Part 3 Consequences of Removal Chapter 10 Children’s Experiences

Confidential evidence139, Victoria: womanremoved at12months in 1967.

Findings Denial of common law rights The Inquiry has found that the removalof Indigenous children by compulsion, duress or undue influence was usually authorised by law, but that those laws violated fundamental common law rights which Indigenous Australians should have enjoyed equally with all other Australians. As subjects of the British Crown, Indigenous people should have been accorded these common law liberties and protections as fundamental constitutional rights.

Breach of human rights The Inquiry has further found that from about 1950 the continuation of separate laws for Indigenous children breached the international prohibition of racial discrimination. Also racially discriminatory were practices which disadvantaged Indigenous families because the standards imposed were standards which they could not meet either because of their particular cultural values or because of imposed poverty and dependence. Finally, from 1946 laws and practices which, with the purpose of eliminating Indigenouscultures, promoted the removal of Indigenous children for rearing in non-Indigenous institutions and households were in breach of the international prohibition of genocide. From this period many Indigenous Australians were victims of gross violations of human rights.

Other victimisation The Inquiry has found that many individuals were victims of civil and/or criminal wrongdoing. These wrongs were perpetrated by ‘carers’ and typically ignored by government-appointedguardians.They compounded the initial harm and damage

caused by the children’s separation and the denial of access to their families, communities and culture.

The right to compensation The Inquiry is aware that no measures can fullycompensate for the effects of these violations.

The loss, grief and trauma experienced by Aboriginal people as a result ofthe separation laws,policies and practices canneverbe adequately compensated. The loss of the love and affection of childrenandparentscan not be compensated. The psychological,physicaland sexual abuseof children, isolated amongadults whoviewed them as members of a “despised race” cannotbe adequately compensated. The trauma resulting from these eventshave produced life-long effects,not onlyfor thesurvivors,but for their children and their children’s children. The lossof Aboriginal identity, culture, heritage, community and spiritual connection to our country cannot be adequately compensated. Nor can the lossof the parents and other leaderswhoprovide thevision, thestrength and theresponsibility to carry our communities forward into thefuture.It is also impossible to adequately compensateus for the internalised racisms expressed as divisiveness within communities causedby separations, such thatwejudge ourselves and eachother as being moreorless ‘Aboriginal’ (Link-Up (NSW) AboriginalCorporation submission 186 page2).

Nevertheless, the Link-Up (NSW) submission emphasised the responsibility of governments under international law to provide reparations for gross violations of human rights.

Insofar as reparation and compensation can assist us toheal from the harms of separation, it is our right to receive full andjust reparationand compensationfor the systematic gross violationsofour fundamental human rights(page2).

Dr Jane McKendrick, a psychiatrist with the Victorian Aboriginal Mental Health Network, emphasised the healing power of recognition and compensation.

Thepeoplewho come to see me with depression andotherpsychologicalproblems and start talking about the things thathavehappened to them in theirchildhood – it is as if they are coping with that on their own andno-one elserecognises it. Often they are things that they feel they cannot tell anyone else, even the people closest tothem.

They also feel that this hasbeendone to them and no-one caresbecause there has beenno official recognition.And people say, well,nothing isgoing to compensateme for whatIhave lost and it canneverbe completely replaced. But I think some acknowledgement and some form of compensationwouldassist people to feel that theirpain and their suffering has been recognised and it has been recognised that something has been done tothem.Because families and individualswhohave beenremovedoftenfeel guilty themselves about the removal …

I think it is a centralpartof thehealing process because you have tohave therecognition and tohave proper recognition you have to havesome form of compensation,because a wrong hasbeendoneto these people. And for it to be a proper recognition, there has tobe compensation. Unlessthereis proper recognition of what has been done,people reallycannot begin to heal properly(evidence 310).

A human rights framework Principles for responding to the effects of forcible removals must be developed from an understanding of Australian history as having included gross violations of human rights.International human rights treaties and norms of customary international law impose obligations on countries to respect human rights standards and to prevent their violation, including by private persons (Forde 1985 pages 271-8, Meron 1989 pages 156-9 and 162-9, van Boven 1993 para 41). States breach their obligations when they fail to prevent human rights violations by others as well as when human rights are violated by state action.In either event the victims have a right to reparation.

… the obligations resulting from State responsibility for breaches of international human rights law entail correspondingrights on thepartof individual persons andgroups ofpersons who are underthe jurisdiction of the offendingState and who are victimsof those breaches. Theprincipalright thesevictims are entitled to under international law is theright to effectiveremediesandjust reparations (van Boven 1993 para 45).

Many international instruments binding on Australia recognise this right to remedies and reparations. Article 8 of the Universal Declaration of Human Rights (1948) states that,

Everyone has theright to an effectiveremedy by the competent national tribunalsfor acts violating the fundamental rights granted him by the constitutionor by law.

Article 2(3) of the International Covenant on Civil and Political Rights (1966), article 39 of the Convention on the Rights of the Child, article 19 of the Declaration on the Protection of All Persons from Enforced Disappearances, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination all provide a right to compensation for a violation of human rights. The last named provides that states parties are to ensure effective protection and remedies against any acts of racial discrimination in violation of the Convention as well as the right to seek ‘just and adequate reparation or satisfaction for any damage suffered as a result of racial discrimination’.

The right to reparation does not depend on treaties alone.It is now widely recognised that customary international law requires that states make reparation.

Customary norms are binding upon the constituent unitsof theworld community regardless of any formal act of assent to thosenorms. An integralpartof a State’s obligations inregards to international human rights law is theduty toprovide an adequateremedy where substantivenorms are violated (Anaya1994page 360; see also Lutz 1989page 201).

The Inter-American Court of Human Rights in the Aloeboetoe Case held that the obligation to make reparation is a ‘rule of customary law’ and ‘one of the fundamental principles of current international law’.

In summary, there is an international legal obligation ‘to repair the damage caused, awarding the victims means of rehabilitation and, where applicable, compensation or

economic indemnification’ (Artucio 1992 page 192). This obligation passes from the violating government to its successors until satisfactionhas been made (Lutz 1989 page 206).

The van Boven Principles In 1989 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities entrusted Professor Theo van Boven with a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms. He submitted a final report, including a proposal for basic principles and guidelines, in 1993.In 1995, the Sub-Commission requestedProfessor van Boven to prepare a revised set of basic principles and guidelines for its consideration in 1996. The revised document is entitled Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law (van Boven 1996; see Appendx 8). The principles recognise a right to a remedy for these victims.

4.EveryState shall ensure that adequate legalor other appropriate remedies are available to any person claiming that his orher rightshave beenviolated …

The Inquiry concurs with van Boven that the only appropriate response to victims of gross violations of human rights is one of reparation.In international law and in the practice of other countries the term ‘compensation’ is generally reserved for forms of reparationpaid in cash or inkind. Other terms are used for non-monetary compensation. The term ‘reparation’ is the comprehensive notion. The Inquiry was urged to interpret the term ‘compensation’ in term of reference (c) as ‘intended to include the more encompassing term “reparation” ’ (Aboriginal Legal Service of WA submission127 page 72).In light of the clear intent of the terms of reference to redress the history of removals the Inquiry adopts this interpretation.

7.In accordancewith international law, Stateshave the duty to adopt special measures, wherenecessary, to permit expeditious and fully effective reparations. Reparationsshall render justiceby removingor redressing the consequences of the wrongful acts and by preventing and deterringviolations. Reparations shall be proportionate to thegravity of the violations andthe resultingdamage and shall include restitution, compensation, rehabilitation,satisfaction and guarantees of non-repetition(van Boven1996).

A number of submissions to the Inquiry supported an approach to the principles of compensation which recognises the history of gross human rights violations and the obligation to make reparation. Some were aware and supportive of the ‘van Boven principles’. The Aboriginal Legal Service of WA commented that,

Many of the specific recommendations made by those interviewedby theALSWA are consistent with van Boven’sproposals(submission 127page105).

The ALSWA recommended that Commonwealth and State governments accept and ‘give effect to the proposed basic principles and guidelines recommended by van Boven to justify an award to persons, families and communities affected by the separation of Aboriginal children from their families’ (recommendation 1). The Stolen Generations National Workshop also endorsed the approach taken by van Boven

(submission754 page 50).

The Broome and Derby Working Groups submitted,

Webelieve that those who have suffered are entitled to monetary compensation and to some form of restitutionforwhat they have lostand that theGovernment and other institutions responsiblefor formulating and implementing these policies and practices should assist in the rehabilitation of individualsand families whohave suffered the ongoingeffectsof these policies and practices(submission518 page 2).

In its 1994report on the High Arctic Relocation of 1953-55, the Canadian Royal Commission on Aboriginal Peoples proposed a package of reparations along similar lines.It recommended that the Canadian Government ‘should acknowledge the wrongs done to the Inuit and apologize to the relocatees’, should fund additional services to assist the readjustment of ‘returnees’ and all others still adversely affected, and should make ‘provisions for returning, including re-establishment in the home community’ and should pay monetary compensation for the effects of relocation (pages 163-164).

Reparations should be material, in-kind and non-material and should include, but not be confined to, monetary compensation. In this Part we make recommendations relating to acknowledgment and apology, guarantees against repetition, some measures of restitution and monetary compensation.InPart 5 we make further recommendations which are restitutive in nature and a number of recommendations which are rehabilitative in nature.

Components of reparation Recommendation 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. measuresofrestitution, 4.measures of rehabilitation, and 5. monetary compensation.

The gross human rights violations documented by the Inquiry have affected Australia’s Indigenous peoples widely. They have affected the families and communities of those forcibly removed. They have affected the entire Indigenous populationwith demoralising consequences. The van Boven principles recognise that victims of violations may be direct and indirect, thus including the children and families directly affected together with entire communities.

6.Reparation may be claimed individually andwhere appropriate collectively, by the direct victims,theimmediatefamily,dependants or other persons or groups of persons connected with the directvictims.

The importance of making reparation to all who suffered as a result of these practices is recognised in the Inquiry’s terms of reference and was underlined by a number of submissions to the Inquiry.

Compensationneeds to be seen notonly in direct relation to the childrenwho were removed, but also theparents,families and communitiesfrom which the childrenwere taken.Whole communities were severely affected and collective grief is a continuing reality in the communities affected(Link-Up (NSW) Aboriginal Corporation submission 186; supported by AboriginalLegal ServiceofWA submission 127 recommendation11).

Thisprocess must include a recognition that theremovals affected more than the individuals actually taken,but also the communities they were taken from and the descendantsof those taken, all ofwhom continue to suffer the anguish the removals caused(StolenGenerations National Workshop1996 submission 754page50).

At the same time, submissions emphasisedthat the principal victims were the children taken away and that their individual rights to reparations should not be overlooked in the process of making reparation to their families and communities.

There is collective grief; butnot comparable to the grief sufferedby the individualswho were the subjectof the policy and whowere deprived of beingraisedin normal circumstances with their family and community. Nor does compensating communities recognise that individuals’ legal rightshavebeen affectedby thepolicy, and that individuals suffered damage (Tasmanian Aboriginal Centre submission 325 pages 2-3;supportedby NSWAboriginal Land Council submission643page 2 and confidential evidence163, Victoria).

Claimants Recommendation 4:That reparation be made to all who suffered because of forcible removal policies including, 1.individualswho 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 communitydisintegration, and 4.descendantsof 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 The first step in any compensation and healing for victims of gross violations of human rights must be an acknowledgment of the truth and the delivery of an apology. Van Boven’s principle 15 concerns ‘satisfaction and guarantees of non-repetition’ including, as necessary,

(a)Cessation of continuing violations;

(b)Verificationof thefacts andfull andpublicdisclosure of the truth;

(c)An official declarationor a judicial decisionrestoring the dignity,reputation and legal rightsof thevictim and/or ofpersons connected withthe victim;

(d)Apology, includingpublic acknowledgment of the facts and acceptance of responsibility;

(e)Judicialor administrative sanctions against personsresponsiblefor theviolations;

(f)Commemorations and paying tribute to thevictims;

(g)Inclusion in human rights training and history textbooksofan accurate accountof the violations committed in the field ofhuman rights andhumanitarian law;

(h)Preventingthe recurrence of violations …

For victims of gross human rights violations, establishing the truth about the past is a critically important measure of reparation (Orentlicher 1994 page 457). For many victims and their families, an accurate and truthful description of past policies and practices and of their consequences is the first requirement of justice and the first step towards healing wounds (Danieli 1992 page 210). Also essential is an acknowledgment of responsibility (Danieli 1992 page 208). Related to calls for truth and acknowledgment of responsibility, the Inquiry has heard demands for apologies to the individuals, families and communities who have survived the removal of Indigenous children.

The Canadian Royal Commission on Aboriginal Peoples recently recommended the establishment of a public inquiry to investigate the Canadian policy of removing Indigenouschildren to residentialschools.It is proposed that the inquiry should in turn ‘recommend remedial action by governments and theresponsible churches … includingas appropriate, apologies by those responsible’ in addition to the payment of compensation (1996b Volume 5 page 143).

The Inquiry was told that both governments and non-government agencies, including the churches and missions, should acknowledge their part in the separation of Indigenous families and apologise to the victims. ATSIC submitted,

Theprospectof apologies to indigenouspeoplehasbeen raisedon many occasions. There is no uniform view aboutreparationsbut thereis a consistentviewof indigenouspeople as to the necessity for apologies … an apology mustbe matchedby a commitment to rectify past mistakes through reparationand compensation.

… ATSIC considers that reconciliation must surely beginwith thisone elementary condition: an apology.Indigenous people may thenfeel that the issueof separation, and the injustices it caused,havebeen acknowledged by thosepresent-day government andnon-government organisationswho aredirectly connected with organisations responsible for past policies and practices (submission684 page 32).

‘[T]he assimilation policy that operated in this country be [should be] denounced officially by governments across the country’ (Aboriginal Legal Rights Movement submission 484 recommendation 18); ‘public acknowledgment and apologies [should] take place from the Australian population including especially government organisations, church bodies’ (SA AboriginalChild Care Agency submission 347 recommendation 5). Link-Up (NSW) called for ‘a full public disclosure of the facts of

separation’, admissionsof responsibility from governments ‘for the development and implementationofthe policiesandpracticesofseparation’, admissionsof responsibility from the churches for their roles and extension of apologies to the survivors for their ‘engagement in practicesof genocide, forced assimilation and ethniccleansing’ (submission186).TheAboriginalLegalServiceofWA recommended,

That the State government [and the Commonwealth government]make a public statement in Parliament acknowledging the devastating impact of thepolicies andpractices of removing Aboriginal childrenfrom their families on individuals, their families and the Aboriginal community, and express regret, and apologise onbehalfof thepeopleofWesternAustralia [and Australia](submission 127recommendations 3 and 5).

Government statements Australiangovernments have only veryrecently admitted the history of forcible removals and its effects. While governments recognise the harms suffered, as the following statements evidence, only the Government of New South Wales has extended an apology.

Addressing the United Nations Human Rights Committee in 1988, Australia’s Representative stated,

[Australia] acknowledged that the Public Policy regarding the care of Aboriginal children, particularly during the post-warperiod, hadbeen a seriousmistake (quotedby Aboriginal Legal RightsMovement submission 484on page18).

Launching the 1993 Year of the World’s Indigenous People, then Prime Minister Paul Keating stated,

It begins,I think,with the act of recognition.Recognition that it was wewho did the dispossessing.We took the traditional landsand smashed the traditionalway of life. We brought the diseases. The alcohol.We committed the murders.We took the children from theirmothers. We practised discriminationandexclusion.

It was our ignorance and ourprejudice. And our failure to imagine these thingsbeingdone to us.With some noble exceptions,wefailed to make the most basichuman response and enter into theirhearts and minds.Wefailed to ask – howwould I feel if this weredone to me. As a consequence,wefailed to see that what wewere doingdegraded all of us(Redfern,10 December 1992).

The South Australian Minister for Aboriginal Affairs, Michael Armitage, stated in the House of Assembly in September 1994,

I remind members of the appalling andbreathtakingly paternalistic practice of taking Aboriginal childrenfrom their families, ostensibly to provide for them in a so-called ‘better fashion’ …

Therewould befew Aboriginalpeople beyondschoolage who were not raised withoutthe threat, if not the actuality offamily dislocation.Itwill take decades yet before the consequences of these policies areworked through.

The consequences of past mistakes are carried from generation togeneration. Reconciliation appropriately involves anhonest acknowledgment of the impact of colonisation,both historically andup to the current day (quotedby Aboriginal Legal RightsMovement submission 484 on page 48).

In its submission to the Inquiry, the Tasmanian Government stated that it,

… recognises that past legislation,practicesand policies have adversely affected Aboriginal people.Thishas had implications to Aboriginal people in Tasmania over successive generations(final submission page i).

The Queensland Government submitted,

The extentofgovernment controlover the livesof the indigenouspeopleof theState that occurred in the past, and the associatedhighdegreeof government and institutional interference with indigenous family life, have hadwide-ranging and oftentragic impacts on Aboriginal and Torres Strait Islanderpeoplein Queenslandover successive generations.

Many of those policies and practices, and the beliefs that engendered them, are not acceptable today(interim submission page2).

The Victorian Government submitted,

TheGovernment has acknowledgedbefore the Commissioner, that the early history of child welfare in Victoria is hallmarked by policiesand practices whichevolved in accordance with the viewsof the Victorian community of that time. Many of these approaches to childwelfare would be unacceptable today (final submissionpage3).

On 14 November 1996, New South Wales Premier Bob Carr, in a speech on reconciliation in the Legislative Assembly, stated that removals were ‘done in the name of the State and in the name of this Parliament’.

That is why, Mr Speaker, I re-affirm in this place, formallyand solemnly as Premier, on behalf of the governmentandpeople of New South Wales, ourapologyto Aboriginal people.