[1] E Barkan, The Guilt of Nations (2000) IX.
[2] The term ‘stolen generation’ or ‘stolen generations’ has become common usage when describing the removal or separation of Aboriginal children from their families. This article avoids its usage, as too much energy is wasted debating the veracity and accuracy of the term and its connotations. More importantly, the term creates problems about which Aborigines can be members of the ‘stolen generation’ or ‘stolen generations’. Here I use either ‘the removed’ or ‘the separated’
[3] In Tasmania, Aboriginal children were removed under general child welfare legislation.
[4] The legislation in the various jurisdictions that make up the Commonwealth of Australia are summarized in Human Rights and Equal Opportunity Commission, Bringing them home (1997) 599-648.
[5] Commonwealth of Australia Aboriginal Welfare-Initial Conference of Commonwealth and State Aboriginal Authorities (1937) 3.
[6] FEA Bateman, Report on Survey of Native Affairs ( 1948) 10.
[7] Refer to Aboriginal Legal Service of Western Australia (ALSWA), Telling Our Story (1995).
[8] Ibid, 40.
[9] Ibid, 4.
[10] ALSWA, After the Removal (1996) 44, 49-51.
[11] Speaking at the State Mental Health Conference, Perth, 20 November, 1995.
[12] Above n 4, 253.
[13] Ibid, 255- 257,259-260, 247-313.
[14] See 122 Parl. Debs (3rd Series), cols. 1328-1331 (1852)
[15] Australian Senate Community Affairs References Committee, Lost Innocents: Righting the Record (2001), 57..
[16] Submission of the Department for Family and Children’s Services (WA), to the Senate Community Affairs References Committee for their report entitled ‘Lost Innocents: Righting the Record’.
[17] In particular refer to P Bean and J Melville, Lost Children of the Empire (1989) 110-50; and A Gill, Orphans of the Empire: the shocking story of child migration to Australia (1998)
[18] Western Australian Legislative Assembly, Select Committee into Child Migration Interim Report (1996).
[19] L Forde, J Thomason and H Heilpern, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (1999) and L Forde, J Thomason and H Heilpern, Closed Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (2000).
[20] UK House of Commons Health Committee, The Welfare of Former British Child Migrants (HC Paper no 755 1997-98), paras 13 and 73.
[21] Above n 15, 71-105.
[22] Ibid, 105.
[23] Above n 4, 247-313. The National Inquiry argues that these reparation elements flow from the finding of a violation of international human rights law.
[24] Ibid, recommendation 16, 310.
[25] Ibid, 305.
[26] Senator Murray is himself a British child migrant to Rhodesia, as it was then known.
[27] Above n 15.
[28] Above n 18.
[29] Above n 20.
[30] Above n 19.
[31] These cases are refer to at above n 18, 219-25,312- 13.
[32] An Australian lawyer, Adrian Joel, is considering the option of a class action.
[33] Above n 20, para 94.
[34] Above n 15, 115.
[35] Ibid, 121.
[36] Above n 15, xv-xix, 122-243.
[37] South Australia: 28 May 1997; Western Australia: 28 May 1997; Queensland: 3 June 1997; ACT: 17 June 1997; New South Wales: 18 June 1997; Tasmania: 13 August 1997; and Victoria: 17 September 1997. The Northern Territory Government has not made a statement of apology. Most of the major churches have also issue statements of apology. Also a National Sorry Day organised by members of the community was held on 26 May 1998, and in some form or manner, it has been acknowledged every year since.
[38] Transcript of the Prime Minister, The Hon. John Howard MP Motion of Reconciliation 26 August, 1999 [Internet] URL <http://www.pm.gov.au/news/speeches/1999/reconciliation2608.htm> 1.
[39] Australia, Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron. ‘Bringing Them Home – Commonwealth Initiatives’ Media Release, Canberra, 16 December 1997.
[40] See further I Scanlan, ‘An Analysis of the Western Australian Government’s Response to the Recommendations of the Bringing Them Home Report’ (Unpublished, School of Politics and International Studies Parliamentary Internship Programme Murdoch University 2000); The Parliament of the Commonwealth of Australia, Senate Legal and Constitutional References Committee, Healing: A Legacy of Generations: The Report of the Inquiry into the Federal Government’s Implementation of Recommendations Made by the Human Rights and Equal Opportunity Commission in Bringing Them Home (2000); A Cornwall, Restoring Identity (2002).
[41] Senator Andrew Murray, Media Release – ‘Righting the Record: Democrats welcome Government recognition of child migrant neglect and abuse’ (14 May 2002). In relation to Keaney refer to above n 15, 116 where he is introduced as follows: ‘Brother Francis Paul Keaney was born in Ireland in 1888, emigrated to Australia in 1912 and joined the Christian Brothers in 1916. By 1919 he was a junior staff member at Clontarf. He served a number of terms as principal including at Clontarf 1936-
[41] and at Bindoon 1942-44 and 1948-54. Brother Keaney is portrayed as possessing a strong, domineering personality, yet capable of being exceptionally charming to outsiders.’
[42] Justice Roy, “Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?” (1961) 55 American Journal of International Law 863, 863.
[43] DF Orentlicher, ‘Addressing Gross Human Rights Abuses: Punishment and Victim Compensation’ in L Henkin and JL Hargrove (eds), Human Rights: An Agenda for the Next Century, (1994), 425-426.
[44] G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) U.N.T.S. 171, entered into force Mar. 23, 1976. Ratified by Australia on 13 August 1980 and entered into force in Australia on 30 November 1980.
[45] 660 U.N.T.S. 195, entered into force Jan. 4, 1969. Ratified by Australia on 30 September 1975 and entered into force in Australia on 30 October 1975.
[46] G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989); ratified by Australia on 17 December 1990 and entered into force in Australia on 16 January 1991.
[47] G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/15 (1984); adopted by the General Assembly on 10 December 1984.
[48] Also refer to Articles 8-11, 19, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power G.A. 40/34, annex, 40 U.N. GAOR Supp. (No. 53) at 214, U.N. Doc. A/40/53 (1985); Article 50, European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, Rome, 4.XI.1950 in the context of De Wilde, Ooms & Versyp v Belgium, European Court of Human Rights, Judgment 10 March 1972 (Article 50), Series A, No. 14.
[49] For example, refer to (1983) UNHRC Communication No. 16/1977; (1983) UNHRC Communication No. 110/1981; Velásquez Rodriguez Case (Venezuela v Peru), Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No. 7 (1990).
[50] Velásquez Rodriguez Case (Venezuela v Peru), Ibid.
[51] Ibid, para 25.
[52] Ibid, para 166.
[53] Ibid, para 26.
[54] Aloeboetoe et al. Case, Reparations (Art. 63(1) American Convention on Human Rights) Judgment of September 10, 1993, Inter-Am.Ct.H.R. (Ser. C) No. 15 (1994).
[55] Id, para 76.
[56] Id, para 96. As part of the reparation package the court ordered that the Suriname government create two non-taxable trust funds at the Suriname Trust Bank in Paramaribo - one for the children and the other for the adults, established a fiduciary duty to minister the funds as trustee, a one time $4,000.00 to cover start-up costs of the fiduciary committee and the court stated that they would supervise compliance with their decision. For further comment on the Aloeboetoe case refer to DJ Padilia, ‘Reparation in Aloeboetoe v Suriname’ (1995) 17 Human Rights Quarterly 541.
[57] For example, refer to United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988) (1990).
[58] Maharaj v Attorney-General of Trinidad Tobago (No. 2) [1979] AC 385; Celsa Hilao et al v Estate of Ferdinand E Marcos United States District Court of Hawaii, MDL No. 840, CA No. 86-0390 – 18 January, 1995.
[59] Refer to M Gannage, An International Perspective: A Review and Analysis of Approaches to Addressing Past Institutional or Systematic Abuse in Selected Countries (1998); E Barkan, above n 1.
[60] E/CN.4/Sub.2/1989/13.
[61] T van Boven, (Special Rapporteur of the United Nations), Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final Report, UN Doc. E/CN. 4/Sub.2/1993/8, 2 July 1993, 7 ( ‘van Boven Report’).
[62] T van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117, U.N. Doc. E/CN.4/Sub.2/1996/17, 24 May 1996 (‘revised van Boven Principles’).
[63] Above n 60, 1.
[64] Ibid.
[65] Ibid, 4.
[66] Ibid.
[67] Ibid.
[68] Ibid, 5.
[69] However the Convention on the Prevention and Punishment of the Crime of Genocide came into existence in 1948 – however I do not indeed debating the issue of genocide here.
[70] D Grace, ‘The question of an apology: reconciliation and civility’ (2001) 7 Australian Journal of Human Rights 77, 78.
[71] Kruger and Anor v Commonwealth (1997) 190 CLR 1; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (SCNSW 25 August 1993); Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1994) 35 NSWLR 497; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (1999) 25 Fam L R 86; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor [2000] Aust Torts Reports 81-578, 64,136; Williams v Minister, Aboriginal Land Rights Act 1983 and Anor (HCA s246/2000 22 June 2001); Cubillo and Anor v Commonwealth (1999) 89 FCR 528; Cubillo and Anor v Commonwealth (2000) 103 FCR 1; Cubillo and Anor v Commonwealth (2001) 112 FCR 455 ; Cubillo and Anor v Commonwealth (HCA D10 and 11/2001 3 May 2002). There have been two other ‘least significant’ Aboriginal child separation cases – one that was poorly pleaded and rejected by a single justice of the High Court of Australia (Thorpe v The Commonwealth [No 3] (1997)
[71] ALJR 767),and the other that has not yet reached the trial stage (Johnson v Department of Community Services and Anor [2000] Aust Torts Reports 81-540, 63,472).
[72] J Clarke, ‘Cubillo v Commonwealth’ (2001) 25 Melbourne U L Rev 218; R van Krieken, ‘Is Assimilation Justiciable? Lorna Cubillo & Peter Gunner v Commonwealth’ (2001) 23 Sydney L Rev 239.
[73] Although the issue of apology to the Aboriginal ‘separated class’ has been a hotly debated political issue. Refer to S Pritchard, ‘The Stolen Generations and Reparations’ (1997) 4 UNSW Law Journal Forum 28, 28-29; Sydney Morning Herald, 9 January 1998; Transcript of the Prime Minister The Hon. John Howard MP Motion of Reconciliation 26 August, 1999 [Internet] URL <http://www.pm.gov.au/news/speeches/1999/reconciliation2608.htm> 1.
[74] Above n 61 and 67.
[75] Above n 73, 261.
[76]
Above n 15, 126
[77] Would not include sending or receiving agencies.