Submission to the Senate Legal and Constitutional References Committee's inquiry into the stolen generation

Submission to the Senate Legal and Constitutional References Committee's inquiry into the stolen generation

Executive Summary

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Prepared by Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of the Human Rights and Equal Opportunity Commission

8 June 2000

This submission has been prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of the Human Rights and Equal Opportunity Commission.

It responds to the Inquiry's first term of reference, namely the adequacy and effectiveness of the Commonwealth's response to the recommendations of Bringing them home (the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families).

The Commission is of the view that the Commonwealth government's response to date has been inadequate and inappropriate. The Commission particularly notes that the government's submission to this inquiry constitutes a fresh response to many of the recommendations of Bringing them home, which rejects several recommendations of report on the basis of flawed arguments and poor reasoning.

The Commission is of the view that the government has not provided any sound arguments for failing to implement the recommendations of the report. The Commission reiterates that the recommendations constitute the minimum acceptable policy response to the separation of Aboriginal and Torres Strait Islander children from their families.

The submission has the following four sections:

1. Introduction;
2. Comments on the Commonwealth's response to particular recommendations of Bringing them home;
3. Comments on the federal Government's submission to this inquiry; and
4. Recent international comparisons.

Commonwealth's response to particular recommendations of the report

In this section the Commission identifies three principles which we recommend should be adopted by the Committee to evaluate the adequacy and effectiveness of the government's response to the recommendations of Bringing them home.

1) National coordination: The requirement for national leadership to ensure a coordinated response to the recommendations across departments and governments in the implementation and monitoring of the recommendations. An effective response to the recommendations cannot be achieved without such leadership and coordination.

2) The human rights framework: The analysis of the report is based in a detailed examination of international law standards. The government's response to date has not addressed the human rights principles raised in the report or acknowledged their importance. The Commission considers that a response to the recommendations that does not address the human rights dimensions of removal policies cannot be seen as effective.

3)Indigenous participation: There has not been sufficient consultation and negotiation with Indigenous people, particularly those who were affected by the removal policies, in developing the government's response to the report. Effective participation of Indigenous people in decisions that affect them should be adopted by the Committee as a key measure of the adequacy of the government's response to the recommendations.

The Commission then raises concerns about the government's response to particular recommendations of the report, in particular:

Recommendation 1 - Recording testimonies. The Commission considers that the government has misinterpreted this recommendation;

Recommendation 2 - Procedure for implementation. The current approach to monitoring and the coordination of implementation is insufficient, and does not contain the crucial elements of an effective monitoring process;

Recommendation 5a - Acknowledgment and apology. The adequacy of the Commonwealth Parliament's motion of regret is a matter for the stolen generations to decide. However, the motion does not meet the requirements identified by this recommendation;

Recommendation 10 - Genocide Convention. Australia is, and has been for fifty years, in breach of its obligations under the Genocide Convention to enact legislation outlawing the crime of genocide in Australian law. The implementation of this recommendation is premised on a guarantee against future incidents of genocide, and should be implemented regardless of whether past events constitute genocide;

Recommendations 30, 33-36 - Family tracing and reunion services, health, counselling, well-being and parenting skills. Adequate funding must be provided for accessible and appropriate services.

Recommendation 42 - Social Justice. Achieving social justice and redressing Indigenous disadvantage are human rights issues, and must be addressed in a human rights context;

Recommendations 43-53 - National standards and framework legislation. The government's reasons for rejecting these recommendations are inadequate. Such legislation emphasises the importance of national coordination and implementation of Australia's international obligations. The consequences of failure to take this approach are illustrated by mandatory sentencing.

Comments on the federal Government's submission to this inquiry

This section argues that the government's submission to this inquiry misrepresents or does not fully comprehend the methodology and recommendations of Bringing them home. It argues that the reasoning put forward by the government is deeply flawed and constitutes an inadequate response to the recommendations of the report.

In relation to the methodology of the report, the Commission rejects the assertions by the government that the report:

• Was not based on a critical appraisal of the claims put to the Inquiry and failed to elicit the other side of the historical record: The report is based on a detailed examination of legislation and official government documents. The stories of Indigenous people were used to illustrate the effects of these laws, not as the basis of the report's conclusions. The 'other side of the historical record' includes the detailed records and submissions of the states and churches, which were the employers of those implementing the removal policies. The Commonwealth is alone in not accepting that the laws were discriminatory and misconceived.
• Has contributed to a simplistic concept of a stolen generation and an emotive image of forcible removal: The government's arguments on this point are contradictory. They assert that Bringing them home creates an emotive image of the child removed from its parents arms, yet acknowledges that such an image represents the experience of some people and is within the terms of reference of the Inquiry. It also acknowledges that this by no means represents the full scope of circumstances referred to in the report.
• Does not distinguish between the various reasons for separation: The report provides discussion on the meaning of undue influence, duress and compulsion, and distinguishes removals on these bases from those that were voluntary or where the child was orphaned. Similarly, the government submission does not refer to the findings of the report that the laws were racially discriminatory and genocidal.
• Overestimates the number of children stolen: The Commission notes that the government's arguments on the number of children removed are misconceived, and reiterates that the Commission's estimates are the most accurate available.

The Commission then considers the government's reasoning in relation to issues of reparation and compensation. In its response to the recommendations of the report, the government does not acknowledge the human rights basis of the report.

The Commission notes the following.

• In relation to compensation through the litigation process, the government submission places heavy reliance upon the single judge decision in the Williams case. As the recent decision in Johnson indicates, this is premature
• The government does not acknowledge that the principle of reparations is wider than monetary compensation, and is grounded in international law. The van Boven principles are a synthesis of international principles, and reflect existing international standards. These principles cannot be rejected on the basis that they have no formal status in the United Nations system.
• The principle of non-discrimination and the prohibition of genocide were 'standards of the day' by 1950 at the latest. Accordingly it is appropriate to evaluate forcible removal policies against these standards.
• Forcible removal can be seen to fall within the definition of genocide in the Genocide Convention. Article 2(e)of the Convention provides that genocide includes acts committed with the intent to destroy, in whole or in part, a racial group as such by forcibly transferring children of the group to another group. Similarly, genocide can occur without physical killing, with mixed motives, some of which may be perceived as beneficial, and without the complete destruction of the group.
• Forcible removal policies were racially discriminatory. They clearly had the effect of impairing the enjoyment and exercise, on an equal footing, of the human rights by Indigenous people.

The government's rejection of the basis for monetary compensation is also flawed. It represents a lack of political will rather than true impediments to providing compensation. The Commission provides examples of schemes overseas and in Australia where similar issues have been addressed.

International developments

The final section of the submission provides examples of international practice in responding to violations of human rights. It provides examples in Canada, South Africa, Aotearoa / New Zealand, Denmark, Norway and the United States of America.

Governments across the globe are increasingly scrutinising the practices of their predecessors and acknowledging the importance of making reparation to victims of violations of human rights.

These examples illustrate international acceptance of:

• the principle of reparation for violations of human rights, including monetary compensation;
• the importance of acknowledgment of the wrong done and apology;
• the need for a variety of responses to redress the harm caused;
• the human rights basis of providing redress; and
• the importance of participation of victims.

These examples reveal striking similarities to the approach taken in Bringing them home. The refusal of the government to apologise for policies and practices of forcible removal, and the failure to acknowledge the importance of providing reparation, is contrary to a world wide trend.

Last updated 2 December 2001.