The Government has to explain why it happened. What was the intention? I have to know why I was taken. I have to know why I was given the life I was given and why I'm scarred today. Why was my Mum meant to suffer? Why was I made to suffer with no Aboriginality and no identity, no culture? Why did they think that the life they gave me was better than the one my Mum would give me?
And an apology is important because I've never been apologised to. My mother's never been apologised to, not once, and I would like to be apologised to.
Thirdly, I've been a victim and I've suffered and I'll suffer until the day I die for what I've never had and what I can never have. I just have to get on with my life but compensation would help. It doesn't take the pain away. It doesn't take the suffering away. It doesn't take the memories away. It doesn't bring my mother back. But it has to be recognised.
And I shouldn't forget counselling. I've had to counsel myself all my life from a very young age. And in the homes I never showed my tears ... I've been told that I need to talk about my childhood. I need to be counselled for me to get back on with my life.
Confidential evidence 139, Victoria: woman removed at 12 months in 1967.
Denial of common law rights
The Inquiry has found that the removal of 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 Indigenous cultures, 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-appointed guardians. 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 Inquiry is aware that no measures can fully compensate for the effects of these violations.
The loss, grief and trauma experienced by Aboriginal people as a result of the separation laws, policies and practices can never be adequately compensated. The loss of the love and affection of children and parents can not be compensated. The psychological, physical and sexual abuse of children, isolated among adults who viewed them as members of a "despised race" cannot be adequately compensated. The trauma resulting from these events have produced life-long effects, not only for the survivors, but for their children and their children's children. The loss of Aboriginal identity, culture, heritage, community and spiritual connection to our country cannot be adequately compensated. Nor can the loss of the parents and other leaders who provide the vision, the strength and the responsibility to carry our communities forward into the future. It is also impossible to adequately compensate us for the internalised racisms expressed as divisiveness within communities caused by separations, such that we judge ourselves and each other as being more or less `Aboriginal' (Link-Up (NSW) Aboriginal Corporation submission 186 page 2).
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 to heal from the harms of separation, it is our right to receive full and just reparation and compensation for the systematic gross violations of our fundamental human rights (page 2).
Dr Jane McKendrick, a psychiatrist with the Victorian Aboriginal Mental Health Network, emphasised the healing power of recognition and compensation.
The people who come to see me with depression and other psychological problems and start talking about the things that have happened to them in their childhood - it is as if they are coping with that on their own and no-one else recognises it. Often they are things that they feel they cannot tell anyone else, even the people closest to them.
They also feel that this has been done to them and no-one cares because there has been no official recognition. And people say, well, nothing is going to compensate me for what I have lost and it can never be completely replaced. But I think some acknowledgement and some form of compensation would assist people to feel that their pain and their suffering has been recognised and it has been recognised that something has been done to them. Because families and individuals who have been removed often feel guilty themselves about the removal ...
I think it is a central part of the healing process because you have to have the recognition and to have proper recognition you have to have some form of compensation, because a wrong has been done to these people. And for it to be a proper recognition, there has to be compensation. Unless there is proper recognition of what has been done, people really cannot begin to heal properly (evidence 310).
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 corresponding rights on the part of individual persons and groups of persons who are under the jurisdiction of the offending State and who are victims of those breaches. The principal right these victims are entitled to under international law is the right to effective remedies and just 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 the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or 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 units of the world community regardless of any formal act of assent to those norms. An integral part of a State's obligations in regards to international human rights law is the duty to provide an adequate remedy where substantive norms are violated (Anaya 1994 page 360; see also Lutz 1989 page 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 satisfaction has been made (Lutz 1989 page 206).
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 requested Professor 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. Every State shall ensure that adequate legal or other appropriate remedies are available to any person claiming that his or her rights have been violated ...
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 reparation paid in cash or in kind. 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 submission 127 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 accordance with international law, States have the duty to adopt special measures, where necessary, to permit expeditious and fully effective reparations. Reparations shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (van Boven 1996).
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 interviewed by the ALSWA are consistent with van Boven's proposals (submission 127 page 105).
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 (submission 754 page 50).
The Broome and Derby Working Groups submitted,
We believe that those who have suffered are entitled to monetary compensation and to some form of restitution for what they have lost and that the Government and other institutions responsible for formulating and implementing these policies and practices should assist in the rehabilitation of individuals and families who have suffered the ongoing effects of these policies and practices (submission 518 page 2).
In its 1994 report 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. In Part 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. measures of restitution, 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 population with 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 and where appropriate collectively, by the direct victims, the immediate family, dependants or other persons or groups of persons connected with the direct victims.
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.
Compensation needs to be seen not only in direct relation to the children who were removed, but also the parents, families and communities from which the children were 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 Aboriginal Legal Service of WA submission 127 recommendation 11).
This process must include a recognition that the removals affected more than the individuals actually taken, but also the communities they were taken from and the descendants of those taken, all of whom continue to suffer the anguish the removals caused (Stolen Generations National Workshop 1996 submission 754 page 50).
At the same time, submissions emphasised that 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; but not comparable to the grief suffered by the individuals who were the subject of the policy and who were deprived of being raised in normal circumstances with their family and community. Nor does compensating communities recognise that individuals' legal rights have been affected by the policy, and that individuals suffered damage (Tasmanian Aboriginal Centre submission 325 pages 2-3; supported by NSW Aboriginal Land Council submission 643 page 2 and confidential evidence 163, Victoria).
Claimants
| Recommendation 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. |