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Editors --- "Healing: A Legacy of Generations - Digest" [2001] AUIndigLawRpr 40; (2001) 6(3) Australian Indigenous Law Reporter 103

Inquiries and Reports - Australia

Healing: A Legacy of Generations

Senate Legal and Constitutional References Committee

Commonwealth of Australia, Canberra

November 2000

On 24 November 1999 the Senate referred to the Legal and Constitutional References Committee an inquiry into the Federal Government’s implementation of the recommendations from the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families — commonly known as the Stolen Generations Inquiry.

The terms of reference for the Committee were as follows:

(a) the adequacy and effectiveness of the Government’s response to the recommendations of the report, Bringing Them Home;
(b) after consultation and agreement with appropriate representatives of the stolen generations, to determine appropriate ways for governments to:

(i) establish an alternative dispute resolution tribunal to assist members of the stolen generations by resolving claims for compensation through consultation, conciliation and negotiation, rather than adversarial litigation and, where appropriate and agreed to, deliver alternative forms of restitution, and
(ii) set up processes and mechanisms, which are adequately funded, to:

(A) provide counselling,

(B) record the testimonies of members of the stolen generations,

(C) educate Australians about their history and current plight,

(D) help them to establish their ancestry and to access family reunion services, and

(E) help them to re-establish or rebuild their links to their culture, language and history;

(c) effective ways of implementing recommendations of the Bringing Them Home report including an examination of existing funding arrangements;
(d) the impact of the Government’s response to recommendations of the Bringing Them Home report, with particular reference to the consistency of this response with the aims of the Council for Aboriginal Reconciliation; and
(e) the consistency of the Government’s response to recommendations of the Bringing Them Home report with the hopes, aspirations and needs of members of the stolen generation and their descendants.^[1]

The final response from the Senate Legal and Constitutional References Committee included the majority report and recommendations, a minority report and recommendations by the Australian Democrats and a dissenting report and recommendations by Liberal Senators Marise Payne and Helen Coonan.

The following extracts include the recommendations from the majority report, the executive summary and recommendations from the minority report and the conclusion and recommendations from the dissenting report.

Majority Report: Recommendations^[2]

Recommendation 1

The Committee recommends that the federal government, in conjunction with state and territory governments, commission an independent evaluation of the progress of initiatives implemented by governments in response to the Bringing Them Home report. The independent evaluator should present its report within six months of the federal government’s response to the report of this inquiry. Chapter 2, p 74

Recommendation 2

The Committee recommends that the Commonwealth convene a Summit meeting twelve months from the date of the federal government’s response to this inquiry, to co-ordinate and address the issues and recommendations identified in this report. Chapter 3, p 107

Recommendation 3

The Committee recommends that recommendation 5a of Bringing Them Home be fulfilled by the Australian Parliament, and that a ‘Motion of National Apology and Reconciliation’ be settled following wide consultation with individual members of the stolen generation and representatives of stolen generation organisations. Chapter 4, p 142

Recommendation 4

The Committee recommends, as a gesture of good faith, as in the case of the Parliament of the Australian Capital Territory, that the Northern Territory Parliament make a formal apology to members of the stolen generation. The form of words for such an apology should be decided in consultation with representative members of the stolen generation in the Northern Territory. Chapter 4, p 142

Recommendation 5

The Committee recommends the Commonwealth Government consult with the Aboriginal and Torres Strait Islander Commission, Reconciliation Australia, members of the Stolen Generation and their representative organisations with a view to establishing a national memorial. Chapter 4, p 142

Recommendation 6

The Committee recommends that the Government take steps to implement an effective and independent coordination and monitoring process for all programs which address the needs of members of the Stolen Generation. This process should take into account the recommendations of Bringing Them Home and the recommendations and conclusions of this report. Chapter 5, p 173

Recommendation 7

The Committee recommends the establishment of a ‘Reparations Tribunal’ to address the need for an effective process of reparation, including the provision of individual monetary compensation. Chapter 8, p 259

Recommendation 8

The Committee recommends that the Tribunal model put forward by the Public Interest Advocacy Centre of NSW be used as a general template for the recommended tribunal. The model should consider the most effective ways to deal with issues of reparation. Chapter 8, p 259

Recommendation 9

The Committee recommends that details of the form and operations of the tribunal be finalised following consultation at the proposed National Summit. Chapter 8, p 259

Recommendation 10

The Committee recommends that as soon as practicable after the tabling of this report, appropriate consultations should be held with representatives of the Stolen Generation and their organisations, including ATSIC, with a view to finalising an agenda for the proposed National Summit. Chapter 9, p 282

Minority Report by the Australian Democrats: Executive Summary

Chapter 1

Conclusions

• The Australian Democrats do not consider this report as the appropriate context in which to take up issue with those who have cast themselves as critics of the stolen generations. This is not to suggest that this debate should not occur. On the contrary, it is vital to the process of national reconciliation between Indigenous and non-Indigenous Australians that an open, honest and inclusive debate on these matters does occur. The purpose of such a debate must be to bring about a proper resolution of the issues, rather than the polarisation of sections of the community; this latter outcome will simply perpetuate the suffering, misunderstandings and inaction.
• The objective of the Australian Democrats in supporting the motion for a Senate Inquiry into the Stolen Generations was and continues to be, the need to provide a human response to what we regard as one of the darkest and most tragic periods in this country’s history.
• We accept the finding of the Bringing Them Home Report (hereafter the BTH Report) that every Indigenous family in Australia has been affected, either directly or indirectly, by the policies and practices of forcible child removal that occurred throughout Australia in the period from 1910 to 1970.
• We accept the findings of the Human Rights and Equal Opportunity Commission contained in the BTH Report that the forcible removal of Aboriginal and Torres Strait Islander children from their families and communities constitutes a violation of fundamental human rights. These human rights standards existed at the time and were understood by those in positions of authority.
• Regardless of whether a person subscribes to the view that the forcible removal of Indigenous children constitutes genocide (as defined in the United Nations Genocide Convention), or whether a person regards this as an element of the ‘black armband view’ of Australian history, the reality of the stolen generations cannot be denied.
• The Australian Democrats believe that the evidence does not support the Government’s conclusion that the practices and policies of child removal were in step with the attitudes held by the community at large, particularly during the postwar period. On the contrary, there is evidence to indicate that some Australians were voicing their concern and objection to the policies based on the moral and ethical values of the day, which were held by the community at large. These concerns escalated during the 1960s and 70s.

Chapter 1 Recommendations

1.1 The Australian Democrats recommend that all of the recommendations contained in the Majority Report on the Stolen Generations be implemented as a matter of urgency.

Chapter 2

Conclusions

• The Commonwealth Government’s response to the recommendations of the BTH Report has been inadequate and ineffective in dealing with the enormity of the suffering which continues as a result of past child removal practices and policies.
• The recommendations of the BTH Report need to be implemented as a package of measures which complement and reinforce each other; they should not be selectively implemented according to political viewpoints.
• Funding needs to be significantly increased and members of the stolen generations and their representative organisations need to be consulted to ensure that funding is allocated where the needs are greatest, and to initiatives which the communities consider culturally appropriate and worthwhile.
• The Commonwealth Government’s response to the recommendations contained in the BTH Report must be co-ordinated by Council of Australian Governments (COAG) to ensure that a co-ordinated, effective and truly ‘national’ healing process can be fostered. That response must also be subject to regular review by an independent audit, to ensure that the needs of the stolen generations are being met and continuing to drive the national response.
• The appropriate response to the effects of the policies and practices of child separation which occurred in Australia between 1910 and 1970 is the provision of full and just reparations to the stolen generations, their families and communities, as recommended in the BTH Report.
• Only a response of this nature would enable Australia to comply with our obligations under the international human rights treaties which we have ratified, as well as the obligations imposed on Australia by the norms of international customary law as contained in the van Boven principles.
• The Commonwealth Government must provide the leadership to bring together the State and Territory Governments, Churches and other bodies that were responsible for the administration and implementation of the child removal policies and practices, to ensure that full and just reparations are delivered to the stolen generations, their families and communities.
• In the Australian situation, the Australian Democrats believe that litigation in our adversarial court system is not a culturally appropriate or effective remedy for the situation confronting the stolen generations, their families and communities. The Gunner and Cubillo case only showed how ill-equipped our courts are to provide a human response to the legacy of the stolen generations.
• The experiences of the stolen generations, their families and communities as a result of the policies and practices of child removal over successive generations from 1910 to 1970 do constitute ‘exceptional circumstances’ that warrant at the very least, the provision of full and just reparations, including compensation.

Chapter 2 Recommendations

2.1 The Australian Democrats recommend that the federal government, in consultation with the stolen generations and their representative organisations, significantly increase the funding package to implement the government’s response to the recommendations of the BTH Report to ensure that the needs of the stolen generations are fully addressed. These negotiations should be a key element of the National Summit on the Stolen Generations, as proposed in the Majority Report.

2.2 The Australian Democrats recommend that the federal government’s funding package to implement the recommendations of the BTH Report should be ongoing and subject to review in terms of its adequacy by the independent auditing body referred to in Recommendation 2.6 below.

2.3 The Australian Democrats recommend the establishment of a mediation process and/or series of conferences by ATSIC to resolve a range of outstanding issues between the stolen generations communities, their representative organisations and Indigenous community organisations in the Northern Territory. This should occur in advance of the Indigenous consultations referred to in Recommendation 10 of the Majority Report.

2.4 The Australian Democrats recommend that the Churches proceed with their plans to establish their own compensation fund to facilitate the delivery of reparations, including compensation, to the stolen generations, their families and communities, in accordance with the recommendations of the BTH Report.

2.5 The Australian Democrats recommend, in acknowledgment of the enormity of the problems faced by the stolen generations throughout Australia, that COAG take up the responsibility of ensuring the delivery of a co-ordinated, effective, whole-of-government response to the recommendations contained in the BTH Report.

2.6 The Australian Democrats support Recommendation 1 of the Majority Report, relating to the need for the federal government, in conjunction with state and territory governments, to commission an independent evaluation of the progress of initiatives implemented by governments in response to the BTH Report.

2.7 We further add that periodic independent audits of governments’ initiatives are required no less than every three years to ensure that the needs and aspirations of the stolen generations are being satisfactorily addressed.

2.8 The Australian Democrats recommend that Recommendations 44–54 of the BTH Report be actioned as a matter of urgency to ensure that adequate national legislation is implemented which establishes minimum standards of treatment and protection of all Indigenous children and other children as appropriate (national standards legislation).

2.9 The Australian Democrats recommend that the Commonwealth provide full and just reparations to the stolen generations, their families and communities as soon as is practicable. This recommendation should be carried out in conjunction with all other recommendations contained in this Minority Report. Collectively, these recommendations constitute the minimum acceptable response required to heal the legacy borne by the stolen generations, their families and communities.

Chapter 3

Conclusions

• Arguments that compensating members of the stolen generations would be too complicated, uncertain or costly need to be assessed against the considerable Australian experience to date in providing compensation and restitution where community priorities have required an equitable outcome.
• Statutory schemes, such as the victims of crimes compensation arrangements at the State and Territory level and the Commonwealth’s veterans’ legislation, reflect public policy decisions by governments to provide compensation schemes for people who have suffered loss but where there would be difficulties in obtaining compensation through normal court processes.
• Such experience, and the demonstrated potential of techniques such as mediation and alternative dispute resolution provide a basis for the development, by statute, of a tribunal or commission charged with the task of providing reparations, including acknowledgment, compensation, and rehabilitation, for the members of the stolen generations who have been the victims of forcible removal. This approach would avoid the considerable difficulties and unnecessary trauma associated with litigation through the courts.
• The Public Interest Advocacy Centre submission sets out the basis of one such proposal. There also appears to be the potential for the Administrative Review Council to play a constructive role in developing an appropriate tribunal mechanism.

Chapter 3 Recommendations

3.1 The Australian Democrats recommend that all parties involved in negotiations for the establishment of a Stolen Generations Tribunal examine the Veterans’ Entitlement Act 1986 as a successful legal precedent for the relaxation of the normal requirements for establishing liability.

3.2 The Australian Democrats recommend that all parties involved in negotiations for the establishment of a Stolen Generations Tribunal consider the inclusion of a mediation process in the operation of such a Tribunal.

3.3 The Australian Democrats recommend that all parties involved in negotiations for the establishment of a Stolen Generations Tribunal consider the inclusion of an alternative dispute resolution mechanism in the operation of such a Tribunal.

3.4 The Australian Democrats recommend that the Administrative Review Council (or an equivalent body) prepare a report for tabling in the Australian Parliament on the appropriate model for a Stolen Generations Reparations Tribunal. This report should draw extensively on the views of the stolen generations, their representative organisations, and the outcomes of the National Summit on the Stolen Generations.

Dissenting Report: Conclusion and Recommendations

7.1 Although we do not agree with the thrust of the recommendations in the majority report we believe that this should be an opportunity to consider constructive ways to address the pain of past separations.

7.2 We believe that the response to the problems experienced by those affected by the practices of child separation should be part of a broader charter of reconciliation.

7.3 The starting point is an acknowledgment that the level of disadvantage experienced by the Indigenous population of Australia, as a group, is the legacy of colonial history, as with most other indigenous populations.

7.4 The response of successive governments — past and present, State and Commonwealth — since the 1970s in particular, has been to address the extent of Aboriginal disadvantage with a range of special programmes and policies involving significant expenditures.

7.5 Since the 1967 referendum, which gave the Federal Government power to make laws specifically for Indigenous Australians, the Commonwealth Government has spent some $24 billion (1997 prices) on Indigenous specific programs, including $20 billion in the last 15 years.

7.6 This year, the Government will be spending a record $2.3 billion on Indigenous specific measures — more in real terms than in any previous Budget of any Federal Government. Almost three-quarters of this funding is now targeted to the priority areas of housing, health, education and employment.

7.7 Significantly, the Indigenous controlled ATSIC, through the auspices of 35 regional councils, is independently responsible for administering approximately half of the Federal Government’s annual spending on Indigenous-specific programmes.

7.8 And yet on almost every indicator, while there is real improvement in actual outcomes, Indigenous Australians remain comparatively disadvantaged compared with other Australians.

7.9 While not agreeing with aspects of Bringing Them Home, we do acknowledge its finding that family reunion is the most pressing need of those affected by the practices of child separation and we accept that past separation practices have caused pain and loss to many Aboriginal people.

8.0 The question is how can those who find themselves dislocated and dispossessed by these past events be appropriately assisted? The need for family reunion is an issue which lies at the heart of addressing the consequences of past separations. The Commonwealth’s $63 million response package includes initiatives that are designed to address these specific needs, but the response of the States, Territories and non-government organisations leaves much to be desired.

8.1 Accordingly, we recommend as follows:

(1) That family reunion and associated support services continue to be the primary focus of government and non-government responses to the separated children experience; that those services be targeted specifically to those separated children.
(2) That State governments and responsible non-government organisations, including the churches, be encouraged to give tangible as well as symbolic recognition to the needs of separated children.

[1] Senate Hansard 24 November 1999 p 10587. In advertising and during hearings, a slightly varied form of these terms of reference was used; this is at Appendix 3.

[2] This extract is reproduced by permission of the Department of the Senate on behalf of the Commonwealth of Australia.