Requests are made for reparations light years removed from the injustices that prompt them. The “stolen generation” is a recent example. After generations of guilt and dubious silence, it culminated in a parliamentary apology delivered by the Prime Minister.
Although governments are not easily apologetic, apologies have been sought and sometimes granted with global amplitude. African-Americans have sought one for slavery. Canadian Aborigines and New Zealand Maori have received one from their governments. Two apologies and compensations resulted from World War II: Germany to Israel and Jews and the US to surviving Japanese-Americans.
John Howard refused to offer an apology and explained that present generations cannot be held accountable for the injustices of earlier generations and that any moral responsibility stopped with that generation. He appears to have mischaracterised the actors.
The acts of forcible removals had become official policy in all Australian mainland States and the Territories. That policy was enshrined into law such as Western Australia’s Aborigines Protection Act, which stated that the Minister was empowered to remove any Aboriginal person. It was not an act done at the whim of any one person, which would have added credence to Howard’s stance. It was an act by the institution of government, no matter the actors inside. The institution is bigger than any one person or even generation.
The Rudd apology was given on behalf of Parliament. That seems fitting since the laws that allowed the forcible removals were made in that branch of government and implemented by the executive of the day - also a part of the legislature in our system of government.
Unfortunately however, the apology was not accompanied with monetary compensation.
Indigenous leaders in Australia have warned of a lawsuit for non-compensation of a global amount of $1 billion. Past litigants have generally not been successful. Factors trammelling litigative success include overcoming the statute of limitations. Courts have not ruled conclusively on extending the period but have noted that there would be “overwhelming prejudice” to the defendant to extend the period. Litigation of this type is expensive and time-consuming. It also involves meeting heavy evidentiary standards. There is also a very complicated interplay of numerous statutes and case law on the issue of court actions for compensatory remedies. On what basis could the Aborigines sue? First, there is a breach of fiduciary duty. The duty has to be established before it can be breached. Case law has been inconsistent. Court’s have not conclusively ruled on the issue because even assuming a duty, it has consistently been held not to have been breached.
Second, the Aborigines could claim in negligence. It involves establishing a duty of care and a breach of that duty with damage connected to that breach. Historically, litigants have been unsuccessful. Courts will take into account policy considerations such that a “decision to take a child into care is one that courts are not fitted to assess” (Cubillo) and in any case, imposing a duty could reduce the supply of childcare services (Williams). Negligence has also been defeated on technical grounds.
Third, there is wrongful imprisonment. This has had poor mileage in the courts. The children were removed through very broad statutory powers and that such removal was not wrongful but in the best interests in the child. Further, in some cases, the mother had consented to the removal leading to an automatic dismissal of this cause of action.
Then there are constitutional causes of action. It could be argued that the laws allowing the removing were unconstitutional because:
- they conferred a judicial power on a non-judicial body;
- it violated freedom of movement; and
- it violated freedom of religion.
These will likely all fail the Aborigines as they did in Kruger in 1997.
It would rather have been prudent for the Government, much like Canada who has set up a compensation fund for its equivalent of the stolen generation, to offer compensation for the pain and suffering, exploitation of labour, physical, sexual and mental abuse, economic loss and racial discrimination. Without such offer, these specific “heads” will go uncompensated. Even if there were an offer, issues of rationing would begin, as each of the 13,000 cases of forcible removals would be distinct and would defy equal share.
Many international conventions, binding on Australia, recognise a right to an effective remedy. Although they were not binding at the time of the forcible removals, it is widely recognised that customary international law requires it. Increasing funding in health and education as proposed by the Deputy Prime Minister, with its results so dispersed, is unlikely to be an effective remedy.
Finally, the legality of the federal apology delivered by the Prime Minister would be covered by parliamentary privilege. The Opposition Leader requested the Government’s legal advice to be released so the public could be assured that the apology would not “open up the floodgates for compensation”. His fears were legally misplaced. No potential litigant will be able to question or rely on the truth, motive, intention or good faith of the apology or question the credibility, motive, intention or good faith of the Prime Minister, or draw inferences or conclusions that the apology is suggestive of, or a pretext to, court-ordered compensation.