There is sorry, and there is sorry.
‘Sorry’ has a special resonance in Aboriginal culture and signifies deep compassion and sympathy.
An apology is more than a symbolic gesture. It is very much a practical act, one that will not only establish a useful relationship of mutual respect with a new government, but a gesture that may heal some of the intergenerational psychological harm and dysfunction caused by previous government policies and practices.
Social Justice Commissioner Tom Calma noted that the commitment to an apology is a step towards healing the national divide. Commentators have suggested that saying ‘Sorry’ is a litmus test for the emotional state of the nation and a clue to Australia’s sense of itself.
A document the Stolen Generations Alliance presented to the Rudd government in the lead up to the apology said that victims and their families overwhelmingly desired a compensation fund to make the reparations process meaningful.
The question of compensation has been outstanding since the ‘Bringing Them Home’ report from the 1997 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. Nine of the fifty four recommendations from that report address the issue of reparation, including the establishment of a formal compensation scheme. However, the issue of monetary compensation remains unresolved.
Nationally, the Rudd Government has rejected the call to establish a compensation fund, arguing that it intends to back the apology with a concerted effort to close the 17-year gap in life expectancy between indigenous and non-indigenous Australians, while providing "targeted assistance" to members of the Stolen Generations. This response ignores the fact that closing the gap by providing adequate services, opportunities and protection from abuse is already an obligation government has to all of its citizens. Closing the gap doesn’t make up for the pain, suffering and destruction of families caused by the policies and practices of child removal. In other words it does not amount to reparations for past injustices.
Late in 2006 The Grand Chief of the Assembly First Nations (AFN) of Canada, Mr Phil Fontaine along with his principal legal advisor Kathleen Mahoney and Charlene Belleau, Director of the AFN’s ‘Indian Residential Schools Unit’ visited to discuss the ‘Canadian Compensation Scheme for Children Placed in Indian Residential Schools’. While here the Canadian delegation outlined how the Canadian Government has established a $1.9 billion compensation fund for people affected by the removal of Indigenous children to Indian Residential Schools from the early 1880s to the early 1970s. The government also provided an additional $3 billion in compensation to survivors who suffered physical and sexual abuse in the schools. To date that scheme has received 85,080 applications, 56,625 have been processed, and 46,910 have received compensation.
In November 2006 the Tasmanian Government passed legislation to create a $5 million fund to provide payments to eligible members of the Stolen Generations of Aborigines and their children. The application period is now closed, and 150 applications were received, of which 106 were successful.
In Australia there have been multiple court cases in which members of the Stolen Generations have taken action against State and federal governments in relation to their removal from their families.
Some have taken the form of a constitutional challenge, where it was argued that the government had no power to pass laws authorizing their removal. Other cases have been for personal damages for maltreatment and abuse suffered in care due to the government’s alleged breach of duty of care over children in state institutions.
To date, only one case, Trevorrow v South Australia (2007), has been successful. This landmark decision has received a high degree of media attention.
The Commonwealth was only responsible for the removal and institutionalization of Aboriginal children in the Northern Territory. In the rest of the country that responsibility lay with the State governments; the Tasmanian fund and the Trevorrow decision clearly demonstrate this.
In December 2007, the WA Government announced a $114 million redress scheme for those who as children were abused while in State care in WA. Although not specific to the Stolen Generations, members of the Stolen Generations who were abused in care can seek compensation through this scheme.
There are some very real concerns about the limits of the ‘Redress WA’ package. The eligibility criteria are harsh and the fund is not enough to compensate the large numbers of Aboriginal people who were separated from their families and placed in the care and protection of the State of Western Australia.
It should be enough for a member of the Stolen Generation to be eligible for at least the first level of compensation, without having to demonstrate abuse, because being separated from their families was abuse in itself.
It is also of concern that the State includes potential compensation claims from Stolen Generation people in with other people who were in State care as children. There are some significant differences – none being more than the fact that the Chief Protector of Aborigines/Native Affairs was the guardian of all Aboriginal children even if their parents were alive. Furthermore, under the various ‘protection’ acts, Aboriginal children were often removed because they were Aboriginal. In contrast, non-Aboriginal children were only removed from their families when the authorities could prove in a court of law that they were subjected to abuse or neglect.
