Paper presented at the 23rd Annual Australia and New Zealand Law and History Society Conference, Murdoch University, Western Australia (2-4th July, 2004)
| Author: | Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons), DPhil (Oxon) Senior Lecturer, Murdoch University School of Law |
| Subjects: | Aboriginal Legal Service Aborigines - The Stolen Generation (Other articles) Law - history (Other articles) |
| Issue: | Volume 11, Number 4 (December 2004) |
| Category: | Refereed Articles |
This issue is a ‘blank spot’ in the history of Australia. The damage and trauma these policies caused are felt everyday by Aboriginal people. They internalise their grief, guilt and confusion, inflicting further pain on themselves and others around them. It is about time the Australian Government openly accepted responsibility for their actions and compensate those affected.
Mr Butler [the Chairman of SNAICC] called for a Human Rights Commission Enquiry into the removal of Aboriginal children.
We want an enquiry to determine how many of our children were taken away and how this occurred. We want the enquiry to hear from Aboriginal people about how they have been affected and what must be done to compensate.We also want to consider whether these policies fall within the definition of genocide in Article II (e) of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.[11]
I feel very bitter, hurt and confused over what has happened to me especially being removed from my family. I have tried to commit suicide on a number of occasions and I blame the Welfare Department and my foster mother, who never told me about my mother’s death until much later. I was never allowed to mix with Aborigines and I have no Aboriginal cultural identity.[23]We were inculcated into a Christian religion and my Aboriginal culture or history was non-existent. That was completely irrelevant to our lifestyles at that stage. It was really an understatement to say that we were not taught anything about our Aboriginal culture or history. The fact is that our Aboriginality was never mentioned, it was never a consideration.
… One of the greatest travesties I think that Sister Kate’s has ever committed on children that have been there, including myself, is that they never prepared us for the fact that we had to one day leave the home and go into the outside world and deal with the fact that we were Aboriginal and how we would communicate with our own families and with the white community as Aboriginals. That is something that was very neglected by Sister Kate’s and they basically just ignored that fact that we were Aboriginal. We were being brought up as whites and to live in a white society.[24]
Mr Neville holds the view that within one hundred years the pure black will be extinct. But the half-caste problem was increasing every year. Therefore their idea was to keep the pure blacks segregated and absorb the half-castes into the white population. Sixty years ago, he said, there were over 60,000 full-blooded natives in Western Australia. Today there are only 20,000. In time there would be none. Perhaps it would take one hundred years, perhaps longer, but the race was dying. The pure-blooded Aboriginal was not a quick breeder. On the other hand the half-caste was. In Western Australia there were half-caste families of twenty and upwards. That showed the magnitude of the problem.In order to secure this complete segregation of the children of pure blacks, and preventing them ever getting a taste of camp life, the children were left with their mothers until they were but two years old. After that they were taken from their mother and reared in accordance with white ideas.[26]
… the native population is increasing. What is to be the limit? Are we going to have a population of 1,000,000 blacks in the Commonwealth, or are we going to merge them into our white community and eventually forget that there were any Aborigines in Australia. There are not many now, whereas not so many generations ago there were a great many. … The Aborigines have inter-mixed with our own people. I know of some 80 white men who are married to native women, with whom they are living happy, contented lives, so I see no objection to the ultimate absorption into our own race of the whole of the existing Australia native race.[27]
… This submission records the experience, effects and losses identified by those who provided information to the ALSWA. The clients also set out a number of recommendations to remedy the losses that they have suffered and continue to suffer. Some clients made strong recommendations on the current unacceptable involvement of Aboriginal adults in the criminal justice system, and Aboriginal children with child welfare and criminal justice systems, have shaped the form and content of this submission to the National Inquiry.The wishes and recommendations made by the ALSWA’s clients are very wide ranging and cover a significant variety of laws, practices and policies that impinge upon the lives of Aboriginal people. This is not surprising given the far-reaching effects of the assimilation policies and removal practices of the past, and the present separation of Aboriginal children from their families by the child welfare and criminal justice system. Further, nearly all Aboriginal people in Western Australia have been affected, directly or indirectly, by the past policies and practices of assimilation which led to the removal of children from their families. This necessitates that the National Inquiry take a broad view of the terms of reference.[29]
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 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.
…A number of submissions to the Inquiry supported an approach to the principles of compensation which recognizes 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 mad 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).[34]
Even the most minimal familiarity with the legal frameworks used for compensating various sorts of injuries would make it clear that what is, or is not, compensatory at law is more a matter of political judgment and government policy than it is a matter of any inherent legal understanding of compensability… Perhaps the most common form of compensation that courts deal with is the assessment of damages for personal injuries caused by negligence, such as in the negligent driving of a motor vehicle. Many tort scholars have pointed out that this process is little more than, as Ison called it, a “forensic lottery.”[67] Judges often make assessments of both economic and non-economic losses, at common law, on a lump sum ‘once and for all’ basis. This of necessity, involves speculation about a range of imponderables...[68]
[t]hat monetary compensation be provided to people affected by forcible removal under the following heads:
- Racial discrimination;
- Arbitrary deprivation of liberty;
- Pain and suffering;
- Abuse, including physical, sexual and emotional abuse;
- Disruption of family life;
- Loss of cultural rights & fulfilment;
- Loss of native title rights;
- Labour exploitations;
- Economic loss; and
- Loss of opportunities.[69]
[d]ifficulties 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... 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 involve great expense for governments to defend these claims.[70]
[t]hat 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.[75]
…that the mistreatment of many indigenous Australians over a significant period represents the most blemished chapter in our international history;[79]
Then the motion continued to express:
its deep and sincere regret[80] that indigenous Australians suffered injustices under the practices of past generations, and for the hurt and trauma that many indigenous people continue to feel as a consequence of those practices…[81]
The text I shall be discussing, Telling Our Story, published in July 1995, and After the Removal, published in May 1996, are different from the Human Rights publication [Bringing them home] in their refusal to be incorporated by an all-encompassing governmentality in production of public documents of this nature.[84]
On 26 March 1964, Malcolm (aged nearly ten years) was visited at SKCH [Sister Kate’s Children Home] by his parents. … He describes this as the happiest and saddest day of his life. It was the happiest day of his life because it vindicated what he had always believed, that is he belonged to someone. He knew that he belonged to someone despite being told by SKCH authorities that he didn’t. Seeing his parents was final proof that he did belong. He also found out that he had brothers and sisters that he never knew he had. Malcolm still has a present that his father gave him the day they met at SKCH. It was an eleven pence penny and Malcolm has kept this coin as a symbolic token of his belonging. The day was also sad because of the trauma of being punished for asking questions of who he belonged to and the fact that he did belong to someone and was punished for trying to find out. It was also sad because the reunion with his parents brought to him the realisation that part of his life has been robbed from him by being placed in SKCH rather than being with his parents.[86]