People go on about compensation and all this. And they don't seem to get the real reason as to why people want some sort of compensation or recognition. I need to be given a start. I just need something to make the road that I'm on a little bit easier.
Confidential evidence 441, New South Wales.
On the subject of monetary compensation, van Boven proposed the following principle.
Compensation shall be provided for any economically assessable damage resulting from violations of human rights and humanitarian law, such as: (a) Physical or mental harm, including pain, suffering and emotional distress; (b) Lost opportunities, including education; (c) Material damages and loss of earnings, including loss of earning potential; (d) Harm to reputation or dignity; (e) Costs required for legal or expert assistance.
There was considerable support among submissions to the Inquiry for the provision of monetary compensation to the victims of forcible removal.
The Commissioners should encourage governments to negotiate financial settlements with groups and individuals on the basis that either financial compensation or reparations to be made available to them as atonement for past and continuing grievances (Aboriginal Legal Rights Movement (SA) submission 484 page 52; see also Aboriginal Legal Service of WA submission 127 recommendation 11, Broome and Derby Working Groups submission 518 page 1, Stolen Generations National Workshop submission 754 page 50).
All the harms and losses suffered by people affected by forcible removals are recognised under the common law or under contemporary statutory regimes as losses for which compensation can be awarded. People who have suffered these harms and losses should not be denied a remedy just because the perpetrators were mainly governments or because the victimisation was on such a vast scale.
It is NSWALC's view that individuals who have had wrongs committed against them are entitled to full and proper compensation. Compensation to individuals should at the very least be assessed on the same basis as any other tortious claim. The obligation on governments to pay monetary compensation is not to be shirked because it may be considered politically undesirable or because the requirement to pay compensation may be onerous (NSW Aboriginal Land Council submission 643 page 1).
The reparations scheme should recognise the full range of harms and losses caused by the removal policies. The Inquiry's recommendations under term of reference (b) in particular address the losses incurred by Indigenous communities. Individual victims should also be entitled to measures of restitution and rehabilitation as proposed under term of reference (b). Monetary compensation should be payable for harms and losses for which it is not possible to make restitution in kind. Any individual affected by the removal policies should be entitled to make a claim for compensation, including parents, siblings and other family members in appropriate cases. The Inquiry was urged to recognise the full range of damages suffered by the victims of the removal policies.
We recommend that compensation to be paid for the following ... : pain and suffering of the victims and their families loss of access to their families and their love and support loss of access to and knowledge of their traditional lands loss of their Native Title rights loss of the right to grow up knowing their traditional culture and language loss of the right to have private property loss of inheritance rights loss of freedom loss of the right to determine their own lives and those of their children suffering hardship and abuse whilst detained in institutions suffering racism and discrimination whilst detained in these institutions (Broome and Derby Working Groups submission 518 recommendation 3.1.1).
Supreme Courts in both South Australia and the Northern Territory have awarded substantial damages to Aboriginal accident victims for loss of cultural fulfilment. In Napaluma v Baker in 1982 $10,000 was awarded for loss of cultural fulfilment to an initiated man of 18 whose head injury meant he could take no further part in ceremonies. In Dixon v Davies in the same year $20,000 was awarded to a boy of 10 who would not be able to be initiated and would therefore lose status and be unable to participate in ceremonies.
With respect to compensation for loss of native title rights, the Cape York Land Council submitted that,
... at least two heads of damage suggest themselves: specific damages for the loss of actual legal rights, which in this case would be the right to enjoy native title as part of a group, and general damages for the pain and suffering arising from the loss of these particular legal rights (submission 576).
Where native title rights can be restored, that is where the traditional owners accept the individual as a full participant in enjoyment of the title, no damages should be available.
The heads of damage identified in Recommendation 14 are in line with those proposed by van Boven and adopted in successful human rights litigation in other jurisdictions.
Heads of damage
| Recommendation 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. |
Indigenous people are now taking civil damages actions arising from forcible removal. One was commenced in New South Wales by Ms Joy Williams, a woman taken from her mother at birth in 1942 and placed in Bomaderry Children's Home. She was moved at four to a non-Aboriginal children's home because she was `fair-skinned'. Here visits from her mother ceased because the mother was not told of her whereabouts. The child was told she was an orphan. She complains that she was ill-treated in this home and repeatedly ran away. She was brought up to believe she was `white' and to have a low opinion of Aborigines. But in adolescence she was told she had `mud in your veins' causing severe distress. She opened her veins to examine her blood for mud (Williams 1994 page 501). In adulthood she suffers severe psychiatric and other ill-health.
Ms Williams claims the Aborigines Welfare Board was her statutory guardian and breached its fiduciary duty to her by denying her her cultural heritage, by failing to protect her from harm and by failing to prepare her for healthy adult life.
The injuries she now experiences are said to flow from her wrongful removal first from her mother and then from Bomaderry to a non-Aboriginal home. Having overcome a potential problem with the statute of limitations, Ms Williams' case awaits trial on the issues.
Another action has been commenced against the Commonwealth by two groups of Northern Territory plaintiffs, one group of six and another of three. The first group of six includes the mother of a baby girl removed from her in 1946. The other plaintiffs were forcibly removed as children in the 1920s, 1930s and 1940s. Their complaint is that the Aboriginals Ordinance 1918-1953 which the Commonwealth enacted for the Northern Territory and under which they were removed was invalid because it was contrary to implied constitutional rights, notably an implied right to personal liberty. The complainants seek a declaration to that effect and damages for breach of their constitutional rights and for breach of fiduciary duty. The case was argued in May 1996 before the High Court of Australia. Judgment is awaited.
Difficulties of proof and the expiry of statutory periods of limitation may deny a remedy to many victims of forcible removal. However, the harms they suffered, detailed in Parts 2 and 3 of this report, are recognised heads of damages that can be compensated under Australian law. Relying on the civil courts for remedies, however, is likely to lead to great delay, inequity and inconsistency of outcome. The civil process is daunting and expensive, thus deterring many of those affected. It will also involved great expense for governments to defend these claims.
In our experience the separation issue is a very private and personal one for the people concerned. The stress and trauma of a court case and the resulting loss of privacy is likely to deter many Aboriginal people from bringing a legal action against the Government (Tasmanian Aboriginal Centre first submission 325 page 11).
In its submission to the Inquiry the Commonwealth Government proposed that ex-gratia payments might be made to those affected by the forcible removal policies provided that certain criteria and principles could be satisfied (submission page 27).
By definition, ex-gratia compensation is at the discretion of the Government (subject to parliamentary authorisation of appropriations) and it is neither possible nor desirable to develop binding rules (submission page 27).
The Commonwealth submitted that the application of three principles in particular to the facts revealed by the Inquiry would preclude the ex-gratia payment of compensation in this case.
* Difficulties in identifying the persons eligible for compensation.
* Difficulties in estimating the amount of loss in monetary terms.
* Negative consequences for the wider community.
The Inquiry considers that the Commonwealth has overstated the difficulties in identifying with reasonable certainty people who have suffered loss. The Inquiry has found that in different ways individuals, families and communities have suffered as a result of forced removals. Different forms of reparation and different procedures for determining compensation can be appropriate to reflect particular experiences of, and needs arising from, separation of families. This is consistent with the approach of the United Nations Special Rapporteur van Boven and the Canadian Royal Commission on Aboriginal Peoples in its report on the High Arctic Relocation.
The Inquiry's approach is based on a human rights framework. It recognises that in most cases the right to claim reparation in the form of monetary compensation will be limited to individuals and families. Communities should receive reparation for the harm they have suffered in the form of restitution, rehabilitation, satisfaction and guarantees against repetition. The class of persons eligible for compensation therefore can be specified with reasonable certainty.
The Commonwealth Government also submitted that gaps and deficiencies in records would render the identification of persons within the class problematic. In the Inquiry's view, it would be unjust to exclude from compensation any individual who has been a victim of forcible removal merely because of the unsatisfactory state of his or her records which have been at all times the preserve of government and delegated carers. It would also be unjust to refuse compensation to those whose records have survived and who can establish a claim. Despite gaps and deficiencies, extensive records relating to forcible removals have survived. Where an individual can establish that he or she suffered harm as a result of forcible removal, governments have an obligation to provide compensation.
The second Commonwealth difficulty concerned estimating the monetary value of loss. The Commonwealth submitted that `[t]here is no comparable area of awards of compensation and no basis for arguing a quantum of damages from first principles'. Most elements of the harm experienced by the victims of forcible removal are recognised heads of compensation in Australian civil damages law. The same principles should apply to quantification as would apply in the civil courts. It is difficult to quantify damages for loss of a limb in a motor vehicle accident or for the psychological injury incurred. Yet the difficulty does not prevent civil courts assessing tortious damages in these kinds of cases every day.
Even where Australian law does not presently recognise a right to reparations, as for gross violations of human rights, there are numerous precedents which should guide Australian developments. For example, under the Alien Torts Claims Act United States courts frequently award damages to victims of gross violations of human rights, as well as to their estates and to close family members.
The Inter-American Court of Human Rights on numerous occasions has quantified compensatory damages to be awarded to the families of victims of gross violations of human rights.
In a situation with parallels to that dealt with by this Inquiry, Swiss Romany victims of forcible child removal have been awarded a lump sum amount by way of compensation. From 1926 until 1972 the organisation `Children of the Road', with Swiss Government approval, aimed to protect the children of travelling people, particularly the Roma people (sometimes disparagingly called `Gypsies'). This `protection' involved the enforced settlement of many children and the separation of 619 from their families. Upon the dissolution of Children of the Road, its parent organisation officially apologised to the Romany community and `has set about compensating the victims, a total amount of SF 11 million having been divided among almost 1,900 victims' (Switzerland's periodic report to the Human Rights Committee under the International Covenant on Civil and Political Rights, UN Document CCPR/C/81/Add.8 page 115).
As to the Commonwealth Government's third point of particular difficulty, the Inquiry does not agree that payment of compensation would have negative consequences for the wider community. The Commonwealth argues that the forcible removal laws are only one example of 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 recognition that 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 block out a chapter of its history; it cannot deny the facts of its past, however differently these may be interpreted. Inevitably, the void would be filled with lies or with conflicting, confusing versions of the past. A nation's unity depends on a shared identity, which in turn depends largely on a shared memory. The truth also brings a measure of healthy social catharsis and helps to prevent the past from reoccurring (Zalaquett 1992 page 1433).
The Inquiry received many submissions addressing the means by which compensation should be determined and distributed. A number of submissions call 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 callous policy which relies on court processes to deal with the effect of a government policy of displacement of Aboriginal children. To avoid simplifying the remedy process for Aborigines affected by the displacement policy, exposing them instead to the adversarial civil system with its onus of proof, causation and technical rules of evidence, is to exacerbate the grief. If governments of the day caused the problem, it is the responsibility of governments of today to fix the problem. The purpose of action for displaced children and families should be to alleviate the pain ... The tribunals should be run on a fairly informal basis, without having to adhere to the rule of evidence or court procedure and protocol (Tasmanian Aboriginal Centre submission 345 pages 12 and 14).
That the Commonwealth and State governments establish a Task Force which has a majority of Aboriginal representation to develop a non-technical, expeditious and effective mechanism to distribute monetary compensation to all individuals, families and communities affected by the removal of Aboriginal children from their families under the assimilation policies (Aboriginal Legal Service of WA submission 127 recommendation 12).
In relation to the compensation issue in general, we would urge the Commission not to recommend a legalistic approach in determining the entitlement to compensation of Aboriginal persons affected by forced family separations ... The few cases initiated to date by Aboriginal plaintiffs seeking redress for their separation from their families have become bogged down in procedural matters ... Court actions are always expensive ... [There are] difficulties in quantifying `damage' for compensation issues. Clearly any attempt to quantify the pain and suffering and psychological problems brought about by government assimilation and integration policies is fraught with difficulty (Tasmanian Aboriginal Centre 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 should be paid in non-taxable lump-sums to individuals. Such payments to be assessed against a scale defining categories of persons affected by these policies and practices of removal. [C]ompensation should be paid from a regional trust fund with a Kimberley Aboriginal Board of management, funded by the State and Federal Governments, ex-missions and commercial and mining interests in the Kimberley. A levy could be paid to the trust fund by mining and business interests operating in the region. [[I]ndividuals could apply to the trust fund which would assess each application (Broome and Derby Working Groups submission 518 recommendation 3.1.2).
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 removal by accommodating the children should be encouraged to contribute to this fund should they so choose.
National Compensation Fund
| Recommendation 15: 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 and unprincipled for reparation payments to be met through offsets to allocations for indigenous programs. Compensation should be met by payments specifically distinguished from these appropriations (ATSIC submission 684 page 34).
NSWALC believes great care should be taken in labelling certain measures as a form of compensation ... [T]o suggest that improved delivery of service can be a form of `compensation' for wrongs committed against Indigenous peoples is inappropriate. Services such as health, education and housing are basic human rights which Aboriginal people are entitled to enjoy to the same extent as other citizens ... Aboriginal people should not have to bargain for essential services by foregoing compensation, nor should the delivery 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 (NSW Aboriginal Land Council submission 643 page 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
| Recommendation 16a: That the Council of Australian Governments
establish a Board to administer the National Compensation Fund.
Recommendation 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. |
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.
Whatever compensation mechanism is established, 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 likely to focus immediately on seeking compensation, especially in the years just following their persecution. Their primary concern during that period will be to rebuild their lives. Once physical health needs are addressed, it may take years for a former victim to recognize that he or she has unresolved mental health problems or is unable to work at his or her previous occupational level (1989 pages 207-8).
In this connection, Professor van Boven has commented,
The principle should prevail that claims relating to reparations for gross violations of human rights are linked to the most serious crimes to which, according to the authoritative legal opinion, statutory limitations shall not apply. Moreover, it is well-established that for many victims of gross violations of human rights, the passage of 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 support over a long period of 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 shall apply to the following crimes ... [c]rimes against humanity whether committed in time of war or 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 the domestic law of the country in which they were committed (article I(b)).
Procedural principles
| Recommendation 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). |
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).
Compensation should be paid in non-taxable lump sums to individuals (Broome and Derby Working Groups submission 518 recommendation 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 assessing what 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 processes should be straight-forward and non-technical and should ensure consistent results for claimants. The approach adopted finds support in the submission made to the Inquiry by the Tasmanian Aboriginal Centre.
We contend that such tribunals be empowered to make monetary awards to Aboriginal people affected by such separations. Empowering legislation could prescribe a minimum amount of damages to be awarded to each person on proof that they were displaced. Claimants wanting larger awards could be required to provide further particulars of their separation and the debilitating effect of such separation (submission 325 page 14).
The Chilean Commission for Truth and Reconciliation also recommended payment of equal compensation to all without regard to their particular social, economic or cultural circumstances, although in Chile a pension scheme was recommended in preference to payment of a single lump sum (Danieli 1992 page 206).
Minimum lump sum
| Recommendation 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
| Recommendation 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. |
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 principal basis 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 established were 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. |
| In the hard copy version of this report there is a reproduction
of the following item:
"Maids of the Mission", Forrest River, WA, undated. Courtesy University of WA Berndt Museum of Anthropolgy.
|
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.