Part 3 Consequences of Removal Chapter 10 Children’s Experiences

CCPR/C/81/Add.8 page 115).

As to the Commonwealth Government’s third point of particular difficulty, the Inquiry doesnot agree that payment of compensation would have negative consequences for the wider community. The Commonwealth argues that the forcible removal laws are only one exampleof laws later discredited. This understates the enormity of the devastation wrought and the significance of its continuing effects on the well-being of all Indigenous communities. A distinction should be made between a subsequent recognitionthat public policy was poorly judged and a public policy in breach of fundamental human rights. Systematic racial discrimination and genocide must not be trivialised and Australia’s obligation under international law to make reparations must not be ignored.

Far from being socially divisive, reparations are essential to the process of reconciliation. The Chilean National Commission for Truth and Reconciliation was established to investigate gross human rights violations under the Pinochet dictatorship. A member of that Commission has noted that,

[S]ociety cannot simply blockout a chapter of its history; it cannotdeny thefacts of its past, however differently these may be interpreted.Inevitably,the void would be filled withlies or with conflicting, confusing versionsof the past. A nation’sunity dependson a shared identity, which in turn depends largelyon a shared memory. The truth also brings a measure of healthy social catharsis and helps to prevent thepastfrom reoccurring(Zalaquett 1992 page 1433).

A national compensation fund TheInquiryreceived many submissions addressing the meansbywhich compensation should be determined and distributed. A number of submissionscall for the establishment of a specialist mechanism to adjudicate on compensation for victims of the removal policies. These submissions refer to the unfairness of requiring victims to pursue their claims through the court system.

It is a monstrous and callouspolicy which relies on court processes to deal with the effect of a government policy ofdisplacement of Aboriginal children.To avoid simplifying the remedy process for Aborigines affected by the displacement policy, exposing them instead to the adversarialcivil system with its onusof proof, causation and technical rules of evidence, is to exacerbate the grief.Ifgovernments of the day caused the problem, it is the responsibility of governments of today to fix the problem. Thepurposeof actionfor displaced children and families shouldbe toalleviate the pain … The tribunals should berun on a fairly informal basis, withouthaving to adhere to the rule of evidence or court procedure and protocol (Tasmanian Aboriginal Centre submission 345pages12 and 14).

That the Commonwealth and State governments establish a Task Force whichhas a majority of Aboriginal representation todevelop a non-technical, expeditious and effective mechanism to distribute monetary compensation to all individuals,families and communities affected by the removalofAboriginal childrenfrom their families under the assimilationpolicies (AboriginalLegalService of WA submission 127 recommendation 12).

In relation to the compensation issue in general,wewould urge the Commission not to recommend a legalistic approach in determining the entitlement to compensationof Aboriginalpersons affected by forced familyseparations … The few cases initiated to date by Aboriginalplaintiffs seeking redressfor their separation from their families havebecome bogged down inprocedural matters … Court actions are always expensive … [There are] difficulties in quantifying ‘damage’ for compensation issues. Clearly anyattempt to quantify the pain and suffering and psychologicalproblems broughtaboutby government assimilation and integration policies is fraughtwithdifficulty(TasmanianAboriginalCentre submission 345 pages 12-13).

There was also support for the establishment of a fund to which affected people could apply for compensation.

[C]ompensation shouldbepaid in non-taxable lump-sums to individuals.Suchpayments to be assessed against a scale defining categories of persons affected by these policies and practicesof removal. [C]ompensation shouldbepaidfrom a regional trust fundwith a Kimberley Aboriginal Boardof management, fundedby the State and Federal Governments, ex-missions and commercial and mining interests in theKimberley.A levy could be paid to the trust fund bymining and business interests operating in theregion. [[I]ndividuals could apply to the trust fundwhichwould assess each application (Broome and DerbyWorking Groups submission 518 recommendation3.1.2).

In its submission to the Inquiry the Commonwealth Government expressed a concern that different jurisdictions would be likely to differ in their decisions on compensation, thus causing inequity as between claimants (page 31). To overcome the pitfalls of costly, time-consuming litigation and possible inconsistency of results, the Inquiry proposes, as an alternative to litigation, a statutory compensation mechanism to determine claims in accordance with procedures designed to ensure cultural appropriateness, minimum formality and expedition.

The major church organisations which played a role in forcible removalby accommodating the children should be encouraged to contribute to this fund should they so choose.

National Compensation Fund Recommendation15:That the Council of Australian Governments establish a joint National Compensation Fund.

Contributions to the Fund must be over and above existing funding for services and programs to Indigenous people and communities.

It is repugnant, unjust andunprincipled for reparationpayments to be met throughoffsetsto allocationsforindigenousprograms. Compensation shouldbe met by payments specifically distinguishedfrom these appropriations (ATSIC submission 684page 34).

NSWALC believesgreat care shouldbe takenin labelling certain measures as a form of compensation … [T]o suggest that improveddelivery of service can be a form of ‘compensation’ for wrongscommitted against Indigenous peoples is inappropriate.Services suchas health, education and housingare basichumanrightswhich Aboriginal peopleare entitled to enjoy to thesame extent as other citizens … Aboriginalpeopleshouldnothave to bargain for essential servicesby foregoing compensation,nor should thedelivery of essential

services be seen as recompense for past wrongs. These services should be delivered regardless of any compensation that may be recommended by the Inquiry(NSWAboriginal Land Council submission643page 2).

A Board (or similar) will be needed to administer the Fund, consider claims and award monetary compensation. This Board must include Indigenous members and be chaired by an Indigenous person.It is likely that the contributing governments will desire some representation on the Board, while simultaneously sharing an interest in keeping membership to a minimum. The make-up of the Board is ultimately a matter for the Council of Australian Governments. National Compensation Fund Board Recommendation16a:That the Council of Australian Governments establish a Board to administer the National Compensation Fund.

Recommendation16b: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 Some fundamental procedural principles are necessary to ensure that monetary compensation is distributed effectively and equitably. Guidance is provided in this respect by internationally recognised principles, including those of van Boven.

Whatevercompensationmechanismisestablished, culturally appropriate assessment criteria and procedures which are expeditious, non-confrontational and non-threatening and which respect and accommodate cultural and linguistic needs, must be applied in the determination of compensation claims (van Boven 1992 pages 13-14, Lutz 1989 page 210).

The experience of victims of the Shoah (Holocaust) suggests that it can take some time before victims are mentally capable of filing claims or accepting compensation (van Boven 1992 page 14). Lutz has noted that,

[F]ormer victims are not likelyto focus immediately on seekingcompensation, especially in the years just following theirpersecution.Theirprimary concernduring that periodwill be to rebuild their lives. Once physical healthneeds are addressed,it may take years for a former victimtorecognizethat he or she has unresolved mental health problems or is unable to work at hisorherpreviousoccupational level (1989 pages 207-8).

In this connection, Professor van Boven has commented,

Theprinciple should prevail that claims relating toreparationsforgross violations ofhuman rights are linked to the most serious crimes towhich, according to theauthoritative legal opinion,statutory limitationsshall not apply.Moreover, it is well-established thatfor many victims of gross violationsofhuman rights, thepassageof time has no attenuating effect; on the contrary, there is an increase in post-traumatic stress, requiring all necessary material,

medical, psychological and social assistance and supportover a longperiodof time (van Boven 1993 para 135).

This approach is confirmed by the United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968, but not ratified by Australia).

No statutory limitations shallapply to the following crimes … [c]rimes against humanity whether committed in time of waror time of peace … the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of thedomestic law of the country inwhich theywere committed (article I(b)).

Procedural principles Recommendation17:That the following procedural principles be applied in the operations of the monetarycompensation 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).

Assessment of compensation In its submission the Commonwealth Government expressed concern that ‘[p]ayment of a single standard rate of compensation, without regard to individual circumstances would inequitably equate very different circumstances’ (page 31). The Inquiry’s recommendations will avoid inequity of this kind. Our approach finds support in submissions from the Broome and Derby Working Groups (submission 518) and the Tasmanian Aboriginal Centre (submission 325).

Compensationshouldbepaidin non-taxablelump sums to individuals(Broome and Derby WorkingGroups submission 518recommendation 3.1.2).

This approach has been adopted in somewhat analogous situations in other countries. For example, in 1989 the United States Government authorised lump sum reparatory payments to Americans of Japanese ancestry who had been interned during the Second World War. Research undertaken in Chile by the National Commission for Reparation and Reconciliation into the wishes of victims of violations of human rights by the military dictatorship revealed a clear preference for equal compensation for all regardless of their particular circumstances. In the determination of compensation, some practical difficulties might arise in assessingwhat qualifies as proof of removal and proof of loss.In many cases evidentiary material such as records may be difficult to obtain or have been

destroyed.In these cases, the burden of proof should be on governments to rebut otherwise credible claims. Governments should be able to defend a claim if they can establish that removal was in the best interests of the child. The reversal of the onus of proof to the extent proposed in Recommendation 18 is necessary as a ‘special measure’ under the Racial Discrimination Act 1975 (Cth). Special measures in favour of one ethnic group (or ‘race’) are permissible where needed to secure adequate development, advancement and protection so that they can enjoy, fully and equally, their human rights and fundamental freedoms.

The proposed monetary compensation mechanism is intended as an alternative to the cumbersome and often prolonged processes of civil claims. Accordingly, its processesshould be straight-forward and non-technical and should ensure consistentresults for claimants. The approach adopted finds support in the submissionmade to the Inquiry by the Tasmanian Aboriginal Centre.

We contend that such tribunals be empowered to make monetary awards toAboriginal people affected by such separations. Empowering legislation couldprescribe a minimum amountofdamages tobe awarded to eachperson on proof thatthey were displaced. Claimants wanting larger awards could be required toprovidefurtherparticularsof their separation and the debilitating effect of suchseparation (submission 325 page14).

The Chilean Commission for Truth and Reconciliation also recommended payment of equal compensation to all without regard to their particular social,economic or culturalcircumstances,although in Chile a pension scheme was recommended in preference to payment of a single lump sum (Danieli 1992 page 206).

Minimum lump sum Recommendation18:That an Indigenous person who was removed from his or her family during childhood by compulsion, duress or undue influence beentitled 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 responsiblegovernmentto establish that the removal was in the best interests of the child.

Proof of particular harm Recommendation19: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. Everyone who can establish forcible removal and everyone who can establish harm or loss resulting from the forcible removal of any person should be entitled to claim monetary compensation regardless of the date of removal. The principalbasis for the Inquiry’s recommendations on reparations is that forcible removal was a gross violation of human rights norms legally binding on Australia since late 1946. However, this is not the only basis for compensation. Many of the harms that can be establishedwere the result of actions contrary to common law well before 1946.

In addition, the Inquiry’s recommendations do not rest on legal entitlements alone. A crucial justification for reparation, including monetary compensation, is a moral one.

It should be appreciated that the applicable human rights instruments did not invent rights but rather recognised and formally declared the existence of such rights as inherent in all human beings and as already existing. Further, invidious and unjust distinctions ought to be avoided. Thus it would be unfair to deny a remedy to a victim of forcible removal in 1945 while extending a remedy to a person forcibly removed in 1947 for example. Both were subject to the same legislation and procedures and would have endured much the same suffering.

A statutory regime of monetary compensation administered under administrative rather than judicial processes should not displace the entitlement of any person to pursue a civil claim through the courts as an alternative. Some people may wish to pursue civil claims to maximise the damages payable to them. Civil claims Recommendation 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.

Those who teach the Aborigines very soon discover that they are no whit behind any other race in mental capacity, and that they can master the lessons that white children learn quite as quickly and completely as they can.

Rod Schenk, UAM missionary in WA in 1935, quoted by Harris 1990 on page 559.

What past? There ain’t none. There is more or less the past that they wanted me to have, not what I wanted, what I’d like to have.

Confidential evidence 146, Victoria: one of four siblings placed in a group home.

Part 5 Services for Those Affected

Empty Cradles

Nunga baby taken away ‘Where’s my mama’ hear him say ‘You takin’ me to Goonyaland?’ Carried and fed by white man’s hand Growing up different Never knowing Aunts and uncles, cousins growing

Mama cries – Government pays Children lost to city ways

But they’ll return when they grow old and tell their children of lies been told So it won’t happen again you see The cradles outback that were left empty.

Mandy Hunter-Hebberman 1996

15Evaluating Government Responses

… thereneedsto be a focused response to the needsof families and communities affected bypast policiesbeyond those provided to individuals who access theirown records (Victorian Government interim submission page4).

Governments have been slow to respond to the effects of forcible removal on Indigenous people. The first responses were made by Indigenous individuals themselves who made efforts to locate and reunite their families. These efforts began for some from the very moment of separation.

During the 1980s Indigenous organisations were formed to assist in tracing family members and to provide counselling and support. In 1980 Coral Edwards and Peter Read established Link-Up (NSW). Similar services now exist in other States and in the Northern Territory and have attracted government funding.

Indigenous family reunion workers brought to light the need for forcibly removed children and their families to have ready access to the records kept by government and non-government agencies involved in their removal or subsequent placement. Other records, for example genealogies collated by anthropologists and family history cards compiled by missionaries or government agents, are also needed to assist in identifying family and community ties. Most governments but few churches have recognised Indigenous people’s need for information from their records to allow tracing of family and proof of identity.

Reunion can be a part of healing for the individuals, families and communities affected by forcible removal. However the damage to well-being and emotional health has typically and quite predictably been severe. Yet the need for healing strategies focused specifically on those affected by forcible removal has only very recently been acknowledged by governments and funding is still scarce. Fortunately again some Indigenous people and services have recognised this need and begun to address it.

While governments began responding to some of the effects of forcible removal during the 1980s, it was the 1991 Royal Commission into Aboriginal Deaths in Custody which articulated an obligation on all governments to address these effects comprehensively. The Royal Commission found that 43 of the 99 people whose deaths in custody were investigated had been separated from their families in childhood. All governments support the relevant recommendations of the Royal Commission and have committed themselves to implementation.

Evaluation The Inquiry’s second term of reference requires an examination of existing services and procedures available to those affected by the forcible removals. We have taken this to mean those services and procedures specifically for those affected and specifically addressing the effects. A literal interpretation of term of reference (b) would require the

Inquiry to examine all services applicable to Indigenous people, because all are ‘available’ to those affected.

The examination is further confined to services and procedures provided by governments or by churches who were involved in caring for forcibly removed children as responses to the history and its effects. Many services are provided by Indigenous communities. When these are funded by government it is appropriate that the funding mechanism and quantum be evaluated by the Inquiry. However, community-based services are otherwise for Indigenous people themselves to evaluate and reform if that is considered necessary.

Term of reference (b) requires the Inquiry to evaluate the effectiveness and the adequacy of the relevant services and procedures, of ‘responses’ to the effects of forcible removal. To make a useful and thorough evaluation which can assist in the development of improved responses, the Inquiry has considered each response within two distinct but overlapping frameworks.

With respect to government responses we consider first the framework established by governments themselves based on the recommendations of the Royal Commission into Aboriginal Deaths in Custody. Second we propose a framework that satisfies Australia’s human rights obligations and takes account of the levels of need identified by this Inquiry.

In this Part we outline and evaluate the three principal government responses to the continuing effects of separation: 1.provision of access to personal and family records, 2.provision of funding to Indigenous services assisting family reunification, and 3.provision of services to address the individual and family well-being effects of forcible removal.

We briefly describe the response of the churches in the final chapter of this Part.

Our first evaluation of each government response takes as its starting point the stated or implicit objectives of that particular response. We ask, ‘What does the response aim to achieve?’. Then, ‘Have these objectives been achieved?’. Achievements are compared with aspirations. We conclude that achievements do not match aspirations. Moreover, the aspirations themselves are often minimalist. The major reasons for this are a limited understanding of the Royal Commission recommendations, failure to understand and incorporate human rights goals and ignorance about the size of the problem and the extent and seriousness of the need for services. If government responses to the effects of forcible removal are to be adequate in the future, they must be established within a framework of Indigenous human rights and with a commitment to healing the effects of forcible removal for which governments bear responsibility.

The Inquiry’s evaluation criteria Term of reference (d) requires us to take into account the principle of self-determination in formulating our recommendations with respect to laws, policies and practices relating to child placement and care. Adoption of this principle is fundamental to progress in Indigenous affairs generally. It must also underpin changes to laws, policies and practices relating to services and procedures for those affected by forcible removal.

Term of reference (b) requires us to consider the adequacy of existing services and procedures. For a service to be adequate it must at least operate in a fair and timely way without imposing additional harm on clients or potential clients. This requires that services take account of the variety of life circumstances and the extent and duration of the need for assistance in the Indigenous community. One measure of inadequacy is the unmet need for the service.

In addition to evaluation criteria dictated by the terms of reference, we have also taken into account Australia’s human rights obligations: notably, the obligations of governments to prevent racial discriminationand to respect and promote the right of members of ethnic, religious and linguisticminorities to enjoy their cultures, religions and languages.

Self-determination Self-determination is a collective right of peoples to determine and control their own destiny. It is a right to exercise autonomy in their own affairs and a right to make their own decisions. As the Aboriginal and Torres Strait Islander Social Justice Commissioner has noted, ‘every issue concerning the historical and present status, entitlements, treatment and aspirations of Aboriginal and Torres Strait Islander peoples is implicated in the concept of self determination’ (Dodson 1993 page 41).