Submission to the Senate Legal and Constitutional References Committee's inquiry into the stolen generation
Legal
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:
- Introduction;
- Comments on the
Commonwealth's response to particular recommendations of Bringing
them home; - Comments on the
federal Government's submission to this inquiry; and - 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.