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Senate Legal and Constitutional
References Committee - Inquiry into the stolen generation

Public hearing, 12 July
2000

Opening comments by Dr
William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Human Rights and Equal Opportunity Commission

I thank the Committee
for the opportunity to appear here today and I would like to acknowledge
the Eora people, the traditional owners of the land where we are meeting
today. The Commission has provided you with a lengthy submission and a four
page executive summary. We have also provided copies of the 1998 Social
Justice Report, which was a follow up to Bringing them home. < Our
submission 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. In the course of dealing with this term of
reference the Commission has made comments that are relevant to the remaining
terms of reference of the Inquiry.

The ultimate conclusion that the Commission
has reached in the submission is that the Commonwealth government's response
to the recommendations of Bringing them home 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 the 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. It is the view of the Commission that the recommendations
of Bringing them home continue to constitute the minimum acceptable
policy response to the separation of Aboriginal and Torres Strait Islander
children from their families.

In
the submission, we identify three principles that we recommend should
be adopted by the Committee, and which we use to evaluate the adequacy
and effectiveness of the government's response. These are the principles
of national leadership and coordination; the necessity to address the
consequences of forcible removal policies and practices within a human
rights framework; and the requirement of ensuring the effective participation
of Indigenous people in decisions that affect them.

As we argue in the submission, the government's
response does not address these criteria. Until it does, the government's
response cannot be judged as effective or even merely adequate.

The first of these principles is that of
national coordination and leadership. The Commission considers that there
needs to be a nationally coordinated approach in developing, monitoring
and evaluating programs, in order to ensure full compliance with human
rights principles; to maximise efficiency and ensure there is no duplication
of services at different levels; and to ensure that the recommendations
of the report do not disappear off the agenda due to jurisdictional 'cracks'
or demarcation disputes between governments.

Our submission provides numerous examples
of recommendations that have not been adequately implemented due to the
lack of national coordination and leadership. In particular, I note the
discussion in our submission of recommendations 2 and 43-53.

The second principle identified by the Commission
is the necessity to address forcible removal issues within a human rights
framework. Perhaps the greatest flaw in the government's response to the
report to date has been the failure to understand or acknowledge the human
rights basis of the recommendations.

The recommendations of the report are based
on a detailed analysis of international principles arising from treaty
obligations and international customary law. In rejecting the recommendations,
the government has provided either a superficial analysis of these international
principles (particularly in relation to the meaning of genocide, the concept
of reparations and the status of the van Boven principles), or has provided
no analysis at all (for example, in relation to the findings of the report
that forcible removal policies and practices were racially discriminatory).

An example that demonstrates this approach
is the government's rejection of the recommendations relating to the payment
of compensation on the basis that no legal liability to do so has yet
to be established.

At its simplest, there is no capacity within
the legal systems of Australia to establish such liability in a court
of law in relation to a number of the grounds identified in Bringing
them home.

As this Committee noted in a recent report,
genocide is not prohibited in Australian law. Similarly, there is no redress
available for laws, policies and practices prior to 1975 that were racially
discriminatory. In some states, for example Western Australia, limitation
periods also prevent civil actions from being brought.

It is disingenuous to insist that legal liability
is a prerequisite to considering compensation options when it is manifestly
clear that victims of forcible removal policies are prevented from being
able to establish such liability through court processes on some of the
grounds identified in Bringing them home.

The government's limited approach does not
account for principles of international customary and treaty law that
require that there be redress for victims of gross violations of human
rights.

As we note in the final section of our submission,
the failure of the Commonwealth to acknowledge these principles runs contrary
to a world wide trend. Examples in Canada, Aotearoa / New Zealand, Norway,
Denmark, the United States and South Africa variously demonstrate an international
acceptance of the principle of reparations for violations of human rights,
which extends to monetary compensation; the importance of acknowledgment
of the wrong done and apology; and of the human rights basis for providing
redress.

The third principle identified by the Commission
in our submission is that of ensuring the effective participation of Indigenous
people, especially those affected by removal policies, in the development
of responses to the report. It is crucial that Indigenous people are directly
involved in the implementation of the recommendations. The Commission
urges the Committee to adopt this principle of effective participation
as key measure of the adequacy and effectiveness of the government's response
to the report.

In the limited time left for these opening
remarks I want to make four further points, which I will keep brief.

The first is the absence of an adequate response
to the fourth term of reference of the National Inquiry, which relates
to contemporary forms of separation of indigenous children from their
families. The report recommends national legislation to implement the
principle of self-determination in juvenile justice, care and protection,
family law and adoption. In the submission we use the example of mandatory
sentencing laws as contrary to this approach. And today's Sydney Morning
Herald provides further reason why these recommendations should be reconsidered.
It details the extent of removal of Aboriginal children in NSW under care
and protection legislation, and has been referred to as a 'new stolen
generation'.

The second relates to proposals for the establishment
of an alternative dispute resolution tribunal. The Commission has provided
examples of models and factors that have been, or are currently being,
taken into account in other countries. In particular I note the recent
report of the Law Commission of Canada titled Restoring dignity,
which provides detailed analysis of the pros and cons of various approaches
to redress for victims of institutional abuse in Canada.

Significantly, the Law Commission highlights
the necessity to ensure that the perspective of survivors are at the centre
of any approach taken and that there must be diversity in the range of
choices available to survivors. The Commission also recognises that a
process for providing redress should, in addition to taking into account
the needs of survivors, their families and communities, be 'fair, fiscally
responsible and acceptable to the public.' The Law Commission concludes
that providing redress options is necessary and that these concerns can
be met.

[Other relevant models discussed in the submission
include vaccine damage tribunals in the UK and USA and war veteran's compensation
in Australia. These models demonstrate that governments, including the
Australian government, have previously made public policy decisions that
it is in the public interest to provide compensation, irrespective of
difficulties associated with liability and the quantification of loss.]

As noted at the outset, the Commission is
of the view that the recommendations of the report constitute the minimum
acceptable response to forcible removal policies and practices. They constitute
an appropriate starting point for negotiations between Indigenous people
and government about alternative processes for reparation. The Reparations
Tribunal proposed by the Public Interest Advocacy Centre, for example,
adopts the recommendations and analysis of the report as the basis of
their model.

A further point I wish to discuss is that
it is the Commission's view that much of the government's approach is
based on a misrepresentation of the methodology of the report. Our submission
considers the ways in which the government misrepresents the methodology
of the report in some detail.

One aspect of their approach is to suggest
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.
This does not account for the fact that 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 supplied
to the National Inquiry by the states and churches, who were the employers
of those implementing the removal policies.

Finally, on the estimates of the total number
of children removed, the government's attempt to down-play the number
of children removed by displacing statistical analysis with highly speculative
and unscientific arguments is deeply problematic. The estimate adopted
in Bringing them home is conservative and directly referable to
all available statistical analysis. The report accounts for imperfections
in the data, by suggesting that the true figure falls within a broad range
of between 10% and 33%. There is nothing in the government's arguments
to suggest that this range is excessive or unrealistic.

The government's focus on the exact number
of children removed, the fact that they have argued that the number is
lower than suggested in the report in order to justify their non-implementation
of the recommendations, and their wordplay on what constitutes a generation,
misses the point and denigrates the victims of forcible removal policies.

The Commission is also concerned that the
government's approach has operated as a distraction from the main concerns
of the report. Accordingly, to conclude I want to return to the introductory
remarks of Bringing them home, which state that:

In
no sense has the Inquiry been 'raking over the past' for its own sake.
The truth is that the past is very much with us today, in the continuing
devastation of the lives of Indigenous Australians. That devastation cannot
be addressed unless the whole community listens with an open heart and
mind to the stories of what has happened in the past and, having listened
and understood, commits itself to reconciliation ... The Inquiry's recommendations
are directed to healing and reconciliation for the benefit of all Australians.[1]

This purpose has been
largely obscured by the debates since the release of the report, and the
Commission urges that the Committee be mindful of this purpose in conducting
the rest of this inquiry. Thank you.

Last
updated 1 December 2001