[1] This coincided with the thirtieth anniversary of the 1967 referendum, which granted the Commonwealth Parliament power to legislate for Aborigines and count the Aborigines in the census.
[2] Human Rights and Equal Opportunity Commission (HREOC), Bringing them home (AGPS Canberra 1997)
[3] For example, refer to R Brunton, ‘Betraying the Victims: The “Stolen Generations” Report’ (1998) 10 IPA Backgrounder 1; H Wooten, ‘Ron Bruton & Bringing then Home’ (1998) 4 Indigenous L Bulletin 4; P Howson, ‘Rescued from the Rabbit Burrow’ (1999) June Quadrant 10; R Marsh, ‘ “Lost”, “Stolen” or “Rescued”?’ (1999) Quadrant 15; B Lane, ‘Rights body a “bad influence’ on policy’ The Australian (11 September 2000) 26; S Powell, ‘Sloppy study makes falsehoods fact’ The Australian (11 September 2000) 26; R Manne, ‘In Denial: The Stolen Generations and the Right’ (2001) 1 Australian Quarterly Essay 3; P Carlyon, ‘Stolen Children: On the Words that Matter’ The Bulletin (12 June 2001) 26
[4] Above n 2, 277-78.
[5] D Modjeska, ‘A Bitter Wind Beyond the Tree Line’ Sydney Morning Herald (18 September 1997) 19.
[6] The National Inquiry was launched on 10 August 1995, in Adelaide. The National Inquiry ‘terms of reference’ was originally announced on 11 May 1995 by the then Attorney-General of Australia, Hon Michael Lavarch. However, on 2 August 1995, those terms of reference were revoked and replaced with similar but wider terms of reference, including the examination of compensation principles. The final terms of reference of the National Inquiry were: (a) tracing past laws, practices and policies that lead to the removal of Aboriginal and Torres Strait Islander children from their families and the effects of those laws, practices and policies; (b) examining the adequacy of services available to those affected by removal and recommencing appropriate changes; (c) examining the principles that would justify the awarding of compensation to those forcibly removed from family; and (d) examining current laws, practices and policies with respect to child placement and care of Aboriginal and Torres Strait Islander children and recommending appropriate changes while taking into account the principle of self-determination.
[7] See below for meaning of reparations.
[8] R Butler, speaking at the workshop on removal of Indigenous children at the Australian Reconciliation Convention in Melbourne, 26 May 1997, stated that the Secretariat of National Aboriginal and Islander Child Care, along with other organisations and individuals had been lobbying governments to hold an inquiry since the late 1980's.
[9] In the interest of full disclosure, the author informs the reader that for much of the period discussed in this paper, the author was the co-ordinator of the ‘Stolen Generations’ Project at the ALSWA. Further he was the editor and principal author of Telling Our Story and author of After the Removal (see below for full citation of these publications, where the ‘official’ authorship is given to the ALSWA). As such the author does not claim to be unbiased in the views and opinions he expresses in this article.
[10] N D’Souza, ‘The Stolen Generation: From Removal to Reconciliation’ (1998) 21(1) University of New South Wales Law Journal 204, 205.
[11] Ibid.
[12] Ibid.
[13] Williams v Minister Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 (extension of time application). The Williams case has lead to a number of decisions post the release of Bringing them home: Williams v Minister Aboriginal Land Rights Act 1983[1999] NSWLR 843 ; 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)
[14] Kruger and Anor v Commonwealth (1997) 190 CLR 1. The other Northern Territory case has played out after Bringing them home: 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).
[15] He is now Justice Ron Merkel of the Federal Court of Australia.
[16] Unpublished. Refer to an earlier version of the paper, R Merkel, ‘Government Culpability for the Forced Removal of Aboriginal Children From Their Families’ (1990) 2(47) Australian Law Bulletin 4.
[17] Williams was unsuccessful as have been the plaintiffs in Kruger and Bray and Cubillio .
[18] Refer to The Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Aid Service (eds), Proceedings of the first National Workshop (Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Service Alice Springs September 1996) 1.
[19] There have been a number of Sorry Days in subsequent years.
[20] ALSWA, Telling Our Story (ALSWA Perth 1995).
[21] Manguri is the headquarters of an Aboriginal support organisation. The Uniting Church, who ‘inherited’ the complex from the Presbyterian Church when it became part of the Uniting Church, as a gesture of goodwill to Aboriginal people, ‘gave’ the complex to the Aboriginal organisation. Recently it has been announced that it will become a retirement home for former ‘inmates’ of Sister Kate’s.
[22] In contrast to Bringing them home, most of the personal stories published in Telling Our Story were corroborated via the relevant Native Welfare files.
[23] Above n 20, 28.
[24] Ibid, 40.
[25] Ibid, 2.
[26] Ibid, 1-2, quoting a report in The Telegraph 5 May 1937.
[27] Above n 20, 208, excerpt from Neville’s speech at the initial conference of Commonwealth and State Aboriginal Authorities, Parliament House, Canberra, April 1937.
[28] ALSWA, After the Removal (ALSWA Perth 1996).
[29] Ibid, 11.
[30] The remedies explored in After the Removal are manifested in 166 recommendations to the Commonwealth government, State (Western Australia) government, local government, churches or a combination of governments.
[31] Refer to above, fn 6.
[32] Above n 28, 72.
[33] Ibid. Also refer to T van Boven (Special Rapporteur of the United Nations), Study concerning the right to restitution, compensation and rehabilitation of 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.
[34] HREOC (1997) 281.
[35] ALSWA (1996) 38-58.
[36] Preferring to refer to as the ‘ALSWA Submission’. For example refer to above n 2, 182,187, 194.
[37] For example refer to above n 2, 218.
[38] But as ‘ALSWA Submission’ not After the Removal.
[39] Above n 2, 253.
[40] Ibid, 255-256.
[41] Ibid, 256-257.
[42] Ibid, 259 - 260.
[43] Ibid, 277.
[44] Ibid, 277 - 278.
[45] Ibid, 278.
[46] Ibid, 250.
[47] Ibid, 266, 269; and American Law Institute, Restatement of the Law, Third, The Foreign Relations Law of the United States, INTERNATIONAL LAW OF HUMAN RIGHTS, Section 702 (headnote), St. Paul, American Law Institute Publishers, 1997.
[48] Above n 2, 250, 277.
[49] Ibid, 277; the discriminatory operation of the legislation preceded the separate legislation.
[50] Ibid, 270-275, 278. Such violations occurred during the time which Australia was bound under international law by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘the Genocide Convention’) and possibly before under obligations erga omnes; see Hugo Princz v Federal Republic of Germany 26F. 3d 1116, 65, 1 July 1994 (US App.); cf Kruger and Bray cases, above n 14.
[51] Notwithstanding that the legislation authorising the removal was primarily State legislation; see Heirs of the Duc de Guise Case (France-Italy) (1964) 13 Reports of International Arbitral Awards 154, 161; Pellat Case (France-Mexico) (1952) 5 Reports of International Arbitral Awards 534, 536, cited in Encyclopedia of Public International Law, Volume 10 ‘States – Responsibility of States – International Law and Municipal Law’ (Amsterdam: Elsevier Science Publishers B.V., 1987), 367-8; H Charlesworth, ‘Individual Complaints: An Overview and Admissibility Requirements’ in S Pritchard, (ed) Indigenous Peoples, the United Nations and Human Rights (The Federation Press, Sydney, 1998), 76; Velásquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988); note also American Law Institute, above n 46, Section 702, Comment b, Reporter’s Note 2, Section 703, Comment c.
[52] Above n 2, 269, 282; and American Law Institute, above n 46, Section 702, Comment m.
[53] Above n 2, recommendations 5 and 6, 284-292.
[54] S Pritchard, ‘The Stolen Generations and Reparations’ (1997) 4(3) UNSW Law Journal Forum 28, 28- 29.
[55] Refer to Sydney Morning Herald, 9 January 1998.
[56] Above n 2, recommendations 8 and 9, 295.
[57] Ibid, 294-295. The lack of domestic incorporation of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (‘the Genocide Convention’) was noted in Kruger and Bray cases, above n 14, (Dawson J, at 160; Toohey J, at 174; Gummow J, at 231. Gaudron J, at 190, comments on genocide being contrary to fundamental principles of common law).
[58] Above n 2, recommendation 11 at 297.
[59] Ibid, recommendation 12 at 300.
[60] Ibid, recommendation 13 at 301.
[61] Ibid, Part 5.
[62] Ibid, recommendations 33 – 35, 396-397; recommendation 37, 401.
[63] Ibid, recommendation 36, 399.
[64] Commonwealth Government, (Submissions to) National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, 1996, 26-32. Also refer to ‘Long delay awaits victims of forced removal’, The Australian, 27 May 1997, and ‘No compo for stolen children: Williams’, Canberra Times, 22 May 1997.
[65] Above, n 2, 306.
[66] R Graycar, ‘Compensation for the Stolen Children: political judgments and community values’ (1997) 4(3) UNSW Law Journal Forum 23, 24-25.
[67] T Ison, The Forensic Lottery: A Critique of Tort Liability as a System of Personal Injury Compensation, (Staple Press, London, 1967); and see more generally P Cane, Accidents, Compensation and the Law (5th ed, Butterworths, Sydney, 1993); H Luntz, The Assessment of Damages for Personal Injuries (3rd ed, Butterworths, Sydney, 1990).
[68] Above n 66, 25.
[69] Ibid, 303-307.
[70] Ibid, 305.
[71] Ibid, recommendation 16, 310.
[72] Ibid.
[73] Ibid, recommendation 17, 311.
[74] Ibid, recommendation 18, 312. ‘That it be a defence to a claim (for a minimum lump sum) for the responsible government to establish that the removal was in the best interests of the child.’
[75] Ibid, recommendation 19, 312.
[76] Ibid, recommendation 20, 313. Refer to 302-313 for a discussion on the monetary compensation issue.
[77] 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.
[78] Transcript of the Prime Minister, The Hon. John Howard MP Motion of Reconciliation 26 August, 1999 [Internet] URL <http://www.pm.gov.au/media/pressrel/1999/reconciliation2608.htm> 1.
[79] Ibid.
[80] Emphasis added.
[81] Above n 78.
[82] Australia, Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron “Bringing Them Home – Commonwealth Initiatives” Media Release (Canberra, 16 December 1997).
[83] For example refer to Q Beresford and P Omaji, Our State of Mind (Fremantle Arts Centre Press Fremantle 1998); F Bartlett, ‘Aboriginal Resistance Literature’ (1998) 4 UTS Review 80.
[84] F Bartlett (1998) 86.
[85] In Telling Our Story the name all names were changed. Rob Riley’s was changed to Malcolm. The excerpt from Telling Our Story that is referred to here was retold by Rob Riley at the public launch of Telling Our Story at Manguri (formerly Sister Kate’s Home for Aboriginal Children).
[86] Above n 20, 110. Most of the narratives in Telling Our Story were recorded in the third person but in After the Removal most were in the first person.