[1]For example, see '$63m for stolen generation but blacks slam refusal to apologise', The Australian, 17 December 1997; and 'Bringing home the delusions: The Government ignores the truth of the stolen generations', The Australian, 4 April 2000.
[2]Reparation includes all types of redress - acknowledgement of truth and apology , guarantee of non-repetition of violation, restitution, compensation and rehabilitation. Refer to van Boven, T., (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, at 7; and van Boven, T., 1996: 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.
[3]Segregation, the dominant policy in the early 1900s, sought to separate the Aboriginal population from the non-Aboriginal population. This was often accomplished by placing Aboriginal people in reserves or missions. However, the 'half-caste' children, the fairer skin children, were considered 'saveable' and were removed from their Aboriginal families and absorbed into non-Aboriginal culture.
[4]The policy of biological absorption, developed during the 1930s, sought the 'complete mergence of the Aboriginal mixed raced population with white Australia'. Haebich writes: 'Strict state regulations of Aboriginal reproduction to produce progeny with progressively less Aboriginal features, together with social engineering programs involving the wholesale removal of mixed race children, would ensure the breeding out of Aboriginal physical characteristics and cultural practices.' Haebich, A. Submission to the Human Rights and Equal Opportunity Commission Inquiry into the Removal of Aboriginal Children, Murdoch University, unpublished, 1996, at 4.
[5]In contrast to biological absorption, the policy of assimilation sought a social rather than a racial explanation for indigenous disadvantage. The focus shifted from biological racial explanations to social factors.
[6]Although the focus was on the 'light skinned' so-called 'half-castes', Aboriginal children of 'darker complexion' were also removed.
[7]Haebich, A., For Their Own Good, Perth, University of Western Australia Press, 1988, at 150.
[8]See below for comment on the genocide issue.
[9]Aboriginal Legal Service of Western Australia (Inc), Telling Our Story: A Report by the ALSWA (Inc) on the removal of Aboriginal children from their families in Western Australia, Perth, Aboriginal Legal Service of Western Australia (Inc), 1995.
[10]Neville, A.O., Speech at the initial conference of Commonwealth and State Aboriginal Authorities, Canberra, Parliament House, April 1937.
[11]Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Straight Islander Children, (herein referred to as 'the National Inquiry Report'), Canberra, AGPS, 1997, at. 253-254. A summary of the relevant 'removal' legislation for all States and Territories is contained at 600-648.
[12]Western Australia Parliament, Parliamentary Debates, (Hansard), Vol. 28, 1905, at 432.
[13]Western Australia Government, Western Australia Government Gazette, Perth, Government Printer, 19 February, 1909, at 588.
[14]Aboriginal Act Amendment Act 1911 (WA), s. 3.
[15]Above n 2, 177, Johnston E., Royal Commission into Aboriginal Deaths in Custody: National Report, Vol 2, Canberra, AGPS, 1991, at 111-123, 131-138, Human Rights and Equal Opportunity Commission, Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness, Canberra, AGPS, 1993, at 692-704, and Buti T., After the Removal: A Submission by the Aboriginal Legal Service of Western Australia (Inc) to the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, Perth, Aboriginal Legal Service of Western Australia(Inc), 1996, at 57-65.
[16]At the time, Head of the Department of Psychiatry, University of Queensland and also co-author on report of Aboriginal Mental Health. Refer to Swan P., and Raphael B., Ways Forward: National Consultancy Report on Aboriginal and Torres Strait Islander Mental Health, Parts 1 and 2, Canberra, AGPS, 1995.
[17]Speaking at the State Mental Health Conference, Perth, 20 November, 1995.
[18](1995) 19 Fam LR 594
[19]Ibid, 602
[20]Ibid.
[21](1992) 175 CLR 1.
[22]Above n 18 at 602.
[23]In the Commonwealth Parliament on 25 May, 1997.
[24]The National Inquiry was launched on 10 August 1995, in Adelaide. The National Inquiry terms of reference were originally announced on 11 May 1995 by the then Attorney-General of Australia, Michael Lavarch. However, those terms of reference were revoked and replaced with similar but wider terms of reference, including the examination of compensation principles on 2 August 1995. The terms of reference of the National Inquiry were:
[25]Butler R, 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.
[26]D'Souza, N., 'The Stolen Generation: From Removal to Reconciliation', (1998) 21(1) University of New South Wales Law Journal, 204 at 205.
[27]Ibid.
[28]Ibid.
[29]ALSWA, Telling Our Story: A Report by the ALSWA (Inc) on the removal of Aboriginal children from their families in Western Australia, Perth, ALSWA (Inc), 1995.
[30]Via proof of evidence and/or questionnaire-statement from over 700 people.
[31]Williams v Minister Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 (extension of time application) and Williams v Minister Aboriginal Land Rights Act 1983[1999] NSWLR 843.
[32]Kruger v Commonwealth; Bray v Commonwealth 146 ALR 126; and Cubillio v Commonwealth [1999] 89 FCR 528 (strike out application by the Commonwealth).
[33]Unpublished. Refer to an earlier version of the paper, Merkel, R., 'Government Culpability For The Forced Removal of Aboriginal Children From Their Families', (1990) 2(47) Australian Law Bulletin 4.
[34]Williams was unsuccessful as have been the plaintiffs in Kruger and Bray. At the time of writing a decision has not been handed down on the substantive trial in Cubillio .
[35]Refer to The Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Aid Service (eds), Proceedings of the first National Workshop, Alice Springs, Stolen Generations Litigation Unit, Northern Australian Aboriginal Legal Service, September, 1996, at 1.
[36]Sorry Days took place across Australia on 26 May 1998, 1999 and 2000.
[37]Chisholm, R. (Judge Family Court of Australia), 'Placement of Indigenous Children: Changing the Law', (1998) 21(1) University of New South Wales Law Journal 208 at 208.
[38]Above n 11, at 253.
[39]Id, at 255-256.
[40]Id, at 256-257.
[41]Id, at 259 - 260.
[42]Id, at 277.
[43]Id, at 277 - 278.
[44]Id, at 278.
[45]Id, at 250.
[46]Id, at 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.
[47]Above n 11, at 250, 277.
[48]Id, at 277; the discriminatory operation of the legislation preceded the separate legislation.
[49]Id, at 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.) cited in Buti, T, above n 15, at 12; cf Kruger and Bray cases, above n 32.
[50]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; Charlesworth, H., "Individual Complaints: An Overview and Admissibility Requirements" in Pritchard, S, (ed) Indigenous Peoples, the United Nations and Human Rights (Sydney: The Federation Press, 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.
[51]Above n 11, at 269, 282; and American Law Institute, above n 46, Section 702, Comment m.
[52]Above n 11, recommendations 5 and 6 at 284-292.
[53]Pritchard, S., "The Stolen Generations and Reparations" (1997) 4(3) UNSW Law Journal Forum 28, 28-29.
[54]Refer to Sydney Morning Herald, 9 January 1998; cf Canadian Government's apology for the forced removal of Canadian Indigenous children from their families. Also see below.
[55]Above n 11, recommendations 8 and 9 at 295.
[56]Id., at 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 25 (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).
[57]Above n 1, recommendation 11 at 297.
[58]Id, recommendation 12 at 300.
[59]Id, recommendation 13 at 301.
[60]Id., Part 5.
[61]Id., recommendations 33 - 35 at 396-397; recommendation 37 at 401.
[62]Id, recommendation 36 at 399.
[63]Commonwealth Government, (Submissions to) National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, 1996, at 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.
[64]Above, n11 at 306.
[65]Graycar, R., "Compensation for the Stolen Children: political judgments and community values" (1997) 4:3 UNSW Law Journal Forum, 23 at 24-25.
[66]Ison, T., The Forensic Lottery: A Critique of Tort Liability as a System of Personal Injury Compensation, London, Staples Press, 1967; and see more generally; Cane, P., Accidents, Compensation and the Law, 5th Ed (Sydney: Butterworths, 1993); Luntz, H., The Assessment of Damages for Personal Injuries, 3rd Ed, Sydney, Butterworths, 1990.
[67]Above n 65 at 25.
[68]Id., at 303-307.
[69]Id., at 305.
[70]Id., recommendation 16 at 310.
[71]Ibid.
[72]Id., recommendation 17 at 311.
[73]Id., recommendation 18 at 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.'.
[74]Id., recommendation 19 at 312.
[75]Id., recommendation 20 at 313. Refer to 302-313 for a discussion on the monetary compensation issue.
[76]South Australia: 28 May 1997; Western Australia: 28 May 1997; Queens land: 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.
[77]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.
[78]Ibid.
[79]Above n 77.
[80]Australia, Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron "Bringing Them Home - Commonwealth Initiatives" Media Release, Canberra,16 December 1997.
[81]Id., at 1.
[82]Above n 11 at 278-279.. See also Buti, T, "The Removal of Aboriginal Children From Their Families: The Case for Reparation" Address, Eighth Concours International de Plaidoiries (Caen, 26 January 1997), 5.
[83]About $33 million in total, above n 80 at 8.
[84]Id., at 8-9.
[85]Above n 11 at 347.
[86]Above n 80 at 6.
[87]Id., 7.
[88]In conjunction with existing programmes.
[89]Family support and parenting programmes, culture and language centres. Above n 80 at 5, 8-9. Note that the language and culture centres component is funded from ATSIC's existing budget. Note also the existence and partial implementation of migration and transfer of prisoners legislation.
[90]In fact, the Government acknowledged its incomprehensive response when it noted the Report's insistence upon compensation and other measures but stated that the proposed measures on family reunion, health and other services for those affected by forcible removal would "form the focus of the measures being announced". Id., at 2-3.
[91]Above n 53 at 264.
[92]See for example, Article 10, 63(1), American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992); Article 21(2), African Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986; Article 9(5), International Covenant on Civil and Political Rights [ICCPR] G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976; Article 5(5), European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, Rome, 4.XI.1950; Article 14(1) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; Article 19, Declaration on the Protection of All Persons from Enforced Disappearance, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992); Article 15(2), 16(5), ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept. 5, 1991; Articles 12-13, 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); Velásquez Rodriguez Case, 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); Velásquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para 174-177; Factory at Chorzów (Germany-Poland), Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, 21; Factory at Chorzów (Germany-Poland), Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, 29; Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep. 184; see John Khemraadi Baboeram, André Kamperveen, Cornelis Harold Riedewald et al. v Suriname (1985) Communications Nos. 143/1983 and 148 to 154/1983, reported in 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) (New York: United Nations, 1990); Jean Miango Muiyo v Zaire (1987), Communication No. 194/1995, reported in 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), New York, United Nations, 1990; and Antonio Vianna Acosta v Uruguay (1983) Communication No. 110/1981, reported in United Nations, Human Rights Committee, Selected Decisions of the Human Rights Committee, New York, United Nations, 1980.
[93]The Commonwealth submitted that three principles would preclude the ex-gratia payment of compensation: difficulties in identifying the persons eligible for compensation; difficulties in estimating the amount of loss in monetary terms; negative consequences for the wider community. See above n 11 at 305-306.
[94]Above n 80, Summary of Recommendations and Commonwealth Initiatives.
[95]Because of the nature of the breach, restitutio in integrum stricto sensu is not possible.
[96]In the case of material impossibility: Encyclopedia of Public International Law, Volume 10 'States - Responsibility of States - International Law and Municipal Law', Amsterdam, Elsevier Science Publishers B.V., 1987, at 377 citing the Walter Fletcher Smith Claim (1949) 2 Reports of International Arbitral Awards, 9313; Rhodope Forest Case (1950) 3 Reports of International Arbitral Awards, 1406; Factory at Chorzów (Germany-Poland), Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, 47; De Wilde, Ooms & Versyp v Belgium, European Court of Human Rights, Judgment 10 March 1972 (Article 50), Series A, No. 14, para 20.
[97]Above n11 at 305-307.
[98]For example, Velásquez Rodriguez Case, 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), para 30-31; Godinez Cruz Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of July 21, 1989, Inter-Am.Ct.H.R. (Ser. C) No. 8 (1990), para 28-29.
[99]Above n 77. Cf: The Honourable Jane Stewart, Minister Of Indian Affairs and Northern Development, Statement of Reconciliation: Learning from the Past, 7 January 1998, [Internet] URL <http://www.inac.gc.ca/info/speeches/jan98/action.html>.
[100]Above n 77.
[101]Minow, M., Between Vengeance and Forgiveness, Boston, Beacon Press, 1998,
[102]Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions , Ottawa, Law Commission of Canada, at 83.
[103]And the healing process of the nation.
[104]The principle that when an Aboriginal or Torres Strait Islander child is to be placed in substitute care, he or she should be placed within their own culture and community where possible.
[105]Above n 11 at 250, 269, Part 6 - Chapter 21 generally; also Australia, Human Rights and Equal Opportunity Commission "Commission urges Government to make amends to the Stolen Children" Media Release 27 May 1997.
[106]Kruger and Bray, above n 32.
[107]Amnesty International notes that the relevant Northern Territory ordinance in Kruger and Bray, was only one of over one hundred laws and policies which applied across different jurisdictions at varying times: Australia, Amnesty International "Silence on Human Rights: Government Responds to 'Stolen Children' Inquiry" Report ASA 12 February 98, para 19.
[108]Above n 32 at 167 (Dawson J), and at 175 (Toohey J).
[109]It should be noted that a Australian Democrats Senator Brian Greig has introduce into the Senate the Anti-Genocide Bill 1999,l which seeks to give domestic effect to the Genocide Convention. On 14 October 1999 the Senate referred the bill to the Legal and Constitutional References Committee for inquiry and report by 30 June 2000. See further [Internet] URL <http://www.aph.gov.au/senate/committee/legon_ctte>.
[110]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, (herein referred to as 'the Senate Report'), Canberra, AGPS, 2000
[111]The recommendations are summarised at xvii-xviii of the Senate Report.