Moving forward - from 'practical reconciliation' to social justice

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Moving forward - from 'practical reconciliation' to social justice

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

Moving Forward: Achieving reparations for the stolen generations

University of New South Wales, Sydney 15-16 August 2001

I would like to acknowledge the Gadigal people, the traditional owners and custodians of the land where we are meeting today. On behalf of the Human Rights and Equal Opportunity Commission, I would also like to welcome everybody here today - particularly our international guests from Canada, America, South Africa and New Zealand, and most importantly, members of the stolen generations.

In 1997, the Human Rights and Equal Opportunity Commission's (HREOC) report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families - titled Bringing them home - was publicly released. For the majority of non-Indigenous Australia, the report was the first time that they had heard about policies of forcible removal and their ongoing legacy. For many Indigenous people, it was yet another stage in the long campaign for recognition of the experiences of those forcibly removed.

For many Indigenous people who had been removed from their families, the report constituted a very public affirmation of their life experience - it 'legitimised' and validated the truth of the history that they and their families had lived with, in some instances for several generations. And for many, it re-opened or intensified the grief and pain that they had suffered.

I noted in my Social Justice Report 2000 that Bringing them home, along with other developments in the past decade such as the Mabo decision, has meant that as a nation we now find ourselves in a position where we can no longer forget or ignore the truth of our past. The author Milan Kundera has noted that 'forgetting… is absolute injustice and absolute solace at the same time' [1] . Such 'absolute solace', or 'ignorance is bliss', is no longer an option for Australian society. Bringing them home has forced us to challenge some of the myths of settlement and colonisation - myths which one academic has described as having previously operated in Australia as 'a self-constructing form of repression' . [2]

It is now just over four years since the release of Bringing them home. It is uncontroversial to note that there is now broad community acknowledgement of the history of those forcibly removed. We cannot under-estimate how important this recognition is. However, it is but the first step in a process of healing and of addressing the consequences of this history. And as we reflect on the four years since Bringing them home was released, it is clear that the needs of those forcibly removed have remained unmet, and that 'absolute injustice' remains a very real option.

Who would have thought that four years later the report would remain so prominently, and so painfully, in the public domain? And for the victims of forcible removal policies, who could have imagined that their pain, their grief and their suffering would have been allowed to continue unabated and left so far from healing?

The government has stated on several occasions that it acknowledges the pain and suffering and the 'traumatic legacy of past practices of child separation'. Interestingly, they often refer to past practices as 'separation' as opposed to forcible removal - a much more benign description of the laws and policies.

The government freely admits that 'these practices represent a tragic part of Australia's history'. But it has never understood the consequences of this history and its contemporary dimension.

As Bringing them home noted in its opening paragraphs, 'the actions of the past resonate in the present and will continue to do so in the future. The laws, policies and practices which separated Indigenous children from their families have contributed directly to the alienation of Indigenous societies today.'

When he visited Australia in May this year, the United Nations Special Rapporteur on Contemporary Forms of Racism - Professor Maurice Glele - explained the importance of recognising the consequences of history as follows. He stated that the upcoming World Conference Against Racism, which takes place in two weeks time in South Africa, is an occasion for self-reflection in which we should:

ask ourselves why is it so difficult to accept that others can be different - so very difficult that we can offer them nothing but assimilation of our own dominant culture, or marginalisation as a sub-human being, indeed exclude them from society, not to mention physical, intellectual and spiritual annihilation…

He went on to explain that:

This question is addressed to the past and to the present. For indeed, for most if not all people, time is not a rigid structure, a straight line which can be cut up into sections, allowing for the disturbing sections to be discarded and forgotten…

What is perceived as time past is only time present repressed, and time present only time future in the making. That is why humankind can only progress once they have acknowledged past misdeeds. What is needed, at the very least, is acknowledgement of what actually happened, and repentance, which is a sign of humility and humanity in order for the dead weight of the past to lighten, and allow the process of reconciliation between individuals, peoples and nations to begin.' [3]

The government's failure to recognise the links between the past and the present is testament to the limitations of its 'practical reconciliation' approach. This is demonstrated by its response to the recommendations of the report relating to reparations.

In Bringing them home, HREOC had found that forcible removal policies amounted to gross violations of human rights - on the grounds that it amounted to genocide and systematic racial discrimination. This second ground is quite vital - for while there has been much controversy about the genocide finding the government has simply ignored the finding of systematic racial discrimination of such a scale that it constitutes a gross violation of human rights. In other words, regardless of the arguments about genocide, the government and critics of the report have failed to explain away a key basis for the provision of reparations.

On the basis of these findings the report applied human rights standards to determine the package of measures that it considered necessary in order to respond to the harm inflicted by forcible removal policies. The relevant human rights principles had been synthesised by Special Rapporteur Theodor van Boven as the Draft basic principles and guidelines on the right to reparation for the victims of gross violations of human rights and international humanitarian law. These principles are referred to in Bringing them home as reparations.

The principles developed by Special Rapporteur van Boven remain under consideration in the United Nations, though this does not affect their applicability given that they are a synthesis of existing standards from a variety of sources, including several main human rights treaties to which Australia is a party.

This is recognised in the draft declaration of the upcoming World Conference Against Racism, which states:

We also strongly reaffirm as a pressing requirement of justice that victims of human rights violations resulting from racism, racial discrimination, xenophobia and related intolerance, especially in light of their vulnerable situation, socially, culturally and economically, should be assured of having access to justice, effective and appropriate protection and remedies, as well as legal assistance, including the right to receive just and adequate reparation or satisfaction for material and moral damage, as enshrined in numerous international and regional human rights instruments, in particular the Universal Declaration of Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. [4]

The draft declaration for the World Conference also contains further, much more controversial, references to reparations and the situation of Indigenous peoples and people of African descent. These references are not agreed at this stage and are one of the most contested issues in the negotiations. This is because western nations, including Australia, are opposing the calls for recognition of the past and for reparations to deal with the consequences of slavery and colonialism. At this stage, for example, the draft declaration states, 'the importance and necessity of teaching about the past and recent history of colonialism… to prevent the recurrence of similar policies and practices', and calls on 'those who directly or indirectly, by commission or omission, participated, permitted, facilitated or tolerated colonialism, (or) slavery of indigenous or African people… to apologise to the peoples concerned as a first step in the process of reparation to heal the wounds arising from these practices, as a fundamental prerequisite for the creation of the peace of mind of all parties involved' .[5]

In Bringing them home, reparations are divided into five inter-related and inter-dependant elements:

• Measures of restitution - such as family tracing and reunion services, recording of oral histories and protection of records, and language and cultural centres;
• Measures of rehabilitation - such as counselling services and measures to re-empower Indigenous communities;
• Compensation - for damage resulting from the physical or mental harm inflicted, as well the material damage, loss of earnings, harm of reputation, costs for legal and medical and other assistance;
• Satisfaction and guarantees of non-repetition - including commemoration, an accurate portrayal of events in history, community education, as well as guarantees against repetition such as incorporation of the Indigenous Child Placement Principle and of the genocide convention in Australian law; and
• Acknowledgement and apology - including a public acknowledgement of the facts and of responsibility.

Since the report, much consideration has been given to how to achieve reparations. This consideration has begun to crystallise in the form of a healing commission or a reparations tribunal. The call for such a tribunal or commission has been based on the perceived inadequacy of the litigation process for providing reparations and atonement.

The government's response has been to interpret the call for a tribunal as requiring a strictly legalistic framework and to characterise victims of forcible removal as focused on monetary compensation. This characterization sees victims of forcible removal policies being painted as threats to the financial position of the government and the broader society, who must be vigorously defended. The Cubillo and Gunner case is a striking illustration of this - with the government spending over three quarters of one million dollars on private detectives to discredit the present circumstances of the plaintiffs and over one million dollars for just one of the lawyers in the case.

The government has insisted that as an alternative to such a tribunal, funding and initiatives for family reunion and counselling services represent 'a more practical way to assist in healing the suffering caused'.

Such an approach misrepresents the diversity of needs facing those who have been forcibly removed from their families. Stolen generations representatives have made it clear in the past, and I am sure will make it clear again over the next two days, that adequate reparation does not focus exclusively on monetary compensation.

Reparations for the effects of removal has never been contemplated by anyone as an 'either/or scenario' in which compensation or counselling services are provided. The scope of the reparation would undoubtedly vary for each individual and community - and while it might include some form of monetary compensation, it would also extend to a package of inter-related measures such as commemoration, community healing programs or an apology for example.

Family reunion and counselling services are undoubtedly an integral component of this package and the government's continued support for such services is to be welcomed. But it is unacceptable to suggest that the provision of such basic services and 'practicality' outweigh the demands of social justice or constitute a total response to the needs of those forcibly removed.

The position of the government during the recent debate on domestic violence in Indigenous communities makes for an interesting contrast to their response to the consequences of forcible removal policies. A few weeks ago, Minister Ruddock described the 'sometimes unpleasant debate' of recent months over domestic violence as a 'turning point in Indigenous affairs… one that could be positive in the long term for Indigenous Australians'. The Minister argued that this debate has seen the focus shift to the 'real issues, not the distractions' by moving beyond the 'simplistic debate about an indigenous rights agenda', including such things as an apology and compensation. Instead, he argues that it has moved to a debate about the often forgotten needs of individuals - such as safety and security and the ability of people to take control of their own lives.

Bringing them home detailed a range of consequences of forcible removal policies, ranging from people who were removed being more likely to experience physical and mental health problems and of being arrested or imprisoned, to inter-generational problems from being less likely to form stable relationships and more likely to have their own children removed through the care and protection or juvenile justice systems in turn.

This devastation inflicted upon Indigenous communities by forcible removal policies cannot reasonably be described as a distraction, or as being of little relevance to the day to day lives of its victims. Responding to forcible removals is also clearly about what the Minister describes as 'the often forgotten needs' such as the ability of people to take control of their own lives.

My concern is that the ongoing failure of the government to grapple with this legacy will ensure that forcible removal issues remain so painfully in the public arena and that they will continue to contribute to the type of community dysfunction that leads to domestic violence and other issues.

And ultimately, that is what this conference is about. It is fundamentally a statement that this situation is unacceptable and that it must be dealt with. It is a statement that we do not consider that the responses of Government - at the federal, state and territory levels - and of the churches who participated in forcible removal, has been adequate to date. It is a statement that the need of those forcibly removed has not gone away, and that it is now even more urgent than it was in 1997.

And it is a call for the national leadership that has been so demonstrably lacking on this issue to date. Our national government owes us more than practicality in responding to a human tragedy of the scale inflicted upon the Aboriginal peoples of this nation. After four years of inaction, it is time to move forward the debate on forcible removal policies and focus on the real issues, by developing mechanisms for reparations and for healing.

Over the next two days you will hear from a variety of speakers representing a range of interests in Australian society - from the reconciliation movement to the churches to government, and from Aboriginal people themselves. You will also hear from international speakers who will provide a perspective on how their countries have gone about dealing with issues of a similar dimension.

In March this year I had the great pleasure of visiting two of our international guests - Nathalie Des Rosiers of the Law Commission of Canada and Mike Degagne of the Aboriginal Healing Foundation - in Ottawa, Canada. The discussions that we had were inspiring and demonstrated that there are ways to deal with the pain and suffering, and the consequent community dysfunction. Nathalie and Mike, and our other international guests, won't provide us with a perfect model which we can adopt - in fact they will no doubt tell us how difficult and imperfect the processes in their home countries have been. But they will provide us with further ideas and inspiration which we can build on within our own system.

And the core of the conference will be a series of workshops that will take place this afternoon and tomorrow morning in which you will have the opportunity to draw on your own experiences and the information and suggestions of our speakers. These workshops will allow every single one of you to consider the key issues in moving forward and achieving reparations for the stolen generations.

You will have the opportunity to elaborate what form you think a reparations tribunal, healing commission or alternative process should take. Who should be entitled to reparations? What form should reparations take? What should be the process for receiving reparations? And how does reparations fit with the reconciliation process and the need for a treaty to deal with unfinished business?

These are some of the questions that we want to hear your views on - as well as any other issue that you see as vital to healing and achieving reparations.

We will be looking to formulate recommendations out of each workshop, so that by the end of the conference we have a comprehensive series of recommendations on how to move forward.

This is a big responsibility for everyone in this room. The challenge for you is to be able to clearly articulate to Government and to the rest of society the form that reparations should take. It is my view that the arguments that the government currently puts forward about why it cannot provide reparation are based on a series of false assumptions and misrepresentations that clearly do not reflect the aspirations nor the realities of the lives of the stolen generations. These two days are your opportunity to expose these false assumptions by creating a clear, comprehensive vision of the road from here.

It will be hard work, it will be emotional and it will be difficult. But it is something that is both necessary and which I am confident you will be able to do. I wish you all the best for the coming two days, and look forward to hearing your views.

Thank you.

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1. New York Times Book Review, 6 March 1988, quoted in Turner, S., 'Settlement as forgetting' in Neumann, K., Thomas, N., and Ericksen, H. (eds), Quicksands - Foundation histories in Australia and Aotearoa New Zealand, UNSW Press, Sydney, 1999, p20.

2. ibid, p33.

3. Professor Maurice Glele Ahanhonzo, United Nations Special Rapporteur on Contemporary forms of racism, Opening speech - HREOC National Summit on civil society and racism, 8 May 2001, Canberra, p2. Available at: www.humanrights.gov.au/worldconference/.

4. World Conference Against Racism, Draft declaration, para 111: A/Conf.189/PC.3/7, 12 July 2001.

5. ibid, para 108.