii) national standards legislation (Recs 44-53) – such legislation, which would be more detailed and likely be binding at all levels of government, would aim to establish minimum and/or ‘best practice’ standards in government/Indigenous community interrelations in respect of policy and legislative initiatives.

The specific areas covered under both proposals are broadly the same – namely, children’s care and protection, welfare and adoption and juvenile justice, including police, judicial and government departmental functions.^[30]

It is apparent both from the discussion in the previous section of this Report and from the Project Team’s consultations with governments, that there is no consensus among Australian governments to pursue such uniform legislative goals through COAG or appropriate Ministerial Councils. Indeed, quite the contrary appears to be the case. The current situation is that each jurisdiction is being left to pursue those goals relevant to the issues covered by the Recommendations in a way, and to an end, that best suits its particular circumstances.^[31]

Senator Herron stated in the Commonwealth Government’s response that for ‘the Commonwealth to seek to override the legislative and related responsibilities of the states and territories in these circumstances would, I believe, be counter-productive for all concerned.’^[32] It must be said in reply to this that the Inquiry’s Recommendations do not require such an ‘override’ stance to be taken by the Commonwealth; in fact, quite the reverse. What they suggest is that the Commonwealth take a lead in ensuring a cooperative approach to establishing common frameworks and setting common standards in achieving common goals.

Although a ‘top-down’ approach to national legislation might be the most desirable and the most efficient means of delivery, it is clearly not an option that has found favour with governments. Nevertheless, the process of separate government responses and initiatives can yield best practice models which may, by way of a ‘bottom up’ effect, develop into national legislation. The particular, pragmatic advantage of this approach is, as a number of governments pointed out to the Project Team, that it reflects the political reality of federal/state relations, whilst still allowing for the goal of progressing towards some form of uniformity.

The National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders,^[33] the New South Wales Government’s Statement of Commitment to Aboriginal People,^[34] and the Victorian Koori Services Improvement Plan^[35] are examples of frameworks at the policy level, which conceivably form the basis for the establishment of framework legislation. To this end, the National Commitment talks of a ‘framework for improving outcomes’ ^[36] for Indigenous peoples; the Victorian Strategy talks of ‘an “umbrella” framework within which both existing and future ... policies for Koori services will sit’,^[37] and the New South Wales Statement declares itself to be the ‘foundation for moving forward’.^[38]

Likewise in respect of standards, policy statements in one form or another exist in most jurisdictions in the areas of Indigenous health, welfare, education and juvenile justice (as discussed below). Individually and collectively (as most share common themes) these policies provide the basis for common legislative standards for consultations with, and the delivery of services to, Indigenous peoples and communities.

It must be said, however, that, with the notable exceptions of the widely adopted Aboriginal (or Indigenous) Child Placement Principle (ACPP or ICPP) and a patchwork of juvenile justice standards (both of which are discussed below), the current position is one of potential rather than actual delivery. The potential of the policy statements, in other words have yet to be translated into legislation.

Coordination between governments

In the National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders it is stressed that the Australian Governments’ ‘have agreed on the need to achieve greater coordination of the delivery of programs and services by all levels of government to Aboriginal peoples and Torres Strait Islanders.’^[39] The same document also declares ‘effective coordination in the formulation of policies and the planning and management and provision of services to Aboriginal peoples and Torres Strait Islanders by governments’ to be one of the ‘guiding principles’ for governments.^[40]

Unsurprisingly, given the insistence on the demarcation of governmental responsibilities, inter-governmental coordination has foundered. As noted above, the COAG never addressed the issue; the MCATSIA delegated the matter to a working group and the working group has not yet been convened.

The significance of apologies

A significant dimension of the governments’ responses has been the matter of making of officially sanctioned apologies. It is fair to say that whatever else is contained or is to be contained in individual government responses, the tone of that response is largely set by the fact of whether an apology is made or not and where one is made, its form and tone.

It is important to stress that context in which these apologies and refusals to apologise by Australian Governments accrued. For local governments, trade unions, churches and other non-governmental groups, as well as a great many, individual Australians (culminating in the ‘Sorry Day’ events on 26 May 1998) were all moved to express in their own words, messages of apology, acknowledgment or regret.

7. Implementation in specific areas

(i) Apologies/statements of regret [Recs 3,5, 6 & 7]

Some heads of government and relevant ministers made statements of apology or regret in their own right, but the definitive statements of apology were those made by the corresponding Australian Parliaments. Seven of the nine Parliaments in Australia passed motions of apology expressing, in slightly different forms, feelings of deep or sincere regret for the hurt and distress suffered by Indigenous people as a result of the policies of forced separation of Aboriginal children from their families.^[41]

The two jurisdictions in which neither the government nor the Parliament issued statements of apology were the Commonwealth and the Northern Territory. In both cases the underlying reasoning for not doing was the notion that the generations of today ought not to be held responsible for the wrongs of former generations.

The Prime Minister proclaimed in his speech opening the Australian Reconciliation Convention in Melbourne on 26 May 1997 that ‘Australians of this generation should not be required to accept guilt and blame for the past actions and policies over which they had no control’.

In the same vein, Mr Tim Baldwin, the Northern Territory Minister for Aboriginal Development stated in a debate on the issue of an apology in the Northern Territory Assembly, that ‘any call for an apology for the policies of past Commonwealth governments does not involve this government, given that those policies pre-dated self-government in the Territory’.^[42]

Clearly, such concerns were not so dominant in the thinking of the other seven Australian jurisdictions.

The cleavage between the past and present is echoed in the Response of the Commonwealth Government in which the Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, stated first that ‘... we do not believe that our generation should be asked to accept responsibility of earlier generations, sanctioned by the law of the times ....’. However, Senator Herron then added that, ‘we fully accept that we of this generation have an obligation to address the consequences of those actions and policies’.^[43]

It is in this two-part approach that the heart of the controversy over the making of official apologies lies, for it is claimed that a critical feature of any meaningful ‘addressing of the consequences’ by governments has to be an acknowledgment and expression of regret on the part of those governments for what occurred in the past. The claim of a current government’s lack of any direct responsibility for the actions of past governments is to overlook a fundamental and enduring feature of Australian democracy – namely continuing responsible government. As a member of the Northern Territory Parliament stressed during the Legislative Assembly’s debate on the question:

No one accuses this government of any wrongdoing in this matter. This government simply was not in existence at the time. No one accuses this current federal government of ill-doing in this matter. It is a very different government. It is a very different time. However, this government and the federal government are the bodies politic ... the only authorities that can ‘say’ sorry, that can issue an apology on behalf of all Australians.^[44]

In respect of State Police Forces, the New South Wales Police Commissioner, Peter Ryan stated publicly on 21 May 1998: ‘On behalf of the New South Wales Police Service, I offer a sincere apology to members of the “stolen generations” and to all Aboriginal and Torres Strait Islander people for the prominent role that police played in enforcing past unjust laws’.^[45] No other police force has formally apologised. The Queensland Government notes, however, in its response that ‘[t]he historical role of the police in the removal of children was acknowledged during the Inquiry by Inspector Col Dillon, formerly Inspector in Charge of the Cultural Advisory Service’.^[46]

Sorry Day – 26 May 1998

This date, which marks the first anniversary of the tabling of the Bringing them home Report in the Commonwealth Parliament, was decided upon by the National Indigenous Working Group on the Stolen Generations (NIWGSG) to be the most appropriate to mark the commemoration of the history of forcible removals and its effects (Rec 7). The NIWGSG formulated a one page statement articulating the objects of the Sorry Day (a copy is attached in App B) and facilitated the holding of events across the country. Certain Governments and certain agencies within government actively encouraged and participated in these events. The NIWGSG received a grant of $20,000 from ATSIC to assist it in its organisation of Sorry Day activities.

It is not yet settled whether the Sorry Day will be an annual event.

(ii) Telling, recording, keeping and accessing stories [Rec 1]

At the national level, the Commonwealth has provided $1.6 million for an oral history project to be run over four years by the National Library. The objectives of the project are the:

Documentation of personal and social experiences of Indigenous Australians who were affected by the various separation programmes and of those involved in administering and implementing these programmes.^[47]

There will be an initial ‘pilot project’, to commence in 1998 and to run for 12 months, during which time 30 'oral history interviews' will be undertaken. The object of the pilot project is, according to the Commonwealth, to test the feasibility of a full scale project and to determine arrangements for its establishment should it be considered feasible. The envisaged outcome is for there to be established ‘a permanent national record of a significant period in Australian history, and a publication based on the testimonies of participants in the oral history project’.^[48]

No details as yet have been provided as to the extent of the full-scale project – that is, the number of histories to be recorded, and the methodology of the project – that is, how the histories will be collected, where and by whom.

Also at the national level and as noted earlier, ATSIC is to increase its funding of the 20 or so regional language and cultural centres by $9 million over the next three years. This additional amount, however, is not ‘new money’ but rather will be drawn from the ATSIC’s General Purpose grant.^[49] According to the Commonwealth government these funds ‘will be targeted to areas of greatest priority in relation to culture and language maintenance’. Furthermore, the government anticipates that ‘extensive’ community consultations will precede the setting of any funding priorities.^[50]

At the level of States and Territories’ language and cultural initiatives, the landscape of current and future schemes is varied.

In its response, the Victorian Government announced that the pre-existing Koori Oral History Program, administered by the Koori Heritage Trust, is specifically ‘to record the stories of Aboriginal people affected by separation from their families’.^[51]

The New South Wales Government has indicated that the ‘State Library would work with the relevant Government and Aboriginal Organisations to establish an oral history strategy’.^[52] The Government also pledged $40,000 seed money to the New South Wales Stolen Generations Memorial Foundation.^[53] It is a primary intention of the Foundation that a ‘keeping place’ be built as a monument and memorial to those affected by the policies and practices of separation.

It should be noted that under a grants scheme operated by the Community and Personal Histories Section of the Queensland Department of Family Services and Aboriginal and Islander Affairs, funding (up to a maximum of $5,000) can be obtained to aid, among other initiatives, the establishment or maintenance of oral history, family or community history projects. See further below under ‘Record Keeping’.

The ACT Government has allocated $2.5 million for the construction of an ACT Aboriginal and Torres Strait Islander Cultural Centre (to be opened in 2001). The Cultural Centre’s vision is ‘to retain, maintain and share cultures of contemporary Indigenous peoples in the ACT region, with special recognition of the traditional owners – the Ngunnawal people’. In its Response. the Government expanded on the Centre’s ‘underlying philosophy’ indicating that it is ‘to build a place for all people to visit, learn and experience Indigenous cultures as presented by Indigenous peoples themselves. This will include oral histories, exhibitions and associated materials relating to the stolen generations’.^[54]

(iii) Compensation [Recs 14-18 & 41, 42]

The National Inquiry’s Recommendations are based on three foundation principles for monetary compensation:

(a) reasons for compensation, or ‘heads of damage’ (Rec.14) – these cover both loss (in the sense of cultural, land, or economic rights) , and damage (as occasioned by racial discrimination, loss of liberty, abuse, and pain and suffering);
(b) the establishment and operational structure of a fund from which compensation would be paid;
(c) the bases upon which compensation claims will be heard/assessed and the entitlement to a minimum lump sum.

Though no express indication was provided in the Report as to the precise form or process by which compensation payments would be determined, there are essentially three alternatives:

• by way of litigation in the ordinary courts;
• administered through a government department or other agency;
• by way of a tribunal.

No government showed any inclination to be proactive in regard to providing compensation or reparation under the second and third of these mechanisms (the first mentioned requires, of course, no facilitative action on the part of the state beyond the maintenance of the pre-existing court structures), though had considered certain possibilities. In the case of governments, for example in Victoria,^[55] Queensland,^[56] and the ACT^[57] the unequivocal view is that no monetary compensation ought to be or will be paid. It was repeatedly put to us by governments that no matter how far their own thinking had developed on the issues, the matter was unquestionably a national one and therefore would necessarily require a coordinated national initiative. Tasmania, for example, indicated that it would support discussion of the issue at COAG or ministerial council levels. All governments were content for the time being to wait and see what the outcome will be of the various cases currently on foot. All governments were aware (at different levels of acuity) of the various litigation on foot – namely:

• after the serving of more than 700 writs in the Federal Court in the Northern Territory in October 1996, the Northern Territory Stolen Generations Litigation Unit (SGLU) is pursuing two cases in the Federal Court against the Commonwealth – Cubillo and Gunner – on the grounds of alleged breaches of fiduciary duty, negligence, breach of statutory duty, breach of guardianship duty, unlawful conduct and unlawful imprisonment due to unlawful conduct. A date for the joint hearing of these two cases has been set down for 1 March 1999;

• the three cases in New South Wales: the Williams^[58] and Stevens^[59] cases in the New South Wales Supreme Court, inter alia, alleging breaches of fiduciary duties on the part of the State;^[60] and, the Stubbs case which is being run by PIAC currently before the Victims Compensation Tribunal (NSW);
• the Western Australia Aboriginal Legal Service is considering proceeding with a number of joined cases against the State, alleging breach of fiduciary duty.

The ‘watching brief’ adopted by governments in respect of these cases has, invariably, two points of focus: first, the grounds (if any) that courts indicate would provide sufficient basis for damages to be awarded; and, second, if awarded, the magnitude of damages.

Another issue of particular concern for governments is the matter of whether the provision of assessed or ex gratia payments under any administrative (that is, non-curial and non-tribunal) scheme, would necessarily displace any additional civil action in the courts concerning the same issue (as would appear to be the intended effect of Rec 20). State and Territory governments, in other words, are especially concerned over the possibility of being exposed to a ‘double jeopardy’ in respect of compensation payments.

The only evidence of consideration of an appropriate mechanism by which such compensation or reparation might be delivered has been by the New South Wales government. This came by way of a proposal put forward by the Public Interest Advocacy Centre (PIAC) for an ‘Indigenous People’s Reparation Tribunal’ (IPRT). This proposal was submitted to the New South Wales Government and formed part of the Briefing Material issued by the New South Wales inter-departmental Steering Committee which is coordinating the Government’s response. The proposal, which was based on consultations with Link-Up New South Wales, Tranby Aboriginal Co-operative College, Aboriginal legal, medical and children’s services, and members of the Stolen Generations was conceived as an alternative both to seeking redress for legal wrongs through litigation in the ordinary courts and the National Inquiry’s Recommendation for a nationally administered Compensation Fund to be established: Recs 15 & 16. The new Tribunal, it has been suggested, might be based on the form and procedure of the existing New South Wales Victim’s Compensation Tribunal, thereby avoiding the potentially traumatising adversarial features of court-room litigation. In terms of its functions, the PIAC proposal indicates that,

[i]t would be given powers to make orders relating to compensation, based on oral or written submissions, and would also be authorised to make Recommendations relating to the other aspects of reparations as set out in Bringing Them Home; ie apologies, guarantees against repetition, measures of restitution and measures of rehabilitation.

...

Awards made by the Tribunal could be formulated to give classes of people benefits rather than simply limiting relief to individual claimants.^[61]

It may be argued that as some of the remedies envisaged are very different from anything that is currently available from existing tribunals, there is some doubt over how, or indeed whether, the proposed IPRT would be able to deliver them. It is expected that some indication as to how practicable (as well as politically acceptable) the proposal is will be provided in the eventual response of the New South Wales Government.

(iv) Reunion and records issues [Recs 12, 21 - 31, 38 - 40]

Record keeping (access; archiving procedures and transfers)^[62]

The matter of access to, and maintenance of, government held records was an important focus of the National Inquiry as reflected in the final Report. It also featured prominently in the context of governments’ responses and preparations of responses, and in the Project Team’s meetings with governments. It is true that serious problems continue to exist (especially in respect of the provision of counselling services), but equally it is fair to say that out of the ‘stolen generations’ issues addressed by governments, improvements in record keeping have been notable. At least one of the reasons for this would appear to be the relative immediacy of beneficial results that can be attained. The fact that the records are, in the main, still in existence and held by the governments has meant that establishing procedures by which the records can be accessed has been readily foreseeable and practicable.

At the national level, the National Archives of Australia (NAA; formally, ‘Australian Archives’) has been especially active. It established in March 1997, a Memorandum of Understanding (MOU) in respect of access to records held by the NAA in the Northern Territory, with a number of Aboriginal and Islander peak bodies including the Northern Territory Stolen Generations Combined Reference Group. The essential aim of the MOU is to

facilitate access to open period Commonwealth records in the custody of Australian Archives relating to Aboriginal people, including records or information which would otherwise be exempt under s 33(1)(g) of the Archives Act 1983 [that is, unreasonable disclosure of the personal affairs of an individual].^[63]

Specifically and expressly, the MOU is intended to assist Indigenous people affected by separation policies.

It is understood that a similar initiative is under consideration between the NAA and the Public Records Office of Victoria.^[64]

The Commonwealth Government has also provided $2 million over four years to the NAA to compile name indexes, copy and ensure the preservation of Indigenous family records, and to publish ‘detailed finding aids which will enable individuals and organisations from all parts of Australia to locate relevant records more easily’.^[65]

There would also appear to be some expectation of inter-governmental coordination on the question of records. As foreshadowed in the Commonwealth’s response, the Council of Federal, State and Territory Archives (comprising the head archivists in each jurisdiction) has moved in this respect. It is understood that a ‘References and Access Working Group’ established by the Council is due to convene at a forum in Perth in August 1998 with the express aim to share ideas and consider the possibility of initiating a joint agreement on common keeping and access standards for records relevant to Indigenous people affected by separation policies. Such an initiative would provide a sound basis for meeting the demands of Recs 24 & 25 for governments to enter into memoranda of understanding for dealing with the tracing of records interstate and minimum access standards.

Interestingly, in respect of handling interstate enquiries, the Queensland Government notes in its response that its experience ‘suggests that formal memoranda of understanding between States dealing with interstate enquiries may not be necessary’. The Government based this contention on that fact that the practice in the Queensland system upon receiving requests for records information from interstate was simply to send copies of the material direct to the persons concerned. It might be observed, however, that whilst such an approach may satisfy the need to access information it does not take account of important ancillary needs such as counselling which might have to be the subject of some inter-governmental agreement.

The ACT Government on the other hand, is supportive of the development of memoranda of understanding between governments for dealing with interstate enquiries. This is hardly surprising given the peculiar position that exists in the ACT where, as its Response notes, ‘a significant number of ACT records were held previously by the Commonwealth or NSW governments, and a number of people now living in the ACT were forcibly separated from their families in other jurisdictions’.^[66]

Records Taskforces

The Inquiry’s Rec 23 that there be established within the Commonwealth and each State and Territory joint records taskforces has not been universally adopted. The idea of such taskforces being ‘joint’ is not just to ensure that all relevant government departments work co-operatively, but also that non-governmental record-keeping bodies (such as the churches) and Indigenous representatives might also be involved. As yet, however, the involvement of non-government representatives has been inconsistent. Only the South Australia Records Taskforce reaches beyond government departments to include representatives of non-government records holding agencies and aboriginal groups; though the Tasmanian taskforce has non-government Indigenous representation. The Records Taskforce established in New South Wales has consulted with church groups, in its joint initiative with the Department of Community Services ‘Connecting Kin’ Project,^[67] and in Western Australia the Government intends soon to expand its taskforce to include representatives of non-government agencies. It is also the intention of Victoria, that when it’s taskforce is established it shall have both Koori and non-government bodies represented as well as government agencies.

In Queensland, the functions of the taskforce are undertaken by the Community and Personnel Histories Section of the Department of Families, Youth and Community Care.^[68]

In the ACT, there is a contact point in the Adoption Information Service which also acts as a contact point for State and Northern Territory taskforces.^[69]

Access fees?

Access to personal or family history records for Indigenous peoples is generally free (in that there is no fee or it is invariably waived) or at a minimum cost, and is available by right.^[70] Though FOI legislation exists in every jurisdiction except the Northern Territory, it was made clear to the Project Team by all governments except the ACT Government, that there was usually no need to resort to such legislation to secure access. Rather, such access is provided under the adoption, welfare or archives legislation. In the ACT, perhaps because of the limited use made of any access provisions, use of FOI legislation seems to be more readily anticipated.^[71] In any case fees and charges for FOI requests are waived in the ACT in respect of matters relating to the records of people affected by separation.^[72]

In the Northern Territory, where there is no archives legislation,^[73] access is provided either through the above-mentioned MOU in the case of relevant Commonwealth records or the Protocol on Access to Northern Territory Government records by Aboriginal People researching their families (October 1997) (which in large measure mirrors the MOU).

There is also no archives legislation in the ACT.^[74]

Assisting access

A crucial factor in the practical accessibility of records is the ‘user-friendliness’ of the procedures put in place by the agencies to whose records access is sought. Recommendation 27 of the Inquiry highlights the desirability of a ‘one stop shop’ (or ‘first stop shop’) for access. This has proved to be a challenge for all governments. At base, they are faced with a dilemma where on the one hand central records keeping agency (ie the archives office) is best placed to provide access to records originating from across all government agencies. On the other hand the agency responsible for Aboriginal or Indigenous affairs may have the appropriate or greatest expertise and be the agency with which Indigenous communities are most familiar and have most contact. The situation at present varies with each government.

The Victorian Government is still in the process of determining how it will respond to this question. The Public Records office of Victoria plans to hold a series of ‘Public Records Forums’ around the State in the next few months in order to disseminate information concerning current access provisions as outlined in the well received My Heart is Breaking Guide.^[75] The Forums will gather information from Indigenous communities in order to identify what access problems they encounter and how best they might be resolved through modified or new access procedures.

The Tasmanian Government has made a short-term appointment of an Indigenous officer within the Department of Health and Community Affairs whose remit has been to ‘develop a policy framework and establish protocols and procedures that ensure that Aboriginal people have appropriate access to personal information held by the Department and other agencies’.^[76] It is understood that she has also provided a point of entry to government held records for Indigenous people seeking access to them. It is as yet unclear what long term access provisions and staffing will be made in Tasmania.

The Adoption Information Service within the ACT Department of Family Services operates as the contact point for access to records. There is a relatively small demand for the Service: since its establishment in June 1996 there have been less than 10 enquiries.^[77]

Under the Northern Territory Government’s Protocol on access to its records the first point of contact is the Northern Territory Archive Service. The staff of the Service facilitate access directly where possible or direct the applicant either to the appropriate Northern Territory Government agency,^[78] or to the NAA (under the terms of the MOU described above). Though not a ‘one stop shop’, this process appears to be working well.^[79] An apparent gap in this system is that of access to non-government held records. It is unclear what, if any, consideration is given to bringing such records under the umbrella of the government regime, or what assistance or advice is provided for the establishment of separate but appropriate records keeping and access standards.

The position in Western Australia – where until recently there were two parallel records access systems in two separate departments – has been recently rationalised and reformed in response to the Inquiry’s Recommendations. The Department of Family and Children’s Services has established a Family Information Tracing Bureau (FITB), which became operational in mid 1998. The Bureau’s object, as foreshadowed by the Western Australia Aboriginal Affairs Minister, is to ‘provide a comprehensive family and information tracing service to Aboriginal people through a central point of search rather than people having to go to a raft of agencies’.^[80] What is more, the reach of the FITB will be extended through the 23 regional offices of the Aboriginal Affairs Department. $400,000 has been assigned to the FITB for 1998/9, as well as $400,000 provided for the enhancement of the keeping and management of relevant records, particularly, to transfer them to CD ROMS. A sum of $440,000 has been pledged in recurrent funding.^[81]

The Department of Human Services in South Australia provides access to records relating to those affected by past separation policies through the single Link-Up officer located in the adoption unit of the Department. It was made apparent to the Project Team during its meeting with the Government that this scheme does not work well, not least because the officer in question is effectively having to play two roles (ie facilitator of reunions and of records access) which reduces the effectiveness with which records are made available and accessed. Certainly, given the staffing levels of the other States’ records access schemes, the position in South Australia would appear to be grossly under-resourced.

In Queensland the Community and Personal Histories Section of the Department of Family Services and Aboriginal and Islander Affairs provides Indigenous peoples with access to the Department’s historical records that relate to their forebears and the history of the communities they belong or belonged to.^[82] Established in 1992, largely in response to a Recommendation of the Royal Commission into Aboriginal Deaths in Custody (Rec 53), the services provided by the Section are widely accepted as the most progressive in Australia and serve as something of a model for other jurisdictions. The Section is well staffed, in terms both of numbers and Indigenous staff; a ‘user-friendly’ Records Guide is available (price: $25) that advises what is available and how the process of records access works;^[83] and, there is a grants program which funds individual, family and community searches up to a maximum of $5,000.

The employment of Indigenous archivists and/or historical researchers across the States and Territories ranges from more than half of the staff employed in tracing stolen generations records (as in Queensland) to none (as is the present case in Victoria, though in its response the Government has pledged $60,000 over two years for the training of two Koori archivists).^[84]

Prohibition on records destruction

In respect of the matter of prohibiting the destruction of relevant records (Rec 21), the governments’ responses have been varied: in Tasmania, for example, the Government notes in its response that the types of records referred to in the Recommendation have not been destroyed and ‘will continue to be protected by the provisions of [Archives] Act [1983]’,^[85] and in New South Wales a moratorium of one year has been set on the destruction of records.^[86] The Northern Territory Government has stated that it ‘will consider withholding from destruction [relevant] records’,^[87] and the Commonwealth has placed an indefinite freeze on destruction pending the National Archives of Australia taking the ‘necessary steps’ to identify which records are to be withheld from destruction.^[88] In Victoria, records destruction is unlawful unless in compliance with a relevant standard. However, there is no standard for records concerning the separation of Koori children from their families, ‘nor’, in the words of the government’s response, ‘is there any intention to issue such a standard’.^[89] The position in the ACT (where there is no archives legislation) is unclear in respect of the matter of records preservation. The Government has, however, indicated its intention to ‘examine the whole records management regime’.^[90]

Counselling

An important dimension to accessing stolen generations records is the matter of parallel and/or subsequent counselling for those who are seeking or who have obtained access to records. Such is the nature of the records and the circumstances of their access that the effects on individuals and family are potentially traumatic. The need for counselling services is, therefore pressing and constant. It is true to say that all governments recognise the importance of this factor; indeed, some even stipulate that counselling is compulsory for those seeking this type of information (this is the case in Tasmania, for example).^[91] However, in all cases, the provision of counselling through governments’ resources or offices is minimal. None automatically provide ‘on-site’ counselling and subsequent counselling. Rather, the relevant government agencies provide to those who are seeking access to records advice on counsellors (which may be either or both private and state funded) that may or ought to be contacted. During our meetings with governments the concern was repeatedly expressed by Indigenous representatives that formed a part of the Project team in each jurisdiction, that to leave it entirely to the individual concerned to determine whether and when to seek counselling was not as responsible a course of action as could be taken by governments. At the very least, more advice as to the objects of, and potential need for, counselling should be provided to individuals as they embark on the process of seeking access to such records. This is what was envisaged in Rec 30(b) (specifically, points 3, 4 and 5).

Throughout our consultations with State and Territory governments is was made clear to us that many officials saw the $39+ million allocated to health and counselling issues (specifically the foreshadowed engagement of 50 new counsellors) by the Commonwealth Government in its response as going a long way to filling the lacunae each recognised in its counselling services. Though governments did not go so far as to say that such services are the responsibility solely or even primarily of the Commonwealth, all were happy to rely on the uncertain prospect of this funding (see further below) as a reason not to commit themselves in this respect. The Commonwealth initiative in this regard is discussed in more detail below.

Link-Ups and reunion

A vital role is played by State and Territory Link-Ups and like organisations or services. In effect these bodies provide the essential link between Indigenous people who have been affected by the policies and practices of separation and their present needs – that is access to information about their past and help and advice as to what to do with that information including the possibility of reunion with family or communities. The largest, most established and successful Link-Ups are those in New South Wales and Queensland. Though funded through a combination of ATSIC and State government funds, they operate independently of government, though by way of their expertise and their constant interaction with government agencies, they are intimately familiar with ‘how bureaucracy works’ and how best to assist their clients in accessing the material and services they require.

As such, the matter of how governments relate to Link-Up type services – how important they regard them and to what extent they support them is of the utmost importance. This is reflected in Rec 30(a) which calls upon COAG to ‘ensure that Indigenous community-based tracing and reunion services are funded in all regional centres with a significant Indigenous population’. No such action has been taken by COAG.

At the federal level the important role of Link-Up services is alluded to: ‘all Link-Ups reported an increased demand for their services as a result of the ... National Inquiry ...’.^[92] The thrust of the Commonwealth Government’s response in this regard is based on a pledge of $11.25 million over four years to support the establishment of a national network of link-up organisations based on an equivalent of the New South Wales and Queensland services’.^[93] The funds are to be used ‘to expand the existing New South Wales and Queensland services and to establish similar services in other jurisdictions’.^[94] Though the Commonwealth has stated that the funds will be administered through ATSIC,^[95] an independent needs assessment is currently being undertaken which, it is anticipated, will largely determine how and where ATSIC will direct funds. It is to be noted that ATSIC is working with both the Office of Aboriginal and Torres Strait Islander Health Services (OATSIHS) in the Department of Health and Family Services and the National Aboriginal Community Controlled Health Organisations (NACCHO) in respect of the development of these Link-Up services.^[96] As discussed below, OATSIHS is also talking directly to Link-Ups and like organisations about the relationship between them and the proposed 50 new counsellors.

Notwithstanding this increase in funds, the Commonwealth has stressed the fact that although Link-Up services are largely supported by the Commonwealth through ATSIC, the ‘proper responsibility’ for such support lies with the States and Territories. The reality is, however, that with two possible exceptions the States and Territories do not provide, nor is there any immediate prospect that they will provide, significant support for independent Link-Up type services. Exceptionally, the New South Wales Government has pledged $100,000 to be granted to Link-Up New South Wales, for one year only,^[97] and the Queensland Government has announced, without details, that it is to develop a ‘specifically targeted cross-cultural awareness training program to assist reunification of members of the stolen generations with their families and culture and promote understanding of Indigenous culture within the non-Indigenous families involved’ and has employed an individual to work on the project.^[98] Once again, as in respect of the Commonwealth’s allocation of funds for health counsellors discussed above, the temptation yielded to by the States and Territories has been to adopt a ‘wait and see’ approach as to how far the allocation of Commonwealth funds within their jurisdiction will go and with what effect, before considering what they might contribute. The response (to Rec 30(a)) of the Victorian Government is typical in this respect in its pledge to ‘make strenuous representations to the Commonwealth seeking its support for the provision of additional funding for Link-Up’.^[99]

Outside the New South Wales and Queensland institutions, Link-Up services are mostly provided by Aboriginal or Aboriginal and Torres Strait Islander Child Care Agencies. This is far from ideal, as such bodies do not have the resources in terms of funds, personnel or expertise to undertake such a task. The objects of such bodies are in any case, not necessarily suited for the specific task of providing tracing and reunion services to people affected by separation policies. Such people, are now almost invariably adults, even if their relevant experiences occurred when they were children, and therefore the work of a child care agency is ill-suited to their needs. Indeed, it would seem that this very mismatch is one of the reasons why State and Territory governments have not funded them to provide tracing and reunion services.

In some jurisdictions, a Link-Up type service is provided from within a government agency. This is currently the case in South Australia (through the Department of Human Services) and temporarily at least, in Tasmania (through the officer currently employed in the Department of Health and Community Affairs – see above). Debates as to whether it is appropriate to provide such services from within government rather than independent of it are being pursued with vigour in both South Australia and Western Australia.

In our meeting with the Western Australia government it was made clear that from the government’s point of view there was much to commend locating such a service within government; not least of the attractions was the fact that it would avoid duplication of services. Further, it was argued, the responsibility to provide such a service falls to government. In the alternative, the view was put to the government that the service was expressly intended to be community and not government based for the fundamental reason that government - no matter how differently it functions today – was the very agent of the separation policies that led to individuals seeking Link-Up type services. For such individuals, a government agency may still be seen as too confronting an institution to deal with directly. The very success of the non-governmental New South Wales and Queensland models would appear amply to support the need for, and effectiveness of, their role as independent intermediaries.

(v) Health care (counselling; well-being; parenting skills) [Recs 33-37 & 42]

The fact that there are obvious and significant health implications for those affected by past separation practices and policies forms the basis for National Inquiry’s Recommendations in relation to health care. Physical and mental health questions arise both directly from the immediate and long-term effects of separation and indirectly from the subsequent actions taken to trace family and community (in respect of which see above). The health care difficulties are not clearly defined nor are their effects fully understood. As a result, the present and ongoing health problems are potentially enormous.

Governments’ responses to the Inquiry’s Recommendations may be significantly aided by the existing and planned framework for Indigenous health care, particularly at the federal and inter-governmental level, but also at the individual level of some States and Territories. Most importantly in this respect, the Commonwealth has now concluded Aboriginal and Torres Strait Islander Health Framework Agreements with every State and Territory.^[100] The aim of the Agreements is ‘to achieve a health system that is more accessible and responsive to the needs of Aboriginal and Torres Strait Islander peoples, as well as more appropriate services, better linkages between heath services and measurable outcomes’.^[101] The Agreements also envisage joint planning processes which allow for:

• full and formal Aboriginal and Torres Strait Islander participation in decision-making and determination of priorities;
• improved cooperation and coordination of current service delivery, both Aboriginal and Torres Strait Islander specific services and mainstream services, by all spheres of Government; and
• increased clarity with respect to the roles and responsibilities of the key stakeholders.

The Agreements provide the structural framework through which the Commonwealth’s Aboriginal and Torres Strait Islander Emotional and Social Wellbeing Action Plan^[102] is being implemented across the country. The particular significance of the Wellbeing Action Plan is that it is the vehicle for implementation of the Commonwealth Government’s specific health-related responses to the Inquiry’s Recommendations.^[103] What is more, as the Plan was devised, and is being implemented, in consultation with the National Aboriginal Community Controlled Health Organisation (NACCHO), it provides a base upon which the need for further research as outlined in Rec 32 of Bringing Them Home can be met.

The Commonwealth’s responses to the Inquiry’s Recommendations as regards health care focus on Rec 33, and are targeted largely at Indigenous mental health. General health issues, it seems, are picked up within the related broader policy goals of the Commonwealth which it declares are to ‘address directly the effects of severe socio-economic disadvantage suffered by Indigenous people through improved outcomes in health, housing, education and employment’.^[104] Further in this vein, Dr Wooldridge, in a statement accompanying the 1998 federal Budget, pronounced that ‘Indigenous health is a major priority, not only for the Government, but for the nation’.^[105]

In fact, the part of the Commonwealth Government’s response targeted at Indigenous health issues constitutes by far the largest portion of the total response. At $39.15 million over four years,^[106] it comprises significantly more than half of the total budget (see Section 6, above). This amount is distributed across three principal initiatives:

• engagement and training of 50 new counsellors ‘to assist those affected by past policies and for those going through the reunion process’ ($16 million); ^[107]
• expansion of ‘network of regional centres for emotional and social well being, giving counsellors professional support and assistance’,^[108] with the addition of three centres (planned, one each, for New South Wales, Queensland and Western Australia) to the 11 existing centres ($17.25 million);
• ‘further development of Indigenous family support and parenting programs funded through the Health and Family Services Portfolio’ ($5.9 million).^[109]

The 50 additional counsellors are to be distributed (on a pro rata basis) across the 11 (+3) regional centres of the Commonwealth Department of Health and Family Services established or to be established throughout the States and Territories under the Wellbeing Action Plan. On the ground, the regional centres exist and operate either in their own right or within pre-existing State or community controlled Indigenous health centres. Necessarily, therefore, the first two initiatives listed above will be implemented, and will operate, jointly. It is the understanding of the Project Team that the each regional centre will be responsible for training and support of the new counsellors to be placed with them. It is expected that much of the training will be sub-contracted to appropriate local educational institutions.

Under the Wellbeing Action Plan, the development of Indigenous family support and parenting programs was already underway; the additional funding indicated above will, the Project Team understands, supplement that work in the specific respect of gathering empirical data on the ongoing effects of separation on families.

In respect of each of these initiatives the Minister has undertaken to ensure the involvement of his key advisory body on Indigenous health matters – the Aboriginal and Torres Strait Islander Health Council – in the monitoring of their implementation and in advising the Minister accordingly.^[110] Dr Wooldridge has also indicated that the Office for Aboriginal and Torres Strait Islander Health Services (OATSIHS) in his Department ‘has been discussing an implementation strategy with the NACCHO’, as well as working with, as noted above, both ATSIC and NACCHO on the expansion of Link-Up services.^[111] Further, in respect of this issue, it is understood that the OATSIHS is currently meeting and discussing with Link-Ups and like organisations across the country about the placement of the 50 new counsellors; in particular about the prospects for their placement within, or their availability to, such bodies.

As regards the position in the States and Territories it is difficult clearly to identify specific health initiatives adopted in direct response to the Inquiry’s Recommendations. There would appear to be two reasons for this. One is that such ‘new’ initiatives, are placed within existing policy frameworks (usually drawn up in consultation with the appropriate local peak Indigenous organisations), as well as the Commonwealth/State and Territory Agreements. What, in other words, was already in train, is now, or soon may be, modified to address particular issues raised by the National Inquiry’s Report. This is not necessarily a criticism – especially as the overall objects of the State or Territory Agreements (including community consultation and control) commonly correspond with those of the Inquiry’s Recommendations, and the integration of new initiatives with pre-existing ones is often most effective. But is does make difficult distinguishing the new from the existing.^[112]

The second reason follows a familiar pattern in light of observations made earlier in this Report in respect of other broad subject areas. That is, State and Territory governments have been unwilling or unable to make any significant commitments to health care reform in response to the Inquiry’s Recommendations, until they are clearer about the details of the Commonwealth’s commitment of $39.15 million to health issues in its Response. In particular, precisely where, how much and by way of what administrative mechanisms, would the funding be expended in each jurisdiction are matters of concern. This much was repeatedly made clear to the Project Team throughout its meetings with governments.

It is the understanding of the Project Team, that whilst the matter of specific Commonwealth, State and Territory health care responses to the Inquiry’s Recommendations is not scheduled for discussion at the next meeting of the Ministerial Council on Health, it is on the agenda of the next meeting of the inter-governmental, officer level meeting of Community Services Administrators. Consideration has also been given to convening a joint Ministerial Council meeting of health ministers and community services ministers (where the portfolios are separated) to discuss these issues.

The State and Territory health services forums provided for under each Commonwealth/State and Territory Framework Agreement are all scheduled to discuss the various health related initiatives that bear on the Bringing Them Home Report’s findings. These forums, which meet on average every three months, comprise Commonwealth and State or Territory health department representatives, ATSIC representatives and representatives from local Indigenous health care organisations. It is anticipated that these meetings will provide the opportunity to discuss in detail the mechanics of the Commonwealth Government’s health care initiatives; any foreshadowed local initiatives; how best to ensure that local and Commonwealth actions complement each other, and what problems exist or can be foreseen.

Such meetings may lead to a greater understanding of their respective initiatives (especially of the Commonwealth’s), and could form the foundation for more coordinated, and therefore more efficient and effective, implementation strategies.

(vi) Education and training (schools; professional bodies, and community) [Recs 8 & 9]

The Bringing Them Home Report raised the question of education in respect of the history and consequences of the separation policies and practices within the context of guaranteeing against repetition.^[113] Such education, it is believed, if instituted at all levels from school through tertiary institutions and professional bodies, to the wider community, would ensure a better understanding and appreciation of the nature of the past practices and thereby protect against their repetition through design, neglect or ignorance.

No specific initiatives in this regard have been instituted by the Commonwealth Government as it is of the view (not disputed by the States and Territories) that the relevant Recommendations are primarily the responsibility of the States and Territories.^[114] It is pertinent to note, however, one national initiative that has broader community education goals. The nationwide ‘Stolen Children’s Support Fund’ was established as a trust on 25 August 1997. The trustees are Peter Nugent MP (Liberal), Senator Margaret Reynolds (Labour), Senator Vicki Bourne (Democrats), and Professor Marcia Langton. Its objects are essentially educational in character and supportive of the broad educational aims of the Inquiry’s Recommendations. At present it has a relatively small funding base (approximately $12,000). On 26 May 1998, the Prime Minister announced that donations to the fund are tax deductable.^[115]

In schools

At the State and Territory level certain specific actions have been taken in direct response to the Recommendations of the Inquiry. The most conspicuous and significant of these have been the decisions in New South Wales, Western Australia, South Australia and the ACT^[116] to provide every school with packages of material relating to stolen generations issues, including copies of the 30-page Community Guide of the Bringing Them Home Report and the Bringing Them Home video. In Queensland, the Community Guide has been placed on ‘the Education Queensland website Murri Thusi for access by schools and other community members’.^[117]

That having been said, the bulk of existing or planned initiatives in each jurisdiction that are relevant to the Recommendations are systemic in nature, in that they presently constitute or will constitute parts of broad policy platforms and operational strategies. Certainly, in respect of school education, each State and Territory has a specific Aboriginal and Torres Strait Islander education policy within its general education policy.^[118] It was made clear to the Project Team in each of the meetings with governments that it would be through these existing broad policy outlines or consultation arrangements (as in the ACT)^[119] that any future specific initiatives responding to the Inquiry’s Recommendations would be executed. Some education departments have ensured (as in Tasmania)^[120] or recommended (as in Queensland)^[121] that schools include the history of separation policies and practices in appropriate subjects in curricula.

At present, Indigenous culture or history courses in public schools are compulsory only in New South Wales, South Australia and Tasmania;^[122] they are elective courses elsewhere. It is noted, however, as was pointed out in our meetings with governments that such Indigenous specific courses are not the only vehicle through which the history and continuing effects of forcible removal of Indigenous children from their families might be taught. The standard Australian history course ought properly to include such material.

An important part of the process of incorporating these matters in school curricula is the extent to which there is coordinated national approach. At the broadest level, Indigenous Education Agreements (1997-9) have been concluded between the Commonwealth and all State and Territory governments under the Indigenous Education Strategic Initiatives Program. The broad objectives set by these Agreements provide the framework within which the specific goals of Recommendation 8 of the Report could be achieved. At the particular level of developing a nationwide, compulsory Indigenous studies course, there was some suggestion earlier this year that the matter might be pursued both at inter-governmental officer level and Ministerial Council level, but at the time of writing no such action has been taken.

Of relevant professionals and public servants

There has been no national or coordinated inter-governmental initiative as regards the inclusion of stolen generations information in courses. At the State and Territory level initiatives have been sporadic and particular. For example, the Victorian Government response outlines cultural awareness training courses in various forms for police; criminal justice personnel; judges and correctional services personnel.^[123] The Tasmanian Government response refers to a ‘range of training opportunities provided within the public service ... which seek to provide cross-cultural awareness’;^[124] it was indicated to us in our meeting with the Northern Territory Government that similar induction and continuing training exists in the Northern Territory. The Queensland Government response refers to general public service training on cultural awareness; training for front-line child protection and youth justice workers (‘Family Services Officers’) in the Department of Families, Youth and Community Care in relevant matters including the history and effects of forcible removal; and, the current development of appropriate cultural modules for teacher training courses.^[125] In the ACT, Youth Justice staff receive training on Aboriginal culture and the effects of forcible removal, and cross-cultural communication workshops are made available to Family Services staff.^[126] The Australian Federal Police’s cultural awareness training includes consideration of the effects of the forcible removal of Aboriginal and Torres Strait Islander children.^[127]

Typically, governments consider the inclusion of appropriate courses in University education and the training provided by professional bodies to be a matter for these institutions (if not the Commonwealth) to determine for themselves,^[128] and would, in any event, likely require further consultation and consideration.^[129]

(vii) Issues of contemporary separation [Recs 42-54]:

All of the Recommendations made by the National Inquiry have a contemporary focus to greater or lesser extents, but none more so than those which relate to matters of continuing and/or contemporary separation of Indigenous babies, Indigenous children and Indigenous young people from their families or communities.

Recommendations 42 to 52 of the Report relate, to both the deep societal questions of Indigenous self-determination and social justice, and the minutiae of laws, regulations and policies governing families, adoption and child welfare, and juvenile justice. The deep and the detailed go hand in hand; neither set of questions is more important than the other. The challenge is how to ensure that their integrated relationship is understood and issues they raise are addressed as effectively as possible. It was not, and is not, denied that specific relevant initiatives have been taken, as referred to below and as discussed in Chs 20 to 26 of the Bringing Them Home Report. But it was the very fact that they have been taken largely in isolation, without clear reference and linkages to other initiatives in the same jurisdiction let alone reference to corresponding initiatives in other jurisdictions, that forms the basis for the Recommendations in this area.

It was an appeal to this rationale that precipitated in these Recommendations such a strong focus on national legislation, or at least inter-governmental cooperation. At base, it was considered that where nationwide strategies for the twin goals of self-determination and social justice for Indigenous people could be set, the problems associated with the gross over-representation of Indigenous people in matters of child welfare and juvenile justice would begin to be addressed and concerns over contemporary separations correspondingly allayed.

Self-determination and social justice

At the broad level, the view adopted by the Inquiry was that the most appropriate and the most effective means by which to establish a stable and lasting framework for achieving greater self-determination and social justice was by national framework legislation and national standards legislation.

However, as is detailed earlier in this Report (in Section 6 above), there is no immediate or even long-term prospect of such national legislation being introduced. Crucially, there is no consensus among Australian governments to act in such a concerted manner. As so much of the leadership responsibility for such an initiative falls to the Commonwealth Government, without its active support – or worse, in the face of its opposition to the idea^[130] – the initiative is doomed.

Having said that much, there have been some significant instances of specific or systemic initiatives that bear on issues raised by the Recommendations. These take various forms, ranging from ‘weak’ to ‘strong’ self-determination. Examples of the former include, the seeking of advice from, and consultations with, Indigenous organisations or peak bodies at the local level (eg with Aboriginal Child Care Agencies; Link-Ups; community health care organisations, and regional ATSIC offices; across-government Indigenous advisory bodies,^[131] or regional Koori reference groups),^[132] national level (eg with SNAICC; NACCHO; NAILSS, CAR and ATSIC) and agency specific level (eg the Commonwealth Health Minister’s Aboriginal and Torres Strait Islander Advisory Council or the Queensland Education Minister’s Advisory Council on Aboriginal and Torres Strait Islander Education).

The results of ‘strong’ self-determination initiatives are evident in such phenomena as the many hundreds of Indigenous corporations, Aboriginal or Indigenous Community Councils and Land Councils, as well as community infrastructure and employment projects,^[133] community courts and community law enforcement regimes. Details of these examples are to be found in Ch 26 of the Bringing Them Home Report, as provided by governments in their lengthy submissions to the National Inquiry throughout 1996, and as referred to (much more briefly) in the responses of the governments of Queensland,^[134] Tasmania^[135] and Victoria,^[136] and in the draft response of the New South Wales Government. Notably, in addition, the Office of Aboriginal and Torres Strait Islander Health Services in the Commonwealth Department of Family Services and Health, has been instrumental in the establishment of the Foundation for Aboriginal and Torres Strait Islander Families and Young People (now renamed ‘LUMBU’),^[137] which is an independent organisation with an all-Indigenous membership. The principal aims of LUMBU are to reduce levels of suicide and other self-harming behaviours in young Indigenous people; to address the disadvantages they face, and to promote their self-esteem.

What is important about these initiatives and others not mentioned is that they have occurred. They demonstrate an appreciation of the problems and, at least, at one level, a willingness to seek to address them. In terms, however, of broad framework requirements of Indigenous self-determination and social justice that run through Recs 42 to 54 of the Inquiry’s Report they are still lacking. The most that can be said of these particular and largely uncoordinated initiatives is that they may provide some foundation for hope that future, more coordinated efforts may be made to formulate national framework and standards legislation.

Incorporation of Genocide Convention [Rec 10]

The enactment of legislation by the Commonwealth to give effect to the Genocide Convention, as suggested in Rec 10, would constitute an important part of official recognition and acceptance in Australia of the fact that the separation polices of the past are over and will not be repeated. There are not now, nor have there been, any sound reasons not to enact such legislation following Australia’s ratification of the Convention in 1948. Indeed, such legislation would appear to be required to comply with constitutional convention in Australia, which dictates that ratification only occurs once domestic law is brought into line with the requirements of the international instrument being entered into.

In its Response, the only semblance of a reason provided by the Commonwealth Government for its decision not to enact such legislation amounts to a non sequitur. Its assertion that in the Kruger case,^[138] ‘the High Court rejected assertions that the Northern Territory law authorised genocide’^[139] – though arguable in itself – fails utterly to address the rationale behind the Recommendation. The point at issue in the Recommendation is not whether past laws governing the forcible removal of Indigenous children from their families authorised or even effected genocide, but rather that the enactment of legislation outlawing genocide or any genocidal action in Australia would help ensure that such an abhorrent phenomenon would not occur today or in the future, whether or not one accepts that it occurred in the past.

Child welfare and juvenile justice (national standards legislation)

The Recommendations relating to Indigenous child welfare and juvenile justice fall within the broad ambit of the Inquiry’s call for national framework legislation and they constitute the basis of the suggested national standards legislation. In light of this, such Responses of governments to these Recommendations as there are, suffer fundamentally from the lack of support for such a nationwide approach. In particular, the rejection of the base Recommendation for the institution of national standards legislation – namely, Rec 44 which calls upon COAG to negotiate with relevant national Indigenous peak bodies (including SNAICC and NAILSS) on such legislation – has been fatal.

There has not been a complete absence of inter-governmental coordination in response to the Inquiry’s Recommendations in these areas. In respect of Indigenous welfare issues in general (including child welfare) the next scheduled inter-governmental meeting of Community Services Administrators is to address the question of coordination and cooperation (as discussed earlier under ‘health care’). And in respect of Indigenous criminal justice issues, including juvenile justice, it is understood that they were to be the subject of discussion at the MCATSIA meeting scheduled for 17 July 1998. At this meeting the Northern Territory Government was to present a thematic review it has prepared of the implementation of RCADIC Recommendations in the Northern Territory currently under preparation. It was expected also, that the Western Australia Government would present its response to the Bringing Them Home Recommendations at the same meeting. However, this level of cooperation, welcome though it may be, falls far short of that required to negotiate let alone implement national standards.

Nevertheless, the matters of concern in some of the eight ‘Standards’ provided for in Recs 46 to 53, have already been, so governments claim, or are soon to be, addressed. In some cases the standard has been obtained more or less through a conscious collective effort by governments – as, for example, with the implementation of the Aboriginal (or Indigenous) Child Placement Principle (‘Standard 6’ – Rec 51), which provides conditions for the placing of Indigenous children through fostering, adoption or care and protection orders and which now operates in every jurisdiction whether through legislative requirement (as in New South Wales, the Northern Territory, South Australia, Tasmania and Victoria)^[140] or at the level of policy (as in the ACT and Queensland)^[141]

In other cases broad compliance is claimed by governments through developing systemic changes to law, policy or practice. This appears to be the position in respect of the juvenile justice issues raised by Rec 53 which advocates the universal adoption of a set of 15 rules that comprise ‘Standard 8’. These rules which range from initial encounters with police and conditions of arrest, through cautioning, representation and interrogation, to bail issues, sentencing and diversionary schemes, are a mixture of ones that apply generally to Indigenous and non-Indigenous juveniles alike (eg arrest conditions, interrogation procedures and diversionary strategies), and ones that are Indigenous specific (eg Indigenous representation and certain detentions conditions). Though not strictly acting in concert, the Commonwealth, States and Territories have been reforming juvenile justice laws along similar lines for more than a decade as they apply to all children, and, in respect of Indigenous juveniles in particular, since the Report of the RCADIC in 1991. Broadly speaking, governments claim to have in place laws or policies addressing the main issues highlighted in the 15 rules.^[142]

There are, however, at least two conspicuous exceptions to this general position – namely the mandatory sentencing provisions operating in the Northern Territory and Western Australia. These do not conform to the conditions set out in rules 1 (arrest as last resort), 13 (non-custodial sentences), 14 (sentencing factors) and 15 (where custodial sentences are considered necessary, for the shortest possible time). Details of how these initiatives are working in general and what their impact has been on Indigenous children in particular, is scarce. Both governments have, however, recently undertaken evaluations of their respective schemes; in both cases the results have yet to be made public. That having been said, the Western Australian Ministry of Justice informed the Project Team that according to its own records, ‘between 10 February 1997 and 14 May 1998 a total of 61 juvenile offenders were sentenced under the three strikes legislation, of which 46 or 75% were Aboriginal’.^[143]

In yet another context, pre-existing standards or subsequent initiatives satisfying the Recommendations have been made separately by governments. Thus, in respect of ‘Standard 5’ set out in Rec 50, whilst separate representation in court for Indigenous children is not generally compulsory in the areas of family law, care and protection, and juvenile justice, it may likely be that, through the application of policy or the exercise of discretion, separate representation is provided or made available in such cases.^[144] It should be noted in respect of this Recommendation that the Victorian Government raised the question whether representation as used in the text of the Recommendation was to be confined to legal representation; if not it envisaged that such representation would have to be made subject to the leave of the court.^[145]

More particularly, the Queensland Government has indicated in its Response that it will develop a Statement of Standards for Aboriginal and Torres Strait Islander Child Protection, ‘which reflects the Recommendations of the Inquiry and which is consistent with current legislation and policy. The proposed statement of standards will be negotiated with relevant Indigenous organisations’.^[146]

The ACT Government announced in its Response that it will be establishing an Aboriginal Advisory Justice Committee (AJAC) which will provide the necessary partnership for the development of strategic plans and agreements on Aboriginal criminal justice issues.^[147]

(viii) Monitoring of implementation of government responses [Rec 2]

The effective monitoring of the implementation of government initiatives contained in their respective responses entails two essential elements. The first concerns the putting in place of mechanisms that will permit the processes of implementation to be monitored; those that have been established or are planned for by the governments, and are known to the Project Team, are detailed below.

The second and more fundamental element concerns the nature of implementation – what it is (and who decides what it is), how it is measured, and how different interpretations are dealt with. The significance of these questions has been made evident, if not fully appreciated, through the chastening experience of the difficulties encountered in monitoring the implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCADIC).^[148] There are no easy answers to these questions, but it is incumbent upon governments to understand the importance of the issues they raise when they are instituting monitoring processes in respect of the implementation of the Bringing Them Home Report’s Recommendations, if such implementation is to be effective.

In terms of the mechanics of monitoring, crucially, none exist at the broad national or inter- governmental level. What is more, there would appear to be no prospect of such a nationwide initiative, as the leadership role that would have to be played by the Commonwealth Government for such an object is not yet evident, ^[149] despite assurances that MCATSIA will be providing inter-governmental coordination and monitoring mechanisms as required.^[150]

As regards certain specific areas of concern, however, there has been more movement. In the area of health care, for instance, as noted earlier in this Report, the Commonwealth Health Minister has made clear his willingness to involve the Aboriginal and Torres Strait Islander Health Council, which advises the Minister, in the implementation of the Government’s responses, alongside its broad monitoring role.^[151]

The Victorian government has proposed a three-way means of monitoring: (i) a series of 11 State-wide regional reference groups are to be established under the auspices of the Department of Human Services Koori Improvement Services Strategy (to be initiated in mid 1998) which will provide feedback to the Department on the implementation of agreed community servicing plans;^[152] (ii) an Inter-Departmental Committee to be established to assist Aboriginal Affairs in monitoring implementation; and, (iii) an undertaking that as part of the projected annual report on initiatives and outcomes in Aboriginal affairs that the Government will deliver to Parliament there will be a Report back on issues raised by the National Inquiry.

The Tasmanian Government indicated in its Response^[153] that the Office of Aboriginal Affairs, through the Minister for Aboriginal Affairs, provide a Report reviewing the progress of the implementation of initiatives by September 1998.

And finally, the Queensland Government has made clear that it sees the Indigenous Advisory Council (on which see further, Section 6 above: ‘Indigenous community involvement’) as having ‘an ongoing role in advising and monitoring progress on issues raised in Bringing Them Home’.^[154]

8. Outlook

Collectively, the National Inquiry’s Recommendations are concerned to protect and promote the human rights of those people affected by the policies and practices of the separation of Indigenous children from their families. To meet this goal, or indeed, even to strive towards it, requires national coordination and leadership. Under a federal system of government such as we have in Australia, these needs are ever present and exist across a wide spectrum of areas. The need for a nationwide concerted effort in respect of the areas covered by the National Inquiry is emphasised by the complexity of the separation or division of responsibilities. While, for instance, responsibilities for education and health are shared between the Commonwealth, States and Territories, responsibility for record-keeping and access resides separately with each jurisdiction; that for juvenile justice and welfare lies with the States and Territories, and the Commonwealth has ‘special’ responsibility for Indigenous people under s 51(26) of the Constitution (the races power), as well as for Australia’s international human rights obligations by way of its Executive power to ratify treaties and its power to ‘incorporate’ them into domestic law under s 51(29) of the Constitution.

An especially powerful message to be drawn from this Report is that without inter-governmental cooperation, information exchange and coordination, the States and Territories, in particular, will be left uncertain as to how to co-ordinate their responses with those of the Commonwealth in order to maximise effect and efficiency. In consequence, as related in this Report time and time again, the States and Territories are simply unwilling or unable to make commitments in respect of national legislation or in the big spending areas of health and Link-Up type services, where the Commonwealth has indicated its commitment.

In the end, for the lack of adequate national and cross-government cooperation, we might not only loose those initiatives that wholly or largely depend on such concerted action, we might devalue many well-intended initiatives as are outlined in the text of this Report, that have been taken by individual governments. That would surely be a tragedy as well as an injustice.

Appendix A – List of meetings and participants

All-Governments Meeting – 12 December 1997 (Melbourne)

Representatives from New South Wales, Queensland, Tasmania, the ACT, Western Australia; representatives form the governments of Commonwealth, Victoria South Australia and the Northern Territory declined the invitation or were unable to attend

NSW Government – 11 February 1998

Dept/Agency :

• Dr Andrew Refshauge, Minister for Aboriginal Affairs
• Mr Geoff Scott (CEO)

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Ms Carol Kendall (representing the NIWG on the Stolen Generations)

Office of Commonwealth Minister for Health, Dr Wooldridge – 26 February 1998

Dept/Agency :

• Rebecca James, Advisor to Minister

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Ms Melissa Brickell (representing the NIWG on the Stolen Generations)

South Australian Government – 3 March 1998

Dept/Agency :

• Mr David Rathman (CEO)
• Mr Bryan Dixon
• Mr Steve Austin
• Mr Rick Starkie
• Ms Sharon Gollan

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Mr Sydney Sparrow (representing the NIWG on the Stolen Generations)
• Mr Dave Akbar

Tasmanian Government – 5 March 1998

Dept/Agency :

• Ms Denise Swan, Minister for Aboriginal Affairs
• Mr Rodney Gibbons (CEO)

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Ms Annette Peardon (representing the NIWG on the Stolen Generations)
• Mr Eddie Thomas

Victorian Government – 6 March 1998

Dept/Agency :

• Mr Tony Cahir (CEO)
• Ms Joy Elley

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Ms Melissa Brickell (representing the NIWG on the Stolen Generations)

Northern Territory Government – 16 March 1998

Dept/Agency :

• Mr Bob Beadman (CEO)
• Mr Neville Jones

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Ms Cath Mills (representing the NIWG on the Stolen Generations)
• Ms Colleen Davidson
• Ms Barbara Cummings

Queensland Government – 17 March 1998

Dept/Agency :

• Rev. Alan Male (CEO)
• Mr Jim Wauchope
• Dr Jan Walker
• Ms Claire Tilbury

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Ms Yanetta Reid (representing the NIWG on the Stolen Generations)

Indigenous Advisory Council (Qld) – 17 March 1998

Dept/Agency :

• Mr Neville Bonner
• Mr Bob Anderson
• Mr Phil Roberts
• Ms Karen Pringle

Project Team:

• Sir Ronald Wilson
• Dr David Kinley

NSW Dept of Aboriginal Affairs – 17 April 1998

Dept/Agency :

• Mr Geoff Scott (CEO)
• Ms Edwina Cowdery

Project Team:

• Dr David Kinley

ATSIC – 22 April 1998

Dept/Agency :

• Mr John Eldridge (General Manager)
• Mr Ray Kent

Project Team:

• Sir Ronald Wilson
• Dr David Kinley

ACT Government – 22 April 1998

Dept/Agency :

• Mrs Kate Carnell, Chief Minister
• Ms Lori Richardson

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Ms Matilda House (representing the NIWG on the Stolen Generations)

Office of Aboriginal and Torres Strait Islander Health Services (Cth Dept of Health) – 22 April 1998

Dept/Agency :

• Marion Dunlop
• Helen Monten

Project Team:

• Sir Ronald Wilson
• Dr David Kinley

Western Australian Government – 1 May 1998

Dept/Agency :

• Mr Haydon Lowe
• Mr Steve Wood
• Mr John Catlin
• Ms Helen Maddocks
• Mr Danny Ford

Project Team:

• Sir Ronald Wilson
• Dr David Kinley
• Ms Irene Stainton (representing the NIWG on the Stolen Generations)

Appendix B – Text of Sorry Day Statement

Acknowledgment, unity, commitment

A national 'Sorry Day' is being observed on 26 May, 1998, exactly one year after the tabling in Federal Parliament of the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families.

The Report, Bringing Them Home, reveals the extent of forced removal, which went on for 150 years into the early 1970s and its consequences in terms of broken families, shattered physical and mental health, loss of languages, cultures and connection to traditional land, loss of parenting skills and the enormous distress still being experienced by many of its victims today.

The Report recommended that a Sorry Day be held – a day when all Australians can express their sorrow for the whole tragic episode, and celebrate the beginning of a new understanding. Many of the 'stolen generations' told the Inquiry that they would value this. Unlike the widespread Aboriginal use of the term 'sorry business' to denote death, they see a Sorry Day as a means of restoring hope to people in despair.

The national Stolen Generation Working Group has invited non-Indigenous people to join them in a National Sorry Day. They encourage the wider Australian community to remember and commemorate those affected by removal, so that the nation can continue the process of healing together. Aboriginal and Torres Strait Islander people will participate in a Day dedicated to the memory of loved ones who never came home, or who are still finding their way home.

Many non-Indigenous Australians, having learnt the history of forced removal, wish to apologise for the practice and State Parliaments, churches and organisations have done so in recent months. This has been greatly appreciated because apology means understanding, a willingness to enter into the suffering and a commitment to help overcome its debilitating effects.

Sorry Day offers every community the chance to shape a ceremony which, by the frankness of its acknowledgment of past wrongs towards the 'stolen generations' and by the sincerity of its commitment to overcome racism, unites the community. Such a ceremony cannot be prescribed. It must come from the hearts of local people, Indigenous and non-Indigenous.

'Sorry books' are being distributed which give everyone the chance to say sorry in their own words. Civic or political leaders could hand these books to Elders of Aboriginal and Torres Strait Islander communities.

It is hoped the ceremonies will be accompanied by displays, cultural presentations, theatrical and other events developed together by the local Indigenous and non-Indigenous communities. These activities bring history to life, expressing the pain and also the resilience of those who were removed.

Sorry Day will be an important step on the road which all Australians are 'walking together'. This commemoration can help restore the dignity stripped from those affected by removal and offers those who carried out the policy – and their successors – a chance to move beyond denial and guilt. It could shape a far more creative partnership between Indigenous and non-Indigenous Australians, with immense benefit to both.

National Indigenous Working Group on the Stolen Generations

Appendix C – Recommendations of the National Inquiry

Recording testimonies

1. That the Council of Australian Governments ensure the adequate funding of appropriate Indigenous agencies to record, preserve and administer access to the testimonies of Indigenous people affected by the forcible removal policies who wish to provide their histories in audio, audio-visual or written form.

Procedure for implementation

2a. That the Council of Australian Governments establish a working party to develop a process for the implementation of the Inquiry's Recommendations and to receive and respond to annual audit reports on the progress of implementation.

2b. That the Commonwealth fund the establishment of a National Inquiry audit unit in the Human Rights and Equal Opportunity Commission to monitor the implementation of the Inquiry's Recommendations and report annually to the Council of Australian Governments on the progress of implementation of the Recommendations.

2c. That ATSIC fund the following peak Indigenous organisations to research, prepare and provide an annual submission to the National Inquiry audit unit evaluating the progress of implementation of the Inquiry's Recommendations: Secretariat of National Aboriginal and Islander Child Care (SNAICC), Stolen Generations National Secretariat, National Aboriginal Community Controlled Health Organisation (NACCHO) and National Aboriginal and Islander Legal Services Secretariat (NAILSS).

2d. That Commonwealth, State and Territory Governments undertake to provide fully detailed and complete information to the National Inquiry audit unit annually on request concerning progress on implementation of the Inquiry's Recommendations.

Components of reparations

3. That, for the purposes of responding to the effects of forcible removals, ‘compensation’ be widely defined to mean ‘reparation’; that reparation be made in recognition of the history of gross violations of human rights; and that the van Boven principles guide the reparation measures. Reparation should consist of:

1) acknowledgment and apology;
2) guarantees against repetition;
3) measures of restitution;
4) measures of rehabilitation; and
5) monetary compensation.

Claimants

4. That reparation be made to all who suffered because of forcible removal policies including:

1) individuals who were forcibly removed as children;
2) family members who suffered as a result of their removal;
3) communities which, as a result of the forcible removal of children, suffered cultural and community disintegration; and
4) descendants of those forcibly removed who, as a result, have been deprived of community ties, culture and language, and links with and entitlements to their traditional land.

Acknowledgment and apology – Parliaments and police forces

5a. That all Australian Parliaments:

1) officially acknowledge the responsibility of their predecessors for the laws, policies and practices of forcible removal;
2) negotiate with the Aboriginal and Torres Strait Islander Commission a form of words for official apologies to Indigenous individuals, families and communities and extend those apologies with wide and culturally appropriate publicity; and
3) make appropriate reparation as detailed in following Recommendations.

5b. That State and Territory police forces, having played a prominent role in the implementation of the laws and policies of forcible removal, acknowledge that role and, in consultation with the Aboriginal and Torres Strait Islander Commission, make such formal apologies and participate in such commemorations as are

determined.

Acknowledgment and apology – Churches and others

6. That churches and other non-government agencies which played a role in the administration of the laws and policies under which Indigenous children were forcibly removed acknowledge that role and in consultation with the Aboriginal and Torres Strait Islander Commission make such formal apologies and participate in such commemorations as may be determined.

Commemoration

7a. That the Aboriginal and Torres Strait Islander Commission, in consultation with the Council for Aboriginal Reconciliation, arrange for a national `Sorry Day' to be celebrated each year to commemorate the history of forcible removals and its effects.

7b. That the Aboriginal and Torres Strait Islander Commission, in consultation with the Council for Aboriginal Reconciliation, seek proposals for further commemorating the individuals, families and communities affected by forcible removal at the local and regional levels. That proposals be implemented when a widespread consensus within the Indigenous community has been reached.

School education

8a. That State and Territory Governments ensure that primary and secondary school curricula include substantial compulsory modules on the history and continuing effects of forcible removal.

8b. That the Australian Institute of Aboriginal and Torres Strait Islander Studies be funded by the Commonwealth to develop these modules.

Professional training

9a. That all professionals who work with Indigenous children, families and communities receive in-service training about the history and effects of forcible removal.

9b. That all under-graduates and trainees in relevant professions receive, as part of their core curriculum, education about the history and effects of forcible removal.

Genocide Convention

10. That the Commonwealth legislate to implement the Genocide Convention with full domestic effect.

Assistance to return to country

11. That the Council of Australian Governments ensure that appropriate Indigenous organisations are adequately funded to employ family reunion workers to travel with clients to their country, to provide Indigenous community education on the history and effects of forcible removal and to develop community genealogies to establish membership of people affected by forcible removal.

Language, culture and history centres

12a. That the Commonwealth expand the funding of Indigenous language, culture and history centres to ensure national coverage at regional level.

12b. That where the Indigenous community so determines, the regional language, culture and history centre be funded to record and maintain local Indigenous languages and to teach those languages, especially to people whose forcible removal deprived them of opportunities to learn and maintain their language and to their descendants.

Indigenous identification

13. That Indigenous organisations, such as Link-Ups and Aboriginal and Islander Child Care Agencies, which assist those forcibly removed by undertaking family history research be recognised as Indigenous communities for the purposes of certifying descent from the Indigenous peoples of Australia and acceptance as Indigenous by the Indigenous community.

Heads of damage

14. That 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 and fulfilment.
7) Loss of native title rights.
8) Labour exploitation.
9) Economic loss.
10) Loss of opportunities.

National Compensation Fund

15. That the Council of Australian Governments establish a joint National Compensation Fund.

National Compensation Fund Board

16a. That the Council of Australian Governments establish a Board to administer the National Compensation Fund.

16b. That the Board be constituted by both Indigenous and non-Indigenous people appointed in consultation with Indigenous organisations in each State and Territory having particular responsibilities to people forcibly removed in childhood and their families. That the majority of members be Indigenous people and that the Board be chaired by an Indigenous person.

Procedural principles

17. That the following procedural principles be applied in the operations of the monetary compensation mechanism.

1) Widest possible publicity.
2) Free legal advice and representation for claimants.
3) No limitation period.
4) Independent decision-making which should include the participation of Indigenous decision-makers.
5) Minimum formality.
6) Not bound by the rules of evidence.
7) Cultural appropriateness (including language).

Minimum lump sum

18. That an Indigenous person who was removed from his or her family during childhood by compulsion, duress or undue influence be entitled to a minimum lump sum payment from the National Compensation Fund in recognition of the fact of removal. That it be a defence to a claim for the responsible government to establish that the removal was in the best interests of the child.

Proof of particular harm

19. That 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.

Civil claims

20. That the proposed statutory monetary compensation mechanism not displace claimants' common law rights to seek damages through the courts. A claimant successful in one forum should not be entitled to proceed in the other.

Destruction of records prohibited

21. That no records relating to Indigenous individuals, families or communities or to any children, Indigenous or otherwise, removed from their families for any reason, whether held by government or non-government agencies, be destroyed.

Record preservation

22a. That all government record agencies be funded as a matter of urgency by the relevant government to preserve and index records relating to Indigenous individuals, families and/or communities and records relating to all children, Indigenous or otherwise, removed from their families for any reason.

22b. That indexes and other finding aids be developed and managed in a way that protects the privacy of individuals and, in particular, prevents the compilation of dossiers.

Joint records taskforces

23. That the Commonwealth and each State and Territory Government establish and fund a Records Taskforce constituted by representatives from government and church and other non-government record agencies and Indigenous user services to:

1) develop common access guidelines to Indigenous personal, family and community records as appropriate to the jurisdiction and in accordance with established privacy principles;
2) advise the government whether any church or other non-government record-holding agency should be assisted to preserve and index its records and administer access;
3) advise government on memoranda of understanding for dealing with interstate enquiries and for the interstate transfer of files and other information;
4) advise government and churches generally on policy relating to access to and uses of Indigenous personal, family and community information; and
5) advise government on the need to introduce or amend legislation to put these policies and practices into place.

Interstate enquiries

24. That each government, as advised by its Records Taskforce, enter into memoranda of understanding with other governments for dealing with interstate enquiries and for the interstate transfer of records and other information.

Minimum access standards

25. That all common access guidelines incorporate the following standards.

1) The right of every person, upon proof of identity only, to view all information relating to himself or herself and to receive a full copy of the same.
2) No application fee, copying fee or other charge of any kind to be imposed.
3) A maximum application processing period to be agreed by the Records Taskforce and any failure to comply to be amenable to review and appeal.
4) A person denied the right of access or having any other grievance concerning his or her information to be entitled to seek a review and, if still dissatisfied, to appeal the decision or other matter free of charge.
5) The right of every person to receive advice, both orally and in writing, at the time of application about Indigenous support and assistance services available in his or her State or Territory of residence.
6) The form of advice provided to applicants to be drafted in consultation with local Indigenous family tracing and reunion services and to contain information about the nature and form of the information to be disclosed and the possibility of distress.
7) The right of every person to receive all personal identifying information about himself or herself including information which is necessary to establish the identity of family members (for example, parent's identifying details such as name, community of origin, date of birth).
8) The right of every person who is the subject of a record, subject to the exception above, to determine to whom and to what extent that information is divulged to a third person.

FOI in the NT

26. That the Northern Territory Government introduce Freedom of Information legislation on the Commonwealth model.

Indigenous Family Information Service

27. That the Commonwealth and each State and Territory Government, in consultation with relevant Indigenous services and its Records Taskforce, establish an Indigenous Family Information Service to operate as a `first stop shop' for people seeking information about and referral to records held by the government and by churches. That these Services be staffed by Indigenous people. That to support these Services each government and church record agency nominate a designated contact officer.

Training

28. That the Commonwealth and each State and Territory Government institute traineeships and scholarships for the training of Indigenous archivists, genealogists, historical researchers and counsellors.

Indigenous repositories

29a. That, on the request of an Indigenous community, the relevant Records Taskforce sponsor negotiations between government, church and/or other non-government agencies and the relevant Indigenous language, culture and history centre for the transfer of historical and cultural information relating to that community and its members.

29b. That the Council of Australian Governments ensure that Indigenous language, culture and history centres have the capacity to serve as repositories of personal information that the individuals concerned have chosen to place in their care and which is protected in accordance with established privacy principles.

Establishment of family tracing and reunion services

30a. That the Council of Australian Governments ensure that Indigenous community-based family tracing and reunion services are funded in all regional centres with a significant Indigenous population and that existing Indigenous community-based services, for example health services, in smaller centres are funded to offer family tracing and reunion assistance and referral.

30b. That the regional services be adequately funded to perform the following functions.

1) Family history research.

2) Family tracing.

3) Support and counselling for clients viewing their personal records.

4) Support and counselling for clients, family members and community members in the reunion process including travel with clients.

5) Establishment and management of a referral network of professional counsellors, psychologists, psychiatrists and others as needed by clients.

6) Advocacy on behalf of individual clients as required and on behalf of clients as a class, for example with record agencies.

7) Outreach and publicity.

8) Research into the history and effects of forcible removal.

9) Indigenous and non-Indigenous community education about the history and effects of forcible removal.

10) Engaging the service of Indigenous experts for provision of genealogical information, traditional healing and escorting and sponsoring those returning to their country of origin.

11) Participation in training of Indigenous people as researchers, archivists, genealogists and counsellors.

12) Participation in national networks and conferences.

13) Effective participation on Record Taskforces.

14) Support of test cases and other efforts to obtain compensation.

Return of those removed overseas

31a. That the Commonwealth create a special visa class under the Migration Act 1951 (Cth) to enable Indigenous people forcibly removed from their families and from Australia and their descendants to return to Australia and take up permanent residence.

31b. That the Commonwealth amend the Citizenship Act 1948 (Cth) to provide for the acquisition of citizenship by any person of Aboriginal or Torres Strait Islander descent.

31c. That the Commonwealth take measures to ensure the prompt implementation of the International Transfer of Prisoners Bill 1996.

Research

32. That the Commonwealth Government work with the national Aboriginal and Torres Strait Islander Health Council in consultation with the National Aboriginal Community Controlled Health Organisation (NACCHO) to devise a program of research and consultations to identify the range and extent of emotional and well-being effects of the forcible removal policies.

Indigenous well-being model

33a. That all services and programs provided for survivors of forcible removal emphasise local Indigenous healing and well-being perspectives.

33b. That government funding for Indigenous preventive and primary mental health (well-being) services be directed exclusively to Indigenous community-based services including Aboriginal and Islander health services, child care agencies and substance abuse services.

33c. That all government-run mental health services work towards delivering specialist services in partnership with Indigenous community-based services and employ Indigenous mental health workers and community members respected for their healing skills.

Health professional training

34a. That government health services, in consultation with Indigenous health services and family tracing and reunion services, develop in-service training for all employees in the history and effects of forcible removal.

34b. That all health and related training institutions, in consultation with Indigenous health services and family tracing and reunion services, develop under-graduate training for all students in the history and effects of forcible removal.

Mental health worker training

35. That all State and Territory Governments institute Indigenous mental health worker training through Indigenous-run programs to ensure cultural and social appropriateness.

Parenting skills

36. That the Council of Australian Governments ensure the provision of adequate funding to relevant Indigenous organisations in each region to establish parenting and family well-being programs.

Prisoner services

37. That the Council of Australian Governments ensure the provision of adequate funding to Indigenous health and medical services and family well-being programs to establish preventive mental health programs in all prisons and detention centres and to advise prison health services. That State and Territory corrections departments facilitate the delivery of these programs and advice in all prisons and detention centres.

Private collections

38a. That every church and other non-government agency which played a role in the placement and care of Indigenous children forcibly removed from their families, at the request of an Indigenous language, culture and history centre, transfer historical and cultural information it holds relating to the community or communities represented by the centre.

38b. That churches and other non-government agencies which played a role in the placement and care of Indigenous children forcibly removed from their families identify all records relating to Indigenous families and children and arrange for their preservation, indexing and access in secure storage facilities preferably, in consultation with relevant Indigenous communities and organisations, in the National Library, the Australian Institute of Aboriginal and Torres Strait Islander Studies or an appropriate State Library.

38c. That every church and non-government record agency which played a role in the placement and care of Indigenous children forcibly removed from their families provide detailed information about its records to the relevant Indigenous Family Information Service or Services.

Application of minimum standards and common guidelines

39. That church and other non-government record agencies implement the national minimum access standards (Rec 25) and apply the relevant State, Territory or Commonwealth common access guidelines: Rec 23.

Counselling services

40a. That churches and other non-government welfare agencies that provide counselling and support services to those affected by forcible removal review those services, in consultation with Indigenous communities and organisations, to ensure they are culturally appropriate.

40b. That churches and other non-government agencies which played a role in the placement and care of Indigenous children forcibly removed from their families provide all possible support to Indigenous organisations delivering counselling and support services to those affected by forcible removal.

Land holdings

41. That churches and other non-government agencies review their land holdings to identify land acquired or granted for the purpose of accommodating Indigenous children forcibly removed from their families and, in consultation with Indigenous people and their land councils, return that land.

Social justice

42. That to address the social and economic disadvantages that underlie the contemporary removal of Indigenous children and young people the Council of Australian Governments:

1) in partnership with ATSIC, the Council for Aboriginal Reconciliation, the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner and Indigenous community organisations dealing with Indigenous family and children's issues, develop and implement a social justice package for Indigenous families and children; and

2) pursue the implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody which address underlying issues of social disadvantage.

Self-determination

43a. That the Council of Australian Governments negotiate with the Aboriginal and Torres Strait Islander Commission, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Secretariat of National Aboriginal and Islander Child Care and the National Aboriginal and Islander Legal Services Secretariat national legislation establishing a framework for negotiations at community and regional levels for the implementation of self-determination in relation to the well-being of Indigenous children and young people (national framework legislation).

43b. That the national framework legislation adopt the following principles.

1) That the Act binds the Commonwealth and every State and Territory Government.
2) That within the parameters of the Act Indigenous communities are free to formulate and negotiate an agreement on measures best suited to their individual needs concerning children, young people and families.
3) That negotiated agreements will be open to revision by negotiation.
4) That every Indigenous community is entitled to adequate funding and other resources to enable it to support and provide for families and children and to ensure that the removal of children is the option of last resort.
5) That the human rights of Indigenous children will be ensured.

43c. That the national framework legislation authorise negotiations with Indigenous communities that so desire on any or all of the following matters:

1) the transfer of legal jurisdiction in relation to children's welfare, care and protection, adoption and/or juvenile justice to an Indigenous community, region or representative organisation;
2) the transfer of police, judicial and/or departmental functions to an Indigenous community, region or representative organisation;
3) the relationship between the community, region or representative organisation and the police, court system and/or administration of the State or Territory on matters relating to children, young people and families including, where desired by the Indigenous community, region or representative organisation, policy and program development and the sharing of jurisdiction; and/or
4) the funding and other resourcing of programs and strategies developed or agreed to by the community, region or representative organisation in relation to children, young people and families.

National standards for Indigenous children

44. That the Council of Australian Governments negotiate with the Aboriginal and Torres Strait Islander Commission, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Secretariat of National Aboriginal and Islander Child Care and the National Aboriginal and Islander Legal Services Secretariat national legislation binding on all levels of government and on Indigenous communities, regions or representative organisations which take legal jurisdiction for Indigenous children establishing minimum standards of treatment for all Indigenous children (national standards legislation).

National standards for Indigenous children under State, Territory or shared jurisdiction

45a. That the national standards legislation include the standards recommended below for Indigenous children under State or Territory jurisdiction or shared jurisdiction.

45b. That the negotiations for national standards legislation develop a framework for the accreditation of Indigenous organisations for the purpose of performing functions prescribed by the standards.

Standard 1: Best interests of the child – factors

46a. That the national standards legislation provide that the initial presumption is that the best interest of the child is to remain within his or her Indigenous family, community and culture.

46b. That the national standards legislation provide that in determining the best interests of an Indigenous child the decision maker must also consider:

1) the need of the child to maintain contact with his or her Indigenous family, community and culture;
2) the significance of the child's Indigenous heritage for his or her future well-being;
3) the views of the child and his or her family; and
4) the advice of the appropriate accredited Indigenous organisation.

Standard 2: When best interests are paramount

47. That the national standards legislation provide that in any judicial or administrative decision affecting the care and protection, adoption or residence of an Indigenous child the best interest of the child is the paramount consideration.

Standard 3: When other factors apply

48. That the national standards legislation provide that removal of Indigenous children from their families and communities by the juvenile justice system, including for the purposes of arrest, remand in custody or sentence, is to be a last resort. An Indigenous child is not to be removed from his or her family and community unless the danger to the community as a whole outweighs the desirability of retaining the child in his or her family and community.

Standard 4: Involvement of accredited Indigenous organisations

49. That the national standards legislation provide that in any matter concerning a child the decision maker must ascertain whether the child is an Indigenous child and in every matter concerning an Indigenous child ensure that the appropriate accredited Indigenous organisation is consulted thoroughly and in good faith. In care and protection matters that organisation must be involved in all decision making from the point of notification and at each stage of decision making thereafter including whether and if so on what grounds to seek a court order. In juvenile justice matters that organisation must be involved in all decisions at every stage including decisions about pre-trial diversion, admission to bail and conditions of bail.

Standard 5: Judicial decision making

50. That the national standards legislation provide that in any matter concerning a child the court must ascertain whether the child is an Indigenous child and, in every case involving an Indigenous child, ensure that the child is separately represented by a representative of the child's choosing or, where the child is incapable of choosing a representative, by the appropriate accredited Indigenous organisation.

Standard 6: Indigenous Child Placement Principle

51a. That the national standards legislation provide that, when an Indigenous child must be removed from his or her family, including for the purpose of adoption, the placement of the child, whether temporary or permanent, is to be made in accordance with the Indigenous Child Placement Principle.

51b. Placement is to be made according to the following order of preference:

1) placement with a member of the child's family (as defined by local custom and practice) in the correct relationship to the child in accordance with Aboriginal or Torres Strait Islander law;
2) placement with a member of the child's community in a relationship of responsibility for the child according to local custom and practice;
3) placement with another member of the child's community;
4) placement with another Indigenous carer.

51c. The preferred placement may be displaced where:

1) that placement would be detrimental to the child's best interests;
2) the child objects to that placement; or
3) no carer in the preferred category is available.

51d. Where placement is with a non-Indigenous carer the following principles must determine the choice of carer:

1) family reunion is a primary objective;
2) continuing contact with the child's Indigenous family, community and culture must be ensured; and
3) the carer must live in proximity to the child's Indigenous family and community.

51e. No placement of an Indigenous child is to be made except on the advice and with the Recommendation of the appropriate accredited Indigenous organisation. Where the parents or the child disagree with the Recommendation of the appropriate accredited Indigenous organisation, the court must determine the best interests of the child.

Standard 7: Adoption a last resort

52. That the national standards legislation provide that an order for adoption of an Indigenous child is not to be made unless adoption is in the best interests of the child and that adoption of an Indigenous child be an open adoption unless the court or other decision maker is satisfied that an open adoption would not be in the best interests of the child. The terms of an open adoption order should remain reviewable at any time at the instance of any party.

Standard 8: Juvenile justice

53a. That the national standards legislation incorporate the following rules to be followed in every matter involving an Indigenous child or young person.

53b. That the national standards legislation provide that evidence obtained in breach of any of the following rules is to be inadmissible against the child or young person except at the instance of the child or young person himself or herself.

Rule 1: Warnings

Arrest and charge are actions of last resort. Subject to Rule 2, a police officer is to issue a warning, without charge, to a child or young person reasonably suspected of having committed an offence without requiring the child or young person to admit the offence and without imposing any penalty or obligation on the child or young person as a condition of issuing the warning.

Rule 2: Summons, attendance notice

A child or young person may be charged with an offence when the alleged offence is an indictable offence. The charging officer must secure the suspect's attendance at the court hearing in relation to the charge by issuing a summons or attendance notice unless the officer has a reasonable belief that the suspect is about to commit a further indictable offence or, due to the suspect's previous conduct, that the suspect may not comply with a summons or attendance notice.

Rule 3: Notification

When a child or young person has been arrested or detained the responsible officer must notify the appropriate accredited Indigenous organisation immediately of the fact of the arrest and make arrangements for the attendance of a representative of that organisation.

Rule 4: Consultation

The responsible officer, in accordance with Standard 4, must consult thoroughly and in good faith with the appropriate accredited Indigenous organisation as to the appropriate means of dealing with every child or young person who has been arrested or detained.

Rule 5: Interrogation

No suspect or witness is to be interviewed in relation to an alleged offence unless:

(a) a parent or person responsible for the suspect or witness is present, unless the suspect or witness refuses to be interviewed in the presence of such a person or such a person is not reasonably available;
(b) a legal adviser chosen by the suspect or witness or, where he or she is not capable of choosing a legal adviser, a representative of the appropriate accredited Indigenous organisation is present; and
(c) an interpreter is present in every case in which the suspect or witness does not speak English as a first language.

Rule 6: Caution

No suspect or witness is to be interviewed in relation to an alleged offence unless:

(a) the caution has been explained in private to the suspect or witness by his or her legal adviser or representative;

(b) the interviewing officer has satisfied himself or herself that the suspect or witness understands the caution; and

(c) the suspect or witness freely consents to be interviewed.

Rule 7: Withdrawal of consent

The interview is to be immediately discontinued when the suspect or witness has withdrawn his or her consent.

Rule 8: Recording

Every interview must be recorded on audio tape or audiovisual tape. The tape must include the pre-interview discussions between the suspect or witness and the interviewing officer in which the officer must satisfy himself or herself that the suspect or witness understands the caution and freely consents to be interviewed.

Rule 9: Bail

Unconditional bail is a right. The right to bail without conditions can only be varied where conditions are reasonably believed due to the suspect's past conduct to be necessary to ensure the suspect will attend court as notified. The right to bail can only be withdrawn where it is reasonably believed, due to the nature of the alleged offence or because of threats having been made by the suspect, that remand in custody is necessary in the interests of the community as a whole.

Rule 10: Bail review

The suspect has a right to have the imposition of bail conditions or the refusal of bail reviewed by a senior police officer. In every case in which the senior officer refuses to release the suspect on bail, the officer must immediately notify a magistrate, bail justice or other authorised independent person who is to conduct a bail hearing forthwith. The suspect is to be represented at that hearing by a legal adviser of his or her choice or, where incapable of choosing, by a representative of the appropriate accredited Indigenous organisation.

Rule 11: Bail hostels

When bail has been refused the suspect is to be remanded in the custody of an Indigenous bail hostel, group home or private home administered by the appropriate accredited Indigenous organisation unless this option is not available in the locality.

Rule 12: Detention in police cells

No suspect is to be confined in police cells except in extraordinary and unforeseen circumstances which prevent the utilisation of alternatives. Every suspect confined in police cells overnight is to be accompanied by an Indigenous person in a relationship of responsibility to the suspect.

Rule 13: Non-custodial sentences

Custodial sentences are an option of last resort. Every child or young person convicted of an offence who, in accordance with Rule 14 cannot be dismissed without sentence, is to be sentenced to a non-custodial program administered by the appropriate accredited Indigenous organisation or by an Indigenous community willing to accept the child. The child's consent to be dealt with in this way is required. The selection of the appropriate program is to be made on the advice of the appropriate accredited Indigenous organisation and, where possible, the child's family.

Rule 14: Sentencing factors

The sentencer must take into account:

(a) the best interests of the child or young person;
(b) the wishes of the child or young person's family and community;
(c) the advice of the appropriate accredited Indigenous organisation;
(d) the principle that Indigenous children are not to be removed from their families and communities except in extraordinary circumstances; and
(e) Standard 3.

Rule 15: Custodial sentences

Where the sentencer, having taken into account all of the factors stipulated in Rule 14, determines that a custodial sentence is necessary, the sentence must be for the shortest appropriate period of time and the sentencer must provide its reasons in writing to the State or Territory Attorney General and the appropriate accredited Indigenous organisation. No child or young person is to be given an indeterminate custodial sentence or a mandatory sentence.

Family law

54. That the Family Law Act 1975 (Cth) be amended by:

1) including in s 60B(2) a new paragraph (ba) `children of Indigenous origins have a right, in community with the other members of their group, to enjoy their own culture, profess and practice their own religion, and use their own language'; and

2) replacing in s 68F(2)(f) the phrase `any need' with the phrase `the need of every Aboriginal and Torres Strait Islander child'.

^[1] (1997) 2 (2) AILR pp 286 ff.

^[2] Some ‘head’ recommendations comprise a number of separate recommendations; see ‘Summary of Governments' Responses to Recommendations’ above.

^[3] Ibid.

^[4] The Report was updated in August in order, primarily, to incorporate the ACT Government’s Response delivered in late July.

^[5] This view was endorsed by the first meeting of the representatives of governments convened by the National Indigenous Working Group, Brian Butler and Sir Ronald Wilson in Melbourne in December 1997.

^[6] It is anticipated that the National Indigenous Working Group will assume this role in future.

^[7] In this respect, the Follow Up Project team’s repeated efforts to obtain requested material from the Northern Territory Government were frustrated. The limited discussion of the Northern Territory Government’s initiatives in the Report duly reflects the paucity of material made available.

^[8] In particular, it was considered by Indigenous representatives on the Steering Committee (see further below under ‘Involvement of Indigenous Communities’) that the dense bureaucratic form of the draft response was such as to make it unintelligible to those who would be most affected by its content. In an enlightened move, the New South Wales Government, in tandem with Link-Up New South Wales, conducted a series of public forums throughout the State during July and August 1998 at which Indigenous people and communities were able to voice their opinions as to how best the Government can respond to the Inquiry’s recommendations, with a view to producing a more ‘user-friendly’ response. It is anticipated by the Government that the response will be prepared by September 1998.

^[9] Media Release from the Office of the Minister Responsible for Aboriginal Affairs, 19 November 1997, p 2.

^[10] Media Statement, 20 May 1998.

^[11] Pp 13-4. There is a small discrepancy between the figures quoted in the response and those in the statement – namely, the latter indicates that $11.3 has been allocated to the LinkUp network and $39.2 million to DHFS, which represents an additional $50,000 for each allocation from the amounts originally declared in the response.

^[12] The following page references are from Senator Herron’s Statement: for the language, culture and history centres ($9 million), see pp 41-3; for the LinkUps network ($11.3 million), see pp 44-7; for the Australian Archives records project ($2 million), see p 74; for the National Library Oral History programme ($1.6 million), see p 80; and for the DHFS programmes ($39.3 million), see p 107.

^[13] For the composition of the Committee, see the Government’s Statement of Progress in Commemoration of National Sorry Day, 26 May 1998.

^[14] Discussed further under Section 7(viii) below.

^[15] See Response, p 17.

^[16] Discussed further under Section 7(viii) below.

^[17] Correspondence from Mr Greg Hunting, Chief of Staff , 3 March 1998; on file.

^[18] As endorsed by Council of Australian Governments (COAG) in May 1992, and subsequently reaffirmed by the MCATSIA in it’s July 1996 meeting. Furthermore, the Prime Minister advertised the reinvigoration of the National Commitment in his speech opening the Reconciliation Conference, 26 May 1997, Melbourne.

^[19] Ibid, para.4.3.

^[20] That is through ATSIC. As regards the process of formulating the government’s response, ATSIC staff attended the single Interdepartmental Committee meeting convened on 22 July 1977 to discuss the response. ATSIC staff were also involved in a number of bilateral discussions with staff of the Department of Prime Minister and Cabinet. The ATSIC Board, however, was never formally or directly consulted, though according to Senator Herron, ‘the matter was raised at a number of ATSIC Board meetings when I was present’: response to a question put to Senator Herron by Senator Bob Collins, Senate Debates, 4 March 1998, pp 435-6.

^[21] The Aboriginal and Torres Strait Islander Consultative Council. The Council provides advice to the Chief Minister ‘on issues affecting the interests and well-being of Canberra’s Indigenous population and to act as a link between government agencies and Indigenous peoples’; ACT Response, p 17. The Council has an ad hoc membership and it meets approximately every six weeks.

^[22] The Indigenous Advisory Council (IAC). The IAC is a standing body with 10 staff and chaired by Neville Bonner. It provides advice to government on the full range of Indigenous issues. See further, Queensland Government Response, p 3.

^[23] The Steering Committee convened by the New South Wales government to oversee its response to the National Inquiry’s recommendations included two representatives from the New South Wales Stolen Generation Working Group. It is noted that the New South Wales Government has considered the detailed recommendations made by Link-Up New South Wales to the National Inquiry as integral to the preparation of its response. The Link-Up submission and recommendations have been published separately under the title In the Best Interests of the Child?, 1997.

^[24] It is noted in the Victorian government’s response that the Department of Human Services, through Aboriginal Affairs Victoria, ‘will make available $50,000 to employ a Koori to debrief Koori communities on the National Inquiry and particularly those who gave witness testimony. They will also be required to provide feedback to the Government on the implementation of the State Government initiatives’: p 10.

^[25] New South Wales Government’s Statement of Progress, 26 May 1998.

^[26] Op cit, para 2.

^[27] Op cit, Overview, p 1.

^[28] Ibid.

^[29] Ibid.

^[30] The Recommendations stipulate eight specific standards spread across Recs 46 to 53. For further discussion, see Section 7(vii) below.

^[31] Both the Queensland and Victorian Governments expressly reject the notion of national framework or national standards legislation; see their Responses, p 14 and p 42, respectively. The Governments of Tasmania (Response, p 34) and New South Wales on the other hand, are more amenable to the idea and would support inter-governmental discussion of the issue. The ACT Government has indicated that it ‘would be prepared to consider national standards in relation to child protection and placement and for young offenders’, Response, p 3.

^[32] At p 10.

^[33] See discussion below.

^[34] November 1997.

^[35] ‘Improving Human Services for Victorian Koories: A Five Year Plan’, March 1998. The Strategy expressly echoes the sentiments of the National Commitment upon which it is based.

^[36] At p 8.

^[37] At p 3.

^[38] At p 5.

^[39] Op cit, Introduction, para 1.1.

^[40] Ibid, para 4.4.

^[41] 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.

^[42] Parliamentary Record (NT), 17 February 1998, p 17.

^[43] Somewhat puzzlingly, the Prime Minister, effectively extended this qualification still further – to a point where the circle would appear to be squared – when he emphatically professed that he ‘[p]ersonally, ... feel[s] deep sorrow for those of my fellow Australians who suffered injustices under the practices of past generations towards Indigenous people. Equally, I am sorry for the hurt and trauma many people here today may continue to feel as a consequence of those practices’; Prime Minister’s Opening Speech, Australian Reconciliation Conference, Melbourne, 26 May 1997. The apparent inconsistency in reasoning lies in fact that for Mr Howard to make such an apology he would, according to his own view, have to be acknowledging some direct, personal responsibility, which we appreciate was not the case.

^[44] Mr Stirling, Parliamentary Record (NT), 17 February 1998, p 59. The ACT Government’s position is different in this respect. For while it invokes the ‘not directly responsible’ argument in its rejection of the Inquiry’s recommendation that financial compensation for those affected be considered (Response, p 27), the Government, together with the Legislative Assembly, did issue a statement of apology.

^[45] In fact, the Commissioner made clear in the statement that the apology was made on behalf not only of the police service, but also the CEOs of all New South Wales justice agencies.

^[46] Response, p 4.

^[47] Senator Herron, Budget Day Statement, 1998, op cit, p 80.

^[48] Ibid.

^[49] In the words of the Commonwealth Government’s Response the ‘ATSIC Board has agreed to commit an additional $9 million over the next three years for language and culture centres ...’: p 10.

^[50] Ibid, pp 41-3.

^[51] News Release from the office of the Minister Responsible for Aboriginal Affairs, Victoria, 17 November 1997, p 2; see also p 16 of the Victorian Government’s response.

^[52] Statement of Progress, op cit, p 2.

^[53] Statement made by the Premier, Mr Bob Carr, at a Sorry Day Service, Government House, Sydney, 26 May 1998;

reported: Sydney Morning Herald, 27 May 1998, p 1.

^[54] Response, pp 14-5.

^[55] Response, p 10.

^[56] Response, p 4.

^[57] Response p 27.

^[58] Williams v Minister, Aboriginal Land Rights Act and the State of NSW (1994) 35 NSWLR 497. The substantive matter of the case is yet to be argued.

^[59] PIAC filed and served a claim for compensation of the plaintiff in the Supreme Court of New South Wales on 19 February 1998.

^[60] In respect of the Stevens case, PIAC’s statement of claim is almost identical to that of the SGLU’s in the two Northern Territory Federal Court cases detailed above.

^[61] PIAC, Providing Reparations: A Brief Options Paper, October 1997, p 9.

^[62] In reading this Section, the reader might also refer to the table compiled in the Bringing Them Home Report (pp 330-1) which outlines the records searching and tracing services available in each jurisdiction. This section takes that table as its base, and the following observations and comments are provided either to draw out a particular important feature or point, or where the situation now significantly differs from that recorded by the Inquiry.

^[63] MOU, p 2. ‘Open period records’ are records more than 30 years old. ‘Closed period records’ less than 30 years old are not generally accessible and are therefore not covered by the MOU. It should be noted, however, that the Australian Law Reform Commission has recommended in its Report, Australia’s Federal Record: A Review of the Archives Act 1983, that MOUs ought to be developed between government departments and Indigenous peoples in respect of records less than 30 years old; ALRC Report No.85, 1998, Rec 213, p 361.

^[64] Victoria is special in this regard, as it alone among the states transferred to the Commonwealth in 1975 all records it held relating to the administration of Aboriginal Affairs.

^[65] Commonwealth Response, at p 6; see also Senator Herron’s 1998 Budget Day Statement, p 74.

^[66] Response, p 36.

^[67] This Project, which was on foot before the Inquiry’s Recommendations were made, covers the tracing of family and communities’ records held by government and non-government bodies relating to Aboriginal and non-Aboriginal people. The resultant Connecting Kin – Guide to Records is expected to provide a guide to one-stop records access; it is understood that the guide will be launched in late September 1998.

^[68] Response, p 5.

^[69] Response, p 36.

^[70] The Northern Territory Government has no plans to enact FOI legislation as called for in Rec 26.

^[71] Response, pp 8, 37.

^[72] Response, pp 36-7.

^[73] There are no plans to enact archives legislation in the Northern Territory.

^[74] Though the Government has declared that it intends to examine the need for such legislation; Response, p 34.

^[75] A Joint Guide to Records about Aboriginal People in the Public Records Office of Victoria and the Australian Archives, 1993.

^[76] Response, p 2.

^[77] Response, p 39. However, it is relevant to note that according to the ACT Government itself, the Australian Institute of Aboriginal and Torres Strait Islander Studies (situated in Canberra) is usually the first port of call for Indigenous people seeking personal and family information; Project Team meeting with Government.

^[78] Protocol, pp 5-6.

^[79] Note, there is also provision for the training of archives staff under the MOU: p 5.

^[80] Media Statement 20 May 1998, p 1.

^[81] Ibid.

^[82] It must be noted, however, that the service relates only to those records held by the Department (whether in its offices or in State Archives). The Section can and does direct users to other departments (such as Births, Deaths and Marriages) or non-governmental bodies (such as churches) where it does not hold the records sought. In respect of the latter records, many are either held by the John Oxley Library, or the Library has access to them. Volume 3 of the Guide referred to in the following footnote focuses on these other sources of records.

^[83] Only the first of three volumes of the Guide is currently available. This first volume (along with Volume 2) will describe the historical records held by the Department. Volume 3 will describe the records held by other government departments (for example, Police, Lands, and Auditor-General). The price quoted refers to the first volume. The Guide is a joint initiative of the Department and Queensland State Archives.

^[84] Response, p 26.

^[85] Response, p 19.

^[86] Statement of Commitment, op cit, p 8.

^[87] Northern Territory Government Protocol, p 13.

^[88] MOU, p 6.

^[89] Response, p 19.

^[90] ACT Government Response, p 34.

^[91] Response, p 27: where it is noted that under s 74(1) of the Adoption Act 1988 (Tas), counselling is mandatory for all adopted persons or birth parents seeking information; this applies, of course, to Indigenous and non-Indigenous people alike.

^[92] Senator Herron’s Budget Day Statement, 12 May 1998, pp 47.

^[93] Response, p 7.

^[94] Ibid.

^[95] See Senator Herron’s Budget Day Statement, 12 May 1998, pp 46-7. The Commonwealth points out that this extra funding represents a 300% increase in the ATSIC’s annual budget for this purpose.

^[96] Correspondence from the Commonwealth Minister for Health and Family Services, Dr Michael Wooldridge (to Sir Ronald Wilson), 12 May 1998; on file.

^[97] Statement of Commitment, p 8.

^[98] Addendum to the Queensland Government’s response. Crucially, not indications are provided as to how long the employee will be engaged on developing the project and when it might be finished; how the resultant training program might be administered and by whom (the Department or Link-Up?), and no costs estimate or budget is provided.

^[99] Response, p 28. In a similar vein, the ACT Government’s response talks, in this respect, of ‘applying’ for an additional mental health counsellor for the ACT from the 50 new Commonwealth positions to be created: at p 4.

^[100] The last of which was concluded (with the Northern Territory) in April 1998. The process of securing all 8 agreements took approximately 2 years. Typically, each agreement is between the State/Territory Minister for Health, the Commonwealth Minister for Health, Chairperson of ATSIC and the Chairperson of the peak Indigenous community health care body.

^[101] Wellbeing Action Plan, see infra n 101: p 1.

^[102] Which was launched in October 1996 by the Commonwealth Minister for Health, Dr Michael Wooldridge. The Wellbeing Action Plan has a budget of $20 million spread over four years. The Wellbeing Action Plan is itself a direct product of the Ways Forward Report 1995 (Vols 1 & 2) on Aboriginal and Torres Strait Islander Mental Health, prepared by Raphael, B and Swan, P.

^[103] Commonwealth Response, p 8.

^[104] Commonwealth Response, p 2.

^[105] Minister for Health and Family Services, Media Release, 12 May 1998, p 6.

^[106] See further, Senator Herron’s Budget Statement, 12 May 1998, p 107.

^[107] Commonwealth Response, p 4.

^[108] Ibid.

^[109] Commonwealth Response, p 8.

^[110] Dr Wooldridge; correspondence (with Sir Ronald Wilson), 12 May 1998; on file. It is understood that the item is on the agenda for the next meeting of the Advisory Council in September 1998.

^[111] Ibid.

^[112] The ACT Government, in its Response, does however attempt to make this distinction, at pp 5-9.

^[113] At pp 294-5.

^[114] Commonwealth Response, ‘Summary’ table, p 12.

^[115] Media Statement.

^[116] The provision of the material indicated has been foreshadowed in the ACT Government Response – p 30; it has already occurred in the other jurisdictions cited.

^[117] Response, p 4.

^[118] Typically, such policies address the twin questions of how ‘[t]o promote educational achievements of Aboriginal students’ and, ‘[t]o educate all students about Aboriginal Australia’; these are the word of the New South Wales Department of School Education’s Aboriginal Education Policy.

^[119] See Response, p 19.

^[120] See Response, p 13.

^[121] See Response, p 4.

^[122] Response, p 15: ‘Aboriginal Studies’ is a compulsory unit of the learning area ‘Studies of Society and the Environment’ in Tasmania.

^[123] Response, p 14.

^[124] Response, p 15.

^[125] Response, p 5.

^[126] Response, p 30.

^[127] ACT Government Response, p 30.

^[128] See, for example, the Responses of the Queensland and Victorian Governments: p 5 and p 14, respectively.

^[129] See, for example, the Tasmanian Government Response, p 3.

^[130] Commonwealth Response, p 10.

^[131] As is the case in the ACT and Queensland.

^[132] As in Victoria where there are 15 such groups. They are consulted in respect of the development and implementation of relevant health, education, welfare and other policies under terms of the Department of Family Services Koori Improvement Services Strategy (March 1998), pp 11-14.

^[133] For example, the recently announced $200 million Aboriginal Community Development Program in respect of targeted areas in rural New South Wales; media release, Deputy Premier and Minister for Aboriginal Affairs, Dr Refshauge, 30 May 1998.

^[134] At pp 13-14.

^[135] At pp 34-5.

^[136] At p 42, citing its Koori Services Improvement Strategy (discussed above in Section 6) ‘as a vehicle for strengthening the self-management and self-determination of Koori communities’.

^[137] Which is a company limited by guarantee under the Corporations Law. The Department provided the Foundation with $1 million in seed money (which has since been supplemented by $750,000 provided by BHP), under its Wellbeing Action Plan, discussed above.

^[138] Kruger v Commonwealth [1997] HCA 27; (1997) 71 ALJR 991.

^[139] Summary table appended to Response.

^[140] For details, see Bringing Them Home, pp 439-48; except for Tasmania which has now incorporated the ACPP in the Children, Young Persons and their Families Act 1997, s 9. The draft response of the New South Wales Government foreshadows a desire to extend the current scope of the ACPP to cover all placements of Indigenous children and not just those following a court order, and to articulate more clearly the circumstances in which discretion is exercised not to apply the ACPP.

^[141] Ibid. The ACT Government indicates in its Response that it ‘proposes that the principle be enshrined verbatim in the [Children Services] Act’: p 8. A review of the operation of the ACPP in New South Wales which includes comparative analyses of the operation of the principle in all Australian jurisdictions and overseas was conducted recently by the New South Wales Law Reform Commission, The Aboriginal Child Placement Principle, Research Paper No 7 (March 1997).

^[142] See Responses of the Governments of Tasmania (p 39) (now bolstered by the enactment of the Youth Justice Act 1997); Victoria (pp 49-50), Queensland (p 14) and the ACT (p 8); and the draft response of the New South Wales Government. See further, Ch 24 of Bringing Them Home, and the individual submissions of the governments to the National Inquiry. For a recent analysis of the status of Indigenous criminal justice, including juvenile justice, across Australia in the context of an evaluation of the implementation of the RCADIC recommendations, see C Cunneen and D McDonald, Keeping Aboriginal and Torres Strait Islander People out of Custody, 1997.

^[143] Correspondence, 31 July 1998; on file. The Ministry of Justice added, ‘[i]t needs to be noted that some of these young offenders have been sentenced to community based sanctions and some juveniles have been sentenced on more than one occasion.’: ibid.

^[144] See, for example, Victorian Government Response, p 47. For an overview, of the status of representation provisions in all Australian jurisdictions in respect of civil, family and care and protection matters, see Australian Law Reform Commission and HREOC, Seen and Heard: Priority for Children in the Legal Process, ALRC Report No 84, 1997, Ch 13.

^[145] Response, p 46.

^[146] At p 14.

^[147] Response, p 6.

^[148] See discussion in Social Justice Commissioner’s Report on RCADIC, 1996, p viii and pp 257-68.

^[149] See Commonwealth Government Response, p 10, and as discussed further, above in Section 6.

^[150] Correspondence from Office of the Minister for Aboriginal and Torres Strait Islander Affairs, 3 March 1998; on file.

^[151] Correspondence from the Commonwealth Minister for Health and Family Services, Dr Wooldridge to Sir Ronald Wilson, 12 May 1998; on file.

^[152] Victorian Government Response, p 5.

^[153] ‘Overview’ of the Premier, Mr Tony Rundle MHA, p 4.

^[154] Response, p 3.